f
This handbook is the end result of the committee’s work on that subject. It isintended to be a quick reference for lawyers and judges on many recurring discovery
problems. It does not profess to be the dispositive legal authority on any particular issue.
It is designed to help busy lawyers and judges quickly access legal authority for the
covered topics. The ultimate objective is to help curtail perceived abuses in discovery so
that the search for truth is not thwarted by the discovery process itself. The reader still
should do his or her own research. The first edition of this handbook was prepared in the
Fall of 1995; this 2007 (twelfth) edition updates the handbook through January 2008.
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JOINT COMMITTEE OF TRIAL LAWYERS SECTION
AND CONFERENCES OF CIRCUIT COURT
AND COUNTY COURT JUDGES
Honorable Henry J. Andringa
Mark P. Buell, Esquire
Honorable Gisela Cardonne
Honorable Nikki Clark
Honorable Gasper Ficarrotta
Richard A. Gilbert, Esquire
Don G. Greiwe, Esquire
Lawrence J. Hamilton II, Esquire
John M. Kest, Esquire
Honorable Nelly N. Khouzam
Honorable Paul A. Levine
Honorable Richard Luce
Bradley E. Powers, Esquire
Thomas P. Scarritt, Jr., Esquire
Michael G. Tanner, Esquire
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TABLE OF CONTENTS
PREFACE ....................................................................................................................... i
MEMBERS OF JOINT COMMITTEE OF TRIAL LAWYERS SECTION
AND CONFERENCES OF CIRCUIT COURT
ANDCOUNTY COURT JUDGES .................................................................................... ii
Chapter 1: The Trial Judge Has The Weapons To Combat Discovery Abuse —
It Is Only A Matter Of When And How To Use Them
In General .....................................................................................................1
Expenses Of Motion To Compel ...................................................................1
Inherent Power .............................................................................................2
Contempt ......................................................................................................5
Objective Of Sanctions .................................................................................5
Statutorily Enumerated Orders For Failure To Obey Order ..........................5
Due Process And Findings Of Fact ..............................................................7
Destruction Of Evidence ...............................................................................7
Ability To Defend .........................................................................................10
Severity Of Sanctions .................................................................................10
Damages ....................................................................................................16
Appellate Review ........................................................................................16
Exclusion Of Expert Witness Opinions .......................................................17
Conclusion ..................................................................................................19
Chapter 2: Available Remedies For Failure To Comply With
Discovery Requests ..............................................................................................21
In General ...................................................................................................21
Interrogatories ............................................................................................26
Production Of Documents And Things .......................................................28
Requests for Admissions ............................................................................30
Work Product, Attorney-Client Privilege, And Trade Secrets ......................30
Conclusion ..................................................................................................32
Chapter 3: Effect On Pending Discovery Of A Motion For A Protective Order .............35
Issue ...........................................................................................................35
Discussion ..................................................................................................35
Applicable Rules .........................................................................................35
Florida Case Law ........................................................................................36
Conclusion ..................................................................................................39
Chapter 4: “Speaking Objections” And Inflammatory Statements At A
Deposition .............................................................................................................37
Case Law Under Federal Rule 30(d)(1) .....................................................38
Other Case Law ..........................................................................................39
Chapter 5: Instructing A Witness Not To Answer Questions At A Deposition ................43
Chapter 6: Remedy For Production Of Documents By A Nonparty In Response
To Copy Of Unissued Subpoena ...........................................................................53
iii
Chapter 7: Compulsory Medical Examinations And Discovery Of Examiner Bias .......55
Issue 1 ........................................................................................................57
Resolution ...................................................................................................57
Issue 2 ........................................................................................................57
Resolution ...................................................................................................57
Issue 3 ........................................................................................................61
Resolution ...................................................................................................61
Chapter 8: Obtaining Psychological Records When Pain And Suffering
Are At Issue ...........................................................................................................63
Issue 1 ........................................................................................................66
Resolution ...................................................................................................66
Issue 2 ........................................................................................................66
Resolution ...................................................................................................67
Chapter 9: Fabre Identification Of Other Culpable Parties — When Should It
Be Done? ..............................................................................................................69
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CHAPTER ONE
THE TRIAL JUDGE HAS THE WEAPONS TO COMBAT DISCOVERY ABUSE -
IT’S ONLY A MATTER OF WHEN AND HOW TO USE THEM
Discovery abuses are a recurring problem in civil practice. Questionable litigation
tactics and outright contempt of court pervade our justice system. Many practitioners
are frustrated by the ostensible reluctance of trial courts to sanction parties for discovery
abuse. This reluctance probably stems from the trial courts’failure to fully appreciate their
broad powers, including a failure to appreciate the limited scope of appellate review of
procedurally correct sanctions orders.
However, the reality is that the trial court has the power to end discovery abuses. The
appellate courts will sustain the trial court’s authority if it is exercised in a procedurally
correct manner with thorough findings of fact. The party moving for sanctions can make
the trial court’s job easier by fully advising the court of the law and proper procedure.
Working together, counsel moving for sanctions and the trial courts can end discovery
abuses.
EXPENSES OF MOTION TO COMPEL:
Fla. R.Civ. P. .380 is the most widely used authority for sanctions as a result of
discovery abuses. The Rule gives the trial court broad discretion. The Rule requires the
award of expenses, unless the court finds that the opposition to a motion to compel is
justified. The Rule provides:
Award of Expenses of Motion. If the motion [to compel] is granted and
after opportunity for hearing, the court shall require the party or deponent whose
conduct necessitated the motion or the party 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 opposition to the motion was
justified or that other circumstances make an award of expenses unjust.
Id. (emphasis added).
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Ford Motor Co. v. Garrison, 4 5 So.2d 843 (Fla. st DCA 982).
2
Eastern Airlines. Inc. v. Dixon, 3 0 So2d 336 (Fla. 3d DCA 975).
3
First & Mid-South Advisorv Co. v. Alexander/Davis Properties. Inc., 400 So.2d 3 (Fla. 4th DCA 98 ); St. Petersburg Sheraton
Corp. v. Stuart, 242 So.2d 85 (Fla. 2d DCA 970).
4
Summit Chase Condominium Ass’n Inc. v. Protean Investors. Inc., 42 So.2d 562 (Fla. 3d DCA 982); Rankin v. Rankin, 284
So.2d 487 (Fla. 3d DCA 973); Goldstein v. Great Atlantic and Pacific Tea Co., 8 So.2d 253 (Fla. 3d DCA 960).
5
Patsy v. Patsy, 666 So.2d 045 (Fla. 4th DCA 996) (upholding an award of attorney’s fees after finding motion was frivolous). As
for inherent power to strike pleadings and enter a default judgment, see discussion infra of Tramel v. Bass, 672 So.2d 78 (Fla. st
DCA 996); rev. denied, 680 So.2d 426 (Fla. 996).
Therefore, it is required that the court shall award expenses unless the court finds the
opposition was justified. The trial court should in every case, therefore, award expenses
which may include attorney fees where there is no justified opposition. The party against
whom the motion is filed is protected in that the Rule provides that the moving party shall
pay the opposing party’s expenses if the motion is denied. If the court finds that the motion
was substantially justified, then it can deny expenses to the non-moving party.
The rule contemplates that the court should award expenses in the majority of cases.
The courts should take a consistent hard line to ensure compliance with the rule. Counsel
should be forced to work together in good faith to avoid the need for motion practice.
Generally, where a party fails to respond to discovery and does not give sound reason
for its failure to do so, sanctions should be imposed.
The punishment should fit the fault.
2
The trial courts are regularly sustained on awards of attorney fees for discovery abuse.
3
The same holds for award of costs and expenses.
4
Expenses, including fees, can be awarded without a finding of bad faith or willful conduct.
The only requirement under Fla.R.Civ.P. .380 is that the motion to compel be granted
and that opposition was not justified.
INHERENT POWER:
Historically, Florida courts had to rely on inherent power in order to award attorney’s fees
and costs against parties who filed frivolous motions.
5
There was no state law equivalent
of Rule of the Federal Rules of Civil Procedure.
In October 999, amendments to Fla. Stat. §57. 05 became law. The amendments
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6
Previously, a fee award was only permissible when there was no justiciable issue regarding claims and defenses. Fee awards
were relatively rare under this high standard.
7
Bridgestone/Firestone v. Herron, 828 So. 2d 4 4 (Fla. st DCA 2002).
authorized courts to award sanctions against parties who raised claims and defenses not
supported by material facts.
6
The pertinent portions of §57. 05 state:
( ) Upon the court’s initiative or motion of any party, the court shall award
a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by
the losing party and the losing party’s attorney on any claim or defense at any time
during a civil proceeding or action in which the court finds that the losing party or
the losing party’s attorney knew or should have known that a claim or defense when
initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim
or defense; or
(b) Would not be supported by the application of then-existing law to those
material facts.
However, the losing party’s attorney is not personally responsible if he or she has
acted in good faith, based on the representations of his or her client as to the
existence of those material facts. If the court awards attorney’s fees to a claimant
pursuant to this subsection, the court shall also award prejudgment interest.
(2) Paragraph ( )(b) does not apply if the court determines that the claim
or defense was initially presented to the court as a good faith argument for the
extension, modification, or reversal of existing law or the establishment of new
law, as it applied to the material facts, with a reasonable expectation of success.
(3) At any time in any civil proceeding or action in which the moving party
proves by a preponderance of the evidence that any action taken by the opposing
party, including, but not limited to, the filing of any pleading or part thereof, the
assertion of or response to any discovery demand, the assertion of any claim or
defense, or the response to any request by any other party, was taken primarily for
the purpose of unreasonable delay, the court shall award damages to the moving
party for its reasonable expenses incurred in obtaining the order, which may include
attorney’s fees, and other loss resulting from the improper delay.
Fees can be awarded if a specific claim or defense is baseless, even against a party
who prevails in the case as a whole.
7
Section 57. 05(6) provides that the sanctions and remedies in the section supplement,
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rather than replace, other types of sanctions and remedies. Furthermore, §57. 05(3)
specifically applies to discovery demands. Therefore, §57. 05, as well the more familiar
Rule .380, can be used to sanction inappropriate behavior in the discovery process.
Aparty was not entitled to conduct discovery to support a motion under the prior version
of §57. 05. Instead, under the prior statute, the frivolous nature of the cause of action
had to be apparent “on a bare inspection of the record without argument or research.”
8
In 2002, the legislature amended §57. 05 to include a “safe harbor” provision. The
provision, which now appears as Section 57. 05(4), provides:
A motion by a party seeking sanctions under this section must be served
but may not be filed with or presented to the court unless, within 2 days after
service of the motion, the challenged paper, claim, defense, contention, allegation,
or denial is not withdrawn or appropriately corrected.
This provision is designed to give the guilty party a chance to withdraw their bogus
claim or defense, or otherwise take corrective action, before the §57. 05 motion can be
filed with the court or heard. The mandatory language of the provision (“must be served”
and “may not be filed with or presented to the court”) suggests that if the moving party
fails to adhere to this procedure, no sanctions will be available. However, the Fourth
District has held that a motion for §57. 05 attorney’s fees directed at a prior pleading is
sufficient to support a fee award where the newer pleading contains the identical frivolous
allegations.
9
Section 57. 05 was also amended in 2003 to make it applicable to administrative
proceedings. See §57. 05(5).
8
Jackson v. York Hannover Nursing Centers, Inc., 853 So.2d 598, 602 (Fla. 5th DCA 2003).
9
Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709, 7 - 2 (Fla. 4th DCA 2004)/
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CONTEMPT:
Generally, disobedience of any lawful order of the court constitutes a contempt of the
court’s authority.
0
If the court imposes a fine for discovery abuses, the fine must be based
on a finding of contempt.
This general principle is codified under the Rules of Civil Procedure which provides
that if a deponent fails to be sworn or to answer a question after being directed to do
so by the court, the failure may be considered a contempt of the court. Fla.R.Civ.P.
.380(b)( ). This Rule is applicable to any deponent, whether or not a party, and is the
sole provision providing for sanctions against non-parties. When a party disobeys a prior
order of the court, various sanctions may be imposed by the court, including contempt
and sanctions.
OBJECTIVE OF SANCTIONS:
Sanctions under the discovery rules are neither punitive nor penal, and their objective
is to compel compliance with discovery.
2
STATUTORILY ENUMERATED ORDERS FOR FAILURE TO OBEY ORDER:
If a party (or managing agent) fails to obey a prior order to provide or permit discovery,
the court in which the action is pending may make any of the orders set forth under
the Rules. Fla.R.Civ.P. .380(b)(2) lays out specifically permissible sanction orders
including:
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 certain matters in
0
See Fla.Jur.2d Contempt ( st Ed., ‘24).
Stewart v. Jones, 728 So.2d 233 (Fla. 4th DCA 999); Hoffman v. Hoffman, 7 8 So.2d 37 (Fla. 4th DCA 998).
2
Leatherbee Ins. Co. v. Jones, 332 So.2d 39 (Fla. 3d DCA 976).
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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 .360(a)( )(B) or subdivision (a)(2) of this rule.
E. When a party has failed to comply with an order under rule .360(a)( )(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.
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 justified or
that other circumstances make an award of expenses unjust.
Such sanctions may be imposed only where the failure to comply with the court’s order
is attributable to the party. If the failure is that of another party or of a third person whose
conduct is not chargeable to the party, no such sanction may be imposed.
3
For example,
it is an abuse of discretion to strike a party’s pleadings based on a non-party’s refusal to
comply with discovery requests.
4
For the trial court to be on solid footing it is wise to stay within the enumerated orders
set forth in Fla.R.Civ.P. .380(b)(2). If the enumerated orders are utilized, it is doubtful
that they will be viewed as punitive and outside the discretion of the court. Due process
and findings do, however, remain essential.
3
Zanathv v. Beach Harbor Club Assoc., 343 So.2d 625 (Fla. 2d DCA 977).
4
Haverfield Corp. v. Franzen, 694 So2d 62 (Fla. 3d DCA 997).
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DUE PROCESS AND FINDINGS OF FACT:
The trial court must hold a hearing and give the disobedient party the opportunity to
be heard. Therefore, it is reversible error to award sanctions before the hearing on the
motion to compel takes place.
