Florida Rules of Civil Procedure – Part 5
The Florida Rules of Civil Procedure are the rules that govern how civil litigation in conducted in Florida’s state courts. The purpose of civil litigation is to resolve disputes, usually concerning money, by enforcing obligations and duties between parties to the action. The term “civil” is used in contrast to “criminal” actions, which have their own rules of procedure.
Procedural rules govern only the process through which substantive interests are maintained or redressed. Florida adopted the Rules of Civil Procedure in 1967 and they have been revised many times since then. The Rules were most recently amended in June 2022.
Florida’s Rules of Civil Procedure are generally organized in the order in which a case would progress through the various stages of litigation. This is the first in a series of articles providing a brief overview of some of the more important rules.
Rule 1.010 to Rule 1.090 deal with general matters related to litigation. Rule 1.100 to Rule 1.130 deal with requirements related to pleadings and motions. Rule 1.140 to Rule 1.190 deal with requirements related to defenses, counterclaims, crossclaims, and third party practice.
Rule 1.200 to Rule 1.270 deal with requirements related to pleadings, parties, and pre-trial matters. Rule 1.280 to Rule 1.410 deal with the procedures related to discovery. Rule 1.420 to Rule 1.481 deal with the procedures related to trials.
Rule 1.490 to Rule 1.491 deals with the procedures related to magistrates. Rule 1.500 deals with the procedures related to defaults and default judgments. Rule 1.510 deals with the procedures related summary judgment.
Rule 1.525 to Rule 1.540 deal with the procedures related to post-trial motions. Rules 1.550 to Rule 1.600 deal with the procedures related the enforcement of judgments. Rule 1.700 to Rule 1.830 deal with the procedures related to mediation and arbitration.
Discovery
As noted, Rule 1.200 to Rule 1.410 deals with procedures related to discovery. Given the voluminous nature of the set of Rules related to discovery, this article addresses Rule 1.280 to Rule 1.310.
Rule 1.280 – General Provisions Governing Discovery
Discovery is a tool “intended (1) to identify at early stages of a proceeding the real issues to be resolved; (2) to provide each party with all available sources of proof as early as possible to facilitate trial preparation; and (3) to abolish the tactical element of surprise in our adversary process.” Dodson v. Persell, 390 So. 2d 704, 706 (Fla. 1980). The rules governing discovery in Florida are liberal, encouraging full pretrial disclosure of all relevant matters.
Discovery Methods
Rule 1.280(a) establishes the permissible methods of discovery. “Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.” Fla. R. Civ. P. 1.280(a). “Unless the court orders otherwise … the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and 1.370.” Fla. R. Civ. P. 1.280(a).
Scope of Discovery
Rule 1.280(b) establishes the permissible scope of discovery, which is quite broad. Specifically, “Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fla. R. Civ. P. 1.280(b)(1).
Trial Preparation Materials
Rule 1.280(b)(4) establishes an exception to work product privilege. “[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(4) (emphasis added).
“In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party.” Fla. R. Civ. P. 1.280(b)(4).
“Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy.” Fla. R. Civ. P. 1.280(b)(4). “For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.” Fla. R. Civ. P. 1.280(b)(4).
Claims of Privilege or Protection of Trial Preparation Materials
There are several privileges under which a party may withhold information otherwise discoverable. If a privilege applies, Rule 1.280(b)(6) establishes the procedure for asserting it. “When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Fla. R. Civ. P. 1.280(b)(6).
Protective Orders
A party subject to a discovery request can ask the court to limit or prevent the discovery under certain circumstances. “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires ….” Fla. R. Civ. P. 1.280(c).
Rule 1.280(c) enumerates eight different methods through which an order may provide protection including: “(1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.” Fla. R. Civ. P. 1.280(c)(1)–(8).
However, “[i]f the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.” Fla. R. Civ. P. 1.280(c).
Sequence and Timing of Discovery
Generally, unless the court orders otherwise, “methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party’s discovery.” Fla. R. Civ. P. 1.280(e).
Supplementing of Responses
“A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired.” Fla. R. Civ. P. 1.280(f).
