ADA 2019 Florida Handbook On Civil Discovery Practice PDF

Florida Conference of Circuit Judges
Hon. Angela J. Cowden, Chair
Conference of County Court Judges of Florida

Hon. David L. Denkin, President
Trial Lawyers Section of The Florida Bar

Mindy McLaughlin, Chair
TLS Discovery Handbook Committee

Nick Mizell, Editor and Chair
Hon. Elizabeth Rice Hon. Ralph Artigliere

John Williams Prof. William Hamilton
Rachael Loukonen Weston F. Smith
Kim Ashby Joseph “Skooter” Kinman
PREFACE
In 1994, the Trial Lawyers Section of The Florida Bar, the Conference of
Circuit Judges, and the Conference of County Court Judges formed a joint
committee to provide a forum for the exchange of ideas on how to improve the
day-to-day practice of law for trial lawyers and trial judges. At the committee’s first
meeting, it was the overwhelming consensus that “discovery abuse” should be the
top priority.
The original handbook and the later editions are the result of the continued
joint efforts of the Trial Lawyers Section, the Conference of Circuit Judges, and the
Conference of County Court Judges. It is intended 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 should still do
his or her own research, to include a review of local administrative orders and
rules. The first edition of this handbook was prepared in the fall of 1995. This 2019
(seventeenth) edition updates the handbook through December 2018.

TABLE OF CONTENTS
Chapter 1: Discovery Standard and Expectations ................................................. 1
Chapter 2: Preservation and Spoliation of Evidence ............................................. 3

Preservation .............................................................................. 3
Safe Harbor for Electronically Stored Information ..................... 5
Spoliation................................................................................... 6
Sanctions................................................................................... 7
Chapter 3: Electronic Discovery ............................................................................ 10

The Duty of Electronic Discovery Competence .................................... 10
Law, Policy, and Principles of Electronic Discovery ............................. 11
Protecting Client Confidences and Data .............................................. 19
Duties of Attorney and Client Regarding Preservation of ESI .............. 20
Florida’s “Safe Harbor” Provision .............................................. 27
Conferring with Opposing Counsel ...................................................... 27
Key Word Search, Relevancy and Scope of Discovery ...................... 29
Collection and Review of ESI ............................................................... 31
Framework for the Trial Lawyer Facing E-Discovery ........................... 33
Requesting Production and Making Production of ESI ........................ 38
Production of ESI Pursuant to Subpoena ............................................ 41
Discovery of Social Media ESI ............................................................. 42
Discovery of Electronic Media and Health Records ............................. 43
Inspection of Opposing Party Devices ................................................. 45
“Self-Help” Discovery ........................................................................... 48
Ten Practical Steps for Handling Electronic Evidence ......................... 51
Conclusion ........................................................................................... 54
Chapter 4: Written Discovery Practice ................................................................... 55

Documents Requested ........................................................................ 55
Duty of Good Faith and Due Diligence ...................................... 55
Formulating Requests for Documents ....................................... 55
Use of Form Requests............................................................... 55
Reading and Interpreting Requests for Documents................... 56
Contact When a Document Request is Received ...................... 56
Responding to Document Requests .......................................... 57
Objections ................................................................................. 58
When Production is Limited by Interpretation ............................ 59
Supplementation of Document Production ................................ 60
Claim of Privilege ...................................................................... 60
Oral Requests for Production of Documents ............................. 61
Location of Production ............................................................... 61
Available for Copying ................................................................ 61
Manner of Production ................................................................ 62
Listing and Marking ................................................................... 62
Copying ..................................................................................... 63
Scanning ................................................................................... 64
Later Inspection ......................................................................... 64
Interrogatories ...................................................................................... 64
Number and Scope of Interrogatories ....................................... 64
Answers..................................................................................... 65
Objections ................................................................................. 66
Claims of Privilege ..................................................................... 67
Contention Interrogatories ......................................................... 67
Reference to Deposition or Document ...................................... 67
Interrogatories Should be Reasonably Particularized ................ 68
Producing Records in Lieu of Answering Interrogatories ........... 68
Answering Objectionable Interrogatories ................................... 69
Requests for Admission ....................................................................... 70
Number and Scope for Admission ............................................. 70
Responding to Requests for Admission..................................... 70
Objections ................................................................................. 71
Asserting Fifth Amendment Privilege ........................................ 71
Amending Responses to Request for Admission ...................... 72
Chapter 5: Proper Conduct of Depositions ............................................................ 73

Objections ............................................................................................ 74
Proper Form of Objections ........................................................ 74
Speaking Objections ................................................................. 75
Examinations ....................................................................................... 76
Proper Responses to Improper Conduct.............................................. 77
Deposition of Corporate Representative(s) .......................................... 78
Conclusion ........................................................................................... 79
Chapter 6: Expert Witness Discovery .................................................................... 80

I. Introduction ....................................................................................... 80
II. Discovery From a Party ................................................................... 81
A. Retained Experts....................................................................... 81
1. Opinion Discovery ............................................................... 81
2. “Financial” or “Litigation Bias” Discovery .............................. 83
3. “Relationship Bias” Discovery .............................................. 85
B. Consulting Experts ................................................................... 88
C. Non-Party Medical Providers..................................................... 89
1. “Pure” and “Hybrid” Treating Physicians .............................. 89
2. Opinion Discovery ................................................................ 90
4. Relationship Bias” Discovery ............................................... 94
D. LOP Providers ........................................................................... 95
III. Discovery Served Directly on the Experts ....................................... 97
A. Retained Experts....................................................................... 97
B. Consulting Experts ................................................................... 99
C. Non-Party Medical Providers..................................................... 99
D. LOP Providers ........................................................................... 101
E. Discovery in Support of Unreasonable Medical Bill Defense .... 102
IV. Discovery from a Party’s Attorney or Law Firm .............................. 105
A. Regarding “Retained” Experts ................................................... 105
B. Regarding Non-Party Medical Providers ................................... 107
V. Privacy Rights of Non-Parties & Non-Party Medical Records.......... 107
VI. Discovery Regarding Expert Not Testifying at Trial ........................ 108
VII. Northup Discovery ......................................................................... 1 110
Chapter 7: Compulsory Medical Examinations ...................................................... 112

Location of the CME 113
Selection of the Examiner by the Defense 114
Attending and Recording the CME 115
Discovery of the CME Examiner 119
Chapter 8: Work- Product Protection, Trade Secrets, And Other Privileges .......... 122
Trade Secrets ............................................................................. 124
Incident Reports.......................................................................... 127
Claims Files ................................................................................ 127
Surveillance Video ...................................................................... 128
Obtaining Psychological Records when Pain and Suffering
Are at Issue .......................................................................................... 128
Discovery of Lawyer-Client Privileged Communications ...................... 134
Third Party Bad Faith Actions ..................................................... 135
Examination Under Oath by Insurer............................................ 135
Privilege Logs ...................................................................................... 136
Inadvertent Disclosure ......................................................................... 137
Review of Privileged Documents for Deposition .................................. 141
Chapter 9: Motions for Protective Order ................................................................ 142

Depositions ................................................................................. 142
Other Forms of Discovery ........................................................... 144
Chapter 10: Motions to Compel ............................................................................... 145
Award of Expenses and Fees on Motion to Compel ................... 147
Sanctions for Failure to Obey Court Order.................................. 149
Required Due Process and Findings of Fact .............................. 150
Chapter 11: Fraud on the Court ............................................................................... 155
Appendix 1-1: Discovery Wake-up Call to the Bar ...................................................... 157
Appendix 1-2: Breaking the Addiction to Boilerplate Discovery Practices .................. 160
Appendix 3-1: Committee Notes to Florida’s 2012 e-Discovery

Rules Amendments .............................................................................. 176
Appendix 3-2: Comparison of Florida and Federal

Rules of E-Discovery ............................................................................ 178
Appendix 3-3: Standing Order on Electronically Stored Information Discovery .......... 190
Appendix 3-4: Stipulation Establishing Electronic Discovery Protocol ........................ 192
Appendix 6-1: Significant Cases Involving the Breadth and Scope Of Expert
Witness Discovery ............................................................................... 205
Appendix 7-1: Guidelines Regarding Compulsory Medical Examinations

Conducted Pursuant to FLA. R. CIV. P. 1.360(a)(1)(A) AND 1.360(B) 211
Appendix 7-2: Ninth Judicial Circuit Court Uniform Guidelines

Regarding Compulsory Medical Examinations .................................... 215
Appendix 7-3: Form Order on Motions to Compel Compulsory

Or Independent Medical Examinations ................................................ 221
Appendix 11-1: Selected “Fraud on the Court” Cases .................................................. 226

CHAPTER ONE
DISCOVERY STANDARD AND EXPECTATIONS
Full and fair discovery is essential to the truth-finding function of our justice system,
and parties and non-parties alike must comply not only with the technical provisions of
the discovery rules, but also with the purpose and spirit of those rules. 1 All of the discovery
rules are to be “construed to secure the just, speedy, and inexpensive determination of
every action.”2 Relevant facts should be the determining factor rather than
gamesmanship, surprise or superior trial tactics. 3 And courts neither countenance nor
tolerate actions that are not forthright and which merely delay and obfuscate the discovery
process. 4 As explained in the opinions attached in Appendix 1-1 and Appendix 1-2,
boilerplate approaches are inconsistent with the rules and can result in the waiver of all
objections and even sanctions. Accordingly, both requests for and responses to discovery
must be thoughtful, case-specific, and factually supported. 5
Most importantly, whether conducting or responding to discovery, and in both oral
and written practice, counsel must conduct themselves consistent with the standards of
behavior codified in (1) the Oath of Admission to The Florida Bar; (2) The Florida Bar
Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4)
The Rules Regulating The Florida Bar; (5) the decisions of the Florida Supreme Court;
and (6) the applicable code of conduct and standing orders promulgated by the circuit or
1 Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla. 2014).
2 FLA. R. CIV. P. 1.010.
3 Bainter, 150 So. 3d at 1133.
4 Bainter, 150 So. 3d at 1118.
5 See e.g., FLA. R. CIV. P. 1.350(b) (“the reasons for the objection shall be stated”) (emphasis added).
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county court within which the action is pending.
Further, counsel and parties alike must be mindful that their discovery requests,
as well as their objections and responses to discovery requests, are subject to Fla. Stat.
§ 57.105, which authorizes courts to award sanctions against parties who raise claims
and defenses not supported by material facts. 6 Section 57.105(2) specifically provides
that expenses, including fees and other losses, may be awarded for the assertion of, or
response to, any discovery demand that is considered by the court to have been taken
primarily for the purpose of unreasonable delay. And Section 57.105(6) provides that the
provisions of Section 57.105 are supplemental to other sanctions or remedies that are
available under law or under court rules.
Accordingly, sanctions have been awarded when a party filed a motion to dismiss
that was unsupported by the facts and the law, and the same party continually objected
to discovery requests, the subject of which was directed to the issues raised in the motion
to dismiss. 7 And it is sanctionable to first object to a discovery request and, after the
objections are overruled, respond that no such documents exist. Such conduct has been
found to constitute discovery abuse and improper delaying tactics. 8
6Previously, a fee award was only permissible when there was no justifiable issue regarding claims and
defenses. Fee awards were relatively rare under this high standard.
7 Pronman v. Styles, 163 So. 3d 535 (Fla. 4th DCA 2015).
8 See First Healthcare Corp. v. Hamilton, 740 So. 2d 1189, 1193 n.2 (Fla. 4th DCA 1999).
2
CHAPTER TWO
PRESERVATION AND SPOLIATION OF EVIDENCE
In Florida, there is no independent cause of action for spoliation of evidence
against a party who allegedly suffered from, or may be liable for, the wrongful acts in
question, 9 and this discovery handbook does not discuss the elements of a potential
spoliation claim against a third-party custodian of potentially relevant evidence. Instead,
as a threshold discovery issue that should be given attention at the earliest stages of
potential or actual litigation, this chapter discusses whether and when a party may have
a duty to preserve relevant evidence and the spectrum of remedies for negligent and
intentional spoliation.
PRESERVATION
“[T]he first issue that must be addressed in any [preservation-spoliation] analysis
is whether a duty exists on the part of the possessor to preserve or maintain the
evidence.” 10 Indeed, the landmark spoliation holding in Public Health Trust of Dade
County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987), was grounded in the fact that the
defendant hospital had a statutory duty to maintain and produce the medical records
sought by the plaintiff. In addition to statutory duties, a regulation, contract, court order
or discovery request may impose a duty to maintain or preserve certain items.
However, preservation is not a strict-liability concept. 11 Instead, it involves a
9 Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-47 (Fla. 2005).
10 Martino, 908 So. 2d at 348 (Wells, J., concurring); see also Osmulski v. Oldsmar Fine Wine, Inc., 93 So.
3d 389, 392 (Fla. 2d DCA 2012) (before considering whether any spoliation sanction may be necessary,
the court must first determine that the evidence did, in fact, exist, and that the alleged spoliator had a duty
to preserve it).
11 Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1058 (Fla. 2d DCA 2017) (citing Reed v. Alpha
Prof’l Tools, 975 So. 2d 1202, 1204 (Fla. 5th DCA 2008)).
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determination of what is reasonable under the circumstances and in light of the nature
and type of evidence at issue (such as whether it was tangible or electronic, static or
dynamic, etc.) Thus, a party has no duty to preserve items that were never within its
custody, 12 nor does it have a duty to resist the lawful repossession of an item by a third-
party. 13 For similar reason, a personal-injury plaintiff has no duty to provide advance
notice to a defendant about an upcoming surgery because there is no obligation to
preserve the status quo of a litigant’s body for future examination. 14 And due to the
passage of time, even if a preservation duty may have existed, reason may dictate that it
expired well before any request for the evidence was made. 15 Likewise, in the absence
of a reasonably diligent preservation request, Florida’s courts have generally avoided
basing a preservation duty on nothing more than pending or reasonably foreseeable
litigation.
For example, in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla.
2015), the court approved the judge’s reasoning in a bench trial that it was inappropriate
for the defendant to systematically delete certain emails and other documents both before
and after suit was filed because the defendant always knew that litigation was a certainty
12 Evidence is not in a party’s custody when it is inadvertently lost or destroyed due to the actions of a third
party. Derosier v. Cooper Tire & Rubber Co., 819 So. 2d 143 (Fla. 4th DCA 2002) (holding that no
preservation or spoliation issue was presented when separated tread from an allegedly defective tire was
discarded by unknown persons immediately after an automobile accident while the plaintiff was being
transported to the hospital); Fleury v. Biomet, Inc., 865 So. 2d 537 (Fla. 2d DCA 2003) (holding that an
allegedly defective artificial knee that was discarded by hospital staff shortly after surgery to remove it was
not spoliation of evidence because the knee was not in the party’s custody at the time of its loss).
13 Landry, 226 So. 3d at 1057-58.
14 Faris v. Southern-Owners Ins. Co., 240 So. 3d 848, 851 (Fla. 5th DCA 2018).
15 Martino, 908 So. 2d at 350 (there is no basis upon which to impose any spoliation sanction when suit is
filed two years after an incident and the defendant did not preserve the property during the intervening
years); see also Harrell v Mayberry, 754 So. 2d 742, 745 (Fla. 2d DCA 2000) (denying spoliation relief
because, among other reasons, the plaintiffs allowed more than four years to pass before requesting
another inspection of the item).
4
and that the subject emails and documents would be sought in the litigation. 16 And in
Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2d DCA 2012), the court
held that even though the retail-store defendant knew that the personal-injury plaintiff had
pursued a claim against its insurance carrier, the store had no duty to preserve video-
surveillance recordings because no written demand for them was made before their
automatic deletion. Reasoning that “it would not be fair to businesses or homeowners to
require them to preserve video evidence in the absence of a written request to do so,” the
court held:
if a defendant has knowledge that an accident or incident has

occurred on its property and that same defendant has a video
camera that may have recorded the accident or incident, that
defendant has a duty to obtain and preserve a copy of any
relevant information recorded by that camera if a written
request to do so has been made by the injured party or their
representative prior to the point at which the information is lost
or destroyed in the normal course of the defendant’s video
operations. 17
As similarly noted in Martino 18, a discovery request – and not merely the filing of the
lawsuit – should generally be the earliest trigger for any duty to preserve electronic
evidence because the use of “any earlier demarcation point could lead to unlimited and
chaotic disruption of electronic recordkeeping,” and impose “unfair and unpredictable
standards of behavior.”
SAFE HARBOR FOR ELECTRONICALLY STORED INFORMATION
By rule, there is a good-faith exemption concerning the failure to preserve certain
electronically stored information. Pursuant to Rule 1.380(e) of the Florida Rules of Civil
16 Detzner, 172 So. 3d at 378, 385, 390-391.

17 Id. at 393.
18 Martino, 908 So. 2d at 349 n.3.
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Procedure, a party is not subject to sanctions if electronically stored information is lost
due to “the routine, good faith operation of an electronic information system.” And since
Florida’s state courts may consider federal rules as persuasive guidance, practitioners
should likewise be aware of Rule 37(e) of the Federal Rules of Civil Procedure, which
proscribes how and when federal courts should impose sanctions for the spoliation of
electronically stored information. Guidance may also be found in ethics opinions issued
by the Florida Bar. For instance, The Florida Bar has found that attorneys may advise
clients to change the privacy settings on their clients’ social media pages so they are not
publicly accessible, as long as doing so does not violate the rules or substantive law
pertaining to the preservation and/or spoliation of evidence. 19 Attorneys may also advise
their clients to remove information relevant to foreseeable litigation from social media
pages as long as the social media information or data is preserved. 20
SPOLIATION
Spoliation concerns the prejudicial loss, “destruction, mutilation, alteration, or
concealment of evidence.” 21 But evidence is not “lost” unless the party seeking its
production has conducted a diligent search and has not found it. 22 And whether the
destruction, alteration or loss of the evidence is unduly prejudicial depends on the
circumstances, including the totality of the evidence available to the parties. So generally,
the extent of any prejudice cannot be assessed until an evidentiary hearing is conducted
19 Fla. Bar. Ethics Opinion 14-1 (Jun. 25, 2015).

20 Id.
21 Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006).
22 Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1058 (Fla. 2d DCA 2017).
6
following the completion of discovery. 23 In addition, any spoliation may fall short of being
unduly prejudicial if both parties are similarly affected by its loss, 24 or if the purportedly
prejudiced party’s own actions or inactions contributed to the loss or destruction of the
evidence. 25
SANCTIONS
The purpose of any spoliation sanction “is not to punish but rather to ensure
compliance with the rules of civil procedure.” 26 And before a court may exercise any
leveling mechanism due to the spoliation of evidence, it should consider: (1) the
willfulness or bad faith, if any, of the party who lost the evidence, (2) the extent of the
prejudice suffered by the other party, and (3) what is required to cure the prejudice. 27 In
other words, “a trial court must balance the impact of the sanction against the severity of
the infraction.” 28
Any need to employ a remedial mechanism to ensure a just determination of the
case may also depend on the arguments advanced by the parties, such as when the party
that failed to preserve the evidence nevertheless argues that “the thing lost was not as
represented by the injured party,” or that the injured party should not prevail because of
its failure to present the lost item as evidence. 29 From the circumstances presented in
each case, and within the broad discretion of the trial court, a remedy or combination of
23 Reed v. Alpha Prof’l Tools, 975 So. 2d 1202, 1205 (Fla. 5th DCA 2008).
24 Fleury v. Biomet, Inc., 865 So. 2d 537, 540 (Fla. 2d DCA 2003).
25 Faris v. Southern-Owners Ins. Co., 240 So. 3d 848, 851 (Fla. 5th DCA 2018).
26 Id. (internal quotation and citation omitted).
27 Landry, 226 So. 2d at 1058; Fleury, 865 So. 2d at 539.
28 Faris, 240 So. 3d at 850.
29 American Hospitality Management Co. v. Hettiger, 904 So. 2d 547, 551 (Fla. 4th DCA 2005).
7
remedies may be employed, with the spectrum including the admission of evidence about
the pre-incident condition of the lost item and the circumstances surrounding its
spoliation, as well as instructing the jury on inferences that may be drawn or rebuttable
presumptions that it must employ. 30
When the spoliation was merely negligent and not intentional, generally the
harshest sanctions that may be appropriate are the use of adverse evidentiary inferences
or rebuttable presumptions. 31 For example, an adverse-inference instruction advises the
jury that it may, but is not required to, infer that the evidence would have been unfavorable
to the party that failed to preserve it. 32 But even the use of an adverse-inference
instruction as the mildest of these remedies is “strong medicine,” because it invades the
province of the jury. 33 Accordingly, such references “are reserved for circumstances
where the normal discovery procedures have gone seriously awry,” such as when a
defendant received within ten days of an accident a request to preserve crucial evidence
within its possession and the evidence was subsequently destroyed. 34
When there were specifically enumerated duties to preserve the evidence, such
as by statute, regulation, contract, or court order, 35 then the negligent loss of such
evidence may warrant the use of a rebuttable presumption that shifts the burden of proof
as to a particular claim or defense to the opposing party responsible for the loss of the
30 Golden Yachts, 920 So. 2d at 780.

31 Landry, 226 So. 2d at 1058.
32 FLA. STD. JURY INSTR. (Civil) 301.11(a).
33 Bechtel Corp. v. Batchelor, No. 3D16-2624, 2018 WL 3040336, at *5 (Fla. 3d DCA June 20, 2018).
34 Id.
35 Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. 2d DCA 2012); Golden Yachts, 920 So.
2d at 781.
8
item, such as a rebuttable presumption of negligence or fault. 36
In cases involving intentional spoliation, it may be appropriate to employ the
draconian remedy of dismissing a plaintiff’s claims or entering a default judgment against
a defendant. 37 And when the spoliation was the result of negligence or inadvertence, the
prejudice may be so great as to warrant such a sanction. 38 In the absence of willfulness
or bad faith, however, a dismissal or default – the harshest of all sanctions – “is
appropriate only when the movant presents evidence (e.g., expert testimony)
demonstrating that its case is fatally prejudiced by its inability to examine the spoliated
evidence.” 39 In other words, to enter a dismissal or default “based solely on prejudice to
the movant, the spoliated evidence must be so crucial as to completely prevent the
movant from [establishing its claim or defense], not merely prevent the movant from
[establishing its claim or defense] completely.” 40 Thus, when necessary, the utilization of
an adverse-inference instruction or rebuttable presumption is preferred, and the sanction
of dismissal or default is a last resort reserved for the most extreme cases where a lesser
sanction would fail to achieve a just result. 41
36 FLA. STD. JURY INSTR. (Civil) 301.11(b).

37 Golden Yachts, 920 So. 2d at 780.
38 Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824, 826 (affirming default judgment of liability upon
which $6 million was awarded after a damages-only trial); Torres v. Matshushita Elec. Corp., 762 So. 2d
1014, (Fla. 5th DCA 2000) (affirming dismissal with prejudice because allegedly defective product was
thrown in garbage after being stored in plaintiff counsel’s garage).
39 Landry, 226 So. 2d at 1058 (emphasis in the original).
40 Id.
41 Faris, 240 So. 3d at 850-51; Landry, 226 So. 2d at 1058; Harrell v. Mayberry, 754 So. 2d 742, 744 (Fla.
2d DCA 2000).
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CHAPTER THREE
ELECTRONIC DISCOVERY
The exabytes of digital information streaming about us today

are rich rivers of evidence that will help us find the truth and
move us to do justice more swiftly, more economically and
more honorably than ever before. It will require every litigator
to master new skills and tools and alter the approaches and
attitudes we bring to the adversarial process. We must
reinvent ourselves to master modern evidence or be content
with a justice system that best serves the well-heeled and the
corrupt. The path to justice is paved with competent evidence
and trod by counsel competent in its use. 42
Digital evidence is important in almost every case because the vast majority of
information today is created and maintained electronically. Computers, phones, and
other electronic devices pervade our culture. Important case information resides in the
tremendous volume of digital data that surrounds us. The principal challenge of e-
discovery is to cost effectively locate the important case information housed in the
multitude of troves of electronically stored information.
THE DUTY OF ELECTRONIC DISCOVERY COMPETENCE
Competent client representation requires the legal skills, knowledge,
thoroughness, and preparation necessary for the representation. 43 Competence in ESI
discovery of electronically stored information ("ESI")44 is essential to achieve effective,
42 Craig Ball at www.craigball.com.

43Rule 4-1.1, Florida Rules of Professional Conduct. See also ABA Model Rules of Professional Conduct,
Rule 1.1 Competence—Comment, Para. (8) found at http://bit.ly/NZsya6.
44 Electronically stored information, “ESI,” is the nomenclature adopted in the Florida and federal rules to
refer to computer files of all kinds. See FLA. R. CIV. P. 1.280(b)(3); Rule 34, Federal Rules of Civil
Procedure. The term ESI is not defined in the Florida and federal rules on purpose because of the ever-
changing nature of such information. The Comments to the Federal Rules explain that the term ESI should
10
economical, efficient, and balanced e-discovery requests and production. It is incumbent
on lawyers and judges to become and remain competent on ESI fundamentals and
discovery. Staying current entails having up-to-date knowledge about how digital
information is created, used, managed, stored, communicated, and manipulated. New
technology and information cultures are rapidly evolving. Small personal computer
devices such as digital phones watches and hundreds of “apps” are linked to cloud
storage locations where information may reside indefinitely. Social media locations
maintain more data loaded accounts than the most populous nations combined. Similarly,
everyday routine appliances and systems -- such as online security systems and the
electronic systems on automobiles and machinery record – constantly store and transmit
data. Such data which is generically referred to as the “Internet of Things” is a rich source
of evidence. The volume of potentially relevant electronic evidence continues to increase
exponentially.
LAW, POLICY, AND PRINCIPLES OF ELECTRONIC DISCOVERY
The complexity in application of discovery rules and policies to ESI is creating a
burgeoning body of federal common law. 45 Florida e-discovery case law is currently
limited, but useful. 46 Most importantly, current Florida civil procedure rules for e-discovery
be construed expansively “to cover all current types of computer-based information, and flexible enough to
encompass future changes and developments.”
45 This chapter focuses on Florida state court e-discovery. Discussion of federal law herein is undertaken
only because of the availability of federal law for guidance in state court cases and is not intended to provide
practitioners with a manual for discovery in federal court cases. See supra note 44.
46 See e.g., Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015) (no expectation of privacy in photos
posted on Facebook regardless of privacy settings used by producing party); Root v. Balfour Beatty Constr.,
LLC, 132 So 3d 867 (Fla. 2d DCA 2014) (privacy interest in Facebook postings upheld against overbroad
request); Antico v. Sindt Trucking, Inc.,148 So. 3d 163 (Fla. 1st DCA 2014) (access to decedent’s iPhone
granted to determine whether she was texting during automobile accident in which she was killed); E.I.
11
were developed by selecting the best of the federal rules and distilling Florida common
law authority into practical and balanced rules appropriate for the wide array of types and
size of cases in Florida state courts that apply the civil rules. 47 The rules provide a useful
framework for anticipating and addressing prominent e-discovery issues. Based on the
similarity between Florida and federal rules, Florida trial courts are likely to refer to federal
courts and the extensive body of case law in the federal system 48 as well as cases arising
in states with rules similar to Florida and federal rules. State court judges are also likely
to be influenced by the publications of The Sedona Conference®, 49 a private research
group of lawyers, judges and e-discovery vendors dedicated to the development of
DuPont De Nemours & Co. v. Sidran, 140 So. 3d 620, 650 (Fla. 3d DCA 2014) (sanctions not appropriate
for fraud on the court in the manner in which ESI was collected and stored by defendant for discovery in
multiple suits); Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012), rev. den., 109 So.
3d 781 (Fla. 2013) (preservation obligations before case is filed are explained in this case); Holland v.
Barfield, 35 So. 3d 2010 Fla. App. LEXIS 6293; 35 Fla. L. Weekly D 1018 (Fla. 5th DCA May 7, 2010) (order
granting opposing expert in wrongful death case unrestricted access to review petitioner’s hard drive and
SIM card quashed as violative of privacy); Menke v. Broward Cty. Sch. Bd., 916 So. 2d 8 (4th DCA 2005)
(establishing basis and limits on access to opposing party’s hardware in order to search for discoverable
information); Strasser II: Strasser v. Yalamanchi, 783 So. 2d 1087 (Fla. 4th DCA 2001) (spoliation of
electronic records); Strasser I: Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996) (designating
Florida procedural rules giving rise to discovery of ESI and the equipment that holds them and setting limits
on scope of such discovery); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., No. 03-5045 AI,
2005 WL 674885 (Fla. Cir. Ct. Mar. 23 2005) (one of the best known e- discovery opinions in the country,
primarily because the sanctions for ESI spoliation resulted in a default judgment for $1.5 Billion. The
judgment was reversed on other grounds). For a more expansive discussion of Florida case law, see
Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, Ch. 2 Governing Law
in Electronic Discovery (2018).
47 See In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, 95 So. 3d 76 (Fla.
2012).
48 See the following Federal Rules of Civil Procedure and accompanying rule commentary pertaining to the
2015 amendment: Rule 16(b), 26(a)(1)(B), 26(b)(2)(B), 26(f), 26(b)(5), 33, 34, 37(f) and 45. See also the
large and rapidly growing body of opinions by United States Magistrate Judges and District Court Judges
in Florida and elsewhere around the country. Federal law is far more developed than Florida e-discovery
law and provides useful guidance for lawyers and judges. That is not likely to change because Florida trial
court decisions are seldom published.
49 The Sedona Conference® publications are all available online without charge for individual use. See
https://thesedonaconference.org/. Judges have exclusive access to special judicial resources developed
by The Sedona Conference® which are based on the aforementioned Sedona Principles and writings but
tailored to the judicial perspective. Accordingly, lawyers who use, conform to, and cite pertinent materials
from The Sedona Conference® will hopefully find judges enlightened on relevant policies and principles
referenced infra notes 50-56.
12
standards and best practices in this evolving field of law and policy. The Sedona
Conference® writings have been widely cited in the federal courts, especially its Sedona
Principles, 50 and Cooperation Proclamation. 51 Also especially helpful are its Glossary 52
of e-discovery related terms, and its commentaries on Search and Retrieval Methods, 53
Achieving Quality, 54 and Litigation Holds, 55 and its Primer on Social Media. 56 Many
excellent text and trade publications, including free online resources, are also available.57
Florida Civil Procedure Rules and Judicial Administration Rules now expressly
address issues raised by the use of digital technology in Florida Courts 58 and discovery
of ESI. 59 Effective September 1, 2012, the Florida Supreme Court adopted several
amendments to the Florida Rules of Civil Procedure 60 largely modeled on the 2006
Amendments to the Federal Rules of Civil Procedure. 61 Compatibility with federal rules
50 https://thesedonaconference.org/publication/The_Sedona_Principles
51 See “The Sedona Conference® Cooperation Proclamation,” 10 Sedona Conf. J. 331 (2009 Supp.).
52 https://thesedonaconference.org/publication/The_Sedona_Conference_Glossary
53 https://thesedonaconference.org/publication/Commentary_on_Search_and_Retrieval_Methods
54https://thesedonaconference.org/publication/Commentary_on_Achieving_Quality_in_the_E-
Discovery_Process
55 https://thesedonaconference.org/search/node/%22legal%20holds%22
56 https://thesedonaconference.org/publication/Primer_on_Social_Media
57 See e.g., Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, Ch. 2
Governing Law in Electronic Discovery (2018) updated annually and available from LexisNexis and from
The Florida Bar; and Ralph Losey’s weekly blog: e-Discovery Team found at http://www.e-
discoveryteam.com
58 Id.
59 See In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, 95 So. 3d 76 (Fla.
2012). See also Fla. R. Civ. P. 1.285 (inadvertent disclosure of privileged material). In addition, Florida’s
9th, 11th, 13th, and 17th Circuits have business or commercial litigation sections with special local
administrative rules and processes for more complicated cases. These local rules include special handling
of electronically stored information. Refer to local rules and comply with all requirements when handling
cases assigned to a special commercial or business court.
60 Id.
FED. R. CIV. P. 16, 26, 33, 34, 37 and 45. The Federal Rules of Civil Procedure were amended, effective
61
December 1, 2015.
13
enables Florida courts to use federal decisions on electronic discovery as persuasive
authority 62 and ensures harmony of e-discovery law between cases in Florida state courts
and cases in federal courts and other states. The Florida electronic discovery rules
contain adjustments from their federal counterparts that arguably make the rules better
suited to the broader range of state court cases. A chart comparing the Florida electronic
rules and the federal rules is attached to this chapter as Appendix A.
There are many good reasons for specialized rules for ESI discovery. ESI is
ephemeral; sometimes easily hidden, mislabeled, or destroyed; available from multiple
sources in a variety of forms; capable of electronic search, analysis and compilation;
sometimes accompanied by information or availability not apparent to the creator or user,
such as metadata; and frequently misunderstood by persons lacking in expertise.
ESI also exists in incredibly large quantities. One thousand gigabyte (the
equivalent of one terabyte) computer hard-drives are now standard issue on many
computers. A single gigabyte of text-based information is equivalent to thirty bankers
boxes filled with paper or the amount of paper that would fill the bed of a pickup truck.
Many people today receive hundreds of e-mails and text messages a day and they may
store them indefinitely in a variety of locations, some of which may be unknown to them.
It is not uncommon in business today for management personnel to each keep hundreds
of thousands of emails and attachments. Large enterprises commonly store trillions of
emails and attachments, and in many cases may have to search through millions of
emails to try to locate relevant evidence.
62Federal courts have generated copious numbers of cases under the federal e-discovery rules since 2007,
because federal district judges and magistrates regularly enter published discovery opinions and orders,
which creates a body of useful written law that is largely absent in Florida state court.
14
There are often accessibility problems for some of the ESI stored, including backup
systems. The places on which ESI can be stored or located are manifold and ever
changing and include the over one-trillion websites that now exist on the Internet. ESI is
easier and cheaper to search and to produce in electronic form than the same quantity of
paper documents, but it is often much more difficult to locate and retrieve all relevant ESI
because of the high volume of total ESI maintained on a multiplicity of systems.
The cost and difficulty of ESI production is compounded by the need to review the
production for privilege, privacy, and trade secrets 63 before it is disclosed. Today it is far
more difficult and expensive to access, search, categorize, compile, and produce relevant
ESI than in traditional paper productions when a modest number of documents were
organized in centralized locations.
Issues related to the spiraling cost issues of e-discovery contribute to the special
treatment for ESI provided in the new rules and case law. Florida rules expressly provide
that ESI is discoverable, 64 but they also require proportionality of expense. 65 Florida
63 See Fla. Stat. §§ 90.56 (Trade Secret Privilege); 688.001 et. seq. (Uniform Trade Secrets Act). In Arko
Plumbing Corp. v. Rudd, 230 So. 3d 520 (Fla. 3d DCA 2017), the Third DCA held that trade secret protection
applied for requested vehicle ESI where a GPS tracking device on a plumbing company's trucks used a
MotoMon program linked up to the GPS tracking devices and also captured in real time the customers and
potential customers that the company's trucks visited to provide plumbing services. To determine whether
information is protected as trade secret, a trial court generally must follow a three-step process: (1)
determine whether the requested production constitutes a trade secret; (2) if the requested production
constitutes a trade secret, determine whether there is a reasonable necessity for production; and (3) if
production is ordered, the trial court must set forth its findings. See Niagara Indus. v. Giaquinto Elec. LLC,
238 So. 3d 840 (Fla. 4th DCA 2018) (if the court concludes documents are trade secrets, the burden shifts
to the requesting party to show that the disclosure is reasonably necessary).
64FLA. R. CIV. P. 1.280(b)(3) (“A party may obtain discovery of electronically stored information in
accordance with these rules.”).
65 FLA. R. CIV. P. 1.280(d)(2)(ii) (“the court must limit the frequency or extent of discovery otherwise allowed
by these rules if it determines that . . . the burden or expense of the discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the discovery in resolving the issues.”). In addition to
FLA. R. CIV. P. 1.280(d)(2)(ii) involving ESI, proportionality in discovery is alive and well as a matter of
Florida common law. See Worley v. Cent. Fla. Young Men's Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017)
15
rules help maintain cost proportionality by providing an express framework for dealing
with issues of preservation, production, and protection for hard-to-find and retrieve ESI
and the media, equipment, and third-party Internet “cloud” storage websites that hold
ESI. 66 A person may object to discovery of electronically stored information from sources
that the person identifies as not reasonably accessible because of burden or cost. The
person from whom discovery is sought has the initial burden of showing that the
information sought or the format requested is not reasonably accessible because of
undue burden or cost. If that showing is made by specific evidence, the court may
nonetheless order the discovery upon a showing of good cause. The court may specify
conditions of the discovery, including ordering that some or all of the expenses incurred
by the person from whom discovery is sought be paid by the party seeking the
discovery. 67
In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), the court set
forth an analytical framework for determining whether it is appropriate to shift the costs of
electronic discovery. If the responding party is producing data from “inaccessible”
sources, i.e. data that is not readily useable and must be restored to an accessible format,
the court identified seven factors to be considered in determining whether shifting the cost
of production is appropriate. 68 The current Rule 26(b) of the Federal Rules of Civil
Procedure takes Zubulake a step further by requiring all discovery, even from locations
(200 hours and over $90,000 in costs to discover the collateral issue of bias in a case where the damages
sought total $66,000 is unduly burdensome).
66 FLA. R. CIV. P. 1.280(d)(2)(ii).
67 Id.
68 Zubulake, 217 F.R.D. at 322; F.D.I.C. v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013) (requesting
defendants ordered to pay part of the ESI discovery fees for its 94 separate production requests based on
inaccessibility after analyzing Zubulake factors).
16
that are reasonably accessible to be bounded by proportionality.
The scope of discovery may also be limited by the producing party or person’s
privacy rights, as when the relevance or need for the information requested does not
exceed the privacy interests of the person or party from whom it is sought. 69
Florida rules also provide additional protection for inadvertently produced
confidential and privileged information. 70 Rule 1.285, Florida Rules of Civil Procedure,
establishes a process by which a party, person, or entity may retroactively assert privilege
as to inadvertently disclosed materials, regardless of whether the inadvertent disclosure
was made pursuant to “formal demand or informal request.” 71 The privilege must be
asserted within ten days of actual discovery of the inadvertent disclosure by serving a
prescribed written notice of the assertion of privilege on the party to whom the materials
were disclosed. 72 A party receiving notice under Rule 1.285(a) must promptly (1) return,
sequester, or destroy the materials and any copies of the materials, (2) notify any other
party, person, or entity to whom it has disclosed the materials of the fact that the notice
has been served and of the effect of the rule, and (3) take reasonable steps to retrieve
69 Compare Root v. Balfour Beatty Constr., LLC, 132 So. 3d 867,869 (Fla. 2d DCA 2014) (order compelling
the production of social media discovery that implicates privacy rights demonstrates irreparable harm), with
Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015) (photographs posted on a social networking site
are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user
may have established).
70 FLA. R. CIV. P. 1.285.
71 FLA. R. CIV. P. 1.285(a).
72 Id. The notice must include specifics on the materials in question, the nature of the privilege asserted,
and the date on which inadvertent disclosure was discovered. The process applies to any privilege
cognizable at law, including the attorney-client, work product, and the several other types of privileges
recognized in the Florida Evidence Code. See Fla. Stat. §§ 90.501–90.510 (journalist, lawyer-client,
psychotherapist-patient, sexual assault counselor-victim, domestic violence advocate-victim, husband-wife,
clergy, accountant-client, and trade secret privileges). Id.
17
the materials disclosed. 73 Rule 1.285 prescribes the manner in which a receiving party
may challenge the assertion of privilege 74 and the effect of a court determination that
privilege applies. 75
Because ESI and the modern computer devices and storage locations that create,
hold, communicate, or manipulate ESI are complex and constantly evolving, sometimes
expert assistance is needed to search and prepare ESI for production. Such expert
assistance may involve legal as well as technical issues and tasks. The parties and court
should consider the appointment of special masters or third-party neutral experts in
appropriate cases.
The developing principles for electronic discovery and the Committee Notes to the
Florida Rules of Civil Procedure encourage cooperation and transparency by the parties
during meetings between counsel early in a case to try to agree on the scope of
preservation and discovery and methods of production. 76 Counsel are encouraged to
bring any areas of disagreement to the court for resolution early in a case. These issues
may also be addressed in a Rule 1.200 or Rule 1.201 case management conference.77
Specific mention of case management for electronically stored information is found in
Rule 1.200 78 and in Rule 1.201 for cases that are declared complex. 79 In resolving these
73FLA. R. CIV. P. 1.285(b). Nothing in Rule 1.285 diminishes or limits any ethical obligation with regard to
receipt of privileged materials pursuant to Fla. R. Prof. Conduct 4-4.4(b). Id.
74 FLA. R. CIV. P. 1.285(c).
75 FLA. R. CIV. P. 1.285(d).
76 See FLA. R. CIV. P. 1.280, 2012 Committee Notes (“The parties should consider conferring with one
another at the earliest practical opportunity to discuss the reasonable scope of preservation and production
of electronically stored information.”).
77 See FLA. R. CIV. P. 1.280, 2012 Committee Notes.
78 FLA. R. CIV. P. 1.200(a)(5)-(7).
79 FLA. R. CIV. P. 1.201(b)(1)(J).
18
disputes courts must balance the need for legitimate discovery with principles of
proportionality and the just, speedy and efficient resolution of the case. 80
PROTECTING CLIENT CONFIDENCES AND DATA

One of the foremost challenges in this complex data environment is the protection
of the client’s confidential information, included personal protected information and
privileged communications. Counsel must ensure that client information is protected and
is disclosed only to the extent required by law or reasonably necessary to serve the
client’s interest. 81 Court recordkeeping and filing is now done in electronic format in
Florida courts. This makes unfettered third party electronic access to court records,
including client information in the record, far easier than ever before. Accordingly,
counsel should only put in the record that which is required or reasonably necessary to
serve the client’s interest. If necessary, counsel should invoke the process of sealing
private or sensitive information before the record becomes available as a public record. 82
In anticipation of electronic recordkeeping and the need for protection of privacy interests
of parties and non-parties, the Florida Supreme Court enacted rules requiring lawyers to
analyze and screen information for certain confidential information before it is placed in
the court record. 83 The scope of data requiring protection expands frequently. 84 At a
80 FLA. R. CIV. P. 1.010; 1.280(d).

81 Rule 4-1.6, Florida Rules of Professional Conduct. See also Fla. Prof. Ethics Op. 10-2 (obligation of
lawyers with regard to confidentiality of client information when employing devices with hard drives and
other media); 06-2 (responsibility for confidentiality and other obligations regarding metadata).
82 FLA. R. JUD. ADMIN. 2.420.
83 FLA. R. CIV. P. 1.280(g); 1.310(f)(3); 1.340(e); 1.350(d); and Fla. R. Jud. Admin. 2.420; 2.425.
84 See e.g., In re Amendments to Fla. Rule of Judicial Admin. 2.420 - 2017 Fast-Track Report, 233 So. 3d
1022 (Fla. 2018); FLA. R. JUD. ADMIN. 2.420 (Public Access to and Protection of Judicial Branch Records).
FLA. R. JUD. ADMIN. 2.420 was reorganized effective Sept. 21, 2006 (939 So. 2d 966) and amended effective
Apr. 5, 2007 (954 So. 2d 16); Mar. 18, 2010 (31 So. 3d 756). Subsection 2.420(d) now contains twenty-
19
minimum, pursuant to Rule 1.280(g), information should not be filed with the court absent
good cause, which is satisfied only when the filing of the information is allowed or required
by another applicable rule of procedure or by court order. 85
The lawyer is obligated to know enough about the client’s computer systems and
the locations of potentially relevant ESI to fully comply with discovery obligations. The
client should also be fully informed of and guided in the process of preserving relevant
information. At the same time, the client’s business processes and handling of data
should be protected from unnecessary intrusion by perceived but unwarranted court-
related obligations.
DUTIES OF ATTORNEY AND CLIENT REGARDING PRESERVATION OF ESI
Electronically stored information is by its very nature ephemeral and easily
transportable. Relevant ESI is easily lost, altered, destroyed, or hidden. Therefore, steps
need to be taken to ensure its preservation. The duty to preserve mar arise for those who
possess or control evidence and those who seek to use it in litigation. 86 For counsel
advising clients on preservation duty, it makes sense to advise the client to preserve
two protected information categories which counsel and the clerk must designate and keep confidential
when putting information in the court record. Subsection (d) alone was amended Oct. 1, 2010; July 7, 2011
(31 So. 3d 756); May 1, 2013 (SC11-2466); Dec. 18, 2014 (SC14-569); Jan. 22, 2015 (SC14-2434); and
Jan. 1, 2018 (SC17-2053). See Fla. R. Jud. Admin. 2.420 (History). See also FLA. R. CIV. P. 1.280(g); FLA.
R. JUD. ADMIN. 2.425.
85 FLA. R. CIV. P. 1.280(g) provides: “Information obtained during discovery shall not be filed with the court
until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing
of the information is allowed or required by another applicable rule of procedure or by court order. All filings
of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall
have authority to impose sanctions for violation of this rule.”
86Loss of evidence can be devastating to the party whose case would benefit from lost evidence; but a
person or party holding relevant evidence may likewise suffer through sanctions if the evidence is lost or
destroyed.
20
potentially relevant evidence as soon as there is a reasonable chance a lawsuit will ensue.
A finding of spoliation against client or counsel is indeed a serious outcome and may have
ramifications beyond the case at issue.
A common e-discovery issue for parties and counsel is the “scope” of evidence
that must be preserved. Virtually all cases involve decision-making on the time frame for
preservation, the substantive content which determines whether documents are relevant,
and the breadth of places in which relevant evidence may be found. In large cases, parties
may delineate preservation by persons who are likely to have relevant information.
Persons likely to have access to relevant ESI are often called “custodians” by virtue of
the ESI being located their email account, text message account, etc.
The very breadth of reasonably required preservation may raise issues of burden
and cost. However, in applying proportionality to limit discovery duties, counsel must be
careful to distinguish between scope of preservation versus scope of production.
Preservation occurs at a point in time in which potential issues may not be crystallized
and the relevance of certain documents may be fuzzy or indeterminable. Counsel and
parties should usually err on the side of preservation, at least until the relevance picture
sufficiently clarified to safely determine non-relevant information. While some federal
cases have expressed the principle that scope of preservation efforts may be guided by
reasonableness and proportionality, 87 other federal courts disagree. 88 In any event,
87See e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010); Rimkus Consulting
Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010) (“Whether preservation or discovery
conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what
was done--or not done--was proportional to that case and consistent with clearly established applicable
standards”).
88Orbit One Commc’ns, Inc. v. Ronsen, 271 F.R.D. 429 (S.D.N.Y. 2010) (“Although some cases have
suggested that the definition of what must be preserved should be guided by principles of "reasonableness
and proportionality," [citations to Victor Stanley and Rimkus omitted], this standard may prove too
21
counsel should advise a client to put a litigation hold in place and undertake reasonable
efforts to identify and preserve evidence that is relevant by discovery standards. 89
As for counsel’s duties with regard to preservation of evidence, the seminal federal
case was written by Manhattan District Court Judge, Shira Scheindlin. It is actually a
series of opinions written in the same case, collectively known as Zubulake, after the
plaintiff, Laura Zubulake. There are four key opinions in this series. 90 These decisions
are widely known by both federal and state judges and practitioners around the country.
Judge Scheindlin’s last opinion, Zubulake V, has had the greatest impact upon
federal courts and is also starting to have an impact on state courts, including Florida. In
Zubulake V, Judge Scheindlin held that outside legal counsel has a duty to make certain
that their client’s ESI is identified and placed on hold. This new attorney duty arises
because of the unusual nature and characteristics of ESI and information technology
systems in which ESI is stored. Unlike paper documents, ESI can be easily modified or
deleted, both intentionally and unintentionally. In many IT systems, especially those
employed by medium to large size enterprises, ESI is automatically and routinely deleted
and purged from the IT systems. Special actions must be taken by the client with such IT
systems to suspend these normal ESI deletion procedures when litigation is reasonably
anticipated.
amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may
recycle.”).
89 Information on preservation advice and litigation holds in Florida state court litigation is found in Ch. 5,
Initial Procedures in EDiscovery and Preservation of Evidence in Florida State Court, Artigliere & Hamilton,
LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic
Discovery (2018).
90Zubulake v UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III); Zubulake v. UBS Warburg
LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV); and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422
(S.D.N.Y. 2004) (Zubulake V).
22
Here are the words of Judge Scheindlin in Zubulake V that have frequently been
relied upon to sanction attorneys who either unwittingly, or sometimes on purpose, failed
to take any affirmative steps to advise and supervise their clients to stop the automatic
destruction of ESI:
Counsel must become fully familiar with their client’s

documents retention policies as well as the client’s data
retention architecture. This will invariably involve speaking
with information technology personnel, who can explain
system wide back up procedures in the actual (as opposed to
theoretical) implementation of the firm’s recycling policy it will
also involve communicating with the key players in the
litigation, in order to understand how they store information. 91
Of course, a party to litigation may have a duty to preserve evidence in various
forms, paper or ESI, and the bad faith failure to do so may constitute actionable spoliation.
This is nothing new. 92 But the extension of this duty to the litigants’ outside legal counsel
in Zubulake V, which is sometimes called the “Zubulake Duty,” is fairly new and
controversial. 93 Although the “Zubulake Duty” has been accepted by many federal judges
in Florida and elsewhere, it is unknown whether Florida state court judges will also impose
such a duty upon attorneys. However, in view of the popularity in the federal system of
placing this burden on the counsel of record, a prudent state court practitioner should also
assume that they have such a duty. 94 Outside legal counsel should be proactive in
91 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).