5
By the same token, striking a party’s pleadings before
the deadline for compliance with discovery requires reversal.
6
If the trial court dismisses an action because of discovery violations, a finding that the
violations were willful or deliberate must be made.
7
If the order does not contain such
findings, it will be reversed.
8
It is reversible error to dismiss a case for discovery violations without first granting the
disobedient party’s request for an evidentiary hearing. The party should be given a chance
to explain the discovery violations.
9
DESTRUCTION OF EVIDENCE:
The essential elements of a negligent destruction of evidence cause of action are:
.
existence of a potential civil action,
2.
a legal or contractual duty to preserve evidence which is relevant to the
potential civil action,
3.
destruction of that evidence,
4.
significant impairment in the ability to prove the lawsuit,
5.
a causal relationship between the evidence destruction and the inability to
prove the lawsuit, and
6.
damages.
20
If a party destroyed relevant and material information (and that information is so
essential to the opponents defense that it cannot proceed) then striking of pleadings may
be warranted.
2
5
Joseph S. Arrigo Motor Co.. Inc. v. Lasserre, 678 So.2d 396, 397 (Fla. st DCA 996) (reversing an award of $250 in sanctions
where the award was entered before the motion hearing).
6
Stern v. Stein, 694 So.2d 85 (Fla. 4th DCA 997).
7
Rose v. Clinton, 575 So.2d 75 (Fla. 3d DCA 99 ); Zaccaria v. Russell, 700 So.2d 87 (Fla. 4th DCA 997).
8
Zaccaria v. Russell, 700 So.2d 87 (Fla. 4
th
DCA 997).
9
Medina v. Florida East Coast Rwy., 866 So.2d 89 (Fla. 3d DCA 2004).
20
Hagopian v. Publix Supermarkets. Inc., 788 So.2d 088, 09 (Fla. 4th DCA 200 ).
2
New Hampshire Ins. Co. V. Royal Ins. Co., 559 So.2d 02 (Fla. 4th DCA 990); Sponco Manufacturinq. Inc. v. Alcover, 656 So.2d
629 (Fla. 3d DCA 995); rev. dismissed, 679 So.2d 77 (Fla. 996).
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While striking pleadings and/or dismissal with prejudice is considered a harsh sanction,
doing so is justified in some cases.
In Tramel v. Bass, the trial court struck a defendant’s answer and affirmative defenses
and entered a default judgment after finding that the defendant had altered critical
videotape evidence. The First District upheld the trial court’s action, stating:
The reasonableness of a sanction depends in part on the willfulness or
bad faith of the party. The accidental or negligent destruction of evidence often
justifies lesser sanctions directed toward compensating the victims of evidence
destruction. The intentional destruction or alteration of evidence undermines the
integrity of the judicial process and, accordingly, may warrant imposition of the
most severe sanction of dismissal of a claim or defense, the striking of pleadings,
or entry of a default. Thus, in the case of the intentional alteration of evidence, the
most severe sanctions are warranted as much for their deterrent effect on others
as for the chastisement of the wrongdoing litigant.
Id. at 84 (citations and footnotes omitted).
In Tramel, the egregious nature of the defendant’s misconduct justified the entry of a
default judgment. Note, however, that a default judgment can be entered without a finding
of fraud or willful misconduct.
If a plaintiff cannot proceed without certain evidence and the defendant fails to preserve
that evidence, a default judgment may be entered against the defendant on that basis.
22
A
finding of bad faith is not imperative.
23
Conversely, in cases where evidence is destroyed
unintentionally and the prejudice is not fatal to the other party, lesser sanctions should
usually be applied.
24
In Figgie International. Inc. v. Alderman, 698 So.2d563 (Fla. 3d DCA 997), rev.
dismissed, 703 So.2d 476 (Fla. 997), a trial court entered a default judgment against a
defendant for numerous discovery violations, including destruction of relevant documents.
22
Sponco Manufacturing, supra.
23
Id.
24
Aldrich v. Roche Biomedical Laboratories. Inc., 737 So. 2d 24 (Fla. 5th DCA 999).
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On appeal, the Third District Court of Appeal affirmed. It agreed with the trial court that
defendant violated the discovery rules willfully and in bad faith. Therefore, it found that
the most severe sanction—entry of a default judgment—was justified.
As the Third District observed in Figgie International, severe sanctions are justified
when a party willfully fails to comply with discovery obligations. Therefore, destruction of
documents alone can trigger a default order as long as the destruction is willful.
In Figgie International, however, there was more than document destruction involved.
The trial court also found the defendant presented false and evasive testimony through
its safety director and provided incomplete discovery responses. That conduct provided
additional support for the trial court’s decision to enter a default judgment.
The Third District also upheld dismissal in Lent v. Sauro Miller & Webner. P.A., 7 0
So.2d 56 (Fla. 3d DCA 998). In that case, the plaintiff and her counsel apparently tried
to intimidate a critical witness to prevent him from testifying. The plaintiff also refused
to allow the witness’s deposition to be taken though the court had entered an order
compelling her to consent. The court’s opinion explained that consent to the deposition
was required under the applicable German law.
25
Apparently, German law would have
otherwise made the discussions between the plaintiff and the witness privileged.
The Fourth District Court of Appeal has recognized an independent cause of action
for spoliation of evidence.
26
In doing so, it followed the lead of the Third District Court of
Appeal, which had previously recognized this cause of action.
For purposes of spoliation, “evidence” does not include the injured part of a litigant’s
body. Thus, a plaintiff who suffered a herniated disc was not obligated to forego surgery
and preserve the damaged disc for examination.
27
The court suggested, however, that a
personal injury litigant might be guilty of spoliation if he or she had surgery while a request
25
Id. at 57.
26
St. Mary’s Hospital. Inc. v. Brinson, 685 So.2d 33, 35 (Fla. 4th DCA 996).
27
Vega v. CSCS International. N.V., 795 So.2d 64, 67 (Fla. 3d DCA 200 ).
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for a defense medical examination was pending.
Worker’scompensationimmunitydoesnotbaranemployee’sactionagainstanemployer
for spoliation.
28
The issue is unrelated to worker’s compensation, because spoliation is
an independent cause of action. Furthermore, the employer’s spoliation might harm the
employee’s causes of action against third parties, rather than the employer itself.
29
The Florida Supreme Court recently clarified the application of spoliation law to parties
and non-parties. In Martino v. Wal-Mart Stores, Inc.,
30
the Court held that the remedy
for spoliation against a first party defendant is not an independent case of action for
spoliation. Rather, the remedy is imposition of discovery sanctions and a rebuttable
presumption of negligence for the underlying tort. The Court did not decide whether there
is an independent claim for spoliation available against a third party.
3
ABILITY TO DEFEND:
Hernandez v. Pino, 482 So.2d 450 (Fla. 3d DCA 986), involved the unintentional
misplacement of dental x-rays by plaintiff’s counsel.The court held that summary judgment
was inappropriate in that defense counsel had given the x-rays to its expert (before they
were misplaced) and was able to defend the case. No willful conduct was found.
32
SEVERITY OF SANCTIONS:
Discovery sanctions should be “commensurate with the offense.”
33
It has been held that
striking of pleadings and/or dismissal with prejudice for noncompliance with an order of
the court is the most severe of all sanctions.
28
Townsend v. Conshor, 832 So. 2d 66 (Fla. 2d DCA 2002).
29
Id.
30
908 So.2d 342.
3
Id. at 345 n. 2.
32
Aldrich v. RocheBiomedical Laboratories, Inc., supra.
33
Drakeford v. Barnett Bank of Tampa, 694 So.2d 822, 824 (Fla. 2d DCA 997); Cape Cave Corporation v. Charlotte Asphalt. Inc.,
384 So.2d 300, 30 (Fla. 2d DCA 980).
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Therefore, it is only appropriate to strike a party’s pleadings when the party willfully fails
to comply with discovery orders.
34
A single failure to comply is usually insufficient unless
the opposing party is grossly prejudiced.
35
The Fifth District has commented that dismissal is unjustified unless the offending party
displays a “contemptuous attitude” toward a court order.
36
Less brutal sanctions should
be imposed unless the offending party is defiant.
37
This distinction is illustrated by Sinatra v. Ikaros Aviation. Inc..
38
In Sinatra, there were
three defendants. The trial court entered an order against all three defendants striking
their pleadings and entering a default on liability against them.
On appeal, the Third District upheld the sanctions against two of the defendants. The
court did so because those two defendants had violated several discovery orders before
the court entered the sanctions order.
39
However, as to the third defendant, the court reversed. The Third District ruled that the
sanctions order could not stand against him because he had not previously violated any
discovery orders. In fact, no discovery orders had been entered against him before the
court imposed sanctions. Therefore, the Third District reversed the default judgment on
liability and ordered his pleadings reinstated.
40
Striking pleadings or entering a default is also proper when a party engages in willful
misconduct.
4
34
Hoffman v. Hoffman, supra; Davis Garden Estates v. American Investment Realtv. 670 So.2d 80 (Fla. 3d DCA 996); U.S. Fire
Insurance Co. v. C&C Beauty Sales. Inc., 674 So.2d 69 (Fla. 3d DCA 996).
35
Farrow v. Perry Police Department, 744 So.2d 263, 264 (Fla. st DCA 999).
36
Stilwell v. Stilwell Southern Walls. Inc., 7 So.2d 03, 04 (Fla. 5th DCA 998).
37
Swidzinska v. Ceias, 702 So.2d 630, 63 (Fla. 5th DCA 997) (reversing dismissal and commenting that “[a]bsent a showing of
deliberate, wilful refusal to provide discovery, the judge should use less stringent methods of persuasion or punishment”).
38
723 So.2d 358 (Fla. 3d DCA 998).
39
Id. at 359.
40
Id.
4
Hoffman v. Hoffman, supra; Mack v. National Constructors, 666 So.2d 244 (Fla. 3d DCA 996); Syrowik v. Bilmar Hotel Inc., 666
So.2d 554 (Fla. 2d DCA 995).
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The standards for dismissal based on attorney misconduct were articulated by the
Florida Supreme Court in the 993 case of Koxel v. Ostendorf.
42
) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than
an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned;
3) whether the client was personally involved in the act of disobedience; 4) whether the
delay prejudiced the opposing party through undue expense, loss of evidence, or in some
other fashion; 5) whether the attorney offered reasonable justification for noncompliance;
6) whether the delay created significant problems of judicial administration.
43
The Court added that “if a sanction less severe than dismissal with prejudice appears
to be a viable alternative, the trial court should employ such an alternative.”
44
Until recently, the Florida courts were split on whether the party (as opposed to the
lawyer) must be involved in the misconduct triggering dismissal. The Second, Third and
Fourth Districts have held that the willful misconduct required for striking of pleadings or
dismissal must come from the party, not the party’s lawyer.
45
The First District, however,
held that an action may be dismissed without misconduct by the litigant.
46
In Ham v. Dunmire,
47
the Florida Supreme Court held that fault by the litigant is not
absolutely necessary for dismissal. Relying on its prior decision in Kozel v. Ostendorf,
48
the court held that several factors must be weighed:
[A] litigant’s involvement in discovery violations or other misconduct is not the
exlusive factor but is just one of teh factors to be weighed in assessing whether
dismissal is the appropriate sanction. Indeed, the fact that the Kozel Court
42
629 So.2d 8 7 (Fla. 993).
43
Id. at 8 8.
44
Id
.
45
Elder v. Norton, 7 So.2d 586 (Fla. 2d DCA 998); Marin v. Batista, 639 So.2d 630 (Fla. 3d DCA 994); Schiltt v. Currier, 763
So.2d 49 (Fla. 4th DCA 2000).
46
Ham v. Dunmire, 855 So.2d 238 (Fla. st DCA 2003) (affirming dismissal for, among other things, failing to furnish a witness list,
despite the lack of evidence that the plaintiff was personally at fault).
47
89 So.2d 492 (FLA. 2004).
48
Cited supra.
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articulated six factors to weigh in the sanction determination, including but not
limited to the litigant’s misconduct, belies the conclusion that litigant malfeasance
is the exlusive and deciding factor. The text of the Kozel decision does not indicate
that litigant involvement should have a totally preemptive position over the other
five factors, and such was not this Court’s intent. Although extremely important, it
cannot be the sole factor if we are to property administer a smooth flowing system
to resolve disputes.
However, the Court reversed the dismissal in the case before it, finding that the level
of misconduct involved did not justify dismissal under the Kozel test.
When there is no prejudice to the opposing party, striking of pleadings and entry of a
default judgment is not an appropriate remedy.
49
In that situation, less severe sanctions
should be ordered.
Naturally, the question under these cases is what constitutes prejudice. Prejudice
should be determined by the trial court as a matter of equity, ie., whether the conduct has
harmed the party so that it might affect or delay that party’s judicial relief.
Not surprisingly, dismissal with prejudice is the appropriate sanction for a party guilty of
fraud. In fact, a trial court “has a duty and obligation” to dismiss a cause of action based
on fraud.
50
In Metropolitan Dade County v. Martinsen,
5
the Third District reversed a jury verdict
for the plaintiff and remanded with instructions to dismiss her case with prejudice. The
court’s decision was based on its finding that Martinsen, a personal injury claimant, had
given false and misleading answers about her prior injuries.
52
49
Ad Miller Associates. Inc. v. Glvnn, 736 So.2d 798,799-800 (Fla. 2d DCA 999); Dollar Wise Travel. Inc.; Clark v. Lake City Police
Department, supra, Garlock. Inc. v. Harriman, 665 So.2d 6, 8- 9 (Fla. 3d DCA 995); Owens v. Howard, 662 So.2d 325
(Fla. 2d DCA 995); Atala v. Kpeelowitz, 664 So.2d 56 (Fla. 3d DCA 995).
50
Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 200 ).
5
736 So.2d 794 (Fla. 3d DCA 999).
52
Id. at 795; see also Babe Elias Builders, Inc. v. Pernick, 765 So.2d 9 (Fla. 3d DCA 2000) (default entered against defendant
who presented false invoices, testified falsely, and suborned perjury); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 998) (case
brought by party convicted of perjury dismissed with prejudice).
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The cases suggest the lies told by a party must be material to issues in the case.