Court Filing of Documents and Discovery
The actual documents or information produced during discovery should not be filed with the court unless and until it is necessary for the court to determine an issue. “Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. The court shall have authority to impose sanctions for violation of this rule.” Fla. R. Civ. P. 1.280(g).
Form of Responses to Written Discovery Requests
Responses to discovery requests must be made in a specific form. “When responding to requests for production …, written deposition questions …, interrogatories …, requests for production or inspection …, requests for production of documents or things without deposition …, requests for admissions …, or requests for the production of documentary evidence …, the responding party shall state each deposition question, interrogatory, or discovery request in full as numbered, followed by the answer, objection, or other response.” Fla. R. Civ. P. 1.280(i).
Rule 1.290 – Depositions Before Action or Pending Appeal
Rule 1.290 is an infrequently used procedure that, under limited circumstances, allows for depositions before a lawsuit is even filed. Fla. R. Civ. P. 1.290(a). For example, Rule 1.290 might be appropriate where a potential witness to a soon to be filed lawsuit is gravely sick and would likely die while the action was pending. Rule 1.290 also allows for depositions under certain circumstances pending an appeal. Fla. R. Civ. P. 1.290(b).
Rule 1.300 – Persons Before Whom Depositions May Be Taken
Persons Authorized
Depositions may be taken before any notary public, judicial officer, any officer authorized by the statutes of Florida to take acknowledgments or proof of execution of deeds, or any person appointed by the court in which the action is pending. Fla. R. Civ. P. 1.300(a).
Persons Disqualified
However, depositions may not be taken before persons who are a relative, employee, attorney of the parties or relative or employee of any of the parties’ attorneys, or who have a financial interest in the action. Fla. R. Civ. P. 1.300(d).
Rule 1.310 – Depositions Upon Oral Examination
When Depositions May Be Taken
“After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading on any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in rule 1.410.” Fla. R. Civ. P. 1.310(a).
Notice; Method of Taking; Production at Deposition
“A party desiring to take the deposition of any person on oral examination must give reasonable notice in writing to every other party to the action. The notice must state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena must be attached to or included in the notice.” Fla. R. Civ. P. 1.310(b)(1).
“The notice to a party deponent may be accompanied by a request made in compliance with rule 1.350 for the production of documents and tangible things at the taking of the deposition. The procedure of rule 1.350 applies to the request. Rule 1.351 provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents.” Fla. R. Civ. P. 1.310(b)(5).
“In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named must designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated must testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.” Fla. R. Civ. P. 1.310(b)(6).
Examination and Cross-Examination; Record of Examination; Oath; Objections
“Examination and cross-examination of witnesses may proceed as permitted at the trial.” Fla. R. Civ. P. 1.310(c). “Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner.” Fla. R. Civ. P. 1.310(c). “A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under [Rule 1.310(d)]. Otherwise, evidence objected to must be taken subject to the objections.” Fla. R. Civ. P. 1.310(c).
Motion to Terminate or Limit Examination
“At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 1.280(c).” Fla. R. Civ. P. 1.310(d).
“If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of rule 1.380(a) apply to the award of expenses incurred in relation to the motion.” Fla. R. Civ. P. 1.310(d).
“Documents and things produced for inspection during the examination of the witness must be marked for identification and annexed to and returned with the deposition on the request of a party, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification if that person affords to all parties fair opportunity to verify the copies by comparison with the originals.” Fla. R. Civ. P. 1.310(f)(1).
“Upon payment of reasonable charges therefor the officer must furnish a copy of the deposition to any party or to the deponent.” Fla. R. Civ. P. 1.310(f)(2). “A party or witness who does not have a copy of the deposition may obtain it from the officer taking the deposition unless the court orders otherwise. If the deposition is obtained from a person other than the officer, the reasonable cost of reproducing the copies must be paid to the person by the requesting party or witness.” Fla. R. Civ. P. 1.310(g).
Sometimes the person subpoenaed for the deposition fails to appear. “If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by the other party and the other party’s attorney in attending, including reasonable attorneys’ fees.” Fla. R. Civ. P. 1.310(h)(1).