92See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005); Golden Yachts, Inc. v. Hall, 920 So.
2d 777, 781 (Fla. 4th DCA 2006).
93 See Metro. Opera Ass’n Inc. v. Local 100, Hotel Emps. and Rest. Emps. Int’l Union, 212 F.R.D. 178, 218-
219 (S.D.N.Y. 2003); but see Thomas Allman, DETERRING E-DISCOVERY MISCONDUCT BY COUNSEL
SANCTIONS: THE UNINTENDED CONSEQUENCES OF QUALCOMM V. BROADCOM, 118 Yale L.J. Pocket Part 161
(2009).
94 Like their federal counterparts, Florida judges have statutory, rule-based, and inherent authority to
sanction parties and their counsel for discovery violations and for spoliation. Judges are taught to seek out
the source of the problem and administer a measured sanction that remedies the wrong committed. If the
party is not the culprit, it makes little sense to administer the sanction against an innocent participant. See
23
communicating with their client and otherwise taking steps to see to it that the client
institutes an effective litigation hold. Obviously, Judge Scheindlin does not intend to
convert attorneys into guarantors of their client’s conduct. She also notes in Zubulake V
that if attorneys are diligent, and they properly investigate and communicate, they should
not be held responsible for their client’s failures:
A lawyer cannot be obliged to monitor her client like a parent

watching a child. At some point, the client must bear
responsibility for a failure to preserve. 95
However, counsel is obligated to have sufficient knowledge of client’s IT systems to allow
counsel to competently supervise the client’s evidence preservation efforts, or lacking
such knowledge and competence, should retain experts who do.
The duty to preserve of client and counsel may require a corporate client in certain
circumstances to provide a written litigation hold notice to its employees who may be
involved in the lawsuit, or who may otherwise have custody or control of computers and
other ESI storage devices with information relevant to the lawsuit. The notice should
instruct them not to alter or destroy such ESI. The potential witnesses to the case should
be instructed to construe their duty to preserve ESI broadly and reminded that the ESI
may be located in many different computers and ESI storage systems, including for
instance, desktop computers, laptops, server storage, CDs, DVDs, flash drives, home
computers, iPods, iPads, iPhones, blackberries, Internet storage webs (cloud computing),
social media accounts, Internet e-mail accounts, voice mail, etc. The client’s IT
Ham v. Dunmire, 891 So. 2d 492, (Fla. 2004) (dismissal based solely on an attorney's neglect in a manner
that unduly punishes a litigant espouses a policy that the Supreme Court of Florida does not wish to
promote). Florida courts are not averse to applying appropriate sanctions to counsel. Id. at 498 (a trial
court "unquestionably has power to discipline counsel" for discovery violations).
95 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).
24
department or outside company should also be notified and instructed to modify certain
auto-deletion features of the IT system that could otherwise delete potentially relevant
evidence. In some cases, it may also be necessary to preserve backup tapes, but this is
generally not required, especially if the relevant information on the tapes is likely just
duplicative. 96
There should be reasonable follow-up to the written notice, including conferences
with the key players and IT personnel.
In 2010, Judge Scheindlin wrote another opinion on the subject of litigation holds
and ESI spoliation that she refers to as a sequel to Zubulake. 97 Pension Committee
provides further guidance to federal and state courts on preservation issues, and the
related issues of sanctions. Judge Scheindlin held that the following failures constitute
gross negligence and thus should often result in sanctions of some kind:
After a discovery duty is well established, the failure to adhere

to contemporary standards can be considered gross
negligence. Thus, after the final relevant Zubulake opinion in
July, 2004, the following failures support a finding of gross
negligence, when the duty to preserve has attached: to issue
a written litigation hold, to identify the key players and to
ensure that their electronic and paper records are preserved,
to cease the deletion of email or to preserve the records of
former employees that are in a party’s possession, custody,
or control, and to preserve backup tapes when they are the
sole source of relevant information or when they relate to key
players, if the relevant information maintained by those
players is not obtainable from readily accessible sources.
Judge Scheindlin goes on to hold that “parties need to anticipate and undertake
document preservation with the most serious and thorough care, if for no other reason
96 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003); see also FED. R. CIV. P. 37(e).
97 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., 685 F. Supp. 2d 456
(S.D.N.Y. 2010).
25
than to avoid the detour of sanctions.” 98 Counsel should document their efforts to prove
reasonableness in the event mistakes are made and relevant ESI deleted, despite best
efforts. In any large ESI preservation, collection and production, some errors are
inevitable, and Judge Scheindlin notes this on several occasions in Pension Committee,
including the opening paragraph where she observes:
In an era where vast amounts of electronic information is

available for review, discovery in certain cases has become
increasingly complex and expensive. Courts cannot and do
not expect that any party can meet a standard of perfection.
This is an important point to remember. The volume and complexity of ESI makes
perfection impossible and mistakes commonplace. All that Judge Scheindlin and other
jurors and scholars in this field expect from the parties to litigation and their attorneys are
good faith, diligent, and reasonable efforts
The opinion of Judge Scheindlin in Zubulake V and the Pension Committee cases
provide a road map to practitioners on what needs to be done in order to preserve ESI
from destruction, either intentional or accidental, and so avoid sanctions for spoliation.
These and hundreds of other cases like it in the federal system are quite likely to be
referred to and cited in state court proceedings. Although none of these federal cases
are binding upon state court system, many judges find them persuasive, and the federal
cases will often at least provide a starting point for further argument.
98 Id.
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FLORIDA’S “SAFE HARBOR” PROVISION
Many organizations have standard policies and procedures by which outdated and
unnecessary electronically stored information is routinely deleted for purposes of
economy, efficiency, security, or other valid business or organizational purposes. Florida
followed the lead of the federal rules99 by adopting a safe harbor provision to clarify that
a party should not be sanctioned for the loss of electronic evidence due to the routine,
good-faith operation of an electronic information system. 100 The existence of a “good
faith” component prevents a party from exploiting the routine operation of an information
system to thwart discovery obligations by allowing that operation to destroy information
that party is required to preserve or produce. In determining good faith, the court may
consider any steps taken by the party to comply with court orders, party agreements, or
requests to preserve such information. 101 In general, Florida’s safe harbor provision
would not shield a party from that allows or conducts routine destruction of evidence after
a duty to preserve relevant evidence has been triggered.
CONFERRING WITH OPPOSING COUNSEL
Counsel are well advised to speak with each other at the commencement of the
case concerning which metadata fields are desired by the requesting party and the
99 FED. R. CIV. P. 37(e) (2006). The federal rule has been amended, effective December 1, 2015, replacing
the safe harbor provision with a two-tiered approach to determining whether sanctions should be awarded
for ESI preservation failures. However, the concept of routine, good faith operation of an electronic
information system remains in federal practice as a common law basis for explaining loss of data that is not
negligent or intentional spoliation, absent a duty to preserve.
100 FLA. R. CIV. P. 1.380(e).
101 FLA. R. CIV. P. 1.380 Committee Notes, 2012 Amendment.
27
proposed preservation, culling, search methods, and format of production. 102 Counsel
should also discuss confidentiality concerns and attempt to reach agreement on these
issues, as well as the related issues concerning the consequences of the inadvertent
disclosure of privileged information. It is now common in the federal system for parties to
enter into “clawback” agreements protecting both sides from waiver from unintentional
disclosure. 103 Florida now has an inadvertent disclosure rule, Rule 1.285, Florida Rules
of Civil Procedure (Inadvertent Disclosure of Privileged Materials). Clawback agreements
notwithstanding the Florida Rule are advisable and should be encouraged by courts and
strengthened by court order. Since these agreements and protections are completely
reciprocal, it is difficult to foresee legitimate grounds for opposition to this important safety
net. 104
Some judges require a meet and confer in cases that would benefit from discovery
case management. See Appendix 3.3, FIFTEENTH JUDICIAL CIRCUIT STANDING
ORDER ON ELECTRONICALLY STORED INFORMATION DISCOVERY. Of course, the
parties can case manage their own electronic discovery by stipulation. Appendix 3.4 has
a detailed stipulation available to the Business Section of The Florida Bar on its website.
The stipulation can and should be tailored to a given case and provides an excellent and
broad range of issues for discussion between parties through counsel, preferably with the
assistance of experts or IT personnel if available and merited.
102 See FED. R. CIV. P. 34(b)(2), governing form of production. This essentially requires production of ESI
in its original native format, or in another “reasonably useable” format, at the producer’s choice, unless the
request specifies the form.
103 See FED. R. CIV. P. 26(b)(5)(B), FED. R. EVID. 502.
104FED. R. EVID. 502 orders, properly drafted, are enforceable in other courts, including state court.
Clawback agreements in state court, even if entered in the form of a court order, generally do not have
universal authority and application.
28
KEY WORD SEARCH, RELEVANCY AND SCOPE OF DISCOVERY
Often, when text searches are run, the use of key words only determines
potentially relevant documents or files. The fact that a document or file contains a keyword
does not in and of itself make it discoverable.
Example: Party A in a commercial case seeks discovery of all emails in the
possession or control of Party B that relate to the same transaction that is at issue or
similar transactions for the previous five years. Two key words selected by Party A are
the word “cobalt” and the name “Prosser.” Party B is willing to run those key words and
then select and produce discoverable, non-privileged documents. Party A contends that
it is entitled to receive all emails containing “cobalt” or “Prosser.” Is Party A entitled to the
discovery of all the emails identified in the word search using these terms?
Answer: NO. Relevancy is determined by examination of the document itself.
The words used in a search, even if they are agreed upon by the parties as appropriate
search terms, are but a tool to identify potentially relevant documents. Relevancy is
determined by legal analysis of whether the document is (1) relevant to the case's subject
matter, and (2) admissible in court or reasonably calculated to lead to evidence that is
admissible in court. 105 Documents that turn up in a word search may or may not meet
these criteria, and Party B is only obligated to produce discoverable documents. The
analog equivalent to the demand made by party A is to request a search of all file folders
with the words “Cobalt” and “Prosser” on the file labels and then contend that all paper
within those folders is discoverable. The determination of relevancy is made by
examination of the document itself, not normally by the wording of the label on the folder
105 FLA. R. CIV. P. 1.280(b)(1); Root v. Balfour Beatty Constr., LLC, 132 So 3d 867 (Fla. 2d DCA 2014).
29
in which the document is found.
While not a perfect solution, and currently not the most sophisticated search
methodology available, 106 keyword or Boolean searches can be extremely helpful in ESI
discovery. When keywords are used, they should be carefully tested in advance to
evaluate efficacy and multiple refinements should be considered, typically Boolean logic
combinations (and, or, but not, within a certain number of words, etc.) and parametric
limitations (keywords in specific fields of a document, as opposed to anywhere).
However, asking the judge to determine the search terms is not a good solution. Judges
are not information retrieval experts. Parties should confer with each other as well as the
clients and experts to determine acceptable parameters for search that will effectively
narrow the universe of ESI to manageable levels.
Notwithstanding the best efforts, keyword search is limited by the complexity and
ambiguity of natural language. Different words mean the same thing (synonymy); the
same word may mean different things (polysemy), and words may have special coded
meaning. Keyword searches often fail to identify relevant documents (this is called poor
“recall”) or identify documents that are not relevant (called poor “precision”). Recall and
precision are unfortunately at odds: the more precise (or tailored) the search the more
likely relevant documents will be missed; on the other hand, the broader the keywords
the more likely that non-relevant information will be identified.
The solution to this keyword search recall-precision paradox is to identify relevant
documents and then to search for documents that resemble the documents that have
been previously identified as relevant. The software predicts what documents are
30
relevant based on the previously identified relevant documents. This new search
technology is known in the legal industry as “predictive coding” or “technology assisted
review.” The predictive coding software also ranks or scores the relevance of the
documents in the collection. Counsel can thus quickly locate what are likely the most
important documents in the collection. These documents can be reviewed first. Ranking
relevance is especially helpful in establishing proportionality boundaries. In some cases,
predictive coding can identify 80% of the relevant documents by reviewing only 20% of
the ranked collection. Perhaps reviewing only 80% of the potentially relevant documents
is all the cost the case can reasonably bear. The remaining 20% of the documents are
ranked as not highly relevant and perhaps not worth reviewing.
The predictive coding algorithms will continue to improve; the costs of e-discovery
will continue to rise because of the volume of information; and the cost of the predictive
coding will continue to decline under competitive pressures in the software market. The
result is that increasingly counsel managing e-discovery will deploy predictive coding and
technology assisted review in all sized cases. 107
COLLECTION AND REVIEW OF ESI
After counsel and litigants are satisfied the ESI has been preserved from
destruction, and often as part of those efforts, the potentially relevant ESI should then be
carefully collected. This requires copying of the computer files in a manner that does not
alter or delete relevant information, which typically includes the file metadata and
information associated with the ESI (such as file name and file path). Self-collection by
107 Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, § 9.14[3] (2018).
31
the custodians themselves may be a dangerous practice in some circumstances due to
their technical limitations and increased risk of accidental or intentional deletion of
electronic evidence. 108
Custodians are, for instance, quite likely to unintentionally change a computer file’s
metadata. Simply opening or copying a file will usually change many metadata fields.
These altered metadata fields may prove of importance to the case. Custodians are also
likely to have a wrong understanding of what documents might be relevant for discovery
purposes, typically adopting an over-narrow construction or otherwise not understanding
the meaning of legal relevance.
After collection, the ESI is typically processed to eliminate redundant duplicates
and meaningless words, such as “a”, “the,” “to,” and to prepare the ESI for search and
viewing. Processing may be thought of as creating a searchable index of all the words in
the document collection. Full horizontal deduplication across all custodians is now
typically used. The ESI is then searched for relevancy, and the subset of potentially
relevant ESI is then reviewed for final relevancy, privilege, and confidentiality. A small
percentage of produced documents are redacted to eliminate from viewing privileged or
confidential information. Only after this review is production made to the requesting party.
All document productions should undergo a “quality control check” and statistical
sampling to make reasonable assurances privileged or non-responsive documents are
not being produced.
Nat’l Day Laborer Organizing Network v. United States Immigration and Customs Enf’t Agency, 877 F.
108
Supp. 2d 87 (S.D.N.Y. 2012) (Scheindlin, J.).
32
FRAMEWORK FOR THE TRIAL LAWYER FACING E-DISCOVERY
1. Familiarize yourself as early in the case as possible with the client’s
electronic records and computer systems used for storing this ESI, including how ESI is
distributed, maintained, deleted, and backed-up. If the client has a routine destruction
policy for hard copies, or also for ESI (and most companies now do), address the issue
of preservation immediately. Failure to preserve records, including ESI, may result in
severe sanctions for the client and possibly counsel.
2. Ensure that written preservation hold notices are provided (in a timely
manner) by the client to persons who may hold relevant ESI within their control that
instructs them to immediately preserve any potentially relevant ESI and to not alter or
destroy potentially relevant ESI pending the conclusion of the lawsuit. Notice should also
be provided to third parties who are believed to hold or control ESI that is likely to be
relevant to issues in the case. Counsel should follow-up on these written notices by
prompt personal communications with key players, and then periodic reminder notices
thereafter. Caution should be exercised is relying upon custodians to locate or collect
potentially relevant ESI. In some circumstances such self-collection should not be
permitted, or it should be supplemented by bulk collection of all the custodians' ESI. Bulk
collection of all a custodian’s email within a certain date range is the rule in all but small
cases. Keyword based collection is also disfavored in all but smaller cases because of
the known unreliability of keywords and concern that important evidence will be omitted.
Mistakes are easily made in ESI preservation and collection, and counsel has a personal
duty to supervise the preservation, search and collection of potentially relevant ESI. If
counsel is not competent to carry out these responsibilities in a particular matter, then
33
counsel should affiliate with other counsel who are competent. The hiring of non-law firm
vendors in e-discovery cannot discharge an attorney’s duty of competence and personal
responsibility.
3. Inform the client of all obligations for discovery by both sides and develop a
plan to protect privileged or private information. Again, counsel should be actively
involved in client’s ESI preservation and collection efforts.
4. Work with the client and IT experts, if required, to develop a plan to collect
and review ESI for possible production, including a review for private, privileged, or trade
secret information that may be entitled to protection from open disclosure.
Determinations of responsiveness, relevance, or qualification for confidentiality or
privilege protections should not be delegated to the client, IT expert, or vendor as these
are uniquely legal determinations for which counsel is responsible.
5. Determine the preferred format to make and receive production of ESI,
typically either in the original native format, which would necessarily include all internal
metadata of a document, or in some type of flat-file type PDF or TIFF format, with a load
file containing the file’s internal metadata and extracted text. Metadata is an inherent part
of all ESI and should be included in most productions. The removal of internal metadata
from a document, which may include such information as who created the document, the
date of creation, last date it was accessed, blind copy of an email, and the like, constitutes
an alteration of the original electronic version of that document and is typically not desired
or necessary. Counsel may make specific objections to the production of the contents of
any metadata fields.
6. Do not underestimate the power of the “meet and confer” process. Although
34
not required under the Florida rules, like it’s federal counterpart, Rule 1.200 (pretrial
procedure) gives the court latitude to consider the “possibility of an agreement between
the parties regarding the extent to which . . . information should be preserved and the
form in which it should be produced.” Some judges require a meet and confer in certain
cases for good reason. Appendix 4 contains an example of an order requiring counsel to
meet and confer. Discussing these issues with opposing counsel from the outset may
reduce cost for the client, set early expectations on the amount of ESI that will be involved,
and minimize potential issues down the line by agreeing on production file formats, date
ranges, custodians and keyword searches. In some cases, opposing parties may even
share a large part of the eDiscovery cost by sharing a third-party vendor from which both
parties access the files.
7. Determine whether expert legal or technical assistance, or both, may be
needed to sort out legal or practical issues involving ESI and its media or equipment.
Reach out to opposing counsel early to attempt to coordinate and cooperate on technical
issues and set up lines of communication and cooperation between the IT technicians
that may be retained by both sides to assist in the e-discovery efforts. It may be
appropriate for the parties to retain third-party neutral experts in some cases with unusual
or complex technical issues, or other e-discovery challenges, such as search of large
disorganized collections of ESI.
8. Seek disclosure of the opposition’s preservation efforts and intended
production formats, and what ESI they will seek discovery of, including metadata, if any.
Send a request for the opponent to preserve electronically stored information as soon as
possible and propound a formal discovery request at the earliest possible date.
35
9. Evaluate the reasonability and suitability of the opponent’s preservation,
collection, and production plans, including any search or production issues, and attempt
early resolution of any disputes before any large productions to avoid expensive do-overs.
Beware of keyword searching, which is frequently ineffective. Far better technological
solutions are now available. 109 When keyword terms are used as part of a search and
review protocol they should always be carefully tested and should never be blindly
negotiated based on counsel’s intuitions. Counsel should discuss the recall and precision
of any search. Precision measures the percentage of relevant documents are retrieved
by the search; recall measures the percentage of relevant documents in the collection
retrieved by the search.
10. Determine whether discoverable ESI is available from multiple sources,
including third parties. Frequently ESI documents, such as e-mail or draft contracts that
have been communicated to or handled by multiple parties will contain useful additional
or even conflicting information. Some sources of information are more accessible than
others, meaning they are easier or less costly to access. Upon a proper showing under
the rules, parties must be required to obtain information from the least burdensome
source, and the court must limit unreasonably cumulative or duplicative discovery. 110
11. Weigh the cost of ESI discovery and determine whether costs may be
shifted to the requesting party or whether the cost of discovery outweighs the potential
109William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009);
Ralph Losey, ADVENTURES IN ELECTRONIC DISCOVERY, Child’s Game of “Go Fish” is a Poor Model for e-
Discovery Search (West Thomson Reuters, 2011); Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y.
2012).
110FLA. R. CIV. P. 1.280(d) (the court must limit the frequency or extent of discovery otherwise allowed by
these rules if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from another source or in another manner that is more convenient, less burdensome, or less
expensive).
36
benefit. 111
12. Electronic discovery is typically conducted in phases wherein the most
easily accessible and likely relevant ESI is searched and produced first. Then the
necessity for further discovery is evaluated. ESI reviewed in the first phase is often limited
by date range, custodians, volume, and storage location.
13. Ensure to the extent possible that the value of the discovery sought and
produced is proportional. 112
14. If any of the foregoing steps require expert consultation or assistance, find
a suitable expert and involve the expert early in the e-discovery process even including
the preservation phase. 113 Again, parties should consider the advisability of sharing a
neutral third-party expert, which can realize substantial cost and time savings.
15. Seek protection analogous to the protections offered by Federal Rule of
Evidence 502. Fed. R. Evid. 502 allows parties to claw back information that has been
inadvertently produced so long as the “court” finds that reasonable steps to prevent and
rectify the disclosure were taken. Additionally, a court order under Fed. R. Evid. 502(d)
provides the parties with the ability to claw-back the produced document regardless of
whether inadvertence and regardless of whether “reasonable steps” were taken to
prevent the disclosure. Counsel litigating in Florida state courts, should seek analogous
orders from state court judges.
111 FLA. R. CIV. P. 1.280(d)(1); (d)(2).

112 FLA. R. CIV. P. 1.280(d)(2)(ii).
113For preservation triggers, see Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 426 (Fla. 2d DCA
2012).
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REQUESTING PRODUCTION AND MAKING PRODUCTION OF ESI
Effective September 1, 2012, the Florida Rules of Civil Procedure establish a
workable framework for production of electronically stored information. A prominent issue
for production of ESI involves the form of production, which can implicate the
completeness and utility of the ESI produced as well of the cost of production if the ESI
must be translated or converted into the requested form. Fortunately, the rules
contemplate these issues as will be discussed below. Nonetheless, the most prudent
course for counsel on both sides is to confer and cooperate on the form of production
beforehand to avoid disappointment, motion practice, non-productive effort, and needless
cost of repeated production.
A request for electronically stored information may specify the form or forms in
which electronically stored information is to be produced. 114 The form should usually be
specified. The requesting party should consider the reasons for specifying a given form,
such as: (1) Will the document’s native functionality be needed, such as a spreadsheet’s
embedded calculations? (2) Will the native form 115 of the document be needed in order
to determine the context in which the document was created or stored? (3) What are the
format requirements of the software that the requesting party plans to use to review the
production?
If the responding party objects to a requested form, or if no form is specified in the
request, the responding party must state the form or forms it intends to use in the
114 FLA. R. CIV. P. 1.350(b).

115 Native format is a copy of the original electronic file. For example, e-mail from an Outlook e-mail program
would be produced in a *.pst file. Native format files include the metadata of the original file. Native format
files also are easy to modify. This presents difficulties in ensuring that the data has not altered after being
produced. Cooperation of counsel and well-documented procedures are required to allow effective use of
native format evidence at depositions and trial.
38
production. 116 This sensible provision directs the parties to address any issues in the
form of production. For example, if a responding party specifies a form of production and
the requesting party fails to object to the form of production, the court has a meaningful
record on which to determine whether production in another format will be required and
which party should be required to pay the cost of the additional production. If a request
for electronically stored information does not specify the form of production, the producing
party must produce the information in a form or forms in which it is ordinarily maintained
or in a reasonably usable form or forms. 117 Again, this is a sensible process that tells the
producing party that they are not permitted to degrade or convert the electronic
documents to a less useful format for production. 118
Example: Party A requests Party B’s discoverable emails in native format. Party
B’s attorney dislikes using an electronic format when handling discovery and evidence,
so he requests printed copies of every one of Party B’s several thousand emails and
sends a copy to Party A. When Party A objects, the attorney for Party B states that he
has given up every relevant email stating, “You have everything I have.” Is this adequate
production under the rules?
Answer: No. Party B’s attorney should have objected to the requested format
(native) rather than producing in another form without involving Party A or the Court in the
116 FLA. R. CIV. P. 1.350(b).

117Id. ESI is usually “ordinarily maintained” in its native format, meaning the bit coding format used by the
software in which the ESI was created. However, some companies utilize a process of converting
documents from native to PDF or TIFF images. Electronic files are collections of encoded on and off values.
However, a reasonably useable format may be ESI produced in load files with searchable metadata and
extracted text. On some occasions, searchable PDF conversion of native files may be adequate if there is
an agreement that the original metadata is not relevant.
118 Such an effort would be equivalent to the unsavory practice of shuffling unnumbered pages or removing
file labels from folders before producing paper discovery to the opponent.
39
decision. 119 The printed-out versions do not contain metadata, which may be
discoverable. In addition, the printed version is not “reasonably usable” because a non-
electronic version is not searchable, which can be a valuable tool with large numbers and
volumes of emails. Finally, the lack of metadata and production in an electronic format
prevents the requesting party from organizing the information with the requesting party’s
software according to date, subject matter, recipient, and sender. Fortunately, as
discussed above, Rule 1.350(b) directly addresses this situation. Party A, having made
a proper request, is entitled to receive the emails in the form requested unless there is an
objection followed by an agreement by the parties or court determination on form. The
dispute may have been avoided if Party B’s counsel contacted Party A before going
through the extra expense of providing paper copies.
The form of production may also be an issue when exercising the option to produce
records in lieu of answering interrogatories, so the amendments to the civil rules effective
September 1, 2012, (1) specifically authorize the production of electronically stored
information in lieu of answers to interrogatories, and (2) set out the procedure for
determining the form in which to produce the ESI. 120 If the records to be produced consist
of electronically stored information, the records must be produced in a form or forms in
which they are ordinarily maintained or in a reasonably usable form or forms. 121
119 FLA. R. CIV. P. 1.350(b).

120 FLA. R. CIV. P. 1.340(c).
121 Id.
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PRODUCTION OF ESI PURSUANT TO SUBPOENA
Production of electronically stored information pursuant to subpoena potentially
raises the now familiar issues of form of production, undue burden, and who pays the
cost of production. Fortunately, effective September 1, 2012, the civil procedure rules
specifically address these issues and provide a pathway for counsel and judges to
negotiate these issues.
The issue of form of production in response to a subpoena is much the same as
the issues implicated in a Rule 1.350 request for production, and amended Rule 1.410
addresses the issues in similar fashion. It makes abundant sense for the party issuing
the subpoena to specify the preferred form of production. However, if a subpoena does
not specify a form for producing electronically stored information, the person responding
must produce it in a form or forms in which it is ordinarily maintained or in a reasonably
usable form or forms. 122
Persons responding to a subpoena may object to discovery of ESI from sources
that are not reasonably accessible because of undue costs or burden. 123 On motion to
compel discovery or to quash, the person from whom discovery is sought must show that
the information sought or the form requested is not reasonably accessible because of
undue costs or burden. Once that showing is made, the court may order that the
discovery not be had or may nonetheless order discovery limited to such sources or in
such forms if the requesting party shows good cause, considering the limitations set out
in Rule 1.280(d)(2). The court may specify conditions of the discovery, including ordering
122 FLA. R. CIV. P. 1.410(c).

123 Id.
41
that some or all of the expenses of the discovery be paid by the party seeking the
discovery. 124 Failure of the court or a party to make provision for cost of production from
non-parties to produce subpoenaed documents is a departure from the essential
requirements of the law and may remedied by certiorari review. 125
The court will undoubtedly take into account whether the subpoena is directed to
a party or a person or organization controlled by or closely identified with a party, or to a
person or entity totally unrelated to and disinterested in the case. Subpoenas to non-
parties have become a major issue in discovery of ESI because an enormous amount of
ESI is sent, stored, shared, or created on systems owned or controlled by third parties,
including internet accessible sites.
DISCOVERY OF SOCIAL-MEDIA ESI
Social media is a term referring to a broad array of networking sites with varying
participation by individuals, businesses, governmental bodies, and other organizations.
Social media sites are proliferating in type, form, and content. No longer just a way for
kids and young adults to connect about their current activities and status, social media
has captured the attention of individuals of all ages as well as businesses, corporations,
government entities, and virtually any organization or person that wants to reach target
or broad audiences. Some of the more popular social media sites are Facebook,
LinkedIn, Flickr, Instagram, YouTube, and Twitter, but there are many more.
Social media policies, agreements, structure, make-up, and culture all differ from site to
124 Id.
125 First Call Ventures, LLC v. Nationwide Relocation Servs., 127 So. 3d 691 (Fla. 4th DCA 2013).
42
site, which creates varied and complex data management and ownership issues and
significant challenges in preservation of social media content. Most social media sites
include features allowing members to send direct messages between themselves, much
like emails or text messages. Assuming relevancy under the facts and circumstances of
a given case, social media evidence is discoverable. 126
Social media may contain important relevant evidence in any number of different
legal disputes. It is important to note that the information of a member in a social media
site is not obtained by subpoena of the social media provider itself, any more than email
is obtained by subpoena of an email provider. The information is discovered from the
member. It is their information, they own it, not the providers, and thus the proper course
of conduct is a request for production, or subpoena, from them. 127
DISCOVERY OF ELECTRONIC MEDICAL AND HEALTH RECORDS
Presumptively, the same discovery principles and law for ESI in general apply to
electronic medical records. However, electronic medical records, or the more inclusive
expression electronic health records ("EHR"), present additional layers of issues for
lawyers and judges in discovery and presentation of evidence. 128 Some of the more
common discrete and overlapping issues complicating discovery of EHR include: (1)
126 See Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015).
127 STORED COMMUNICATIONS ACT (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that
addresses voluntary and compelled disclosure of "stored wire and electronic communications and
transactional records" held by third-party internet service providers (ISPs). It is a waste of time to subpoena
internet service providers. Instead, a social media member should be requested to produce their
information, and motions to compel should be directed against them if they do not comply.
128 Artigliere, Brouillard, Gelzer, Reich, and Teppler, Diagnosing and Treating Legal Ailments of the
Electronic Health Record: Toward an Efficient and Trustworthy Process for Information Discovery and
Release, 18 THE SEDONA CONFERENCE JOURNAL 209 (2017), available online at
https://s3.amazonaws.com/IGG/publications/EHR.TSC.Vol18.rev.pdf
43
identifying what is relevant, proportional, and discoverable from the sometimes massive
amount of data that health care providers amass administratively and medically in caring
for patients; (2) protecting privacy interests of the target patient, other patients, and the
health care provider; (3) identifying exactly constitutes a patient's medical record or chart;
(4) economy, proportionality, and cost of processing records; (5) form of production; (6)
proprietary information regarding vendor software; (7) communication of needs of
requesting party and capabilities and requirements of the producing party; (8) identifying
misleading, counterfeit, or altered data in EHR.
As with any civil discovery, addressing discovery of EHR involves consideration of
whether the request for records is made: by or to (i) a party or nonparty, (ii) a fact witness
or expert witness, a health care provider or (iii) other entity or person possessing the
records; in the course of an ongoing case or by request outside the case; during Florida's
presuit process or during the case in chief; and with or without the patient's express
written authorization. In each scenario, the requesting party should carefully craft
communication so that the request clearly describes the scope and format of the records
requested and the basis or authority by which the records are requested.
Despite the complexity of EHR discovery, the same procedural rules that apply to
discovery in general, electronic or otherwise, apply to medical records. Because of all the
potential pitfalls, delays, undue cost, and need for discretion and protection of the record
and privacy interests, it benefits counsel and the parties to talk early and often about
conducting and managing discovery of EHR with each other and producing nonparties.
Key questions that need to be clarified between requesting and producing persons or
entities are the scope of the records sought and the scope of proper discovery. Potentially
44
complicating the discussion would be terminology or definitional barriers between the
requesting and producing parties, starting with (1) "what is the medical record?" and (2)
whether or not defining the medical record limits discovery in any way. For example,
entries about a patient by a person or machine that reside in the system but are not
produced in any defined "report" generated as part of the "defined" medical record or any
standard report under the software in use may arguably be discoverable. Issues of clarity
for scope and form of production are most efficiently and economically handled by meet
and confer or by negotiation rather than by motions and hearings.
INSPECTION OF OPPOSING PARTY DEVICES
An issue in e-discovery is direct access to the opposition’s computers and
computer devices. There is a large body of federal and foreign state case law on the
subject. 129 Florida case law 130 follows that line and protects a responding party from over-
intrusive inspections of its computer systems by the requesting party. Direct inspection
requires a showing of good cause before such an inspection is allowed. The rules, both
state and federal, initially provide for the production of the relevant ESI stored on
electronic devices, not the devices themselves.
129 See Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008); Bro-Tech Corp. v. Thermax, Inc., No. 05-CV-2330,
2008 WL 724627 (E.D. Pa. Mar. 17, 2008); Sterle v. Elizabeth Arden, Inc., No. 3:06 CV 01584 (DJS), 2008
WL 961216 (D. Conn. Apr. 9, 2008); Xpel Tech. Corp. v. Am. Filter Film Distribs; No. SA-08-CV-0175 XR,
2008 WL 744837 (W.D. Tex. Mar. 17, 2008); Henry v. Quicken Loans, Inc., No. 04-40346, 2008 WL 474127
(E.D. Mich. Feb. 15, 2008); In re Honza, 242 S.W. 3d 578 (Tex. App. 2008); Coburn v. PN II, Inc., No. 2:07-
cv-00662, 2008 WL 879746 (D. Nev. Mar. 28, 2008); Ferron v. Search Cactus, LLC, No. 2:06-CV-327, 2008
WL 1902499 (S.D. Ohio Apr. 28, 2008); Johnson v. Wells Fargo Home Mortg., Inc., No. 3:05-CV-0321-
RAM, 2008 WL 2142219 (D. Nev. May 16, 2008); Anadarko Petroleum Corp. v. Davis, No. H-06-2849,
2006 WL 3837518 (S.D. Tex. Dec. 28, 2006); Hedenburg v. Aramark Am. Food Servs., 476 F. Supp. 2d
1199 (W.D. Wash. 2007); In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003); Ameriwood Indus.
v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006).
130 Menke v. Broward Cty. Sch. Bd., 916 So. 2d 8 (Fla. 4th DCA 2005).
45
Generally, direct access to and inspection of the opposition’s devices is permitted
in unusual cases where the producing party’s search and production has not been
competently or honestly performed. 131 The background and reasoning for this law is set
out in Menke:
Today, instead of filing cabinets filled with paper documents,

computers store bytes of information in an “electronic filing
cabinet.” Information from that cabinet can be extracted, just
as one would look in the filing cabinet for the correct file
containing the information being sought. In fact, even more
information can be extracted, such as what internet sites an
individual might access as well as the time spent in internet
chat rooms. In civil litigation, we have never heard of a
discovery request which would simply ask a party litigant to
produce its business or personal filing cabinets for inspection
by its adversary to see if they contain any information useful
to the litigation. Requests for production ask the party to
produce copies of the relevant information in those filing
cabinets for the adversary.
Menke contends that the respondent’s representative’s

wholesale access to his personal computer will expose
confidential communications and matters entirely extraneous
to the present litigation, such as banking records. Additionally,
privileged communications, such as those between Menke
and his attorney concerning the very issues in the underlying
proceeding, may be exposed. Furthermore, Menke contends
that his privacy is invaded by such an inspection, and his Fifth
Amendment right may also be implicated by such an intrusive
review by the opposing expert. 132
The appeals court granted certiorari to quash the administrative law judge’s order
requiring production of Menke’s computers. The court held that production and search of
a computer is to be conducted by the producing party so as to protect their confidential
131 Id.; see also Antico v. Sindt Trucking, Inc.,148 So. 3d 163 (Fla. 1st DCA 2014) (defense made a showing
of need for information on iPhone and plaintiff offered no less intrusive means for providing relevant
information).
132 Menke, 916 So. 2d at 10.
46
information. Menke suggests that the production of the computer itself is a last resort
only justified “in situations where evidence of intentional deletion of data was present.”133
The Menke court concluded with these words:
Because the order of the administrative law judge allowed the

respondent’s expert access to literally everything on the
petitioner’s computers, it did not protect against disclosure of
confidential and privileged information. It therefore caused
irreparable harm, and we grant the writ and quash the
discovery order under review. We do not deny the Board the
right to request that the petitioner produce relevant, non-
privileged, information; we simply deny it unfettered access to
the petitioner’s computers in the first instance. Requests
should conform to discovery methods and manners provided
within the Rules of Civil Procedure.
Disclosure of confidential information is not the only potential harm when a party
is permitted access to the opposing party’s computers. Another consideration relating to
a request for access to the client’s computers, equipment, or software is deprivation of
the use of the computer devices for some time period and the potential of harm to the
client’s hardware, software, and data. Any foray permitted by the court must balance the
need for the level of access sought versus the potential harm to the party producing
access. Any direct inspection by the requesting party must be conditioned on the use of,
a qualified expert to conduct the copying and inspection. Additionally, a specific
inspection protocol should be in place.
One infrequent exception to the high bar protecting access to a party’s computer
or personal device may be when there is a showing that the device may contain relevant
information, and there is no less intrusive means of discovery other than access to the
133 Id. at 8.
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device. In Antico v. Sindt Trucking, Inc., 134 evidence was presented in a wrongful death
auto negligence case that showed that the decedent-driver was texting or talking on her
iPhone at the time of the automobile accident at issue in the case. Over vague “privacy”
objections, the trial judge ordered that the defense (requesting party) expert could
examine the information on the decedent’s iPhone over a 9-hour period around the
accident, but the order strictly controlled how the confidential inspection must proceed. 135
The first district upheld the order as a proper balance of the need for the discovery and
protection of privacy interests. 136 However, the decision of the appellate court was
apparently influenced by the plaintiff’s failure to advance any less intrusive alternatives
for discovery than access as prescribed by the trial court. 137
“SELF-HELP” DISCOVERY
Self-help discovery refers to the informal search and collection of electronically
stored information outside the formal discovery process. Valuable information may be
accessed without alerting the opponent or witnesses from whom or about whom the
information is collected. A simple example of self-help discovery is obtaining information
available on the internet about a party, witness, opposing counsel, issue in the case, or
industry or organization. Accessing social media to get publicly available information
134 148 So. 3d 163 (Fla. 1st DCA 2014); Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-
DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic Discovery § 6.08 (2018).
135Antico, 148 So. 3d at 167 (“[the trial court’s order] limits the data that the expert may review to the nine-
hour period immediately surrounding the accident; it gives Petitioner's counsel a front-row seat to monitor
the inspection process; and it allows Petitioner the opportunity to interpose objections before Respondents
can obtain any of the data.”
136 Id.
137 Id. at 168.
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through self-help methods can be cost-effective if properly done, but there are some
caveats and cautions.
As with any collection of ESI for use in litigation, copying of the computer files
should be done in a manner that does not alter or delete relevant information, such as
contextual material or the metadata in or associated with the ESI. Collection by attorneys,
attorney staff, or clients may be a dangerous practice due to technical limitations and
increased risk of accidental or intentional deletion of electronic evidence. Further, the
person who searches, finds, and collects information may end up being the witness
necessary to introduce the information. If the information is sufficiently important to collect
for litigation, it should be properly collected, stored, and preserved properly, and include
information necessary for ultimate introduction of the ESI into evidence. This may require
sophisticated or expert involvement.
Example: In an employment case, your employee client finds a government
website that contains data in a spreadsheet about the employer’s industry that are
relevant to issues in the case. The client takes a “screenshot” of the portions of the
spreadsheet that apply to the employer and brings it to you. You print the screenshot to
paper and place it in your file for potential use in the case. What issues may arise in
connection with moving the paper screenshot into evidence?
Answer: At this point, the file contains essentially a “picture” of a portion of ESI,
so the client may ultimately need to testify at a minimum that the screenshot is a true and
accurate depiction of what appeared on the website on the date and time of the
screenshot. The client as well as the completeness and accuracy of the document are
subject to challenge and cross-examination unless there is an admission on authenticity
49
or admissibility from the opposing party. Spreadsheets may contain metadata, internal
calculations, footnotes, and other information that may be essential to the case. The data
on the government website may change at any time or may not otherwise be available in
the future, so a full and proper collection should be done right away by a sophisticated
person, including contextual information and metadata. If necessary, use competent and
effective witnesses to obtain publicly available evidence. Proper collection, storage, and
preservation of databases and spreadsheets can be technically challenging.
Self-help collection of information that is not clearly public information can be
problematic. Self-help is only productive if it is done within the law. 138 Efforts to access
a computer or device of a party or witness or a person’s email account may lead to
sanctions or admissibility 139 challenges and potential disqualification of counsel in
egregious cases, such as where counsel has accessed privileged documents of the
opposing party. 140 A basis for disqualification of counsel is if counsel has obtained,
reviewed, and used privileged documents of the opposing party. 141
Social media is a prolific source of information and a potential candidate for self-
help discovery. Counsel should be familiar with the technology and characteristics of
138 O’Brien v. O’Brien, 899 So. 2d 1133, 1137–38 (Fla. 5th DCA 2005) (where wife installed spyware on her
husband’s computer and retrieved the husband’s on-line chats with other women, the trial judge correctly
ruled that the evidence was not admissible because the conversations were illegally intercepted under the
SECURITY OF COMMUNICATIONS ACT, FLA. STAT. § 934.03).
139Id. Attorneys implicated in such improper behavior may be subject to discipline. Fla. Bar v. Black, 121
So. 3d 1038 (Fla. 2013) (attorney reprimanded for obtaining and keeping opposing party’s iPhone which
contained confidential and privileged information).
140Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010) (attorney disqualified after client illegally
obtained opposing party privileged information and provided it to her attorney). The assessment and
remedies vary depending on the findings and circumstances of the case after an evidentiary hearing to
determine (1) whether counsel for a party possessed privileged materials, (2) the circumstances under
which disclosure occurred, and (3) whether obtaining the privileged materials gave counsel an unfair
advantage on material matters in the case. Id.
141 Id.
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social media so as to be able to properly find, collect, and preserve information. For
example, it may be important to know that the target person of a viewed LinkedIn
account will know who viewed their account unless the requesting person’s LinkedIn
settings are set to not disclose such access. Another example involves Facebook
privacy settings. Only limited information is available about a Facebook subscriber except
for persons accepted as “Friends.” However, it is unethical to “Friend” an opposing party
or witness for the sole purpose of extracting additional information from them on
Facebook. 142 Information protected by Facebook privacy settings should be requested
through formal rather than self-help discovery. 143
TEN PRACTICAL STEPS FOR HANDLING ELECTRONIC EVIDENCE
1. Plan carefully to secure the client’s relevant electronic evidence and
to obtain evidence from the opponent or third parties. Electronically stored
information (ESI) is volatile and may be altered, corrupted, or lost by human accident or
error, by malicious intentional conduct, or through the automated operation of computers.
2. Plan carefully before and during discovery to obtain and to secure the
foundation needed to admit evidence. Frequently, foundation is available in the form
of metadata or other electronically stored information such as the file path, which may be
available for a limited time and is volatile, alterable, or corruptible. Foundation may also
142 See The Philadelphia Bar Assoc. Professional Guidance Committee, Op. 2009-2 (Mar. 2009).
Presumably the decision in Florida would be the same under Florida Rules. See FLA. R. OF PROF. COND.
4-4.1 (Truthfulness in Statements to Others) and 4-4.4 (Respect for Rights of Third Persons).
143Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015) (a personal injury case plaintiff’s photographs
on Facebook are discoverable regardless of privacy settings because there is no expectation of privacy for
such information posted to others on Facebook).
51
be obtained through testimony or ancillary ESI or information about the equipment or
software associated with the ESI. Many times, such information or testimony is readily
available only for a limited time. Plan for the admission of electronically stored information
in the collection process. Manage the opposition so that the produced information will
contain foundational information.
3. Request admission of the authenticity and admissibility of ESI
whenever possible. Obtaining admissions on admissibility is not only economical; it
saves drudgery and wasting of time during trial which can alienate the jury or judge.
4. When in doubt, err on the side of preservation. The scope of
preservation and the timing of when preservation is triggered are based upon the
circumstances of the case. Reasonable counsel may differ. However, the “down side” of
potential sanctions against a client and attorney who fail to preserve electronic evidence
or who engage in spoliation are universally less acceptable than the burden of
preservation. If preservation appears overly burdensome, seek judicial assistance in
advance under the doctrine of proportionality. Seeking forgiveness after destruction of
evidence is not a reasonable strategy.
5. Use summaries and charts rather than voluminous printouts when
presenting evidence to the trier of fact. The rules permit the admission of a summary
document distilling of numerous and obscure documents into a cogent and organized
chart if the chart is accurately based on admissible evidence, is introduced by a qualified
witness and properly noticed, and will assist the trier of fact in understanding the evidence.
Presenting important evidence in organized form is much better than relying on a jury to
locate information in a maze of exhibits.
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6. Check public sources or social media. Information may be readily
available from the Internet and especially social media. Valuable information may be
retrievable outside formal discovery without alerting the opponent. When copying such
media try to capture as much metadata as possible and document when the information
was captured. The capture of a website as a PDF file will have its own metadata that
may be used to demonstrate the capture time and date.
7. Use competent and effective witnesses to obtain publicly available
evidence. Frequently authentication of evidence will require a witness to testify about
the manner in which the evidence was obtained and the device or software associated
with the creation, modification, transmission, or storage of the ESI. Professional
investigators with e-Discovery credentials and experience are good candidates for
investigations of social networking websites and conducting self-help e-Discovery. The
receipt and management of ESI production from the opposition should be supervised by
persons with adequate testifying witness skills.
8. Curb the client’s self-help efforts by delineating strict boundaries of
behavior. While self-help and self-collection may be desirable for the client economically,
the client must understand the risks of inadequate of improper collections. An unbiased,
technically competent expert may be the best person to collect the electronic evidence.
A competent investigator can then authenticate the collected information at trial or
hearings. In no case should the client illegally obtain evidence, misappropriate a
password, or access information through subversion or artifice.
9. Advise the client of preservation obligations and warn against loss,
alteration, or destruction of ESI. Sanctions can arise from behavior the client (or
53
attorney) considers routine. For example, removing injudicious Facebook entries after
preservation is triggered may be considered spoliation if a copy of the Facebook entries
as they appeared before removal was not preserved.
10. Cooperate with opposing counsel concerning the admissibility of
electronic evidence. All parties are well advised to exchange information and to
anticipate and resolve by agreement as many electronic-evidence issues as possible.
The downstream costs associated with incorrect e-Discovery decisions and errors are
substantial and occasionally case dispositive. Cooperation by counsel on such matters
is a sign of strength, professionalism, and competency.
CONCLUSION
Discovery of ESI is potentially complicated, ever-changing, and extremely
important in many cases. Counsel must be conversant enough with the terminology, law,
rules, and technology to identify issues and fully advise the client on electronic discovery
issues.
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CHAPTER FOUR
WRITTEN DISCOVERY
I. DOCUMENT REQUESTS
Duty of Good Faith and Due Diligence
Counsel and parties should conduct discovery timely, in good faith, and with due
diligence. It is expected that everyone cooperates and be courteous in all phases of the
discovery process with a goal of fairly and efficiently exchanging information about the
case so that it may be resolved in a timely, just, and cost-effective manner.
Formulating Requests for Documents
In addition to complying with the provisions of Rules 1.350 and 1.351, Florida
Rules of Civil Procedure, a document request, whether a request for production or
subpoena duces tecum, should be clear, concise, and reasonably particularized. For
example, a request for “each and every document supporting your claim” or a request for
“the documents you believe support Count II” is objectionably broad in most cases.
Attorneys should never use requests for production to harass or improperly burden an
adversary. 144
Use of Form Requests
Counsel should review any standard form document request or subpoena duces
tecum and modify it to apply to the facts and contentions of the particular case. A
“boilerplate” request or subpoena not directed to the particular case should not be used.
Neither should burdensome “boilerplate” definitions or instructions be used in formulating
144 The Florida Bar Guidelines to Professional Conduct, Section G.3.
55
a document request or subpoena. Words used in discovery normally should carry their
plain and ordinary meaning unless the particular case requires a special or technical
definition, which should be specified plainly and concisely.
Reading and Interpreting Requests for Documents
An attorney receiving a request for documents or a subpoena duces tecum shall
reasonably and naturally interpret it, recognizing that the attorney serving it generally
does not have specific knowledge of the documents sought and that the attorney
receiving the request or subpoena generally has or can obtain pertinent knowledge from
the client. Attorneys should not strain to interpret the request in an artificially restrictive
manner in order to avoid disclosure. Furthermore, evasive or incomplete disclosures,
answers, or responses are treated as non-answers 145 and may be sanctionable. 146
Contact When a Document Request is Received
Before discovery is ever exchanged, an attorney should become generally familiar
with the client’s records and storage systems, including electronically stored information,
so that counsel may properly advise the client on production, preservation, and protection
of data and records. 147 Then upon receiving a document request, counsel should
promptly confer with the client and take reasonable steps to ensure that the client (i)
understands what documents are requested, (ii) has adopted a reasonable plan to obtain
documents in a timely and reasonable manner, and (iii) is purposefully implementing that
plan in good faith.
145 FLA. R. CIV. P. 1.380(a)(3).

146 See FLA. R. CIV. P. 1.380.
56
Responding to Document Requests
A response to a request for production should never be intentionally delayed to
prevent opposing counsel from inspecting documents prior to a scheduled deposition. 148
A party is not required to produce evidence that the party does not have, 149 nor
manufacture evidence that does not exist. 150 A party and counsel ordinarily have
complied with the duty to respond to a document request if they have:
Responded to the requests within the time set by the governing rule, stipulation, or court-
ordered extension;
• Objected with specificity to objectional requests;
• Produced the documents themselves (or copies), specifically identified those
documents that are being or will be produced, or specified precisely where the
documents can be found and when they can be reviewed; if the documents will be
produced, the response should state a specific date when the responsive
documents will be available. For example, to state that the requested documents
will be made available at a “mutually agreeable time” is not sufficient.
• Stated specifically that no responsive documents have been found; and
• Ensured a reasonable inquiry with those persons and a reasonable search of those
places likely to result in the discovery of responsive documents.

149 Balzebre v. Anderson, 294 So. 2d 701 (Fla. 3d DCA 1974).
150 Fla. Keys Boys Club, Inc. v. Pelekis, 327 So. 2d 804 (Fla. 3d DCA 1976).
57
Objections
Attorneys should not make objections solely to avoid producing documents that
are relevant to the case or that are otherwise necessary to discover or understand the
issues. “Relevancy” is broader in the context of discovery than in the trial context. 151 A
party may be permitted to discover relevant evidence that would otherwise be
inadmissible at trial if it may lead to the discovery of relevant evidence. 152 Also, it is
misconduct to conceal a document even temporarily, and even when the information may
be available to opposing counsel by other means or from other sources. 153
Likewise, attorneys should not strain to interpret a request in an artificially
restrictive manner to avoid disclosure. Attorneys should only object on the grounds of
privilege or work-product when truly appropriate. When requests are unclear, counsel
should communicate to obtain clarity, so the requests can be complied with fully, or so
that appropriate objections can be raised. 154
Objections made to document requests should be specific, not generalized, 155 and
should be in compliance with the provisions of Rules 1.350(b) and 1.410(c), Florida Rules
of Civil Procedure. Boilerplate objections such as “the request is overly broad, unduly
burdensome, and outside the scope of permissible discovery” are insufficient without a
full, fair explanation particular to the facts of the case. Federal courts have recently held
151 Amente v. Newman, 653 So. 2d 1030 (Fla. 1995).

152 Id.
153 See Fla. Bar v. Forrester, 818 So. 2d 477, 481–82 (Fla. 2002).
154 The Florida Bar Guidelines for Professional Conduct, Section G.1.
155 FLA. R. CIV. P. 1.350(b) (“[T]he reasons for the objection shall be stated.”).
58
that general objections without specificity are deemed a waiver of all objections. 156 While
this may not yet be the rule in Florida, the Florida Rules of Civil Procedure are modeled
after the Federal Rules of Civil Procedure. Florida courts often turn to federal courts for
guidance when construing Florida Rules of Civil Procedure. 157
Objections to portions of a document request do not excuse the responding party from
producing those documents to which there is no objection. 158 Specific objections should
be matched to specific requests.
Absent compelling circumstances, failure to assert an objection to a request for
production within the time allowed for responding constitutes a waiver and will preclude
a party from asserting the objection in response to a motion to compel. 159
When Production is Limited by Interpretation
If a party objects to a request as overbroad when a narrower version of the request
would not be objectionable, the documents responsive to the narrower version ordinarily
should be produced without waiting for a resolution of the dispute over the scope of the
request. When production is limited by a party’s objection, the producing party should
clearly describe the limitation in its response.
156See Memorandum Opinion and Order Regarding the Court’s Order to Show Cause Why Counsel for
Both Parties Should Not be Sanctioned for Discovery Abuses rendered March 13, 2017, Liguria Foods, Inc.
v. Griffith Laboratories, Inc., Case No. C 14-3041-MWB, United States District Court Northern District of
Iowa; see also Opinion & Order rendered February 28, 2017, Fischer v. Forrest, et al., Case No. 14 Civ.
1304, United States District Court Southern District of New York.
157 TGI Ins. Corp. v. Am. v. Johnson, 799 So. 2d 339, 341–42 (Fla. 4th DCA 2001).
158FLA. R. CIV. P. 1.350(b) (“If an objection is made to part of an item or category, the part shall be
specified.”).
159 American Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981).
59
Supplementation of Document Production
A party who has responded to a request for production with a complete response
is under no duty to supplement its response with information the party later acquires. 160
Claim of Privilege
A party who responds to or objects to discovery requests and who withholds
information otherwise discoverable, 161 asserting that the information is privileged or
subject to other protection from discovery, must assert a claim expressly and must
describe the nature of the documents, communications, or things not produced or
disclosed, such that, without revealing the privileged or protected information itself, the
description will enable other parties to assess the applicability of the privilege or
protection. 162
Withholding materials without notice is contrary to the intention of Rule 1.280(b)(6),
Florida Rules of Civil Procedure, and may result in sanctions. If a motion to compel is
filed, the party asserting a protection has the obligation to establish by affidavit or other
evidence, all facts essential to the establishment of the privilege or protection relied upon.
Failure to file a motion to compel may result in a waiver of remedies otherwise
available. 163 Also, while waiver of attorney-client and work-product privileges is not
160 FLA. R. CIV. P. 1.280(f).

161 Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006).
162 See FLA. R. CIV. P. 1.280(b)(6); American Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981);
but cf. Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006) (“Before a written objection to a
request for production of documents is ruled upon, the documents are not ‘otherwise discoverable’ and thus
the obligation to file a privilege log does not arise.”); see also Life Care Ctr. of Am. v. Reese, 948 So. 2d
830, 833 (Fla. 5th DCA 2007).
163 See Winn Dixie v. Teneyck, 656 So. 2d 1348, 1351 (Fla. 1st DCA 1995).
60
favored in Florida, 164 failure to provide a privilege log when objecting based on privilege
may amount to a waiver of privilege. 165
Oral Requests for Production of Documents
As a practical matter, many attorneys produce or exchange documents upon
informal request, often confirmed by letter. An attorney’s promise that documents will be
produced should be honored. Requests for production of documents and responses may
be made on the records at depositions but usually should be confirmed in writing to avoid
uncertainty. An informal request may not support a motion to compel.
Location of Production
As a matter of convenience, the request may suggest production at the office of
either counsel. Courts expect the attorneys to reasonably accommodate one another
with respect to the place of production and shall make the records available in a
reasonable manner (i.e., with tables, chairs, lighting, air conditioning or heat, and the like
if possible). 166
Available for Copying
An attorney should not state the documents are available for inspection and
copying if they are not in fact available when the representation is made.
164 TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339, 341 (Fla. 4th DCA 2001) (citing Liberty Mut. Ins. Co.
v. Lease Am., Inc., 735 So. 2d 560, 562 (Fla. 4th DCA 1999)).
165 Id. at 341–42; see also Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla. 3d DCA 2004) (“Failure to
comply with the requirements of [the rule] results in a waiver of attorney-client and work-product
privileges.”).
166 Krypton Broad. of Jacksonville, Inc. v. MGM-Pathe Commc’n Co., 629 So. 2d 852, 855–56 (Fla. 1st DCA
1993) (disapproved on other grounds).
61
Manner of Production
Rule 1.350(b), Florida Rules of Civil Procedure, requires that a party producing
documents for inspection produce them as they are maintained in the usual course of
business or identify them to correspond with the categories in the request. 167 Additionally,
if feasible, all of the documents should be made available simultaneously, so the party
inspecting can determine the desired order of review. While the inspection is in progress,
the inspecting party shall have the right to review again any documents which have
already been examined during the inspection.
If documents are produced as they are kept in the usual course of business, the
producing party has a duty to explain the general scheme of record-keeping to the
inspecting party. The objective is to acquaint the inspecting party generally with how and
where the documents are maintained. If the documents are produced to correspond with
the categories in the request, some reasonable effort should be made to identify certain
groups of the produced documents with particular categories of the request or to provide
some meaningful description of the documents produced. The producing party is not
obligated to rearrange or reorganize the documents.
Listing and Marking
The producing party is encouraged to list or mark the documents which have been
produced with unique bates labels, hash tags, hash values or similar document
recognition systems. The parties are encouraged to then use bates stamped documents
as deposition and trial exhibits. This will prevent later confusion or dispute about which
documents were produced. For relatively few documents, a list prepared by the
167 FLA. R. CIV. P. 1.350(b); Evangelos v. Dachiel, 553 So. 2d 245 (Fla. 3d DCA 1989).
62
inspecting attorney (which should be exchanged with opposing counsel) may be
appropriate; however, when more documents are involved, the inspecting attorney may
want to number each document. The producing party should allow such numbering so
long as marking the document does not materially interfere with its intended use.
Documents that would be materially altered by marking (e.g., promissory notes) should
be listed rather than marked. Alternatively, copies of the documents (rather than
originals) may be marked.
Copying
Photocopies of the original documents are often prepared by the producing party
for the inspecting party as a matter of convenience. However, the inspecting party has
the right to insist on inspecting the original documents.
The photocopying of documents will generally be the responsibility of the
inspecting party, but the producing party must render reasonable assistance and
cooperation depending on its staffing facilities. In a case with a manageable number of
documents, the producing party should allow its personnel and its photocopying
equipment to be used with the understanding that the inspecting party will pay reasonable
charges. If a large quantity of documents is produced, it may be reasonable for the
inspecting party to furnish personnel to make copies on the producing party’s equipment
or it may be reasonable for the inspecting party to furnish both the personnel and the
photocopying equipment. It may also be reasonable for the documents to be photocopied
at another location or by an outside professional copy service, at the expense of the
inspecting party.
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Scanning
The producing party should cooperate reasonably if the inspecting party wishes to
scan rather than copy documents.
Later Inspection
The inspecting party’s right to inspect the documents again at a later date (after
having completed the entire initial inspection) must be determined on a case-by-case
basis, but permission should not be unreasonably withheld.
II. INTERROGATORIES
Number and Scope of Interrogatories
Interrogatories should be used sparingly and never to harass or impose undue
burden or expense on adversaries. 168 A party may only serve 30 interrogatories
(including all parts and subparts) on any other party. 169 Leave of court, which is not
routinely given absent good cause, is required if any party would like to serve more than
30 interrogatories. Interrogatories should be brief, simple, particularized, unambiguous,
and capable of being understood by jurors when read in conjunction with the answer.
They should not be argumentative, nor should they impose unreasonable burdens on the
responding party. In some cases, the court will propound interrogatories for a party to
answer. These must be responded to in a timely manner. The 30-interrogatory limit does
not apply to court-ordered interrogatories.
If the Supreme Court has approved a form of interrogatories for the type of action,
168 The Florida Bar Guidelines for Professional Conduct, Section H.3.
169 FLA. R. CIV. P. 1.340(a).
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the party is required to use the form approved by the court in its initial set of
interrogatories. 170 The party may reduce or add to the approved form, but the total of
approved and additional interrogatories may not exceed 30. 171 Aside from Supreme
Court approved forms, the use of “form” interrogatories is ordinarily inappropriate.
Attorneys should always carefully review interrogatories to ensure that the interrogatories
are tailored to the individual case. Boilerplate language should be avoided.
Answers to Interrogatories
The respondent is required to answer each interrogatory separately and fully in
writing and under oath, unless the respondent objects, in which event the grounds for the
objection must be stated and signed by the attorney making it. 172 Interrogatories should
be reasonably interpreted, in good faith, and according to the plain meaning of the
language used in the interrogatory. When in doubt about the meaning of an interrogatory,
the respondent should give it a reasonable interpretation (which may be specified in the
response) and offer an answer designed to provide, rather than deny, information.
Counsel and parties should avoid “gamesmanship” when answering interrogatories. This
means interrogatories should not be read by the recipient in an artificial manner designed
to assure the answers are not truly responsive. If necessary, counsel should
communicate if the meaning is unclear so that the interrogatories can be answered fully
or appropriate objections can be raised. 173
A party and counsel ordinarily have complied with their obligation to respond to
170 Id.
171 Id.
172 Id.
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interrogatories if they have:
• Responded to the interrogatories within the time set by the governing rule,
stipulation, or court-ordered extension;
• Conducted a reasonable inquiry, including a review of documents likely to have
information necessary to respond to interrogatories;
• Objected specifically to objectionable interrogatories;
• Provided responsive answers; and,
• Submitted answers under oath, signed by the appropriate party representative.
Objections
Absent compelling circumstances, failure to assert objections to an interrogatory
within the time to answer constitutes a waiver and will preclude a party from asserting the
objection in a response to a motion to compel. 174 All grounds for an objection must be
stated with specificity, and should be based on a good faith belief in their merit. 175
Counsel should not make objections in order to withhold relevant information. Specific
objections should be matched to specific interrogatories. When an answer is narrowed
by one or more objections, this fact and the nature of the information withheld should be
specified in the response itself. The propounding party should file a motion to compel if
objections are improper or else they may waive their right to object to the responding
party’s objections. 176 Written objections to interrogatories should be signed by counsel
instead of the party. 177
174 Herold v. Comput. Components Intern., Inc., 252 So. 2d 576 (Fla. 4th DCA 1971).
176 Deutsche Bank Nat’l Trust Co. v. Baker, 199 So. 3d 967, n.2 (Fla. 4th DCA 2016).
177 FLA. R. CIV. P. 1.340(a).
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Claims of Privilege
Generalized assertions of privilege will be rejected. A claim of privilege must be
supported by a statement of particulars sufficient to enable the court to assess its validity.
Please refer to Section I above on this topic.
Contention Interrogatories
Interrogatories that generally require the responding party to state the basis of
particular claims, defenses, or contentions in pleadings or other documents should be
used sparingly and, if used, should be designed to (1) target claims, defenses, or
contentions that the propounding attorney reasonably suspects may be the proper subject
of early dismissal or resolution or (2) to identify and narrow the scope of unclear claims,
defenses, and contentions. Interrogatories that purport to require a detailed narrative of
the opposing parties’ case are generally improper because they are overbroad and
oppressive.
Reference to Deposition or Document
Because a party is entitled to discovery both by deposition and interrogatory, it is
ordinarily insufficient to answer an interrogatory by reference to an extrinsic matter, such
as “see deposition of Eugene Swanson” or “see insurance claim.” For example, a
corporation may be required to state its official, corporate response even though one of
its high-ranking officers has been deposed because the testimony of an officer may not
necessarily represent a complete or express corporate answer. Similarly, a reference to
a single document is not necessarily a full answer, and the information in the document—
unlike the interrogatory answer—is not ordinarily set forth under oath.
In rare circumstances, it may be appropriate for a corporation or partnership to
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answer a complex interrogatory by saying something such as “Acme Plumbing Company
adopts as its answer to this interrogatory the deposition testimony of Eugene Swanson,
its Secretary, on pages 33–76 of his deposition transcript.” This may suffice when an
individual has already fully answered an interrogatory in the course of a previous
deposition and the party agrees to be bound by this testimony. However, counsel are
reminded, as provided in Rule 1.380(a)(3), Florida Rules of Civil Procedure, that for
purposes of discovery sanctions, an evasive or incomplete answer shall be treated as a
failure to answer.
Interrogatories Should be Reasonably Particularized
Interrogatories designed to force an exhaustive or oppressive catalogue of
information are generally improper. For example, an interrogatory such as “identify each
and every document upon which you rely in support of your second affirmative defense”
is objectionably overbroad in a typical case, although it may be appropriate, for example
in a simple suit on a note. While there is no simple and reliable test, common sense and
good faith usually suggest whether such an interrogatory is appropriate.
Producing Records in Lieu of Answering Interrogatories
Under certain circumstances, a party may be permitted to produce records in lieu
of answering interrogatories. 178 When an answer to an interrogatory may be derived from
documents (including electronically stored information) and the burden of deriving the
answer is substantially the same for the party serving the interrogatory as for the party to
whom it is directed, the party answering the interrogatory may produce documents in lieu
178FLA. R. CIV. P. 1.340(c); see Mt. Sinai Med. Ctr., Inc. v. Perez-Torbay, 555 So. 1300 (Fla. 3d DCA 1990);
Fla. Dept. of Prof. Reg. v. Fla. Psychological Practitioners Ass’n, 483 So. 2d 817 (Fla. 5th DCA 1986).
68
of answering the interrogatory. 179 However, the party wishing to respond to
interrogatories in this manner must observe the following practices as required by Rule
1.340(c), Florida Rules of Civil Procedure:
• Specify the documents to be produced in sufficient detail to permit the interrogating
party to locate and identify the records and to ascertain the answer as readily as
could the party from whom discovery is sought, or identify a person who will be
available to assist the requesting party in locating and identifying the records at the
time they are produced. 180
• Give the requesting party an opportunity to inspect and make copies of the
records. 181
• Electronically stored information should be produced in the form it is ordinarily
maintained, or in a reasonably usable form. 182
It behooves the answering party to make the document search as simple as possible,
or the answering party may be required to answer the interrogatory in full.
Answering Objectionable Interrogatories
If any interrogatory is objectionable because of overbreadth, the responding party,
although objecting, must answer the interrogatory to the extent that the interrogatory is
not overbroad. In other words, an objection for overbreadth does not relieve the duty to
respond to an extent that is not overbroad, while a party awaits a judicial determination
regarding the objection.
179 FLA. R. CIV. P. 1.340(c).

