Back to the Beginning of the Article

II. Pretrial Procedure

After responsive pleadings or motions are due, the court may schedule a case management conference to try to expedite and streamline litigation, for example, by scheduling service of papers, coordinating complex litigation, addressing discovery issues, pretrial motions and settlement issues, requiring the parties to file stipulations, etc.

Later, the court may schedule a pretrial conference to address simplification of issues, amendments, admissions by one party, experts, etc. The failure of a party or its attorney to cooperate in these conferences may result in sanctions.

A. Discovery.

Discovery occupies a large part of most civil lawsuits because Florida courts do not favor trial “by ambush.” Therefore, the rules of civil procedure encourage complete discovery. In practice, however, discovery disputes occupy a large amount of attorney and judge time.

Generally, discovery is allowed of “any matter, not privileged, that is relevant to the subject matter of the pending action.” In this context, “relevance” has a very broad meaning. Information is discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”

The goals of discovery are several. Each party desires to know what the other party intends to present at trial so as to avoid any nasty surprises. Each party also seeks to obtain evidence either to support its claims and/or defenses or rebut the opposing party’s claims and/or defenses, whether directly or through impeachment. Discovery permits a party to obtain information concerning what documents the other side intends to introduce, what that party’s experts and other witnesses will say and how that party intends to prove its claims and/or defenses. In cases in which punitive damages legitimately have been sought, the plaintiff may obtain financial worth information from the alleged wrongdoer. However, punitive damages only may be requested with prior permission of the court.

While discovery is very broad, it is not without limitation. For example, the other side generally cannot discover privileged information. Examples of evidentiary privileges recognized by statute are: attorney-client communications, husband-wife communications, psychotherapist-patient communications, sexual assault counselor-victim communications, domestic violence advocate-victim communications, communications to clergy, accountant-client communications, the new reporter’s privilege, and trade secrets.

The rules also restrict a party’s ability to obtain documents and tangible things prepared “in anticipation of litigation” by the other side. This is also known as the “work-product” privilege. The rules severely limit a party’s ability to discover information concerning experts who have been retained by the other side in anticipation of litigation but who are not expected to testify at trial.

B. Discovery Methods.

There are several mechanisms for obtaining discovery. To a large extent, the type of discovery method employed and its timing depend on the information desired and the particular style of the legal practitioner.

1. Depositions.

A “deposition” is an oral examination of a person under oath that is recorded by a stenographer and may be videotaped or audiotaped. A party deponent may be required to produce documents during the examination. Depositions of parties may be used by the other side for any purpose. Depositions may be taken by telephone. Depositions frequently are used to impeach subsequent testimony. Sometimes, depositions may be taken prior to the filing of a civil action or during appeal to preserve testimony. Depositions may or may not be transcribed, depending upon the wishes of the parties.

2. Interrogatories.

“Interrogatories,” another common discovery method, are written questions that are served on a party. Although the rules allow for any person to be deposed, interrogatories and requests for admission may be directed only to parties. The rules limit the number of questions to thirty (30) without court approval. Interrogatories must be answered separately, fully, in writing, and under oath unless objections are made. Like deposition testimony, interrogatory answers frequently are used to impeach subsequent testimony.

A party may produce records in lieu of answering an interrogatory if the answer may be derived from those records and if it is equally burdensome for the party to determine the answer as it is for the party seeking the information.

3. Requests to Produce Documents and Things by Parties.

A party may be required to produce documents or other tangible things for inspection and/or copying by the other side. “Documents” are defined broadly to include writings, drawings, graphs, charts, photographs, phono-records and other “data compilations” from which information may be obtained or translated. The party seeking the information may test and sample the tangible items. A party may request to enter upon property to inspect some object or operation.

4. Production of Documents and Things by Nonparties.

A party also may obtain documents from nonparties by issuing a subpoena directing production of documents or things without deposition. Other parties must be notified at least ten (10) days before the subpoena issues so that they may object. If another party objects, this method of nonparty discovery becomes unavailable. If there is no objection, the nonparty may comply with the subpoena by providing copies of the documents or things sought.

The ability to issue subpoenas is a very powerful governmental-type power which is given to litigants, in order to aid in the discovery of the truth. Sometimes people who find themselves the subject of unwelcome attention in the news media seek to sue the reporter, to act out their anger. One problem with that, however, is that, by suing the reporter, you are giving them a tool for further investigation which they didn’t have before, the subpoena power. This can make the problem a great deal worse!

5. Mental and Physical Examinations.

In certain circumstances, a party may request that a qualified expert conduct a physical or mental examination of a party, or a person in that party’s control or custody. This discovery method is utilized most often in personal injury cases and otherwise when a person’s physical or mental condition is in controversy. The party requesting the examination must demonstrate good cause.

6. Requests for Admissions.

An important, but often under-utilized, form of discovery is the “request for admissions.” One party serves upon another party a written request that the party admit to the truth of certain matters, including statements or opinions of fact or the application of law to fact, or the genuineness of documents. If the other side fails to respond or object within thirty (30) days, the facts are considered admitted, which means that they are conclusively established. The requesting party also may move to determine the sufficiency of the responses. If the court decides that a response does not comply with the rule, the matter may be deemed admitted or an amended answer required. Id. If a party fails to admit a matter and the other side later proves that matter, the party may have to pay the costs incurred by the other side in making that proof. Recently, the Florida Supreme Court revised the rules of civil procedure to limit the number of requests for admissions to thirty (30).

C. Protective Orders.

A person from whom discovery is sought may ask the court to enter a protective order to protect that person from “annoyance, embarrassment, oppression, or undue burden or expense.” Such a protective order may prohibit discovery, limit its scope, or effectuate other protective measures.

D. Sanctions.

A party who is dissatisfied with the other side’s cooperation in discovery may seek an order compelling discovery. If a motion to compel is granted, the opposing party shall pay the moving party’s expenses incurred in obtaining the order, which may include attorney’s fees, unless the opposition to the motion was justified or other circumstances make an award of expenses unjust. Similarly, if the motion is denied, the moving party shall pay the nonmoving party’s expenses unless the motion was substantially justified or other circumstances make an award of expenses unjust.

If the court orders discovery, failure to obey that order may be punishable as contempt. The court has many available sanctions for discovery violations, particularly when the recalcitrant person is a party. Certain matters may be deemed established or a party may be prevented from opposing or supporting claims or defenses or from introducing evidence. The court may strike pleadings, dismiss the action, or enter a default judgment. However, the failure to submit to a physical or mental examination is not punishable by contempt.

Next Up, Dismissal Click Here