53
Lies about non-material matters alone, while obviously improper, probably cannot trigger
dismissal or other severe sanctions.
While a court may dismiss a claim when it finds fraud or misconduct, it should take care
not to dismiss other claims in the case. In Rosenthal v. Rodriguez,
54
a court dismissed
Rosenthal’s personal injury claim after finding she committed perjury. The court also
dismissed the loss of consortium claim brought by Rosenthal’s husband because it was
derivative from her personal injury claim.
55
The Third District Court of Appeal affirmed dismissal of Rosenthal’s claim, but found
error in dismissal of her husband’s claim for property damage. The court considered
dismissal inappropriate because the property damage claim was separate from
Rosenthal’s personal injury claim. Furthermore, there was no indication that Rosenthal’s
husband had committed any perjury himself.
As mentioned above, the trial court in Tramel v. Bass struck a defendant’s answer and
affirmative defenses and entered a default judgment. The First District affirmed, finding
that “a trial court has the inherent authority to impose severe sanctions when fraud has
been perpetrated on the court.”
56
In more recent cases where fraud on the court was raised, the courts have arguably
receded. In Jacob v. Henderson,
57
a personal injury plaintiff denied being able to perform
certain household activities and chores in deposition. However, surveillance taken earlier
showed her performing those same tasks. The trial court found fraud on the court and
dismissed the case with prejudice.
53
Desimone v. Old Dominion Insurance Company, 740 So.2d 233 (Fla. 4th DCA 999) (dismissal is proper when plaintiff lied
about matters having a direct bearing on his damages).; Rosenthal v. Rodriguez, 750 So.2d 703 (Fla. 3d DCA 2000) (same result
where lies were “central to” plaintiff’s personal injuries).
54
750 So.2d 703 (Fla. 3d DCA 2000).
55
Id. at 704. See also Hogan v. Dollar Rent A Car Systems. Inc., 783 So.2d 2 (Fla. 4th DCA 200 ).
56
Id. at 83.
57
840 So.2d 67 (Fla. 2d DCA 2003).
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On appeal, the Second District Court of Appeal reversed. It found that the extent of the
plaintiff’s injuries were factual issues for the jury to decide. “This is not a case in which [the
plaintiff] suffered no injury,” the court wrote. “The question is the severity of her injuries.”
58
While the court found that the surveillance could hurt the plaintiff’s credibility, it considered
dismissal too harsh a sanction.
59
Similarly, in Amato v. Intindola,
60
a trial court dismissed a claim after finding apparent
contradictions between deposition testimony and a plaintiff’s activities on surveillance
films. The Fourth District Court of Appeal reversed, citing Jacob v. Henderson. “In
most cases of personal injury,” the court wrote, “there is a disparity between what the
plaintiff believes are the limitations caused by the injuries and what the defense thinks.”
It acknowledged that surveillance may reveal discrepancies, but did not consider those
discrepancies alone to justify dismissal. See also Ruiz v. City of Orlando,
6
(reversing
dismissal because factual inconsistencies and even false statements “are well managed
through the use of impeachment and traditional discovery sanctions’)
Dismissal is also not appropriate when a party testified inaccurately based on a mistaken
belief. In Arzuman v. Saud,
62
a plaintiff testified that he owned stock in a corporation, but
also testified that the defendant was the sole owner of that corporation. The Fourth District
declined to dismiss the case. The court found that the statements revealed a “lack of
understanding of corporate structure,” not an attempt at fraud.
63
58
Id. at 69-70.
59
See also Laschke v. R.J. Reynolds Tobacco Co., 872 So.2d 344 (Fla. 2
nd
DCA 2004) (also reversing a dismissal for fraud on the
court); Rios v. Moore, 902 So.2d 8 (Fla. 3
rd
DCA 2005); Cross v. Pumpco, Inc., 9 0 So.2d 324 (Fla. 4
th
DCA 2005).
60
854 So.2d 8 2 (Fla. 4
th
DCA 2003).
6
859 So.2d 574 (Fla. 5
th
DCA 2003).
62
843 So.2d 950 (Fla. 4
th
DCA 2003).
63
Id. at 953.
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DAMAGES:
Some courts have allowed the award of nominal (and even punitive) damages after
default discovery abuses.
64
APPELLATE REVIEW:
The standard of appellate review for discovery sanctions is abuse of discretion.
65
Therefore, review is not governed by whether the appellate court “might have imposed a
greater or lesser sanction, but whether reasonable persons could differ as to the propriety
of the sanction imposed by the trial court.”
66
Thus the trial court will be affirmed (even if
imposing a default judgment) with the proper findings and record of bad faith.
For example, in McCormick v. Lomar Industries. Inc., 6 2 So.2d 707 (Fla. 4th DCA
993), plaintiff’s counsel was held in “deliberate and contumacious” disregard of the
court’s authority. Plaintiff’s counsel ignored multiple production deadlines, two court orders
for production and did not even appear at a hearing on the motion for sanctions. The
District Court of Appeals held that the trial court did not abuse its discretion in striking all
of plaintiff’s pleadings.
67
Without a solid record foundation (indicating willful or bad faith conduct) the trial court
may be outside its discretionary limits and risk reversal.
68
The appellate courts will reverse
when bad faith conduct is not apparent from the trial court’s order or the record.
69
64
Far Out Music. Inc. v. Jordan, 502 So.2d 523 (Fla. 3d DCA 987); Rose v. Clinton, supra.
65
Mercer v. Raine, 443 So.2d 944 (Fla. 983).
66
First Healthcare Corporation v. Hamilton, 740 So. 2d 89 (Fla. 4th DCA 999) (citing Mercer).
67
Bailev v. Woodlands Co.. Inc., 696 So.2d 450 (Fla. st DCA 997) (dismissal of counterclaim and third-party complaint proper
because defendant guilty of repeated discovery violations); Figgie International, supra; Paranzino v. Barnett Bank of South Florida.
N.A., 690 So.2d 725, 729 (Fla. 4th DCA 997) (dismissal of plaintiff’s case with prejudice appropriate for willful and knowing
violation of mediation privilege); SI. Mary’s Hospital, supra, at 35-36 (order striking hospital’s pleadings upheld where hospital
refused to produce investigative reports despite repeated orders from trial court to do so).
68
Davis v.Freeman, 405 So.2d 44 (Fla. st DCA 98 ).
69
Earp v. Winters, 693 So.2d 62 , 623 (Fla. 2d DCA 997) (reversing dismissal of plaintiff’s case because attorney’s failure to file
witness list on time “was neither willful nor deliberate”); Stern v. Stein, 694 So. 2d 85 (FlaAth DCA 997) (reversing trial court’s
order striking plaintiff’s pleadings because order was entered before time for discovery compliance had expired); Jam v. Merkury
Com., 683 So.2d 6 (Fla. 3d DCA 996) (dismissal of complaint improper for first-time discovery violation when there were other
lesser sanctions available); Williams v. Udell, supra.
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On appeal, a trial court’s decision imposing sanctions will be presumed correct if no
transcript of the proceedings is filed.
70
The Fourth District Court of Appeal has held that an order awarding sanctions for
discovery violations is non-final. Therefore, it dismissed an appeal from such an order.
7
State Farm had unsuccessfully argued that the order requiring it to pay attorney’s fees
was immediately appealable as a civil contempt order.
EXCLUSION OF EXPERT WITNESS OPINIONS:
A recurring problem in trial practice is late disclosure of expert witness opinions. When
expert witnesses form new opinions on the eve of trial or during trial, prejudice problems
arise.
Generally, such last-minute testimony should not be admissible at trial. Failure to
exclude such testimony prejudices the opposing party and constitutes reversible error.
72
A party who fails to disclose a substantial reversal in an expert’s opinion does so at their
peril.
73
Inevitably, the party which seeks to introduce new expert opinions claims the opinions
are based on newly discovered evidence. When this claim is truly valid, an equitable
exception to the exclusion rule should be considered. However, the trial court should
scrutinize a claim for newly discovered evidence with some suspicion to determine if it is
just a pretext for an ambush on the other party. Otherwise, the trial becomes a free-for-all,
and the discovery and pretrial deadlines become meaningless. As the Fourth District said
in Office Depot, “[a] party can hardly prepare for an opinion that it doesn’t know about,
70
Poling v. Palm Coast Abstract and Title, Inc., supra
7
State Farm Auto Ins. Co. v. Bravender, 700 So.2d 796 (Fla. 4th DCA 997).
72
Belmont v. North Broward Hospital District, 727 So.2d 992, 994 (Fla. 4th DCA 999);Garcia v. Emerson Electric Co., 677 So.2d
20 (Fla. 3d DCA 996); Auto Owners Insurance Co. v. Clark, 676 So.2d 3 (Fla. 4th DCA 996); Keller Industries v. Volk, 657
So.2d 200 (Fla. 4th DCA 995), rev. denied, 666 So.2d 46 (Fla. 995); Grau v. Branham, 626 So.2d 059 (Fla. 4th DCA 993);
Binger v. King Pest Control, 40 So.2d 3 0 (Fla. 98 ); Office Depo v. Miller, 584 So.2d 587 (Fla. 4th DCA 99 ); Florida Marine
Enterprises v. Bailev, 632 So.2d 249 (Fla. 4th DCA 994), rev. denied, 64 So.2d 345 (Fla. 994).
73
Gouveia v. F. Leigh Phillips, M.D., 823 So.2d 8 5, 822 (Fla. 4th DCA 2002).
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much less one that is a complete reversal of the opinion it has been provided.”
74
An orderly trial is most likely when the judge enforces discovery and pretrial orders
strictly and requires each party to make full and proper disclosure before trial. This
prevents last minute gamesmanship, and makes disruption of the trial and error on appeal
less likely.
As with other discovery violations, the sanctions must fit the offense. Striking the entire
testimony of an expert witness is the most drastic remedy available.
75
Under many circumstances, barring the expert from testifying will be too harsh.
76
In
cases where an expert claims to have a new opinion, for example, it is probably best to
bar the new opinion rather than the expert’s entire testimony.
77
When an expert is the only witness a party has to establish a key element in the case,
courts should be particularly hesitant to strike the expert’s testimony.
78
The same rule
applies to an expert who could offer key rebuttal evidence.
79
Finally, where a plaintiff’s
expert has already testified to new opinions, it is proper to allow the defense expert to
give new opinions in order to respond.
80
Discovery disputes sometimes arise over the role of experts retained by a party. In
Carrero v. Engle Homes, Inc., 667 So.2d 0 (Fla. 4th DCA 996), a trial court ordered
disclosure of the names of experts a party had consulted for trial.
74
Id. at 994.
75
LoBue v. Travelers lnsurance Company, 388 So.2d 349, 35 (Fla. 4th DCA 980).
76
Id.; see also Jean v. Theodorsen, 736 So.2d 240 (Fla. 4th DCA 999).
77
Keller Industries, supra, at 203.
78
Keller Industries; LoBue.
79
Griefer v. DiPietro, 708 So.2d 666, 672 (Fla. 4th DCA 998).
80
Gonzalez v. Largen, 790 So.2d 497, 500 (Fla. 5th DCA 200 ). See also Midtown Enterprises. Inc. v. Local Contractors Inc., 785
So.2d 578 (Fla. 3d DCA 200 ) (same ruling where lay rather than expert testimony invoived).
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The Fourth District Court ofAppeal reversed. In doing so, it followed the well-settled rule
that the names of consulting experts need not be disclosed.
8
The court held, however,
that a trial court has “ample authority” to strike experts if a party unreasonably delays
disclosing the names of trial (as opposed to consulting) experts.
82
CONCLUSION:
In summary, the trial courts in Florida are on solid footing and have full authority
and discretion to enter orders sanctioning disobedient parties. Expenses, including
costs and fees, on motions to compel are within the discretion of the court and easily
supportable.
Expenses on motions to compel should be awarded in most cases. Counsel moving
for severe sanctions for failure to obey prior court orders should, however, make the
proper record so that the appellate court will have sufficient information to sustain the
trial judge.
8
Carrero at 0 2.
82
Id.
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1
Roache v. Amerifirst Bank, 596 So.2d 1240, 1243 (Fla. 4th DCA 1992) (Glickstein, C.J., dissenting).
2
Rule 37 of the Federal Rules of Civil Procedure is the primary rule addressing sanctions in federal court. Thereunder, a broad array
of sanctions, familiar to those under Fla.R.Civ.P. 1.380, are available. See e.g., Levin & Associate, P.A. v. Rogers, 156 F.3d 1135
(11
th
Cir. 1998). Rule 11 of the Federal Rules of Civil Procedure also provides for sanctions in federal court.
CHAPTER TWO
AVAILABLE REMEDIES FOR FAILURE TO COMPLY WITH DISCOVERY REQUESTS
In General:
Borrowing from Bob Dylan, one Florida judge, weary of arbitrating so-called
“protesting motions” filed by one lawyer to compel another lawyer to abide by the rules
of procedure, sadly observed: “ ‘The Times They Are A-Changing.’ ”
1
The case law on
sanctions for failure to make discovery confirms the proliferation of bad discovery practice
and the need for court intervention.
The Fourth Judicial Circuit has directed in an administrative order what should be
standard operating procedure for all lawyers: “Before filing a motion to compel . . . or a
motion for a protective order, . . . counsel for the moving party shall confer with counsel
for opposing party in a good-faith effort to resolve by agreement the issues raised,” and
shall so certify to the court. Other circuits have adopted similar rules. In the United States
District Court for the Middle District of Florida, the court suggests that a telephone call is
appropriate before taking action that might be avoided by agreement of counsel. Because
this common sense and professional approach unfortunately does not always work, the
Florida Supreme Court has promulgated Fla.R.Civ.P. 1.380, detailing how to proceed for
sanctions against a party or counsel who fail to “abide by the rules.”
2
In 2005, the Florida Supreme Court adopted suggested amendments to the Florida
Rules of Civil Procedure to include the language of the federal rule which requires that
an attorney certify to the court that he or she has attempted to informally resolve the
discovery dispute with opposing counsel prior to filing any motion to compel. A motion
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to compel now 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 without court action. (Rule 1.380(2).) Additionally, a party will
not be awarded fees or expenses on a motion to compel if the movant failed to certify in
the motion that a good faith effort was made to obtain the discovery without court action.