180 Id.
181 Id.
182 Id.
69
III. REQUESTS FOR ADMISSION
Number and Scope of Requests for Admission
Requests for Admissions should be used sparingly and never to harass or impose
undue burden or expense on adversaries. A party may only serve 30 requests for
admission (including all parts and subparts) on any other party. 183 Leave of court, which
is not routinely given absent good cause, is required if any party would like to serve more
than 30 requests. If requests for admission are served with the initial process, the
responding party has 45-days to respond. Otherwise, responses are generally due within
30 days of service. 184 All requests should be within the scope of general discovery
rules. 185
Responding to Requests for Admission
If any portion of a request remains unanswered, the requested admission may be
deem admitted. The response should specifically deny the matter or set forth in detail the
reasons why the responding party cannot truthfully admit or deny the matter. If parts of
the statement are true and parts of the statement are untrue, the answering party must
still specify that some of the requested matter is true and then qualify or deny the
remainder. If the court determines that an answer does not comply with the rule
requirements, it may order either that the matter is admitted or that an amended answer
must be served. Under certain conditions, the court may allow a late response.
183 FLA. R. CIV. P. 1.370(a).

184 Id.
185 FLA. R. CIV. P. 1.280.
70
Objections
Reasons for an objection must be stated. 186 An answering party cannot give lack
of information or knowledge as a reason for failing to admit or deny unless they have
made a reasonable inquiry in that the information known or readily obtainable is
insufficient to enable the party to admit or deny.
Asserting Fifth Amendment Privilege
While Rule 1.370(b) of the Florida Rules of Civil Procedure purports to make
admissions privileged and applicable only to the instant proceeding, a Fifth Amendment
privilege may still apply if the question asked could evoke a response “forming a link in
the chain of evidence which might lead to criminal prosecution.” 187 In a concurring
opinion, Justice Marshall with the United States Supreme Court stated:
A witness is generally entitled to invoke the Fifth Amendment

privilege against self-incrimination whenever there is a
realistic possibility that his answer to a question can be used
in any way to convict him of a crime. It need not be probable
that a criminal prosecution will be brought or that the witness’s
answer will be introduced in a later prosecution; the witness
need only show a realistic possibility that his answer will be
used against him. Moreover, the Fifth Amendment forbids not
only the compulsion of testimony that would itself be
admissible in a criminal prosecution, but also the compulsion
of testimony, whether or not itself admissible, that may aid in
the development of other incriminating evidence that can be
used at trial . . . . The privilege is inapplicable only “if the
testimony sought cannot possibly be used as a basis for, or in
aid of, a criminal prosecution of the witness.”188
186 FLA. R. CIV. P. 1.370(a).

DeLisi v. Smith, 423 So. 2d 934 (Fla. 2d DCA 1982); see Boelke v. Peirce, 566 So. 2d 904 (Fla. 4th DCA
187
1990).
188 Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).
71
Amending Responses to Request for Admission
Any matter admitted in response to a request for admissions is “conclusively
established unless the court on motion permits withdrawal or amendment of the
admission.” 189 Motions to amend or withdraw admissions are liberally granted absent
prejudice to the opposing party to ensure cases are decided on their merits. 190 Excusable
neglect such as clerical mistake is a proper reason to allow amendment. 191 A motion
must be filed to obtain such relief, 192 unless the fact admitted has been “continually
contradicted” in various filings throughout the litigation. 193
189 FLA. R. CIV. P. 1.370(b).

190 See Clemens v. Namnum, 233 So. 3d 1146 (Fla. 4th DCA 2017); but cf. Asset Mgmt. Consultants of
Virginia v. City of Tamarac, 913 So. 2d 1179, 1181 (Fla. 4th DCA 2005) (amendment requested after motion
for summary judgment was heard was improper for lack of due diligence and prejudice).
191Davison v. First Fed. Sav. & Loan Ass’n of Orlando, 413 So. 2d 1258 (Fla. 5th DCA 1982); Wood v.
Fortune Ins. Co., 453 So. 2d 451 (Fla. 4th DCA 1984).
192See Morgan v. Thomson, 427 So. 2d 1134, 1134-35 (Fla. 5th DCA 1983) (holding that “a motion must
be made for relief from the admissions automatically resulting from a failure to timely answer a request for
admissions” even where the party later files a pleading or affidavit conflicting with the admissions.); see
also Singer v. Nationwide Mut. Fire Ins. Co., 512 So. 2d 1125 (Fla. 4th DCA 1987) (admissions were
conclusively established absent motion for relief).
193See Moreland v. City of Fort Myers, 164 So. 3d 111, 113 (Fla. 2d DCA 2015) (reversing summary
judgment where defendant’s technical failure to respond to request for admissions constituted an admission
to dispositive fact but defendant had “continually contradicted” that fact in various filings leading up to
summary judgment).
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CHAPTER FIVE
PROPER CONDUCT OF DEPOSITIONS
Starting on the date of admission to The Florida Bar, counsel pledges fairness,
integrity and civility to opposing parties and their counsel, not only in court but also in all
written and oral communications. 194 The Rules Regulating the Florida Bar also prohibit a
lawyer from “unlawfully obstruct[ing] another party’s access to evidence,” “fabricat[ing]
evidence” or “counsel[ing] or assist[ing] a witness to testify falsely.” Rule 4-3.4. See also
Rule 3-4.3 and 3-4.4 (misconduct may constitute a ground for discipline); Rule 4-3.5
(Disruption of a Tribunal); Rule 4-4.4 (Respect for Rights of Third Persons); Rule 4-8
(Maintaining the Integrity of the Profession).
The Florida Bar’s “Guidelines for Professional Conduct,” promulgated jointly by the
Conference of Circuit Court Judges, the Conference of County Court Judges, and the
Trial Lawyers Section of the Florida Bar, specifically address deposition conduct. 195
These guidelines make clear that counsel should refrain from repetitive and
argumentative questions, as well as questions and comments designed to harass or
intimidate a witness or opposing counsel. Counsel are also advised not to engage in any
conduct during a deposition that would not be allowed in the presence of a judicial officer.
Rule 1.310(c) of the Florida Rules of Civil Procedure provides that “examination and
cross-examination of witnesses may proceed as permitted at trial.” It is the firm position
of the Conference of Circuit Judges and the Conference of County Court Judges that the
intention of Rule 1.310(c), as quoted above, is that counsel shall conduct themselves at
194 Oath of Admission to the Florida Bar.

195 See Section F within the Professionalism Handbook.
73
deposition as they are expected to behave in the presence of a judicial officer.
Let there be no doubt that violations of these rules of fairness and civility may result
in significant disciplinary action. In Florida Bar v. Ratiner, 196 a lawyer was publicly
reprimanded by the Supreme Court of Florida, suspended for sixty days, and put on
probation for two years, all for engaging in deposition misconduct. Also, in 5500 North
Corp. v. Willis, 197 the Fifth District Court of Appeal approved the trial court’s referral of
deposition conduct issues to The Florida Bar. The appellate court noted that in terms of
counsel’s deposition behavior, “[w]e would expect more civility from Beavis and
Butthead.”
Objections
The Proper Form of Objections
Rule 1.310(c) provides, in part, that “[a]ny objection during a deposition must be
stated concisely and in a nonargumentative and nonsuggestive manner.” The Florida
Rule is derived directly from Rule 30 of the Federal Rules and is almost verbatim. The
proper form of a deposition objection is to make an objection to the form of the question
and then briefly state the specific form problem, such as, “objection as to form, leading”,
“objection as to form, compound question”, or, “objection as to form, argumentative.” 198
The proper objection “concisely” states the basis of the objection. This allows for the
objection to be stated in a nonargumentative and nonsuggestive form and gives the
questioning attorney the opportunity to correct the asserted defect at the time of the
deposition.
196 46 So. 3d 35 (Fla. 2010).

197 729 So. 2d 508, 514 (Fla. 5th DCA 1999).
198 See Narumi Vargas v. Fla. Crystals Corp., No. 16-81399-CV, 2017 WL 1861775 (S.D. Fla. May 5, 2017).
74
Speaking Objections
Speaking objections to deposition questions are not permitted. They are designed
to obscure or hide the search for the truth by influencing the testimony of a witness. They
are, by definition, objections that are argumentative or suggest answers. Objections and
statements that a lawyer would not dare make in the presence of a judge should not be
made at depositions. 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”, or, simply suggesting a witness
only answer “if you know”.
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.”
Coaching the deponent or suggesting answers through objections or otherwise is
improper and should never occur.
If a deponent changes his or her testimony after consulting with counsel, the fact
of the consultation may be brought out, but the substance of the communication generally
is protected. 199 Where an attorney has improperly instructed the client not to answer a
question at deposition, the court may prohibit the attorney from communicating with the
199 Haskell Co. v. Ga. Pac. Corp., 684 So. 2d 297 (Fla. 5th DCA 1996).
75
client concerning the topic at issue until such time as the deposition recommences. 200
It has been stated that, “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. 201
Rule 1.310(d) provides that a “motion to terminate or limit examination” may be
made upon a showing that objection and instruction to a deponent not to answer are being
made in violation of Rule 1.310(c).
Examinations
Just as the objecting attorney is required to behave in a professional manner, the
examining attorney has the same professional responsibility to treat opposing counsel
and the witness or party being examined with respect and courtesy.
Overly aggressive, hostile and harassing examinations intending to intimidate a
witness or party would not be permitted in the presence of a judicial officer and are
likewise not permitted at deposition. Intentionally misleading a witness or party is similarly
unprofessional and not permitted.
Rule 1.310(d) provides that a “motion to terminate or limit examination” may be
made upon a showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass or oppress the deponent or party.
200 McDermott v. Miami-Dade Cty., 753 So. 2d 729 (Fla. 1st DCA 2000).
201 Hall v. Clifton Precision, A Div. of Litton Sys., Inc.,150 F.R.D. 525 (ED. Pa. 1993).
76
The Proper Response to Improper Conduct
If opposing counsel exhibits any of the behavior described above, the proper
response is to object and concisely describe the improper conduct. Counsel should
exhaust all efforts to resolve a dispute that threatens the ability to proceed with deposition.
If such action fails to resolve the issue, many judges permit counsel to telephone
the court for a brief hearing when irreconcilable issues arise at deposition. Counsel may
want to take a break during the deposition and call chambers, requesting a brief hearing
to resolve the matter. This is especially true if the deposition is out-of-state and would be
costly to reconvene. It helps to know the judge’s preferences in this regard, but judges
generally are aware that the use of this procedure—if not abused by counsel—provides
an excellent opportunity to attempt to resolve issues on the spot before they develop into
more costly and complex proceedings after the fact. However, it is important to note that
these emergency hearings place the judge in a difficult position. Having not personally
witnessed the behavior and without the aid of a deposition transcript, the judge’s ability
to issue a thoughtful, informed order may be limited.
A party or witness who reasonably believes that a deposition is “being conducted
in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the
witness or party,” or that “objection and instruction to a deponent not to answer are being
made in violation of rule 1.310(c),” may move to terminate or limit the deposition and
immediately move for protective order. The most appropriate action is to make such
motion orally and concisely on the record at the time of the deposition and follow promptly
with a written motion for protective order. A copy of the deposition will need to be filed
with the written motion. Rule 1.310(d) specifically provides that the taking of the
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deposition shall be suspended upon demand of any party or the deponent for the time
necessary to make a motion for an order. All phases of the examination are subject to
the control of the court, which has discretion to make any orders necessary to prevent
abuse of the discovery and deposition process.
Depositions of Corporate Representative(s)
Rule 1.310(b)(6) permits the party seeking discovery to designate, with reasonable
particularity, the matters for examination and requires the responding party to produce
one or more witnesses who can testify as to the corporation’s knowledge of the specified
topics. The Rule was designed in part to streamline litigation and is patterned closely
after Federal Rule 30(b)(6). Florida case law and Federal cases interpreting comparable
provisions are persuasive on the issues related to the Rule.
The issues that arise under Rule 1.310(b)(6) are numerous and too extensive to
address fully in this Handbook. However, some simple guidelines should be followed:
(a) Requested Areas of Testimony. A notice or subpoena to an entity, association,
or other organization should accurately and concisely identify the designated area(s) of
requested testimony, giving due regard to the nature, business, size, and complexity of
the entity being asked to testify.
(b) Designating the Best Person to Testify for the Organization. An entity,
association, or other organization responding to a deposition notice or subpoena should
make a diligent inquiry to determine the individual(s) best suited to testify.
(c) Reasonable Interpretation Is Required. Both in preparing and in responding to
a notice or subpoena to an entity, association, or other organization, a party or witness is
expected to interpret the designated area(s) of inquiry in a reasonable manner consistent
78
with the entity’s business and operations.
(d) If in Doubt, Clarification Is Appropriate. A responding party or witness,
who is unclear about the meaning and intent of any designated area of inquiry,
should communicate in a timely manner with the requesting party to clarify the
matter so that the deposition may proceed as scheduled. The requesting party is
obligated to provide clarification sufficient to permit informed, practical, and
efficient identification of the proper witness.
(e) Duty to Prepare Witness. Counsel for the entity should prepare the
designated witness so that the witness can provide meaningful information about
the designated area(s) of inquiry. 202
Additional resources addressing the proper conduct of Rule 1.330(b)(6)
depositions include Robert D. Peltz and Robert C. Weill, Corporate Representative
Depositions: In Search of a Cohesive & Well Defined Body of Law, 203 and, Carriage Hills
Condo., Inc. v. Jbh Roofing & Constr., Inc. 204
Conclusion
The proper, ethical and professional conduct of depositions in Florida is addressed
in almost every circuit through various guidelines for professional conduct, discovery
handbooks and local rules. Counsel must educate themselves on these guidelines and
rules, and at all times rise to the level of professionalism expected of members of The
Florida Bar.
202 Discovery Practice Middle District of Florida – rev. 6/5/15.

203 33 NOVA L. REV. 393 (2009).
204 109 So. 3d 329 (Fla. 4th DCA 2013).
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CHAPTER SIX
EXPERT WITNESS DISCOVERY
I. Introduction 205
Experts generally are qualified to render opinions based on their experience,
background, and training. In medical malpractice actions, the law imposes additional
requirements to ensure the expert has the necessary expertise. 206 Like any witness,
however, an expert and the testimony the expert presents are subject to impeachment.
Challenges to the expert’s qualifications and the validity of an opinion may be made to
the court in its gatekeeper role; and, if the opinion is allowed, challenges may be made
before the trier of fact by way of cross-examination and rebuttal. 207
General challenges to an expert’s qualifications include the knowledge, skill,
experience, training, and education of the witness. Rarely, however, will an expert be
excluded on general challenges to qualification. Indeed, the court should not exclude an
expert's opinion based on matters that go to the weight of the expert’s opinion because it
is the exclusive province of the jury to weigh the evidence. 208 Challenges that go to the
weight of an expert’s opinions include the reasons given by the witness for the opinion
expressed, the reasonableness of the opinion in light of all surrounding facts and
205Updated by the Honorable Elizabeth G. Rice, Circuit Judge, Thirteenth Judicial Circuit, with significant
contributions by Aaron Proulx, Esquire, of Smoak, Chistolini & Barnett, PLLC.
206 E.g., FLA. STAT. § 766.102(5) (2018).
207 In 2013, the Florida Legislature amended section 90.702, Florida Statutes, and stated in the preamble
to the amendment that it intended to adopt as standards for expert testimony to be used by the courts of
this state those standards as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., Gen. Elec. Co. v.
Joiner, and Kumho Tire Co., Ltd. v. Carmichael, and to no longer apply the standard in Frye v. United
States. But the Florida Supreme Court recently held that the Florida legislature’s Daubert statute is
unconstitutional. See DeLisle v. Crane Co., No. SC16-2182, 2018 WL 5075302 (Fla. Oct. 15, 2018).
208 See e.g., Univ. of Fla. Bd. of Trs. v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) (citation omitted).
80
circumstances, whether the opinion differs from that of other qualified experts or
recognized authorities and treatises, and any relationship or circumstance that may give
rise to bias on the part of the expert. 209
Discovery as to these factors therefore should be broad enough for the opposing
party to challenge the expert and the expert’s testimony, especially the expert’s
credibility. 210 Accordingly, when engaging in discovery to obtain facts with which to
assault the credibility of an opponent’s expert witness, a party may seek that information
from multiple sources including: (1) the party for whom the expert will testify; (2) the party’s
insurance company; (3) the expert; and, in certain circumstances, (4) the attorney for the
party.
II. Discovery Served on a Party
A. “Retained” Experts
1. Opinion Discovery
Florida Rule of Civil Procedure 1.280(b)(5) (Trial Preparation: Experts) confines both
the discovery methods that may be employed when directed to expert witnesses and the
subject matter of that discovery. 211 Specifically, Rule 1.280(b)(5)(A) provides, in relevant
part, that the discovery of facts known and opinions held by experts, otherwise
discoverable under the provisions of Rule 1.280(b)(1) 212 and which are “acquired or
209 See FLA. STD. JURY INSTR. (CIV) 601.2.

210 See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L.ED.2d 347 (1974) (“A more particular
attack on the witness’s credibility is effected by means of cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or
personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always
relevant as discrediting the witness and affecting the weight of his testimony.”) (quoting 3A J. W IGMORE,
EVIDENCE s 940, p. 775 (Chadbourn rev. 1970)).
211 Smith v. Eldred, 96 So. 3d 1102, 1104 (Fla. 4th DCA 2012).
212FLA. R. CIV. P. 1.280(b)(1) (Scope of Discovery – In General) (“Parties may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to
81
developed” by the expert “in anticipation of litigation or for trial” (i.e., by a “retained”
expert) 213, may be obtained only as follows:
(A)(i) By interrogatories a party may require a party (a) to

identify each person whom the party expects to call as an
expert witness at trial and (b) to state the subject matter on
which the expert is expected to testify, and (c) to state the
substance of the facts and opinions to which the expert is
expected to testify and (d) to provide a summary of the
grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a
person expected to be called as an expert witness at trial may
be deposed in accordance with Fla. R. Civ. P. 1.390 without
motion or order of court. 214
Rule 1.280(b)(5)(A)(i) allows a party to obtain information about another party’s expert
“initially only through the vehicle of interrogatories.” 215 Until these interrogatories have
been served, discovery by other means is impermissible. 216 Rule 1.280(b)(5)(A)(ii)
thereafter allows a party to depose without order any person disclosed by interrogatories
or otherwise as a person expected to be called as an expert witness at trial. It is important
to note that an “expert,” as the term is used in Rule 1.280(b)(5), is an “expert witness” as
the claim or defense of the party seeking discovery or the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any discoverable thing.”).
213It is significant to note that the only mention of the word “retained” in FLA. R. CIV. P. 1.280(b)(5) is in Rule
1.280(b)(5)(B). See FLA. R. CIV. P. 1.280(b)(5)(B) (referring to “an expert who has been retained or specially
employed by another party in anticipation of litigation or preparation for trial and who is not expected to be
called as a witness at trial”) (emphasis added). It appears that over time, and likely because of the advent
of treating physician experts, trial courts started referring to Rule 1.280(b)(5)(A) experts as “retained”
experts. Rather than correct the nomenclature, the authors of this chapter have defined these types of
experts as “retained” experts.
214 FLA. R. CIV. P. 1.280(b)(5)(A) (emphasis added).
215 Smith, 96 So. 3d at 1103 (quoting Cont’l Ins. Co. v. Cole, 467 So. 2d 309, 311 (Fla. 4th DCA 1985).
216Smith, 96 So. 3d at 1103 (citations omitted). See Miller v. Harris, 2 So. 3d 1070, 1073 (Fla. 2d DCA
2009) (holding trial court departed from essential requirements of law by ordering subpoena to issue before
determining whether usual interrogatories would provide the limited information normally discoverable in
an automobile negligence action).
82
defined in Florida Rule of Civil Procedure 1.390(a). 217
Further discovery by other means may be ordered upon motion, subject to such
restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of the rule
regarding fees and expenses, as the court may deem appropriate. 218 Rule 1.280(b)(5)(A)
additionally provides that production of an expert’s financial and business records may
be required “only under the most unusual or compelling circumstances” 219 and that an
expert witness may not be compelled to compile or produce non-existent documents. 220
2. “Financial” or “Litigation Bias” Discovery
One manner by which a party may attack the credibility of a witness is by exposing
a potential bias. 221 As it relates to a “retained” expert, bias may be demonstrated by
revealing an expert’s receipt of financial remuneration for testifying and an expert’s
financial or business interest in supporting the opinions expressed. Accordingly, a party
is entitled to discover a “retained” expert’s potential for “financial” or “litigation bias” (i.e.,
the bias that would stem from an expert’s general involvement in litigation), as set forth
below.
Prior to 1994, some trial courts had permitted broad discovery into the private
financial affairs of experts far beyond what was reasonably necessary to fairly litigate the
potential for bias and which was invasive and harassing and threatened to chill the
217 FLA. R. CIV. P. 1.280(b)(5)(D). See FLA. R. CIV. P. 1.390(a) (Definition), which provides that the term
expert witness “applies exclusively to a person duly and regularly engaged in the practice of a profession
who holds a professional degree from a university or college and has had special professional training and
experience, or one possessed of special knowledge or skill about the subject upon which called to testify.”
218 FLA. R. CIV. P. 1.280(b)(5)(C).
219 FLA. R. CIV. P. 1.280(b)(5)(A).
220 FLA. R. CIV. P. 1.280(b)(5)(A). See Price v. Hannahs, 954 So. 2d 97, 101 (Fla. 2d DCA 2007).
221 FLA. STAT. § 90.608(2).
83
willingness of experts to become involved in litigation. In Syken v. Elkins, 222 the Third
District Court of Appeal, en banc, quashed a trial court order requiring the “retained”
experts in the case to produce expansive private financial information, including tax
returns and information regarding patients who were examined for purposes of litigation
in unrelated actions. In doing so, the Syken court fashioned various criteria for financial
discovery and a methodology that balanced a party's need to obtain financial bias
discovery regarding a “retained” expert with the need to protect the expert’s privacy
rights. 223 The Syken court’s criteria subsequently was adopted in full by the Florida
Supreme Court in Elkins v. Syken, 224 and codified, in part, in Florida Rule of Civil
Procedure 1.280(b)(4)(A)(iii), later renumbered as Rule 1.280(b)(5)(A)(iii). 225
Subsection (iii) of Rule 1.280(b)(5)(A) unquestionably was implemented to protect
“retained” experts from the annoyance, embarrassment, oppression, undue burden, or
expense associated with discovery of financial information. 226 Rule 1.280(b)(5)(A)(iii)
accordingly provides as follows:
(iii) A party may obtain the following discovery regarding any person
disclosed by interrogatories or otherwise as a person expected to be
called as an expert witness at trial:
The scope of employment in the pending case and the compensation

for such service.
The expert's general litigation experience, including the percentage

of work performed for plaintiffs and defendants.
The identity of other cases, within a reasonable time period, in which
222 644 So. 2d 539 (Fla. 3d DCA 1994), approved, 672 So. 2d 517 (Fla. 1996).
223 Id. at 546.
224 672 So. 2d 517 (Fla. 1996).
225 IN RE AMENDMENTS TO FLA. R. CIV. PRO.--ELEC. DISCOVERY, 95 So. 3d 76, 80 (Fla. 2012).
226 See FLA. R. CIV. P. 1.280 (Committee Notes 1996 Amendment).
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the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert's involvement as an

expert witness, which may be based on the number of hours,
percentage of hours, or percentage of earned income derived from
serving as an expert witness; however, the expert shall not be
required to disclose his or her earnings as an expert witness or
income derived from other services. 227
Given the purpose of financial discovery - to expose potential bias to the jury -
courts have ruled that the financial bias information available under Rule
1.280(b)(5)(A)(iii) usually is sufficient to accomplish this purpose. 228 Thus, an expert
generally “shall not be required to disclose his or her earnings as an expert witness or
income derived from other services,” 229 and a trial court must make a finding of “the most
unusual or compelling circumstances” before an expert is required to do so. 230 The rule
clearly limits discovery of the “retained” expert’s general financial information where such
information is sought solely to establish bias. 231
3. “Relationship Bias” Discovery
Another way bias may be demonstrated is by revealing an expert’s relationship
with a party or a party’s attorney or law firm. Accordingly, Florida courts have permitted
broad discovery into a “retained” expert’s potential for “relationship bias” (i.e., the bias
227 FLA. R. CIV. P. 1.280(b)(5)(A)(iii).

228 See Elkins v. Syken, 672 So. 2d 517 (Fla. 1996).
229 FLA. R. CIV. P. 1.280(b)(5)(A)(iii)4. See also Brana v. Roura, 144 So. 3d 699, 700 (Fla. 4th DCA 2014)
(quashing trial court’s orders denying petitioners’ motions for protective order where respondent issued
subpoenas to insurance carriers requiring disclosure of financial information concerning payments made
by those carriers to expert witness doctor for services provided as a litigation expert and finding that
information was protected from disclosure by Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii)4)).
230 FLA. R. CIV. P. 1.280(b)(5)(A); see Grabel v. Sterrett, 163 So. 3d 704, 704 (Fla. 4th DCA 2015).
231See Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA 2012),
disagreed with on other grounds in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18
(Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017
WL 4547140 (Fla. Oct. 12, 2017).
85
that stems from a “retained” expert’s involvement with a party, an agent for a party, such
as a particular insurance carrier, or a party’s attorney or law firm), as set forth below. 232
After the Florida Supreme Court’s ruling in Elkins, parties were limited in the type
of discovery they could obtain for impeachment purposes to the information set forth in
Rule 1.280(b)(5)(A)(iii). Subsequently, in Allstate Ins. Co. v Boecher, the court
recognized the need for allowing more extensive relationship bias discovery to assist
counsel in impeaching examining physicians and other “retained” experts by
demonstrating the experts’ economic ties to insurance companies or defense law firms. 233
In Boecher, the plaintiff had sued his uninsured motorist insurance company and was
seeking from it discovery of the identity of cases and the amount of fees paid by the
insurance company to its “retained” expert during the preceding three years. The precise
issue before the court was whether its prior ruling in Elkins and former Rule 1.280(b)(4)(iii)
prevented discovery requests from being propounded directly to a party regarding the
extent of that party’s use of and payment to a particular “retained” expert. 234
The Boecher court ultimately ruled that the limitations on expert discovery adopted
in Elkins could not be used to shield discovery sought from a party regarding its
relationship with its expert, particularly its financial relationship. 235 It reasoned that where
232 See e.g., Allstate Ins. Co. v Boecher, 733 So. 2d 993, 997 (Fla. 1999) (ruling that where discovery is
directed to a party about the extent of that party’s relationship with a particular expert, “the balance of the
interests shifts in favor of allowing the pretrial discovery”); Morgan, Colling & Gilbert v. Pope, 798 So. 2d 1
(Fla. 2d DCA 2001) (ruling that had merits of case been considered, trial court’s order requiring plaintiff’s
law firm to produce certain financial relationship documents would have conformed to trend of insuring
fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a
party or representative).
233 733 So. 2d 993 (Fla. 1999).
234 Id. at 994 (emphasis added).
235 Id. at 998.
86
discovery is directed to a party about the extent of that party’s relationship with a particular
expert, “the balance of the interests shifts in favor of allowing the pretrial discovery.” 236
The court distinguished Elkins and emphasized that Elkins involved discovery
propounded directly on the party’s expert regarding the extent of that expert’s relationship
with others. 237
Additionally, the court reasoned that the information being requested by the plaintiff
in Boecher was directly relevant to a party’s efforts to demonstrate to the jury the expert’s
bias by demonstrating the expert’s “ongoing relationship” with the party. 238 The court
explained that the more extensive the financial relationship between a party and a
witness, the more likely it is that the witness has a vested interest in that financially
beneficial relationship continuing. 239 It opined that a jury is entitled to know the extent of
the financial connection between the witness and a party and the cumulative amount a
party has paid an expert during their relationship. 240 It further opined that a party is
entitled to argue to the jury that a witness might be more likely to testify favorably on
behalf of the party because of the witness’s financial incentive to continue the financially
advantageous relationship. 241
The court in Boecher therefore concluded that “the jury’s right to assess the
potential bias of the expert outweighs any of the competing interests expressed in
236 Id. at 997.

237 Id. at 995 (emphasis added).
238 Id. at 997.
239 Id.
240 Id.
241 Id. at 997-98.
87
Elkins.” 242 It further clarified that the protections afforded “retained” experts under Elkins
and former Rule 1.280(b)(4)(iii) were not intended “to place a blanket bar on discovery
from parties about information they have in their possession about an expert, including
the party’s financial relationship with the expert.” 243
Courts in Florida subsequently have extended the holding in Boecher to allow a
plaintiff to obtain discovery directly from an insured party defendant regarding the
relationship between the defendant’s insurer and the defendant’s “retained” expert. 244
Florida courts additionally have extended Boecher’s application to plaintiffs and have
ruled that defendants are entitled to obtain from plaintiffs Boecher discovery regarding
plaintiffs’ “retained” experts (i.e., “Reverse Boecher”). 245
B. “Consulting” Experts
As to experts retained in anticipation of litigation or in preparation for trial, but who are
not expected to be called as a witness at trial (i.e., a “consulting” expert), Rule
1.280(b)(5)(B) provides that a party may discover facts known or opinions held by such
experts only as provided in Rule 1.360(b) or “upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain
242 Id. at 998.

243 Id.
244See e.g., Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000) (“Where an insurer provides a
defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is
discoverable from the insured.”).
245 See e.g., Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001) (opining that trial
court’s order requiring plaintiff’s law firm to produce deposition and trial transcripts in its possession of
plaintiff’s expert witnesses and copies of billing invoices submitted by experts to law firm for previous three
years conformed to trend of insuring fairness in the jury trial process by permitting discovery of a financial
relationship between a witness and a party or representative); Springer, 769 So. 2d at 1069 (“[A] defendant
may question a plaintiff about any relationship between his or her attorney and the plaintiff’s trial expert.”).
88
facts or opinions on the same subject by other means.”246 The identity of “consulting”
experts is protected by the work-product privilege. 247
C. Non-Party Medical Providers
In addition to the “retained” experts specifically identified in Rule 1.280(b)(5), Florida
courts have recognized other types of “experts” about whom and from whom discovery is
permitted. These types of experts are identified and discussed below.
1. “Pure” and “Hybrid” Treating Physicians
Florida courts seemingly recognize two types of treating physicians – the “pure”
treating physician and the “hybrid” treating physician. 248 The “pure” treating physician,
while unquestionably an expert under the Florida Rules of Civil Procedure, is a physician
that does not acquire her expert knowledge for the purpose of litigation, but simply in the
course of treatment and in attempting to make her patient well. 249 While a treating
246 FLA. R. CIV. P. 1.280(b)(5)(B) (emphasis added).

Muldow v. State, 787 So. 2d 159 (Fla. 2d DCA 2001); Myron By & Through Brock v. Doctors Gen., Ltd.,
247
573 So. 2d 34 (Fla. 4th DCA 1990). See infra, p. 17 Miscellaneous Issues. 3. Discovery Regarding Expert
Not Testifying at Trial.
248 See e.g., Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA
2012), disagreed with on other grounds in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So.
3d 18 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086,
2017 WL 4547140 (Fla. Oct. 12, 2017) (“For purposes of uncovering bias, we see no meaningful distinction
between a treating physician witness, who also provides an expert opinion (the so-called ‘hybrid witness’),
and retained experts.”); State Farm Mut. Auto. Ins. Co. v. German, 12 So. 3d 1286, 1287 (Fla. 5th DCA
2009). See also Field Club v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (noting for purposes of
expert witness fees as a taxable cost that physician could properly be considered a retained expert witness
because, even though he was plaintiff’s treating physician, he also gave his expert opinions on plaintiff’s
injuries and their significance); Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA
2003) (rejecting black letter rule whereby testimony offered by treating physician is never considered for
purposes of a one-expert-per-side limitation).
249See Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (finding FLA. R. CIV. P. 1.280(b)(3)
did not apply to sworn statement taken by defendant from subsequently treating dentist without notice to
plaintiff in malpractice case because treating physician, “while unquestionably an expert, [did] not acquire
his expert knowledge for the purpose of litigation” as the rule contemplates) (emphasis added). See
Gutierrez v. Vargas, 239 So. 3d 615, 622-23 (Fla. 2018); Clair v. Perry, 66 So. 3d 1078, 1079 n. 1 (Fla. 4th
DCA 2011); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998).
89
physician may hold the same qualifications as a “retained” expert witness, “treating
physicians form medical opinions in the course of rendering treatment and may therefore
testify to the fact that they formed those opinions, and explain why they did so, provided
such testimony is otherwise admissible.” 250
A “hybrid” treating physician, in contrast, has characteristics of both a “pure”
treating physician and a “retained” expert. In one regard, the physician is a “fact” witness,
a mere treating physician. In another regard, the same physician also provides expert
opinions at trial regarding causation, the permanency of injuries, prognosis, and the need
for, and cost of, future treatment. Hence, the “hybrid” treating physician is not a typical
“pure” treating physician that a patient independently sought out, nor is she a witness
retained merely to give an expert opinion about an issue at trial. 251
Discovery as to the facts and opinions held by “pure” or “hybrid” treating physician
expert witnesses in cases where a party is making a claim for personal injury damages is
permitted pursuant to Florida Rule of Civil Procedure 1.280(b), because the care and
treatment of a party is relevant and not privileged. A party may seek to obtain discovery
of this type of information pursuant to Florida Rule of Civil Procedure 1.280(a) by way of
written interrogatories, requests for production of documents, and requests for
250 Gutierrez, 239 So. 3d at 623.

251 See Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011). See also
Gutierrez, 239 So. 3d at 624 (“It is entirely possible that even a treating physician’s testimony could cross
the line into expert testimony.”) (quoting Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 n.1 (Fla.
3d DCA 2005)); Field Club, Inc., 180 So. 3d at 1141 (noting as threshold issue, that plaintiff’s treating
physician could properly be considered an expert witness because he also gave expert opinions on
plaintiff’s injuries and their significance).
90
admissions. 252 In addition, Florida Rule of Civil Procedure 1.390(b) provides that an
expert’s testimony may be taken at any time before the trial in accordance with the rules
for taking depositions. 253
“A treating physician, like any other witness, is subject to impeachment based on
bias.” 254 Notwithstanding, trial courts have grappled with the scope and breadth of
financial or litigation bias discovery regarding treating physicians in that “[t]estimony given
by treating physicians blurs the boundary between fact testimony and expert
testimony….” 255 A thoughtful explanation of the issue of whether a party is entitled to
discovery regarding a treating physician is set forth in State Farm Mut. Auto. Ins. Co. v.
German. 256 In his concurring opinion, Judge Torpy explained that a treating physician,
like any other witness, may be questioned at trial concerning any bias he or she might
have for or against a party. 257 He noted that a treating physician who devotes a
substantial portion of his or her practice to expert testimony on behalf of plaintiffs might
have a bias towards plaintiffs just as a “retained” expert, and thus, inquiry at trial to expose
that potential bias is permitted. 258 He reasoned that it logically followed then that pretrial
252 See FLA. R. CIV. P. 1.280(a). See generally FLA. R. CIV. PRO. FORMS – STD. INTERROGATORY FORMS as
to physicians who treated or examined party.
253 FLA. R. CIV. P. 1.390(b).
254 Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA 2012),
WL 4547140 (Fla. Oct. 12, 2017). See Worley, 228 So. 3d at 23. See also Gutierrez, 239 So. 3d at 624
(“Not all medical opinions formed by a treating physician are automatically admissible.”).
255 Gutierrez, 239 So. 3d at 622.
256 12 So. 3d 1286, 1287-88 (Fla. 5th DCA 2009) (Torpy, J., concurring).
257Id.; see Siplin v. Carnival Corp., No. 17-civ-23741-WILLIAMS/TORRES, 2018 WL 3439452, at *5 (S.D.
Fla. July 17, 2018).
258 State Farm Mut. Auto. Ins. Co. v. German, 12 So. 3d at 1287-88 (Fla. 5th DCA 2009).
91
discovery to uncover evidence of bias is permissible for all the same reasons discovery
on any trial issue is permitted. 259
Judge Torpy also observed that the extent to which discovery is permitted on this
issue of bias is a function of balancing its importance against the burden of providing the
discovery. 260 He concluded that in most instances, the correct balance is the same
balance contained in Rule 1.280(b)(5)(A)(iii), because there is no logical distinction
between treating physicians and “retained” experts for purposes of uncovering this type
of information. 261 The information to be obtained from this type of expert witness is
similarly relevant, and the burdens of producing the information are the same for all of
these types of professionals. 262
The distinction between “pure” and “hybrid” treating physicians has also been
addressed by the federal courts in the context of Federal Rule of Civil Procedure 26(a)
disputes regarding witness disclosures. 263 In resolving these types of disputes, federal
courts (as did Judge Torpy) have focused on the substance of the expert’s testimony and
have found the rule-of-thumb label of “treating physician” irrelevant. 264 Although arising
259 Id.
260 Id.
261 Id.
262 Id.
263 See e.g., Blakely v. Safeco Ins. Co. of Ill., No. 6:13-cv-796-Orl-37TBS, 2014 WL 1118071, at *2 (M.D.
Fla. Mar. 20, 2014) (“In determining whether a Rule 26(a)(2)(B) report is required, the label of ‘treating
physician’ is irrelevant; instead, the determination turns on the substance of the physician's testimony.”); In
re Denture Cream Prods. Liab. Litig., No. 09-2051-MD, 2012 WL 5199597, at *4 (S.D. Fla. Oct. 22, 2012)
(“In determining whether a Rule 26(a)(2)(B) report is required, the label of `treating physician’ is irrelevant;
instead, the determination turns on the substance of the physician’s testimony.”); Singletary v. Stops, Inc.,
No. 6:09-CV-1763-ORL-19KRS, 2010 WL 3517039, at*6 (M.D. Fla. Sept. 7, 2010) (“Like other provisions
of Rule 26, the expert report requirement turns on the substance of the testimony of the witness, not the
status or categorization of the witness.”).
264Id. See also Anderson v. City of Ft. Pierce, No. 14-14095-civ-MARTINEZ/LYNCH, 2015 WL 11251762,
at *2 (S.D. Fla. April 15, 2015) (“In the context of a treating doctor, Rule 26(a)(2)(C) applies if the doctor
testifies about opinions formed and observations made during the course of treatment. In essence [the
92
in a slightly different context, the Florida Supreme Court in the case of Gutierrez v. Vargas
likewise focused on the role played by the physician, rather than the rule-of-thumb label
of “treating physician” in ultimately deciding the issue of whether a treating physician was
a mere “fact witness” or an expert subject to the “one expert per specialty” at trial
limitation. 265
Accordingly, discovery of financial or litigation bias information as to treating
physicians, regardless of whether the treating physician is deemed to be a “pure” treating
physician or a “hybrid,” is permissible. Logic and reason dictate, however, that a treating
physician expert is entitled to the same protection from overly intrusive general financial
bias discovery afforded to “retained” experts under Rule 1.280(b)(5)(a)(iii). 266
Determination as to the scope and extent of this type of discovery will need to be made
by the trial judge on a case-by-case basis. 267 Additionally, obtaining this type of discovery
directly from the plaintiff may prove inadequate because the plaintiff may not have
possession, custody, or control of the treating physician’s relevant documents. A party
treating doctor] simply is a fact witness whose opinions and insight are informed by his professional training,
experience, and expertise. This Court adds that (sic) range of issues that can arise from a treating
relationship is broad. However, at that point where a treating doctor offers an opinion outside the scope of
treatment, he becomes an expert witness and Rule 26(a)(2)(B) applies.”).
265Gutierrez v. Vargas, 239 So. 3d 615, 624 (Fla. 2018) (ruling that “if the treating physician gives a medical
opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician,
then the physician is a fact witness. If, however, the treating physician gives an opinion formed based on
later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the
physician acts as an expert witness, and should be considered as such.”) (emphasis added).
266 Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA 2012),
WL 4547140 (Fla. Oct. 12, 2017) (“Under ordinary circumstances, a defendant may discover from a
plaintiff’s treating physician the type of general financial bias information set out in Rule 1.280(b)(5)(iii).”).
See also Winn-Dixie Stores, Inc. v. Miles, 616 So. 2d 1108, 1110 (Fla. 5th DCA 1993) (“Absent some sort
of basis for suspecting that [the treating physician] is biased, [defendant] should not be allowed to engage
in an extensive fishing expedition which may prove worthless.”).
267 See State Farm Mut. Auto Ins. Co. v. German, 12 So. 3d 1286, 1288 (Fla. 5th DCA 2009).
93
seeking this type of discovery will likely need to seek and obtain it from the treating
physician directly. 268
In contrast, relationship bias discovery as to treating physicians, regardless of
classification, is severely restricted, especially when such discovery is sought from the
plaintiff. In Worley v. Cent. Fla. Young Men's Christian Ass'n, Inc., the Florida Supreme
Court addressed the issue of whether the financial relationship between a plaintiff’s law
firm and the plaintiff’s treating physician is discoverable. 269 In Worley, the defense had
asked plaintiff during her deposition if plaintiff’s law firm had referred her to plaintiff’s
treating physicians. It then propounded discovery on plaintiff seeking to discover the
existence of a referral relationship between plaintiff’s law firm and plaintiff’s treating
physicians. 270 The Florida Supreme Court ultimately held that the financial relationship
between a plaintiff’s law firm and a plaintiff’s treating physicians was not discoverable
from the plaintiff or the plaintiff’s law firm. 271
In reaching its decision, the Worley court observed that several Florida courts had
extended Boecher to allow discovery of the financial relationship between law firms and
treating physicians. 272 It noted that Boecher had dealt with the discovery of expert
witnesses who had been retained for the purpose of litigation, whereas the discovery at
268 See infra, p. 97 DISCOVERY SERVED DIRECTED ON THE EXPERTS.

Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23 (Fla. 2017), reh'g denied sub
269
nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct. 12,
2017).
270Id. at 20 (noting that defendant had propounded three sets of Boecher interrogatories directed to specific
doctors employed by three medical providers and a supplemental request to produce directed to plaintiff’s
law firm).
271 Id. at 22-25.
272 Id. at 23.
94
issue in Worley dealt with treating physicians. The court found though that the
“relationship between a law firm and a plaintiff’s treating physician is not analogous to the
relationship between a party and its retained expert.”273 It explained that a treating
physician “typically” testifies concerning the physician’s own medical performance on a
particular occasion and does not opine about the performance of another. 274
The court in Worley additionally held that the question of whether a plaintiff’s
attorney referred him or her to a doctor for treatment is protected by the attorney-client
privilege, and the defense is precluded from discovering this type of protected information
from the plaintiff and plaintiff’s law firm. 275 Left unresolved by Worley, however, is the
issue of whether this type of discovery is available from the treating physician or medical
provider directly. 276
D. LOP Providers
In recent years, trial courts have observed an increased use by health care providers
of “letter of protection” (“LOP”) agreements. 277 The existence of an LOP undeniably gives
273Id. at 23 (disapproving of Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla.
5th DCA 2015), Brown v. Mittleman, 152 So. 3d 602 (Fla. 4th DCA 2014), and Steinger, Iscoe & Greene,
P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200 (Fla. 4th DCA 2012)).
274 Id. at 23 (quoting Fittipaldi USA, Inc. v. Castroneves, 903 So. 2d 182, 186 (Fla. 3d DCA 2005).
275 Id. at 25.
276Cf. Siplin v. Carnival Corp., No. 17-civ-23741-WILLIAMS/TORRES, 2018 WL 3439452, at *5 (S.D. Fla.
July 17, 2018) (ruling that plaintiff’s reliance on Worley to preclude defendant from raising issues at trial
that plaintiff’s treating physicians use letters of protection, that her attorneys referred her to certain
physicians, and that a relationship existed between her attorneys and her treating physicians was misplaced
because defendant merely was seeking to impeach the credibility of plaintiff’s physicians on bias and ruling
that “[t]he Florida Supreme Court explicitly held that this line of inquiry is allowed for the limted purpose of
impeachment”).
277 Worley, 228 So. 3d at 23 n.4 (“A letter of protection is a document sent by an attorney on a client's behalf
to a health-care provider when the client needs medical treatment, but does not have insurance. Generally,
the letter states that the client is involved in a court case and seeks an agreement from the medical provider
to treat the client in exchange for deferred payment of the provider's bill from the proceeds of [a] settlement
or award; and typically, if the client does not obtain a favorable recovery, the client is still liable to pay the
provider's bills.”) (quoting Caroline C. Pace, Tort Recovery for Medicare Beneficiaries: Procedures, Pitfalls
95
the provider of medical treatment under an LOP (an “LOP Provider”) a financial interest
in the outcome of the plaintiff’s personal injury case. 278 Limited discovery from the plaintiff
regarding the existence of an LOP in a case therefore is crucial in demonstrating the LOP
Provider’s potential bias in the litigation. 279 As with treating physicians, trial courts
similarly have grappled with the scope and breadth of discovery regarding LOP
Providers. 280
1. Opinion Discovery.
Discovery as to the facts and opinions held by an LOP Provider in cases where a
party is making a claim for personal injury damages is permitted pursuant to Florida Rule
of Civil Procedure 1.280(b), because the care and treatment of a party is relevant and not
privileged. 281 A party may seek to obtain discovery of this type of information about an
LOP Provider pursuant to Rule 1.280(a) by way of written interrogatories, requests for
production of documents, and requests for admissions. 282 Florida Rule of Civil Procedure
1.390(b) likewise allows for the testimony of an LOP Provider to be taken at any time
and Potential Values, 49 HOUS. LAW. 24, 27 (2012)); Carnival Corp. v. Jimenez, 112 So. 3d 513, 516 n.3
(Fla. 2d DCA 2013).
278 Carnival Corp., 112 So. 3d at 520. See also Worley, 228 So. 3d at 23 (recognizing that “bias on the part
of a treating physician can be established by providing evidence of a . . . (LOP), which may demonstrate
that the physician has an interest in the outcome of the litigation”).
279 See Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. 4th DCA 2013) (emphasizing relevance of
evidence pertaining to a letter of protection to show potential bias). See also Smith v. Geico Cas. Co., 127
So. 2d 808 (Fla. 2d DCA 2013) (concluding trial court did not abuse its discretion in allowing defendant to
question plaintiff’s treating doctors about their reduction-of-fee agreements); Carnival Corp., 112 So. 3d at
520 (finding defendant could properly present evidence at trial and argue to jury that plaintiff’s treating
physician was more likely to testify favorably on plaintiff’s behalf because of his financial interest in case
arising from letter of protection).
See e.g., Pack, 119 So. 3d 1284 (recognizing existence of potential bias arising from letter of protection
280
and distinguishing rulings in Katzman and Steinger regarding referral relationship).

281 FLA. R. CIV. P. 1.280(b). See also Worley, 228 So. 3d at 23-24 (stating that “bias on the part of the
treating physician can be established by providing evidence of a letter of protection”).
282 See FLA. R. CIV. P. 1.280(a). See generally FLA. R. OF CIV. PRO. FORMS – STD. INTERROGATORY FORMS
as to physicians who treated or examined party.
96
before the trial in accordance with the rules for taking depositions. 283
2. “Financial” or “Litigation Bias” Discovery.
Discovery of financial or litigation bias information as to an LOP Provider is
permissible for the same reasons it is permissible for “pure” and “hybrid” treating
physicians. 284 Obtaining this type of discovery directly from the plaintiff, however, may
prove inadequate because the plaintiff may not have possession, custody, or control of
the LOP Provider’s relevant documents. A party seeking this type of discovery will likely
need to seek and obtain it from the LOP Provider. 285
3. “Relationship Bias” Discovery.
Based on the Florida Supreme Court’s ruling in Worley, it would appear that
Boecher-type relationship bias discovery from the plaintiff regarding an LOP Provider’s
relationship with the plaintiff’s law firm (including any referral relationship) is similarly
restricted. 286 A party seeking this type of discovery will need to seek and obtain it from
the LOP Provider. 287
III. Discovery Served Directly on the Experts
A. “Retained” Experts
1. Opinion Discovery Generally.
A party may obtain by deposition from a non-party “retained” expert the same type
283 See FLA. R. CIV. P. 1.390(b).

284 See Worley, 228 So. 3d at 24 (finding that “bias on the part of the treating physician can be established
by providing evidence of a letter of protection … which may demonstrate that the physician has an interest
in the outcome of the litigation”).
285 See infra, p. 97 DISCOVERY SERVED DIRECTLY ON THE EXPERTS.
286 Worley, 228 So. 3d at 18, 22.
287 See infra, p. 97 DISCOVERY SERVED DIRECTLY ON THE EXPERTS.
97
of expert opinion discovery available from a party. 288 Rule 1.280(b)(5)(A) provides that a
party is entitled to know the “facts known and opinions held by experts.” 289 Rule
1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or
otherwise as a person expected to be called as an expert witness at trial may be deposed”
under Rule 1.390. 290 Accordingly, a party may depose a retained expert witness and
obtain the facts known and opinions held by that expert.
A party may obtain by deposition from a non-party “retained” expert the same type
of financial or litigation bias discovery available from a party. 291 The deposing party is
entitled to discover the financial or litigation bias listed in Rule 1.280(b)(5)(A)(iii). Rule
1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or
otherwise as a person expected to be called as an expert witness at trial may be deposed”
under Rule 1.390. 292 Accordingly, a party may depose a “retained” expert witness and
obtain financial or litigation bias discovery from that expert.
Pursuant to the Florida Supreme Court’s rationale in Boecher, it would appear that
relationship bias discovery regarding a “retained” expert is available only from a party. In
Boecher, the Florida Supreme Court’s justification for expanding the discovery of
impeachment information beyond what it had pronounced was the limit three years earlier
288 See supra, p. 105 DISCOVERY FROM A PARTY.

289 FLA. R. CIV. P. 1.280((b)(5).
290 FLA. R. CIV. P. 1.280((b)(5)(a)(ii).
292 FLA. R. CIV. P. 1.280((b)(5)(a)(ii).
98
in Elkins was that the discovery at issue in Boecher was served directly to a party.293
Hence, it would appear that neither party is entitled to this type of impeachment
information in a deposition of the other party’s “retained” expert. 294
B. “Consulting” Experts
Because the identity of a “consulting” expert is protected by the work-product
privilege, it would appear that neither party is entitled, at least initially, to any type of
discovery directly from a consulting expert. 295
C. Non-Party Medical Providers
A party generally may obtain by deposition from a “pure” or “hybrid” treating
physician or an LOP Provider the same type of expert opinion discovery available from a
party. 296 Rule 1.280(b)(5)(A) provides that a party is entitled to know the “facts known
and opinions held by experts.” 297 Rule 1.280(b)(5)(A)(ii) provides that any person who is
“disclosed by interrogatories or otherwise as a person expected to be called as an expert
witness at trial may be deposed” under Rule 1.390. 298 Accordingly, a party may depose
a “pure” or “hybrid” treating physician or an LOP Provider and obtain the facts known and
opinions held by that type of expert.
A party generally may obtain by deposition from a “pure” or “hybrid” treating
293 Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999).
294 See id.
296 Id.
297 FLA. R. CIV. P. 1.280((b)(5)
298 FLA. R. CIV. P. 1.280((b)(5)(a)(ii).
99
physician or an LOP Provider the same type of financial or litigation bias discovery
available from a party. 299 Rule 1.280(b)(5)(A)(ii) provides that any person who is
“disclosed by interrogatories or otherwise as a person expected to be called as an expert
witness at trial may be deposed” under Rule 1.390. 300
Additionally, Florida Rule of Civil Procedure 1.310(b)(6) allows a party to depose
a corporation or other entity that is not a party to the case. The party seeking discovery
is required to describe, with reasonable particularity, the matters for examination. 301 The
corporation must then produce one or more witnesses who can testify as to the
corporation's knowledge of the specified topics. 302 This method of discovery enables the
deposing party to gather information from the corporation by way of a human being named
by that corporation to serve as the corporation's voice. The person(s) designated to testify
represents the collective knowledge of the corporation. 303 As the corporation's voice, the
witness does not simply testify about matters within his or her personal knowledge, but
rather is speaking for the corporation. 304 Accordingly, Rule 1.310(b)(6) allows a party to
depose a representative of a treating physician’s or an LOP Provider’s practice.
Pursuant to the Florida Supreme Court’s rationale in Boecher, it would appear that
relationship bias discovery regarding a non-party medical provider is available only from
299 See supra p. 105 DISCOVERY FROM A PARTY.

