expert fees 1.280

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Rule 1.280. General Provisions Governing Discovery, 4 Fla. Prac., Civil Procedure R...

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4 Fla. Prac., Civil Procedure R 1.280 (2013 ed.)

West's Florida Practice Series TMCivil Procedure

Database updated March 2013

Bruce J. Berman a0

VII. Discovery

Rule 1.280. General Provisions Governing Discovery

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oralexamination or written questions; written interrogatories; production of documents or things or permission to enter upon landor other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unlessthe court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, exceptas provided in Rules 1.200, 1.340, and 1.370.(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discoveryis as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matterof the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense ofany other party, including the existence, description, nature, custody, condition, and location of any books, documents, orother tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not groundfor objection that the information sought will be inadmissible at the trial if the information sought appears reasonablycalculated to lead to the discovery of admissible evidence.(2) Indemnity Agreements. A party may obtain discovery of the existence and contents of an agreement under which anyperson may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimbursea party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidenceat trial by reason of disclosure.(3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordancewith these rules.(4) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(5) of this rule, a party may obtain discoveryof documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipationof litigation or for trial by or for another party or by or for that party's representative, including that party's attorney,consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of thematerials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of thematerials by other means. In ordering discovery of the materials when the required showing has been made, the courtshall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or otherrepresentative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statementconcerning the action or its subject matter previously made by that party. Upon request without the required showing aperson not a party may obtain a copy of a statement concerning the action or its subject matter previously made by thatperson. If the request is refused, the person may move for an order to obtain a copy. The provisions of Rule 1.380(a)(4)apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statementpreviously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic,mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statementby the person making it and contemporaneously recorded.




(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable underthe provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, maybe obtained only as follows:

(A) An expert may be required to produce financial and business records only under the most unusual or compellingcircumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court mayorder further discovery by other means, subject to such restrictions as to scope and other provisions pursuant tosubdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate.

(i) By interrogatories a party may require any other party to identify each person whom the other party expects tocall as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and tostate the substance of the facts and opinions to which the expert is expected to testify and a summary of the groundsfor each opinion.(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness attrial may be deposed in accordance with Rule 1.390 without motion or order of court.(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as aperson expected to be called as an expert witness at trial:

1. The scope of employment in the pending case and the compensation for such service.2. The expert's general litigation experience, including the percentage of work performed for plaintiffs anddefendants.3. The identity of other cases, within a reasonable time period, in which the expert has testified by depositionor at trial.4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on thenumber 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 derivedfrom other services.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed byanother party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness attrial, only as provided in Rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticablefor the party seeking discovery to obtain facts or opinions on the same subject by other means.(C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert areasonable fee for time spent in responding to discovery under subdivisions (b)(5)(A) and (b)(5)(B) of this rule; andconcerning discovery from an expert obtained under subdivision (b)(5)(A) of this rule the court may require, andconcerning discovery obtained under subdivision (b)(5)(B) of this rule shall require, the party seeking discovery to paythe other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinionsfrom the expert.(D) As used in these rules an expert shall be an expert witness as defined in Rule 1.390(a).

(6) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwisediscoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the partyshall make the claim expressly and shall describe the nature of the documents, communications, or things not produced ordisclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assessthe applicability of the privilege or protection.

(c) Protective Orders. 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 discoverynot be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time orplace; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discoverybe conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened




only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information notbe disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents orinformation enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is deniedin whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permitdiscovery. The provisions of Rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.(d)Limitations on Discovery of Electronically Stored Information.

(1) A person may object to discovery of electronically stored information from sources that the person identifies as notreasonably accessible because of burden or cost. On motion to compel discovery or for a protective order, the person fromwhom discovery is sought must show that the information sought or the format requested is not reasonably accessiblebecause of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sourcesor in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, includingordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the partyseeking the discovery.(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequencyor extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought is unreasonablycumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, lessburdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering theneeds of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, andthe importance of the discovery in resolving the issues.

(e) Sequence and Timing of Discovery. Except as provided in subdivision (b)(5) or unless the court upon motion for theconvenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used inany sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay anyother party's discovery.(f) Supplementing of Responses. A party who has responded to a request for discovery with a response that was completewhen made is under no duty to supplement the response to include information thereafter acquired.(g) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court untilsuch time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the informationis allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shallcomply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violationof this rule.