(Rule 1.380(4). The 2005 changes to the Florida Rules bring Florida in line with the federal
rule, and will hopefully diminish the need for court intervention on discovery matters.
The first level of recourse is the simple motion to compel.Take note that “an evasive
or incomplete answer [to an interrogatory] shall be treated as failure to answer.”
3
The losing
party of this initial skirmish may be tagged with “reasonable expenses incurred,” including
attorneys’ fees, in obtaining an order compelling discovery or successfully opposing the
motion.
4
The heavy sanctions may be given for failure to comply with a court order.
5
The
rule sets out possible alternative sanctions: taking as established facts the matters about
which the recalcitrant party refuses to respond; prohibiting the disobedient party from
supporting or opposing designated claims or defenses;
6
prohibiting the introduction of
3
Rule 1.380(a)(3).
4
Rule 1.380(a)(4).
5
Rule 1.380(b).
6
Steele v. Chapnick, 552 So.2d 209 (Fla. 4th DCA1989) (reversing dismissal because plaintiff substantially complied with defendant’s
discovery request, but authorizing alternative sanctions of precluding evidence on issues when plaintiff failed to reply to discovery
demands, entering findings of fact adverse to plaintiff on those same issues, or imposing fines and fees).
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certain evidence;
7
striking pleadings, which could result in a dismissal of the action or a
default judgment;
8
contempt of court; and assessing reasonable expenses or attorney’s
fees.
9
The courts have crafted a few additional possibilities: fines;
10
grant of a new trial;
11
and, in the case of lost or destroyed evidence, creation of an evidentiary inference
12
or a
rebuttable presumption.
13
The court may rely on its inherent authority to impose drastic
sanctions when a discovery-related fraud has been perpetrated on the court.
14
7
Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981) (trial court may exclude testimony of witness whose name had not been
disclosed in accordance with pretrial order); Florida Marine Enterprises v. Bailey, 632 So.2d 649, 652 (Fla. 4th DCA 1994) (striking
witness “listed” by name only three days after court’s deadline when plaintiff had no independent knowledge of who witness was or
where witness could be located for discovery purposes); Sayad v. Alley, 508 So.2d 485 (Fla. 3d DCA 1987) (restricting expert’s tes-
timony to subject matter timely revealed in discovery and precluding opinion concerning area that had not been disclosed). But see
Griefer v. DiPietro, 708 So.2d 666 (Fla. 4th DCA1998) (trial court erred in excluding testimony of human factors expert; late-answered
interrogatories and deposition were made available two weeks before trial and no evidence of prejudice to defendant); Walters v.
Keebler Co., 652 So.2d 976 (Fla. 1st DCA 1995) (permitting coworker to testify to rebut defense, even though coworker not listed as
witness); Zales Corp. v. Clark, 643 So.2d 108 (Fla. 1st DCA 1994) (appellant permitted to amend witness list to add witness when
appellee had independent knowledge of witness and had means to ameliorate prejudice); Phillips v. Ficarra, 618 So.2d 312 (Fla. 4th
DCA 1993) (physician not listed on witness list permitted to testify for defendant; physician had examined plaintiff and defendant had
listed physician’s report). Whether undisclosed witnesses may testify on rebuttal depends on the specific circumstances. Compare
Costanzo v. Pik N’Run No. 4, 654 So.2d 588 (Fla. 1st DCA 1995) (testimony of undisclosed witness not properly admitted in rebuttal
because testimony not introduced to meet new facts) and Rose v. Madden & McClure Grove Service, 629 So.2d 234 (Fla. 1st DCA
1993) (admission on rebuttal of undisclosed witness’s testimony reversible error when testimony did not constitute rebuttal) with
Walters, 652 So.2d 976.
8
Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (affirming trial court’s striking of defendant’s answer, entering default judgment against
defendant, and ordering defendant to pay costs and fees occasioned by failure to comply with discovery order); Figgie International,
Inc. v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997) (affirming striking of defendants’ pleadings and entering of default for discovery
violations including destruction of documents, presentation of false and evasive testimony, and repeated obstruction of discovery);
United States Fire Insurance Co. v. C & C Beauty Sales. Inc., 674 So.2d 169 (Fla. 3d DCA 1996) (striking pleadings and entering
default for withholding documents despite six court orders); Garlock, Inc. v. Harriman, 665 So.2d 1116 (Fla. 3d DCA 1996) (striking
pleadings and entering default for failure to answer interrogatories, contrary to three court orders); Levine v. Del American Properties,
Inc., 642 So.2d 32 (Fla. 5th DCA 1994) (striking defendant’s pleadings for repeated failure to appear at deposition following court
orders to do so); Sabates v. Padron, 777 So.2d 1148 (Fla. 3d DCA 2001) (reversing vacation of dismissal for failure to respond to
discovery, failure to timely comply with order to secure new counsel and failure to diligently participate in the proceedings).
9
Rule 1.380(b)(2)(A)-(E) and (d). See Blackford v. Florida Power & Light Co., 681 So.2d 795 (Fla. 3d DCA 1996) (reversing summary
judgment as sanction for failure to answer interrogatories, but authorizing attorneys’ fees and costs); United Services Automobile
Association v. Strasser, 492 So.2d 399 (Fla. 4th DCA 1986) (affirming attorneys’ fees and costs as sanctions for consistently tardy
discovery responses, but reversing default).
10
Evangelos v. Dachiel, 553 So.2d 245 (Fla. 3d DCA 1989) ($500 sanction for failure to comply with discovery order, but default
reversed); Steele, 552 So.2d 209 (imposition of fine and/or attorneys’ fees for failure to produce is possible sanction).
The imposition of a fine for discovery violations requires a finding of contempt. Hoffman v. Hoffman, 718 So.2d 371 (Fla. 4th DCA
1998).
11
Binger, 401 So.2d 1310 (intentional nondisclosure of witness, combined with surprise, disruption, and prejudice, warranted new
trial); Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA 1993) (new trial on punitive damages and
attorneys’ fees as sanctions for withholding documents that were harmful to manufacturer’s case but were within scope of discovery
request); Smith v. University Medical Center, Inc., 559 So.2d 393 (Fla. 1st DCA 1990) (plaintiff entitled to new trial because defendant
failed to produce map that was requested repeatedly).
12
Federal Insurance Co. v. Allister Manufacturing Co., 622 So.2d 1348 (Fla. 4th DCA 1993) (manufacturer entitled to inference that
evidence, inadvertently lost by plaintiff’s expert, was not defective).
13
Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987) (rebuttable presumption of negligence exists if patient
demonstrates that absence of hospital records hinders patient’s ability to establish prima facie case); Amlan, Inc. v. Detroit Diesel
Corp., 651 So.2d 701 (Fla. 4th DCA 1995) (destruction or unexplained absence of evidence may result in permissible shifting of
burden of proof).
14
Tramel v. Bass, 672 So.2d 78 (Fla. 1st DCA 1996) (affirming default against sheriff for intentionally omitting portion of videotape
of automobile pursuit).
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Under Rule 1.380(b)(1), sanctions cannot be imposed on a nonparty for a discovery
violation in the absence of a finding of contempt.
15
Accordingly, before seeking sanctions
against a nonparty for failure to provide discovery, a motion to compel discovery should
be filed and an order should be entered directing the nonparty to provide the requested
discovery. If the nonparty again refuses to provide the requested discovery, a motion for
contempt should be filed asking the court to find the nonparty in contempt of court for
violation of a court order directing discovery. Remember to provide the nonparty with
notice of the hearing on the motion for contempt. It may be a good idea to subpoena the
nonparty to attend the hearing to avoid any argument that the trial court lacks jurisdiction
to impose sanctions against the nonparty. Whether sanctions may be imposed on a party
for a nonparty’s discovery violation is not clear.
16
Different sanction options are available
against parties and nonparties.
17
The case law interpreting Rule 1.380 is full of litigation horror stories. Incredibly,
they all involve counsel who have “failed to comply with,” (that is, ignored) court orders.
The seminal case setting forth the guidelines governing whether the ultimate sanction of
dismissal or default should be imposed is Mercer v. Raine,
18
in which the court affirmed the
striking of the defendant’s answer and entering a default judgment against the defendant
plus costs and fees occasioned by refusal to comply with the discovery order. Justifying
the imposition of “the most severe of all sanctions which should be employed only in
15
In Cooper v. Lewis, 719 So.2d 944 (Fla. 5th DCA1998), the trial court struck an IME doctor from defendant’s witness list and assessed
costs and attorneys’ fees against the defendant for the doctor’s failure at his deposition to provide requested information relating to
his past experience in performing IMEs. The records were produced at subsequent depositions of the doctor’s staff, except copies
of IMEs relating to other patients, which were withheld based on doctor-patient privilege. The appellate court reversed, saying: “At
least before imposing such sanctions, the trial court should find that someone is in contempt of court or has violated an appropriate
court order.” Id. at 945. See Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995).
16
Haverfield Corp. v. Frazen, 694 So.2d 162 (Fla. 3d DCA 1997) (workers’ compensation affirmative defense struck because of
nonparty insurer’s failure to produce documents). But see Edwards v. Edwards, 634 So.2d 284 (Fla. 4th DCA 1994) (reversible error
to impose sanction that punishes party who bears no responsibility for discovery violation committed by another).
17
Cooper, 719 So.2d at 946.
18
443 So.2d 944; Swidzinska v. Cejas, 702 So.2d 630 (Fla. 5th DCA 1997); Williams v. Udell, 690 So.2d 732 (Fla. 4th DCA 1997).
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extreme circumstances,” the court said that the defendant’s noncompliance was “willful.”
19
Furthermore, the court held: “A deliberate and contumacious disregard of the court’s
authority will justify application of this severest of sanctions . . . as will bad faith, willful
disregard or gross indifference to an order of the court, or conduct which evinces deliberate
callousness.”
20
Before the ultimate sanction of dismissal or default can be entered, a party
must be given notice and an opportunity to be heard, including the opportunity to present
evidence of mitigating circumstances that may explain the failure to comply with discovery
requirements.
21
The trial court must “make an explicit finding of willful noncompliance”
before dismissing a claim with prejudice as a discovery sanction and such claim must be
supported by specific facts present at the time of the dismissal.
22
As a general rule, absent evidence of a willful failure to comply or extensive
prejudice to the proposition, the granting of such an order constitutes an abuse of
discretion.
23
Although some district courts of appeal have found willful conduct and have
affirmed the trial courts
’
striking of pleadings and dismissal or entry of default for failure
19
Cooper, 719 So.2d at 946. “Unlike the imposition of a fine, which requires a contempt finding, the striking of pleadings need only
be based on willful noncompliance.” Hoffman, 718 So.2d at 372. See Akiyama Corp. v. Smith, 710 So.2d 1383 (Fla. 4th DCA 1998)
(reverse dismissal with prejudice as discovery sanction for failure to comply with court order because trial court failed to make finding
that conduct was willful and deliberate violation of discovery order); Chappell v. Affordable Air, Inc., 705 So.2d 1029 (Fla. 2d DCA
1998); Zaccaria v. Russell, 700 So.2d 187 (Fla. 4th DCA 1997). An order striking a pleading as a discovery sanction must contain
an express finding of willfulness. The court may conduct an evidentiary hearing for the limited purpose of allowing the disobedient
party to present evidence of any mitigating or extenuating circumstances to show that noncompliance was not deliberate or willful.
Harper-Elder v. Elder, 701 So.2d 1230 (Fla. 4th DCA 1997). See also Commonwealth Federal Savings & Loan Association v. Tubero,
569 So.2d 1271 (Fla. 1990).
20
Cooper, 719 So.2d at 946.
21
Franchi v. Shapiro, 650 So.2d 161 (Fla. 3d DCA 1995); Wildwood Properties. Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691
(Fla. 4th DCA 1993); Neder v. Greyhound Financial Corp., 592 So.2d 1218 (Fla. 1st DCA 1992). Cf. Westley v. Hub Cycles. Inc., 681
So.2d 719 (Fla. 2d DCA 1996) (error to impose sanctions on counsel for failure to timely comply with discovery request when record
does not sufficiently establish counsel had or was dilatory in obtaining relevant document).
22
Zaccaria, 700 So.2d at 188. A conflict currently exists between the First District and th Third District regarding whether the party (as
opposed to counsel) must be foun at fault in failing to respond to discovery prior to dismissal. See, Ham v. Dunmire and All America
Termite and Pest Control, 28 FLW D2389 (1st DCA, October 14, 2003) and Marin v. Batista, 639 So.2d 630 (Fla. 3d DCA 1994).
23
Surf Tech Int’l, Inc. v. Rutter, 785 So.2d 1280 (Fla. 5th DCA 2001).
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24
AVD Enterprises, Inc. v. Network Security Acceptance Corp., 555 So.2d 401 (Fla. 3d DCA 1989) (wholly inadequate answers to
interrogatories received day after motion for default filed, following failure to appear for numerous depositions, failure to provide
bookkeepers for deposition or to provide their addresses, failure to provide company books and records, and failure to answer inter-
rogatories); Gomez v. Pujols, 546 So.2d 734 (Fla. 3d DCA1989) (failure to answer interrogatories after many opportunities and failure
to provide reason for doing so); Dominguez v. Wolfe, 524 So.2d 1101 (Fla. 3d DCA 1988) (dismissal of plaintiff’s medical malpractice
complaint for failure to disclose expert after more than four years of litigation).
25
J.T.R., Inc. v. Hadri, 632 So.2d 241 (Fla 3d DCA 1994) (striking pleadings and entering default as sanction for failure to comply
with two court orders and deliberate misrepresentations to court concerning location of documents); McCormick v. Lomar Industries,
Inc., 612 So.2d 707 (Fla. 4th DCA 1993) (multiple deadlines for production of documents ignored, two court orders disregarded, and
at least one no-show at hearing over period of four months results in striking plaintiff’s pleadings); Kranz v. Levan, 602 So.2d 668
(Fla. 3d DCA 1992) (striking plaintiff’s pleadings and entering judgment for defendants when plaintiff ignored seven court orders to
produce documents; trial court referred matter to state attorney’s office for investigation); Mahmoud v. International Islamic Trading,
Ltd., 572 So.2d 979 (Fla. 1st DCA 1990) (failure to provide documents, answer interrogatories, and appear at deposition for seven
months; client, not counsel, instigated discovery delay); Rockwell International Corp. v. Menzies, 561 So.2d 677 (Fla. 3d DCA 1990)
(manufacturer’s intentional destruction of evidence justified striking defendant’s pleadings and entering default); HZJ, Inc. v. Wysocki,
511 So.2d 1088 (Fla. 3d DCA 1987) (bad faith games playing); DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983) (default in
favor of plaintiff on liability was appropriate sanction when defective portion of prosthesis was not returned by defendant and plaintiff
was unable to establish liability without critical piece of evidence, notwithstanding defendant’s intent).