300 FLA. R. CIV. P. 1.280(b)(5)(a)(ii).
301 See FLA. R. CIV. P. 1.310(b)(6).
302 See id.
See Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA
303
2013).
304 See id.
100
a party. As mentioned, the Florida Supreme Court’s justification in Boecher for expanding
the discovery of impeachment information beyond what it had pronounced was the limit
in Elkins, was that the discovery at issue in Boecher was served directly to a party. 305
Because this additional information was discoverable only because it was propounded on
a party, the defense is not entitled to this information in a deposition of the expert nor a
corporate representative deposition of the treating physician’s or an LOP Provider’s
practice. However, the defense is entitled to discover the existence of a referral
relationship with the plaintiff’s law firm directly from a “hybrid” treating physician or an
LOP Provider because the evidence code clearly allows a party to attack a witness’s
credibility based on bias. 306 Indeed, the existence of a reciprocal referral arrangement
between a “hybrid” treating physician or an LOP Provider and a plaintiff’s law firm could
reasonably be viewed as creating a bias toward testifying favorably for a party. 307
D. LOP Discovery
The Florida Supreme Court in Worley expressly stated that three items of discovery
related to an LOP are available to the defense – (1) the LOP, (2) the percentage of the
provider’s practice based on patients with LOPs, and (3) higher than normal medical
bills. 308 Specifically, the court opined that
305 Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999).
306 See § 90.608(2), Fla. Stat. (2018); Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d
18, 23 n.4 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-
1086, 2017 WL 4547140 (Fla. Oct. 12, 2017) (finding only that such information regarding a “pure” treating
physician was not discoverable from the plaintiff or the plaintiff’s law firm and making no finding as to a
“hybrid” treating physician or LOP Provider).
307 See Flores v. Miami-Dade Cty., 787 So. 2d 955, 958 (Fla. 3d DCA 2001) (ruling that cross examination
of plaintiff’s treating physician who rendered opinion as to causation as to his referral arrangements with
plaintiff’s attorney was within permissible grounds on the issue of bias).
308 Worley, 228 So. 3d at 23–24.
101
bias on the part of the treating physician can be established
by providing evidence of a letter of protection (LOP), which
may demonstrate that the physician has an interest in the
outcome of the litigation. In the instant case, Worley was
treated by all of her specialists pursuant to letters of
protection. Bias may also be established by providing
evidence that the physician's practice was based entirely on
patients treated pursuant to LOPs, as was found in the instant
case. Specifically, a Sea Spine employee testified during
depositions that at the time of Worley's treatment, its entire
practice was based on patients treated pursuant to LOPs.
Additionally, medical bills that are higher than normal can be
presented to dispute the physician's testimony regarding the
necessity of treatment and the appropriate amount of
damages. 309
Accordingly, it would appear under Worley that these three types of discovery may be
obtained directly from an LOP Provider. 310
E. Discovery in Support of Unreasonable Medical Bill Defense
In personal injury actions, plaintiffs must prove their medical expenses are
reasonable. 311 Consequently, defendant tortfeasors are entitled to obtain certain items of
discovery to demonstrate that such medical expenses are not reasonable. Because Rule
1.280 permits parties to obtain discovery regarding matters that are relevant, a defendant
may take the deposition duces tecum of a treating physician or an LOP Provider to obtain
309Id. See also Steinger, Iscoe & Green, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 n.3 (Fla. 4th
DCA 2012), disagreed with on other grounds in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228
So. 3d 18 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-
1086, 2017 WL 4547140 (Fla. Oct. 12, 2017) (explaining that the inquiry under Rule 1.280(b)(5)(A)(iii)4) –
regarding the extent of participation in litigation – is not limited to income from expert activities but is
expanded to income from treating patients in litigation and/or pursuant to referrals) (disagreed with in
Worley on different grounds).
310 Id. See also Alvarez Crespo v. Home Depot U.S.A., Inc., No. 16-60086-CIV-COHN/SELTZER, 2016
WL 3854585, at *3 (S.D. Fla. July 15, 2016) (finding that the amounts ultimately accepted by those medical
providers under letters of protection is relevant to the reasonableness of the medical bills and that defendant
had proffered a sufficient basis for obtaining that information).
311 See Albertson's, Inc. v. Brady, 475 So. 2d 986, 988 (Fla. 2d DCA 1985); USAA Cas. Ins. Co. v. Shelton,
932 So. 2d 605, 608 (Fla. 2d DCA 2006); FLA. STD. JURY INSTR. (CIV) 501.4(a).
102
these items of discovery to challenge the reasonableness of a plaintiff’s medical bills.
Some items of discovery that have been found relevant in challenging the reasonableness
of medical bills have been borrowed from case law involving medical providers’ collection
efforts against patients. 312 In Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., the
Second District Court of Appeal ruled that where a medical provider sues a patient to
collect on a medical bill, the defendant patient is entitled to discovery that would enable
the patient to challenge the reasonableness element of the provider’s case. 313 In
particular, the Giacalone court observed three non-exclusive kinds of evidence relevant
in the determination of a claim of unreasonable pricing by a hospital - (1) the relevant
market for services (including the rates charged by other similarly situated providers for
similar services); (2) the usual and customary rate that the provider charges and receives
for its services; and (3) the provider’s internal cost structure. 314 Other courts examining
the second category of discovery permitted in Giacalone have allowed discovery as to
the amount received or accepted by the provider – not merely the amount charged or
billed by the provider. 315
Because of the relevance of the amount of damages in personal injury actions,
Florida courts have found that defendant tortfeasors in such actions are entitled to obtain
312 See e.g., Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232 (Fla. 2d DCA 2009). See
also Lawton-Davis v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-1157-Orl-37DAB, 2016 WL 1383015, at
*2 (M.D. Fla. Apr. 7, 2016); Urquhart v. Manatee Mem. Hosp., 8:06-cv-1418-T-17-EAJ, 2007 WL 781738,
at *3 (M.D. Fla. Mar. 13, 2007); Colomar v. Mercy Hosp., Inc., 461 F. Supp. 2d 1265, 1269 (S.D. Fla. 2006)
(identifying several non-exclusive factors relevant to inquiry).
313 Giacalone, 8 So. 3d at 1235.
314 8 So. 3d at 1235 (citing Colomar, 461 F. Supp. 2d 1265).
315See id; Laser Spine Inst., LLC v. Makanast, 69 So. 3d 1045, 1046 (Fla. 2d DCA 2011); Columbia Hosp.
(Palm Beaches) Ltd. P'ship v. Hasson, 33 So. 3d 148, 150 (Fla. 4th DCA 2010); Katzman, M.D. v. Rediron
Fabrication, Inc., 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011); Crable v. State Farm Mut. Auto. Ins. Co., No.
5:10–CV–402–OC–37TBS, 2011 WL 5525361, at *10 (M.D. Fla. Nov. 14, 2011).
103
from a non-party provider the same three categories of “reasonableness” information the
Giacalone court ruled was available to the defendant patient against the plaintiff
provider. 316 Indeed, discovery of this type of information appears to have been endorsed
by the court in Worley. 317
Perhaps the best explanation for why defendant tortfeasors are allowed to conduct
this discovery as to non-party medical providers was stated by the Fourth District Court
of Appeal in Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson. 318 In Columbia
Hosp., the trial court had ordered a non-party hospital in a personal injury action to
produce certain confidential information as to the amounts charged by the hospital to
different categories of patients for a particular medical procedure. 319 In concluding that
316 See Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493, 495 (Fla. 2d DCA 2013) (applying Giacalone
and stating that it did not matter who was seeking the information – the patient himself or a third-party
defendant in a personal injury suit). See also Columbia Hosp, 33 So. 3d at 150 (“We conclude that
Defendants sufficiently explained below why they needed the information: in order to dispute, as
unreasonable, the amount of medical expenses that the plaintiff will seek to recover from them, if the
hospital charges non-litigation patients a lower fee for the same medical services.”); Katzman, M.D. v.
Rediron Fabrication, Inc., 76 So. 3d 1060, 1062, 1064 (Fla. 4th DCA 2011) (allowing discovery of the
amounts collected over four years from health insurance compared to letters of protection for the same type
of surgery as was performed in that case because the “limited intrusion into the financial affairs of the doctor
in this case is justified by the need to discover case-specific information relevant to substantive issues in
the litigation, i.e., the reasonableness of the cost and necessity of the procedure”); Makanast, 69 So. 3d at
1046; Crable, 2011 WL 5525361, at *10 (holding that nonparty, Dr. Deukmedjian, was required to provide
information to the defendant regarding among other things, (1) the amount received by Deuk Spine in
reimbursement from Medicare and private insurers for the same procedures performed on plaintiff, (2) what
fields are searchable in Deuk Spine's medical billing software, (3) what other healthcare providers
reimburse for the procedures performed on plaintiff, and (4) whether Deuk Spine negotiates lower rates for
patient medical bills as a standard part of its practice).
317See Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23-24 (Fla. 2017), reh'g
denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla.
Oct. 12, 2017) (“Additionally, medical bills that are higher than normal can be presented to dispute the
physician's testimony regarding the necessity of treatment and the appropriate amount of damages.”). But
see Baker Cty. Med. Servs., Inc. v. Aetna Health Mgmt., LLC, 31 So. 3d 842, 845 (Fla. 1st DCA 2010) (“In
determining the fair market value of the services, it is appropriate to consider the amounts billed and the
amounts accepted by providers with one exception. The reimbursement rates for Medicare and Medicaid
are set by government agencies and cannot be said to be ‘arms-length.’”
318 Columbia Hosp., 33 So. 3d at 150.
319 Id. at 149. In particular, the defendants sought discovery from the hospital regarding the particular
procedure the plaintiff had performed at the hospital, including the amount the hospital had charged patients
104
the defendants had sufficiently explained their need for such information as a means by
which to dispute as unreasonable the amount of the plaintiff’s medical expenses, the court
noted as follows:
[A] hospital's cost to provide a service no longer bears much

relationship to what it charges, but reimbursement rates from
third party payors give hospitals an incentive to set their usual
charges at an artificially high amount, from which discounts
are negotiated; cost-shifting results in discriminatorily high
charges to uninsured patients, in that every patient is billed at
full charges, but only the uninsured are expected to pay those
amounts; as a result, actual charges are not instructive on
what is reasonable; instead, Defendants argue, a realistic
amount is what hospitals are willing to accept. 320
The Fourth District ultimately affirmed the trial court’s order requiring the non-party
provider to produce documents regarding the non-party provider’s “charges, and
discounts to different classes of patients,” reasoning that “what a health care provider
charges and accepts as payment from private non-litigation payors is relevant for a jury
to determine what amount is a reasonable charge for the procedure.” 321
IV. Discovery from a Party’s Attorney or Law Firm.
A. Regarding “Retained” Experts
There appears to be only one Florida state court case addressing “retained” expert
discovery propounded directly on a law firm. 322 In Morgan, Colling & Gilbert, P.A. v. Pope,
the Second District Court of Appeal held that the discovery was permissible. 323 The
with and without insurance, those with letters of protection, and differences in billing for litigation patients
versus non-litigation patients.
320 Id. at 150, n. 3.
321 Id. (emphasis added).
322 See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001).
323 Id. at 3.
105
reasoning for allowing the discovery directly on the law firm was because neither of the
“retained” experts were able in depositions to “provide sufficient information regarding its
financial relationship with Morgan Colling.” 324 The court noted in dicta that had the
“retained” experts provided the information, the discovery on the law firm would have
been “moot or inappropriate.” 325
The decision in Pope is noteworthy for three reasons. First, the dicta appears to be
contrary to the Florida Supreme Court’s reasoning in Boecher. The discovery at issue in
Pope was the same kind of relationship bias discovery at issue in Boecher. In Boecher,
the Florida Supreme Court stated that the relationship bias discovery was permissible
only because it was propounded on the party. Thus, it is curious that the Second District,
in Pope, reasoned that the relationship bias discovery should have been propounded first
upon the non-party expert. Second, Worley did not abrogate or even disagree with Pope.
The holding in Worley applies only to treating physicians and LOP Providers, not the
“retained” experts involved in Pope. Third, the Pope court never expressed any opinion
as to whether the discovery should have been propounded on the party (in the form of
interrogatories and requests to produce) as opposed to the law firm. Because the
“retained” expert bias discovery is available under ordinary discovery to a party, it would
seem that trial courts should exercise their discretion to prohibit such discovery on a law
firm (which could involve a corporate representative deposition of the law firm) in favor of
ordinary expert discovery on a party seeking the same information as discussed in the
preceding sections.
324 Id. at 2.
325 Id. at 4.
106
B. Regarding Non-Party Medical Providers
In Worley, the Florida Supreme Court disagreed with the rulings of two cases
involving LOP Provider expert discovery propounded on a law firm. 326 The court
disagreed with these rulings because it believed the “relationship between a law firm and
a plaintiff’s treating physician is not analogous to the relationship between a party and its
“retained” expert.”327 Accordingly, the financial relationship between a plaintiff’s law firm
and a plaintiff’s treating physician is not discoverable from the plaintiff’s law firm. 328
V. Privacy Rights of Non-Parties & Non-Party Medical Records
Privacy rights, statutory law, 329 and common sense dictate that discovery of non-
party medical records and information is severely restricted. 330 The issue has arisen most
326 Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23 n.4 (Fla. 2017), reh'g denied
sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct.
12, 2017), disagreeing with Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 206
(Fla. 4th DCA 2012); Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So. 3d 1178 (Fla. 4th DCA
2014).
327 Id. at 23. The close reading of the facts in Worley reveals it is not a case involving discovery served on
a law firm. Compare Worley, 228 So. 3d at 20, in which the Supreme Court suggested that the
supplemental request to produce was propounded on Morgan and Morgan – the law firm, with Worley, 163
So. 3d at 1243, in which the Fifth District stated that the supplemental request was propounded upon Worley
– the party. Thus, it is unclear whether the Florida Supreme Court actually was expressing disapproval
with the functionality of discovery upon a law firm generally, or whether the disagreement with the Fifth
District’s opinion was based only on the substance of the discovery – the financial relationship between the
plaintiff’s law firm and the LOP Provider. In any event, because expert bias discovery is available under
ordinary discovery to a party, it would seem that trial courts should exercise their discretion to prohibit
discovery on a law firm (which could involve a corporate representative deposition of the law firm) in favor
of ordinary expert discovery on a party seeking the same information as discussed in DISCOVERY FROM NON-
PARTY EXPERTS 3.c. and DISCOVERY FROM A PARTY’S ATTORNEY OR LAW FIRM 1.
Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 25 (Fla. 2017), reh'g denied sub
328
nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct. 12,
2017).
329FLA. STAT. § 456.057(7)(a)(3) (2018) (prohibiting disclosure of nonparty CME reports without prior notice
to all affected nonparties).
330 See Graham v. Dacheikh, 991 So. 2d 932, 934 (Fla. 2d DCA 2008) (“Section 456.057(7) contains a
broad prohibition preventing a health care practitioner who generates a medical record for a patient from
furnishing that record to ‘any person other than the patient or the patient’s legal representative or other
health care practitioners and providers involved in the care or treatment of the patient, except upon written
authorization of the patient.’”). See also Coopersmith v. Perrine, 91 So. 3d 246, 247 (Fla. 4th DCA 2012)
(“Section 456.057(7)(a), Florida Statutes, prohibits a health care practitioner from discussing a patient’s
107
often in association with experts who do a Compulsory Medical Examination (“CME”) and
are asked to provide records or information from records of CME’s for other patients.
Simply redacting the names of patients does not necessarily resolve privacy and patient
confidentiality issues, and the issues of undue burden and relevance are also associated
with such requests. 331
Section 456.057(7)(a)(3), Florida Statutes (2018), as it has been interpreted and
applied by Florida courts, creates “a broad and express privilege of confidentiality as to
the medical records and the medical condition of a patient.” 332 The clear terms of the
statute prohibit the production of a nonparty patient’s medical records, and they prohibit
discussion about a nonparty patient's medical condition without prior notice to that
nonparty. 333 Similarly, an interrogatory to a party requesting that the party furnish a
“general summary of the opinions and basis of the opinions” offered by his medical
experts in other cases has been found to invade the privacy rights of non-parties, as
protected by the referenced statute. 334
medical records without the patient’s written authorization unless one of three detailed exceptions applies.”);
Crowley v. Lamming, 66 So. 3d 355 (Fla. 2d DCA 2011) (ruling that trial court departed from essential
requirements of law when it ordered CME doctor to bring nonparties’ CME reports to deposition and to
testify to some of information contained in those reports); USAA Cas. Ins. Co. v. Callery, 66 So. 3d 315
(Fla. 2d DCA 2011) (ruling it was departure from essential requirements of law to enter order compelling
insurance company party to produce CME results from CME doctor’s last 20 exams for party with all patient-
identifying information redacted and only including physician's conclusions/impressions, physician's
signature, date of report, and name and address of receiving attorney).
331 See Graham, 991 So. 2d at 932.
332 FLA. STAT. § 456.057(7)(a)(3) (2018).
333 Crowley, 66 So. 3d at 358. See also Brana v. Roura, 144 So. 3d 699, 700 (Fla. 4th DCA 2014) (noting
that section 456.057(7)(a), Florida Statutes, requires notice to patients whose medical records are sought
before issuance of a subpoena for records by a court of competent jurisdiction).
334Coopersmith, 91 So. 3d at 246 (denying discovery where nonparty CME patient information was
requested from party as opposed to compulsory medical examination physician).
108
VI. Discovery Regarding Expert Not Testifying at Trial
While a party is entitled to reasonable discovery from and about a testifying expert
witness, such access changes when the expert is withdrawn from the witness list. A party
is entitled to discover facts known or opinions held by an expert who has been retained
by a party in anticipation of litigation or preparation for trial and who is not expected to
testify at trial, only as provided in Florida Rule of Civil Procedure 1.360(b). 335
Alternatively, such discovery may be had upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery to obtain facts or opinions
on the same subject by other means. 336 Thus, an expert witness that is not expected to
testify in trial may not be deposed except upon such a showing of exceptional
circumstances.
Where a party, through expert interrogatory answers, initially discloses a particular
expert as a witness at trial, but later withdraws the expert from the party’s trial witness
list, the opposing party is precluded from taking the expert’s deposition absent a showing
of compelling circumstances. 337 However, where a party withdraws the expert’s name
from the party’s trial witness list after the expert gives testimony unfavorable to that party,
such testimony may be allowed to be presented at trial. If the opposing party hires the
expert or lists the expert on the party’s trial witness list and calls the witness to testify at
trial, the trial court has the discretion to allow the jury to be told that the opposing party
originally retained the expert. 338 However, if a party retains an expert, then chooses not
335 FLA. R. CIV. P. 1.360(b) (Report of Examiner).

336 State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493, 498 (Fla. 5th DCA 2014).
337 Rocca v. Rones, 125 So. 3d 370, 372 (Fla. 3d DCA 2013).
338 See Broward Cty. v. Cento, 611 So. 2d 1339, 1340 (Fla. 4th DCA 1993); DISCOVERY, CIVPRAC FL-CLE
16-1.D.6. (12th ed. 2017).
109
to call the expert at trial due to the expert’s unfavorable testimony, and the opposing party
chooses to use the expert’s deposition in the party’s case-in-chief, the opposing party
may not be permitted to establish that the other party previously retained the expert. 339
VII. Northup Discovery
In Florida, a party may serve discovery requests and is entitled to receive copies
of depositions, witness statements, surveillance videos, and other impeachment-type
materials in the opposing party’s possession if it is reasonably anticipated by the opposing
party that the items requested are going to be used for purposes of impeachment at
trial. 340 In Northup v. Acken, the Florida Supreme Court held “that if attorney work product
is expected or intended for use at trial, it is subject to the rules of discovery.” 341
Specifically, the court articulated the decision litigants must make before the entry of a
pretrial case management order by the trial court:
[a]n attorney must evaluate whether he or she intends to use

evidence in his or her possession for strategy and trial
preparation purposes only, which would qualify the selection
of the particular items as a protected product of the thought
processes and mental impressions of an attorney. On the
other hand, if the evidence or material is reasonably
expected or intended to be disclosed to the court or jury
at trial, it must be identified, disclosed, and copies
provided to the adverse party in accordance with the trial
court's order and the discovery requests of the opposing
party. 342
339Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938 (Fla. 5th DCA 1982). See also Bogosian v.
State Farm Mut. Auto. Ins. Co., 817 So. 2d 968 (Fla. 3d DCA 2002) (finding that opposing party should not
have been allowed, on its direct examination, to bring out fact that expert was originally plaintiff's expert
where plaintiff had dismissed party that expert had determined was negligent and opposing party at trial
had failed to list that expert on its trial witness list).
340 See Northup v. Acken, 865 So. 2d 1267, 1272 (Fla. 2004).
341 Id.
342 Id.
110
In reaching its decision, the Northup court reaffirmed Florida's dedication to the prevention
of “surprise, trickery, bluff and legal gymnastics” at trial and emphasized that “[t]rial by
ambush is distant history.” 343
343 Id. at 1271.
111
CHAPTER SEVEN
COMPULSORY MEDICAL EXAMINATIONS
Rule 1.360 of the Florida Rules of Civil Procedure provides that a party may
request that any other party submit to an examination by a qualified expert when the
condition that is the subject of the requested examination is in controversy and the party
submitting the request has good cause for the examination. The party making the request
has the burden to show that the rule’s “good cause” and “in controversy” requirements
have been satisfied. 344 Verified pleadings or affidavits may be sufficient to satisfy the
rule’s requirements instead of an evidentiary hearing. The party making the request also
must disclose the nature of the examination and the extent of testing that may be
performed by the examining physician. 345
Although the examination may include invasive tests, the party to be examined is
entitled to know the extent of the tests to make an informed decision about seeking the
protection of the court so that the testing will not cause injury. A party requesting a
compulsory medical examination is not limited to a single examination of the other party;
however, the court should require the requesting party to make a stronger showing of
necessity before the second request is authorized. 346 A plaintiff who has sued multiple
defendants, as multiple tortfeasors, may be subject to separate examinations by each
344 Russenberger v. Russenberger, 639 So. 2d 963 (Fla. 1994); Olges v. Dougherty, 856 So. 2d 6 (Fla. 1st
DCA 2003). Once the mental or physical condition ceases to be an issue or “in controversy,” good cause
will not exist for an examination under Rule 1.360, and Hastings v. Rigsbee, 875 So. 2d 772 (Fla. 2d DCA
2004).
345 Schagrin v. Nacht, 683 So. 2d 1173 (Fla. 4th DCA 1996).
346 Royal Caribbean Cruises, Ltd. v. Cox, 974 So. 2d 462, 466 (Fla. 3d DCA 2008).
112
defendant. 347 Some districts or judges may require that any objection to the examination
must be set for hearing immediately and failure to do so may be deemed an abandonment
of the “Request.”348
Location of the CME
Rule 1.360 does not specify where the examination is to be performed. The Rule
requires that the time, place, manner, conditions, and scope be “reasonable.” The
determination of what is reasonable depends on the facts of the case and falls within the
trial court’s discretion. 349 Rule 1.360 is based on Rule 35 of the Federal Rules of Civil
Procedure, which has been interpreted as permitting the trial court to order the plaintiff to
be examined where the trial will be held because the trial venue was selected by the
plaintiff and it would make it convenient for the physician to testify.
In McKenney v. Airport Rent-A-Car, Inc., an examination of the plaintiff in the
county in which the trial was to be held was not an abuse of discretion, even though the
plaintiff resided in a different county. 350 In Tsutras v. Duhe, 351 it was held that the
examination of a nonresident plaintiff, who already had come to Florida at his expense
for his deposition, should either be at a location that had the appropriate medical
specialties convenient to the nonresident plaintiff, or the defense should be required to
347 Goicochea v. Lopez, 140 So. 3d 1102 (Fla. 3d DCA 2014).

348Ninth Judicial Circuit Court Uniform Guidelines Regarding Compulsory Medical Examinations, April
2015, Guidelines Regarding Compulsory Medical Examinations, Flagler County, Division 49.
349McKenney v. Airport Rent-A-Car, Inc., 686 So. 2d 771 (Fla. 4th DCA 1997). See also Leinhart v.
Jurkovich, 882 So. 2d 456 (Fla. 4th DCA 2004) (request for CME ten days before trial was denied and
upheld on appeal as being within the trial court’s discretion). See also Ninth Judicial Circuit Court Uniform
Guidelines Regarding Compulsory Medical Examinations, April 2015 (requiring Plaintiff’s attorney to notify
opposing counsel before their client moves out of state).
350 McKenney v. Airport Rent-A-Car, Inc., 686 So. 2d 771 (Fla. 4th DCA 1997).
351 685 So. 2d 979 (Fla. 5th DCA 1997).
113
cover all expenses of the plaintiff’s return trip to Florida for examination. In Goeddel v.
Davis, M.D. 352 a trial court did not abuse its discretion by compelling the plaintiff, who
resided in another state, to submit to a compulsory medical examination in the forum state
when the compulsory medical examination was to be conducted during the same trip as
a deposition the plaintiff was ordered to attend, and the defendants were ordered to
contribute to the cost of the plaintiff’s trip. In Blagrove v. Smith, 353 a Hernando County
trial court did not abuse its discretion by permitting a medical examination in nearby
Hillsborough County because of the geographical proximity of the two counties. However,
a trial court did abuse its discretion when the court sanctioned a plaintiff with dismissal
after finding the plaintiff willfully violated a court order in failing to attend a second CME
despite the fact that the plaintiff had moved to a foreign state, advised counsel two days
prior that he was financially unable to attend, and filed a motion for protective order with
an affidavit detailing his finances and stating he had no available funds or credit to travel
to Florida. 354
Selection of the Examiner by the Defendant
Judges generally will allow the medical examination to be conducted by the doctor
of the defendant’s choice. The rationale sometimes given is that the plaintiff’s examining
and treating physicians have been selected by the plaintiff. 355 However, whether to permit
a defendant’s request for examination under Rule 1.360 is a matter of judicial discretion.
352 993 So. 2d 99, 100 (Fla. 5th DCA 2008).

353 701 So. 2d 584 (Fla. 5th DCA 1997).
354 See Littelfield v. J. Pat Torrence, 778 So. 2d 368 (Fla. 2d DCA 2001); see also Wapnick v. State Farm
Mut. Auto. Ins. Co., 54 So. 3d 1065 (Fla. 4th DCA 2011) (requiring plaintiff to travel approximately 100 miles
from county of residence where defendant offered to reimburse travel expenses, although reversing denial
of coverage).
355 Toucet v. Big Bend Moving & Storage, 581 So. 2d 952 (Fla. 1st DCA 1991).
114
Furthermore, Rule 1.360(a)(3) permits a trial court to establish protective rules for the
compulsory examination. Thus, a defendant does not have an absolute right to select the
expert to perform the examination. 356
Attending and Recording the CME
Rule 1.360 (a)(3) permits the trial court, at the request of either party, to establish
protective rules for compulsory examinations. The general rule is that attendance of a
third party at a court-ordered medical examination is a matter within the sound discretion
of the trial judge. 357 A plaintiff may request that a third party attend an examination to (1)
accurately record events at the examination; (2) “assist” in providing a medical history or
a description of an accident; and (3) validate or dispute the examining doctor’s findings
and conclusions. 358 The burden of proof and persuasion rests with the party opposing
the attendance to show why the court should deny the examinee’s right to have present
counsel, a physician, or another representative. 359
Without a valid reason to prohibit the third party’s presence, the examinee’s
representative should be allowed. 360 In making the decision about third-party attendance
at the examination, the trial court should consider the nature of the examination, the
function that the requested third party will serve at the examination, and the reason why
356 See State Farm Mut. Auto Ins. Co. v. Shepard, 644 So. 2d 111 (Fla. 2d DCA 1994).
357 Bartell v. McCarrick, 498 So. 2d 1378 (Fla. 4th DCA 1986).
358 Wilkins v. Palumbo, 617 So. 2d 850 (Fla. 2d DCA 1993).
Broyles v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997); Wilkins, 617 So. 2d at 850; Stakely v. Allstate Ins.
359
Co., 547 So. 2d 275 (Fla. 2d DCA 1989).

360See Broyles, 695 So. 2d at 832 (videographer and attorney); Palank v. CSX Transp., Inc., 657 So. 2d
48 (Fla. 4th DCA 1995) (in wrongful death case, mother of minor plaintiffs, counsel, and means of
recording); Wilkins, 617 So. 2d at 850 (court reporter); McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA
1992) (attorney); Collins v. Skinner, 576 So. 2d 1377 (Fla. 2d DCA 1991) (court reporter); Stakely, 547 So.
2d at 275 (court reporter); Bartell, 498 So. 2d at 1378 (representative from attorney’s office); Gibson v.
Gibson, 456 So. 2d 1320 (Fla. 4th DCA 1984) (court reporter).
115
the examining doctor objects to the presence of the third party. A doctor must provide a
case-specific justification to support an objection in an affidavit that the presence at the
examination of a third party will be disruptive. 361 Once this test is satisfied, the defendant
must prove at an evidentiary hearing that no other qualified physician can be located in
the area who would be willing to perform the examination with a third party (court reporter,
attorney, or other representative) present. 362 This criteria applies to compulsory
examinations for physical injuries and psychiatric conditions. 363
The rationale for permitting the presence of the examinee’s attorney is to protect
the examinee from improper questions unrelated to the examination. 364 Furthermore, the
examinee has a right to preserve by objective means, the precise communications that
occurred during the examination. Without a record, the examinee will be compelled to
challenge the credibility of the examiner should a dispute arise later. “Both the examiner
and examinee should benefit by the objective recording of the proceedings, and the
integrity and value of the examination as evidence in the judicial proceedings should be
enhanced.” 365 The rationale for permitting a third party’s presence or recording the
examination is based on the examinee’s right of privacy rather than the needs of the
examiner. If the examinee is compelled to have his or her privacy disturbed in the form
of a compulsory examination, the examinee is entitled to limit the intrusion to the purpose
361 See Wilkins, 617 So. 2d at 850.

362 See Broyles, 695 So. 2d at 832.
363Freeman v. Latherow, 722 So. 2d 885 (Fla. 2d DCA 1998); Stephens v. State of Fla., 932 So. 2d 563
(Fla. 1st DCA 2006) (the DCA held that the trial court did not deviate from the law when it denied plaintiff’s
request that his expert witness be permitted to accompany him on a neuropsychological exam by a state-
selected medical professional).
364 See Toucet v. Big Bend Moving & Storage, 581 So. 2d 952 (Fla. 1st DCA 1991).
365 Gibson v. Gibson, 456 So. 2d at 1320, 1321 (Fla. 4th DCA 1984).
116
of the examination and to have an accurate preservation of the record.
Courts may recognize situations in which a third party’s presence should not be
allowed. Those situations may include the existence of a language barrier, the inability
to engage any medical examiner who will perform the examination in the presence of a
third party, the particular psychological or physical needs of the examinee, or the customs
and practices in the area of the bar and medical profession. 366 However, in the absence
of truly extraordinary circumstances, a defendant will not be able to satisfy its burden of
proof and persuasion to prevent the attendance of a passive observer. 367 It has been
held that a court reporter’s potential interference with the examination or inability to
transcribe the physician’s tone or facial expressions are invalid reasons. 368 The
examiner’s refusal to perform the examination in the presence of third parties also is an
insufficient ground for a court to find that a third party’s presence would be disruptive. 369
Excluding a court reporter because of a claimed chilling effect on physicians and the
diminishing number of physicians available to conduct examinations also is insufficient. 370
However, it would take an exceptional circumstance to permit anyone other than a
videographer or court reporter and the plaintiff’s attorney to be present on behalf of the
plaintiff at a Rule 1.360 compulsory examination. 371 For example, defendants in a
personal injury lawsuit were not entitled to have a videographer record the examination
366 See Bartell, 498 So. 2d at 1378.

367 See Broyles, 695 So. 2d at 832; see Wilkins, 617 So. 2d at 850.
368 See Collins, 576 So. 2d at 1377.
369 See McCorkle, 599 So. 2d at 277; see Toucet, 581 So. 2d at 952.
370 Truesdale v. Landau, 573 So. 2d 429 (Fla. 5th DCA 1991); see also Broyles, 695 So. 2d at 832.
371 See Broyles, 695 So. 2d at 832.
117
even though the examinee had her own videographer present. 372 The Second and Third
DCAs follow this opinion.
In most circumstances, the examinee’s desire to have the examination videotaped
should be approved. There is no reason that the presence at an examination of a
videographer should be treated differently from that of a court reporter. A trial court order
that prohibits videotaping a compulsory examination without any evidence of valid, case-
specific objections from the complaining party may result in irreparable harm to the
requesting party and serve to justify extraordinary relief. 373 Similarly, an audiotape may
be substituted to ensure that the examiner is not asking impermissible questions and that
an accurate record of the examination is preserved. 374 Video or audio tape of the CME
obtained by the examinee’s attorney should be considered work product as long as the
recording is not being used for impeachment or use at trial. 375
In McClennan v. American Building Maintenance, 376 the court applied the rationale
in Toucet, 581 So. 2d at 952, and Bartell, 498 So. 2d at 1378, to workers’ compensation
disputes, and held that third parties, including attorneys, could attend an independent
medical examination given under Fla. Stat. § 440.13(2)(b). In U.S. Security Insurance
Company v. Cimino, 377 the Florida Supreme Court held that, for a medical examination
conducted under Fla. Stat. § 627.736(7) for personal injury protection benefits, “the
372 Prince v. Mallari, 36 So. 3d 128 (Fla. 5th DCA 2010).

373 Lunceford v. Fla. Cent. R.R. Co., 728 So. 2d 1239 (Fla. 5th DCA 1999).
374 Medrano v. BEC Constr. Corp., 588 So. 2d 1056 (Fla. 3d DCA 1991).
375See McGarrah v. Bayfront Med. Ctr., 889 So. 2d 923 (Fla. 2d DCA 2004); see also Form Order on
Motions to Compel Compulsory or Independent Medical Examinations, Pinellas County, Section 11, and
Form Order Compelling Rule 1.360 Examination, Hillsborough County.
376 648 So. 2d 1214 (Fla. 1st DCA 1995).
377 754 So. 2d 697, 701 (Fla. 2000).
118
insured should be afforded the same protections as are afforded to plaintiffs for Rule
1.360 and workers’ compensation examinations.”
Discovery of the CME Examiner
Notably, there are third-party privacy concerns for the court to consider when
analyzing discovery directed to CME examiners. Section 456.057(7)(a), Florida Statutes
requires notice to patients whose medical records are sought before issuance of a
subpoena for the records by a court of competent jurisdiction. Simply redacting the non-
party patients’ information is not enough. 378 Consider Judge May’s concurring opinion in
Coopersmith relative to the Court’s frustration with this type of discovery practice.
I concur with the majority in its reasoning and result, but write
to express my concern over recent discovery issues we have
seen. We are increasingly reviewing orders on discovery
requests that go above and beyond those relevant to the case.
Attorneys are propounding interrogatories and making
requests for production, which require physicians to divulge
private, confidential information of other patients, and to
“create” documents.
In an effort to discredit medical witnesses for the other side,

attorneys for both plaintiffs and defendants are exceeding the
bounds of the rules of civil procedure, confidentiality laws, and
professionalism by engaging in irrelevant, immaterial,
burdensome, and harassing discovery. Parameters have
already been expanded to allow both sides to explore financial
interests of medical witnesses and the volume of referrals to
those witnesses. See Elkins v. Syken, 672 So. 2d 517 (Fla.
1996). And now, attempts to expand the scope of that
discovery to treating physicians as well as retained experts
are usurping the limited resources of our trial courts. This not
only creates unnecessary burdens on our over-strained
justice system, it further taints the public’s view of our
profession. 379
378 Coopersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012).

379 Id. at 248.
119
Accordingly, an examiner will not be compelled to disclose CME reports of other non-
party examinees or to testify about findings contained in those reports. 380
Nevertheless, discovery concerning the examination report and a deposition of the
examiner for use at trial is permissible under Rule 1.360, even though the examination
was prepared in anticipation of litigation by an expert who was not expected to be called
at trial. For example, in Dimeglio v. Briggs-Mugrauer, 381 which involved a claim for
uninsured motorist benefits, the insurance contract provided that the claimant would
consent to an examination by the insurer’s chosen physician if a claim was filed. Before
initiation of the lawsuit, the insurer scheduled a medical examination that was attended
by the claimant, and the examiner confirmed that the claimant had suffered injury. After
suit was filed, the plaintiff sought to take the videotape deposition of the examiner for use
at trial. The insurer filed a motion for a protective order, claiming that the examination
and report were protected as work product, and the trial court agreed. The appellate court
reversed, holding that although the examination was prepared in anticipation of litigation,
Rule 1.360 applied, and the insurer could not claim a work product privilege for a
physician examination of the plaintiff by the insurance company’s chosen physician.
Following the production of written reports and prior to trial, counsel may be
required to disclose to opposing counsel any changes of the examining expert’s opinion,
diagnostic impressions, causation opinions or other conclusions which are not contained
in the report(s) produced or testimony given. Failure to do so could result in the exclusion
380 Crowley v. Lamming, 66 So. 3d 355 (Fla. 2d DCA 2011); Coopersmith v. Perrine, 91 So. 3d 246 (Fla.
4th DCA 2012) (sustaining objections to interrogatories directed to the examiner’s “opinions and basis of
the opinions” of other non-party examinees as same constituted an intrusion into those non-parties’ privacy
rights).
381 Dimeglio v. Briggs-Mugrauer, 708 So. 2d 637 (Fla. 2d DCA 1998).
120
of such evidence at trial.
For additional reference, please see Chapter 6: Expert Witness Discovery.
121
CHAPTER EIGHT
WORK-PRODUCT PROTECTION AND PRIVILEGES
The work product privilege protects from discovery “documents and tangible things
otherwise discoverable” if a party prepared those items “in anticipation of litigation or for
trial.” 382 There is no requirement in this rule that for something to be protected as work
product, it must be an item ordered to be prepared by an attorney. 383 Materials may
qualify as work product even if no specific litigation was pending at the time the materials
were compiled. Even preliminary investigative materials are privileged if compiled in
response to some event which foreseeably could be made the basis of a claim. 384
The standard to be applied in the First, Second, Third and Fifth District Courts in
determining whether documents are protected by the work product doctrine, is whether
the document was prepared in response to some event which foreseeably could be made
the basis of a claim in the future. 385 The Fourth District, for years, applied a slightly stricter
standard, finding that documents were not work product unless they were prepared when
the probability of litigation was substantial and imminent, 386 or, they were prepared after
the claim had already accrued. 387 However, the Court recently addressed the issue again
in the case of Millard Mall Servs. v. Bolda, 388 and the stricter standard was relegated to
382 FLA. R. CIV. P. 1.280(b)(3).

383See e.g. Barnett Bank v. Dottie-G. Dev. Corp., 645 So. 2d 573 (Fla. 2d DCA 1994); Time Warner, Inc.
v. Gadinsky, 639 So. 2d 176 (Fla. 3d DCA 1994).
384 Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760, 761 (Fla. 2d DCA 1989).
385See Marshalls of Ma, Inc. v. Minsal, 932 So. 2d 444 (Fla. App. 3d Dist. 2006), and the cases cited
therein.
386 Liberty Mut. Fire Ins. Co. v. Bennett, 883 So. 2d 373, 374 (Fla. 4th DCA 2001).
387 Int’l House of Pancakes (IHOP) v. Robinson, 8 So. 3d 1180 (Fla. 4th DCA 2009).
388 155 So. 3d 1272 (Fla. 4th DCA 2015).
122
the dissenting opinion. See that case for a discussion of the work product privilege and
the circumstances under which it has been applied in the various appellate districts.
When a party asserts the work product privilege in response to a request for
production, the party need only assert in their response the objection and reason for the
objection. It is not required that the objecting party file with the objection an affidavit
documenting that the incident report was prepared in anticipation of litigation. If the
opposing party wants to pursue the request over the objection, they may move to compel
production. If the motion to compel challenges the status of the document as work
product, defendants must then show that the documents were prepared in anticipation of
litigation. 389
Under Rule 1.280(b)(3) of the Florida Rules of Civil Procedure, a party may obtain
discovery of an opposing party’s “documents . . . prepared in anticipation of litigation . . .
only upon a showing that the party seeking discovery has need of the materials in the
preparation of the case and is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” Therefore, the party requesting such
privileged material has a considerable burden to show that the party has both a significant
need and an undue hardship in obtaining a substantial equivalent. 390 Need and undue
hardship “must be demonstrated by affidavit or sworn testimony.” 391 Documents
protected by the work product immunity must not be lightly invaded, but only upon a
particularized showing of need satisfying the criteria set forth in Rule 1.280. If the moving
389 FLA. R. CIV. P. 1.350. See also Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855 (Fla. 2d DCA 1997).
Metric Eng’g., Inc v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003); CSX Transp., Inc. v. Carpenter,
390
725 So. 2d 434, 435 (Fla. 2d DCA 1999).

391 N. Broward Hosp. Dist. v. Button, 592 So. 2d 367 (Fla. 4th DCA 1992).
123
party fails to show that the substantial equivalent of the material cannot be obtained by
other means the discovery will be denied. 392
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 has held 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. 393
Trade Secrets
A “trade secret” is defined in section 688.002(4), Florida Statutes, as:
Information, including a formula, pattern, compilation,

program, device, method, technique or process that: (a)
derives independent economic value, actual or potential, from
not being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (b) is
the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Section 90.506, Florida Statutes provides:
A person has a privilege to refuse to disclose, and to prevent

other persons from disclosing a trade secret owned by that
person if the allowance of the privilege will not conceal fraud
or otherwise work injustice. When the court directs disclosure,
it shall take the protective measures that the interests of the
holder of the privilege, the interests of the parties, and the
furtherance of justice require.
Trade secrets are privileged under section 90.506, Florida Statutes, but the
privilege is not absolute. 394 Information constituting trade secrets can be obtained in
392 S. Bell Tel. & Tel Co. v. Deason, 632 So. 2d 1377, 1385 (Fla. 1994).
393 See Northup v. Howard W. Acken, M.D., 865 So. 2d 1267 (Fla. 2004).
394 Freedom Newspapers, Inc., v. Egly, 507 So. 2d 1180, 1184 (Fla. 2d DCA 1987).
124
discovery under certain in certain circumstances. To determine if those circumstances
exist, a trial court generally must follow a three-step process:
(1) determine whether the requested production constitutes a

trade secret;
(2) if the requested production constitutes a trade secret,

determine whether there is a reasonable necessity for
production; and
(3) if production is ordered, the trial court must set forth its
findings. 395
Trade secrets are defined in Florida’s Uniform Trade Secrets Act as:
[I]nformation, including a formula, pattern, compilation,

program, device, method, technique, or process that:
a) derives independent economic value, actual or potential,

from not being generally known to, and not being readily
ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use; and
b) is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy. 396
“When a party asserts the need for protection against disclosure of a trade secret,
the court must first determine whether, in fact, the disputed information is a trade secret
[which] usually requires the court to conduct an in-camera review.” 397 A trial court may
also conduct an evidentiary hearing. 398 Such a hearing may include expert testimony. 399
395 Gen. Caulking Coating Co., Inc. v. J.D. Waterproofing, Inc., 958 So. 2d 507, 508 (Fla. 3d DCA 2007).
396 FLA. STAT. § 688.002(4), Fla. Stat. (2018).
397Summitbridge Nat’l Invs. V. 1221 Palm Harbor, L.L.C., 67 So. 3d 448, 449 (Fla. 2d DCA 2011); see also
Westco, Inc. v. Scott Lewis’ Gardening & Trimming, 26 So. 3d 620, 622 (Fla. 4th DCA 2009) (holding that
where a party claims a document is privileged and the trial court fails to conduct an in camera review or
balancing test, the trial court has departed from the essential requirements of the law).
398 Bright House Networks, LLC v. Cassidy, 129 So. 3d 501, 506 (Fla. 2d DCA 2014).
399 Lovell Farms, Inc. v. Levy, 644 So. 2d 103, 105 (Fla. 3d DCA 1994).
125
If the materials are trade secrets, the court must then determine whether there is
a reasonable necessity for production. 400 Once a party has demonstrated that the
information sought is a trade secret, the burden shifts to the party seeking discovery to
demonstrate reasonable necessity for production. 401 This requires a trial court to decide
whether the need for producing the documents outweighs the interest in maintaining their
confidentiality. 402 If the trial court ultimately decides to order production of trade secrets,
it must set forth findings on these points. 403
Further, if disclosure is ordered, the trial court should take measures to limit any
harm caused by the production. 404 Examples of measures taken by courts to protect
trade secrets include, but are not limited to, the following: (a) specifying individuals that
may have access to the materials for the limited purposes of assisting counsel in the
litigation; (b) requiring that the designated confidential materials and any copies be
returned or destroyed at the end of the litigation; (c) allowing the disclosure of the trade
secret to only counsel and not to the clients; and (d) requiring all attorneys who request
access to confidential information to first sign an attached agreement and be bound by
400 Gen. Caulking Coating Co., Inc. v. J.D. Waterproofing, Inc., 958 So. 2d 507, 508 (Fla. 3d DCA 2007).
401Scientific Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991) (citing Goodyear
Tire & Rubber Co. v. Cooey, 359 So. 2d 1200, 1202 (Fla. 1st DCA 1978)).
402 See Gen. Caulking Coating Co., 958 So. 2d at 509.
403 Id. (“Because the order under review makes no specific findings as to why it deemed the requested
information not to be protected by the trade secret privilege we find that ‘it departs from the essential
requirements of the law for which no adequate remedy may be afforded to petitioners on final review.’”
(quoting Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996)).
404See FLA. STAT. § 90.506 (“When the court directs disclosure, it shall take the protective measures that
the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice
require.”).
126
its restrictions. 405
Incident Reports
Incident reports have generally been considered not discoverable as falling within
the work product privilege because they are typically prepared solely for litigation and
have no other business purpose. 406 Incident reports may be prepared for a purpose other
than in anticipation of litigation, and when this is so the reports are not work product. For
example, reports prepared solely for personnel reasons, such as to decide whether an
employee should be disciplined, are not work product. 407 However, even if an incident
report is prepared for one reason not in anticipation of litigation, it will still be protected as
work product if it was also prepared for litigation purposes. 408
Claims Files
A party is not entitled to discovery related to the claim file or the insurer’s business
practices regarding the handling of claims until the obligation to provide coverage and
damages has been determined. 409
However, the claims file may be discoverable when an insurer is sued for bad faith
after any coverage dispute has been settled. 410
405 See Capital One, N.A. v. Forbes, 34 So. 3d 209, 213 (Fla. 2d DCA 2010); Cordis Corp. v. O’Shea, 988
So. 2d 1163, 1165 (Fla. 4th DCA 2008); Bestechnologies, Inc. v. Trident Envtl. Sys., Inc., 681 So. 2d 1175,
1177 (Fla. 2d DCA 1996).
406 Winn-Dixie Stores v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983) petition for review denied 446 So. 2d
100 (Fla. 1984); Sligar v. Tucker, 267 So. 2d 54 (Fla. 4th DCA 1972) cert. denied (Fla. 1972); Grand Union
Co., v. Patrick, 247 So. 2d 474 (Fla. 3d DCA 1971).
407 See Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1385-86 (Fla. 1994).
408Fed. Express Corp. v. Cantway, 778 So. 2d 1052, 1053 (Fla. 4th DCA 2001); see also Dist. Bd. of Trs.
of Miami-Dade Cty. Coll. v. Chao, 739 So. 2d 105 (Fla. 3d DCA 1999).
409State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); see also
Scottsdale Ins. Co. v. Camara, 813 So. 2d 250, 251-52 (Fla. 3d DCA 2002).
410 Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1129-30 (Fla. 2005).
127
Surveillance Video
Surveillance video is regarded as work product unless it is going to be used at trial,
and if it is, a bright line rule has been established that it need not be produced until the
surveilling party has had the opportunity to depose the subject of the video. 411
OBTAINING PSYCHOLOGICAL RECORDS WHEN

PAIN AND SUFFERING ARE AT ISSUE
Chapter 90, Florida Statutes, codifies the psychotherapist-patient privilege 412 and
provides in pertinent part:
(2) A patient has a privilege to refuse to disclose, and to

prevent any other person from disclosing, confidential
communications or records made for the purpose of diagnosis
or treatment of the patient’s mental or emotional condition,
including alcoholism and other drug addiction, between the
patient and the psychotherapist, or persons who are
participating in the diagnosis or treatment under the direction
of the psychotherapist. This privilege includes any diagnosis
made, and advice given, by the psychotherapist in the course
of that relationship. 413
* * *
(4) There is no privilege under this section:
* * *
(b) For communications made in the course of a court-
ordered examination of the mental or emotional condition of
the patient.
(c) For communications relevant to an issue of the mental or
411 Hankerson v. Wiley,154 So. 3d 511 (Fla. 4th DCA 2015).

412 A psychotherapist is defined by FLA. STAT. § 90.503(1)(a) (2018) and includes any person authorized to
practice medicine or reasonably believed by the patient so to be, that is “engaged in the diagnosis or
treatment of a mental or emotional condition.” A medical doctor is a psychotherapist for purposes of the
statute if he or she is engaged in treating or diagnosing a mental condition, however, other health care
professionals, such as psychologists, are only considered psychotherapists if they are “engaged primarily
in the diagnosis or treatment of a mental or emotional condition . . . .” Compare § 90.503(1)(a)1 with
§ 90.503(1)(a)2, FLA. STAT. (emphasis added). In 2006, the Legislature amended section 90.503(1)(a),
FLORIDA STATUTES, to include advanced registered nurse practitioners within the ambit of the statute. See
§ 90.503(1)(a)5., FLA. STAT. (2006) (effective July 1, 2006).
413 FLA. STAT. § 90.503(2) (2018).
128
emotional condition of the patient in any proceeding in which
the patient relies upon the condition as an element of his or
her claim or defense or, after the patient’s death, in any
proceeding in which any party relies upon the condition as an
element of the party’s claim or defense. 414
Moreover, pursuant to section 394.4615, Florida Statutes (2018), clinical records
maintained by psychotherapists are shielded by a broad cloak of confidentiality; the
statute carves out specific instances wherein disclosure of information from patient
records shall or may be released. The intent behind the enactment of the
psychotherapist-patient privilege is to encourage individuals suffering from mental,
emotional, or behavioral disorders to seek out and obtain treatment without fearing public
scrutiny and enable those individuals experiencing such problems to obtain proper care
and assistance. 415
Section 90.503(4)(c), Florida Statutes (2018), one of the statutory exceptions to
the privilege, stems from the notion that a party should be barred from using the privilege
as both a sword and a shield, that is, seeking to recover for mental and or emotional
damages on the one hand, while hiding behind the privilege on the other. 416 For example,
when a plaintiff seeks recovery for mental anguish or emotional distress, Florida courts
generally hold that the plaintiff has caused his or her mental condition to be at issue and
414 FLA. STAT. § 90.503(4)(c) (2018).

415Segarra v. Segarra, 932 So. 2d 1159, 1161 (Fla 3d DCA 2006) (citing Cedars Healthcare Grp., Ltd. v.
Freeman, 829 So. 2d 390, 391 (Fla. 3d DCA 2002)); Attorney Ad Litem for D.K. v. Parents of D.K., 780 So.
2d 301, 305-306 (Fla. 4th DCA 2001); Carson v. Jackson, 466 So. 2d 1188, 1191 (Fla. 4th DCA 1985); see
also Jaffee v. Redmond, 518 U.S. 1, 10-12 (1996) (In 1996, the United States Supreme Court held that the
psychotherapist privilege serves the public interest and, if the privilege were rejected, confidential
conversations between psychotherapists and their patients would surely be chilled.).
416 Nelson v. Womble, 657 So. 2d 1221, 1222 (Fla. 5th DCA 1995) (citing Sykes v. St. Andrews Sch., 619
So. 2d 467, 469 (Fla. 4th DCA 1993)).
129
the psychotherapist privilege is therefore, waived. 417 The statutory privilege is also
deemed waived where a party relies on his or her post-accident mental or emotional
condition as an element of a claim or defense. 418 Failure to timely assert the privilege
does not constitute waiver, so long as the information already produced does not amount
to a significant part of the matter or communication for which the privilege is being
asserted. 419 The waiver provision contained in section 90.507, Florida Statutes (2018)
will apply, however, when information previously produced in discovery is considered a
substantial part of the patient’s claim of privilege. 420 Limited voluntary disclosure of some
aspects of the psychotherapist-patient privileged matters or communications will not
constitute a waiver. 421
417 See Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1476 (11th Cir. 1984) (applying Florida law to a claim
for mental anguish due to medical malpractice); Belmont v. N. Broward Hosp. Dist., 727 So. 2d 992, 994
(Fla. 4th DCA 1999) (no privilege after patient’s death in proceeding in which party relies upon condition as
element of claim or defense); Nelson, 657 So. 2d at 1222 (psychotherapist-patient privilege did not preclude
discovery in personal injury action seeking loss of consortium and infliction of mental anguish); Scheff v.
Mayo, 645 So. 2d 181, 182 (Fla. 3d DCA 1994) (mental anguish from rear-end motor vehicle accident);
Sykes v. St. Andrews Sch., 619 So. 2d 467, 468 (Fla. 4th DCA 1993) (emotional distress from sexual
battery); F.M. v. Old Cutler Presbyterian Church, Inc., 595 So. 2d 201, 202 (Fla. 3d DCA 1992) (allegations
of sexual, physical and emotional abuse of a minor placed her mental state at issue and waived her right
to confidentiality concerning her mental condition); Arzola v. Reigosa, 534 So. 2d 883 (Fla. 3d DCA 1988)
(post-accident mental anguish damages arising out of an automobile/bicycle collision barred the plaintiff
from invoking the psychotherapist-patient privilege). Compare Nelson, 657 So. 2d at 1222 (determining
loss of enjoyment of life as a claim for loss of consortium) with Partner-Brown v. Bornstein, D.P.M., 734 So.
2d 555, 556 (Fla. 5th DCA 1999) (“The allusion to loss of enjoyment of life, without more, does not place
the mental or emotional condition of the plaintiff at issue so to waive the protection of section 90.503.”).
418Arzola, 534 So. 2d at 883; Connell v. Guardianship of Connell, 476 So. 2d 1381 (Fla. 1st DCA 1985);
Helmick v. McKinnon, 657 So. 2d 1279, 1280 (Fla. 5th DCA 1995) (In the context of personal injury actions,
pre-accident psychological and psychiatric records are relevant to determine whether the condition existed
before the accident).
419See Palm Beach Cty. Sch. Bd. v. Morrison, 621 So. 2d 464, 469 (Fla. 4th DCA 1993) (rejecting the
argument that the plaintiff waived the psychotherapist-patient privilege because it was not timely asserted
and reasoning that because it was asserted before there was an actual disclosure of the information for
which the patient claimed the privilege, section 90.507, Florida Statutes was not applicable).
420 Id.; Garbacik v. Wal-Mart Transp., LLC, 932 So. 2d 500, 503-504 (Fla. 5th DCA 2006) (citing Sykes v.
St. Andrews Sch., 619 So. 2d 467, 469 (Fla. 4th DCA 1993)).
421 Commercial Carrier Corp. v. Kelley, 903 So. 2d 240, 241 (Fla. 5th DCA 2005) (no waiver of privilege
recognized, even though patient voluntarily disclosed some aspects of the privileged matters or
communications during her deposition by admitting that she had been prescribed anti-depressants for her
post-traumatic stress disorder following the horrific traffic crash at issue, since the plaintiff never placed her
130
The exception to the privilege does not apply merely because the patient’s
symptoms accompanying a physical injury are of a type which might arguably be
associated with some separate mental or emotional condition. 422 In addition, a claim for
loss of enjoyment of life, “without more, does not place the mental or emotional condition
of the plaintiff at issue so as to waive the protection of section 90.503.” 423
The party seeking to depose a psychotherapist or obtain psychological records
bears the burden of showing that the patient’s mental or emotional condition has been
introduced as an issue in the case. 424 What is more, if a plaintiff has not placed his or her
mental condition at issue, the defendant’s sole contention that the plaintiff’s mental
stability is at issue will not overcome the privilege. 425
The privilege does not protect from discovery any relevant medical records of a
psychiatrist or other medical provider made for the purpose of diagnosis or treatment of
mental state a material element of any claim or defense); Olson v. Blasco, 676 So. 2d 481, 482 (Fla. 4th
DCA 1996) (A defendant’s listing of therapists’ names in response to a criminal discovery request does not
waive the privilege in a wrongful death action stemming from the same facts when there is no showing that
there will be a defense based on a mental condition.); see also Bandorf v. Volusia Cty. Dept. of Corrections,
939 So. 2d 249, 250 (Fla. 1st DCA 2006) (worker’s compensation plaintiff claiming fatigue and neurological
symptoms from physical injuries does not place emotional or mental condition at issue); Segarra v. Segarra,
932 So. 2d 1159, 1160 (Fla. 3d DCA 2006) (The psychotherapist-patient privilege is not waived in joint
counseling sessions).
Bandorf, 939 So. 2d at 251 (upholding the privilege in a worker’s compensation action involving an
422
employees’ repetitive exposure to mold, toxic substances and chemicals in the workplace which led the
employee to suffer fatigue and neurological symptoms).
423 Byxbee v. Reyes, 850 So. 2d 595, 596 (Fla. 4th DCA 2003) (quoting Partner-Brown v. Bornstein, 734
So. 2d 555, 556 (Fla. 5th DCA 1999)).

