Florida Rules of Civil Procedure – Part 6
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 1.320 to Rule 1.351.
Rule 1.320 – Depositions Upon Written Questions
Rule 1.320 is a rarely used procedure, which provides for taking deposition by written questions. Attorneys rarely use depositions upon written examination because they do not allow for follow-up questions in response to the witness’s answers, which an oral examination does. This rule is redundant in light of the availability of interrogatories under Rule 1.340.
Rule 1.330 – Use of Depositions in Court Proceedings
Use of Depositions
Under Rule 1.330(a), “[a]t the trial or upon the hearing of a motion … any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
“Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose permitted by the Florida Evidence Code.” Fla. R. Civ. P. 1.330(a)(1). “The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.” Fla. R. Civ. P. 1.330(a)(2).
“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.” Fla. R. Civ. P. 1.330(a)(3)(A)–(F).
“If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.” Fla. R. Civ. P. 1.330(a)(4). “Substitution of parties pursuant to rule 1.260 does not affect the right to use depositions previously taken and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken for it.” Fla. R. Civ. P. 1.330(a)(5).
Objections to Admissibility
Generally, “objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.” Fla. R. Civ. P. 1.330(b).
Effect of Taking or Using Depositions
“At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.” Fla. R. Civ. P. 1.330(c).
Effect of Errors and Irregularities
“All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.” Fla. R. Civ. P. 1.330(d)(1). “Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.” Fla. R. Civ. P. 1.330(d)(2).
“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.” Fla. R. Civ. P. 1.330(d)(3)(A).
“Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition.” Fla. R. Civ. P. 1.330(d)(3)(B).
Rule 1.340 – Interrogatories to Parties
Interrogatories are written questions directed to a party, which must be answered under oath. Interrogatories cannot be directed to nonparties. See Parker v. James, 997 So. 2d 1225, 1227 (Fla. 2d DCA 2008) (stating that there is simply no authority under the Florida Rules of Civil Procedure for propounding interrogatories to a nonparty).
Procedure for Use
“Without leave of court, any party may serve on any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed, or (2) if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who must furnish the information available to that party.” Fla. R. Civ. P. 1.340(a).
“Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party.” Fla. R. Civ. P. 1.340(a). “The interrogatories must not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause.” Fla. R. Civ. P. 1.340(a).
“If the supreme court has approved a form of interrogatories for the type of action, the initial interrogatories on a subject included within must be from the form approved by the court. A party may serve fewer than all of the approved interrogatories within a form. Other interrogatories may be added to the approved forms without leave of court, so long as the total of approved and additional interrogatories does not exceed 30.” Fla. R. Civ. P. 1.340(a).
“Each interrogatory must be answered separately and fully in writing under oath unless it is objected to, in which event the grounds for objection must be stated and signed by the attorney making it. The party to whom the interrogatories are directed must serve the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the process and initial pleading on that defendant.” Fla. R. Civ. P. 1.340(a). “The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under rule 1.380(a) on any objection to or other failure to answer an interrogatory.” Fla. R. Civ. P. 1.340(a).
Scope and Use at Trial
“Interrogatories may relate to any matters that can be inquired into under rule 1.280(b), and the answers may be used to the extent permitted by the rules of evidence except as otherwise provided in this subdivision. An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party.” Fla. R. Civ. P. 1.340(b).
“A party must respond to such an interrogatory by giving the information the party has and the source on which the information is based. Such a qualified answer may not be used as direct evidence for or impeachment against the party giving the answer unless the court finds it otherwise admissible under the rules of evidence.” Fla. R. Civ. P. 1.340(b). “If a party introduces an answer to an interrogatory, any other party may require that party to introduce any other interrogatory and answer that in fairness ought to be considered with it.” Fla. R. Civ. P. 1.340(b).
Option to Produce Records
“When the answer to an interrogatory may be derived or ascertained from the records … of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records … and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer.” Fla. R. Civ. P. 1.340(c).
“An answer must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or must identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced.” Fla. R. Civ. P. 1.340(c).
Effect on Co-Party
“Answers made by a party shall not be binding on a co-party.” Fla. R. Civ. P. 1.340(d).
Rule 1.350 – Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Request and Scope
“Any party may request any other party to produce and permit the party making the request, or someone acting in the requesting party’s behalf, to inspect and copy any designated documents, including electronically stored information, writings, drawings, graphs, charts, photographs, audio, visual, and audiovisual recordings, and other data compilations from which information can be obtained … that constitute or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed ….” Fla. R. Civ. P. 1.350(a)(1).
“Any party may request any other party to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed ….” Fla. R. Civ. P. 1.350(a)(2).
“Any party may request any other party to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 1.280(b).” Fla. R. Civ. P. 1.350(a)(3).
Procedure
“Without leave of court the request may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party. The request shall set forth the items to be inspected, either by individual item or category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection or performing the related acts. The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time.” Fla. R. Civ. P. 1.350(b).
“For each item or category the response shall state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. If an objection is made to part of an item or category, the part shall be specified. When producing documents, the producing party shall either produce them as they are kept in the usual course of business or shall identify them to correspond with the categories in the request.” Fla. R. Civ. P. 1.350(b).
“A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use. If a request for electronically stored information does not specify the form of production, the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The party submitting the request may move for an order under rule 1.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit inspection as requested.” Fla. R. Civ. P. 1.350(b).
Rule 1.351 – Production of Documents and Things Without Deposition
Request and Scope
“A party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things.” Fla. R. Civ. P. 1.351(a). “This rule 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 or things pursuant to rule 1.310.” Fla. R. Civ. P. 1.351(a).
Procedure
“A party desiring production under this rule shall serve notice … on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery or e-mail and 15 days before the subpoena is issued if the service is by mail.” Fla. R. Civ. P. 1.351(b).
“The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; shall include a designation of the items to be produced; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things.” Fla. R. Civ. P. 1.351(b).
“A copy of the notice and proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).” Fla. R. Civ. P. 1.351(b).
Subpoena
“If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring production.” Fla. R. Civ. P. 1.351(c).
“Service within the state of Florida of a nonparty subpoena shall be deemed sufficient if it complies with rule 1.410(d) or if (1) service is accomplished by mail or hand delivery by a commercial delivery service, and (2) written confirmation of delivery, with the date of service and the name and signature of the person accepting the subpoena, is obtained and filed by the party seeking production.” Fla. R. Civ. P. 1.351(c).
“The subpoena shall be identical to the copy attached to the notice and shall specify that no testimony may be taken and shall require only production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person upon whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies.” Fla. R. Civ. P. 1.351(c).
“The subpoena shall require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts business. If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be obtained pursuant to rule 1.310.” Fla. R. Civ. P. 1.351(c).
Ruling on Objection
“If an objection is made by a party … the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.” Fla. R. Civ. P. 1.351(d).