26
Lent v. Baur, Miller & Webner, P.A., 710 So.2d 156 (Fla. 3d DCA 1998) (affirming striking of pleadings and dismissal because
plaintiff and plaintiff’*s attorney willfully disregarded court order compelling deposition of key witness, and for bad faith for intimidating
key defense witness by threatening legal action against witness); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998) (trial court
abused its discretion in granting new trial rather than dismissing case in which plaintiff admitted lying in his deposition).
27
See Kilstein v. Enclave Resort, Inc., 715 So.2d 1165, 1169 (Fla. 5th DCA 1998) (reversing dismissal of plaintiff’s lawsuit as sanction
for “foot dragging,” because plaintiff had partially complied with one court order, discovery had just begun, case was far from being
set for trial); Elder v. Norton, 711 So.2d 586 (Fla. 2d DCA 1998) (reversing dismissal of action as sanction for four years of discovery
abuse because plaintiff was faultless although plaintiff’s attorney was responsible); Stilwell v. Stilwell-Southern Walls, Inc., 711 So.2d
103 (Fla. 5th DCA 1998) (error to strike plaintiff’s pleadings for failure to comply with discovery order because initial attorney had
withdrawn, plaintiff was elderly and had undergone surgery plus wife’s illness and death, no prior discovery violations, and order of
continuance was ambiguous concerning discovery deadline; Jalil v. Merkury Corp., 683 So.2d 161 (Fla. 3d DCA 1996) (sanction of
dismissing complaint too severe for first discovery violation).
28
Robinson v. Nationwide Mutual Fire Insurance, 887 So.2d 328 (Fla. 2004) A reviewing court should also determine whether the
party (as opposed to his counsel) is responsible for any discovery violation before entering the sanction of dismissal. see Jiminez
v. Simon, 879 So.2d 13 (Fla. 2st DCA 2004). See also Ham v. Dunmire, 891 So.2d 492 (Fla. 2004); Kozel v. Ostendorf, 629 So.2d
817 (Fla. 1993). Both the Ham decision and the Kozel decision address the sticky problem of how a court deals with dismissal when
counsel (as opposed to a party litigant) is responsible for the discovery abuse.
29
Steele, 552 So.2d at 209.
30
Bernaad v. Hints, 530 So.2d 1055 (Fla. 4th DCA 1988).
31
Medical Personnel Pool of Palm Beach, Inc. v. Walsh, 508 So.2d 453 (Fla. 4th DCA 1987).
to answer interrogatories,
24
failure to produce documents,
25
or other bad faith discovery
practices,
26
most courts opt for less severe sanctions.
27
The Supreme Court recently re-
affirmed the standard laid out in Mercer v. Raine, and further held that a reviewing court
should limit itself to consideration of the Mercer criteria when determining the propriety
of sanctions imposed on an offending party.
28
Interrogatories:
“Substantial compliance” with discovery requests
29
or a finding of no “willful
abuse”
30
will preclude the sanction of dismissal or default, even when a party incorrectly
or falsely has answered an interrogatory.
31
However, repeated fraud and lying by a party
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on interrogatories or at deposition will result in dismissal or default.
32
Inadequate responses to expert interrogatories frequently are the source of dispute,
which may result in exclusion of expert testimony if prejudice is shown.
33
In this context,
“`prejudice’ . . . refers to the surprise in fact of the objecting party [as well as other factors
such as bad faith and ability to cure], and is not dependent on the adverse nature of the
testimony.”
34
Bad faith withholding of an expert’s revised written opinion and surprise at
trial may lead to a new trial or mistrial if objected to; without a contemporaneous objection,
the trial court lacks discretion to grant a motion for a new trial for an unpreserved error
that is not fundamental.
35
Another area of dispute arises from Elkins v. Syken,
36
in which the court set forth
criteria and guidelines applicable to discovery of financial information from opposing
experts. The Elkins rule has spawned litigation relating to the extent to which an expert
must disclose prior appearances and fees.
37
32
Savino v. Florida Drive in Threatre Management, Inc., 697 So.2d 1011 (Fla. 4th DCA 1997). See also Cox v. Burke, 706 So.2d 43
(Fla.5th DCA 1998); Alderman, 698 So.2d 563; Mendez v. Blanco, 685 So.2d 1149 (Fla.3d DCA 1996); O’Vahey v. Miller, 644 So.2d
550 (Fla. 3rd DCA 1994). Compare Kirby v. Adkins, 582 So. 2d 1209 (Fla. 5th DCA 1991); Young v. Curgil, 358 So.2d 58 (Fla. 3rd
DCA 1978); Parham v.Kohler, 134 So.2d 274 (Fla. 3rd DCA 1961) (no dismissal when false testimoney did not agfect plaintiff’s own
claim). Distefano v. State Farm, 846 So.2d 572 (Fla. 1st DCA, April 28, 2003).
33
Dept. of Health & Rehabilitative Services v. J.B., 675 So.2d 241 (Fla. 4th DCA 1996) (trial court erred in permitting expert testimony
concerning newly formed opinion revealed for first time at trial; permitting deposition of economist after first day of trial did not cure
error); Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA1993) (court erred in allowing plaintiff’s experts to testify regarding their midtrial
examination of plaintiff contrary to pretrial order limiting discovery and witnesses; permitting defendants to depose experts during trial
insufficient cure); Brinkerhoff v. Linkous, 528 So.2d 1318 (Fla. 5th DCA 1988)(testimony of expert witness regarding damages struck
for failure to comply with court’s deadlines for procurement of expert and report and availability of expert for depositions); Sayad, 508
So.2d 485. But see Griefer v. DiPietro, 708 So.2d 666 (Fla. 4th DCA 1998) (error to strike expert who was disclosed and deposed);
Klose v. Coastal Emergency Services of Fort Lauderdale, Inc., 673 So.2d 81 (Fla. 4th DCA 1996) (error to exclude expert testimony
because of confusion over scope of testimony; any prejudice could be cured by adjourning trial for further deposing of expert); Cedar
Hammock Fire Dept. v. Bonami, 672 So.2d 892 (Fla. 1st DCA 1996) (exclusion of testimony based on late disclosure of witness’s
name was abuse of discretion absent any actual prejudice to claimant); Keller Industries v. Volk, 657 So.2d 1200 (Fla. 4th DCA 1995)
(error to exclude testimony of expert who had no opinion on causation in pretrial deposition but formulated opinion after trial began;
proper approach would have been to bar testimony concerning causation); Louisville Scrap Material Co. v. Petroleum Packers, Inc.,
566 So.2d 277 (Fla. 2d DCA 1990) (error to strike expert witness despite late disclosure when appellee was able to depose expert
before trial and was not otherwise prejudiced).
34
J.B., 675 So.2d at 244.
35
Celentano v. Banker, 728 So.2d 244 (Fla. 4th DCA 1998).
36
672 So.2d 517 (Fla. 1996). See Rule 1.280(b)(4)(A)(iii) (effective January 1, 1997).
37
See Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999) (information related to payments to expert by party and relationship
between party and its expert was discoverable); Cooper, 719 So.2d 944; Scales v. Swill, 715 So.2d 1059 (Fla. 5th DCA1998) (doctor’s
failure to identify in interrogatories each case in which he previously had testified because he did not keep records constitutes sub-
stantial compliance to rule; expert cannot be compelled to compile or produce nonexistent documents).
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Interrogatories answered out of order or merely by attaching a report as an “answer”
may result in a sanction such as costs.
38
Failure to answer interrogatories despite a court
order may result in dismissal or default.
39
However, failure to provide properly executed
interrogatories
40
and tardiness in answering interrogatories
41
will not result in dismissal or
default.Amotion for an extension of time to answer interrogatories must be ruled on before
entry of an order to compel answers.
42
In the context of medical malpractice lawsuits,
interrogatories that are “reasonably limited in number and complexity” may be used in
informal discovery during the pre-suit period.
43
Failure to answer interrogatories does
not automatically preclude a case being at issue for trial on completion of the pleading
process. “The remedies for failure of a party to comply with discovery requirements are
found in Florida Rule of Civil Procedure 1.380.”
44
Production Of Documents And Things:
Rule1.350governsrequestsforproductionandisfairlystraightforward.Occasionally,
a party is accused of intentionally destroying documents or evidence or inadvertently
losing key evidence. This commonly is referred to as “spoliation” of evidence. Intentional
destruction of documents or evidence, as well as inadvertent loss, may result in a variety
of sanctions, including default or dismissal on a showing of prejudice.
45
In situations
38
Summit Chase CondominiumAssociation, Inc. v. Protean Investors. Inc., 421 So.2d 562, 563 (Fla. 3d DCA1982) (reverse dismissal
as sanction for inadequately, “haphazardly,” and “slothfully,” answering interrogatories, but impose $250 in costs).
39
Garlock, Inc., 665 So.2d 1116 (failure to answer interrogatories, despite three court orders, results in default judgment).
40
USAA Casualty Insurance Co. v. Bejany, 717 So.2d 164 (Fla. 4th DCA 1998); Owens v. Howard, 662 So.2d 1325 (Fla. 2d DCA
1996).
41
Solano v. City of Hialeah, 578 So.2d 338 (Fla. 3d DCA 1991) (on remand, trial court may consider imposing lesser sanctions);
Pilkington PLC v. Metro Corp., 526 So.2d 943 (Fla. 3d DCA 1988); Strasser, 492 So.2d 399 (attorneys’ fees and costs).
42
American Casualty Insurance Co. v. Bly Electrical Construction Service, Inc., 562 So.2d 825 (Fla. 4th DCA 1990).
43
Nolan v. Turner, 737 So.2d 579, 579 (Fla. 4th DCA 1999), rev. den. 753 So.2d 565.
44
Kubera v. Fisher, 483 So.2d 836, 838 (Fla. 2d DCA 1986).
45
DeLong v. A-Top Air Conditioning Co., 710 So.2d 706 (Fla. 3d DCA 1998) (affirming dismissal of plaintiff’s claim because plaintiff
inadvertently lost or misplaced relevant and material evidence and defendants demonstrated their inability to competently set forth
their defense); Sponco Manufacturing, Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995) (affirming default when defendant had
discarded allegedly defective ladder); Federal Insurance Co., 622 So.2d 1348; Rockwell International Corp., 561 So.2d at 677; New
Hampshire Insurance Co. v. Royal Insurance Co., 559 So.2d 102 (Fla. 4th DCA 1990); Weiss v. Rachlin & Cohen, 745 So.2d 527
(Fla. 3d DCA 1995) (failure to produce relevant books and records until the week of trial, and other discovery violations, justified
award of sanctions).
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where the other party is prejudiced by the loss or destruction, a rebuttable presumption
of negligence may arise.
46
The litigant also risks having the late-disclosed evidence
excluded from trial on a showing of “actual prejudice” to the opposing party.
47
Intentional
destruction of key evidence may give rise to a separate cause of action for negligent or
intentional spoliation of evidence, which then may be consolidated with the underlying
claim of negligence resulting in personal injury,
48
as well as other sanctions.
49
Such
sanctions may even be awardable in the absence of a clear legal duty to preserve the
evidence.
50
Generally, prejudice must be demonstrated for sanctions to be imposed. The
appropriate sanctions depend upon the willfulness of the party responsible for the loss of
the evidence, the extent of the prejudice and what is required to cure the prejudice.
51
Other
sanctionable conduct includes deliberate withholding of documents,
52
tardy production of
documents,
53
and improper manner of production (such as place of production).
54
Although
a prompt motion for sanctions for failure to produce documents is preferred, a post-trial
motion for discovery sanctions is permitted.
55
46
Valcin, 507 So.2d 596; see also Rockwell Int’l Corp. v. Menzies, 561 So.2d 677, 681 (Fla. 3d DCA 1990). But see King v. National
Security Fire & Casualty Co., 656 So.2d 1335 (Fla. 4th DCA 1995) disapp’d on other grounds by Murphy v. Int’l Robotics Sys., Inc.,
766 So.2d 1010, 1029 n. 21 (Fla. 2000) (error to instruct jury that destruction of documents not in plaintiff’*s control gives rise to legal
presumption that documents would have been unfavorable to person who destroyed them).
47
Crawford & Co. v. Barnes, 691 So.2d 1142 (Fla. 1st DCA 1997).
48
Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1985); Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3d DCA 1990); St. Mary’s
Hospital. Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996).
49
Metropolitan Dade County v. Bermudez, 648 So.2d 197 (Fla. 1st DCA 1994) (proper to exclude testimony of defendant’s expert
based on expert’s examination of vehicle when defendant subsequently sold vehicle before plaintiff examined it); Bird v. Hardrives of
Delray, Inc., 644 So.2d 89 (Fla. 4th DCA1994) (reverse dismissal of plaintiff’s case for lost MRI and remand to give plaintiff opportunity
to show action could proceed with less extreme remedy and, if so, to demonstrate that loss was not in bad faith).
50
St. Mary’s Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996); Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088
(Fla. 4th DCA 2001); Torres v. Matsushita Elec. Corp., 762 So.2d 1014, 1022 (Fla. 5th DCA 2000).
51
Vega v. CSCS Int’l, N.V., 795 So.2d 164 (Fla. 3rd DCA 2001)
52
C & C Beauty Sales, Inc., 674 So.2d 169 (striking pleadings and entering default against defendant who withheld accountant’s
report despite six court orders); Nordyne, 625 So.2d at 1289 (new trial on amount of punitive damages); LaVillarena, Inc. v. Acosta,
597 So.2d 336 (Fla. 3d DCA 1992) (exclusion of evidence); Smith, 559 So.2d at 397 (new trial); Dean Witter Reynolds, Inc. v. Ham-
mock, 489 So.2d 761 (Fla. 1st DCA 1986) (attorneys’ fees and costs).