Author's Comments

¶ 280.1 Derivation

Rule 1.280 and its predecessors have historically sought to follow their federal counterpart, Federal Rule 26, although Floridahas tended to lag behind the federal changes, particularly those effectuated by the very substantial 1993 federal amendments.Florida first adopted a Federal Rule 26 equivalent in 1950 Common Law Rule 20, which was merged (with Equity Rule 47(d),

relating to depositions) into 1954 RCP 1.21, which ultimately became Rule 1.280. 1 After the 1970 amendments to FederalRule 26, which rearranged the federal rule, transferring out provisions specific to other discovery rules and leaving in Rule 26

only those provisions which more generally governed discovery, 2 Florida followed suit, amending Rule 1.280 two years later,

in 1972, to conform to its reconfigured federal counterpart. 3 The subdivision (b)(2) provision regarding indemnity agreements(taken from the 1970 amendments to Federal Rule 26) and the provision for deposition of disclosed expert witnesses as a

matter of right, without motion or order, were both added in the 1988 amendments. 4 In 1996, Rule 1.280 was amended (a)

to identify specific discovery available from certain expert witnesses, 5 and (b) to require parties withholding information on

a claim of privilege or work product to do so with specificity. 6 In 2007, subdivision (a) was amended, effective January 1,

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2008, to make a technical correction to the final clause, which had referenced only rules 1.200 and 1.340 as exceptions to theunlimited frequency of discovery requests. The amendment adds a reference to rule 1.370, because of its limitation on requests

for admission absent court order. 7 Because of Florida's considerable borrowing from Federal Rule 26, federal decisions are

given consideration in interpretations of the Florida rule. 8 Subdivision (g) was added in 2011 to prohibit filing information

obtained in discovery except when good cause exists to do so. 9 By the amendment's text, the good cause requirement willbe satisfied only where the filing of the information is allowed or required by another rule of procedure or a court order, andall filings shall comply with new rule 2.425, Florida Rules of Judicial Administration, which restricts the filing of sensitive

information in all types of cases except traffic and criminal proceedings. 10 The new general prohibition on filing informationobtained in discovery and the new judicial administration rule restricting the filing of sensitive information together provideincreased privacy protection to parties and others referenced in legal proceedings by limiting the information in public records

that can be electronically accessed and distributed, including distribution over the Internet. 11 In 2012, subdivisions (b)(3) and

(d) were added to address discovery of electronically stored information. 12

¶ 280.2 Comparison to Present Federal Rule

As set forth above, there are substantial similarities between Florida Rule 1.280 and Federal Rule 26, based upon the adoptionof many of the federal rule's provisions and amendments. However, with the 1993 federal rules amendments, while certain basicprovisions remain as adopted in Florida (like the general scope of discovery, protective orders, indemnification agreements,etc.), significant additional discovery and discovery-related obligations were imposed in the federal system, many beginning atthe earliest stages of litigation and without the requirement of prior notice, for which there is, as yet, no Florida state counterpart.At the same time, there is no federal counterpart to Florida Rule 1.280(g), which together with Rule 2.425 generally prohibitsthe filing of information obtained in discovery and restricts the private information that can be included when the filing ofdiscovery is appropriate.

Although the 2000 amendments to Rule 26(a)(1) no longer permitted individual federal districts to opt out of the rule's mandatorydisclosure requirements, the extensive nature of the Rule 26 provisions and the continued existence of diverse local courtrules would still require, for useful comparison to state court practice, extensive analysis well beyond the intended scope of

this commentary. 13 It may be useful, however, for practitioners to note the changes effectuated by the 2010 federal rulesamendments to the provisions for discovery of testifying experts, which is narrowly limited under the Florida rule but had beenconsiderably more extensive in federal practice, where testifying experts had been subject to intense scrutiny encompassingthe process of formulating their reports, including drafting and communications with trial counsel. Effective December 1,2010, and among other things, draft reports of testifying experts are protected from discovery under subdivision (b)(5)(B), andcommunications with counsel protected, with limited exceptions, under subdivision (b)(5)(C).

The 2012 amendments to Florida Rule 1.280 added subdivision (d) to provide specific limitations on the discovery ofelectronically stored information. Essentially similar limitations were added to Federal Rule 26 in 2006, although in the federalcounterpart, Rule 26(b)(2)(C), the restriction now found in subdivision (d)(2) of the Florida rule, requiring discovery to belimited under certain circumstances, is applicable to discovery in general and not limited to electronically stored information.

¶ 280.3 Scope of Discovery; Subdivision (b)

[1] Generally (Subdivision (b)(1))






Effective December 1, 2000, amended Federal Rule 26(b)(1) narrows the scope of federal discovery, providing inter alia thatparties may obtain discovery regarding any matter, not privileged, that is “relevant to the claim or defense of any party.” Theamended rule adds that “for good cause, the court may order discovery of any matter relevant to the subject matter involvedin the action.” The Florida rule, by retaining the former federal standard, is more broad, applying the full subject matter scopewithout necessity for good cause or court order, limited only by certain considerations such as privilege, work product, and

relevancy. 14 Thus, discovery in civil cases in Florida state courts must be both (1) relevant to the subject matter of the case

and (2) either admissible in evidence or reasonably calculated to lead to admissible evidence. 15 While the scope of discoveryis not without some limits, this exceedingly broad definition makes objections relating solely to scope the most difficult tosustain. Moreover, a trial court has the broadest discretion in ordering discovery and only when such order constitutes an abuse

of that discretion of sufficient severity to cause irreparable damage will the ruling be set aside. 16 The combination of thebreadth of the scope of permissible discovery, the discretion of the courts in applying that scope, the liberality of the pro-disclosure policy and the extraordinarily limited appellate review generally means that, with the exception of privileged matter,a discovery respondent will have difficulty challenging almost any discovery request, except, perhaps, to condition complianceupon reasonable terms to protect against collateral injury or expense (i.e., not to prevent discovery because a request exceedsthe permissible scope of discovery but to control it in a way which balances the need for discovery against possible harm or

burden to the respondent). 17 In county court civil actions covered by the Small Claims Rules, discovery is limited and cannot

be served upon a party who is unrepresented without leave of court. 18

[2] Indemnity Agreements (Subdivision (b)(2))