424Garbacik, 932 So. 2d at 503; Morrison, 621 So. 2d at 468; Yoho v. Lindsley, 248 So. 2d 187, 192 (Fla.
4th DCA 1971).
425Weinstock v. Groth, 659 So. 2d 713, 715 (Fla. 5th DCA 1995) (plaintiff able to assert privilege because
she had not placed her mental condition at issue in her defamation action); Cruz-Govin v. Torres, 29 So.
3d 393, 396 (Fla. 3d DCA 2010) (“The statutory exception applies when the patient, not the opposing party
who seeks the privileged information, places his mental health at issue.”).
131
a condition other than mental or emotional ailments. 426 Thus, relevant medical records
that do not pertain to the diagnosis or treatment of a mental, emotional or behavioral
disorder are not privileged and should be produced even if they are maintained by a
psychiatrist. On the other hand, records made for the purpose of diagnosis or treatment
of a mental, emotional or behavioral condition that may contain other medical information,
such as physical examinations, remain privileged and are not subject to disclosure. 427
Florida law recognizes that a plaintiff who has incurred a physical injury may allege
and prove physical pain and suffering as an element of a claim for monetary damages. 428
The term “pain and suffering” has not been judicially defined, however, Florida courts
have provided a number of factors that may be considered by the trier of fact in awarding
damages for pain and suffering. 429 These factors recognize that pain and suffering has
a mental as well as a physical component. Physical pain and suffering, absent mental
anguish, can impair the enjoyment of life. 430
Section 90.503(2) specifically applies to communications and records “including
426 Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991) (reversing in part a trial order granting a
motion to compel discovery of medical records to the extent that medical testimony and reports not
pertaining to the diagnosis and treatment of a mental or emotional disorder may exist).
427 Byxbee, 850 So. 2d at 596.
428 Grainger v. Fuller, 72 So. 462, 463 (Fla. 1916) (allowing recovery of damages for future pain and
suffering as a direct effect of a physical injury caused to the plaintiff); Parrish v. City of Orlando, 53 So. 3d
1199, 1203 (Fla. 5th DCA 2011) (“[W]here evidence is undisputed or substantially undisputed that a plaintiff
has experienced and will experience pain and suffering as a result of an accident, a zero award for pain
and suffering is inadequate as a matter of law.”).
429 Tampa Elec. Co. v. Bazemore, 96 So. 297, 302 (Fla. 1923) (In determining the measure of damages,
the court embraced various elements when considering pain and suffering, including, physical and mental
pain and suffering, resulting from the character or nature of the injury, the inconvenience, humiliation, and
embarrassment the plaintiff will suffer on account of the loss of a limb, the diminished capacity for enjoyment
of life to which all the limbs and organs of the body with which nature has provided us are so essential, and
the plaintiff’s diminished capacity for earning a living.); Bandorf, 939 So. 2d at 251 (observing that, “[i]t
should be apparent that physical pain and suffering, absent mental anguish, can impair the enjoyment of
life”).
430 Id.
132
alcoholism and other drug addiction.” In the cases noted below, the trial court allowed
discovery of defendant driver’s treatment for drug addiction post-accident, inasmuch as
the complaint alleged that the defendant driver was under the influence of drugs and
alcohol at the time of the accident, other discovery supported that allegation, and
defendant’s answer denied being under the influence. On review, the appellate courts
stated that the defendant did not abrogate the privilege by denying the allegations of the
complaint, the plaintiff did not establish the existence of any of the other exceptions to the
privilege, and they granted certiorari, and quashed the orders. 431
It is worth noting that in David J. Burton, D.M.D., P.A. v. Becker, 516 So. 2d 283
(Fla. 2d DCA 1987) the court held that medical records of the physician’s treatment for
drug abuse were subject to disclosure in a medical malpractice case, because section
397.053(2), Florida Statutes (1985), permitted a court to order disclosure of drug
treatment records when good cause is shown.
However, Section 397.053 was repealed effective October 1, 1993. The 2009
amendment to Chapter 397 contains section 397.501, which provides for the rights of
clients receiving substance abuse services. Subsection 397.501(7)(a)5, provides for the
confidentiality of records, with the following exceptions:
(a) The records of service providers which pertain to the

identity, diagnosis, and prognosis of and service provision to
any individual are confidential in accordance with this chapter
and with applicable federal confidentiality regulations and are
exempt from s. 119.07(1) and s. 24(a), Art. 1 of the State
Constitution. Such records may not be disclosed without the
written consent of the individual to whom they pertain except
that appropriate disclosure may be made without such
consent:
431 See Cruz-Govin v. Torres, 29 So. 3d 393 (Fla 3d DCA 2010) and Brown v. Montanez, 90 So. 3d 982
(Fla. 4th DCA 2012).
133
5. Upon court order based on application showing good
cause for disclosure. In determining whether there is good
cause for disclosure, court shall examine whether the public
interest and the need for disclosure outweigh the potential
injury to the individual, to the service provider and the
individual, and to the service provider itself.
Consider Brown v. Montanez, 90 So. 3d 982, (Fla. 4th DCA 2012) where the Court held
that where the criminal defendant was sent to drug related treatment as a result of his
bond and not as a negotiated criminal plea agreement with the Court, there had been no
Court ordered examination of the mental or emotional condition of the patient under
§ 90.503(4)(b), Fla. Stat. (2011).
DISCOVERY OF LAWYER-CLIENT PRIVILEGED COMMUNICATIONS
Confidential lawyer-client communications are, by statute, privileged, and
therefore not discoverable. 432 A communication is “confidential” if it is not intended to be
disclosed to third persons other than those to whom disclosure is in furtherance of the
rendition of legal services to the client, and those reasonably necessary for the
transmission of the communication. 433 However, the privilege can be waived,
intentionally or unintentionally, thus subjecting the communication to discovery. A waiver
by the client of part of the privileged communications, serves as a waiver as to the
remainder of the communications about the same subject. 434
In Southern Bell Tel. & Tel. Co. v. Deason, 435 the Florida Supreme Court set forth
the following criteria to judge whether a corporation’s communications are protected by
432 FLA. STAT. § 90.502; FLA. R. CIV. P. 1.280(b)(1).

433 FLA. STAT. § 90.502.
434 Int’l Tel. & Tel. Corp v. United Tel. Co. of Fla., 60 F.R.D. 177 (M.D. Fla. 1973).
435 632 So. 2d 1377 (Fla. 1994).
134
the attorney-client privilege:
(1) the communication would not have been made but for
the contemplation of legal services;
(2) the employee making the communication did so at the

direction of his or her corporate superior;
(3) the superior made the request of the employee as part

of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal
services being rendered, within the scope of the employee’s
duties; and
(5) the communication is not disseminated beyond those

persons who, because of the corporate structure, need to
know its contents.
THIRD PARTY BAD FAITH ACTIONS
The lawyer-client privilege between an insurer, the insured and insured’s counsel
is not waived in a third-party bad faith action. Since the insured is not the party bringing
the action, it does not waive the privilege. 436
EXAMINATION UNDER OATH BY INSURER
The lawyer-client privilege has been held to apply to an examination under oath
(“EUO”), conducted by an insurer with its insured. The statements made during the
examination were not discoverable in a subsequent criminal case involving the insured,
and, the presence of criminal defense counsel at the EUO did not waive the privilege. 437
436Progressive v. Scoma, 975 So. 2d 461 (Fla. 2d DCA 2007) (“Few evidentiary privileges are as jealously
guarded as the attorney-client privilege. Permitting a third party who brings a bad faith claim to abrogate
the attorney-client privilege previously held by the insured and insurer would seem to undermine the policy
reasons for having such a privilege, such as encouraging open and unguarded discussions between
counsel and client as they prepare for litigation.”).
437Reynolds v. State, 963 So. 2d 908 (Fla. 2d DCA 2007) (“The examination is part of the insurer’s fact
gathering for the dual purposes of (1) defending the insured, and (2) determining whether the policy covers
the incident giving rise to the claim against the insured.”).
135
PRIVILEGE LOGS
Rule 1.280(b)(5) of the Florida Rules of Civil Procedure provides, in part, that a
party withholding information from discovery claiming that it is privileged shall make the
claim expressly, and shall describe the nature of the documents, communications or
things not produced or disclosed in a manner that, without revealing the information itself
privileged or protected, will enable other parties to assess the applicability of the privilege
or protections. It has been suggested that the privilege log should include at a minimum
(for documents), sender, recipients, title or type, date and subject matter. 438
The United States District Court for the Southern District of Florida has
promulgated a Local Rule for the content required in a privilege log. 439 In at least one
instance, that Local Rule has served as guidance for a Florida court. 440 Guidance for the
content required in a privilege log can also be found in the Civil Discovery Handbook for
the United States District Court Middle District of Florida. 441
The failure to file a privilege log can result in a waiver of the attorney-client
privilege. 442 However, that is not a common sanction, and Florida courts generally
recognize that such a sanction should be resorted to only when the violation is serious. 443
438 Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004).
439 Local Rule 26.1(g)(3)(B)(ii). U.S. District Court, Southern District of Florida.
440 TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001).
441 Middle District Discovery (2015) at pp. 20-21.
https://www.flmd.uscourts.gov/sites/flmd/files/documents/florida-middle-district-courts-civil-discovery-
handbook.pdf
442 Id.
443Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006) (“Attorney-client privilege and work-product
immunity are important protections in the adversarial legal system, and any breach of these privileges can
give one party and undue advantage over the other party. Florida’s courts generally recognize that an
implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but
resorted to only when the violation is serious.”).
136
The failure to submit a privilege log at the same time as a discovery response is served,
does not waive the privilege. Fla. R. Civ. P. 1.280(b)(5) does not detail the procedure to
follow for service of privilege logs and does not specifically address the appropriate
sanction to be imposed if a party is tardy in filing a privilege log. If a party does not submit
a privilege log within a reasonable time before a hearing on the motion to compel, then
the trial court can be justified in finding a waiver because there would be no basis on
which to assess the privilege claim. A very late and inadequate privilege log could subject
a party to waiver of the privilege. 444
A privilege log is not required until such time as broader, preliminary objections
have been addressed. “A party is required to file a [privilege] log only if the information
is otherwise discoverable. Where the party claims that the production of documents is
burdensome and harassing . . . the scope of discovery is at issue. Until the court rules
on the request, the party responding to discovery does not know what will fall into the
category of discoverable documents . . . .” 445 Waiver does not apply where assertion of
the privilege is not document-specific, but category specific, and the category itself is
plainly protected. 446
INADVERTENT DISCLOSURE
As communications technology advances (facsimile, e-mail, test, etc.), the
opportunities for inadvertent disclosure of lawyer-client privileged communications
increase. Inadvertent disclosure of lawyer-client privileged communications, and the
444 Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1129 (Fla. 2014).
445 Gosman, 937 So. 2d at 293.
446 Nevin v. Palm Beach Cty. Sch. Bd., 958 So. 2d 1003 (Fla. 1st DCA 2007) (citing Matlock v. Day, 907
So. 2d 577 (Fla. 5th DCA 2005)).
137
resultant issues of waiver and disqualification have been addressed by Florida courts
more frequently in recent years, and in 2010, Fla. R. Civ. P. 1.285 was enacted, governing
the inadvertent disclosure of privileged materials. It was amended effective January 1,
2011. 447 The rule is self-explanatory. To preserve the privileges recognized by law, the
party must serve written notice of the assertion of privilege on the party to whom the
materials were disclosed, within ten days of actually discovering the inadvertent
disclosure. 448 The rule sets forth the duty of the party receiving such notice; 449 the right
to challenge the assertion of the privilege; 450 and, the effect of a determination that the
privilege applies. 451
Florida law has always required the recipient of inadvertently disclosed attorney-
client privileged communications to act appropriately, or risk being disqualified from the
case. 452 An attorney who promptly notifies the sender and immediately returns the
inadvertently produced materials without exercising any unfair advantage will, generally,
not be subject to disqualification. 453
The recipient still has the right to challenge the claimed privilege on the basis of
waiver. 454 The rule does not set forth any specific test to determine whether a waiver
occurred, however, the courts have addressed this issue in the past. To determine
447 FLA. R. CIV. P. 1.285 Inadvertent Disclosure of Privileged Materials.

448 FLA. R. CIV. P. 1.285(a).
449 FLA. R. CIV. P. 1.285(b).
450 FLA. R. CIV. P. 1.285(c).
451 FLA. R. CIV. P. 1.285(d).
452 See Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So. 2d 1117 (Fla. 3d DCA 2008).
Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, 724 So. 2d 572 (Fla. 3d DCA 1998); citing Fla. Bar
453
Comm. On Professional Ethics, OP. 93-3.

454 FLA. R. CIV. P. 1.285(c)(4).
138
whether the privilege has been waived due to inadvertent disclosure, Florida courts will
apply the “relevant circumstances” test. The test involves a factual determination, thus
requiring an evidentiary hearing. The court must consider:
(1) the reasonableness of the precautions taken to prevent

inadvertent disclosure in view of the extent of document
production;
(2) the number of inadvertent disclosures;
(3) the extent of disclosure;
(4) any delay and measures taken to rectify the disclosures;

and
(5) whether the overriding interests of justice would be

served by relieving a party of its error. 455
One should note the court’s consideration of the “precautions taken to prevent inadvertent
disclosure.” As communications are more commonly transmitted by facsimile/e-mail, the
prudent lawyer should carefully consider the protections in place (or not in place) at the
recipient’s location. For example, many facsimile terminals are used by large groups of
people and may not provide the necessary privacy for the transmission of privileged
communications. Facsimile and e-mail communications should, at the very least, always
include a lawyer-client privilege notice. 456
Attorneys should also remember that they have ethical duties when they send and
receive electronic documents in the course of representing their clients. Practitioners
must be mindful that others may be able to “mine” metadata from electronic documents.
Lawyers may also receive electronic documents that reveal metadata without any effort
455 Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007).

456 See Nova Southeastern Univ., Inc. v. Jacobson, 25 So. 3d 82 (Fla. 4th DCA 2009).
139
on the part of the receiving attorney. Metadata is information about information and has
been defined as information describing the history, tracking, or management of an
electronic document.
Metadata can contain information about the author of a document, and can show,
among other things, the changes made to a document during its drafting, including what
was deleted from or added to the final version of the document, as well as comments of
the various reviewers of the document. Metadata may thereby reveal confidential and
privileged client information that the sender of the document or electronic communication
does not wish to be revealed. In response, The Florida Bar issued Ethics Opinion 06-2
(September 15, 2006), which provides as follows:
A lawyer who is sending an electronic document should take

care to ensure the confidentiality of all information contained
in the document, including metadata. A lawyer receiving an
electronic document should not try to obtain information from
metadata that the lawyer knows or should know is not
intended for the receiving lawyer. A lawyer who inadvertently
receives information via metadata in an electronic document
should notify the sender of the information’s receipt. The
opinion is not intended to address metadata in the context of
discovery documents.
Inadvertent disclosure does not always involve disclosure to the opposing party.
Privileged materials may be inadvertently disclosed to a party’s own expert. In that
circumstance, a party does not automatically waive the privilege simply by furnishing
protected or privileged material. The court will consider whether the expert relied upon
the material in forming his or her opinion. 457
457 Mullins v. Tompkins, 15 So. 3d 798 (Fla. 1st DCA 2009).
140
REVIEW OF PRIVILEGED DOCUMENTS FOR DEPOSITION
Documents used to refresh testimony prior to testifying are discoverable unless
otherwise privileged. Therefore, the use of lawyer-client privileged documents to refresh
testimony prior to testifying does not waive the privilege. However, the privilege would
be waived if the same documents were used to refresh testimony while testifying. 458
458 Proskauer Rose v. Boca Airport, Inc., 987 So. 2d 116 (Fla. 4th DCA 2008).
141
CHAPTER NINE
MOTIONS FOR PROTECTIVE ORDER
APPLICABLE RULE
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 discovery. 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.
1. DEPOSITIONS
This issue most commonly arises in connection with a scheduled or court ordered
deposition. A motion for protective order does not automatically stay a pending
deposition. 459 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. A party who seeks a protective
order to prevent discovery must make every reasonable effort to have a motion heard
before a scheduled deposition or other discovery is to occur. The movant bears the
459Rahman Momenah v. Ammache, 616 So. 2d 121 (Fla. 2d DCA 1993) (citing Stables and CNA Ins. Co.
v. Rivers, 559 So. 2d 440 (Fla. 1st DCA 1990)); see also Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107
(Fla. 2d DCA 1977).
142
burden of showing good cause and obtaining a court order related to the pending
proceeding before discovery is to be had. The failure to file a timely 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. 460
As always, lawyers should cooperate with each other concerning the scheduling
of both, discovery, and a hearing on a motion for a protective order. Except where the
taking of a deposition is an urgent matter or where the cancellation of a scheduled
deposition would be prejudicial to a party, it is generally in the best interest of both parties
to have the court rule on objections to depositions prior to the time that the deposition is
conducted in order to avoid the necessity for a second deposition of a witness after the
issues are later resolved. Faced with a decision as to whether to attend a deposition
while a motion for protective order is pending (and for which a prior hearing is
unavailable), a lawyer often must make the difficult decision of whether to waive the
objection by appearing at the deposition or risking sanctions by the court for not
appearing. While the filing of a motion for protective order does not act as a stay until
such time as an order is procured form the court, the courts have the authority to grant or
withhold sanctions for failing to appear based upon the factors enumerated in the case
law, including the diligence and good faith of counsel. 461
Liberty Mut. Ins. Co. v. Lease Am., Inc., 735 So. 2d 560 (Fla. 4th DCA 1999); Ins. Co. of N. Am. v. Noya,
460
398 So. 2d 836 (Fla. 5th DCA 1981); see also BERMAN, FLORIDA CIVIL PROCEDURE § 1.350:12 (2018 Ed.).
461 See Canella v. Bryant, 235 So. 2d 328 (Fla. 4th DCA 1970); and Rahman Momenah, 616 So. 2d at 121.
143
2. OTHER FORMS OF DISCOVERY
Preservation of objections to other forms of discovery is generally accomplished in
accordance with the Rule of Civil Procedure applicable to that particular method of
discovery. For instance, objections to interrogatories served under Rule 1.340 are
preserved by serving any objections to the interrogatories within 30 days after service of
the interrogatories. If objections are served, the party submitting the interrogatories may
move for an order under Rule 1.380(a) on any objection to or in the event of failure to
answer an interrogatory. Similarly, in the case of production of documents under Rule
1.350, a party objecting to the production of documents shall state its objection in the
written response to the document production request, in which event the party submitting
the request may seek an order compelling the discovery in accordance with Rule 1.380.
Similar procedures exist for the production of documents and things without a deposition
under Rule 1.351 and for the examination of persons under Rule 1.360.
The timely filing of objections to written discovery as described above effectively
stays any obligation of the party objecting to the discovery to provide same until such time
as the objections are ruled upon. This does not, of course, prevent the court from granting
an award of attorneys’ fees or other sanctions under Rule 1.380 in the event that the court
finds that the objections were without merit.
With respect to the necessity for filing a privilege log when withholding information
from discovery claiming that it is privileged, see Chapter Eight, Privilege Logs.
144
CHAPTER TEN
MOTIONS TO COMPEL
The language of Rule 1.380 of the Florida Rules of Civil Procedure applies to all
discovery:
If a deponent fails to answer a question propounded or

submitted under Rule 1.310 or 1.320, or a corporation or other
entity fails to make a designation under Rule 1.310(b)(6) or
1.320(a), or a party fails to answer an interrogatory submitted
under rule 1.340, or if a party in response to a request for
inspection submitted under Rule 1.350 fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested, or if a party in response to a request
for examination of a person submitted under Rule 1.360(a)
objects to the examination, fails to respond that the
examination will be permitted as requested, or fails to submit
to or to produce a person in that party’s custody or legal
control for examination, the discovering party may move for
an order compelling an answer, or a designation or an order
compelling inspection, or an order compelling an examination
in accordance with the request.
The losing party shall be required to pay “reasonable expenses incurred,” including
attorneys’ fees, in obtaining an order compelling discovery or successfully opposing the
motion. 462
Upon proper showing, the full spectrum of sanctions may be imposed for failure to
comply with the order. 463 The rule sets out possible alternative sanctions: adopting as
established facts the matters which the recalcitrant party refused to address or produce;
prohibiting the disobedient party from supporting or opposing designated claims or
462 FLA. R. CIV. P. 1.380(a)(4).

463 FLA. R. CIV. P. 1.380(b).
145
defenses; 464 prohibiting the introduction of certain evidence; 465 striking pleadings, which
could result in a dismissal of the action; the entry of a default judgment, including an order
for liquidated damages; 466 contempt of court; and the assessment of reasonable
expenses or attorney’s fees. 467 The courts have crafted a few additional possibilities:
fines; 468 granting a new trial; 469 and, in the case of lost or destroyed evidence, creation of
464 Metro Dade Cty. v. Martinsen, 736 So. 2d 794, 795 (Fla. 3d DCA 1999) (finding that a party who engages
in serious misconduct forfeits the right to participate in the proceedings, including the right to defend against
an opposing party’s claims).
465Briarwood Capital, LLC v. Lennar Corp., 160 So. 3d 544 (Fla. 3d DCA 2015); Steele v. Chapnick, 552
So. 2d 209 (Fla. 4th DCA 1989) (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); 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).
466 DYC Fishing, Ltd. v. Martinez, 994 So. 2d 461, 462 (Fla. 3d DCA 2008) (reversing trial court’s entry
of default final judgment awarding unliquidated damages to the plaintiff and stating that in Florida, default
judgments only entitle the plaintiff to liquidated damages); Bertrand v. Belhomme, 892 So. 2d 1150 (Fla. 3d
DCA 2005); Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (finding that although “the striking of pleadings
is the most severe of all sanctions which should be employed only in extreme circumstances[,] [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.”) (citations omitted)).
467FLA. R. CIV. P. 1.380(b)(2)(A)-(E) and (d); see Bartow HMA, LLC v. Kirkland, 146 So. 3d 1213 (Fla. 2d
DCA 2014); see Blackford v. Fla. 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 Auto. Ass’n 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).
468 Creative Choice Homes, II, Ltd., v. Keystone Guard Servcs., Inc., 137 So. 3d 1144 (Fla. 3d DCA 2014)
(“[A] contemnor must be given a reasonable opportunity to purge the contempt before such fines are
imposed.”); 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 at 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); see also Channel
Components, Inc. v. Am. II Elec., Inc., 915 So. 2d 1278 (Fla. 2d DCA 2005) (ordering over $79,000 as a
sanction for violation of certain discovery orders does not constitute abuse of discretion).
469 Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (intentional nondisclosure of witness,
combined with surprise, disruption, and prejudice, warranted new trial); Nordyne, Inc. v. Fla. 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. Univ. Med. Ctr., Inc., 559 So. 2d 393 (Fla. 1st DCA 1990) (plaintiff entitled to
new trial because defendant failed to produce map that was requested repeatedly).
146
an evidentiary inference 470 or a rebuttable presumption. 471 The court may rely on its
inherent authority to impose drastic sanctions when a discovery-related fraud has been
perpetrated on the court. 472
AWARD OF EXPENSES AND FEES ON MOTION TO COMPEL
A motion under Rule 1.380(a)(2) is the most widely used vehicle for seeking
sanctions as a result of discovery abuses. Subsection (4) provides:
Award of Expenses of Motion. If the motion is granted and

after opportunity for hearing, the court shall require the party
or deponent whose conduct necessitated the motion or the
party or counsel advising the conduct to pay to the moving
party the reasonable expenses incurred in obtaining the order
that may include attorneys’ fees, unless the court finds that
the movant failed to certify in the motion that a good faith effort
was made to obtain the discovery without court action, that
the opposition to the motion was justified, or that other
circumstances make an award of expenses unjust. If the
motion is denied and after opportunity for hearing, the court
shall require the moving party to pay to the party or deponent
who opposed the motion the reasonable expenses incurred in
opposing the motion that may include attorneys’ fees, unless
the court finds that the making of the motion was substantially
justified or that other circumstances make an award of
expenses unjust. If the motion is granted in part and denied
in part, the court may apportion the reasonable expenses
incurred as a result of making the motion among the parties
and persons. (emphasis added).
As set forth in the Rule, it is required that the court shall award expenses unless
the court finds the opposition was justified or an award would be unjust. The trial court
470 Fed. Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348 (Fla. 4th DCA 1993) (manufacturer entitled to
inference that evidence, inadvertently lost by plaintiff’s expert, was not defective).
471 Public Health Trust of Dade Cty. 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).
472 Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996) (affirming default against sheriff for intentionally
omitting portion of videotape of automobile pursuit).
147
should in every case, therefore, award expenses which may include attorney fees where
there is no justified opposition, as it would seem that the absence of a justifiable position
should, “by definition,” render a sanction just. 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 award expenses against 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. 473 For purposes of assessing
failure to make discovery, an evasive or incomplete answer must be treated as a failure
to answer. 474 The punishment should fit the fault. 475 Trial courts are regularly sustained
on awards of attorney fees for discovery abuse. 476 The same holds for award of costs
and expenses. 477
Failure to make a good faith effort to obtain the discovery without court action, and
to so certify in the motion to compel, will be fatal to obtaining relief under subsection (4)
473
Ford Motor Co. v. Garrison, 415 So. 2d 843 (Fla. 1st DCA 1982).
474 FLA. R. CIV. P. 1.380(a)(3).
475 Eastern Airlines. Inc. v. Dixon, 310 So. 2d 336 (Fla. 3d DCA 1975).
476First & Mid-South Advisory Co. v. Alexander/Davis Props. Inc., 400 So. 2d 113 (Fla. 4th DCA 1981);
St. Petersburg Sheraton Corp. v. Stuart, 242 So. 2d 185 (Fla. 2d DCA 1970).
477
Summit Chase Condo. Ass’n Inc. v. Protean Inv’rs Inc., 421 So. 2d 562 (Fla. 3d DCA 1982); Rankin v.
Rankin, 284 So. 2d 487 (Fla. 3d DCA 1973); Goldstein v. Great Atl. and Pacific Tea Co., 118 So. 2d 253
(Fla. 3d DCA 1960).
148
of the rule.
Expenses, including fees, can be awarded without a finding of bad faith or willful
conduct. 478 The only requirement under Rule 1.380 is that the motion to compel be
granted and that opposition was not justified. The party to be sanctioned is entitled to a
hearing before the sanction is imposed. 479
SANCTIONS FOR FAILURE TO OBEY COURT ORDER:
If a party or its designated representative 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. As an example, not a limitation, Rule 1.380(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 designated matters in
evidence.
C. An order striking out pleadings or parts of them or

staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part of it, or
rendering a judgment by default against the disobedient party.
D. Instead of any of the foregoing orders or in addition to

them, an order treating as contempt of court the failure to obey
any orders except an order to submit to an examination made
pursuant to Rule 1.360(a)(1)(B) or subdivision (a)(2) of this
Rule.
478 Where the attorney, and not the client, is responsible for noncompliance with a discovery order, a
different set of factors must be applied in determining sanctions. Sonson v. Hearn, 17 So. 3d 745 (Fla.
4th DCA 2009).
479
Burt v. SP Healthcare Holdings, LLC, 163 So. 3d 1274 (Fla. 2d DCA 2015).
149
E. When a party has failed to comply with an order under
Rule 1.360(a)(1)(B) requiring that party to produce another for
examination, the orders listed in paragraphs (A), (B), and (C)
of this subdivision, unless the party failing to comply shows
the inability to produce the person for examination.
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. 480 For
example, it is an abuse of discretion to strike a party’s pleadings based on a nonparty’s
refusal to comply with discovery requests. 481
For the trial court to be on solid footing it is wise to stay within the enumerated
orders set forth in Rule 1.380(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 factual findings do, however, remain essential, in ensuring the order will withstand
appellate scrutiny.
REQUIRED 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
480 Zanathy v. Beach Harbor Club Ass’n, 343 So. 2d 625 (Fla. 2d DCA 1977).
481 Haverfield Corp. v. Franzen, 694 So. 2d 162 (Fla. 3d DCA 1997).
150
motion to compel takes place. 482 By the same token, striking a party’s pleadings before
the deadline for compliance with discovery requires reversal. 483
If the trial court dismisses an action or enters a default as a sanction for discovery
violations, a finding that the violations were willful or deliberate must be made. 484 If the
offending party is represented by counsel, detailed findings must be included in the order,
as delineated in Kozel v. Ostendorf. 485 If the order does not contain such findings, it will
be reversed. 486 Kozel findings are not required unless the recalcitrant party is
represented by counsel. 487
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. 488
Important and fundamental aspects of discovery abuse and efforts to sanction or
correct it, are that the underlying court order (compelling a discovery response) or process
(e.g., a subpoena, whether issued by the court or an attorney “for the court”), must be
clear and unambiguous, properly issued, and properly served. A court can only enforce
an order compelling conduct (e.g., providing discovery or enjoining one to or not to do
something) when the order is clear, because otherwise, the concept of violating it (which
482 Joseph S. Arrigo Motor Co. v. Lasserre, 678 So. 2d 396, 397 (Fla. 1st DCA 1996) (reversing an award
of $250 in sanctions where the award was entered before the motion hearing).
483 Stern v. Stein, 694 So. 2d 851 (Fla. 4th DCA 1997).
Rose v. Clinton, 575 So. 2d 751 (Fla. 3d DCA 1991); Zaccaria v. Russell, 700 So. 2d 187 (Fla. 4th DCA
484
1997).
485
629 So. 2d 817 (Fla. 1993).
486 Zaccaria, 700 So. 2d at 187.
487 Sukonik v. Wallack, No. 14-2197 (Fla. 3d DCA 2015).
488 Medina v. Fla. East Coast Rwy., 866 So. 2d 89 (Fla. 3d DCA 2004), appeal after remand and remanded,
921 So. 2d 767 (2006).
151
requires a specific intent to violate the order/process) becomes far too murky to meet due
process requirements. 489 Further, issuance and service of the court order/process must
be proper, for otherwise, that paper is nothing more than an invitation, as only through
properly issued and served process does the court obtain jurisdiction over the person
from whom action is sought (and without jurisdiction there can be no “enforcement”).
Discovery sanctions should be “commensurate with the offense.”490 It has been
held that the striking of pleadings for discovery misconduct is the most severe of penalties
and must be employed only in extreme circumstances. 491 The Fourth District further
found in Fisher:
The striking of a party’s pleadings is justified only where there

is “’a deliberate and contumacious disregard of the court’s
authority.’” Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d
DCA 1998) (quoting Mercer, 443 So. 2d at 946). In assessing
whether the striking of a party’s pleadings is warranted, courts
are to look to the following factors:
1) 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
the noncompliance; and 6) whether the delay created
significant problems of judicial administration.
Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). The
489See generally, Powerline Components, Inc. v. Mil-Spec Components, Inc., 720 So. 2d 546, 548 (Fla.
4th DCA 1998); Edlund v. Seagull Townhomes Condo. Ass’n, Inc., 928 So. 2d 405 (Fla. 3d DCA
2006); Am. Pioneer Cas. Ins. Co. v. Henrion, 523 So. 2d 776 (Fla. 4th DCA 1988); Tubero v. Ellis, 472
So. 2d 548, 550 (Fla. 4th DCA 1985).
490Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d DCA 1997); Cape Cave Corp. v.
Charlotte Asphalt, Inc., 384 So. 2d 1300, 1301 (Fla. 2d DCA 1980), appeal after remand, 406 So. 2d 1234
(1981).
491 Fisher v. Prof’l. Adver. Dirs. Co., Inc., 955 So. 2d 78 (Fla. 4th DCA 2007).
152
emphasis should be on the prejudice suffered by the opposing
party. See Ham v. Dunmire, 891 So. 2d 492, 502 (Fla. 2004).
After considering these factors, if a sanction less severe than
the striking of a party’s pleadings is “a viable alternative,” then
the trial court should utilize such alternatives. Kozel, 629 So.
2d at 818. “The purpose of the Florida Rules of Civil
Procedure is to encourage the orderly movement of litigation”
and “[t]his purpose usually can be accomplished by the
imposition of a sanction that is less harsh than dismissal” or
the striking of a party’s pleadings. 492
The failure to make the required findings in an order requires reversal. 493
In Ham v. Dunmire, 494 the Florida Supreme Court held that participation of the
litigant in the misconduct is not required to justify the sanction of dismissal. Relying on
its prior decision in Kozel v. Ostendorf, 495 the court held that the litigant’s participation,
while “extremely important,” is only one of several factors which must be weighed:
[A] litigant’s involvement in discovery violations or other

misconduct is not the exclusive factor but is just one of the
factors to be weighed in assessing whether dismissal is the
appropriate sanction. Indeed, the fact that the Kozel Court
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 exclusive 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 properly administer a smooth
flowing system to resolve disputes.
However, the Court reversed the dismissal in the case before it, finding that the attorney’s
492 Id. at 79-80.

493 See Bank One, N.A. v. Harrod, 873 So. 2d 519, 521 (Fla. 4th DCA 2004) (citing Fla. Nat’l Org. for
Women v. State, 832 So. 2d 911, 914 (Fla. 1st DCA 2002)); see also Carr v. Reese, 788 So. 2d 1067, 1072
(Fla. 2d DCA 2001) (holding that trial court’s failure to consider all of the factors as shown by final order
requires reversal).
494 891 So. 2d 492 (Fla. 2004).
495 629 So. 2d 817, 818 (Fla. 1993).
153
misconduct (and the prejudice to the opposing party) did not rise to the level necessary
to justify dismissal under the Kozel test.
154
CHAPTER ELEVEN
FRAUD ON THE COURT
A trial court has the inherent authority to dismiss an action as a sanction when a
party has perpetuated a fraud on the court. However, this power should be exercised
cautiously, sparingly, and only upon the most blatant showing of fraud, pretense,
collusion, or other similar wrong doing. 496 Fraud on the court occurs where there is clear
and convincing evidence “that a party has sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a
matter by improperly influencing the trier or unfairly hampering the presentation of the
opposing party’s claim or defense.” 497 “When reviewing a case for fraud, the court should
consider a proper mix of factors, and carefully balance a policy favoring adjudication on
the merits with competing policies to maintain the integrity of the judicial system.” 498
Although a finding of fraud on the court generally has been premised on a proven
outright lie on a critical issue or the intentional destruction or alteration of determinative
evidence, whatever scheme or fraud a court finds must be supported by clear and
convincing evidence that goes to “the very core issue at trial.”499
A trial court’s decision on whether to dismiss a case for fraud on the court is
reviewed under a somewhat narrowed abuse of discretion standard, to take into account
that the dismissal must be established by clear and convincing evidence. 500 For the trial
496 Granados v. Zehr, 979 So. 2d 1155 (Fla. 5th DCA 2008).
497 Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).
498 Id.
499 E.I. Dupont DeNemours & Co. v. Sidran, 140 So. 3d 620, 623 (Fla. 3d DCA 2014).
500 Gautreaux v. Maya, 112 So. 3d 146, 149 (Fla. 5th DCA 2013).
155
court to properly exercise its discretion, there must be an evidentiary basis to dismiss the
case. An evidentiary hearing is almost always necessary to provide clear and convincing
evidence to support dismissal for fraud, even where neither party requests the hearing. 501
The appellate court may remand the case to conduct a hearing. 502
For additional reference, please see the chart of case law in Appendix 11-1.
501 Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773 (Fla. 4th DCA 2010).
502 Diaz v. Home Depot USA, Inc., 137 So. 3d 1195 (Fla. 3d DCA 2014).
156
APPENDIX 1-1
violate one or more (and often all three) of these changes.

2017 WL 773694 Rule 34(b)(2)(B)-(C) as amended states (new language in
Only the Westlaw citation is currently available. bold):
United States District Court, S.D. New York.
(B) Responding to Each Item. For each item or category,
James H. FISCHER, Plaintiff, the response must either state that inspection and related
v. activities will be permitted as requested or state with
Stephen T. FORREST, Jr., Sandra F. Forrest, Shane specificity the grounds for objecting to the request,
R. Gebauer, and Brushy Mountain Bee Farm, Inc., including the reasons. The responding party may state
Defendants. that it will produce copies of documents or of
electronically stored information instead of permitting
14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP) inspection. The production must then be completed no
| later than the time for inspection specified in the
Signed February 28, 2017 request or another reasonable time specified in the
response.
Attorneys and Law Firms
(C) Objections. An objection must state whether any
Oscar Michelen, Cuomo LLC, Mineola, NY, Christopher responsive materials are being withheld on the basis of
Joseph Gioia, Cuomo LLC, New York, NY, for Plaintiff. that objection. An objection to part of a request must
specify the part and permit inspection of the rest.
Daniel Kenneth Cahn, Law Offices of Cahn & Cahn, P.C.,
Huntington, NY, Seth Hudson, Clements Bernard PLLC, The 2015 Advisory Committee Notes to Rule 34
Charlotte, NC, for Defendants. emphasize the reasons for the amendments:
Rule 34(b)(2)(B) is amended to require that objections to

Rule 34 requests be stated with specificity. This provision
adopts the language of Rule 33(b)(4), eliminating any
doubt that less specific objections might be suitable under
Rule 34. The specificity of the objection ties to the new
provision in Rule 34(b)(2)(C) directing that an objection
must state whether any responsive materials are being
OPINION & ORDER
withheld on the basis of that objection. An objection may
Andrew J. Peck, United States Magistrate Judge state that a request is overboard, but if the objection
recognizes that some part of the request is appropriate the
*1 It is time, once again, to issue a discovery wake-up call objection should state the scope that is not overbroad.
to the Bar in this District:1 the Federal Rules of Civil Examples would be a statement that the responding party
Procedure were amended effective December 1, 2015, and will limit the search to documents or electronically stored
one change that affects the daily work of every litigator is information created within a given period of time prior to
to Rule 34. Specifically (and I use that term advisedly), the events in suit, or to specified sources. When there is
responses to discovery requests must: such an objection, the statement of what has been withheld
can properly identify as matters “withheld” anything
• State grounds for objections with specificity; beyond the scope of the search specified in the objection.
• An objection must state whether any responsive materials *2 Rule 34(b)(2)(B) is further amended to reflect the
are being withheld on the basis of that objection; and common practice of producing copies of documents or
electronically stored information rather than simply
• Specify the time for production and, if a rolling permitting inspection. The response to the request must
production, when production will begin and when it will be state that copies will be produced. The production must be
concluded. completed either by the time for inspection specified in the
request or by another reasonable time specifically
identified in the response. When it is necessary to make the
Most lawyers who have not changed their “form file” production in stages the response should specify the
157
beginning and end dates of the production. Request as it requests information already in Plaintiff’s
possession.
Rule 34(b)(2)(C) is amended to provide that an objection
to a Rule 34 request must state whether anything is being 2. All drafts, revisions, amendments and final versions of
withheld on the basis of the objection. This amendment Defendant’s catalog(s) from 2008 to present.
should end the confusion that frequently arises when a
producing party states several objections and still produces Response: Defendant objects to this Request for
information, leaving the requesting party uncertain Production to the extent that it is overly broad and unduly
whether any relevant and responsive information has been burdensome, and not likely to lead to the discovery of
withheld on the basis of the objections. The producing relevant evidence. Defendant further objects to this
party does not need to provide a detailed description or log Request as it requests information already in Plaintiff’s
of all documents withheld, but does need to alert other possession. Subject to and without waiving said objections,
parties to the fact that documents have been withheld and Defendant has provided Plaintiff with the cover page and
thereby facilitate an informed discussion of the objection. page advertising either Bee-Quick or Natural Honey
An objection that states the limits that have controlled the Harvester.
search for responsive and relevant materials qualifies as a
statement that the materials have been “withheld.” *3 Let us count the ways defendants have violated the
Rules:
2015 Adv. Comm. Notes to Rule 34 (emphasis added).
First, incorporating all of the General Objections into each
Despite the clarity of the no-longer-new 2015 response violates Rule 34(b)(2)(B)’s specificity
Amendments, the Court still sees too many non-compliant requirement as well as Rule 34(b)(2)(C)’s requirement to
Rule 34 responses. This case is the latest. indicate whether any responsive materials are withheld on
the basis of an objection. General objections should rarely
be used after December 1, 2015 unless each such objection
applies to each document request (e.g., objecting to
produce privileged material).
The Defendants’ Objections in These Cases Violate Second, General Objection I objected on the basis of non-
Rule 34 relevance to the “subject matter of this litigation.” (See
In these related cases asserting claims for, among other page 3 above.) The December 1, 2015 amendment to Rule
things, copyright and trademark violations,2 defendants’ 26(b)(1) limits discovery to material “relevant to any
amended Rule 34 Responses (dated February 10, 2017) party’s claim or defense....” Discovery about “subject
contain 17 “general objections,” including General matter” no longer is permitted. General Objection I also
Objections No. I stating that “Defendant objects to the objects that the discovery is not “likely to lead to the
requests to the extent that they call for the disclosure of discovery of relevant, admissible evidence.” The 2015
information that is not relevant to the subject matter of this amendments deleted that language from Rule 26(b)(1), and
litigation, nor likely to lead to the discovery of relevant, lawyers need to remove it from their jargon. See In re Bard
admissible evidence.” At the end of the general objections, IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D.
defendants state that “Subject to and without waiver of the Ariz. 2016) (Campbell, D.J.) (“The 2015 amendments thus
foregoing general objections which are hereby eliminated the ‘reasonably calculated’ phrase as a
incorporated by reference into each response, Defendant’s definition for the scope of permissible discovery. Despite
Response to Plaintiff’s Request for Production of this clear change, many courts [and lawyers] continue to
Documents are as follows....” use the phrase. Old habits die hard.... The test going
forward is whether evidence is ‘relevant to any party’s
Turning to defendants’ responses to the requests, the Court claim or defense,’ not whether it is ‘reasonably calculated
will reproduce the first two: to lead to admissible evidence.’ ”).
Request for Production of Documents Third, the responses to requests 1-2 stating that the requests
are “overly broad and unduly burdensome” is meaningless
1. All emails, correspondence, letters and other written
boilerplate. Why is it burdensome? How is it overly broad?
communications between any employee, agent, officer,
This language tells the Court nothing. Indeed, even before
director, or member of Defendant and Plaintiff from 2008
the December 1, 2015 rules amendments, judicial decisions
to present.
criticized such boilerplate objections. See, e.g., Mancia v.
Response: Defendant objects to this Request for Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D.
Production to the extent that it is overly broad and unduly Md. 2008) (Grimm, M.J.) (“[B]oilierplate objections that a
burdensome, and not likely to lead to the discovery of request for discovery is ‘over[broad] and unduly
relevant evidence. Defendant further objects to this burdensome, and not reasonably calculated to lead to the
discovery of material admissible in evidence,’ persist
158
despite a litany of decisions from courts, including this one, The December 1, 2015 amendments to the Federal Rules
that such objections are improper unless based on of Civil Procedure are now 15 months old. It is time for all
particularized facts.” (record cite omitted)). counsel to learn the now-current Rules and update their
“form” files. From now on in cases before this Court, any
Finally, the responses do not indicate when documents and discovery response that does not comply with Rule 34’s
ESI that defendants are producing will be produced. requirement to state objections with specificity (and to
clearly indicate whether responsive material is being
The Court requires defendants to revise their Responses to withheld on the basis of objection) will be deemed a waiver
comply with the Rules. of all objections (except as to privilege).
SO ORDERED.
All Citations
Conclusion Not Reported in Fed. Supp., 2017 WL 773694
Footnotes
1 See William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009) (Peck, M.J.) (“This
Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and
cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically
stored information (’ESI’).”).
2 For background information about these cases, see Fischer v. Forrest, 14 Civ. 1304, 2017 WL 128705 (S.D.N.Y. Jan. 13, 2017)
(Peck, M.J.).
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
159
APPENDIX 1-2
320 F.R.D. 168 [2]

Federal Civil Procedure
United States District Court, Scope
N.D. Iowa, Central Division.
Discovery is not limited to material that might be
LIGURIA FOODS, INC., Plaintiff, deemed relevant and admissible at trial because it
v. is an investigatory tool intended to help litigants
GRIFFITH LABORATORIES, INC., Defendant. gain an understanding of the key persons,
relationships, and evidence in a case and the
No. C 14–3041–MWB veracity of those persons and purported evidence,
| even if the evidence discovered is later deemed
Signed March 13, 2017 not admissible. Fed. R. Civ. P. 26(b)(1).
2 Cases that cite this headnote

Synopsis
Background: Manufacturer of pepperoni products brought
action against spice supplier, alleging on claims for breach
of implied warranty of fitness for a purpose and breach of
implied warranty of merchantability that spices delivered [3]
were defective and caused spoilage, leading to economic Scope
damages. Order was entered to show cause why counsel for
both parties should not be sanctioned for discovery abuses. Concepts of materiality, relevancy, and
discoverability are not fixed; parties can change
their views of the necessity of certain information
[Holding:] The District Court, Mark W. Bennett, J., held or their theories of the case during the course of
that imposition of sanctions against parties was not discovery as new facts and relationships are
warranted. revealed or explained. Fed. R. Civ. P. 26(b)(1).
Cases that cite this headnote

Ordered accordingly.
[4]
West Headnotes (13) Objections and grounds for refusal
Motion and Proceedings Thereon
[1]
Scope The party resisting production in response to
interrogatories or requests for documents bears
No party has the unilateral ability to dictate the the burden of establishing lack of relevancy or
scope of discovery based on their own view of the undue burden. Fed. R. Civ. P. 26(c)(1).
parties’ respective theories of the case because
Cases that cite this headnote
litigation in general and discovery in particular
are not one sided. Fed. R. Civ. P. 26(b)(1).

[5]
Objections and grounds for refusal
160
Federal Civil Procedure question is overly broad, burdensome, or
Objections and Grounds for Refusal oppressive, and no attempt to articulate the
particular harm that would accrue if the
Merely asserting boilerplate objections that the responding party were required to respond to the
discovery sought is vague, ambiguous, overbroad, proponent’s discovery requests, but relies,
unduly burdensome, et cetera, without specifying instead, on the mere statement that the
how each interrogatory or request for production interrogatory or request for production was overly
is deficient and without articulating the particular broad, burdensome, oppressive, and irrelevant,
harm that would accrue if the responding party the response is not adequate to voice a successful
were required to respond to the proponent’s objection; instead, the response is an
discovery requests is not adequate to voice a unacceptable “boilerplate” objection. Fed. R. Civ.
successful objection. Fed. R. Civ. P. 33, 34. P. 33, 34.
6 Cases that cite this headnote 7 Cases that cite this headnote
[6]
Federal Civil Procedure [9]
Motion for leave to submit, and proceedings Objections and grounds for refusal
thereon Federal Civil Procedure
Federal Civil Procedure Objections and Grounds for Refusal
Time for motion
Simply stating that a response to an interrogatory
It is not a valid objection that interrogatories or or request for production is “subject to” one or
requests for documents are “premature” if they more general objections does not satisfy the
were propounded after the time specified in the specificity requirement, because, for example, it
governing provisions and there was no order leaves the propounding party unclear about which
specifying the timing of discovery on any specific of the numerous general objections is purportedly
issues. Fed. R. Civ. P. 26(d)(1), (d)(2). applicable as well as whether the documents or
answers provided are complete, or whether
Cases that cite this headnote responsive documents are being withheld. Fed. R.
Civ. P. 34(b)(2)(C).