53
Stimpson Computing Scale Co., A Division of Globe Slicing Machine Co. v. Knuck, 508 So.2d 482 (Fla. 3d DCA 1987) (attorneys’
fees ad appropriate sanctions).
54
Reep v. Reep, 565 So.2d 814 (Fla. 3d DCA 1990) (reverse dismissal as sanction for disorganized and incomplete production);
Beck’s Transfer, Inc. v. Peairs, 532 So.2d 1136 (Fla. 4th DCA 1988) (trial court order that defendant’s documents be moved from
Indiana for production in Florida). But see Evangelos, 553 So.2d at 246 (production of 30 boxes in warehouse sufficient).
55
Amlan, Inc., 651 So.2d 701.
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56
Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1113 (Fla. 3d DCA 2000) (awarding fees for failure to admit
certain facts later proven at trial by the other party but refusing to award fees for failure to admit a “hotly-contested, central issue.”
57
Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377, 1384 (Fla. 1994); Smith v. Florida Power & Light Co., 632
So.2d 696 (Fla. 3d DCA 1994) (attorney’s selection of documents generated by defendant in ordinary course of corporate business
protected work product as discrete unit immune from discovery because it would reveal attorney’s protected thought process and
strategy). See Prudential Insurance Co. v. Florida Dept. of Insurance, 694 So.2d 772 (Fla. 2d DCA 1997) (documents generated
after insurer’s legal staff assumed responsibility for oversight of responses to policyholder complaints were undiscoverable fact work
product when Dept. of Insurance failed to demonstrate need or undue hardship); Intercontinental Properties, Inc. v. Samy, 685 So.2d
1035 (Fla. 3d DCA 1997) (prior incident reports related to defendant’s premises were undiscoverable fact work product; plaintiff had
alternative discovery methods to gather same information); National Car Rental System, Inc. v. Kosakowski, 659 So.2d 455, 457 (Fla.
4th DCA 1995), quoting Healthtrust, Inc. v. Saunders, 651 So.2d 188, 189 (Fla. 4th DCA 1995) (“‘inconsistencies in testimony and dis-
crepancies are not basis to compel production of work product materials,’” in this case, statements contained in claim file); Freshwater
v. Freshwater, 654 So.2d 1271 (Fla. 3d DCA 1995) (wife’s diaries kept at attorney’s direction in connection with matrimonial litigation
are protected work product); DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988 (Fla. 3d DCA 1994) (discussing whether prior in-
cident reports are work product and procedure for overcoming privilege). A motion to compel discovery of work product must contain a
particularized showing of need and inability to obtain the substantial equivalent without undue hardship. Inapro, Inc. v. Alex Hofrichter,
P.A., 665 So.2d 279 (Fla. 3d DCA 1995).
58
Barnett Bank of Polk County v. Dottie-G Development Corp., 645 So.2d 573 (Fla. 2d DCA 1994); but see Allstate Indemnity Co.
v. Ruiz, 780 So.2d 239 (Fla. 4th DCA 2001) (discussing the conflicting case law on this issue and holding that the key inquiry is
whether the probability of litigation is substantial and imminent. A mere likelihood of litigation is not sufficient to protect an insurer’s
claim investigation file from disclosure).
Requests for Admissions:
Rule 1.380 provides that upon a refusal to admit the genuineness of any document
or the truth of any matter as requested under Rule 1.370, the court may require the other
party to pay the requesting party its reasonable expenses, which may include attorneys’
fees, incurred in making such proof at trial. Under Rule 1.380, the court shall order such
payment unless the request was objectionable, the admission was of no substantial
importance or there was other good reason for the failure to admit.
56
Work Product, Attorney-Client Privilege, And Trade Secrets:
Fact work product traditionally protects information that relates to the case and
is gathered in anticipation of litigation. Opinion work product consists primarily of the
attorney’s mental impressions, conclusions, opinions, and theories. “Whereas fact work
product is subject to discovery upon a showing of ‘need’ and ‘undue hardship,’ opinion
work product generally remains protected from disclosure.”
57
Documents protected from
discovery under the work product privilege are those prepared in anticipation of litigation,
which includes either a pending, threatened, or “possible” lawsuit, by or for a party or a
party’s representative, attorney, consultant, surety, indemnitor, insurer, or agent.
58
The
party asserting a work product objection for material prepared in anticipation of litigation
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must demonstrate that the materials requested are work product.
59
“Blanket assertions
of privilege are insufficient to satisfy this burden.”
60
Incident reports and other materials
“prepared in anticipation of litigation” are not protected from discovery unless their status
as work product is demonstrated to the court. It should be noted that if attorney work
product is expected or intended for use at trial, it is subject to the rules of discovery. The
Florida Supreme Court recently ruled that the attorney work product doctrine and work
product privilege is specifically bounded and limited to materials not intended for use as
evidence or as an exhibit at trial - including rebuttal.
61
Althoughtheattorney-clientprivilegewillprotectfromdiscoveryclientcommunications
with counsel, the privilege falls to the so-called “crime-fraud” exception.
62
The party seeking
to overcome the privilege bears the initial burden of producing evidence,
63
and then the
burden shifts to the party asserting the privilege to give a reasonable explanation. An
adversarial hearing should be held on the matter, but the preponderance of the evidence
standard applies to the court’s determination of whether the privilege or the exception
prevails. “To minimize the threat of corporations cloaking information with the attorney-
client privilege in order to avoid discovery, claims of the privilege in the corporate context
will be subjected to a heightened level of scrutiny.”
64
The most expeditious procedure for handling a work product, attorney-client, or
trade secret objection may be a request for the court to conduct an in camera review.
65
59
Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (Fla. 2d DCA 1997).
60
Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 593 (W.D.N.Y. 1996).
61
See, Northup v. Howard W. Acken, M.D., 29 FLW S37 (Fla., January 29, 2004).
62
F.S. 90.502(4)(a); First Union National Bank of Florida, Inc. v. Whitener, 715 So.2d 979 (Fla. 5th DCA 1998) (no fraud that would
abrogate privilege, although evidence might support conflict of interest and breach of fiduciary duty); American Tobacco Co. v. State,
697 So.2d 1249 (Fla. 4th DCA 1997).
63
Whitener, 715 So.2d 979.
64
Deason, 632 So.2d at 1383.
65
See Beck v. Dumas, 709 So.2d 601 (Fla. 4th DCA1998) (trial court departed from essential requirements of law in ordering disclosure
of trade secrets; procedure for determining trade secret privilege set forth); Zanardi v. Zanardi, 647 So.2d 298 (Fla. 3d DCA1994) (trial
court required to conduct in camera review of information contained in computer diskettes to determine validity of party’s assertion of
attorney-client privilege); Allstate Insurance Co. v. Walker, 583 So.2d 356 (Fla. 4th DCA 1991) (when work product or attorney-client
privilege is asserted, court must hold in camera inspection of discovery material at issue to rule on applicability of privilege).
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An order requiring disclosure of “trade secrets”
66
must specify what trade secrets exist
and set forth findings of fact supporting a conclusion that disclosure of the trade secrets
is reasonably necessary to resolve the issues in dispute.
67
Tardiness in responding to discovery requests will result in a waiver of objections
that could have been, but were not, made. However, failure to assert the attorney-client
privilege at the earliest time will not foreclose a tardy assertion of the privilege; failure to
timely assert the privilege “will not prevent the trial court’s in camera examination of the
tape to determine if privilege exists.”
68
A pattern of delay and recalcitrance in providing
requested discovery will not necessarily result in stripping of the attorney-client privilege.
69
However, it has been held that the failure to timely produce a privilege log containing
the information required by Rule 1.280 (B)(5) can result in a waiver of the attorney-client
privilege.
70
Conclusion:
In conclusion, “The integrity of the civil litigation process depends on truthful
disclosure of facts.Asystem that depends on an adversary’s ability to uncover falsehoods
is doomed to failure, which is why this kind of conduct must be discouraged in the strongest
possible way.”
71
66
See generally Evidence in Florida §4.53 (Fla. Bar CLE 5th ed. 1997, 1999 Supp.)
67
Virginia Electronics & Lighting Corp. v. Koester, 714 So.2d 1164 (Fla. 1st DCA 1998).
68
Gross v. Security Trust Co., 462 So.2d 580, 581 (Fla. 4th DCA 1985). See Austin v. Barnett Bank of South Florida, N.A., 472 So.2d
830, 830 (Fla. 4th DCA 1985) (“[R]ule 1.380(d) does not require timely objection to privileged matters.”) See also Old Holdings, Ltd. v.
Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991) (attorney-client privilege not waived although not asserted
until motion for rehearing); Truly Nolen Exterminating, Inc. v. Thomasson, 554 So.2d 5, 5B6 (Fla. 3d DCA 1989) (“A failure to assert a
work-product privilege at the earliest opportunity . . . does not constitute a wavier of the privilege so long as the privilege is asserted
by a pleading to the trial court before there has been an actual disclosure of the information alleged to be protected.”); Insurance
Co. of North America v. Noya, 398 So.2d 836, 838 (“Failure to take such timely action waives . . . objections, but it does not bar a
party from asserting a privilege or exemption for matters outside the scope of permissible discovery.”). Compare American Funding,
Ltd. v. Hill, 402 So.2d 1369 (Fla. 1st DCA 1981) (compelling production of documents when objection based on work product and
attorney-client privileges was late).
69
Eastern Airlines, Inc. v. United States Aviation Underwriters, Inc., 716 So.2d 340 (Fla. 3d DCA 1998) (reviewing trial court order
stripping attorney-client privilege for, among other things, fours years of pattern or delay by party).
70
TIG Insurance Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA Oct. 17, 2001).
71
Cox, 706 So.2d at 47.
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The openness of modern discovery is recognized to the point where the discovery
process is for the most part self-executing. The superintendence of trial judges should
be resorted to only with respect to whether information should be disgorged and the
sequence or timing of its proliferation. It is inherent in the present rules of discovery that
lawyers, out of respect for the adversary system, should make good faith efforts to comply
with one another’s reasonable discovery requests without constant recourse to the trial
courts.
72
The recent amendments to the rules of civil procedure now require verification by
attorneys that reasonable efforts have been made to work out discovery issues prior to
inviting court intervention. The changes will hopefully lead to court intervention in only
the most egregious and contested circumstances.
72
Summit Chase Condominium Association, Inc., 421 So.2d at 564.
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CHAPTER THREE
EFFECT ON PENDING DISCOVERY OF A MOTION FOR A PROTECTIVE ORDER
Issue:
Whether a motion for a protective order automatically stays a pending
proceeding.
Discussion:
1.
Applicable Rules:
Fla.R.Civ.P 1.280(c), states in pertinent part:
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 including one
or more of the following: (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; . . .
If 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 discov-
ery. The provisions of rule 1.380(a)(4) apply to the award of
expenses incurred in relation to the motion.
Rule 1.380(a)(4) addresses a party’s failure to permit discovery and sanctions
against the party wrongfully thwarting discovery.
Rule 1.280(c) does not provide that a deposition or other pending discovery matter
necessarily is stayed on the filing of a motion for a protective order. Rather, the rule states
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that, on motion and for good cause shown, the court may order that the discovery not be
had. By implication, the rule requires a hearing for the moving party to make a showing
of good cause. Merely filing a motion for a protective order is nothing more than “a paper
without a punch.”
Federal decisions interpreting federal rules similar to the Florida Rules of Civil
Procedure are persuasive.
1
Under Fed.R.Civ.P. 30(b) and Pioche Mines Consolidated, Inc.
v. Dolman,
2
the burden is on the proponent of the motion for a protective order to obtain a
court order excusing the party from appearing at a deposition or bear the consequences
for failing to appear. In other words, federal law places the burden on the proponent to
get an order first, rather than just filing a motion. The Pioche Mines opinion further states
that the proponent of the motion for a protective order can at least petition the court for
an order postponing the time of a deposition until the court can hear the motion for a
protective order.Alternatively, the aggrieved party can appear at the time of the deposition
and seek adjournment until an order can be obtained. Despite the preceding, until the
proponent has obtained a court order postponing or dispensing with the deponent’s duty
to appear, the duty still exists.
The Pioche Mines rule is followed in the Eleventh Circuit under the authority of
Hepperle v. Johnston.
3
Precedent of the Fifth U. S. Circuit Court of Appeals predating
October 1, 1981, is binding in the Eleventh Circuit.
4
2.
Florida Case Law:
In Canella v. Bryant,
5
the attorney sought to postpone a deposition when he learned
on the afternoon before the scheduled deposition that it would conflict with a hearing
1
See Dominique v. Yellow Freight System, Inc., 642 So.2d 594 (Fla. 4th DCA 1994).
2
333 F.2d 257 (9th Cir. 1964).
3
590 F.2d 609 (5th Cir. 1979).
4
Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981) (en banc). See also Federal Aviation Administration v. Landy, 705 F. 2d
624 (2d Cir. 1983).
5
235 So.2d 328 (Fla. 4th DCA 1970).
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scheduled for that same day. He had irreconcilable conflicts preventing his appearance
at the deposition. The attorney exerted every possible effort to obtain a court order to
prevent the deposition from going forward, including calling opposing counsel and filing
a motion for a protective order. The attorney also tried to arrange for the court to hear his
motion for a protective order and offered to have the deposition taken at another time.
Despite these efforts, nothing could be done to prevent the deposition from occurring.
The trial court entered a default for the party seeking protection when the party failed to
appear for deposition. On appeal, the default was set aside.
The attorney in the Canella case recognized his duty to obtain a court order to
excuse his attendance at the deposition. Rather than simply filing a motion for a protective
order and expecting it to act as a stay, the attorney made every effort to obtain a court
order and explain the reasons why he was unable to appear. Even though there is no
Florida case similar to Pioche Mines, common sense and professional courtesy would
seem to mandate having a motion for a protective order heard and an order entered
sufficiently in advance of the pending proceeding at issue.