Subdivision (b)(2) was added to Rule 1.280 in the 1988 amendments. Substantially derived from its then federal counterpart

in Rule 26(b)(2), 19 its inclusion was prompted by the enactment of Sections 627.7262 (renumbered as 627.4136 in 1992) and

627.7264 (renumbered as 627.4137 in 1992) of Florida's insurance laws, 20 which provide, respectively, for the nonjoinder ofinsurers prior to judgment or settlement, and for certain disclosures by an insurer to its insured's claimant within 30 days of awritten request. Thus, irrespective of whether any indemnity agreement (as defined in subdivision (b)(2)) is within or outsideof the general scope of discovery, i.e., whether or not information concerning any such agreement has anything to do with thesubject matter of the action or the discovery of admissible evidence, a party is entitled to obtain discovery of “the existence and

contents” of any such agreement. 21 The statutory requirements for disclosure of the names of the insurer and each insured, thelimits of liability coverage and a copy of the policy should all be included within the “contents” provision of the civil procedure

rule. 22 Whether a party is required to provide any discovery information relating to indemnity agreements beyond that whichis expressly called for in the rule or statute can only be evaluated with reference to the general scope of discovery as it applies

to the issues in any individual case, subject to applicable privileges. 23

[3] Electronically Stored Information (Subdivision (b)(3)).

In 2012, the Florida Supreme Court amended the rules of civil procedure, including Rule 1.280, to address electronically stored

information. 24 Among the revisions was the insertion of a new subdivision (3), which expressly authorizes the discovery of

electronically stored information, as well as limitations on such discovery in new subdivision (d), discussed below. 25 Notably,

the term “electronically stored information” is not defined in the rules. 26

[4] Work Product (Subdivision (b)(4)).

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The work product of a party or a party's representative is not subject to discovery except upon a showing of compelling

necessity. 27 However, the Florida Supreme Court has now held (consistently with what should have been the conclusionreached before the decision by the use of common sense) “that all materials reasonably expected or intended to be used attrial, including documents intended solely for witness impeachment, are subject to proper discovery requests …, and are not

protected by the work product privilege.” 28 Thus, material that would otherwise qualify as work product loses that status and

must be disclosed if the party “reasonably expect[s] or intend[s]” to use it for any purpose at trial. 29 Before the time that suchdetermination is made, however, the identification of documents supporting a party's claim has been considered protected workproduct. Using this rationale, one Florida appellate court initially held that the work product doctrine protected a plaintiff fromhaving to respond to a request for production of all documents “relating to” (including all documents “supporting”) allegations

in a complaint. 30 However, that court, sitting en banc, subsequently receded from its position, concluding that such a request is

permissible. 31 Work product is not technically in the nature of a “privilege” (as recognized in the Florida Evidence Code), 32

but is generally protected from disclosure as a matter of public policy underlying the orderly presentation and defense of legal

claims. 33 The reason for protecting work product is to assure that “one party is not entitled to prepare his case through theinvestigative work product of his adversary where the same or similar information is available through ordinary investigative

techniques and discovery procedures.” 34 To bring something within the work product ambit, there must be some indication

of personal thought, views, knowledge, or evaluation by the attorney, litigant or agent. 35 It is generally agreed that the “inanticipation of litigation” prerequisite to the work product doctrine requires that litigation be the primary reason or motivation

for the preparation of the materials. 36 However, disagreement exists among the district courts of appeal as to whether thelitigation must also be “imminent.” Some have held that the litigation must be imminent, and that it is not sufficient that a

likelihood of litigation was foreseeable. 37 Others, however, have reached the opposite conclusion. 38 The Supreme Court has

not yet directly addressed the issue. 39 The procedures by which work product claims are disputed and the applicable legal

standards are addressed below. 40

[5] Experts and Expert Opinions (Subdivision (b)(5)).

[a] What is an Expert? (Paragraph (D)).

Rule 1.280(b)(5)(D) defines the term “expert” by expressly incorporating the definition of “expert witness” in Rule 1.390(a),i.e., either a person “duly and regularly engaged in the practice of a profession who holds a professional degree from a universityor 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.” 41 This definition is substantially the same as the definition of expert in § 90.702 of theFlorida Evidence Code (the counterpart to Federal Rule of Evidence 703) which identifies an expert as someone qualified “by

knowledge, skill, experience, training, or education” to give opinion testimony on an appropriate issue at trial. 42 It should benoted, however, that because certain witnesses may have the attributes of an “expert” but have factual knowledge independentof any opinion testimony, as, for example, with physicians treating an injured plaintiff, discovery from such hybrids may differ

from that sought from pure experts. 43

[b] Testifying Experts (Paragraph (A)).