[7]
Depositions and Discovery
Failure to respond; sanctions [10]
Objections and grounds for refusal
There is no limitation on the sequence of Federal Civil Procedure
discovery and a party cannot delay responding to Objections and Grounds for Refusal
discovery simply because the other party has not
yet responded to its discovery. Fed. R. Civ. P. Party did not preserve its rights by making general
26(d)(3). objections to interrogatories or request for
production or “boilerplate” objections to certain
Cases that cite this headnote specific requests to assure that it was not waiving
its rights while parties met and conferred about
scope of privileges, pertinent time periods, and
myriad of other issues in complex case. Fed. R.
Civ. P. 33, 34.
[8]
Objections and grounds for refusal 13 Cases that cite this headnote
Objections and Grounds for Refusal
When an objecting party makes no attempt to

show specifically how each interrogatory or [11]
request for production is not relevant or how each Objections and grounds for refusal
161
Federal Civil Procedure *169 David J. Ben–DOV, Jeffery M. Heftman, Richard A.
Objections and Grounds for Refusal Del Giudice, Christina M. Faklis, Gozdecki, Del Giudice,
Americus, Farkas & Brocato LLP, Chicago, IL, David L.
Any ground not stated in a timely objection to an Reinschmidt, Jay Elliott Denne, Munger, Reinschmidt &
interrogatory or request for production is waived, Denne, Sioux City, IA, for Plaintiff.
unless the court excuses the failure. Fed. R. Civ.
P. 33, 34. Christopher Brennan Wilson, Perkins Coie, LLP, Chicago,
IL, John C. Gray, Heidman Law Firm, LLP, Sioux City,
1 Cases that cite this headnote IA, for Defendant.
[12]
Failure to Answer; Sanctions
Failure to Comply; Sanctions
MEMORANDUM OPINION AND ORDER
Imposition of sanctions against parties was not REGARDING THE COURT’S ORDER TO SHOW
warranted for making general objections to CAUSE WHY COUNSEL FOR BOTH PARTIES
discovery requests or “boilerplate” objections to SHOULD NOT BE SANCTIONED FOR
certain specific requests, since parties had DISCOVERY ABUSES
cooperative and professional relationship during
MARK W. BENNETT, U.S. DISTRICT COURT JUDGE,
discovery, counsel did everything that court
NORTHERN DISTRICT OF IOWA
might expect them to do to confer and cooperate
to work out issues about scope of discovery,
parties’ reliance on improper “boilerplate”
objections was result of local “culture” of
protectionist discovery responses, parties did not
try to raise frivolous defenses for their conduct
when called on it, and parties were able to work TABLE OF CONTENTS
out most of their discovery disputes through
consultation and cooperation. Fed. R. Civ. P. 33, I. INTRODUCTION ...171
34. A. Factual Background ...171
12 Cases that cite this headnote 1. The nature of the litigation ...171
2. Potentially obstructionist discovery responses ...172
B. Procedural Background ...180

[13]
Objections and grounds for refusal 1. Pretrial matters ...180
Objections and Grounds for Refusal 2. The Show Cause Order ...180
The “natural and probable consequences” of C. Responses Of The Parties To The Order To Show
“boilerplate” objections to an interrogatory or Cause ...180
request for production is delay and impediment of
*170 1. Responses in briefs ...180
discovery, not the narrowing of issues and the
avoidance of expense and delay toward which the 2. Responses at the evidentiary hearing ...181
discovery rules are aimed. Fed. R. Civ. P. 33, 34.
1 Cases that cite this headnote II. LEGAL ANALYSIS ...182

A. Proper Discovery Responses ...182
B. Improper discovery responses ...185
Attorneys and Law Firms C. Sanctions ...187
162
III. CONCLUSION ...190 While one of the attorneys gave the hopeful answer that
admonitions from the courts had made clear what practices
“Laws are like sausages, it is better not to see them being are unacceptable, it is clear to me that admonitions from
made.” the courts have not been enough to prevent such conduct
and that, perhaps, only sanctions will stop this nonsense.
—Otto von Bismarck
This litigation is about who is responsible for tons and I know that I am not alone in my goal of eliminating
millions of dollars’ worth of sausage, of the peperoni “boilerplate” responses and other discovery abuses,
variety, some of which turned rancid. It’s also about because the goal is a worthy one.5 As one commentator
lawyers who were not concerned about how the federal observed:
discovery rules were made, but how and why they flaunted Though boilerplate objections are relatively
them. This ruling involves one of the least favorite tasks of common in modern civil litigation, the legal
federal trial and appellate judges—determining whether community can take steps to curb their use.
counsel and/or the parties should be sanctioned for Attorneys and judges alike must recognize the
discovery abuses. This case squarely presents the issue of costs these objections impose on the efficient
why excellent, thoughtful, highly professional, and administration of justice and on the legal
exceptionally civil and courteous lawyers are addicted to profession. Only with such an understanding,
“boilerplate” discovery objections.1 More importantly, and an attendant willingness to effectively
why does this widespread addiction continue to plague the penalize those who issue boilerplate objections,
litigation industry when counsel were unable to cite a can their use be reduced. Hopefully, with an
single reported or non-reported judicial decision or rule of increased focus on preventing abusive discovery
civil procedure from any jurisdiction in the United States, practices, including boilerplate objections, the
state or federal, that authorizes, condones, or approves of legal profession can move toward fairer, more
this practice? What should judges and lawyers do to effective discovery practices.6
substantially reduce or, more hopefully and optimistically,
eliminate this menacing scourge on the legal profession? Thus, while I find the task distasteful, I embark on my
Perhaps surprisingly to some, I place more blame for the consideration of whether the conduct of the parties in this
addiction, and more promise for a cure, on the judiciary case warrants sanctions for discovery abuses.
than on the bar.2 What follows is my ruling after a hearing
on March 7, 2017, pursuant to my January 27, 2017, Order
To Show Cause Why Counsel For Both Parties Should Not
Be Sanctioned For Discovery *171 Abuses And Directions
For Further Briefing,
Rule 1 of the Federal Rules of Civil Procedure states that I. INTRODUCTION

the Rules “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.” Nevertheless, modern “litigation” practice all
too often disregards that admonition and seems to favor A. Factual Background
wars of discovery attrition. “[A]lthough the rule is ‘more
aspirational than descriptive,’ ” it can, nevertheless, inform 1. The nature of the litigation
the courts’ authority to sanction discovery misconduct.3 Plaintiff Liguria Foods, Inc., (Liguria) is a pepperoni and
Furthermore, the specific Rules devoted to discovery dried sausage manufacturer *172 with its principal place of
attempt to facilitate the disclosure of relevant information business in Humboldt, Iowa. Liguria’s most popular
and to avoid conflicts by setting out the when, what, and product is a finished pepperoni product called “Liguria
how of discovery, as well as how to raise objections, in Pepperoni,” although Liguria makes other kinds of
ways that should lead to the narrowing of issues and the pepperoni, as well. Defendant Griffith Laboratories, Inc.,
resolution of disputes without the involvement of the court. (Griffith) is a manufacturer of food seasonings and spice
Even so, discovery all too often becomes a needlessly time- blends with its principal place of business in Alsip, Illinois.
consuming, and often needlessly expensive, game of Beginning in approximately 1994, Griffith sold mixes of
obstruction and non-disclosure. Indeed, obstructionist custom spices to Liguria or its predecessor company,
discovery practice is a firmly entrenched “culture” in some Humboldt Sausage. In late 2012 and early 2013, Liguria
parts of the country, notwithstanding that it involves received complaints from customers that the Liguria
practices that are contrary to the rulings of every federal Pepperoni, which contains Griffith’s Optimized Pepperoni
and state court to address them. As I remarked at an earlier Seasoning, was prematurely turning green and grey, within
hearing in this matter, “So what is it going to take to get ... 140 to 160 days after production, even though Liguria
law firms to change and practice according to the rules and Pepperoni was supposed to have a shelf life of 270 days
the cases interpreting the rules? What’s it going to take?”4 from slicing. After this problem arose, Liguria lost several
163
of its longstanding customers. *175
Eventually, Liguria concluded that Griffith’s Optimized

Pepperoni Seasoning contributed to the premature *176
spoliation of its Liguria Pepperoni. On July 3, 2014,
Liguria filed a Complaint asserting claims for breach of
implied warranty of fitness for a purpose and breach of *177
implied warranty of merchantability. Griffith filed an
Answer denying the substance of Liguria’s claims.
Throughout this litigation, Griffith has contended, inter *178
alia, that either underlying problems in Liguria’s raw meat
supply or Liguria’s “rework”7 policies were far more likely
to be responsible for Liguria’s rancidity problems than *179
Griffith’s spices.
[TABULAR MATERIAL OMITTED]
[Editor’s Note: The preceding image contains the

reference for footnote8,9,10].
2. Potentially obstructionist discovery responses Liguria’s responses to Griffith’s interrogatories and
In my review of another discovery dispute between the requests for production of documents were signed by local
parties, raised in Griffith’s January 12, 2017, Emergency counsel on behalf of Liguria’s lead attorneys, who have
Motion To Address Possible Discovery Abuses, the issue their offices in Chicago, Illinois. Griffith’s pertinent
now before me, which involves potentially obstructionist discovery responses were signed by its lead attorney, who
discovery responses by both parties, came to my attention. also has offices in Chicago, Illinois. At the January 23,
In preparing for a hearing on January 23, 2017, on 2017, hearing, *180 I ascertained that local counsel for
Griffith’s Motion, I reviewed some of Liguria’s written both parties had acted essentially as “drop boxes” for
responses to Griffith’s discovery requests attached to the filings, but did not have any active role in formulating the
Motion. I noted discovery responses that I suspected or discovery responses in question.
believed were abusive and/or not in compliance with the
applicable rules, but mere “boilerplate” objections. At the
hearing on January 23, 2017, after questioning Griffith’s
lead counsel and hearing his candid responses, I indicated
my belief that it was likely that Griffith’s written responses
to Liguria’s discovery requests were also abusive
“boilerplate” responses. Consequently, I directed the B. Procedural Background
parties to file, under seal, all their written responses to each
other’s discovery requests by the following day. I also
notified counsel of my intention to impose sanctions on
every attorney who signed the discovery responses, if I
1. Pretrial matters
determined that the responses were, indeed, improper or
The relevant pretrial matters can be summarized quite
abusive. The parties filed their written responses to
briefly. On July 3, 2014, Liguria filed a Complaint
discovery requests, as directed, the following day.
asserting claims for breach of implied warranty of fitness
for a purpose and breach of implied warranty of
After reviewing those discovery responses, I entered an
merchantability, and, on August 29, 2014, Griffith filed an
order advising the parties that I suspected that the
Answer denying the substance of Liguria’s claims. The
discovery responses listed in the following table were
trial has been reset to begin on May 1, 2017.
improper:
*173
2. The Show Cause Order

On January 27, 2017, I entered an Order To Show Cause
*174 Why Counsel For Both Parties Should Not Be Sanctioned
For Discovery Abuses And Directions For Further
Briefing. In the Order To Show Cause, I directed that every
attorney for the parties who signed a response to
interrogatories or a response to a request for documents in
164
this case, with the exception of local counsel, appear and the scope of privileges, pertinent time periods, and myriad
show cause, at a hearing previously scheduled for March 7, other issues in this complex case. Indeed, Griffith contends
2017, why he should not be sanctioned for discovery that the eleven statements in its discovery responses that I
abuses.11 I also provided the table of the discovery identified in my Order To Show Cause do not constitute
responses, included above, showing the responses that I discovery abuses. This is so, Griffith argues, because the
suspected were improper. In Section II of that order, I then responses were intended to preserve any objection, but not
directed the parties to submit, not later than February 28, for harassment or delay, and they did not require any
2017, briefs in response to the Show Cause part of the additional work or expense by *181 Liguria. Griffith
Order addressing the following matters: contends that certain of its responses were intended to
narrow the privilege issues or protect information until an
1. Whether each of the discovery responses by that party appropriate protective order was entered, or were intended
identified in the table ... is or is not a violation of the rule to narrow the relevant time frame, where the parties have
cited or otherwise an abuse of discovery, and had a relationship since at least 1995, but the problems at
the center of the litigation arose only in late 2012. Counsel
2. If any responses identified in the table ... are discovery for Griffith does acknowledge that, in light of my concerns
abuses, the appropriate sanction or combination of expressed at the January 23, 2017, hearing and in the Order
sanctions that is appropriate for an offending attorney. To Show Cause, four of its responses were not helpful nor
well-constructed, but nevertheless were not in bad faith or
On February 28, 2017, the parties filed those briefs, as for any improper purpose, and another response could have
directed. Those briefs were Liguria’s Brief In Response To been “more artful” to indicate an intent to supplement that
Section II Of The Order To Show Cause Of January 27, response later.
2017, and Griffith’s Response To Order To Show Cause.
2. Responses at the evidentiary hearing

The first part of the hearing on March 7, 2017, was devoted
C. Responses Of The Parties To The Order To Show to the issues raised in my Show Cause Order. Counsel for
Cause both parties candidly admitted that there were no published
decisions that allowed or condoned the sort of “boilerplate”
objections that I had pointed out in the Show Cause Order.
Counsel for both parties also represented that,
1. Responses in briefs notwithstanding the “boilerplate” objections, they had
In its brief in response to the Order To Show Cause, Liguria conferred professionally and cordially and had been able to
states that, based upon its review of my Order To Show resolve most discovery issues by consultation, with what I
Cause, the applicable Federal Rules of Civil Procedure, and agree was surprisingly little need for intervention by the
its discovery responses, it recognizes that many of its court in such a complicated case involving such
objections are not stated with specificity. Liguria asserts, voluminous discovery.
nevertheless, that it has not interposed any objection “for
any improper purpose, such as to harass, cause unnecessary As to the question of why counsel for both sides had
delay, or needlessly increase the cost of litigation,” resorted to “boilerplate” objections, counsel admitted that
pursuant to Rule 26(g)(1)(B)(ii). Liguria also points out it had a lot to do with the way they were trained, the kinds
that some of its objections did interpose explanations to of responses that they had received from opposing parties,
justify their basis, such as the ones that I identified, supra, and the “culture” that routinely involved the use of such
in notes 8 and 9. In addition, Liguria argues that it did so in “standardized” responses. Indeed, one of the attorneys
its responses to Interrogatories Nos. 2 and 18 and Request indicated that some clients—although not the clients in this
For Production No. 1. case—expect such responses to be made on their behalf. I
believe that one of the attorneys hit the nail squarely on the
In its brief in response to the Order To Show Cause, head when he asserted that such responses arise, at least in
Griffith, like Liguria, states that its written responses to part, out of “lawyer paranoia” not to waive inadvertently
Liguria’s discovery requests were not intended for any any objections that might protect the parties they represent.
improper purposes and that the parties have, in fact, Even so, counsel for both parties admitted that they now
conducted this litigation in a cooperative and professional understood that such “boilerplate” objections do not, in
manner. Griffith also contends that a magistrate judge has fact, preserve any objections. Counsel also agreed that part
already reviewed various of Griffith’s responses and found of the problem was a fear of “unilateral disarmament.” This
no fault with them. Griffith contends that both parties relied is where neither party’s attorneys wanted to eschew the
on standard “boilerplate” language to assure that they were standard, but impermissible, “boilerplate” practices that
not waiving their rights while they met and conferred about they had all come to use because they knew that the other
165
side would engage in “boilerplate” objections. Thus, many court.
lawyers have become fearful to comply with federal
discovery rules because their experience teaches them that
the other side would abuse the rules. Complying with the
discovery rules might place them at a competitive
disadvantage.
Returning to the matter of the conduct of counsel in this A. Proper Discovery Responses
case, counsel for both parties reiterated that their
Unfortunately, experience has taught me that attorneys do
relationship has been professional and effective in
not know or pay little attention to the discovery rules in the
narrowing the scope of discovery requests. They
Federal Rules of Civil Procedure. I preface this discussion
represented that the responses with which I had taken issue,
with an observation by United States District Judge Paul w.
and which they admitted were improper under the Federal
Grimm, of the District of Maryland, who was, at the time,
Rules of Civil Procedure, were taken by counsel in this case
a member of the Advisory Committee on Civil Rules, and
as signals of a need or desire to narrow discovery requests,
the Chair of the Discovery Subcommittee, and David S.
and a desire for discussion, rather than as refusals to
Yellin, a litigation associate with a New York law firm:
provide responses or indications of any intent to impede or
improperly delay discovery. Thus, while they admitted that [Surveys have] found that, “[a]lthough the civil justice
both sides had made improper discovery responses, they system is not broken, it is in serious need of repair. In many
suggested that this was a poor case in which to impose jurisdictions, today’s system takes too long and costs too
sanctions, because there had been no bad faith and no real much.” Few practicing attorneys would be surprised that
detriment or impediment to discovery. discovery was singled out as “the primary cause for cost
and delay,” and often “can become an end in itself.”
Furthermore, counsel for both parties sincerely pledged not
to engage in such improper discovery practices in the Hon. Paul W. Grimm and David S. Yellin, A Pragmatic
future and to work within their firms to change the way Approach to Discovery Reform: How Small Changes Can
their firms do things. They also both suggested that they Make a Big Difference in Civil Discovery, 64 S.C. L. REV.
would be willing to put together courses or continuing legal 495, 495–96 (2013) (citations omitted). Furthermore, “[b]y
education programs for lawyers or law students about the some estimates, discovery costs now comprise between 50
applicable discovery rules and proper and improper and 90 percent of the total litigation costs in a case” and
discovery objections. They also raised legitimate concerns “[d]iscovery abuse also represents one of the principal
that sanctions could impede their ability to obtain pro hac causes of delay and congestion in the judicial system.”
vice admission in other jurisdictions, which they suggested Beisner, Discovering A Better Way, 60 DUKE L.J. at 549.
was a negative consequence out of proportion to their It is ignoring the applicable Federal Rules of Civil
conduct in this case, which had involved an effective Procedure that I find is at least partially responsible for the
working relationship between opposing counsel *182 increase in the costs and delays of discovery.13
despite whopping defiance of discovery rules and court
decisions. Thus, I will begin my analysis with the rules that are
Formal discovery under the Federal Rules of pertinent, here. In this case, I am concerned with responses
Civil Procedure is one of the most abused and to interrogatories and document requests, which are
obfuscated aspects of our litigation practice.12 specifically governed by Rules 33 and 34 of the Federal
Rules of Civil Procedure, respectively. Nevertheless, Rule
26 also establishes important requirements for all
discovery.
The first part of Rule 26 that is significant, here, is Rule

II. LEGAL ANALYSIS 26(b), which defines the scope of permissible discovery,
generally, as follows:
Although it was the second issue to arise, I find it
appropriate to rule, first, on the Order To Show Cause, (b) Discovery Scope and Limits.
relating to what I believed were obstructionist discovery
(1) Scope in General. Unless otherwise limited by court
responses by both parties. Having considered the parties’
order, the scope of discovery is as follows: Parties may
arguments, I now confirm that belief as to all or nearly all
obtain discovery regarding any nonprivileged matter that
the responses that I identified. The question of whether or
is relevant to any party’s claim or defense and
not to impose sanctions, in light of such improper
proportional to the needs of the case, considering the
responses, is a much more difficult issue, however, because
importance of the issues at *183 stake in the action, the
I find that this case involved courteous and professional
amount in controversy, the parties’ relative access to
attorneys who worked together in good faith to resolve
relevant information, the parties’ resources, the importance
discovery disputes without the need for intervention by the
166
of the discovery in resolving the issues, and whether the (A) methods of discovery may be used in any sequence;
burden or expense of the proposed discovery outweighs its and
likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable. (B) discovery by one party does not require any other party
to delay its discovery.
FED. R. CIV. P. 26(b)(1) (emphasis added).
FED. R. CIV. P. 26(d)(3) (emphasis added). Indeed, the
The Eighth Circuit Court of Appeals has explained
[1] [2] [3] Advisory Committee Notes, 1970 Amendments explain,
that Rule 26(b)(1) does not give any party “the unilateral “[One] principal effect[ ] of the new provision [is] ... to
ability to dictate the scope of discovery based on their own eliminate any fixed priority in the sequence of discovery....
view of the parties’ respective theories of the case,” In principle, one party’s initiation of discovery should not
because “[l]itgation in general and discovery in particular wait upon the other’s completion, unless the delay is
... are not one sided.” Sentis Grp., Inc. v. Shell Oil Co., 763 dictated by special considerations.” Thus, Rule 26(d)(3)
F.3d 919, 925 (8th Cir. 2014). Nor is discovery “limited to makes clear that there is no limitation on the sequence of
material that might be deemed relevant and admissible at discovery and that a party cannot delay responding to
trial,” because it “is a[n] investigatory tool intended to help discovery simply because the other party has not yet
litigants gain an understanding of the key persons, responded to its discovery.
relationships, and evidence in a case and, as this case well
illustrates, the veracity of those persons and purported Rule 26(b)(5) is also relevant, here, because it recognizes
evidence, even if the evidence discovered is later deemed the propriety of asserting privileges in response to
not admissible.” Id. at 926. Furthermore, a party is wrong interrogatories or document requests, but it also requires
to suppose “that the concepts of materiality, relevancy, and more than bald assertions of privilege, as follows:
discoverability are fixed rather than fluid such that parties
cannot change their views of the necessity of certain (5) Claiming Privilege or Protecting Trial–Preparation
information or their theories of the case during the course Materials.
of discovery as new facts and relationships are revealed or
explained.” Id. (A) Information Withheld. When a party withholds
information otherwise discoverable by claiming that *184
As a counterbalance to the breadth of permissible
[4] the information is privileged or subject to protection as
discovery set out in Rule 26(b), Rule 26(c) provides, “The trial-preparation material, the party must:
court may, for good cause, issue an order to protect a party
(i) expressly make the claim; and
or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more [listed (ii) describe the nature of the documents, communications,
limitations].” FED. R. CIV. P. 26(c)(1). In short, as I or tangible things not produced or disclosed—and do so in
explained more than a decade-and-a-half ago, “as long as a manner that, without revealing information itself
the parties request information or documents relevant to the privileged or protected, will enable other parties to assess
claims at issue in the case, and such requests are tendered the claim.
in good faith and are not unduly burdensome, discovery
shall proceed.” St. Paul Reins. Co., Ltd. v. Commercial Fin. FED. R. CIV. P. 26(b)(5)(A) (emphasis added). The Eighth
Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). “The party Circuit Court of Appeals recognized, some time ago, that
resisting production bears the burden of establishing lack Rule 26(b)(5) codified a common process for eliminating
of relevancy or undue burden.” Id. at 512. I have found time-consuming delays in the determination of privilege
nothing to suggest that a more restrictive view of the scope issues by requiring the party asserting the privilege to
of discovery is now the norm. provide the party seeking discovery with a list or log that
describes the pertinent documents without disclosing the
Rule 26(d) sets out requirements for the timing of allegedly privileged communications they contain.
discovery that are pertinent, here. Specifically, Rule PaineWebber Grp., Inc. v. Zinsmeyer Trusts P’ship, 187
26(d)(1) provides that, generally, a party may not seek F.3d 988, 992 (8th Cir. 1999). Thus, Rule 26(b)(5)(A)’s
discovery before the parties’ discovery conference, but requirement of a privilege log as part of any privilege-
Rule 26(d)(2) provides that document requests pursuant to based objection to discovery is nothing new.
Rule 34 may be delivered ‘[m]ore than 21 days after the
summons and complaint are served on a party.” Rule Finally, Rule 26(e) is relevant, here, because it imposes
26(d)(3) sets out the rule for the “sequence” of discovery, obligations to correct or supplement prior discovery
as follows: answers, as follows:
(3) Sequence. Unless the parties stipulate or the court (e) Supplementing Disclosures and Responses.
orders otherwise for the parties’ and witnesses’
convenience and in the interests of justice: (1) In General. A party who has made a disclosure under
Rule 26(a)—or who has responded to an interrogatory,
167
request for production, or request for admission—must Ltd., 198 F.R.D. at 511–12 (internal quotation marks and
supplement or correct its disclosure or response: citations omitted). In other words, “merely assert[ing]
boilerplate objections that the discovery sought is vague,
(A) in a timely manner if the party learns that in some ambiguous, overbroad, unduly burdensome, etc.... without
material respect the disclosure or response is incomplete or specifying how each [interrogatory or] request for
incorrect, and if the additional or corrective information production is deficient and without articulating the
has not otherwise been made known to the other parties particular harm that would accrue if [the responding party]
during the discovery process or in writing; or were required to respond to [the proponent’s] discovery
requests” simply is not enough. Id. at 512. Again, I have
(B) as ordered by the court. found nothing to suggest that such responses are now
considered adequate; rather, there is precedent too ample
Fed. R. Civ. P. 26(e). to cite, in both the Eighth Circuit and the Seventh Circuit,
where the lead attorneys for both sides have their offices,
The discovery responses at issue, here, are to requests for demonstrating the insufficiency of such responses.
interrogatories, pursuant to Rule 33, and requests for
production of documents, pursuant to Rule 34. The specific Although Rule 33 contains an express “waiver” provision,
requirements of Rules 33 and 34 at issue are the explaining that a party has waived “[a]ny ground not stated
requirements for objections. Rule 33 provides, in pertinent in a timely objection,” Rule 34 does not. Nevertheless, as a
part, as follows: magistrate judge of this court recently explained, that does
not mean that inadequate responses to requests for
(4) Objections. The grounds for objecting to an
documents do not constitute waivers:
interrogatory must be stated with specificity. Any ground
not stated in a timely objection is waived unless the court, Federal Rule of Civil Procedure 34 does not explicitly
for good cause, excuses the failure. provide that a party waives an objection by failing to file a
timely response to a request for production of documents.
(5) Signature. The person who makes the answers must
Nonetheless, courts have routinely found that “if the
sign them, and the attorney who objects must sign any
responding party fails to make a timely objection, or fails
objections.
to state the reason for an objection, he may be held to have
FED. R. CIV. P. 33(b)(4) (emphasis added). Similarly, waived any or all of his objections.” Scaturro v. Warren &
Rule 34 provides, in pertinent part, as follows: Sweat Mfg. Co., Inc., 160 F.R.D. 44, 46 (M.D. Pa. 1995)
(citing 4A Moore’s Federal Practice, § 34.05[2] )
(B) Responding to Each Item. For each item or category, (emphasis in original). See also Henry v. National Housing
the response must either state that inspection and related Partnership, 2007 WL 2746725 (N.D. Fla. 2007) (finding
activities will be permitted as requested or state with that the law is “well settled” that a party’s failure to file
specificity the grounds for objecting to the request, timely objections to a request for production of documents
including the reasons. The responding party may state that constitutes a waiver of the objections); Krewson v. City of
it will produce copies of documents or of electronically Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988) (“Any other result
stored information instead of permitting inspection. The would completely frustrate the time limits contained in the
production must then be completed no later than the time Federal Rules and give a license to litigants to ignore the
for inspection specified in the request or another reasonable time limits for discovery without any adverse
time specified in the response. consequences.”).
(C) Objections. An objection must state whether any In Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D.
responsive materials are being withheld on the basis of that 421, 424 (D. Minn. 2012), the Court addressed the issue of
objection. An objection to part of a request must specify whether “the same waiver provision found in Rule 33(b)(4)
the part and permit inspection of the rest. applies to document requests under Rule 34.” After
reviewing the history of the “automatic waiver provision”
FED. R. CIV. P. 34(b)(2)(B) & (C) (emphasis added). found in Rule 33, the Court noted that recent decisions
concerning waiver of objections “reflect broad exercise of
The key requirement in both Rules 33 and 34 is that
[5] judicial discretion.” Id. at 425.
objections require “specificity.” As I explained a decade-
and-a-half ago, “the mere statement by a party that the Sellars v. CRST Expedited, Inc., No. C15-0117, 2016 WL
interrogatory [or request for production] was overly broad, 4771087, at *2 (N.D. Iowa Sept. 13, 2016) (footnote
burdensome, oppressive and irrelevant *185 is not omitted). The court then listed factors to consider in
adequate to voice a successful objection”; “[o]n the determining whether to excuse a waiver, and conditions
contrary, the party resisting discovery must show under which courts will impose a waiver. Id.
specifically how ... each interrogatory [or request for
production] is not relevant or how each question is overly
broad, burdensome or oppressive.” St. Paul Reins. Co.,
168
B. Improper discovery responses is not a valid objection that interrogatories or requests for
documents are “premature” if, as is the case here, they were
Although the federal discovery rules were intended to propounded after the time specified in Rule 26(d)(1) or
facilitate discovery and refocus cases on the legal merits, (d)(2) and there was no order specifying the timing of
“the discovery process has supplanted trial as the most discovery on any specific issues. Rule 26(d)(3) also makes
contentious stage in litigation.” London, Resolving the clear that there is no limitation on the sequence of
Civil Litigant’s Discovery Dilemma, 26 GEO. J. LEGAL discovery and that a party cannot delay responding to
ETHICS at 837. Improper discovery responses necessarily discovery simply because the other party has not yet
add to the contentiousness of litigation, because they start responded to its discovery. FED. R. CIV. P. 26(d)(3)(B);
with non-disclosure as their premise. see also id. Advisory Committee Notes, 1970
Amendments. Moreover, it is not an “objection” at all, and
The recitation, in the preceding section, of the specific certainly not a valid one, that a party may not have a
requirements of the applicable discovery rules highlights response or responsive documents, yet, or that the party
what is wrong with the sort of “boilerplate” objections that may have to supplement its response later, because Rule
the parties used in this case, but it does not address their 26(e) imposes that very obligation to supplement
full negative impact: responses. See id. at 26(e).
The problems with using boilerplate objections, The parties’ attempts to invoke privileges as the bases for
however, run deeper than their form or phrasing. various objections, as indicated in the table, are, likewise,
Their use obstructs the discovery process, deficient, because they violate the requirements of Rule
violates numerous rules of civil procedure and 26(b)(5)(A)(iii). Conspicuously absent from either parties’
ethics, and imposes costs on litigants that objections based on “privileges” is the required list or log
frustrate the timely and just resolution of cases. that describes the pertinent documents without disclosing
the allegedly privileged communications they contain.
Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. FED. R. CIV. P. 26(b)(5)(A)(iii); PaineWebber Grp., Inc.,
REV. at 916. There may also be practical consequences for 187 F.3d at 992. Thus, the responses improperly hampered,
the party who asserts such objections. “District courts often rather than facilitated, the timely and inexpensive
*186 repeat the warning: ‘Boilerplate, generalized determination of privilege issues. PaineWebber Grp., Inc.,
objections are inadequate and tantamount to not making 187 F.3d at 992 (the privilege log requirement codified in
any objection at all.’ ” Id. (citing Walker v. Lakewood Rule 26(b)(5) was designed to eliminate time-consuming
Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. delays in the determination of privilege issues).
1999) (citations omitted); Adelman v. Boy Scouts of Am.,
276 F.R.D. 681, 688 (S.D. Fla. 2011) (“[J]udges in this The rest of the discovery responses identified in the
[8] [9]
district typically condemn boilerplate objections as legally table fail the “specificity” requirements of Rules 33(b)(4)
inadequate or meaningless.” (citations omitted) (internal and 34(b)(2) in various ways, while utterly failing to carry
quotation marks omitted)); Nissan N. Am., Inc. v. Johnson the objecting party’s burden to demonstrate lack of
Elec. N. Am., Inc., No. 09-CV-11783, 2011 WL 669352, at relevance or undue burdensomeness under Rule 26(b)(1).
*2 (E.D. Mich. Feb. 17, 2011) (refusing to consider St. Paul Reins. Co., Ltd., 198 F.R.D. at 511. As the Eighth
“[b]oilerplate or generalized objections”)); see id. at 688 Circuit Court of Appeals has explained, an objecting party
(identifying other reasons that “boilerplate” objections are does not have “the unilateral ability to dictate the scope of
disfavored). discovery based on their own view of the parties’
respective theories of the case,” so that a “lack of
I now find, without doubt or hesitation, that the discovery relevance” objection, without explanation, is contrary to
responses by the parties in this case that I identified as the rules. Sentis Grp., Inc., 763 F.3d at 925. When, as here,
potentially abusive and/or not in compliance with the an objecting party makes no attempt to “show specifically
applicable rules, but mere “boilerplate” objections, are just how ... each interrogatory [or request for production] is not
that. I am not convinced that the possible exceptions to the relevant or how each question is overly broad, burdensome
“boilerplate” objections that I noted in two of Liguria’s or oppressive,” and no attempt to “articulat[e] the
responses or the three additional responses that Liguria particular harm that would accrue if [the responding party]
now cites are sufficient to “show specifically how ... each were required to respond to [the proponent’s] discovery
interrogatory [or request for production] is not relevant or requests,” but relies, instead, on “the mere statement ... that
how each question is overly broad, burdensome or the interrogatory [or request for production] was overly
oppressive.” St. Paul Reins. Co., Ltd., 198 F.R.D. at 511– broad, burdensome, oppressive and irrelevant,” the
12. Even if I accepted all five of the responses that Liguria response “is not *187 adequate to voice a successful
has identified as adequate, there are certainly plenty of objection”; instead, the response is an unacceptable
others that are not. “boilerplate” objection. St. Paul Reins. Co., Ltd., 198
F.R.D. at 511–12 (internal quotation marks and citations
First, as I suggested, in the table, above, several
[6] [7]
omitted). Moreover, simply stating that a response is
discovery responses by both parties violate Rule 26(d). It “subject to” one or more general objections does not satisfy
169
the “specificity” requirement, because, for example, it Thus, the general objections and the “boilerplate”
leaves the propounding party unclear about which of the objections to specific requests did not preserve the parties’
numerous general objections is purportedly applicable as rights, or, at the very least, they ran a substantial risk of
well as whether the documents or answers provided are delaying and increasing the costs of discovery, because
complete, or whether responsive documents are being they provided the opposing party with no clue how to begin
withheld. See, e.g., FED. R. CIV. P. 34(b)(2)(C). narrowing the issue, and because the court might have to
become involved to determine whether any waiver should
[10] [11]
I also reject Griffith’s argument that its general be excused. Sellars, 2016 WL 4771087 at *2. A better
objections to discovery requests or its “boilerplate” approach to preserving rights and narrowing the scope of
objections to certain specific requests were to assure that discovery, and one likely to cause less ultimate delay and
Griffith was not waiving its rights while the parties met and expense, would be to request an extension of time to
conferred about the scope of privileges, pertinent time respond and to confer on troublesome discovery requests.
periods, and a myriad of other issues in this complex case. Yet another approach would have been to request an ex
As I pointed out, above, under both Rule 33 and 34, any parte and in camera review of certain documents by a
ground not stated in a timely objection is waived, unless magistrate judge, who might quickly render an opinion on
the court excuses the failure. Sellars, 2016 WL 4771087 at whether the documents in question were discoverable.
*2. Indeed, the idea that such general or “boilerplate”
objections preserve any objections is an “urban legend.”
Jarvey, Boilerplate Discovery Objections, 61 DRAKE L.
REV. at 925–26 (quoting Carmichael Lodge No. 2103,
Benevolent & Protective Order of Elks of U.S. of Am. v.
Leonard, No. CIV S-07-2665 LKK GGH, 2009 WL
1118896, at *4 (E.D. Cal. Apr. 23, 2009)). Chief Justice C. Sanctions
Menis E. Ketchum II of the West Virginia Supreme Court
This litany of discovery abuses leads to the question of
[12]
of Appeals had particularly harsh yet insightful
whether sanctions are appropriate for such misconduct. I
condemnations for such practices:
am not alone *188 in thinking that more frequent
Many federal courts have opined that “subject to” or application of sanctions by trial judges might have a
“without waiving” objections are misleading, worthless beneficial impact. As Chief Justice Kechum wrote,
and without legitimate purpose or effect. They reserve
nothing. As one federal judge observed, “The Parties shall Civil lawyers who are brave enough to appear in
not recite a formulaic objection followed by an answer to front of juries are becoming extinct. Perhaps they
the request. It has become common practice for a Party to no longer have the time to appear in front of
object on the basis of any of the above reasons, and then juries because they are dealing with
state that ‘notwithstanding the above,’ the Party will pusillanimous objections to interrogatories and
respond to the discovery request, subject to or without reading pages and pages of mindless
waiving such objection. Such an objection and answer interrogatory instructions. I wish more judges
preserves nothing and serves only to waste the time and would punish this nonsense. Even better: I wish
resources of both the Parties and the Court. Further, such judges could force these lawyers who play games
practice leaves the requesting Party uncertain as to whether with interrogatories to appear before juries.
the question has actually been fully answered or whether These discovery-abusing lawyers would quickly
only a portion of the question has been answered.” find that you can’t win a jury trial by being cute
or tricky; you only win by doing the hard work.
Chief Justice Menis E. Ketchum II, Impeding Discovery:
Eliminating Worthless Interrogatory Instructions And Chief Justice Ketchum II, Impeding Discovery, 2012–JUN
Objections, 2012–JUN W. VA. L. 18, 19 (2012) (citation W. VA. L. at 21 (emphasis added); accord Jarvey,
omitted). He then observed, Boilerplate Discovery Objections, 61 DRAKE L. REV. at
932 (“Judges are in a unique position to deter the use of
Our circuit judges are swamped with motions to compel unethical boilerplate discovery objections. Unlike
regarding discovery. Stiff sanctions by judges for each attorneys, judges may rely on their authority to issue
violation would have a dramatic effect on these sanctions under Federal Rule of Civil Procedure 26 and on
unauthorized boilerplate objections. The word would the inherent power of the court. In order to curb boilerplate
spread quickly, and the practice would suddenly stop. objections, judges should be more willing to dole out
“Without waiving” and “subject to” objections are cute and sanctions against lawyers who abuse the discovery process
tricky but plainly violate the purpose of our Rules of Civil by issuing these objections.” (footnotes omitted). On the
Procedure: “to secure just, speedy and inexpensive other hand, as I pointed out at the beginning of this
determination of every action.” decision, imposing sanctions is an odious task. As one
commentator has observed,
Id. at 20 (citation omitted).
170
Although courts certainly have the power to Zimmerman v. Bishop Estate, 25 F.3d 784, 790 (9th Cir.),
sanction discovery violators, many are reluctant cert. denied, 513 U.S. 1043, 115 S.Ct. 637, 130 L.Ed.2d
to impose severe sanctions in the discovery 543 (1994). While there is no requirement that the court
context because of the oft-enunciated policy that find bad faith to find improper purpose, see Oregon RSA
cases should be decided on their merits. Also, No. 6, 76 F.3d at 1008, outward behavior that manifests
though they rarely say so, many judges are improper purpose may be considered in determining
reluctant to impose sanctions that may adversely objective improper purpose deserving sanction. See
affect the professional reputations and Townsend v. Holman Consulting Corp., 929 F.2d 1358,
livelihoods of lawyers who practice before them. 1366 (9th Cir.1990) (Rule 11 sanctions). The certification
by the signer is tested as of the time the discovery paper is
Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 signed. The court must strive to avoid the wisdom of
MINN. L. REV. at 511. I turn to the court’s authority to hindsight in determining whether the certification was
impose sanctions and whether doing so is appropriate in valid at the time of the signature, and all doubts are to be
this case. resolved in favor of the signer. See, e.g., Bergeson v.
Dilworth, 749 F.Supp. 1555, 1566 (D.Kan.1990).
As I have pointed out, “Rule 26(g) of the Federal Rules of However, each signing of a new discovery request,
Civil Procedure imposes on counsel and parties an response, or objection must be evaluated in light of the
affirmative duty to conduct pretrial discovery in a totality of the circumstances known at the time of signing.
responsible manner.” St. Paul Reins. Co., Ltd., 198 F.R.D. Therefore, the practical import of Rule 26(g) is to require
at 515 (citing FED. R. CIV. P. 26(g), Advisory Committee vigilance by counsel throughout the course of the
Notes to 1983 Amendments). The Rule specifically proceeding. Chapman & Cole v. Itel Container Int’l, B.V.,
requires certification that the responses or objections to 865 F.2d 676 (5th Cir.), cert. denied, 493 U.S. 872, 110
discovery requests are “not interposed for any improper S.Ct. 201, 107 L.Ed.2d 155 (1989).
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation.” FED. R. CIV. P. St. Paul Reins. Co., Ltd., 198 F.R.D. at 516 (footnotes
26(g)(2)(B). Thus, this Rule allows the court to impose omitted).
sanctions on the signer of a discovery response when the
signing of the response is incomplete, evasive, or Liguria proposes that, if I conclude that sanctions are
objectively unreasonable under the circumstances. St. Paul appropriate, notwithstanding Liguria’s contention that it
Reins. Co., Ltd., 198 F.R.D. at 515. Even if the opposing did not make its responses for any improper purposes, the
party “did not seek sanctions pursuant FED. R. CIV. P. proper sanction is the submission of a presentation to either
26(g), the court has authority to make a sua sponte (1) a group of civil litigation trial attorneys at the Chicago
determination as to whether Rule 26(g) sanctions should be Bar Association or Illinois State Bar Association, or (2) a
imposed.” Id. Rule 26(g)(3) states, “The sanction may group of law students at a Chicago area law school engaged
include an order to pay the reasonable expenses, including in an advanced civil procedure course covering the rules of
attorney’s fees, caused by the violation.” FED. R. CIV. P. discovery. Liguria suggests that such a presentation include
26(g)(3). The Eighth Circuit Court of Appeals has rejected the following topics: (a) Rules 26, 33, and 34 of the Federal
the notion “that it is an abuse of discretion for a district Rules of Civil Procedure; (b) proper approaches to
court to impose something other than the minimally propounding and responding to discovery requests; and (c)
punitive sanction available within the range of possible reasons why “boilerplate” objections are improper.
sanctions,” flatly stating, “[i]t is not.” Sentis Grp., Inc., 763
F.3d at 926. Griffith argues that, as to the matters identified in the Show
Cause Order, this case does not involve the sort of extreme
More specifically, as to the basis for determining whether misconduct in discovery that should warrant sanctions.
sanctionable conduct has occurred and what sanctions to Nevertheless, Griffith’s counsel professes to having no
apply, I have explained as follows: objection to participating in a continuing legal education
program or providing such a program, regarding the
The Advisory Committee’s Notes indicate that the “nature problems relating to “boilerplate objections,” or to writing
of sanctions is a matter of judicial discretion to be exercised an article on those problems for the court to review and
in light of the particular circumstances.” FED.R.CIV.P. approve. Griffith asserts, however, that under the facts of
26(g), Advisory Committee Notes to the 1983 this case to impose a sanction, rather than a voluntary
Amendments. The standard for imposing Rule 26(g) undertaking, would constitute an abuse of discretion.
sanctions is objective. The court tests the signer’s
certification under an objective standard of reasonableness, Ordinarily, I would likely find the parties’ use of what
[13]
except that it may inquire into the signer’s actual they admit are “standard,” albeit plainly improper,
knowledge and motivation to determine whether a responses to discovery requests is objective evidence of
discovery request, response or objection was interposed for intent to delay or impede discovery. St. Paul Reins. Co.,
an improper purpose. *189 Oregon RSA No. 6 v. Castle Ltd., 198 F.R.D. at 517. Although I find that it makes a very
Rock Cellular, 76 F.3d 1003, 1007 (9th Cir.1996); accord poor jury instruction on “intent” for lay jurors, “[i]t is a
171
well-accepted proposition that one ordinarily intends the deploy, that judicial intervention is not likely to
natural and probable consequences of one’s actions.” See, be the answer. Judges do not have the time,
e.g., Red River Freethinkers v. City of Fargo, 764 F.3d 948, resources, or inclination to constantly monitor
955 (8th Cir. 2014). The “natural and probable the discovery process. Stronger judges who were
consequences” of “boilerplate” objections is delay and committed to changing the norms of the system
impediment of discovery, not the narrowing of issues and would probably help. They will need
the avoidance of expense and delay toward which the considerably more resources to do so, however.
discovery rules are aimed. Ordinarily, I would also likely
find that the impropriety of employing such frivolous Nelson, The Discovery Process as a Circle of Blame, 67
objections in every single discovery response also FORDHAM L. REV. at 804–05. One resource available to
demonstrates the parties’ obstructionist attitude toward judges, when they encounter attorneys willing to do so, is
discovery and would further confirm suspicions that the to use those attorneys to spread proper practices, rather
responses were interposed for an improper purpose. Cf. St. than improper ones
Paul Reins. Co., Ltd., 198 F.R.D. at 517.
Thus, I strongly encourage counsel for both parties to take
I conclude that this is not an “ordinary” case where the the steps that they have volunteered to take to improve
parties’ responses to discovery were not only contrary to discovery practices at their own firms and to educate their
the applicable rules and “improper,” but warrant some colleagues and law students on proper discovery responses.
sanction. In this case, I do not have lawyers who are not I would be gratified to see the parties prepare presentations
“brave enough to appear in front of juries,” but able trial to either (1) a group of civil litigation trial attorneys at the
lawyers; nor do I find that they focused on “pusillanimous Chicago Bar Association or Illinois State Bar Association,
objections” as an end in themselves or as part of a or (2) a group of law students at a Chicago area law school
campaign to avoid timely and just disposition of this case. engaged in an advanced civil procedure course covering
Compare Chief Justice *190 Ketchum II, Impeding the rules of discovery and, in particular, (a) Rules 26, 33,
Discovery, 2012–JUN W. VA. L. at 21. The parties agree, and 34 of the Federal Rules of Civil Procedure; (b) proper
and I find, that they have had a cooperative and approaches to propounding and responding to discovery
professional relationship during discovery, at least until the requests; and (c) reasons why “boilerplate” objections are
issues addressed in Griffith’s Motion arose. Indeed, it improper. Because no sanctions are imposed, I neither
appears to me that counsel for the parties did everything require them to do so nor need to review what they intend
that the court might expect them to do to confer and to do. These are very honorable, highly skilled, extremely
cooperate to work out issues about the scope of discovery. professional and trustworthy lawyers. The legal culture of
It is also clear to me that both parties’ reliance on improper “boilerplate” discovery objections will not change
“boilerplate” objections is the result of a local “culture” of overnight. I trust these lawyers to do their part, as I will do
protectionist discovery responses, even though such mine.
responses are contrary to the decisions of every court to
address them. Notable by their absence from the parties’
responses to the Order To Show Cause are citations to any
published rulings of any court approving the kind of
“boilerplate” responses that the parties used in this case,
and the parties did not try to raise frivolous defenses for
III. CONCLUSION
their conduct when called on it. The fact that the parties
were able to work out most of their discovery disputes Federal discovery rules and the cases interpreting them
through consultation and cooperation is a clear indication uniformly finding the “boilerplate” discovery culture
that their “boilerplate” responses were completely impermissible are not aspirational, they are the law. What
unnecessary to protect any supposed rights or interests, but needs to be done? I am confident, based on the sincere
they do not warrant sanctions, in the circumstances representations from lead counsel in this case, that they will
presented, here. be ambassadors for changing the “boilerplate” discovery
objection culture in both their firms. I also encourage them
I have suggested, more than once, in this opinion that to change the “boilerplate” culture with other firms that
judges should be more involved in trying to eliminate they come up against in litigation. I encourage all lawyers,
discovery practices that are improper. Indeed, nearly when they receive “boilerplate” objections, to informally
twenty years ago, a commentator explained that all of the request that opposing counsel withdraw them by citing the
groups of lawyers involved in his conversations with large- significant body of cases that condemn the “boilerplate”
firm litigators “pointed to judges as pivotal to changing discovery practice. If opposing counsel fail to withdraw
how the system operates.” He cautioned, their “boilerplate” objections, the *191 lawyers should go
to the court and seek relief in the form of significant
Yet it seems clear after talking to the judges sanctions—because the offending lawyers have been
about how they view these disputes, as well as warned, given a safe harbor to reform and conform their
after talking to lawyers about the tactics they “boilerplate” discovery practices to the law, and failed to
172
do so. court’s attention.
The second part of this process is for judges to faithfully To address the serious problem of “boilerplate” discovery
apply the discovery rules and put an end to “boilerplate” objections, my new Supplemental Trial Management
discovery by imposing increasingly severe sanctions to Order advises the lawyers for the parties that “in
change the culture of discovery abuse. I realize my judicial conducting discovery, form or boilerplate objections shall
colleagues, especially state trial court judges, are not be used and, if used, may subject the party and/or its
overwhelmed with cases, deluged with discovery matters, counsel to sanctions.16 Objections must be specific and
likely sick and tired of them, and lack the resources needed state an adequate individualized basis.” The Order also
to deal with them in as timely a manner as they aspire to. imposes an “affirmative duty to notify the court of alleged
In my view, the imposition of increasingly severe sanctions discovery abuse” and warns of the possible sanctions for
will help solve the problems. Lawyers are advocates and obstructionist discovery conduct.17
trained to push the envelope—rightly so. Judges need to
push back, get our judicial heads out of the sand, stop *192 I recall the words of a former U.S. Attorney General
turning a blind eye to the “boilerplate” discovery culture in a different context: “Each time a [person] stands up for
and do our part to solve this cultural discovery an ideal, or acts to improve the lot of others, or strikes out
“boilerplate” plague. Like Chief Justice Ketchum, I am against injustice, [they] send [ ] forth a tiny ripple of hope,
convinced that “[s]tiff sanctions by judges for each and crossing each other from a million different centers of
violation would have a dramatic effect on these energy and daring, those ripples build a current which can
unauthorized boilerplate objections. The word would sweep down the mightiest walls of oppression and
spread quickly, and the practice would suddenly stop.”14 resistance.”18 I pledge to do my part—enough of the
warning shots across the bow.
The addiction to “boilerplate” discovery objections has
been exacerbated by an unintended consequence of a 1980 The conduct identified in the Show Cause Order does not
amendment to Rule 5 of the Federal Rules of Civil warrant sanctions, notwithstanding that the conduct was
Procedure. That amendment exempted interrogatories and contrary to the requirements for discovery responses in the
requests for documents, as well as their responses, from Federal Rules of Civil Procedure. NO MORE
filing with the court. The rationales—“the added expense” WARNINGS. IN THE FUTURE, USING
of copying and the “serious problems of storage in some “BOILERPLATE” OBJECTIONS TO DISCOVERY IN
districts”—made some sense at the time.15 However, judges ANY CASE BEFORE ME PLACES COUNSEL AND
no longer have access to discovery requests and their THEIR CLIENTS AT RISK FOR SUBSTANTIAL
responses, unless brought to their attention by motion. SANCTIONS.
Thus, because both sides to federal litigation are so often
afflicted with this addiction, there is not only no incentive IT IS SO ORDERED.
to bring the matter to the court’s attention, there is a
perverse incentive to bilaterally succumb to the addiction
without the need to ever inform the court of the parties’ All Citations
“boilerplate” addiction. This makes the discovery of
“boilerplate” addiction much more difficult for judges. 320 F.R.D. 168, 97 Fed.R.Serv.3d 213
“Boilerplate” responses cause the very harm that justifies
their prohibition, even if neither party brings them to the
Footnotes
1 As one commentator explained,

The hallmark of a boilerplate objection is its generality. The word “boilerplate” refers to “trite, hackneyed writing”—an appropriate
definition in light of how boilerplate objections are used. An objection to a discovery request is boilerplate when it merely states the
legal grounds for the objection without (1) specifying how the discovery request is deficient and (2) specifying how the objecting
party would be harmed if it were forced to respond to the request. For example, a boilerplate objection might state that a discovery
request is “irrelevant” or “overly broad” without taking the next step to explain why. These objections are taglines, completely
“devoid of any individualized factual analysis.” Often times they are used repetitively in response to multiple discovery requests.
Their repeated use as a method of effecting highly uncooperative, scorched-earth discovery battles has earned them the nicknames
“shotgun”—and “Rambo”—style objections. The nicknames are indicative of the federal courts’ extreme disfavor of these
objections.
Matthew L. Jarvey, Boilerplate Discovery Objections: How They are Used, Why They are Wrong, and What We Can Do About
Them, 61 DRAKE L. REV. 913, 914–16 (2013) (footnotes omitted).
2 My views on the extent of the scourge and the possible cures are not entirely idiosyncratic—or even new. See, e.g., Stanley P. Santire,
Discovery Objections Abuse In Federal Courts: “... Objecting to Discovery Requests Reflexively—But Not Reflectively ...,” 54–AUG
HOUS. LAW. 24 (2016); Hon. Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small
Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. REV. 495 (2013); Jarvey, Boilerplate Discovery Objections, 61
173
DRAKE L. REV. 913; Mitchell London, Resolving the Civil Litigant’s Discovery Dilemma, 26 GEO. J. LEGAL ETHICS. 837
(2013); Chief Justice Menis E. Ketchum II, Impeding Discovery: Eliminating Worthless Interrogatory Instructions And Objections,
2012–JUN W. VA. L. 18 (2012); John H. Beisner, Discovering A Better Way: The Need for Effective Civil Litigation Reform, 60
DUKE L.J. 547 (2010); John S. Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 MINN. L. REV. 565 (2000); Robert L.
Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-economic Factors that Contribute to
Unreasonable, Inefficient, and Amoral Behavior In Corporate Litigation, 67 FORDHAM L. REV. 773 (1998); Jean M. Cary, Rambo
Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 HOFSTRA L. REV. 561 (1996).
For example, I note that, in 1986—a full three decades ago—the A.B.A. Commission on Professionalism “encouraged judges to
impose sanctions for abuse of the litigation process, noting that the Federal Rules permit the imposition of sanctions for such abuse.”
See Cary, Rambo Depositions, 25 HOFSTRA L. REV. at 594 (emphasis added) (citing A.B.A. Comm’n on Professionalism, “... In
the Spirit of Public Service:” A Blueprint for the Rekindling of Lawyer Professionalism, 112 F.R.D. 243, 265, 291–92 (1986)). Thus,
calls for judges to be more willing to punish discovery abuses came from the bar, as well as from commentators and the bench.
3 London, Resolving the Civil Litigant’s Discovery Dilemma, 26 GEO. J. LEGAL ETHICS at 851 (footnotes omitted) (quoting Lee v.
Max Int’l, L.L.C., 638f3 1318, 1321 (10th Cir. 2011)).
4 01/23/17 Hrg. Tr. 12:15–17.
5 Although I have made no secret of my unhappiness with obstructionist practices in discovery and, on one occasion, I fashioned a
sanction for such conduct that the appellate court found too unusual to affirm without more notice to the sanctioned party, I have still
rarely imposed sanctions for obstructionist practices in my twenty-two years as a federal district judge and my three years prior to
that as a federal magistrate judge. See Security Nat’l Bank of Sioux City v. Abbott Labs., 299 F.R.D. 595 (N.D. Iowa 2014) (requiring
an attorney to write and produce a training video that addressed the impropriety of her obstructionist deposition conduct as a sanction
for such conduct), rev’d, 800 F.3d 936 (8th Cir. 2015) (vacating the sanction for failure to give adequate advance notice of the
unusual nature of the sanction being considered); St. Paul Reins.Co., Ltd., v. Commercial Fin. Corp., 197 F.R.D. 620 (N.D. Iowa
2000) (a party’s continued assertion of privileges, after once being warned of the impropriety of its assertions, was “without
substantial justification,” and warranted the payment of the opposing party’s attorney’s fees and expenses in bringing a motion to
compel as a sanction); St. Paul Reins.Co., Ltd., v. Commercial Fin. Corp., 198 F.R.D. 508 (N.D. Iowa 2000) (requiring an attorney
to write an article regarding why his objections to discovery requests were improper and submit such article to bar journals).
6 Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 936.
7 “Rework” is ends or parts of a product that are cut off and not used in the finished product, but are, instead, mixed back into a later
batch of the product.
8 Liguria’s Ans. To Df’s 1st Set (#116), Doc. Req. 7 does add, presumably as an explanation of overbreadth, “Request No. 7 seeks all
communications between Liguria representatives and any distributor of [Griffith’s Optimized Pepperoni Seasoning], without regard
to the subject matter of the requested communication.”
9 Liguria’s Ans. To Df’s 2nd Set (#118) Interrog. 23 does add, presumably as an explanation of overbreadth, “to the extent it purports
to seek studies which ‘evaluate the effectiveness’ of mixers used by Liguria.”
10 Interestingly, in Df’s Ans. To Pl’s First Set (#118, Tab A), Doc. Req. 3, Griffith identifies “communications” as “vague and
ambiguous,” but Griffith used that term in its own 1st Request For Documents, for example, in Request No. 9, and other discovery
requests.
11 The Order To Show Cause also specified that any attorney not arguing Griffith’s Motion was allowed to appear by telephone for the
“show cause” portion of the hearing. See Order To Show Cause at 1.
12 Francis E. McGovern & E. Allan Lind, The Discovery Survey, 51 LAW & CONTEMP. PROBS. 41, 41 (1988)
13 Judges and lawyers must not downplay the costs imposed by discovery:
The unchecked rise in discovery costs has attracted the attention of corporations, which now list discovery as one of their most
pressing concerns when litigation is imminent. This concern is well founded. Discovery costs in U.S. commercial litigation are
growing at an explosive rate; estimates indicate they reached $700 million in 2004, $1.8 billion in 2006, and $2.9 billion in 2007.
And these figures do not even account for the billions of dollars that corporations pay each year to settle frivolous lawsuits because
the burdens of litigating until summary judgment or a favorable verdict are too onerous.
Beisner, Discovering a Better Way, 60 DUKE L.J. at 574 (also discussing economic consequences of the “litigation tax”).
14 Chief Justice Ketchum II, Impeding Discovery, 2012–JUN W. VA. L. at 20.
15 See FED. R. CIV. P. 5, Advisory Committee Notes on 1980 Amendment. Of course, the drafters of this 1980 amendment could not
have anticipated that copying costs and storage space would be far less of a problem in the electronic age in which lawyers and
174
judges now work. But unintended consequences of civil rules of procedure, which often render the proposed cure worse than the
alleged disease, are nothing new. See e.g., Mark W. Bennett, Essay: The Grand Poobah And Gorillas In Our Midst: Enhancing Civil
Justice In The Federal Courts Courts–Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And
Other Reforms Like Trial By Agreement, 15 NEV. L.J., 1293, 1300 (Summer 2015).
16 My new Supplemental Trial Management Order was implemented prior to these issues arising in this case, but it is not applicable,
here, because I only started using it in 2017.
17 The portion of the Supplemental Trial Management Order prohibiting “boilerplate” objections continues, as follows:
For example:
1. When claiming privilege or work product, the parties must comply with FED. R. CIV. P. 26(b)(5)(A).
2. The Court does not recognize “object as to form” as a valid objection to a deposition question; rather, the objecting party must
state the basis for the form objection. e.g. compound, argumentative, etc.
3. Attorneys cannot respond to any discovery request with something similar to “blanket objections and a statement that discovery
would be provided ‘subject to and without’ waiving the objections.” See, e.g. Network Tallahassee, Inc., v. Embarq Corp., 2010 WL
4569897 (N.D. Fla. 2010).
After defining and prohibiting other obstructionist discovery conduct, the Supplemental Trial Management Order imposes an
“affirmative duty to notify the court of alleged discovery abuse” and warns of the possibility of sanctions, as follows:
D. AFFIRMATIVE DUTY TO NOTIFY THE COURT OF ALLEGED DISCOVERY ABUSE. Any party subjected to obstructionist
conduct in discovery or depositions or conduct that the party reasonably believes to be intended to impede, delay, or frustrate the fair
examination of deponents or the process of discovery shall promptly file a Report to the Court in writing, advising the Court of the
specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own motion.
The Court will then determine whether to issue a notice to show cause why sanctions should not be imposed, conduct a hearing after
notice, and impose sanctions, if appropriate.
E. SANCTIONS. Sanctions for obstructionist conduct or other misconduct during discovery may include, but are not limited to,
individually or in combination, the following:
1. monetary sanctions;
2. attendance at, or preparation of, a continuing legal education presentation or training video on appropriate and inappropriate
discovery conduct tailored to the discovery violation;
3. preparation and submission for publication of a law review or legal journal article on appropriate and inappropriate discovery
conduct tailored to the discovery violation;
4. revocation or suspension of pro hac vice status or admission to practice in the United States District Court for the Northern District
of Iowa;
5. sanctions in FED. R. CIV. P. 37(b)(2)(A); or
6. any other reasonable sanction.
18 Robert F. Kennedy, Day of Affirmation Address at Cape Town University (June 6, 1966) (transcript available at
www.americanrhetoric.com/speeches/rfkcapetown.htm).
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
175
APPENDIX 3-1
Committee Notes to Florida’s 2012 e-Discovery Rules Amendments
1.200 Committee Notes

2012 Amendment. Subdivisions (a)(5) to (a)(7) are added to address issues involving
electronically stored information.

2012 Amendment. Subdivision (b)(1)(J) is added to address issues involving
electronically stored information.

2012 Amendment. Subdivisions (b)(3) and (d) are added to address discovery of
electronically stored information. The parties should consider conferring with one another
at the earliest practical opportunity to discuss the reasonable scope of preservation and
production of electronically stored information. These issues may also be addressed by
means of a rule 1.200 or rule 1.201 case management conference.
Under the good cause test in subdivision (d)(1), the court should balance the costs and
burden of the requested discovery, including the potential for disruption of operations or
corruption of the electronic devices or systems from which discovery is sought, against
the relevance of the information and the requesting party’s need for that information.
Under the proportionality and reasonableness - 13 -
factors set out in subdivision (d)(2), the court must limit the frequency or extent of
discovery if it determines that the discovery sought is excessive in relation to the factors
listed. In evaluating the good cause or proportionality tests, the court may find its task
complicated if the parties know little about what information the sources at issue contain,
whether the information sought is relevant, or how valuable it may be to the litigation. If
appropriate, the court may direct the parties to develop the record further by engaging in
focused discovery, including sampling of the sources, to learn more about what
electronically stored information may be contained in those sources, what costs and
burdens are involved in retrieving, reviewing, and producing the information, and how
valuable the information sought may be to the litigation in light of the availability of
information from other sources or methods of discovery, and in light of the parties’
resources and the issues at stake in the litigation.

2012 Amendment. Subdivision (c) is amended to provide for the production of
electronically stored information in answer to interrogatories and to set out a procedure
for determining the form in which to produce electronically stored information.