In Momenah v.Ammache,
6
the plaintiff/appellant violated two court orders. The first
order concerned discovery cutoff and indicated that the trial court would strictly enforce all
discovery deadlines.Additionally, the trial court entered an order commanding the plaintiff,
a resident of Saudi Arabia, to appear for deposition when a newly added defendant, the
appellee in this case, served a notice of taking the plaintiff’s deposition only nine days in
advance of the date he was scheduled to appear in Naples, Florida. The plaintiff failed to
appear for his deposition and the trial court entered an order commanding him to appear
within 30 days for deposition in Collier County. The court advised that it would dismiss the
action if the plaintiff failed to appear. Thereafter, the plaintiff’s newly hired attorneys filed a
motion for a protective order, seeking to postpone the plaintiff’s deposition because of his
health or to accommodate him in some other manner. Apparently, the trial court originally
6
616 So. 2d 121 (Fla. 2d DCA 1993).
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granted the motion, but reversed its ruling on rehearing, denied the motion, and struck
the appellant’s pleadings. The plaintiff attempted to have the motion for a protective order
heard before he was scheduled to appear, and a congested calendar was the only thing
preventing him from being heard.
On appeal, the District Court of Appeal, Second District, stated:
[W]hen . . . a party seeking the order makes his motion as
soon as the need for it becomes known and tries to obtain a
hearing on the motion before the time set for compliance with
the order, his diligence should be considered in determining
whether his pleadings should be stricken and his action dis-
missed . . . . Since the appellant’s attorney did all he could
do to protect his client’s rights by filing a motion for protective
order and trying to have it heard in time to comply with the
court’s order if it was denied, the court should have afforded
him a reasonable opportunity to appear before striking his
pleadings and dismissing his action. (Emphasis added.)
7
Another Florida case on point is Stables v. Rivers.
8
Although this is a workers’
compensation case, Stables, like Momenah, stands for the proposition that the filing
of a motion for a protective order does not act as an automatic stay of a scheduled
deposition.
9
The failure to file timely a motion for a protective order or to limit discovery may
result in a waiver. However, it does not bar a party from asserting privilege or exemption
from matters outside the scope of permissible discovery.
10
7
616 So.2d at 124.
8
559 So.2d 440 (Fla. 1st DCA 1990).
9
See also Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107 (Fla. 2d DCA 1977).
10
Liberty Mutual Insurance Co. v. Lease America, Inc., 735 So.2d 560 (Fla. 4th DCA 1999); Insurance Company of North America v.
Noya, 398 So. 2d 836 (Fla. 5th DCA 1981). See also Berman, Florida Civil Procedure §280.4[1][b](2005 Edition).
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Conclusion:
Based on Florida and federal law, a party who seeks protection from discovery
must make every reasonable effort to have a motion heard before a scheduled deposition
or other discovery. The movant bears the burden of showing good cause and obtaining a
court order related to the pending proceeding before discovery is to be had. Furthermore,
it appears that a lawyer who schedules a last minute hearing on a motion for a protective
order in advance of a scheduled proceeding or who fails to file objections and motions
for protective orders can be sanctioned if the nonmovant is prejudiced.
11
In sum, a motion or a protective order does not automatically stay pending
discovery. Rather, the movant must file the motion as soon as the need for protection
arises, schedule the motion for hearing sufficiently in advance of the pending proceeding,
and show good cause why discovery should not go forward.
As always, lawyers should cooperate with each other concerning the scheduling
of discovery and the timing of a hearing on a motion for a protective order.
11
Fla.R.Civ.P. 1.380(a)(4).
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CHAPTER FOUR
“SPEAKING OBJECTIONS” AND INFLAMMATORY STATEMENTS
AT A DEPOSITION
Speaking objections to deposition questions are designed to obscure or hide the
search for the truth by influencing the testimony of a witness. Objections and statements
that a lawyer would not dare to make in the presence of a judge routinely are made at a
deposition. For example:
•
“I object. This witness could not possibly know the answer to that.
He wasn’t there.”
The typical witness response after hearing that: “I don’t know. I wasn’t there.”
•
“I object. You can answer if you remember.”
The typical witness response after hearing that: “I don’t remember.”
•
“I object. This case involves a totally different set of circumstances,
with different vehicles, different speeds, different times of day, etc.”
The typical witness response after hearing that: “I don’t know. There are too many
variables to compare the two.”
Previously, no rule specifically prohibited speaking objections. Fla.R.Civ.P. 1.310(c)
provided only that examination of a witness at a deposition “may proceed as permitted
at the trial.” In 1996, the Florida Supreme Court amended Rule 1.310(c) in an apparent
attempt to curb the practice of “speaking objections” during depositions.
1
Rule 1.310(c)
now includes language requiring “any objection during a deposition to be stated concisely
and in a non-argumentative and non-suggestive manner.” This is the same language that
was added to Fed.R.Civ.P. 30(d)(1) in 1993. “One purpose of the 1993 Amendments to
Fed.R.Civ.P. 30 was to curtail the prior practice of unduly prolonging and unfairly frustrating
the deposition process by lengthy objections and colloquy often including suggested
responses to deponent.”
2
1
In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105 (Fla. 1996).
2
See State Farm Mutual Automobile Insurance Co. v. Dowdy, 445 F.Supp.2d 1289, 1292 (N.D. Okl. 2006).
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Until the Florida amendment receives definitive interpretation, cases interpreting
the federal rule, which hold that speaking objections are not permissible, can be cited as
persuasive authority.
3
The Florida Supreme Court also amended Rule 1.310(d) to provide
that a “motion to terminate or limit examination” may be based on conduct in violation
of the amendment to Rule 1.310(c) requiring objections to be stated concisely and in a
nonsuggestive manner.
4
Case Law Under Fed.R.Civ.P. 30(d)(1):
1.
On a motion to direct counsel to cease obstructionist deposition tactics, in Damaj
v. Farmers Insurance Co.,
5
the court entered an order requiring in part that:
Deposing counsel shall instruct the witness to ask deposition counsel,
rather than the witness’s own counsel, for clarification, definition, or expla-
nation of any words, questions or documents presented during the course
of the deposition. . . . Counsel shall not make objections or statements
which might suggest an answer to a witness. Counsel’s statements when
making objections should be succinct and verbally economical, stating
the basis of the objection and nothing more. If the form of the question is
objectionable, counsel should say nothing more than “object to the form of
the question.”
6
2.
In Armstrong v. Hussmann Corp.,
7
the court granted a motion to compel and ordered
the payment of attorney fees, stating:
Rule 30(d)(1) also provides that, “Any objection to evidence during a depo-
sition shall be stated concisely and in a non-argumentative and non-sug-
gestive manner.” Plaintiff’s attorneys consistently failed to heed this direc-
tive. Their objections often suggested answers to their client. . . . Because
attorneys are prohibited from making any comments, either on or off the
record, in the presence of a judicial officer, which might suggest or limit a
witness’s answer to an unobjectionable question, such behavior is likewise
prohibited at depositions.
”8
3
See Gleneagle Ship Management Co. v. Leondakos, 602 So.2d 1282 (Fla. 1992).
4
682 So.2d at 117
.
5
164 F.R.D. 559 (N.D. Okla. 1995), opinion withdrawn and superseded on rehearing by 132 F.3d 42 (10th Cir. Okla.) 1997.
6
Id. at 561.
7
163 F.R.D. 299 (E.D. Mo. 1995).
8
Id. at 302-303.
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3.
In granting a motion to compel and for sanctions, the court inFrazier v. Southeastern
Pennsylvania Transportation Authority
9
interpreted Rule 30(d)(1) to mean that “lawyers
are strictly prohibited from making any comments, either on or off the record, which might
suggest or limit a witness’s answer to an unobjectionable question.”
10
4.
In Hall v. Clifton Precision, A Division of Litton Systems, Inc.,
11
the court stated:
The witness comes to the deposition to testify, not to indulge in a parody of
Charles McCarthy, with lawyers coaching or bending the witness’s words to
mold a legally convenient record. It is the witness — not the lawyer — who is
the witness. . . . The Federal Rules of Evidence contain no provision allow-
ing lawyers to interrupt the trial testimony of a witness to make a statement.
Such behavior should likewise be prohibited at depositions.
12
Rule 1.310(d) continuously has provided courts the power to terminate or limit the
scope of a deposition “on motion of a party” if the court found that the deposition was
being conducted in “bad faith or in such manner as unreasonably to annoy, embarrass,
or oppress the deponent or party.” All phases of the examination have been subject to
the control of the court, which has discretion to make any orders necessary to prevent
abuse of the discovery and deposition process.
13
Other Case Law:
1.
The court in Paramount Communications Inc. v. QVC Network Inc.
14
held:
One particular instance of misconduct during a deposition in this case
demonstrates such an astonishing lack of professionalism and civility that
it is worthy of special note here as a lesson for the future — a lesson of
conduct not to be tolerated or repeated. . . . To illustrate, a few excerpts
from the latter stages of the [defendant’s] deposition follow: . . . Don’t “Joe”
me, asshole. . . . You could gag a maggot off a meat wagon. . . . You have
9
161 F.R.D. 309 (E.D. Pa. 1995). Distinguished by Odone v. Croda Int’s PCL, 170 F.R.D. 66, 68 (D.D.C. 1997).
10
Id. at 315, citing Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993).
11
150 F.R.D. 525 (ED.Pa. 1993). Some jurisdictions have declined to follow the primary holding concerning attorney-witness conferences.
12
Id. at 528–530.
13
See 8 Wright & Miller, Federal Practice and Procedure §§2113 (1971). There are many cases on point.
14
637 A.2d 34 (Del. 1994). Case holding regarding ownership interest has been distinguished by some jurisdictions.
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no concept of what you’re doing. . . . You fee makers think you can come
here and sit in somebody’s office, get your meter running, get your full day’s
fee by asking stupid questions. Let’s go with it.
15
This conduct was found by the court to be “outrageous and unacceptable.”
16
The
appellate court stated that trial courts can consider protective orders and sanctions for
discovery violations, including, excluding the obstreperous attorney from the deposition,
appointing a special master, or assessing fees and costs.
2.
In Castillo v. St. Paul Fire & Marine Insurance Co.,
17
the trial judge called the conduct
of the plaintiff and his counsel at the plaintiff’s deposition, “the most outrageous example
of evasion and obfuscation that I have seen in years [and] a deliberate frustration of
defendants’attempt to secure discovery.”
18
Such conduct included the counsel interfering
with deposition questions and directing the deponent not to answer questions. The
dismissal of the plaintiff’s case and over $5,000 in fees as a sanction were affirmed.
3.
The court imposed sanctions against the plaintiff in Van Pilsum v. Iowa State
University of Science & Technology,
19
including payment for half of the deposition costs
and for use of a special master at a subsequent deposition because:
[Plaintiff’s counsel] repeatedly took it upon himself to restate Defendants’
counsel’s questions in order to “clarify” them for the Plaintiff. [Plaintiff’s
counsel] consistently interrupted [Defendants’ counsel] and the witness,
interposing “objections” which were thinly veiled instructions to the wit-
ness, who would then incorporate [Plaintiff’s counsel’s] language into her
answer. . . . The style adopted by [Plaintiff’s counsel] has become known as
“Rambo Litigation.” It does not promote the “just, speedy and inexpensive
determination of every action,” as is required by Fed.R.Civ.P. 1. This style,
which may prove effective out of the presence of the court, and may be
impressive to clients as well as ego-gratifying to those who practice it, will
not be tolerated by this court.
20
4.
In Stengel v. Kawasaki Heavy Industries, Ltd.,
21
at a break in the deposition, a
15
Id. at 52–53.
16
Id. at 55.
17
938 F.2d 776 (7th Cir. 1991).
18
Id. at 777.
19
152 F.R.D. 179 (S.D. Iowa 1993).
20
Id. at 180–181.
21
116 F.R.D. 263 (N.D.Tex., 1987).
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court reporter overheard the lawyers for the defendant say that it was their game plan to
“jerk [plaintiff’s counsel] around.”
22
Unreasonable objections to terminology were made
as well as other comments such as:
“Waste of time, ” referring to the deposing attorney’s question; “If you don’t
know how to produce evidence and ask a witness questions about some-
thing that is admissible form, either for impeachment or for some other
purpose, then you can’t blame Kawasaki for stonewalling to cover up your
own inadequacies.”; “Big deal.”; “Your (sic) not any more skillful in asking
the question than the other lawyer was in asking the question.”
23
These efforts were intended to “frustrate the taking of that deposition and to
evidently prevent any meaningful testimony being taken on behalf of the Plaintiff.”
24
The
court imposed sanctions equal to 50 hours of time at $100 per hour for the motion to
compel and 5.5 hours at $150 per hour for court time.
5.
The court in Unique Concepts, Inc. v. Brown
25
imposed sanctions of $693.25 for
the cost of the deposition transcript and a $250 fine for counsel’s conduct, saying:
[Counsel’s] constant interruptions continue throughout the transcript; his
silencing of the witness and obstructive demands for explanations from the
examiner rendered the deposition worthless and an exercise in futility. . . .
They include the following remarks by [counsel] directed at the examiner:
“You are being an obnoxious little twit. Keep your mouth shut.” (Tr.
23).”You are a very rude and impertinent young man.” (Tr. 114). . . .
“If you want to go down to [the judge] and ask for sanctions because
of that, go ahead. I would almost agree to make a contribution of
cash to you if you would promise to use it to take a course in how to
ask questions in a deposition.” (Tr. 34).
26
6.
In Kelly v. GAF Corp.,
27
defense counsel “made inconsequential objections and
so hindered the process that [the witness’] deposition, when finally presented in court,
was a hodgepodge, completely lacking in direction and continuity.”
28
The court chastised
22
Id. at 266.
23
Id. at 267–268.
24
Id. at 268.
25
115 F.R.D. 292 (S.D.N.Y. 1987).
26
Id. at 292–293.
27
115 F.R.D. 257 (E.D. Pa. 1987).
28
Id. at 257.
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counsel as follows:
An irresponsible attorney can make any number of objections, ranging from
frivolous to spurious. The more he makes, the better things are in his favor.
. . . Frivolous objections such as these destroyed the effectiveness of [the
witness’] testimony.
29
Plaintiff’s motion for a new trial was granted.
7.