A party may discover facts and opinions of experts who are expected to testify at trial, so long as they are otherwise admissible(they must be relevant and not privileged), even if such facts or opinions were developed in anticipation of trial. While priorto the 1988 amendment, routine discovery of experts had to begin by interrogatories, with depositions available only upon



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motion and order of the court, 44 the 1988 amendment expressly permitted deposition discovery, without motion or order, of

disclosed testifying experts. 45 Once an opposing expert's opinions are disclosed, a party should not expect to be surprised at

trial by new or contrary opinions from the same expert. 46

One court has read what is now subdivision (b)(5) as requiring that expert discovery begin with interrogatories, rather than

a request for production, and that once an expert is disclosed through interrogatories, that person may be deposed. 47 Thecourt held that the production of financial and business records may be required “only under the most unusual or compelling

circumstances.” and that a request for production is “simply NOT” a method condoned by the rule except “[u]pon motion.” 48

[c] Non-Testifying Experts (Paragraph (B)).

If an expert has been hired to conduct an investigation in anticipation of litigation, but not for purposes of testifying at trial, his

reports and memoranda constitute material compiled in preparation for trial and are “privileged.” 49 The same has been said tobe true with regard to regular employees of a party to the extent they gain knowledge as the result of having been assigned to

apply their expertise to a particular matter in anticipation of litigation or trial, rather than in the course of their regular duties. 50

The identities or opinions of non-witness experts are thus non-discoverable work product, subject to discovery only upon the

same showing of exceptional circumstances necessary to obtain other forms of work product. 51 Thus, an order compellingdisclosure of expert witnesses that necessarily requires a party to divulge the identity of specially retained non-witnesses orwork product experts without the requisite showing of hardship by the party seeking the disclosure constitutes an abuse of the

trial court's discretion. 52 A treating physician, as a witness to historical events, is not subject to the protection afforded by

the non-testifying expert-witness discovery rule. 53

[d] Expert Witness Fees (Paragraph (C)).

One court has observed that “money is the fuel that allows the deposition to occur,” and that, under what is now subdivision(b)(5)(C), the party seeking discovery shall be required to pay the expert a reasonable fee unless manifest injustice would

result. 54 The rule is silent as to the procedures for paying expert witness fees, which are governed by Rule 1.390(c). 55 The

precise language of the rule suggests that the expert is to be paid after responding to the discovery. 56 The rationale for bothFlorida Rule 1.280(b)(4)(C) and Federal Rule 26(b)(4)(C) was to preclude the unfairness of letting “one party have what the

other party has paid for.” 57

[e] Criteria for Obtaining Financial Information from Opposing Experts (Paragraph (A)(iii)).

Elkins v. Syken: In April of 1996, the Florida Supreme Court resolved a developing conflict in decisional law arising out of

efforts by litigants to obtain discovery from opposing medical expert witnesses; 58 revising the rule accordingly, effective

January 1, 1997, to add what was then new subdivision (b)(4)(A)(iii). 59 In order to impeach the credibility of medicalexperts, litigants had increasingly been seeking discovery of IRS Form 1099's, income tax returns and other personal financialinformation, for the purpose of establishing the extent to which such experts' practices are devoted to giving expert testimonyand/or the extent to which such experts are performing such services for the same insurance companies or law firms in othercases. The Supreme Court recognized, as had the district court below, the necessity of finding a “reasonable balance between aparty's need for information concerning an expert witness's potential bias and the witness's right to be free from burdensome

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and intrusive production requests,” 60 while at the same time avoiding any “chilling effect on the ability to obtain doctors

willing to testify.” 61 The resolution was the Supreme Court's approval in its entirety of the district court's decision, which

formulated the following eight criteria to be followed in seeking financial information from opposing medical experts: 62

1. The medical expert may be deposed either orally or by written deposition.

2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be.

3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants,or some percentage of each?

4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service asan expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, orpercentage of income earned from the source, or the approximate number of IME's that he or she performs in one year. Theexpert need not answer how much money he or she earns as an expert or how much the expert's total annual income is.

5. The expert may be required to identify specifically each case in which he or she has actually testified, whether bydeposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time maybe inquired into under some circumstances.

6. The production of the expert's business records, files, and 1099's may be ordered produced only upon the most unusualor compelling circumstance.

7. The patient's privacy must be observed.

8. An expert may not be compelled to compile or produce nonexistent documents.

Although the Supreme Court concluded that these criteria should be included as commentary to Rule 1.280, 63 mere monthslater it modified the rule instead, adding paragraph (A)(iii) to what is now subdivision (b)(5). While the added paragraph covers

the substance of the foregoing criteria, its provisions are slightly less specific. 64 Further, while the Supreme Court's opinionin Elkins is expressly focused solely upon expert medical witnesses, the new paragraph added to Rule 1.280 applies to every

“person expected to be called as an expert witness at trial,” 65 irrespective of the area of expertise.

