Florida Rules of Civil Procedure – Part 7
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 1.360 to Rule 1.410.
Rule 1.360 – Examination of Persons
Request; Scope
“A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. P. 1.360(1).
“When the physical condition of a party or other person … is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party.” Fla. R. Civ. P. 1.360(1)(a). “The request shall specify a reasonable time, place, manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made.” Fla. R. Civ. P. 1.360(1)(a).
“The party to whom the request is directed shall serve a response within 30 days after service of the request, except that a defendant need not serve a response until 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. 1.360(1)(a). “The response shall state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated.” Fla. R. Civ. P. 1.360(1)(a).
“In cases where the condition in controversy is not physical, a party may move for an examination by a qualified expert ….” Fla. R. Civ. P. 1.360(1)(b). “The order for examination shall be made only after notice to the person to be examined and to all parties, and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fla. R. Civ. P. 1.360(1)(b).
“An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause.” Fla. R. Civ. P. 1.360(2). “Upon request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination.” Fla. R. Civ. P. 1.360(3).
Rule 1.370 – Requests for Admission
Request for Admission
“A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying.” Fla. R. Civ. P. 1.370(a).
“Without leave of court the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the process and initial pleading upon that party.” Fla. R. Civ. P. 1.370(a).
“The request for admission shall not exceed 30 requests, including all subparts, unless the court permits a larger number on motion and notice and for good cause, or the parties propounding and responding to the requests stipulate to a larger number. Each matter of which an admission is requested shall be separately set forth.” Fla. R. Civ. P. 1.370(a).
“The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant.” Fla. R. Civ. P. 1.370(a).
“If objection is made, the reasons shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.” Fla. R. Civ. P. 1.370(a).
“An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny.” Fla. R. Civ. P. 1.370(a).
“A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not object to the request on that ground alone; the party may deny the matter or set forth reasons why the party cannot admit or deny it, subject to rule 1.380(c).” Fla. R. Civ. P. 1.370(a).
“The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Instead of these orders the court may determine that final disposition of the request be made at a pretrial conference or at a designated time before trial.” Fla. R. Civ. P. 1.370(a).
Effect of Admission
“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to rule 1.200 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.” Fla. R. Civ. P. 1.370(b). “Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.” Fla. R. Civ. P. 1.370(b).
Rule 1.380 – Failure to Make Discovery; Sanctions
Motion for Order Compelling Discovery
Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery. Fla. R. Civ. P. 1.380(a). If a party fails to timely respond to a discovery request, “the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request.” Fla. R. Civ. P. 1.380(a)(2). “The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.” Fla. R. Civ. P. 1.380(a)(2).
“When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to rule 1.280(c).” Fla. R. Civ. P. 1.380(a)(2).
Evasive or Incomplete Answer
For purposes of Rule 1.380, “an evasive or incomplete answer shall be treated as a failure to answer.” Fla. R. Civ. P. 1.380(a)(3).
Award of Expenses of Motion
“If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust.” Fla. R. Civ. P. 1.380(a)(4).
“If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.” Fla. R. Civ. P. 1.380(a)(4).
Failure to Comply with Order
“If, after being ordered to do so by the court, a deponent fails to be sworn or to answer a question or produce documents, the failure may be considered a contempt of the court.” Fla. R. Civ. P. 1.380(b)(1). “If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court” may take several actions. Fla. R. Civ. P. 1.380(b)(2).
Specifically, the court may enter any of the following orders: “(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party; (D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule; (E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.” Fla. R. Civ. P. 1.380(b)(2)(A)–(E).
“Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Fla. R. Civ. P. 1.380(b).
Expenses on Failure to Admit
“If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.” Fla. R. Civ. P. 1.380(c).
Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection
“If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, (2) to serve answers or objections to interrogatories submitted under rule 1.340 after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under … this rule.” Fla. R. Civ. P. 1.380(d).
“Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act … may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 1.280(c).” Fla. R. Civ. P. 1.380(d).
Rule 1.390 – Depositions of Expert Witnesses
Definition
“The term ‘expert witness’ as used [in Rule 1.390] applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.” Fla. R. Civ. P. 1.390(a).
Procedure
“The testimony of an expert or skilled witness may be taken at any time before the trial in accordance with the rules for taking depositions and may be used at trial, regardless of the place of residence of the witness or whether the witness is within the distance prescribed by rule 1.330(a)(3).” Fla. R. Civ. P. 1.390(b).
Fee
“An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party can not agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.” Fla. R. Civ. P. 1.390(c).
Rule 1.410 – Subpoena
Subpoena Generally
“Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action.” Fla. R. Civ. P. 1.410(a).
Subpoena for Testimony before the Court
“Every subpoena for testimony before the court must be issued by an attorney of record in an action or by the clerk under the seal of the court and must state the name of the court and the title of the action and must command each person to whom it is directed to attend and give testimony at a time and place specified in it.” Fla. R. Civ. P. 1.410(b)(1).
“On oral request of an attorney or party … the clerk must issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena must be filled in before service by the attorney or party.” Fla. R. Civ. P. 1.410(b)(2).
For Production of Documentary Evidence
“A subpoena may also command the person to whom it is directed to produce the books, documents … or tangible things designated therein, but the court, on motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion on the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, documents, or tangible things.” Fla. R. Civ. P. 1.410(c).
“If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A person responding to a subpoena may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue costs or burden.” Fla. R. Civ. P. 1.410(c).
“On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought or the form requested is not reasonably accessible because of undue costs or burden. If that showing is made, the court may nonetheless order discovery from such sources or in such forms if the requesting party shows good cause, considering the limitations set out in rule 1.280(d)(2).” Fla. R. Civ. P. 1.410(c).
“The court may specify conditions of the discovery, including ordering that some or all of the expenses of the discovery be paid by the party seeking the discovery. A party seeking production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 1.080. Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party.” Fla. R. Civ. P. 1.410(c).
Service
“A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena on a person named within must be made as provided by law. Proof of such service must be made by affidavit of the person making service except as applicable under rule 1.351(c) for the production of documents and things by a nonparty without deposition, if not served by an officer authorized by law to do so.” Fla. R. Civ. P. 1.410(d).
Subpoena for Taking Deposition
“Filing a notice to take a deposition … with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action.” Fla. R. Civ. P. 1.410(e)(1).
“The subpoena must state the method for recording the testimony. The subpoena may command the person to whom it is directed to produce designated books, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted by rule 1.280(b), but in that event the subpoena will be subject to the provisions of rule 1.280(c) and subdivision (c) of this rule.” Fla. R. Civ. P. 1.410(e)(1).
“Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials.” Fla. R. Civ. P. 1.410(e)(1).
“If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition on notice to the deponent.” Fla. R. Civ. P. 1.410(e)(1).
“A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.” Fla. R. Civ. P. 1.410(e)(2).
Contempt
“Failure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.” Fla. R. Civ. P. 1.410(f).