Repetitive objections and colloquy effectively denied counsel a fair opportunity
to take a meaningful deposition in Langston Corp. v. Standard Register Co.
30
The court
ordered that the deposition be retaken and that the offending party pay the expenses,
and imposed sanctions consisting of the expense of retaking the deposition plus those
incurred in obtaining the order.
8.
Costs and fees for redeposing witnesses were charged personally against counsel
in United States v. Kattar,
31
for argumentative questioning, unscheduled interruptions, and
other improper conduct.
9.
For further discussion of improper deposition conduct, see Kerper & Stuart, Rambo
Bites the Dust: Current Trends in Deposition Ethics.
32
Endnotes
29
Id. at 258.
30
95 F.R.D. 386 (N.D. Ga. 1982).
31
191 F.R.D. 33 (D.N.H. 1999).
32
22 J. Legal. Prof. 103 (Spring 1998).
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CHAPTER FIVE
INSTRUCTING A WITNESS NOT TO ANSWER QUESTIONS AT A DEPOSITION
The general rule is that a party may obtain discovery regarding any nonprivileged
matter that is relevant to the pending action.
1
At a deposition, the “evidence objected to
shall be taken subject to the objections.”
2
Only objections to the form of the question need
be made at the deposition to preserve the right to object at the trial.All other objections are
preserved until the trial. The Florida Supreme Court, in In reAmendments to Florida Rules
of Civil Procedure,
3
adopted certain amendments to Rule 1.310(c), allowing attorneys to
instruct a deponent not to answer questions 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). This change is derived from Federal Rule of Civil Procedure 30(d), as
amended in 1993. The Florida Supreme Court also amended Rule 1.310(d) to provide
that a “motion to terminate or limit examination” may be based on conduct in violation of
the amendment to Rule 1.310(c). It follows from the amendments that the provisions of
Rule 1.380(a) apply to award expenses incurred with the filing of such a motion. Although
some of the federal cases cited below interpret the Federal Rules of Civil Procedure that
existed before the 1993 amendment, the following cases should assist the practitioner
in interpreting Rules 1.310 and 1.380, Florida Rules of Civil Procedure.
1.
Smith v. Gardy:
4
This is the seminal Florida case which is a must read for all practitioners
when the subject issue arises. Citing Rule 1.280(b)(1) of the Florida Rules of Civil
Procedure, the court stated:
1
Fla.R.Civ.P. 1.280(b)(1).
2
Rule 1.310(c).
3
682 So.2d 105 (Fla. 1996).
4
569 So.2d 504 (Fla. 4th DCA 1990).
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“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.”
. . . .
Dr.Freemanindeedshouldhaveanswered,andthearroganceofthedefense
attorney in instructing the witness not to answer is without legal justification.
. . . .
There was no proper basis for objection here. The questions should have
been answered because they were within the scope of subject matter on which
that expert was expected to testify. Nor was there a work product privilege. The
apparent reason that the witness was instructed not to answer was simply because
the defense attorney did not want to reveal adverse information.
5
In commenting on the diminished level of conduct by attorneys in depositions, the
court also discussed the importance of maintaining professionalism as well as lawyers’
responsibility of seeking truth and justice, with the sense of honor and fair dealing.
2.
Calzaturficio S.C.A.R.P.A. v. Faviano Shoe Company, Inc.
6
The District Court for the District of Massachusetts held that the following behavior
by counsel was improper:
[The counsel] conferred with the deponents during questioning, left the room
with a deponent while a question was pending, conferred with deponents while
questions were pending, instructed deponents not to finish answers, suggested to
the deponents how they should answer questions, rephrased opposing counsel’s
questions, instructed witnesses not to answer on grounds other than privilege
grounds, asserted the “asked and answered” questions 81 times, engaged in
length colloquies on the record, and made ad hominem attacks against opposing
counsel.
7
3.
Quantachrome Corp. v. Micromeritics Instrument Corp.
8
In this case, the plaintiff filed a motion to compel and for sanctions alleging
that the defense counsel improperly and repeatedly instructed deponents not to answer
questions based on relevancy or form objections. The defendant responded by stating
5
Id. at 507.
6
201 F.R.D. 33 (D. Mass. 2001).
7
Id. at 39.
8
189 F.R.D. 697 (S.D. Fla. 1999).
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that it refused to answer questions that were not reasonably calculated to lead to the
discovery of admissible evidence. Citing the current version of Rule 30(d)(1), the District
Court for the Southern District of Florida held that it was improper to instruct a witness
not to answer a question based on form and relevancy objections.
4.
EEOC v. General Motors Corporation
9
In this case, GMC’s counsel instructed a witness not to answer the questions
posed by counsel for the EEOC. The court, citing the current version of Rule 30(d)(1),
Federal Rules of Civil Procedure, held that the counsel’s concerns regarding his client’s
potential civil liability was not a basis for instructing a witness to refrain from answering
questions propounded during a deposition. The court further held that the counsel’s
concern was unfounded since witnesses are absolutely immune from civil suits arising
from their testimony in judicial proceedings, even perjured testimony.
5.
Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc.
10
In this case, the defendants moved to compel two witnesses, to respond to
deposition questions that were objected to on grounds other than privilege. The plaintiff
had objected to a variety of questions, asserting primarily that the questions were not
relevant. The court, in granting the motion to compel, cited the current version of Rule
30(d)(1), Federal Rules of Civil Procedure, and stated, “Absent a claim of privilege,
instructions not to answer questions at a deposition are generally improper.” The court
therefore directed that the witnesses answer all questions relating to the current action,
except for those which he or she is directed not to answer on grounds of attorney-client
privilege or trade secret. The court further stated, “When a witness is so directed, a
statement will be placed on the record indicating the time of the allegedly privileged
9
1997 U.S. Dist. LEXIS 17279 (E.D. Mo. Aug. 6, 1997).
10
1997 U.S. Dist. LEXIS 1272; 1997 WL 53184 (S.D.N.Y. Feb. 10, 1997).
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communication, the parties to the communication, and a general statement of the subject
matter of the communication.”
6.
Leiching v. Consolidated Rail Corporation
11
The District Court for the Northern District of New York, recommended that defense
counsel be personally assessed $2500.00 of sanctions for abusive and obstructive
discovery practices, including, interposing 1072 objections in the course of 15 depositions,
instructing, a witness not to answer questions based on “totally unjustified” claim of
privilege, instructing a witness not to bring a claims file with him, despite its having been
required by the deposition notice and accusations of unethical conduct directed to
opposing counsel.
7.
Riddell Sports, Inc. v. Brooks:
12
The District Court for the Southern District of New York, stated that the conduct of
attorneys directing deponents not to answer certain questions was generally inappropriate
and further stated:
Counsel may direct the witness not to answer a deposition question only
under the following circumstances: (1) “when necessary to preserve a privilege,”
(2) “to enforce a limitation on evidence directed by the court,” or (3) to protect a
witness from an examination “being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party.” Fed. R.
Civ.P. 30(d)(1) & (3).
. . . [T]he party resisting discovery has the burden of supporting its position and
an award of reasonable expenses, including attorneys fees, is available to the party
that prevails on the motion if his adversary position was not substantially justified.
See Fed.R.Civ.P. 37(a)(4)(sanctions on motion to compel); Fed.R.Civ.P. 30(d)(3)
(making some sanctions applicable to motion for protective order at deposition).
13
11
1996 U.S. Dist. LEXIS 20796 (N.D.N.Y. Oct. 24, 1996).
12
158 F.R.D. 555 (S.D. N.Y. 1984). See Fondren v. Republic American Life Insurance Co., 190 F.R.D. 597 (N.D. Okla. 1999).
13
Id. at 557-558 (citations omitted).
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8.
Marcum v. Wellman Funeral Home, Inc.
14
In this case, during the deposition of the defendant’s vice-president, the defendant’s
counsel instructed him not to answer. At the conclusion of the deposition, the parties
agreed that the deposition would be continued until the following week and concluded at
that time. When the vice-president and the defendant’s counsel appeared at the appointed
time for the continued deposition, the defendant’s counsel indicated that he would permit
the vice president to answer the questions which counsel earlier had instructed him not
to answer. The plaintiffs’ counsel then refused to continue the deposition, and instead
filed a motion to compel answers to deposition questions and to impose sanctions.
The U.S. Court ofAppeals for the Sixth Circuit, affirmed the district court’s judgment
and explained the district court’s finding as follows:
The district court found that the defendant’s counsel had improperly instructed his
client not to answer the questions at issue, and sanctioned counsel for that action.
However, the district court also found, and that finding is not clearly erroneous,
that one week after the deposition in which the unjustified instruction was given,
defendant’s counsel made the defendant available for additional questioning,
specifically for the purpose of answering the previously unanswered questions and
resolving the dispute about them, and that plaintiffs’ counsel refused to question
defendant further. Plaintiffs’ counsel instead proceeded to file a motion to compel
answers and for sanctions. The district court ruled that plaintiffs’ counsel had
prolonged the dispute by refusing to continue with the defendant’s deposition and
that under the circumstances the motion to compel and for sanctions was denied
and that plaintiffs would not permitted to further depose the defendant.
15
As to the issue of plaintiffs’ requested sanctions, the Sixth Circuit stated:
Plaintiffs offer no authority to support their contention that the failure of an opposing
party to answer questions the first time around causes irreparable harm to the
party propounding the questions because, once the answering party has had time
to think about the questions, his answers will not be truthful. We have found no
authority for that proposition, and we reject it.
16
14
30 F.3d 134 (6th Cir. 1994) (Note: opinion not designated for publication).
15
Id. at 2.
16
Id. at 2.
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9.
Wilson v. Martin County Hospital District
17
The District Court for the Western District of Texas, granted a motion to compel in
a Title VII case wherein the defense attorney instructed the deponent not to answer, on
the basis of preserving matters which are confidential and privileged. The court granted
the motion to compel in part, as to the evidence asserted as confidential, and denied it
in part, as to the evidence asserted as privileged. In making its holding, the Court stated
that despite the type of objections raised by the defense attorney, “[I]t is the duty of the
attorney instructing the witness not to answer to immediately seek a protective order,” and
pointed out that the defense attorney in the case failed to seek a protective order and left
it to the plaintiff to bring the matter before the court in the form of a motion to compel.
18
10.
Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, A Division of
Equifax Services, Inc.
19
The District Court for the Western District of Louisiana, imposed sanctions and costs
in connection with a Motion to Compel, arising from the termination of the Rule 30(b)(6)
discovery deposition of a Nutmeg representative, by Counsel for Nutmeg Insurance Co.
After citing the general rule that instructions not to answer questions at a deposition are
improper, the court stated:
Even in the case of an instruction not to answer based on privilege,
the party who instructs the witness not to answer should immediately seek a
protective order.
Counsel for Nutmeg did not file a motion pursuant to Rule 30(d), either in
the district where the deposition was being taken or in the court where the action
is pending. Rather counsel unilaterally directed the witness not to answer and left
it to defendant Equifax to bring the matter before the court in the form of a motion
for sanctions. This course of conduct was improper and in violation of the Federal
Rules of Civil Procedure.
20
17
149 F.R.D. 553 (W.D. Tx 1993).
18
Id. at 555
19
120 F.R.D. 504 (W.D. La. 1988).
20
Id. at 508 (emphasis original).
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11.
Paparelli v. Prudential Insurance Co. of America:
21
The District Court for the District of Massachusetts, held that (1) party which
employs the procedures of Rule 30(b)(6) to depose the representative of a corporation
must confine the examination to the matters stated “with reasonable particularity” which
are contained in the Notice of Deposition; but (2) counsel for other party could not properly
instruct witness not to answer questions on the ground that they went beyond the subject
matter listed in the notice of deposition. The court held that the remedy for questions that
go beyond the subject matter listed in the notice of deposition is to file a motion to limit
the scope or manner of taking the deposition under Rule 30(d). The court also held that
even upon a “proper” instruction not to answer, to wit: to protect trade secrets or privileged
information, the party should immediately seek a protective order.
22
12.
American Hangar Inc. v. Basic Line, Inc.:
23
The Massachusetts District Court awarded to the plaintiff, attorney’s fees and costs
incurred in filing a motion to compel, when the defendant’s counsel instructed defense
witnesses not to answer plaintiff’s counsel’s questions. The court also distinguished
the type of expenses that could be awarded when there is a refusal to answer at a
deposition:
[W]hen faced with a refusal to answer questions at a deposition, the examining
party may seek an order compelling answers pursuant to Rule 37(a), F.R.Civ.
P. In this connection, any award of expenses to the examining party is limited to
the expenses incurred “in obtaining the order.” There is no power to include in
such award the costs associated with taking the deposition at which the refusal to
answer occurred. It is only after an order compelling answers is entered pursuant
to Rule 37(a), F.R.Civ.P., and after a party has persisted in a refusal to answer
can a party obtain expenses in connection with the deposition and then, only in
connection with the deposition at which the refusal to answer was in violation of
the Rule 37(a) order.
24
This opinion provides guidance in interpreting similar rules, Rules 1.380(a)(2)
and 1.380(a)(4), Florida Rules of Civil Procedure.
21
108 F.R.D. 727 (D. Mass. 1985).
22
Id. at 731.
23
105 F.R.D. 173 (D. Mass. 1985).
24
Id. at 175.
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13.
Eggleston v. Chicago Journeyman Plumbers Local Union No. 130, U.A.:
25
The U.S. Court of Appeals, Seventh Circuit, stated as follows regarding irrelevant
questions at depositions and circumstances that warrant resorting to courts:
Rule 30(c), Fe. R.Civ.P., says the evidence should be taken subject to the
objections. Some questions of doubt relevancy may be innocuous and nothing is
lost in answering, subject to objection, except time. That is the general rule. Other
irrelevant questions, however, may necessarily touch sensitive areas or go beyond
reasonably limits as did some of the race questions propounded to Eggleston. In
such an event, refusing to answer may be justified. . . . There is no more need for a
deponent to seek a protective order for every question when a dispute arises than
there is a need to seek to compel an answer for each unanswered question. If a
particular question is important or opens up a whole area of questionable relevance,
or other serious problems develop which counsel cannot solve themselves, then
resorting to the court may be justified or necessary.
26
14.
International Union of Electrical, Radio and Machine Workers,AFL-CIO