Allstate v. Boecher: Three years after Elkins, the Florida Supreme Court elaborated further on this rule in Boecher, explainingthat where Elkins places limitations on the scope of discovery propounded directly to an expert, nothing in Elkins or Rule1.280(b)(5)(A)(iii) prevents discovery requests from being propounded directly to a party for information in that party's

possession regarding the extent of its own use of and payment to a particular expert. 66 In 2000, the Court added a clarifying

Court Commentary to the 2000 amendments, expressly referring to its holding in Boecher. 67 The scope of discovery in theaftermath of Elkins and Boecher will likely differ, however, as to those who might be called “hybrid” experts, who are both

expert and fact witnesses, and therefore not necessarily subject to the limitations of discovery from experts. 68








[6] Punitive Damages

Discovery in connection with punitive damages claims has for some time been regulated not by Rule 1.280, but by statute.Punitive damage claims themselves cannot be asserted in a civil action without a reasonable evidentiary showing to support

their recovery, 69 and accordingly, financial worth cannot be the subject of discovery until after a punitive damages pleading

is permitted. 70 However, the legislature has expressly mandated liberal construction of the rules of civil procedure “so as toallow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of

punitive damages.” 71

¶ 280.4 Discovery Protection; Subdivision (c)

[1] Protective Orders, Generally.

The Florida rule is virtually identical to Federal Rule 26(c) as it was prior to the 1993 amendments, which added “meet andconfer” requirements and certification of having fulfilled them, as a condition for seeking a protective order.

[a] Discretionary Standard; Procedural Aspects.

Courts are generally given wide latitude in the exercise of their discretionary power to fashion relief to parties and non-parties

from discovery which, from its content or its use, would justify granting such relief, 72 provided that the party or non-party

seeking relief makes an adequate showing of good cause. 73 Where the basis for a claim of discovery abuse is factual, ratherthan legal, requiring a determination of fact by the court, such showing should be made by sworn affidavits or other submissions

having evidentiary value. 74 The court's function is not solely to determine the burden or other ground for protection advanced

by the movant, but also to weigh the respective interests of the litigants. 75 Where the grounds would not justify the complete

preclusion of discovery, the court may fashion a reasonable resolution. 76 The court's determination will not generally be subject

to appellate review, except by certiorari, 77 and upon review, will be subject to reversal only for a demonstrated abuse of the

court's discretion. 78 Motions for protective order are invariably utilized to seek relief from discovery when there is no other

procedural vehicle to seek relief, 79 although there is nothing in the rule to limit their applicability to such instances. As todiscovery devices which permit the respondent to assert an objection (essentially non-deposition discovery), the issue would

typically come before the court in a motion to compel response or in a hearing on any specific objection asserted, 80 in bothinstances, with judicial consideration being invoked by the discovery proponent, rather than by motion for protective order by

the party to whom the discovery is directed. 81 Furthermore, there is no rule of procedure or law that requires the trial courtto have oral argument regarding objections to discovery; rather, the trial court may simply review the discovery sought, the

objections thereto, and rule on the objections without the necessity of a hearing. 82 Because motions for protective order canraise any number of substantive legal issues, the following analysis is limited to some of the more common subjects of protectiveorders which would be most frequently encountered.

[b] Whether the Mere Filing of a Motion for Protective Order Stays the Obligation to Respond.






The Issue; the Silence of the Rule. There has been some controversy over the effect of the mere filing of a motion forprotective order, prior to any ruling, on the obligation to respond to the discovery to which the motion is directed. Unlikeother procedural rules which expressly provide for a stay of discovery until determination of the motion for protective

order, 83 Rule 1.280 is silent on the subject, which alone might suggest that it was not the intention of the rule that themotion have any automatic stay effect.

The Conflicting Authorities. One commentator has long opined, although without citation of authority, that service of the

motion for protective order under subdivision (c) automatically suspends discovery until the motion is determined. 84 Twodistrict courts of appeal, on the other hand, addressing the issue in the 1990's, have disagreed, holding that the mere filingof a motion for protective order does not suspend the respondent's obligation under the applicable discovery notice unless

and until the respondent is specifically relieved from such responsibility by an order of the court. 85 Federal cases havesimilarly interpreted federal procedure, under the very rule upon which the Florida rule was modeled, as providing no

automatic stay by the mere filing of a motion for protective order. 86 That would seem persuasive on the issue.