2012 Amendment. Subdivision (a) is amended to address the production of
electronically stored information. Subdivision (b) is amended to set out a procedure for
determining the form to be used in producing electronically stored information.
176
2012 Amendment. Subdivision (e) is added to make clear that a party should not be
sanctioned for the loss of electronic evidence due to the good-faith operation of an
electronic information
system; the language mirrors that of Federal Rule of Civil Procedure 37(e). Nevertheless,
the good- faith requirement contained in subdivision (e) should prevent a party from
exploiting the routine operation of an information system to thwart discovery obligations
by allowing that operation to destroy information that party is required to preserve or
produce. In determining good faith, the court may consider any steps taken by the party
to comply with court orders, party agreements, or requests to preserve such information.

2012 Amendment. Subdivision (c) is amended to address the production of
electronically stored information pursuant to a subpoena. The procedures for dealing
with disputes concerning the accessibility of the information sought or the form for its
production are intended to correspond to those set out in Rule 1.280(d).
177
APPENDIX 3-2
COMPARISON OF FLORIDA AND FEDERAL RULES OF E-DISCOVERY
Florida Rules of Civil Procedure Federal Rules of Civil Procedure

RULE 1.200. PRETRIAL PROCEDURE RULE 16. PRETRIAL CONFERENCES;
(a) Case Management Conference. At any time after SCHEDULING; MANAGEMENT
responsive pleadings or motions are due, the court may (a) PURPOSES OF A PRETRIAL CONFERENCE. In any
order, or a party by serving a notice may convene, a action, the court may order the attorneys and any
case management conference. The matter to be unrepresented parties to appear for one or more pretrial
considered must be specified in the order or notice conferences for such purposes as:
setting the conference. At such a conference the court (1) expediting disposition of the action;
may: (2) establishing early and continuing control so that the
(1) schedule or reschedule the service of motions, case will not be protracted because of lack of
pleadings, and other documents; management;
(2) set or reset the time of trials, subject to rule (3) discouraging wasteful pretrial activities;
1.440(c); (4) improving the quality of the trial through more
(3) coordinate the progress of the action if the complex thorough preparation; and
litigation factors contained in rule 1.201(a)(2)(A)- (5) facilitating settlement.
(a)(2)(H) are present; (b) SCHEDULING.
(4) limit, schedule, order, or expedite discovery; (1) Scheduling Order. Except in categories of actions
(5) consider the possibility of obtaining admissions of exempted by local rule, the district judge—or a
fact and voluntary exchange of documents and magistrate judge when authorized by local rule—must
electronically stored information, and stipulations issue a scheduling order:
regarding authenticity of documents and (A) after receiving the parties’ report under Rule 26(f);
electronically stored information; or
(6) consider the need for advance rulings from the (B) after consulting with the parties’ attorneys and
court on the admissibility of documents and any unrepresented parties at a scheduling conference.
electronically stored information; (2) Time to Issue. The judge must issue the scheduling
(7) discuss as to electronically stored information, the order as soon as practicable, but unless the judge finds
possibility of agreements from the parties regarding good cause for delay, the judge must issue it within the
the extent to which such evidence should be earlier of 90 days after any defendant has been served
preserved, the form in which such evidence should be with the complaint or 60 days after any defendant has
produced, and whether discovery of such information appeared.
should be conducted in phases or limited to particular (3) Contents of the Order.
individuals, time periods, or sources; (A) Required Contents. The scheduling order must
(8) schedule disclosure of expert witnesses and the limit the time to join other parties, amend the
discovery of facts known and opinions held by such pleadings, complete discovery, and file motions.
experts; (B) Permitted Contents. The scheduling order may:
(9) schedule or hear motions in limine; (i) modify the timing of disclosures under Rules 26(a)
(10) pursue the possibilities of settlement; and 26(e)(1);
(11) require filing of preliminary stipulations if issues (ii) modify the extent of discovery;
can be narrowed; (iii) provide for disclosure, discovery, or preservation
(12) consider referring issues to a magistrate for of electronically stored information;
findings of fact; and (iv) include any agreements the parties reach for
(13) schedule other conferences or determine other asserting claims of privilege or of protection as trial-
matters that may aid in the disposition of the action. preparation material after information is produced,
(b) Pretrial Conference. After the action is at issue the including agreements reached under Federal Rule of
court itself may or shall on the timely motion of any Evidence 502;
party require the parties to appear for a conference to (v) direct that before moving for an order relating to
consider and determine: discovery, the movant must request a conference with
(1) the simplification of the issues; the court;
(2) the necessity or desirability of amendments to the (vi) set dates for pretrial conferences and for trial; and
pleadings; (vii) include other appropriate matters.
178
(3) the possibility of obtaining admissions of fact and (4) Modifying a Schedule. A schedule may be modified
of documents that will avoid unnecessary proof; only for good cause and with the judge's consent.
(4) the limitation of the number of expert witnesses; (c) ATTENDANCE AND MATTERS FOR CONSIDERATION
(5) the potential use of juror notebooks; and AT A PRETRIAL CONFERENCE.
(6) any matters permitted under subdivision (a) of this (1) Attendance. A represented party must authorize at
rule. least one of its attorneys to make stipulations and
(c) Notice. Reasonable notice shall be given for a case admissions about all matters that can reasonably be
management conference, and 20 days' notice shall be anticipated for discussion at a pretrial conference. If
given for a pretrial conference. On failure of a party to appropriate, the court may require that a party or its
attend a conference, the court may dismiss the action, representative be present or reasonably available by
strike the pleadings, limit proof or witnesses, or take other means to consider possible settlement.
any other appropriate action. Any documents that the (2) Matters for Consideration. At any pretrial
court requires for any conference must be specified in conference, the court may consider and take
the order. Orders setting pretrial conferences must be appropriate action on the following matters:
uniform throughout the territorial jurisdiction of the (A)-(P) OMITTED
court. (d) Pretrial Orders. After any conference under this
(d) Pretrial Order. The court must make an order rule, the court should issue an order reciting the action
reciting the action taken at a conference and any taken. This order controls the course of the action
stipulations made. The order controls the subsequent unless the court modifies it.
course of the action unless modified to prevent (e)-(f) OMITTED
injustice. (2) Imposing Fees and Costs. Instead of or in addition
to any other sanction, the court must order the party, its
attorney, or both to pay the reasonable expenses—
including attorney's fees—incurred because of any
noncompliance with this rule, unless the
noncompliance was substantially justified or other
circumstances make an award of expenses unjust.
179
RULE 1.201. COMPLEX LITIGATION – NEW THERE IS NO FEDERAL COUNTERPART TO
(a) OMITTED FLORIDA’S COMPLEX LITIGATION
(b) Initial Case Management Report and Conference. PROCEDURAL RULES.
The court shall hold an initial case management
conference within 60 days from the date of the order Note: In some respects, the requirements for the
declaring the action complex. Initial Case Management Report and Conference in
(1) At least 20 days prior to the date of the initial case Fla. R. Civ. P. 1.201(b) resemble the purposes of a
management conference, attorneys for the parties as Federal Rule 26(f) “meet and confer” requirement.
well as any parties appearing pro se shall confer and (See Fed. R. Civ. P. 26 below). However, the Federal
prepare a joint statement, which shall be filed with the Rule 26(f) meet and confer requirement is mandatory
clerk of the court no later than 14 days before the in every case, and only state court cases that are
conference, outlining a discovery plan and stating: declared complex under Fla. R. Civ. P. 1.201
(A) a brief factual statement of the action, which automatically include the Rule 1.201(b)(1)(J)
includes the claims and defenses; requirements.
(B) a brief statement on the theory of damages by
any party seeking affirmative relief;
(C) the likelihood of settlement;
(D) the likelihood of appearance in the action of
additional parties and identification of any nonparties
to whom any of the parties will seek to allocate fault;
(E) the proposed limits on the time: (i) to join other
parties and to amend the pleadings, (ii) to file and hear
motions, (iii) to identify any nonparties whose identity
is known, or otherwise describe as specifically as
practicable any nonparties whose identity is not known,
(iv) to disclose expert witnesses, and (v) to complete
discovery;
(F) the names of the attorneys responsible for
handling the action;
(G) the necessity for a protective order to facilitate
discovery;
(H) proposals for the formulation and
simplification of issues, including the elimination of
frivolous claims or defenses, and the number and
timing of motions for summary judgment or partial
summary judgment;
(I) the possibility of obtaining admissions of fact and
voluntary exchange of documents and electronically
stored information, stipulations regarding authenticity
of documents, electronically stored information, and
the need for advance rulings from the court on
admissibility of evidence;
(J) the possibility of obtaining agreements among
the parties regarding the extent to which such
electronically stored information should be preserved,
the form in which such information should be
produced, and whether discovery of such information
should be conducted in phases or limited to particular
individuals, time periods, or sources;
[Remainder of Rule OMITTED ]
180
RULE 1.280. GENERAL PROVISIONS RULE 26. DUTY TO DISCLOSE; GENERAL
GOVERNING DISCOVERY PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. (a) REQUIRED DISCLOSURES. [OMITTED]
[OMITTED ] (b) DISCOVERY SCOPE AND LIMITS.
(b) Scope of Discovery. Unless otherwise limited by (1) Scope in General. Unless otherwise limited by
order of the court in accordance with these rules, the court order, the scope of discovery is as follows:
scope of discovery is as follows: Parties may obtain discovery regarding any
(1) In General. Parties may obtain discovery regarding nonprivileged matter that is relevant to any party's
any matter, not privileged, that is relevant to the subject claim or defense and proportional to the needs of the
matter of the pending action, whether it relates to the case, considering the importance of the issues at stake
claim or defense of the party seeking discovery or the in the action, the amount in controversy, the parties’
claim or defense of any other party, including the relative access to relevant information, the parties’
existence, description, nature, custody, condition, and resources, the importance of the discovery in resolving
location of any books, documents, or other tangible the issues, and whether the burden or expense of the
things and the identity and location of persons having proposed discovery outweighs its likely benefit.
knowledge of any discoverable matter. It is not ground Information within this scope of discovery need not be
for objection that the information sought will be admissible in evidence to be discoverable.
inadmissible at the trial if the information sought (2) Limitations on Frequency and Extent.
appears reasonably calculated to lead to the discovery (A) When Permitted. By order, the court may alter the
of admissible evidence. limits in these rules on the number of depositions and
(2) Indemnity Agreements. A party may obtain interrogatories or on the length of depositions under
discovery of the existence and contents of any Rule 30. By order or local rule, the court may also limit
agreement under which any person may be liable to the number of requests under Rule 36.
satisfy part or all of a judgment that may be entered in (B) Specific Limitations on Electronically Stored
the action or to indemnify or to reimburse a party for Information. A party need not provide discovery of
payments made to satisfy the judgment. Information electronically stored information from sources that
concerning the agreement is not admissible in evidence the party identifies as not reasonably accessible
at trial by reason of disclosure. because of undue burden or cost. On motion to
(3) Electronically Stored Information. A party may compel discovery or for a protective order, the party
obtain discovery of electronically stored information from whom discovery is sought must show that the
in accordance with these rules. information is not reasonably accessible because of
[OMITTED (4)-(6) and (c)] undue burden or cost. If that showing is made, the
(d) Limitations on Discovery of Electronically Stored court may nonetheless order discovery from such
Information. sources if the requesting party shows good cause,
(1) A person may object to discovery of electronically considering the limitations of Rule 26(b)(2)(C). The
stored information from sources that the person court may specify conditions for the discovery.
identifies as not reasonably accessible because of (C) When Required. On motion or on its own, the
burden or cost. On motion to compel discovery or for court must limit the frequency or extent of discovery
a protective order, the person from whom discovery is otherwise allowed by these rules or by local rule if it
sought must show that the information sought or the determines that:
format requested is not reasonably accessible because (i) the discovery sought is unreasonably cumulative
of undue burden or cost. If that showing is made, the or duplicative, or can be obtained from some other
court may nonetheless order the discovery from such source that is more convenient, less burdensome, or
sources or in such formats if the requesting party less expensive;
shows good cause. The court may specify conditions (ii) the party seeking discovery has had ample
of the discovery, including ordering that some or all opportunity to obtain the information by discovery in
of the expenses incurred by the person from whom the action; or
discovery is sought be paid by the party seeking the (iii) the proposed discovery is outside the scope
discovery. permitted by Rule 26(b)(1).
(2) In determining any motion involving discovery of [OMITTED (3) – (5) and (c) – (e)]
electronically stored information, the court must limit (f) CONFERENCE OF THE PARTIES; PLANNING FOR
the frequency or extent of discovery otherwise DISCOVERY.
allowed by these rules if it determines that (i) the (1) Conference Timing. OMITTED.
discovery sought is unreasonably cumulative or (2) Conference Content; Parties’ Responsibilities. In
duplicative, or can be obtained from another source conferring, the parties must consider the nature and
or in another manner that is more convenient, less basis of their claims and defenses and the possibilities
181
burdensome, or less expensive; or (ii) the burden or for promptly settling or resolving the case; make or
expense of the discovery outweighs its likely benefit, arrange for the disclosures required by Rule 26(a)(1);
considering the needs of the case, the amount in discuss any issues about preserving discoverable
controversy, the parties’ resources, the importance of information; and develop a proposed discovery plan.
the issues at stake in the action, and the importance The attorneys of record and all unrepresented parties
of the discovery in resolving the issues. that have appeared in the case are jointly responsible
[OMITTED (e) – (g)] for arranging the conference, for attempting in good
faith to agree on the proposed discovery plan, and for
Note: Florida Rules of Procedure do not have a submitting to the court within 14 days after the
universal requirement comparable to the Federal Rule conference a written report outlining the plan. The
26(f) meet and confer. However, such measures may court may order the parties or attorneys to attend the
be ordered by the Court on a case-by-case basis as a conference in person.
matter of case management under Fla. R. Civ. P. 1.200 (3) Discovery Plan. A discovery plan must state the
and 1.201 or by the court’s inherent case management parties’ views and proposals on:
authority. (A) what changes should be made in the timing, form,
or requirement for disclosures under Rule 26(a),
including a statement of when initial disclosures were
made or will be made;
(B) the subjects on which discovery may be needed,
when discovery should be completed, and whether
discovery should be conducted in phases or be limited
to or focused on particular issues;
(C) any issues about disclosure, discovery, or
preservation of electronically stored information,
including the form or forms in which it should be
produced;
(D) any issues about claims of privilege or of
protection as trial-preparation materials, including—if
the parties agree on a procedure to assert these claims
after production—whether to ask the court to include
their agreement in an order under Federal Rule of
Evidence 502;
(E) what changes should be made in the limitations on
discovery imposed under these rules or by local rule,
and what other limitations should be imposed; and
(F) any other orders that the court should issue under
Rule 26(c) or under Rule 16(b) and (c).
Remainder of Rule OMITTED
182
RULE 1.340. INTERROGATORIES TO PARTIES RULE 33. INTERROGATORIES TO PARTIES
(a)-(b) OMITTED (a)-(c) OMITTED
(c) Option to Produce Records. When the answer to an (c) Use. An answer to an interrogatory may be used to
interrogatory may be derived or ascertained from the the extent allowed by the Federal Rules of Evidence.
records (including electronically stored information) (d) Option to Produce Business Records. If the answer
of the party to whom the interrogatory is directed or to an interrogatory may be determined by examining,
from an examination, audit, or inspection of the records auditing, compiling, abstracting, or summarizing a
or from a compilation, abstract, or summary based on party's business records (including electronically
the records and the burden of deriving or ascertaining stored information), and if the burden of deriving or
the answer is substantially the same for the party ascertaining the answer will be substantially the same
serving the interrogatory as for the party to whom it is for either party, the responding party may answer by:
directed, an answer to the interrogatory specifying the (1) specifying the records that must be reviewed, in
records from which the answer may be derived or sufficient detail to enable the interrogating party to
ascertained and offering to give the party serving the locate and identify them as readily as the responding
interrogatory a reasonable opportunity to examine, party could; and
audit, or inspect the records and to make copies, (2) giving the interrogating party a reasonable
compilations, abstracts, or summaries is a sufficient opportunity to examine and audit the records and to
answer. An answer must be in sufficient detail to make copies, compilations, abstracts, or summaries.
permit the interrogating party to locate and to identify,
as readily as can the party interrogated, the records
from which the answer may be derived or ascertained,
or must identify a person or persons representing the
interrogated party who will be available to assist the
interrogating party in locating and identifying the
records at the time they are produced. If the records to
be produced consist of electronically stored
information, the records shall be produced in a form
or forms in which they are ordinarily maintained or
in a reasonably usable form or forms.
(d) Effect on Co-Party. OMITTED
(e) Service and Filing. OMITTED
183
RULE 1.350. PRODUCTION OF DOCUMENTS RULE 34. PRODUCING DOCUMENTS,
AND THINGS AND ENTRY UPON LAND FOR ELECTRONICALLY STORED INFORMATION,
INSPECTION AND OTHER PURPOSES AND TANGIBLE THINGS, OR ENTERING
(a) Request; Scope. Any party may request any other ONTO LAND, FOR INSPECTION AND OTHER
party (1) to produce and permit the party making the PURPOSES
request, or someone acting in the requesting party’s (a) IN GENERAL. A party may serve on any other party
behalf, to inspect and copy any designated documents, a request within the scope of Rule 26(b):
including electronically stored information, writings, (1) to produce and permit the requesting party or its
drawings, graphs, charts, photographs, phono- representative to inspect, copy, test, or sample the
records, and other data compilations from which following items in the responding party's possession,
information can be obtained, translated, if necessary, custody, or control:
by the party to whom the request is directed through (A) any designated documents or electronically stored
detection devices into reasonably usable form, that information—including writings, drawings, graphs,
constitute or contain matters within the scope of rule charts, photographs, sound recordings, images, and
1.280(b) and that are in the possession, custody, or other data or data compilations—stored in any
control of the party to whom the request is directed; (2) medium from which information can be obtained
to inspect and copy, test, or sample any tangible things either directly or, if necessary, after translation by the
that constitute or contain matters within the scope of responding party into a reasonably usable form; or
rule 1.280(b) and that are in the possession, custody, or (B) any designated tangible things; or
control of the party to whom the request is directed; or (2) to permit entry onto designated land or other
(3) to permit entry upon designated land or other property possessed or controlled by the responding
property in the possession or control of the party upon party, so that the requesting party may inspect,
whom the request is served for the purpose of measure, survey, photograph, test, or sample the
inspection and measuring, surveying, photographing, property or any designated object or operation on it.
testing, or sampling the property or any designated (b) PROCEDURE.
object or operation on it within the scope of rule (1) Contents of the Request. The request:
1.280(b). (A) must describe with reasonable particularity each
(b) Procedure. Without leave of court the request may item or category of items to be inspected;
be served on the plaintiff after commencement of the (B) must specify a reasonable time, place, and manner
action and on any other party with or after service of for the inspection and for performing the related acts;
the process and initial pleading on that party. The and
request shall set forth the items to be inspected, either (C) may specify the form or forms in which
by individual item or category, and describe each item electronically stored information is to be produced.
and category with reasonable particularity. The request (2) Responses and Objections.
shall specify a reasonable time, place, and manner of (A) Time to Respond. The party to whom the request is
making the inspection or performing the related acts. directed must respond in writing within 30 days after
The party to whom the request is directed shall serve a being served or – if the request was delivered under
written response within 30 days after service of the Rule 26(d)(2) – within 30 days after the parties’ first
request, except that a defendant may serve a response Rule 26(f) conference. A shorter or longer time may be
within 45 days after service of the process and initial stipulated to under Rule 29 or be ordered by the court.
pleading on that defendant. The court may allow a (B) Responding to Each Item. For each item or
shorter or longer time. For each item or category the category, the response must either state that inspection
response shall state that inspection and related and related activities will be permitted as requested or
activities will be permitted as requested unless the state with specificity the grounds for objecting to the
request is objected to, in which event the reasons for request, including the reasons. The responding party
the objection shall be stated. If an objection is made to may state that it will produce copies of documents or of
part of an item or category, the part shall be specified. electronically stored information instead of permitting
When producing documents, the producing party shall inspection. The production must then be completed no
either produce them as they are kept in the usual course later than the time for inspection specified in the
of business or shall identify them to correspond with request or another reasonable time specified in the
the categories in the request. A request for response.
electronically stored information may specify the (C) Objections. An objection must state whether any
form or forms in which electronically stored responsive materials are being withheld on the basis of
information is to be produced. If the responding party that objection. An objection to part of a request must
objects to a requested form, or if no form is specified specify the part and permit inspection of the rest.
in the request, the responding party must state the (D) Responding to a Request for Production of
184
form or forms it intends to use. If a request for Electronically Stored Information. The response may
electronically stored information does not specify the state an objection to a requested form for producing
form of production, the producing party must electronically stored information. If the responding
produce the information in a form or forms in which party objects to a requested form—or if no form was
it is ordinarily maintained or in a reasonably usable specified in the request—the party must state the form
form or forms. The party submitting the request may or forms it intends to use.
move for an order under rule 1.380 concerning any (E) Producing the Documents or Electronically
objection, failure to respond to the request, or any part Stored Information. Unless otherwise stipulated or
of it, or failure to permit the inspection as requested. ordered by the court, these procedures apply to
(c)-(d) OMITTED producing documents or electronically stored
information:
(i) A party must produce documents as they are kept
in the usual course of business or must organize and
label them to correspond to the categories in the
request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must
produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms;
and
(iii) A party need not produce the same electronically
stored information in more than one form.
(c) NONPARTIES. As provided in Rule 45, a nonparty
may be compelled to produce documents and tangible
things or to permit an inspection.
RULE 1.380. FAILURE TO MAKE DISCOVERY; RULE 37. FAILURE TO MAKE DISCLOSURES
SANCTIONS OR TO COOPERATE IN DISCOVERY;
SANCTIONS
(a)-(d) OMITTED
(a)-(d) OMITTED
(e) Electronically Stored Information; Sanctions for
Failure to Preserve. Absent exceptional (e) FAILURE TO PROVIDE ELECTRONICALLY STORED
circumstances, a court may not impose sanctions INFORMATION. If electronically stored information
under these rules on a party for failing to provide that should have been preserved in the anticipation or
electronically stored information lost as a result of conduct of litigation is lost because a party failed to
the routine, good faith operation of an electronic take reasonable steps to preserve it, and it cannot be
information system. restored or replaced through additional discovery, the
court:
(1) upon finding prejudice to another party from loss
of the information, may order measures no greater
than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the
intent to deprive another party of the information’s
use in the litigation may:
(A) presume that the lost information was
unfavorable to the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(f) OMITTED
185
RULE 1.410. SUBPOENA RULE 45 SUBPOENA
(a)-(b) OMITTED (d) PROTECTING A PERSON SUBJECT TO A SUBPOENA.

(1) Avoiding Undue Burden or Expense; Sanctions. A
(c) For Production of Documentary Evidence. A party or attorney responsible for issuing and serving a
subpoena may also command the person to whom it is subpoena must take reasonable steps to avoid imposing
directed to produce the books, papers, documents undue burden or expense on a person subject to the
(including electronically stored information), or subpoena. The court for the district where compliance
tangible things designated therein, but the court, on is required must enforce this duty and impose an
motion made promptly and in any event at or before appropriate sanction—which may include lost earnings
the time specified in the subpoena for compliance and reasonable attorney's fees—on a party or attorney
therewith, may (1) quash or modify the subpoena if it who fails to comply.
is unreasonable and oppressive, or (2) condition denial (2) Command to Produce Materials or Permit
of the motion on the advancement by the person in Inspection.
whose behalf the subpoena is issued of the reasonable (A) Appearance Not Required. A person commanded
cost of producing the books, documents, or tangible to produce documents, electronically stored
things. If a subpoena does not specify a form for information, or tangible things, or to permit the
producing electronically stored information, the inspection of premises, need not appear in person at
person responding must produce it in a form or forms the place of production or inspection unless also
in which it is ordinarily maintained or in a commanded to appear for a deposition, hearing, or
reasonably usable form or forms. A person trial.
responding to a subpoena may object to discovery of (B) Objections. A person commanded to produce
electronically stored information from sources that documents or tangible things or to permit inspection
the person identifies as not reasonably accessible may serve on the party or attorney designated in the
because of undue costs or burden. On motion to subpoena a written objection to inspecting, copying,
compel discovery or to quash, the person from whom testing or sampling any or all of the materials or to
discovery is sought must show that the information inspecting the premises—or to producing
sought or the form requested is not reasonably electronically stored information in the form or forms
accessible because of undue costs or burden. If that requested. The objection must be served before the
showing is made, the court may nonetheless order earlier of the time specified for compliance or 14 days
discovery from such sources or in such forms if the after the subpoena is served. If an objection is made,
requesting party shows good cause, considering the the following rules apply:
limitations set out in rule 1.280(d)(2). The court may (i) At any time, on notice to the commanded person,
specify conditions of the discovery, including the serving party may move the court for the district
ordering that some or all of the expenses of the where compliance is required for an order compelling
discovery be paid by the party seeking the discovery. production or inspection.
A party seeking a production of evidence at trial which (ii) These acts may be required only as directed in the
would be subject to a subpoena may compel such order, and the order must protect a person who is
production by serving a notice to produce such neither a party nor a party's officer from significant
evidence on an adverse party as provided in rule 1.080. expense resulting from compliance.
Such notice shall have the same effect and be subject to (3) OMITTED
the same limitations as a subpoena served on the party. (e) DUTIES IN RESPONDING TO A SUBPOENA.
(1) Producing Documents or Electronically Stored
(d)-(h) OMITTED Information. These procedures apply to producing
documents or electronically stored information:
(A) Documents. A person responding to a subpoena
to produce documents must produce them as they
are kept in the ordinary course of business or must
organize and label them to correspond to the
categories in the demand.
(B) Form for Producing Electronically Stored
Information Not Specified. If a subpoena does not
specify a form for producing electronically stored
information, the person responding must produce it
in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or
186
forms.
(C) Electronically Stored Information Produced in
Only One Form. The person responding need not
produce the same electronically stored information
in more than one form.
(D) Inaccessible Electronically Stored Information.
The person responding need not provide discovery
of electronically stored information from sources
that the person identifies as not reasonably
accessible because of undue burden or cost. On
motion to compel discovery or for a protective
order, the person responding must show that the
information is not reasonably accessible because of
undue burden or cost. If that showing is made, the
court may nonetheless order discovery from such
sources if the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
Remainder of Rule 45 OMITTED
187
RULE 1.285. INADVERTENT DISCLOSURE OF FED. R. EVID. 502. ATTORNEY-CLIENT
PRIVILEGED MATERIALS PRIVILEGE AND WORK PRODUCT;
(a) Assertion of Privilege as to Inadvertently Disclosed LIMITATIONS ON WAIVER
Materials. Any party, person, or entity, after The following provisions apply, in the circumstances
inadvertent disclosure of any materials pursuant to set out, to disclosure of a communication or
these rules, may thereafter assert any privilege information covered by the attorney-client privilege or
recognized by law as to those materials. This right work-product protection.
exists without regard to whether the disclosure was (a) Disclosure Made in a Federal Proceeding or to a
made pursuant to formal demand or informal request. Federal Office or Agency; Scope of a Waiver. When
In order to assert the privilege, the party, person, or the disclosure is made in a federal proceeding or to a
entity, shall, within 10 days of actually discovering the federal office or agency and waives the attorney-client
inadvertent disclosure, serve written notice of the privilege or work-product protection, the waiver
assertion of privilege on the party to whom the extends to an undisclosed communication or
materials were disclosed. The notice shall specify with information in a federal or state proceeding only if:
particularity the materials as to which the privilege is (1) the waiver is intentional;
asserted, the nature of the privilege asserted, and the (2) the disclosed and undisclosed communications or
date on which the inadvertent disclosure was actually information concern the same subject matter; and
discovered. (3) they ought in fairness to be considered together.
(b) Duty of the Party Receiving Notice of an Assertion (b) Inadvertent Disclosure. When made in a federal
of Privilege. A party receiving notice of an assertion of proceeding or to a federal office or agency, the
privilege under subdivision (a) shall promptly return, disclosure does not operate as a waiver in a federal or
sequester, or destroy the materials specified in the state proceeding if:
notice, as well as any copies of the material. The party (1) the disclosure is inadvertent;
receiving the notice shall also promptly notify any (2) the holder of the privilege or protection took
other party, person, or entity to whom it has disclosed reasonable steps to prevent disclosure; and
the materials of the fact that the notice has been served (3) the holder promptly took reasonable steps to rectify
and of the effect of this rule. That party shall also take the error, including (if applicable) following Federal
reasonable steps to retrieve the materials disclosed. Rule of Civil Procedure 26 (b)(5)(B).
Nothing herein affects any obligation pursuant to R. (c) Disclosure Made in a State Proceeding. When the
Regulating Fla. Bar 4-4.4(b). disclosure is made in a state proceeding and is not the
(c) Right to Challenge Assertion of Privilege. Any subject of a state-court order concerning waiver, the
party receiving a notice made under subdivision (a) has disclosure does not operate as a waiver in a federal
the right to challenge the assertion of privilege. The proceeding if the disclosure:
grounds for the challenge may include, but are not (1) would not be a waiver under this rule if it had been
limited to, the following: made in a federal proceeding; or
(1) The materials in question are not privileged. (2) is not a waiver under the law of the state where the
(2) The disclosing party, person, or entity lacks disclosure occurred.
standing to assert the privilege. (d) Controlling Effect of a Court Order. A federal court
(3) The disclosing party, person, or entity has failed to may order that the privilege or protection is not waived
serve timely notice under this rule. by disclosure connected with the litigation pending
(4) The circumstances surrounding the production or before the court — in which event the disclosure is also
disclosure of the materials warrant a finding that the not a waiver in any other federal or state proceeding.
disclosing party, person, or entity has waived its (e) Controlling Effect of a Party Agreement. An
assertion that the material is protected by a privilege. agreement on the effect of disclosure in a federal
Any party seeking to challenge the assertion of proceeding is binding only on the parties to the
privilege shall do so by serving notice of its challenge agreement, unless it is incorporated into a court order.
on the party, person, or entity asserting the privilege. (f) Controlling Effect of this Rule. Notwithstanding
Notice of the challenge shall be served within 20 days Rules 101 and 1101, this rule applies to state
of service of the original notice given by the disclosing proceedings and to federal court-annexed and federal
party, person, or entity. The notice of the recipient’s court-mandated arbitration proceedings, in the
challenge shall specify the grounds for the challenge. circumstances set out in the rule. And notwithstanding
Failure to serve timely notice of challenge is a waiver Rule 501, this rule applies even if state law provides
of the right to challenge. the rule of decision.
(d) Effect of Determination that Privilege Applies. (g) Definitions. In this rule:
When an order is entered determining that materials are (1) “attorney-client privilege” means the protection that
privileged or that the right to challenge the privilege applicable law provides for confidential attorney-client
188
has been waived, the court shall direct what shall be communications; and
done with the materials and any copies so as to (2) “work-product protection” means the protection
preserve all rights of appellate review. The recipient of that applicable law provides for tangible material (or its
the materials shall also give prompt notice of the intangible equivalent) prepared in anticipation of
court’s determination to any other party, person, or litigation or for trial.
entity to whom it had disclosed the materials.
189
APPENDIX 3-3
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL

CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA.
CIRCUIT CIVIL DIVISION “AF”
Plaintiff,
vs. CASE NO.: 50 CA XXXX MB
Defendant.
/
STANDING ORDER ON ELECTRONICALLY STORED

INFORMATION DISCOVERY
The Court understands that Plaintiff designated on Form 1.997 (Civil Cover
Sheet) this matter constitutes a business tort, products liability matter, professional
malpractice, antitrust/trade regulation, business transaction, intellectual property,
shareholder derivative action, securities litigation or trade secrets, and sua sponte,
pursuant to Fla.R.Civ.P. 1.200, hereby ORDERS and ADJUDGES:
1. Plaintiff shall serve this Order upon counsel for Defendant within 20 days
of the first appearance of counsel for Defendant, and shall schedule a meet and confer
with counsel for Defendant within 60 days of such service.
2. At the meet and confer, both counsel for Plaintiff and Defendant shall be
prepared to discuss in detail, and will actually discuss:
a. Whether this matter should be considered Complex Litigation
pursuant to Rule 1.201, including the factors in Rule 1.201(2) as to
which there is mutual agreement;
b. The identity, employment position and employment address of
electronically stored information (ESI) custodians who exist for each
of their respective clients;
c. The structure of each of their client’s respective computer systems and
190
a descriptive identification of all relevant software, including the
identity and number of servers, computers, electronic devices and
email accounts that may contain relevant information or information
that would potentially lead to the discovery of admissible evidence in
this matter;
d. The existence and nature of ESI preservation policies, whether, when,
and how a litigation hold was placed on ESI, the possibility of
agreements regarding the extent to which ESI should be preserved,
the form in which such evidence should be produced, and whether
discovery of such information should be conducted in phases or
limited to particular individuals, time periods, or sources;
e. The need for an ESI disclosure clawback agreement beyond
Fla.R.Civ.P. 1.285;
f. The scope, estimated cost, and estimated time for completion of ESI
discovery required for the claims/counterclaims alleged in accordance
with Fla.R.Civ.P. 1.280; and,
g. Whether any ESI issues may significantly protract this litigation, and if
so, how such issues may be most efficiently mitigated.
3. Counsel for the Parties shall jointly prepare and file a short Notice of
Compliance confirming they have met the requirements of Para. 1 and 2 of this Order.
If the Report is filed within 15 days of the meet and confer, counsel for the parties need
take no further action to comply with this Order, absent further motion by the parties or
order of this Court. If the Notice of Compliance is not filed within 15 days of the meet and
confer, Plaintiff shall notice a Case Management Conference pursuant to 1.200(a) for
Uniform Motion Calendar to address the specific issues that have resulted in the lack
of compliance.
DONE AND ORDERED in Chambers at West Palm Beach, Florida on
, 20 .
EDWARD L. ARTAU, Circuit Judge
191
APPENDIX 3-4
STIPULATION ESTABLISHING
ELECTRONIC DISCOVERY PROTOCOL
I. DEFINITIONS
A. "Electronically stored information:' or "ESI,” as used herein, means and
refers to computer generated information or data of any kind, stored in or on any storage
media located on computers, file servers, disks, tape or other real or virtualized devices or
media. Non limiting examples of ESI include:
• Digital Communications (e.g., e-mail, voice mail, instant messaging, tweets, etc.);
• E-Mail Server Stores (e.g., Lotus Domino .NSF or Microsoft Exchange .EDB);
• Word Processed Documents (e.g., Word or WordPerfect files and drafts);
• Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets);
• Accounting Application Data (e.g., QuickBooks, Money, Peachtree data);
• Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images);
• Sound Recordings (e.g., .WAV and .MP3 files);
• Video and Animation (e.g., .AVI and .MOY files);
• Databases (e.g., Access, Oracle, SQL Server data, SAP, other);
• Contact and Relationship Management Data (e.g., Outlook, ACT!);
• Calendar and Diary Application Data (e.g., Outlook PST, blog entries);
• Online Access Data (e.g., Temporary Internet Files, History, Cookies) ;
• Presentations (e.g., PowerPoint, Corel Presentations);
• Network Access and Server Activity Logs;
• Project Management Application Data;
• Computer Aided Design/Drawing Files; and
• Backup and Archival Files (e.g., Veritas, Zip, .GHQ).
B. "Native data format" means and refers to the format of ESI in which it was
generated and/or as used by the producing party in the usual course of its business and
in its regularly conducted activities.
192
C. "Metadata" means and refers to information about information or data
about data, and includes, without limitation: (i) information embedded in or associated
with a native file that is not ordinarily viewable or printable from the application that
generated, edited, or modified such native file which describes the characteristics, origins,
usage and/or validity of the electronic file and/or (ii) information generated automatically by
the operation of a computer or other information technology system when a native file is
created, modified, transmitted, deleted or otherwise manipulated by a user of such system.
D. "Static Image" means or refers to a representation of ESI produced by
converting a native file into a standard image format capable of being viewed and printed
on standard computer systems.
E. "Documents" includes writings, drawings, graphs, charts, photographs,
sound recordings, images, and other data, data records or data compilations-stored in any
medium (including cloud-based or cloud sourced media) from which information can be
obtained.
F. "Media" means an object or device, real or virtualized, including but not
limited to a disc, tape, computer or other device, on which data is or was stored.
II. SEARCH TERMS FOR ELECTRONIC DOCUMENTS
The parties agree that they will cooperate in good faith regarding the disclosure
and formulation of appropriate search methodology, terms and protocols in advance of
any ESI search. With the objective of limiting the scope of review and production, and
thereby reducing discovery burdens, the parties agree to meet and confer as early as
possible, and in advance of any producing party search commencement, to discuss, inter
alia:
193
• Search methodology (Boolean, technology assisted review)
• Pre-search-commencement disclosure of all search terms, including semantic
synonyms. Semantic synonyms shall mean without limitation code words, terms,
phrases or illustrations, acronyms, abbreviations, or non-language alphanumeric
associational references to relevant ESI, or information that may lead to relevant
ESL
• Search protocol (algorithm selection, etc.)
• Post-search error sampling and sampling/testing reports.
The parties will continue to meet and confer regarding any search process issues as
necessary and appropriate. Nothing in this protocol, or the subsequent designation of
any search terms,shall operate to limit a party's obligations under the Federal Rules of
Civil Procedure and applicable decisional authority to otherwise search for and produce
any requested non-privileged relevant evidence, or information that could lead to
relevant evidence. This ESI protocol does not address or resolve any other objection to
the scope of the parties' respective discovery requests.
III. FORMAT OF PRODUCTION
A. Native File Format. The parties agree that production will be made in
native format, as the ESI exists on the producing party's computer system. Where
structured data (e.g., data from a database) is requested, appropriate queries will be used
to extract relevant data from any such database, which data shall match specified criteria,
and returning specified fields, in a form and format that is verifiably responsive and
readable by the use of commonly available tools. If a producing party asserts that certain
ESI is inaccessible or otherwise unnecessary or inadvisable under the circumstances, or if
the requesting party asserts that, following production, certain ESI is not reasonably
usable, the parties shall meet and confer with their respective technology experts to
discuss resolving such assertions. If the parties cannot resolve any such disputes after
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such a meet and confer has taken place, the issue shall be presented to the Court for
resolution.
B. Document Image Format. Unless otherwise agreed to in writing by a
requesting party, ESI shall be produced in native data format, together with all associated
metadata. In such cases where production in native format is not possible or advisable (e.g.,
redacted documents), native format files shall be converted to static images and each page
thereof saved electronically as a single-page "TIFF" image that reflects how the source
document would have appeared if printed out to a printer attached to a computer viewing
the file. Accompanying this TIFF shall be a multipage text (.TXT) file containing
searchable text from the native file, and the metadata as discussed later in this document.
Load files of the static images should be created and produced together with their associated
static images to facilitate the use of the produced images by a document management or
litigation support database system. If voluminous TIFF production is anticipated, the
parties shall meet and confer to determine how such production is be made reasonably
usable by the requesting party. The parties shall meet and confer to the extent reasonably
necessary to facilitate the import and use of the produced materials with commercially
available document management or litigation support software.
C. Production of Physical Documents. Documents or records which either were
originally generated or instantiated as ESI but now only exist in physical hard-copy format, or
documents or records that were originally generated in hard-copy format shall be converted to
a single page .TIFF file and produced following the same protocols set forth herein or otherwise
agreed to by the parties.
D. Document Unitization. For file or records not produced in their native

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format, each page of a document shall be electronically saved as an image file. If a
document consists of more than one page, the unitization of the document and any
attachments and/or affixed notes shall be maintained as it existed in the original when
creating the image files.
E. Duplicates. To the extent that exact duplicate documents (based on MD5 or
SHA- I hash values) reside within a party's ESI dataset, each party is only required to
produce a single copy of a responsive document or record. ESI with differing file names
but identical hash values shall not be considered duplicates. Exact duplicate shall mean bit-
for-bit identicality with both document content together with all associated metadata.
Where any such documents have attachments, hash values must be identical for both the
document-plus-attachment (including associated metadata) as well as for any attachment
(including associated metadata) standing alone. If requested, the parties will produce a
spreadsheet identifying additional custodians who had a copy of the produced document.
F. Color. For files not produced in their native format, if an original document
contains color, the producing party shall produce color image(s) for each such document if
reasonably feasible.
G. Bates Numbering and Other Unique Identifiers. For files not produced in
their native format, each page of a produced document shall have a legible, unique page
identifier ("Bates Number") electronically " burned" onto the TIF image in such a manner
that information from the source document is not obliterated, concealed, or interfered
with. There shall be no other legend or stamp placed on the document image unless a
document qualifies for confidential treatment pursuant to the terms of a Protective Order
entered by this Court in this litigation, or has been redacted in accordance with applicable
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law or Court order. In the case of confidential materials as defined in a Protective Order,
or materials redacted in accordance with applicable law or Court order, a designation may
be "burned" onto the document's image at a location that does not obliterate or obscure
any information from the source document. Any ESI produced in native data format shall
be placed in a Logical Evidence Container that is Bates numbered , or the storage device
(i.e., CD, USB, hard drive) containing such files shall be so Bates numbered. For
purposes of further use in depositions, discussions or any court proceedings, the hash
value of any document or ESI will constitute its unique controlling identifier. Alternately,
if Bates numbers per document are desired, a spreadsheet may be created providing a
Bates number to hash relationship.
H. Production Media. Documents shall be produced on CD-ROM, DVD,
external hard drive (with standard PC compatible interface), or such other readily
accessible computer or electronic media as the parties may hereafter agree upon (the
“Production Media”). Each item of Production Media shall include: (1) text
referencing that it was produced in ________________ (*:**cv****), (2) the type of
materials on the media (e.g., “Documents,” “OCR Text,” “Objective Coding,” etc.), (3)
the production date, and (4) the Bates number range of the materials contained on such
Production Media item. The documents contained on the media shall be organized and
identified by custodian, where applicable.
I. Electronic Text Files. For files not produced in their native format, text
files for produced documents shall be produced reflecting the full text that has been
electronically extracted from the original, native electronic files ("Extracted Text"). The
Extracted Text shall be provided in ASCII text format and shall be labeled and produced
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on Production Media in accordance with the provisions of paragraph II.H above,
"Production Media." The text files will be named with the unique Bates number of the
first page of the corresponding document followed by the extension " .txt."
J. Metadata. The parties agree that the production of Metadata produced will be
provided in connection with native data format ESI requested, and includes without limitation,
file, application and system metadata. Where non-native format data is produced, the following
list identifies the Metadata fields that will be produced (to the extent available):
• Document number or Production number (including the document start and
document end numbers). This should use the standard Bates number in
accordance with those used in previous productions;
• BeginAttach;
• EndAttach;
• Title/Subject;
• Sent/Date and Time (for emails only);
• Last Modified Date and Time Created Date and Time (for E-docs);
• Received Date and Time (for emails only);
• Author;
• Recipients;
• cc:;
• bcc:;
• Source (custodian);
• Hash Value;
• File Path;
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• Media (type of media that the document was stored on when it was
collected);
• Page Count;
• Original File Name;
• Doc extension;
• Full Text;
• Accessed Date & Time; and
• Last Print Date.
K. Attachments. Email attachments and embedded files must be mapped
to their parent by the Document or Production number. If attachments and embedded
files are combined with their parent documents, then "BeginAttach" and "EndAttach"
fields listing the unique beginning and end number for each attachment or embedded
document must be included.
L. Structured data. To the extent a response to discovery requires production
of discoverable electronic information contained in a database, in lieu of producing the
database, the parties agree to meet and confer to, with an understanding of which fields are
relevant, agree upon a set of queries to be made for discoverable information and generate
a report in a reasonably usable and exportable electronic file (e.g., Excel or CSV format)
for review by the requesting party or counsel. Upon review of the report(s), the requesting
party may make reasonable requests for additional information to explain the database
schema, codes, abbreviations, and different report formats or to request specific data from
identified fields.
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IV. OBJECTIONS TO ESI PRODUCTION
A. For files not produced in their native format, documents that present imaging or
format production problems shall be promptly identified and disclosed to the requesting party;
the parties shall then meet and confer to attempt to resolve the problems.
B. If either party objects to producing the requested information on the grounds
that such information is not reasonably accessible because of undue burden or cost, or
because production in the requested format is asserted to be not reasonably accessible
because of undue burden or cost, and before asserting such an objection, the responding
party will inform the requesting party of the format in which it is willing to produce it, the
nature and location of the information claimed to not be reasonably accessible, the
reason(s) why the requested form of production would impose an undue burden or is
unreasonably costly, and afford the requesting party 10 business days from receipt of such
notice to propose an alternative means of compliance with the request. Such proposal may
include alternative cost estimates for ESI discovery production, may offer a proposal for
ESI discovery cost allocation, or both. Notwithstanding anything contained herein to the
contrary, a producing party shall not produce ESI in a format not requested or designated
by the requesting party unless (i) the parties have met and conferred, and, having been unable
to resolve such format production conflict at such meet and confer session, (ii) prior to referral
to and resolution of such issue by the court.
C. If a party believes that responsive ESI no longer exists in its original format,
or is no longer retrievable, the responding party shall explain where and when it was last
retrievable in its original format, and disclose the circumstances surrounding the change in
status of that ESI, including the date of such status change, the person or persons responsible
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for such state change, the reason or reasons such ESI is no longer retrievable in that format,
and whether any backup or copy of such original ESI exists, together with the location and
the custodian thereof.
V. DESIGNATED ESI LIAISON
The parties shall identify a person ("Designated ESI Liaison") who is familiar with
a party's:
A. Email systems; biogs; social networking systems, instant messaging; Short
Message Service (SMS) systems; word processing systems; spreadsheet and database
systems (including the database's dictionary, and the manner in which such program records
transactional history in respect to deleted records); system history files, cache files, and
cookies, graphics, animation, or document presentation systems; calendar systems; voice
mail systems, including specifically, whether such systems include ESI; data files; program
files; internet systems; and intranet systems.
B. Information security systems, including access and identity authentication,
encryption, secure communications or storage, and other information and data protection
and technology deployments, where appropriate.
C. Storage systems, including whether ESI storage is cloud, server based, or
otherwise virtualized, and also including, without limitation, individual hard drives, home
computers , "laptop" or "notebook" computers, personal digital assistants, pagers , mobile
telephones, or removable /portable storage devices , such as CD-ROMs, DVDs, "floppy"
disks , zip drives, tape drives, external hard drives , flash thumb or "key" drives, or
external service providers.
D. Back up and archival systems, whether physical or virtualized, and including
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without limitation continuous data protection, business continuity, disaster recovery
systems, whether such systems are onsite, offsite, maintained using one or more third-party
vendors, or cloud based. The parties, including the designated ESI person(s), shall meet and
confer to the extent necessary to discuss the back-up routine, application, and process and
location of storage media, whether the ESI is compressed, encrypted, and the type of device
or object in or on which it is recorded (e.g., whether it uses sequential or random access),
and whether software that is capable of rendering it into usable form without undue expense
is within the party's possession, custody, or control.
E. Obsolete or "legacy" systems containing ESI and the extent, if any, to
which such ESI was copied or transferred to new or replacement systems.
F. Current and historical website information, including uncompiled source
code used to generate such web site information, customer information inputted by or
through such current or historical web site information, and also including any potentially
relevant or discoverable information contained on that or those site(s), as well as systems
to back up, archive, store, or retain superseded, deleted, or removed web pages, and
policies regarding allowing third parties' sites to archive client website data.
G. ESI erasure, modification, or recovery mechanisms, such as metadata
scrubbers, wiping programs , and including without limitation other programs that destroy,
repeatedly overwrite or otherwise render unreadable or uninterpretable all of or portions of
real or virtualized storage media in order to render such erased information irretrievable, and
all policies in place during the relevant time period regarding the use of such processes and
software , as well as recovery programs that can defeat scrubbing, thereby recovering
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deleted, but inadvertently produced ESL
H. Policies regarding document and record management, including the retention or
destruction of relevant ESI for any such time that there exists a reasonable expectation of
foreseeable litigation in connection with such documents and records.
I. "Litigation hold" policies that are instituted when a claim is reasonably
anticipated, including all such policies that have been instituted, and the date on which they
were instituted.
J. The identity of custodians of relevant ESI, including "key persons" and related
staff members, and the information technology or information systems personnel, vendors,
or subcontractors who are best able to describe the client's information technology system.
The identity of vendors or subcontractors who store ESI for, or provide services or
applications to, Defendant or any person acting on behalf of Defendant; the nature,
amount, and description of the ESI stored by those vendors or subcontractors; contractual
or other agreements that permit Defendant to impose a "litigation hold" on such ESI;
whether or not such a "litigation hold" has been placed on such ESI; and, if not, why not.
VI. PRIVILEGE AND WORK PRODUCT CLAIMS
In an effort to avoid unnecessary expense and burden, the parties agree that, for
documents redacted or withheld from production on the basis of attorney-client privilege,
work product doctrine and/or any other applicable privilege, the producing party will
prepare a summary log containing the file, system and application metadata information
set forth herein, for each document, record, etc. (except for full text), to the extent such
information exists.
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Within a reasonable time following the receipt of such a summary log, a receiving
party may identify particular documents that it believes require further explanation. The
receiving party seeking further information shall explain in writing the need for such
information and state precisely each document (by Bates number) for which it seeks this
information. Within fourteen (14) days of such a request, the producing party must either
(i) produce a full log for the requested documents or (ii) challenge the request. If a party
challenges a request for further information, the parties shall meet and confer to try to reach
a mutually agreeable solution. If they cannot agree, the matter shall be brought to the Court.
All other issues of privilege, including the inadvertent production of privileged or
protected documents or information, shall be governed by the Protective Order entered by
the Court in this litigation.
Dated: By:
Dated: By:
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APPENDIX 6-1
SIGNIFICANT CASES INVOLVING THE BREADTH AND SCOPE OF