The Consequence of Non-Compliance, Absent Automatic Stay; Rule 1.380(d). The analysis of the issue may require anotherstep, however, because even if there is no automatic stay effect, it is the consequence of non-compliance with the discoverynotice as to which a motion for protective order is filed which will drive a litigant's decision whether to risk non-compliance.Florida Rule 1.380, governing the consequences of the failure to make discovery provides in the last sentence of subdivision(d) for the applicability of the same sanctions against a party that fails to comply with a proper deposition notice or torespond to non-deposition notices as the sanctions that can be imposed for failure to comply with a court order under

subdivision (b)(2). 87 The last sentence of subdivision (d) provides, however: “The failure to [respond to such discovery]may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for

a protective order as provided by rule 1.280(c).” 88 This tends to suggest that the mere filing of the motion for protectiveorder, even without the entry of an order granting the motion and excusing discovery compliance, may (although notnecessarily) avoid any exposure to sanctions; if sanctions were precluded, then the effect would be the same as a staypending determination of the motion, despite the holding of the cases that Rule 1.280 does not so provide. Here, too,however, the federal procedures and interpretation are instructive, because Florida Rule 1.380(d) was taken from Federal

Rule 37(d), which had been amended in 1970 to create the identical provision in the last sentence of Federal Rule 37(d) 89

that Florida subsequently adopted in the 1972 Florida amendments, to pick up the federal revisions. 90 Interestingly, inthe 1993 federal amendments, the key clause in that provision was changed from: (a) “… unless the party failing to act has

applied for a protective order” to (b) “… unless the party failing to act has a pending motion for a protective order.” 91

While the change might appear to validate the concept of the practical stay effect of the mere motion for protective ordernotwithstanding the federal cases ruling that there is no stay effect, the advisory committee note on this amendment to thefederal rule states: “The last sentence of this subdivision [Federal Rule 37(d)] is revised to clarify that it is the pendencyof a motion for protective order that may be urged as an excuse…. In this connection, it should be noted that the filingof a motion under Rule 26(c) is not self-executing—the relief authorized under that rule depends on obtaining the court's

order to that effect.” 92 It appears clear, therefore, that no stay effect is intended by the provision of Federal Rule 37(d),notwithstanding the change of language. Thus, the same conclusion should follow under the Florida rule.

The Conclusion. The bottom line is that there is no automatic stay effect to the mere filing of the motion for protectiveorder that will excuse non-compliance with the discovery request to which the motion is addressed, and accordingly, the









party electing not to comply before obtaining a court order relieving the party does so at its own risk. While the merefiling of the motion might ultimately save the non-complying party from sanctions (or at least from relatively more severesanctions), there is no assurance that this will occur. Because the imposition of sanctions involves the trial court's exerciseof its discretion, common sense should prevail. Accordingly, the party that genuinely feels it needs protection should makeevery conceivable effort to obtain a timely court order. If that effort fails, through no fault of the moving party, and ifthat party details in its motion the efforts actually made to obtain a timely order (and explains that such efforts were madeimmediately upon discovery of the need to obtain relief), the practical likelihood of sanction should be minimal.

[2] Protecting Non-Resident Parties from Local Depositions

Generally, a defendant outside of the forum of the suit will not be required to travel a great distance and incur substantial expense

for the purpose of being deposed by plaintiff, unless the defendant is seeking affirmative relief. 93 Trial court orders have beensustained where the court limits a non-resident plaintiff's appearance for deposition within the jurisdiction to a relatively short

time before trial. 94 The justification for such an order is inherently fact specific and must be evaluated on a case by case basis. 95

[3] Protective Orders to Invoke “The Rule” (Witness Sequestration)

The unwritten “rule” for witness sequestration at trial does not apply to depositions. 96 The exclusion of a non-testifying personfrom attending a deposition may nonetheless be accomplished through Rule 1.280(c), authorizing a protective order against

annoyance, embarrassment, oppression or expense upon a showing of good cause. 97 Rule 1.280(c)(5) expressly contemplates

a limitation on the number of persons who may be present, upon order of the court. 98

[4] Protecting Confidential (but Non-Privileged) Material

In determining whether confidential information should be subject to discovery, the court must balance competing interests to

be served by granting or denying the discovery. 99 When disclosure is ordered, it may nonetheless be conditioned upon the

terms of a confidentiality order that restricts its public (and private) dissemination and use. 100 An employer does not havethird-party standing simply by virtue of an employer-employee relationship to assert the privacy rights of its employees as an

objection to discovery requests. 101

[5] Protecting Privileged Material; Procedure to Challenge Privilege Claims.

Even if material sought through discovery is within the scope of discovery under subdivision (b), that is, it is relevant to thesubject matter of the cause and either admissible or reasonably calculated to lead to admissible evidence in the case, it may

nevertheless be protected or protectable through the application of an absolute or conditional privilege. 102 This commentarywill address the types of privileges involved, how the privilege is appropriately claimed, and the procedures for contesting theclaim and determining whether protection should be afforded.

[a] The “Privileges” Most Frequently Involved.

While there are a number of privileges identified in the Evidence Code, 103 the following arise with perhaps the greatestfrequency.






Attorney-Client Communications. As a general matter, absent waiver, 104 attorney-client communications are

privileged. 105 The mere fact that a communication has passed between an attorney and client does not, however,necessarily implicate the privilege. Rather, the communication must be “confidential” and “made in the rendition of legal

services to the client.” 106 A “client” is “any person, public officer, corporation, association, or other organization or entity,either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services

by a lawyer.” 107 This privilege is absolute, in the sense that it cannot be overcome by showings of need or hardship. 108

Work Product. Not technically a “privilege,” 109 work product is conditionally excluded from discovery under subdivision

(b). What constitutes work product is addressed above. 110

Trade Secrets. Trade secrets are expressly addressed both in Rule 1.280, 111 and in the Florida Evidence Code, 112 which,unlike the civil procedure rule, expressly identifies a trade secret as a “privilege.” The purpose underlying the trade secret

privilege is to prohibit a party from obtaining commercially valuable information through the litigation process. 113 As

discussed below, however, the trade secret privilege is not absolute. 114

[b] The Privilege Log.

The Requirement. Rule 1.280 expressly requires that a party who withholds otherwise discoverable information byclaiming that it is privileged or subject to protection as trial preparation material shall (i) “make the claim expressly”and (ii) “describe the nature of the documents, communications, or things not produced or disclosed in a manner that,without revealing information itself privileged or protected, will enable other parties to assess the applicability of the

privilege or protection.” 115 Prior to the 1996 addition of this requirement, at least one Florida appellate court had heldthat a trial court's order requiring a “log” was improper and violated the attorney-client privilege where the log was toinclude, among other things, the general contents of withheld documents that pertained to an attorney's representation of

a client. 116 Both the requirement for the log and the prohibition of disclosures that would defeat the privilege are nowexpressly addressed. However, when a party objects to a discovery request as both overbroad and calling for privilegedinformation, the obligation to prepare and file a privilege log does not arise until the trial court has ruled on the overbreadthobjection, because a party must file a privilege log pursuant to Rule 1.280(b)(6) only if the information is “otherwise

discoverable.” 117

The Consequence of Non-Compliance: Waiver of Privilege. What the rule does not expressly say is that a failure to complywith the rule, by failing to provide the required privilege log, generally constitutes a waiver of privilege unless the discovery

request itself is invalid on its face. Nonetheless, numerous cases follow such an approach. 118 However, the Fifth DistrictCourt of Appeal, noting that what is now Rule 1.280(b)(6) “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,” 119

has held that no waiver occurs as long as the privilege log is “submit[ted] … within a reasonable time before a hearing

on the motion to compel. . . .” 120 The court based its holding on the conclusions that, in such circumstances, a finding

of waiver is “not well supported by federal decisions applying the federal rule counterpart,” 121 and “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.” 122 And the Fourth District, clarifying an earlier opinion,has said that failure to file a privilege log does not constitute a waiver as a matter of law but, rather, whether a waiver

will be held to result rests in the trial court's discretion. 123 Moreover, one court has held that “[w]aiver for failure to filea privilege log should not apply where assertion of the privilege is not document-specific, but category specific and the

category itself is plainly protected.” 124

Applicability to Parties, Only. As the text of subdivision (b)(6) appears to make plain, the requirement for providing a

privilege log, and thus the consequences for failure to comply with that requirement, apply only to parties to an action. 125

It would thus appear that a nonparty served with a subpoena duces tecum, requiring production of documents, may assert

and protect its privilege without the filing of a log. 126

[c] Contesting the Privilege Claim.

The Burden of the Party Claiming the Privilege. Once a claim of privilege is challenged, the burden of establishing itsapplicability falls not upon the challenging party (who would typically be moving to compel), but rather upon the party

asserting the privilege claim. 127 To satisfy that burden, the party claiming the privilege must establish each element withrespect to each item of information or each withheld document, and must do so by supplying the court with evidence

establishing specific facts to support each of the elements of the claimed protection. 128 Mere conclusory allegations

without competent supporting evidence will not suffice. 129

The Burden of the Party Seeking to Compel Disclosure (Non-Absolute Privileges). With respect to non-absolute privileges,like work product and trade secrets, once the party claiming the privilege has met its burden of establishing that the privilegeapplies, the burden shifts to the other party to establish a basis for disclosure.

Work Product: Substantial Need & Undue Hardship. In the context of a work product claim, once the claimant hasestablished that the discovery material at issue both (a) represents the thought, views, knowledge or evaluation by counsel,

litigant or agent and (b) was prepared in anticipation of litigation, 130 the party seeking disclosure can obtain it only by

showing an inability, without undue hardship, to obtain by other means the substantial equivalent of the material sought. 131

Courts have held that this need and hardship must be asserted in the motion to compel. 132 A need sufficient to warrantentry of an order compelling disclosure of the work product of an opposing party may be established by showing that: theunderlying evidence has been damaged, disassembled, changed or is inaccessible to the same examination by the partyseeking disclosure; withholding of the information and documents sought would defeat the interests of justice; or the

information is not as readily available to the requesting party as it is to the party opposing disclosure. 133 The required

showing cannot be satisfied by mere assertions of counsel, 134 and the fact that the item sought to be discovered might

yield additional information is, without more, insufficient to show undue hardship. 135 A party is more likely to be ableto make the requisite showing of compelling necessity with respect to factual information rather than opinion, and where

both are present, access may only be obtainable to those portions which contain factual information. 136 Some courts have

gone as far as to say that opinion work product is virtually non-discoverable. 137