EXPERT WITNESS DISCOVERY
Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994). En banc, the appellate court
reviewed trial court orders requiring defendant’s trial experts to produce, among many
other things, certain 1099s and P.A. federal income tax returns, as well as information
regarding patients who were examined for purposes of litigation in unrelated matters. In
quashing the orders, the court concluded that decisions in the field have gone too far in
permitting burdensome inquiry into the financial affairs of physicians and established eight
criteria limiting discovery of an opposing medical expert for impeachment. One of the
limiting criteria was that production of the experts business records, files, and 1099s may
be ordered produced only upon the most unusual or compelling circumstances. The court
commented that the problem the criteria addresses is the attempt by litigators to
demonstrate the possibility of a medical expert’s bias through “overkill discovery,” to prove
a point easily demonstrable by less burdensome and invasive means, and that production
of the information ordered in the cases before them caused annoyance and
embarrassment while providing little information.
Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). On conflict certiorari review , the
supreme court acknowledged that the issues presented in the case were an expanding
problem, approved what the court called a well-reasoned decision, adopted in full the
criteria governing the discovery of financial information from expert witnesses in an effort
to prevent the annoyance, embarrassment, oppression, undue burden or expense,
claimed on behalf of medical experts, and directed that the criteria be made part of the
commentary to Fla. R. Civ. P. 1.280. The court stated that discovery was never intended
to be used as a tactical tool to harass an adversary in a manner that actually chills the
availability of information by non-party witnesses.
Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999). Conflict certiorari review of
appellate decisions, one sustaining a trial court’s order overruling Allstate’s objections to
interrogatories directed to it seeking the identity of cases in which its expert had performed
analyses and rendered opinions for Allstate nationally in the preceding three years, and
the amount of fees paid to that expert nationally during that same period. In approving
that order, the court held that neither its decision in Elkins nor Fla. R. Civ. P.
1.280(b)(4)(A)(iii) prevents this type of discovery. The court pointed out that, unlike the
information requested in Elkins, which related to the extent of the expert’s relationships
with others, the specific information sought from Allstate in this case pertained to the
expert’s ongoing relationship with Allstate. The court further stated that the information
requested was directly relevant to the party’s efforts to demonstrate to the jury the
witness’s bias.
Katzman v. Rediron, 76 So. 3d 1060 (Fla. 4th DCA 2011). Defendant sought
discovery form Dr. Katzman, plaintiff’s treating physician, regarding how often he had
ordered discectomies over the past four years (the procedure performed on both plaintiffs
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after an auto accident, on referral from plaintiffs’ attorney, and under letters of protection),
and what he had charged to perform it in litigation and non-litigation cases. Dr. Katzman
objected and argued that the discovery was overbroad and exceeded the financial
discovery permitted from retained experts under the discovery rules and Elkins v. Syken,
672 So. 2d 517 (Fla. 1996). The circuit court ruled that Dr. Katzman must respond and
provide information as to the number of patients and what amount of money he collected
from health insurance companies and under letters of protection, over the preceding four
years. The appellate court held that since a lawyer referred the patient to the physician
in anticipation of litigation the physician had injected himself into the litigation, and the
circumstance would allow the defendant to explore possible bias on the part of the doctor.
It agreed that Elkins discovery should generally provide sufficient discovery into such
financial bias. The appellate court further held that the discovery sought is not relevant
merely to show that the witness may be biased based on an ongoing financial relationship
with a party or lawyer, but was relevant to a discrete issue, whether the expert had
performed an allegedly unnecessary and costly procedure with greater frequency in
litigation cases, and whether he allegedly overcharged for the medical services at issue,
a substantive issue being the reasonableness of the cost and necessity of the procedure.
In the Court’s view, it meets the requirements of “unusual and compelling circumstances,”
and denied the petition to quash the discovery order.
Katzman v. Ranjana Corp., 90 So. 3d 873 (Fla. 4th DCA 2012).Certiorari review
of trial court order allowing discovery by subpoena duces tecum to Dr. Katzman, plaintiff’s
treating physician on referral from another physician, that included voluminous
information covering four years concerning the number of times he performed four
different surgeries, the amounts he had collected from health insurance coverage on an
annual basis over four years regarding the type of surgeries (four) performed on plaintiff,
and the number of patients and amounts received each year under letters of protection
from attorneys. Dr. Katzman provided medical services pursuant to a letter of protection
from her attorney. Dr. Katzman objected to the subpoena on the basis that it sought
unrelated information, and confidential private business and financial records which
exceeded the scope of permissible discovery under Fla. R. Civ. P. 1.280 as well as Elkins
v. Sykens, 672 So. 2d 517 (Fla. 1996). He also asserted that the requests were extremely
burdensome and would require thousands of man hours and dollars to comply. In denying
the motion for protective order the trial court held, among other things, that the doctor
potentially has a stake in the outcome of the litigation and had injected himself in the
litigation by virtue of the letter of protection from plaintiff’s attorney. In quashing the order,
the appellate court said that the trial court did not have the benefit of the appellate court’s
revised opinion in Rediron when it entered its order, and thus had not seen that part of
the revised opinion stating that it was the referral, not the letter of protection, that injects
a doctor into litigation. On remand, the trial court was instructed to reconsider all of the
objections raised by the doctor against the back drop of the clarified Rediron opinion, and
that the trial court should consider petitioner’s argument of undue burden, since requiring
information on four surgical procedures is far more extensive and potentially burdensome
than the “limited intrusions” found in Rediron.
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Smith v. Eldred, 96 So. 3d 1102 (Fla. 4th DCA 2012). Trial court overruled
defendant’s objection to plaintiff’s Notice of Intent to Serve a Subpoena and Notice of
Service of Expert Witness Request for Production directed to defendant’s liability expert.
Defendant asserted that Fla. R. Civ. P. 1.280(b)(4) does not allow a party to serve a
subpoena or a request for production, and that a party may request the court to seek
discovery of financial or business records by other means, but only when unusual or
compelling circumstances exist. The appellate court agreed, quashed the order, and
stated that Rule 1.280(b)(4) means what it says and says what it means, that the rule
confines both the discovery methods that can be employed when directed to expert
witnesses and the subject matter of that discovery, and that a request for productions is
simply NOT a method condoned by the rule except upon motion.
Steinger v. Geico, 103 So. 3d 200 (Fla. 4th DCA 2012). The trial court ordered
plaintiff’s law firm to produce discovery pertaining to the law firm’s relationship with four
of plaintiff’s treating physicians who would render expert opinions on matters such as
causation, permanency, and future damages. The production requests included all
records of payments by the firm to these doctors, as well as all letters of protection to
them. Client names could be redacted in cases that settled or where no lawsuit was filed.
The appellate court stated that where there is a preliminary showing that the plaintiff was
referred to the doctor by the lawyer (whether directly or through a third party) or vice
versa, the defendant is entitled to discover information regarding the extent of the
relationship between the law firm and the doctor with the trial court balancing the privacy
rights of the former patients and clients, and implementing appropriate safeguards.
“Normally, discovery seeking to establish that a referral has occurred should first be
sought from the party, the treating doctor or other witnesses, not the party’s legal counsel.
We do not suggest, however, that the law firm may never be a primary source for such
discovery where, as here, the doctor has no records or provides nebulous testimony
about the doctor’s past dealings with the referring law firm.” The appellate court further
stated: “We do not suggest that all financial discovery from a physician who also serves
as an expert in litigation must always be limited to those matters listed in Rule
1.280(b)(5)(A). We stress that the limitations of financial bias discovery from expert
witnesses cannot be used as a shield to prevent discovery of relevant information from a
material witness – such as a treating physician. The rule limits discovery of the general
financial information of the witness where it is sought solely to establish bias. However,
trial courts have discretion to order additional discovery where relevant to a discrete issue
in a case. See Rediron, 76 So. 3d at 1064-65.” Since from the record the Court was
unable to determine whether defendant had established the existence of a referral
relationship between the doctors and the law firm, it granted the petition, stating that it
was premature to order more extensive financial bias discovery, and remanded the case
for proceedings consistent with the opinion.
Pack v. Geico, 119 So. 3d 1284 (Fla. 4th DCA 2013). Plaintiff sought a new trial
after a defense verdict alleging error when the trial court denied her motion in limine and
permitted the defendant to introduce into evidence a letter of protection between her and
her physician, who testified as her expert witness on her claim of more serious injuries to
her neck. Plaintiff argued that evidence of a letter of protection, absent a referral
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relationship from the lawyer to the doctor, was not relevant according to the Court’s prior
ruling in Katzman v. Rediron, 76 So. 3d 1060 (Fla. 4th DCA 2011). The appellate court
acknowledged that in Katzman it held that a letter of protection was not sufficient in itself
to allow discovery of an expert beyond that permissible under Fla. R. Civ. P.
1.280(b)(4)(A). However, the Court stated that in Katzman it did not hold that a letter of
protection is not relevant to show potential bias, and affirmed the trial court’s ruling
denying plaintiff’s motion for new trial.
Lytal v. Malay, 133 So. 3d 1178 (Fla. 4th DCA 2014). The trial court ordered
plaintiff’s law firm to provide a list of all payments made to plaintiff’s treating expert, who
was expected to provide expert opinions at trial, with all client and patient information
redacted. At his deposition, the doctor denied having any records and provided “nebulous
testimony” in connection with the number of patients who were represented by the law
firm. The court held that under these circumstances the law firm was an appropriate
source of this information, citing the Steinger case, and denied the petition to quash the
discovery order.
Brown v. Mittelman, 152 So. 3d 602 (Fla. 4th DCA 2014). Defense counsel, in a
case arising from an automobile accident, subpoenaed the person in one of plaintiff’s
treating physician’s office with the most billing knowledge, to produce documents
regarding patients previously represented by both of plaintiff’s law firms, LOP cases, and
referrals from both law firms. One of plaintiff’s attorneys had referred her to that doctor,
who treated her under a LOP agreement. The trial court overruled the doctor’s objections
to the subpoena. The appellate court stated that because Rule 1.280(b)(5) did not apply
to the requested discovery, and because “a law firm’s financial relationship with a doctor
is discoverable on the issue of bias” the petition for certiorari was denied. The court
pointed out that a party may attack the credibility of a witness by exposing a potential
bias. § 90.608(2), Fla. Stat. (2009). The court noted that the financial relationship
between the treating doctor and plaintiff’s attorneys in present and past cases creates the
potential for bias and discovery of such relationship is permissible. The discovery
available under Rule 1.280(b)(5) does not compel full disclosure of a treating physician’s
potential bias, but limits financial discovery to an approximation of the portion of the
expert’s involvement as an expert witness based on data such as the percentage of
earned income derived from serving as an expert witness. A physician’s continued
financial interest in treating other patients referred by a particular law firm could
conceivably be a source of bias “not immediately apparent to a jury,” Morgan, Colling &
Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. DCA 2001), at 3. Rule 1.280(b)(5) neither
addresses or circumscribes discovery of this financial relationship. Also, the court stated
that whether the law firm directly referred the patient to the treating doctor does not
determine whether discovery of the doctor/law firm relationship is allowed, and pointed
out that a potential bias arising from a letter of protection exists independent of any referral
relationship, as does a doctor’s referral arrangements with a law firm in other cases.
Grabel v. Sterrett, 163 So. 3d 704 (Fla. 4th DCA 2015). Dr. Grabel, a medical
expert retained by State Farm to conduct a CME in an uninsured motorist claim, petitioned
the court to grant certiorari and quash an order of the circuit court that overruled his
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objections to a subpoena duces tecum. The order required the expert to produce copies
of all billing invoices submitted to State Farm and its attorneys for the past three years; to
produce any existing document and/or statement that included the total amount of money
paid by or on behalf of State Farm or its attorneys for work the expert had performed as
an expert witness on their behalf for the past three years; and to produce all documents
evidencing the amount or percentage of worked performed by Dr. Grabel on behalf of any
defendant or their defense attorneys, during the last three years, including time records,
invoices, 1099s or other income reporting documents. In granting certiorari and quashing
the order, the appellate court held that without making any finding of “the most unusual
or compelling circumstances” that might justify the production of financial and business
records, the trial court ordered the doctor to produce financial and business records
beyond that allowed by the rule and Elkins. v. Syken, 672 So. 2d 517 (Fla. 1996). The
court pointed out that plaintiff had obtained, or could obtain, records regarding payments
from the insurer to the doctor pursuant to Allstate v. Boecher, and that this is more than
sufficient information to reveal any potential bias.
Worley v. Central Florida YMCA, 163 So. 3d 1240 (Fla. 5th DCA 2015). During
the discovery process in a slip and fall case, Morgan & Morgan tenaciously opposed all
attempts by defendant to learn how plaintiff became a patient of certain medical care
providers. After hearings on various discovery requests by defendant, the trial court
entered an order that required plaintiff to produce “the names of any and all cases
(including plaintiff, defense, court and case number) where a client was referred directly
or indirectly by any Morgan & Morgan attorney” to the relevant treating physicians in the
present case, which necessarily included information on whether plaintiff in the pending
case was referred by Morgan & Morgan to her treating physicians. The appellate court
concluded that the order did not depart from the essential requirements of law, especially
considering that YMCA had sufficiently demonstrated a good faith basis for suspecting
that a referral relationship existed. “The limited type of discovery presently at issue
concerns only the existence of a referral relationship between Morgan & Morgan and the
treating physicians in this case,” which is directly relevant to the potential bias of the
physicians. The appellate court further held that: “Having exhausted all other avenues
without success we find – contrary to the trial court’s preliminary ruling and to Burt v.
Geico, 603 So. 2d 125 (Fla. 2d DCA 1992) – that it was appropriate for YMCA to ask
Worley if she was referred to the relevant physicians by her counselor or her counselor’s
firm.”
Grabel v. Roura, 4D15-194, (Fla 4th DCA 2015). The trial court, finding that the
deposition responses of the defense expert witness were inconsistent with the
interrogatory answers provided by defense counsel regarding the percentage of income
the doctor derived from working as an expert and the number of times he has testified for
plaintiffs and defendants in personal injury litigation, concluded that these inconsistencies
constituted “the most unusual or compelling circumstances” that allowed production of
the expert’s financial and business records. The trial court allowed plaintiff to issue
subpoenas to twenty non-party insurance carriers, not shown to have any involvement in
the litigation, requiring production of financial records (including tax records) showing the
total amount of fees paid to the doctor for expert litigation services since 2009. The
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appellate court quashed the order, stating that this extensive financial discovery as to a
retained expert exceeded that allowed by the rule and was unnecessary, pointing out that
the rule expressly provides that “the expert shall not be required to disclose his or her
earnings as an expert witness.” The appellate court further held that the alleged
inconsistencies do not constitute “unusual or compelling circumstance” to warrant such
broad financial disclosure, as there was no showing that the inconsistencies were the
result of falsification, misrepresentation, or obfuscation.
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APPENDIX 7-1
GUIDELINES REGARDING COMPULSORY MEDICAL

EXAMINATIONS CONDUCTED PURSUANT TO FLA. R. CIV. P.
1.360(a)(1)(A) AND 1.360(B)
[Division 49, Flagler County]
In order to assist counsel and parties seeking to invoke the privileges and protections
afforded under Rule 1.360, Fla. R. Civ. P. (2010) for a compulsory medical examination, this
court has developed these “guidelines” for dealing with the most frequently disputed matters
brought before the court regarding these examinations. Many hours of hearing time are
consumed addressing the same disputes and objections, for the same stated reasons, despite the
existence of controlling case law. These guidelines do not preclude the filing of appropriate
motions and obtaining a hearing before the court should the facts, in good faith, suggest that
these guideline provisions should not control.
The examination under Rule 1.360 is a compulsory examination, and not an
“independent” examination. The physician or healthcare provider is not chosen by the court, but
by one of the parties. Thus, the examination should not be referred to as an “independent”
medical examination in the presence of a jury.
Request for, Objections to and Hearings

Requests for an examination must be in writing, and set forth the time, place, manner,
conditions, and scope of the examination as well as the name of and the qualifications of the
person conducting the examination, all with reasonable specificity. Such written request
should be made no later than 70 days before the pretrial date to allow time for objections,
hearings on same, and an opportunity to reset the examination. Objection to “Examination of
Persons” under Rule 1.360(a)(1)(A) must be filed no later than 30 days from the written request,
assuming service of process has occurred at least 15 days prior to the request being served. The
objection must state the specific reason(s) for the objection. A hearing must be immediately
requested on any objection filed. Failure to immediately set the objection for hearing will be
deemed an abandonment of the “Request” under the rules.
Psychological or Psychiatric Examinations sought under Rule 1.360(a)(1)(B) (non-
physical exams) must be obtained by order from this court, or pursuant to written agreement of
all parties. Please make certain the time, place, manner, conditions, and scope of the examination
as well as the name of and the qualifications of the person conducting the examination are set
forth with reasonable specificity.
The Examination
The date and time of the examination must be coordinated with opposing counsel/party.
If there is no agreement as to a mutually convenient date for the examination to occur within 60
days of the request, the court, upon written motion, may select the date without consultation
with counsels’ calendars.
Examinations should occur in the county where the case is being tried, absent agreement
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to the contrary. Out-of-county examinations must be approved by the court after an evidentiary
hearing and the proper record having been made. Generally, if out-of-county examinations are
to be conducted, the transportation and loss of work expense will be borne by the party
requesting the examination.
Persons Who May be Present During The Examination
One of Plaintiff’s counsel, or a representative thereof, a videographer, a court reporter,
an interpreter, if necessary, and/or, if a minor, a parent or guardian may attend the compulsory
medical examination. No other persons may attend without specific order of the court. Plaintiff
will notify, in writing, the names, relationship to the Plaintiff, and number of persons who will
be present so that an examining room of sufficient size can be reserved. No person present may
interrupt, enter or leave the examining room during the examination, or vocalize in any matter.
No communication vocally, in writing, or in any other manner may occur between or amongst
the party being examined and anyone else in the examining room except the examiner or
individuals that she/he deems necessary for the examination.
Videotape and Stenographic Record of Examination

As noted above, a person being examined may be accompanied by a videographer,
certified court reporter, and/or interpreter. The recordings are the property of the legal
representative of the person being examined and are not discoverable without further order of
this court.
Items and Information To Be Brought

The person being examined is not required to bring any medical records, diagnostic films
or studies or aids or reports with him/her. The person being examined should have a form of
identification to verify their identity if requested. If a patient information sheet was forwarded
to counsel for the person to be examined at least 7 business days before the date for the
examination, the person to be examined should bring the completed information sheet with
them.
If the original records, films or other diagnostic aids are in the actual possession of the
person to be examined, or his/her guardian, those records shall be produced at the time of the
examination upon proper written request.
Written intake forms or histories that are deemed necessary by the examiner must be
provided to counsel for the person to be examined no later than 7 days prior to the exam. These
forms can be reviewed by counsel and completed by the person to be examined, and must be
brought to the office of the examiner on the day of the exam. The examining physician may
question the person with respect to entries made on the form regarding medical issues.
The person being examined will not be required to provide information as to when or
why counsel was retained. Further, while they will be not be required to respond to questions
regarding who was a fault in the accident, they shall respond to inquiry from the healthcare
provider regarding the mechanics of the incident/accident and their body movements within the
vehicle or at the time of the incident. They will be required to provide their medical history
without limitation as to time frame and a work history with regard to the physical attributes and
activities of their present and past occupations and hobbies.
If the person to be examined is not fluent in English and if the examiner is not fluent in
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the language of the person being examined a certified interpreter must be utilized to interpret
the examination. The expense of the interpreter will be borne by the party requesting the
examination.
Limitations on Examination
The examiner will be limited to non-invasive procedures unless a prior order from the
court has been obtained, and will further be limited to the extent of the examination that was set
forth in the “Request for Examination” and/or Order allowing the examination. Neither an
examination nor subsequent opinions resulting from the examination outside of the examiner’s
specialty will be permitted.
Times for the examination
While an expert’s time is valuable, so is the time of the person who is being examined.
The person being examined should arrive no later than 15 minutes before the start time of the
examination. Examinations which have been scheduled for a specific time should commence
within 30 minutes of that time. The person who was to be examined will be free to leave the
examiner’s office if she/he has not been called in for the examination after having waited for 30
minutes from the scheduled start time of the examination.
Expert Reports and Anticipated Testimony

Subpoenas
Retained experts must be produced for discovery deposition without the necessity of a
subpoena. All experts should be under subpoena for trial. The court will not require a witness to
appear who is not under subpoena.
Written Reports
Pursuant to Fla. R. Civ. P.1.360(b) a “detailed written report” will be issued by the
examining physician or healthcare provider and provided to all counsel no later than 14 business
days after the day of the examination. As noted in the rule, “...if an examiner fails or refuses to
make a report, the court may exclude the examiner’s testimony if offered at the trial.”
1.360(b)(1)
The party requesting the examination shall also provide to opposing counsel, at the time
the examination is scheduled, no less than three dates when the examiner will be available for
oral deposition. Should any of the dates be within 14 days of the examination the above referred
to report shall be provided to deposing counsel no later than 5 days before the deposition date.
No report under Fla. R. Civ. P. 1.360 will be admissible at trial absent a stipulation by the parties.
Opinions not contained in written reports

Experts rendering opinions under this rule will be prohibited from expressing opinions,
diagnostic impressions, causation opinions and other conclusions that are not contained within
the written report. Any changes of opinions or conclusions based on new information must be
made know to opposing counsel immediately, a revised or supplemental report provided and
dates for updated depositions must also be provided. At trial, failure to have taken all immediate,
timely and reasonable steps to advise opposing counsel of changes in experts’ opinions or
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conclusions will mitigate against allowing such testimony.
Expert Fees and Charges

The court will not require counsel to tender fees for discovery or trial testimony in
advance of or as a condition of the examiner appearing. However, the court does require full
payment to be remitted to the examiner no later than 20 business days from receipt of the invoice
from the examiner’s office.
The retaining party is free to compensate an expert witness any amount they deem
appropriate or any amount which they have agreed by contract to pay. The court will require
opposing counsel to pay a reasonable fee for the time reserved or the time used, whichever is
less. If counsel and the examiner can agree on such a fee, that fee will apply. If no agreement
can be reached, the court will, upon proper motion and hearing and notice to all parties of
interest, including the examiner, establish a reasonable fee for the services. In some cases, this
may involve an evidentiary hearing as to the reasonable amount of the fee and the time
expended. Be sure to advise the Judicial Assistant as to how much time will be needed. See Fla.
R. Civ. P. 1.390(c)
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APPENDIX 7-2
NINTH JUDICIAL CIRCUIT COURT

UNIFORM GUIDELINES REGARDING
COMPULSORY MEDICAL EXAMINATIONS
CONDUCTED PURSUANT TO FLA. R. CIV. P. 1.360(a)(1)(A) & IF ORDERED (B),

AS WELL AS 1.360(b) AND 1.390(b) & (c)1
In order to assist counsel for all parties seeking to invoke the privileges and protections afforded
under Fla. R. Civ. P. 1.360, the Court herein addresses the most frequently disputed matters that
are brought before the Court.
The examination under the Rule is a Compulsory Examination and not an Independent
Examination. The physician or healthcare provider was not chosen by the Court. The
examination must not be referred to in front of the jury as an “independent medical exam.”
Request for, Objections to and Hearings on
Requests for an examination must set forth the time, place, manner, conditions and scope of the
examination as well as the name of and the qualifications of the person conducting the
examination with specificity. If examinations under these rules are requested such written
request should be made no later than 70 days before the pretrial date to allow time for
objections, hearings on same and an opportunity to reset the examination. Objections to
“Examination of Persons” under Fla. R. Civ. P. 1.360(a)(1)(A) must be filed no later than 30
days from the written request assuming service of process has occurred at least 15 days prior to
the request being served. The objections must state the specific reasons for the objections. A
hearing must be immediately requested on any objection filed. Failure to set the objection for
immediate hearing will be deemed an “Abandonment of the Request” under the rules.
Examinations sought under Fla. R. Civ. P. 1.360(a)(1)(B) [non-physical condition] must be

obtained with an order from this Court, or with a written agreement of all parties. Please make
certain the time, place, manner, conditions and scope of the examination as well as the name of
and the qualifications of the person conducting the examination are set forth with specificity.
See, Maddox v. Bullard, 141 So.3d 1264 (Fla. 5th DCA July 11, 2014) [Order on psychological
examination reversed because specifics were not set forth in the order including the “manner,
conditions or scope of the examination thereby, in effect, giving the psychologist ‘care blanche’
….”]
1
These “Guidelines” are published to assist trial counsel with issues that routinely come before the Civil
Courts involving expert examinations of injured parties and discovery of those expert opinions. Counsels are not
precluded from filing the appropriate motions and obtaining a hearing before the Court on a particular case should
the facts of that case, in good faith, suggest that these standard provisions should not control.
215
The date and time of the examination must be coordinated with opposing counsel. If the
attorneys cannot agree on a mutually convenient date for the examination to occur within 45
days of the request, the Court, upon written motion, will pick the date without consultation with
counsels’ calendars.
Location of Examination
The examination should occur in the county where the case is being tried absent agreement of
counsel to the contrary. An out-of-county examination must be approved by the Court after an
evidentiary hearing and the proper record having been made. While requiring an in-county exam
is not a hard and fast, inflexible rule, it is generally well within the Court’s discretion. See
McKenney v. Airport Rent-A-Car, 686 So. 2d 771 (Fla. 4th DCA 1997). Generally, if an out-of-
county examination is to be conducted, the transportation and loss of work expense will have to
be born by the party requesting the examination.
A plaintiff who was a resident of Florida and who has now moved out of State, or who was a
guest in State may be requested to undergo a CME. Knowing that such a request is permitted
under the rules and is a normal process of litigation, attorneys for the Plaintiff should notify
opposing counsel when they learn that their client is going to move out of State to allow for an
examination before the party moves. A request that an out-of-state examination be done if not
agreed to, will require a hearing.
Multiple factors will be considered by the Court, not the least of which is whether or not
opposing counsel was notified that plaintiff was permanently moving before he/she moved.
While it may be an inconvenience and an expense to plaintiff to return to Florida for an
examination, it is also an inconvenience and an expense to defendant to have the defendant’s
examining doctor have to travel to Florida for the trial to testify. Factors such as the cooperation
of Plaintiff, timeliness of the requested examination, type and availability of the physician or
expert needed for the condition, whether it is an initial or subsequent or updated examination,
whether it is in conjunction with a deposition or mediation that is also scheduled, and the cost
as well as who will be paying the cost will be considered and evaluated. See, Goeddel v. Davis,
993 So.2d 99 (Fla. 5th DCA 2008) [clarifying Tsutras to say that the examination must be at a
“reasonable place,” not that it required Plaintiff to return to forum especially after he had already
come to Florida for a deposition]; See also, Tsutras v. Duhe, 85 So2d 979 (Fla. 5th DCA 1997)
If Plaintiff is out-of-state, the CME should be coordinated with a trip to Florida either for his/her
deposition or mediation. The Court can award the reasonable expense of the travel if deemed
appropriate.
Persons Who May Be Present at the Examination
One of Plaintiff’s counsel or a representative thereof, a videographer, a court reporter, an

interpreter, if necessary, and/or if a minor, a parent or guardian, may attend the compulsory
medical examination.
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See Broyles v. Reilley, 695 So. 2d 832 (Fla. 2d DCA 1997). Audio tape recordings are also
permitted by Plaintiff. See Palank v. CSX Transp. Inc., 657 So. 2d 48 (Fla. 4th DCA 1995). No
other persons may attend without specific order of the Court. Plaintiff’s counsel will notify, in
writing within 7 days of the examination, the names, relationship to the plaintiff, and
number of persons who will be present so that an examining room of sufficient size can be
reserved. The presence of these third parties is premised upon a requirement that they will not
interfere with the doctor’s examination. See Bacallao v. Dauphin, 963 So. 2d 962 (Fla. 3d DCA
2007). To that end, no person present may interrupt, enter or leave the examining room
during the examination, or vocalize in any matter. No communication vocally, in writing, or
in any other manner may occur between or amongst the party being examined and anybody else
in the examining room except the examiner or individuals that she/he deems necessary for the
examination.
If the person to be examined is not fluent in English and if the examiner is not fluent in the
language of the person being examined a certified interpreter must be utilized to interpret the
examination. The expense of the interpreter will be born by the party requesting the examination.
Number of Examinations
Generally a party will be limited to one examination in a specialty. A second examination will
only be allowed upon good cause being shown. Royal Caribbean Cruises, Ltd. V. Cox, 974 So2d
462 (Fla. 3rd DCA 2008). However, when there are multiple defendants, from separate accidents,
and the allegation alleges that the injuries from the three accidents are “indivisible and
superimposed upon one another and the plaintiff is unable to apportion her damages between
them” each defendant may be entitled to a separate CME. Goicochea v. Lopez, 39 Fla. L. Weekly
D1245b (Fla. 3rd DCA June 11, 2014) [noting that plaintiff had “pitted codefendant against
codefendant.”
Videotape and Stenographic Record of Examination
As noted above, a person being examined may be accompanied by a videographer, certified

court reporter, and/or interpreter. The recordings are the property of the legal representative of
the person being examined and are not discoverable without further order of this Court. The
party requesting the examination is not permitted to record or video tape the examination.
Items and Information to Be Brought
The person being examined is not required to bring any medical records, diagnostic films or
studies or aids or reports with him/her.2 See Franklin v. Nationwide Mut. Fire Ins. Co., 566 So.
2d 529 (Fla. 1st DCA 1990) (requesting party must obtain records through normal discovery
process).
2
If the original records, films or other diagnostic aids are in the actual possession of the party, or his/her
guardian, being examined, those records would have to be produced at the time of the examination upon proper
written request.
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See also Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855 (Fla. 1994) (proper for injured party
to sign appropriately limited release for out-of-state medical records where subpoenas have been
ignored). The person being examined should have a form of identification to verify their identity
if requested. If a patient information sheet was forwarded to counsel for the party to be examined
at least 7 business days before the examination, the party to be examined should bring the
completed information sheet with them.
Written intake forms or histories that are deemed necessary by the examiner must be
provided to counsel for the party to be examined no later than 7 days prior to the exam.
These forms can be reviewed by counsel and completed by the party to be examined and must
be brought to the office of the examiner on the day of the exam. The examining physician
may question the party about entries made on the form regarding medical issues. See Bozman v.
Rogers, 640 So. 2d 180 (Fla. 1st DCA 1994) (court could require party being examined to provide
all “appropriate” information by filling out forms and answering questions at CME).
The party being examined will not be required to provide information as to when or why they
retained counsel. Further, while they will be not be required to respond to questions regarding
who was a fault in the accident, they will need to respond to inquiry from the healthcare provider
regarding the mechanics of the accident and their body movements within the vehicle or at the
time of the incident. They will be required to provide their medical history without limitation as
to time frame and a work history with regard to the physical attributes and activities of their
present and past occupations and hobbies.
Limitations on Examination
The examiner will be limited to non-invasive procedures unless a prior order from the court has
been obtained, and will further be limited to the extent of the examination that was set forth in
the “Request for Examination” and/or Order allowing the examination. Neither an examination
nor subsequent opinions resulting from the examination outside of the examiner’s specialty will
be permitted.
Times for the Examination
While an expert’s time is valuable, so is the time of the party who is being examined. The party
being examined should arrive no later than 15 minutes before the start time of the examination.
Examinations which have been scheduled for a specific time should commence within 30
minutes of that time. The party who was to be examined will be free to leave the examiner’s
office if she/he has not been called in for the examination after having waited for 30 minutes
from the published start time of the examination.
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Expert Reports and Anticipated Discovery and Testimony
Subpoenas
Retained experts must be produced for discovery deposition without the necessity of a subpoena.
If specific items are to be brought to the deposition by the retained expert witness, opposing
counsel must be notified well in advance of the deposition.
All experts should be under subpoena for trial. The Court cannot force a witness to appear who
is not under subpoena.
Written Reports
Pursuant to Fla. R. Civ. P. 1.360(b) a “detailed written report” will be issued by the examining
physician or healthcare provider and provided to all counsel no later than 14 business days
after the day of the examination. As noted in the rule, “...if an examiner fails or refuses to
make a report, the court may exclude the examiner’s testimony if offered at the trial.”
The party requesting the examination shall also provide to opposing counsel, at the time the
examination is scheduled, no less than three dates when the examiner will be available for oral
deposition. Should any of the dates be within 14 days of the examination the above referred to
report shall be provided to deposing counsel no later than 5 days before the deposition date.
No report under Fla. R. Civ. P. 1.360 will be admissible at trial absent a stipulation by the parties.
Opinions Not Contained in Written Reports
Experts rendering opinions under this rule will be prohibited from expressing opinions,
diagnostic impressions, causation opinions and other conclusions that are not contained within
the written report. Any changes of opinions or conclusions based on new information must be
made known to opposing counsel immediately, a revised or supplemental report provided and
dates for updated depositions must also be provided. At trial, failure to have taken all immediate,
timely and reasonable steps to advise opposing counsel of changes in experts opinions or
conclusions will mitigate against allowing such testimony. See Office Depot v. Miller, 584 So.
2d 587 (Fla. 4th DCA 1991).
Expert Fees and Charges
The Court will not require counsel to tender fees for discovery or trial testimony in advance of
or as a condition of the examiner appearing. However, the Court does require full payment to be
remitted to the examiner no later than 10 business days from receipt of the invoice from the
examiner’s office.
The retaining party is free to compensate an expert witness any amount they deem appropriate
or any amount which they have agreed by contract to pay. The Court will only require opposing
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counsel to pay a reasonable fee for the time reserved or the time used whichever is less. If
counsel and the examiner can agree on such a fee, that fee will apply. If no agreement can be
reached, the Court will, upon proper motion and hearing and notice to all parties of interest,
including the examiner, establish a reasonable fee for the services. In some cases, this may
involve an evidentiary hearing as to the reasonable amount of the fee and the time expended. Be
sure to advise the Judicial Assistant as to how much time will be needed. See Fla. R. Civ. P.
1.390(c)
We gratefully acknowledge that these Guidelines were prepared by the Honorable John Kest and
adopted, with minor changes, by the 9th Circuit Court Civil Division.
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APPENDIX 7-3
FORM ORDER ON
MOTIONS TO COMPEL COMPULSORY OR INDEPENDENT MEDICAL
EXAMINATIONS
ORDER COMPELLING RULE 1.360 EXAMINATION
Pursuant to Florida Rule of Civil Procedure 1,360, (“Examinations of
Persons”), Defendant’s counsel has notified Plaintiff’s counsel that the Plaintiff,
, is requested to be present for a non-invasive medical examination as
follows:
Examiner:
Address:
Date:
Time:
Scope:
THE FOLLOWING CONDITIONS ARE TO BE OBSERVED BY ALL PARTIES
INVOLVED:
1. This examination is not a deposition so the examiner shall be
limited to that information reasonably necessary to conduct the specialty-
appropriate examination and evaluation of an individual, including a brief
medical history as well as present complaints. The examination is to be limited
to the specific medical or psychological conditions in controversy and unless
modified by another court order, such examination will be the only exam for the
specific condition(s) or issues in controversy (without limiting the possibility of
multiple specialties). No invasive testing shall be performed without informed
consent by the Plaintiff/examinee, or further Order of Court.
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2. The examinee will not be required to complete any lengthy
information forms upon arrival at the examiner’s office. The examinee will
furnish the doctor with name, address, and date of birth. Questions pertaining
to how the Plaintiff was injured, and where and how the Plaintiff sustained the
injuries complained of, are permitted. Questions pertaining to “fault,” when the
Plaintiff hired his/her attorney, who referred the Plaintiff to any doctor, and what
the Plaintiff told his attorney or any investigators are NOT permitted.
3. It shall be the defense attorney’s responsibility to provide the
examiner with all medical records, imaging studies, test results, and the like,
which the defense wants the examiner to review and rely upon as part of the
examination. Unless he or she has exclusive control of any original records or
imaging studies, Plaintiff shall not be required to bring anything to the exam
other than valid identification (e.g., Driver’s License, Official Florida
Identification Card or government-issued Passport).
4. Plaintiff is permitted to have his/her attorney (and spouse or
parent, or other representative) present for the examination, provided that only
one of these listed non-attorney persons may attend. Such person(s) may
unobtrusively observe the examination, unless the examiner or defense counsel
establishes a case-specific reason why such person’s presence would be
disruptive, and that no other qualified individual in the area would be willing to
conduct the examination with such person present. In the case of a
neuropsychological exam, all observers shall watch and listen from an adjacent
room if available, or by video feed. If the examination is to be recorded or
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observed by others, the request or response of the examinee’s attorney shall
include the number of people attending, their role, and the method(s) of
recording.
5. Plaintiff’s counsel may also send a court reporter or a videographer
to the examination, provided that claimant’s counsel notifies defense counsel at
least 10 days in advance of the identity, either by proper name or by title (e.g.,
videographer from XYZ Reporting Service). It is the duty of the defense counsel
to relay this information to the examiner’s office personnel.
6. Neither Defendant’s attorney nor any of Defendant’s
representatives may attend or observe, record or video the exam. Only if the video
is identified as impeachment material for use at trial may the defense counsel
obtain a copy. The medical examiner shall not be entitled to any payment of an
additional or accommodation fee from the Plaintiff or his/her counsel, simply
because of the presence of legally permitted third parties. The Court shall reserve
ruling as to whether such costs, if imposed by an examiner, may be properly
recoverable by the Defendant as a taxable cost, or otherwise awarded by the
Court.
7. If a videotape or digital recording is made of the examination by
counsel for Plaintiff, it is considered work-product, and neither the defense nor
the examiner is entitled to a copy, unless and until same is designated as (or
reasonably expected to become) trial evidence, subject to discovery only upon a
showing of need and undue hardship. Use of the video or DVD is limited
specifically to the instant litigation. At the close of litigation, including any
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appeal, all copies shall be destroyed – unless counsel convinces the Court (and
an order is entered) that there is some compelling reason for either party, or the
examiner, to retain a copy.
8. Neither Plaintiff’s counsel, nor anyone else is permitted to be
present, shall interject themselves into the examination unless the examiner
seeks information not permitted by this Order. If Plaintiff’s counsel speaks
openly or confers privately with the examinee, and this disrupts the exam or
causes the examiner to terminate the examination, counsel may be subject to
sanctions.
9. The report of the examiner shall be sent to Plaintiff’s counsel, as
required by Rule 1.360(b), within 30 days of the examination – but in no event
less than 21 days before the beginning of trial, unless otherwise agreed between
counsel for the parties or ordered by the court due to special problems. Unless
a Plaintiff’s treating or retained expert has revised or supplemented an opinion
after his/her report or deposition, the examiner shall not change, amend, or
supplement the opinions set forth in said report during any testimony
(deposition or trial) he may give in reference to his examination of the Plaintiff,
without providing a supplemental report, which must be provided to Plaintiff’s
counsel at least 15 days before trial. Violation of this provision may result in the
limitation or striking of the examiner’s testimony.
9(a) If the examination involves neuropsychological testing: In addition to
the report, the examiner shall provide all raw data, including copies of all notes,
tests, tests results, scoring, and test protocols, to Plaintiff’s treating or retained
224
psychologist or neuropsychologist, who must return them to the defense examiner
at the conclusion of the case.
10. All protected health information generated or obtained by the
examiner shall be kept in accordance with HIPPA requirements and shall not be
disseminated by the examiner or defense counsel to any other person or entity
not a party to this case without a specific order from this Court.
11. Defense counsel must provide the examiner with a copy of this
Order and explain the need for the examiner’s compliance. As a condition of
performing the examination, the examiner shall agree to provide responses to
FRCP 1.280(b)(4)(A) inquiries, once such interrogatories or Requests to Produce
are propounded by Plaintiff.
ORDERED at St. Petersburg, Pinellas County, Florida, on this day of

______________________2015.
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APPENDIX 11-1
SELECTED “FRAUD ON THE COURT” CASES
The requisite fraud on the court for a dismissal or default occurs only when it can
be demonstrated, clearly and convincingly, that a party has sentiently set in motion an
unconscionable scheme calculated to interfere with the judicial system's ability to
impartially adjudicate a matter by improperly influencing the trier of fact or unfairly
hampering the presentation of the opposing party's claim or defense.
When reviewing a case for fraud, the court should consider the proper mix of
factors and carefully balance a policy favoring adjudication on the merits with competing
policies to maintain the integrity of the judicial system. An order granting a dismissal or
default for fraud on the court will almost always require an evidentiary hearing. The order
must include express written findings – supported by the evidence – demonstrating that
the trial court has carefully balanced the equities, and supporting the conclusion that the
moving party has proven, clearly and convincingly, that the non-moving party
implemented a deliberate scheme calculated to subvert the judicial process. The
appellate court will review using an “abuse of discretion” standard, narrowed by the clear
and convincing evidence requirement for fraud.
Misconduct that falls short of the rigors of this test, including inconsistency,
nondisclosure, poor recollection, dissemblance, and even lying, is insufficient to support
a dismissal or default for fraud, and potential harm must be managed through cross-
examination. And even when fraud is shown, the imposition of a lesser sanction may be
warranted and remains within the court’s discretion.
The following chart summarizes how Florida’s district courts of appeal have
addressed circuit-court findings concerning allegations of fraud on the court.
226
CASE RULING UPHELD? NOTES
SANCTIONS AFFIRMED
FIRST DCA
Personal-injury plaintiff’s “patently
false” testimony that was intended to
“fraudulently conceal” his medical
history – a core issue in the case –
Wallace v. Keldie, warranted dismissal with prejudice.
249 So. 3d 747 Dismissal Affirmed The attempt to conceal information so
(Fla. 1st DCA 2018) pertinent and critical to the claim could
not be considered anything less than
an “unconscionable scheme
calculated to interfere” with the proper
adjudication of the matter
Hutchinson v. Failure to disclose past attack by dog
Plantation Bay and pre-existing symptoms rose to
Apartments, LLC Dismissal Affirmed level of effort to stymie discovery on
931 So. 2d 957 central issue amounting to fraud.
(Fla. 1st DCA 2006)
Plaintiff gave false deposition
Distefano v. State Farm testimony by not disclosing
Mut. Auto. Ins. Co., subsequent accident and prior
846 So. 2d 572 Dismissal Affirmed treatment and symptoms that were
(Fla. 1st DCA 2003) central to case; faulty memory not an
excuse under these facts; this case
has been cited in later cases.
SECOND DCA
ICMfg & Assoc., Inc. v. Parties intentionally concealed and
Bare Board Grp., Inc., altered evidence central to the issues
238 So. 3d 326 Dismissal Affirmed in the litigation and repeatedly and
(Fla. 2d DCA 2017) willfully violated their discovery
obligations.
The court stated that the evidence

concerning Mr. Ramey's conduct
demonstrated clearly and convincingly
Ramey v. Haverty that the plaintiff sentiently set in motion
Furniture Cos. Inc., Dismissal Affirmed some unconscionable scheme
993 So. 2d 1014 calculated to interfere with the judicial
(Fla. 2d DCA 2008) system's ability to adjudicate this
matter by improperly influencing the
trier of fact or unfairly hampering the
presentation of the opposing party's
claim or defense. The court further
stated that "the injuries that were lied
about are the nexus of the case." App
ct found that trial court properly
exercised its discretion in imposing the
severe sanction of dismissal for the
clearly established severe misconduct
of fraud on the court.
227
THIRD DCA
Slip and fall case where plaintiff
Obregon v. Rosana intentionally failed to disclose her
Corp., Dismissal Affirmed previous injuries, reason for being on
232 So. 3d 1100 disability, and important insurance
(Fla. 3d DCA 2017) information. Appellate court agreed
dismissal of pleadings was
appropriate.
Passenger brought negligence action

Willie-Koonce v. Miami against corporation that she hired to
Sunshine Transfer & driver her to cruise ship dock.
Tours Corp., Dismissal Affirmed Passenger’s complaint dismissed with
233 So. 3d 1271 prejudice for her fraud upon the court
(Fla. 3d DCA 2017) in lying under oath about her ability to
walk without a cane or limp and ability
to carry heavy items.
Personal injury claim where the trial

court conducted an evidentiary
Diaz v. Home Depo hearing and entered a 17-page order
USA, Inc., Dismissal Affirmed demonstrating that the plaintiff
196 So. 3d 504 engaged in a pattern of fraudulent
(Fla. 3d DCA 2016) misconduct designed to bolster her
claims and compromise the defense
by lying about prior injuries that were
the true source of her pain.
The trial court properly rejected the

magistrate judge’s finding that the
plaintiff’s lies and misrepresentations
fell “just short” of establishing
Middleton v. Hager, deliberate scheme to subvert the
179 So. 3d 529 Dismissal Affirmed judicial process. The plaintiff lied under
(Fla. 3d DCA 2015) oath on several occasions regarding
the cause of her injures, which was a
key aspect of the litigation, and lied
that her inaccurate statements were
the result of poor memory or
confusion.
Record demonstrates plaintiff

“sentiently set in motion some
Faddis v. City of unconscionable scheme calculated to
Homestead, Dismissal Affirmed interfere with the judicial system’s
121 So. 3d 1134 ability impartially to adjudicate a matter
(Fla. 3d DCA 2013) by improperly influencing the trier of
fact or unfairly hampering the
presentation of the opposing party’s
claim or defense.”
Empire World Towers, Trial court made specific factual

LLC v. Cdr Créances, Dismissal Affirmed findings supported by clear and
89 So. 3d 1034 convincing evidence that Defendants
(Fla. 3d DCA 2012) attempted to defraud the court and
228
conceal ownership interests by: (1)
producing fabricated corporate
documents; (2) committing perjury in
affidavits and depositions; and (3)
suborning the perjury of material
witnesses and providing them with
scripts of lies to repeat under oath;
supported by overwhelming clear and
convincing evidence.
Officers of plaintiff corporation passed
Sky Dev., Inc. v. note to witness during depo and text
Vistaview Dev., Inc., Dismissal Affirmed message to witness during trial; ample
41 So. 3d 918 evidence for the trial court to conclude
(Fla. 3d DCA 2010) unconscionable scheme was
underway.
FOURTH DCA
Plaintiff brought negligence action
against defendant alleging beck and
back injuries due to collision. Plaintiff
Bryant v. Mezo, intentionally failed to disclose prior
226 So. 3d 254 Dismissal Affirmed worker’s compensation claims for
(Fla. 4th DCA 2017) cervical spine injury and that she had
been treated for severe back and neck
pain in the past. Where repeated
fabrications undermine the integrity of
a party’s entire case, a dismissal for
fraud upon the court is proper.
Party’s diary contradicted his

testimony and false testimony he
Herman v. Intracoastal procured from another witness at trial.
Cardiology Ctr., Where repeated fabrications
121 So. 3d 583 Dismissal Affirmed undermine the integrity of a party's
(Fla. 4th DCA 2013) entire case, the trial court has the right
and obligation to deter fraudulent
claims from proceeding in court.
Patient’s unexplained inconsistencies

Bass v. City of in discovery answers about prior
Pembroke Pines, Dismissal Affirmed medical problems and having been in
991 So. 2d 1008 a prior case (albeit a divorce) meant
(Fla. 4th DCA 2008) that reasonable minds could differ on
the remedy, so trial judge affirmed.
McKnight v. Extent of misrepresentation and
Evancheck, concealment of prior injuries set forth
907 So. 2d 699 Dismissal Affirmed in prison records justified dismissal.
(Fla. 4th DCA 2005)
FIFTH DCA
Saenz v. Patco Trans. Whether dismissal was an appropriate
Inc., Dismissal Affirmed sanction for concealment of prior
969 So. 2d 1145 medical issues presented a close
(Fla. 5th DCA 2007) question for DCA, but they affirmed the
sanction as being in sound discretion
229
of trial judge.
Plaintiff in PI case knowingly and

Brown v. Allstate Ins. intentionally concealed his lack of
Co., Dismissal Affirmed employment at the time of the
838 So. 2d 1264 accident; misrepresentation was
(Fla. 5th DCA 2003) central to the issue of lost wages and
that issue was an integral part of his
claim.
“In this case, there is a good deal that

Burke and Gordon put forth as “fraud”
that is either not fraud or is
unproven…. Cox clearly gave many
false or misleading answers in sworn
Cox v. Burke, discovery that either appear calculated
706 So. 2d 43 Dismissal Affirmed to evade or stymie discovery on issues
(Fla. 5th DCA 1998) central to her case. The integrity of the
civil litigation process depends on
*Cox case is frequently truthful disclosure of facts. A system
cited as authority in that depends on an adversary's ability
cases involving to uncover falsehoods is doomed to
dismissal for fraud on failure, which is why this kind of
the court. conduct must be discouraged in the
strongest possible way. Although Cox
insists on her constitutional right to
have her case heard, she can, by her
own conduct, forfeit that right. This is
an area where the trial court is and
should be vested with discretion to
fashion the apt remedy. While this
court might have imposed a lesser
sanction, the question in this case is
close enough that we cannot declare
the lower court to have abused its
discretion.”
DENIAL OF SANCTIONS REVERSED

Plaintiff found guilty of perjury for
testimony in the very case in which
Hanono v. Murphy, Denial of motion Reversed and dismissal was sought; trial judge ruled
723 So. 2d 892 to dismiss case dismissed that case should go before jury; DCA
(Fla. 3d DCA 1998) reversed because of fraudulent
attempts to subvert the process.
AWARD OF SANCTIONS REVERSED

FIRST DCA
Wells Fargo Bank, N.A. Mortgage foreclosure case dismissed
v. Reeves, for allegedly fraudulent allegations in
92 So. 3d 249 Dismissal Reversed the complaint regarding ownership of
(Fla. 1st DCA 2012) the paper at issue; assertions in a
motion to dismiss the complaint do not
provide an evidentiary basis for finding
230
fraud upon the court.
Dental malpractice case in which

Defendant moved for directed verdict
based on fraudulent answers to pretrial
Johnson v. discovery that were uncovered during
Swerdzewski, cross-examination; court deferred
935 So. 2d 57 JNOV Reversed ruling until after verdict and granted
(Fla. 1st DCA 2006) JNOV for fraud on court; REVERSED
because review of dismissal for fraud
prior to trial (abuse of discretion) is not
equivalent to standard of review for
JNOV; review is far less deferential to
trial judge once jury verdict is entered.
SECOND DCA
Lawsuit involving personal injuries
sustained in vehicle accident. Trial
court dismissed case with prejudice as
Duarte v. Snap-on Inc., sanction for motorist’s fraud upon the
216 So. 3d 771 Dismissal Reversed court. However, the inconsistencies
(Fla. 2d DCA 2017) between the motorist’s examination
under oath and deposition two years
later did not amount to fraud
warranting dismissal.
Affidavits submitted by Plaintiffs in

Pena v. Citizens Prop. opposition to summary judgment were
Ins. Co., Reversed in false hampering the presentation of
88 So. 3d 965 Dismissal favor of fees and Defendant’s procedural defense; fraud
(Fla. 2d DCA 2012) costs sanction was proven, but dismissal with
prejudice too severe where liability was
admitted.
Plaintiff’s husband got report from

treater with info inconsistent with wife’s
Kubel v. San Marco testimony and gave it to his lawyer;
Floor & Wall, Inc., Dismissal Reversed report by treating doctor was then
967 So. 2d 1063 changed at request of plaintiffs.
(Fla. 2d DCA 2007) Defendant failed to produce clear and
convincing evidence of fraud; issue
best managed on cross at trial.
Plaintiff in tobacco case asked

Laschke v. R. J. oncologist to put in records that
Reynolds Tobacco Co., Dismissal Reversed smoking caused her cancer then
872 So. 2d 344 denied doing so on deposition;
(Fla. 2d DCA 2004) dismissal too stringent, as this
thwarted effort would not hamper
defense.
THIRD DCA
There was not clear and convincing
evidence that the mortgagor lied and
committed perjury with an intent to
231
Martinez v. Bank of deceive the court. It was also a denial
New York Mellon, Dismissal Reversed of due process to refuse mortgagor’s
198 So. 3d 911 counsel the ability to put a witness on
(Fla. 3d DCA 2016) the stand to testify regarding the lies
and perjury allegedly committed.
Trial court based finding of fraud on still

Lerner v. Halegua, digital photos from surveillance video.
154 So. 3d 445 Order striking Reversed and Because the underlying video was not
(Fla. 3d DCA 2014) pleadings Remanded properly authenticated, there was not
competent clear and convincing
evidence of fraudulent litigation
conduct
E.I. DuPont De Trial court did not base findings of

Nemours & Co. v. Order striking Reversed and fraud on the court on evidence of
Sidran, pleadings remanded for record and findings were inconsistent
140 So. 3d 620 new trial with evidence.
(Fla. 3d DCA 2014)
P.I. case alleging failure to provide
adequate security; answers in depo in
Suarez v. Benihana P.I. case differed from testimony in
Nat’l of Fla. Corp., Dismissal Vacated and criminal case three years earlier;
88 So. 3d 349 remanded to record fails to show clearly and
(Fla. 3d DCA 2012) reinstate case convincingly a scheme to hide the
truth; contradictions do not “go to the
very heart” of claims in P.I. case.
Premises liability case; Plaintiff

claimed lost wages from a company
she never worked for according to
Gilbert v. Eckerd Corp. deposition testimony. Evidence on
of Fla., Inc., Dismissal Reversed employment was conflicting, so trial
34 So. 3d 773 judge should have held a hearing and
(Fla. 3d DCA 2010) made findings to resolve
inconsistency; but if matter would not
meet summary judgment standards,
then it is not proper for dismissal.
Discovery response did not reveal prior

slip and fall in which there was no
Ibarra v. Izaguirre, attorney and no case filed. The
985 So. 2d 1117 Dismissal Reversed alleged inconsistencies were more
(Fla. 3d DCA 2008) likely misinterpretation and not fraud,
and could be better handled with
impeachment and vigorous cross
examination.
Plaintiff claimed defendant took

inconsistent position re ownership of
Bertrand v. Belhomme, funds in dispute in prior bankruptcy
892 So. 2d 1150 Dismissal Reversed and divorce case; judge dismissed for
(Fla. 3d DCA 2005) fraud; DCA held that plaintiff will not be
denied day in court, there was no
concealment in this case;
232
inconsistencies can be used to
impeach.
FOURTH DCA
Trial court failed to provide an
adequate order granting dismissal for
fraud on the court because it did not
include express written findings
Smith v. Brinks, Inc., demonstrating that the trial court had
133 So. 3d 1176 Dismissal Reversed and carefully balanced the equities and
(Fla. 4th DCA 2014) Remanded supporting conclusion that the moving
party had clearly and convincingly
implemented a deliberate scheme
calculated to subvert the judicial
process.
Legal malpractice case in which most

Cherubino v. of the inconsistencies attributed to
Fenstersheib and Fox, plaintiffs occurred in the underlying
P.A., Dismissal Reversed automobile action; not clear and
925 So. 2d 1066 convincing evidence of scheme to
(Fla. 4th DCA 2006) defraud in the malpractice case.
Plaintiff who failed to recall neck injury

from five years prior to accident argued
that he did not intentionally withhold
information from the defense, but
Cross v. Pumpco, Inc., rather, was confused as to the date of
910 So. 2d 324, Dismissal Reversed the prior accident and did not recall the
(Fla. 4th DCA 2005) full extent of his injuries; that this was
not a scheme calculated to interfere
with ability to impartially adjudicate;
that extent of his injuries related to
present accident is a question for the
jury.
Real estate broker's attachment of a

forged and an altered document to
complaint did not warrant sanction of
Bob Montgomery Real dismissal in action against real estate
Estate v. Djokic, Dismissal Reversed agents for tortious interference with
858 So. 2d 371 contractual relationships, where
(Fla. 4th DCA 2003) source of additions to documents
remained open to speculation, and
there was no evidence that broker
submitted documents with intent to
deceive.
FIFTH DCA
Niehaus v. Dixon, The trial court found eight instances of
237 So. 3d 478 Dismissal Reversed and fraud perpetrated by the plaintiff that
(Fla. 5th DCA 2018) Remanded warranted dismissal. Appellate court
determined that two of those instances
did not amount to clear and convincing
evidence of fraud (changing testimony
233
during trial and not providing evidence
of prior injuries despite never being
asked). Case remanded for trial court
to determine if the remaining six
instances of fraud provided a basis for
dismissal.
The record did not establish that

Bosque v. Rivera, motorist engaged in a deliberate
135 So. 3d 399 Dismissal Reversed scheme to subvert the judicial process
(Fla. 5th DCA 2014) by failing to disclose a prior car
accident and failing to disclose prior
chiropractic treatment.
The plaintiff was caught on DVD

performing activities that she claimed
she could not perform after being
injured by the defendant. Trial court
Guillen v. Mai So Vang, dismissed case with prejudice.
130 So. 3d 1144 Dismissal Reversed However, inconsistent testimony,
(Fla. 5th DCA 2014) nondisclosure, poor recollection, and
even lying is insufficient to support
dismissal for fraud. This is a credibility
issue for the jury to decide and was not
a calculated scheme to impede the
defense.
Product liability case wherein trial court

granted Rule 1.540(b)(3) motion,
Ford Motor Co. v. struck affirmative defenses, and
Stimpson, Struck pleadings Reversed entered judgment on liability.
115 So. 3d 401 and relief from Appellate court held there was
(Fla. 5th DCA 2013) judgment insufficient evidence of fraud on the
court and trial court abused its
discretion.
Dismissal in Plaintiff PI case (alleged

fraud re lack of disclosure of prior
treatment) reversed because there
Bologna v. Schlanger, could have been confusion due to
995 So. 2d 526 Dismissal Reversed broad questioning, plaintiff’s
(Fla. 5th DCA 2008) interrogatory answers led the defense
to the truth, and the judge did not hold
an evidentiary hearing. Did not meet
Cox v. Burke test (see Cox case
below).
Question of whether inconsistencies

argued intentional fraudulent conduct,
Villasenor v. Martinez, forgetfulness, result of a limited
991 So. 2d 433 Dismissal Reversed command of the English language, or
(Fla. 5th DCA 2008) efforts to unlawfully live and work in the
country, trial court erred in dismissing
with prejudice without evidentiary
hearing.
234
235

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Florida Conference of Circuit Judges

Hon. Angela J. Cowden, Chair

Conference of County Court Judges of Florida

Trial Lawyers Section of The Florida Bar

TLS Discovery Handbook Committee

Hon. Elizabeth Rice Hon. Ralph Artigliere

Conference of County Court Judges. It is intended to be a quick reference for

(seventeenth) edition updates the handbook through December 2018.

Chapter 1: Discovery Standard and Expectations ................................................. 1

Chapter 2: Preservation and Spoliation of Evidence ............................................. 3

Chapter 3: Electronic Discovery ............................................................................ 10

Chapter 4: Written Discovery Practice ................................................................... 55

Chapter 5: Proper Conduct of Depositions ............................................................ 73

Chapter 6: Expert Witness Discovery .................................................................... 80

Chapter 7: Compulsory Medical Examinations ...................................................... 112

Chapter 9: Motions for Protective Order ................................................................ 142

Chapter 11: Fraud on the Court ............................................................................... 155

Appendix 1-1: Discovery Wake-up Call to the Bar ...................................................... 157

Appendix 3-1: Committee Notes to Florida’s 2012 e-Discovery

Appendix 3-2: Comparison of Florida and Federal

Appendix 3-4: Stipulation Establishing Electronic Discovery Protocol ........................ 192

Appendix 7-1: Guidelines Regarding Compulsory Medical Examinations

Appendix 7-2: Ninth Judicial Circuit Court Uniform Guidelines

Appendix 7-3: Form Order on Motions to Compel Compulsory

Appendix 11-1: Selected “Fraud on the Court” Cases .................................................. 226

must be thoughtful, case-specific, and factually supported. 5

Most importantly, whether conducting or responding to discovery, and in both oral

available under law or under court rules.

found to constitute discovery abuse and improper delaying tactics. 8

In Florida, there is no independent cause of action for spoliation of evidence

spoliation claim against a third-party custodian of potentially relevant evidence. Instead,

“[T]he first issue that must be addressed in any [preservation-spoliation] analysis

or discovery request may impose a duty to maintain or preserve certain items.

However, preservation is not a strict-liability concept. 11 Instead, it involves a

notice to a defendant about an upcoming surgery because there is no obligation to

of a reasonably diligent preservation request, Florida’s courts have generally avoided

basing a preservation duty on nothing more than pending or reasonably foreseeable

if a defendant has knowledge that an accident or incident has

chaotic disruption of electronic recordkeeping,” and impose “unfair and unpredictable

SAFE HARBOR FOR ELECTRONICALLY STORED INFORMATION

By rule, there is a good-faith exemption concerning the failure to preserve certain

16 Detzner, 172 So. 3d at 378, 385, 390-391.

pages as long as the social media information or data is preserved. 20

Spoliation concerns the prejudicial loss, “destruction, mutilation, alteration, or

destruction, alteration or loss of the evidence is unduly prejudicial depends on the

19 Fla. Bar. Ethics Opinion 14-1 (Jun. 25, 2015).

Any need to employ a remedial mechanism to ensure a just determination of the

presumptions that it must employ. 30

or rebuttable presumptions. 31 For example, an adverse-inference instruction advises the

within its possession and the evidence was subsequently destroyed. 34

30 Golden Yachts, 920 So. 2d at 780.

In cases involving intentional spoliation, it may be appropriate to employ the

draconian remedy of dismissing a plaintiff’s claims or entering a default judgment against

prejudice may be so great as to warrant such a sanction. 38 In the absence of willfulness

evidence.” 39 In other words, to enter a dismissal or default “based solely on prejudice to

an adverse-inference instruction or rebuttable presumption is preferred, and the sanction

sanction would fail to achieve a just result. 41

36 FLA. STD. JURY INSTR. (Civil) 301.11(b).

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