Trade Secrets: Reasonable Necessity. Once the party resisting disclosure establishes that the withheld materials constitute a

trade secret, the burden shifts to the party seeking disclosure to show a reasonable necessity for the requested materials. 138

Although the decision to permit discovery of the privileged materials is within the court's discretion, the court should use

caution in ordering production and limit disclosure as much as possible. 139 The court's findings supporting the disclosure

must be set forth in writing. 140

The Necessity for In Camera Review. In order to preserve the confidentiality of information and documents claimed tobe privileged during the process of determining the propriety of those claims, there is no other logical alternative thanfor the court to review the material in camera. The courts have recognized this principle and thus require that the trialjudge conduct an in camera inspection of the allegedly protected materials to determine whether such materials must be

disclosed. 141 Moreover, before the court discloses materials allegedly protected by a privilege to other parties, “the party[asserting] the privilege must be ‘given the opportunity to be heard, by evidence and argument, at the hearing seeking an

exception to the privilege.’” 142

Appellate Review. A trial court's order compelling production of materials from a litigant's files claimed to be privileged

is properly reviewable by certiorari because it would be too late to do so through a final appeal. 143

[6] Protection by Sealing Records in Civil Proceedings.

Closure of court proceedings or records should only occur when necessary (1) to prevent a serious and imminent threat tothe fair, impartial and orderly administration of justice; (2) to protect trade secrets; (3) to protect a compelling governmentalinterest; (4) to obtain evidence to properly determine legal issues in a case; (5) to avoid substantial injury to innocent thirdparties; (6) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right notgenerally inherent in the specific type of civil proceeding sought to be closed; (7) to comply with established public policy set

forth in the Florida or United States Constitution or statutes or Florida rules or case law. 144 Before entering a closure order,the trial court should determine that no reasonable alternative is available to accomplish the desired result, and if not, the courtmust use the least restrictive means to accomplish its purpose. In the initial closure determination, the burden of proof is on

the party seeking closure. 145 The standard applicable to a request to reopen records that have already been closed is different;

properly sealed records cannot be reopened absent a showing of “good cause.” 146 The burden to show good cause is on the

party seeking to reopen court records. 147 Sealed court records are entitled to a presumption that the sealing was proper. 148 Inorder to make the showing of good cause, the moving party must show that the original order sealing the records was legally inerror or demonstrate that there has been such a substantial change in circumstances that under law it is error to keep the records

sealed. 149 It has been stated also that a party seeking to reopen sealed records must demonstrate a compelling necessity for the

records and the unavailability or lack of other means of obtaining the information sought. 150 A party is not entitled to have

sealed records unsealed merely because of his or her status as a plaintiff in a civil action arising out of the same circumstance. 151

Specific findings are mandated in orders sealing and unsealing records. 152

¶ 280.5 Ex Parte Communications with Opposing Party's Former Employees




Resolving a split among Florida's district courts of appeal, the Florida Supreme Court has held that the professional conductrule governing contact by attorneys with persons represented by counsel does not prohibit an attorney for one party fromengaging in ex parte communications with former employees of another party, who can no longer speak for or bind their former

employer. 153

¶ 280.6 Propriety of Discovery Stay Pending Determination of Motion to Dismiss

The Florida Supreme Court has held that the mere pendency of motions to dismiss is not sufficient cause to justify postponement

of discovery for a protracted period of time. 154 Whether or not any postponement is warranted is a matter within the trialcourt's discretion.

¶ 280.7 Limitations on Discovery of Electronically Stored Information; Subdivision (d)

New in 2012, subdivision (d) of the Florida rule provides limitations on the discovery of electronically stored information. Thenew text makes “undue burden or cost” a basis to determine that requested electronically stored information is not reasonablyaccessible, and the burden is on the objecting party to make such a showing regardless of whether the issue is raised by a motion

to compel discovery or a motion for protective order. 155 Even when such a showing is made, the rule permits the court to order

the discovery “from such sources or in such formats if the requesting party shows good cause,” 156 and the court is permittedto specify conditions of the discovery, including that the party seeking the discovery pay some or all of the associated costs.

While subdivision (d) gives a trial court discretion to determine whether discovery of electronically stored information presentsan “undue burden or cost,” the rule requires that “the frequency or extent” of discovery be limited under various circumstances:where the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in anothermanner that is more convenient, less burdensome, or less expensive; or where the burden or expense of the discovery outweighsits 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. 157

¶ 280.8 Priority of Discovery; Subdivision (e)

Prior to the 1970 amendments to the federal rules, there was a generally recognized principle of discovery priority under federal

procedure based upon the order of issuance of discovery requests by the parties. 158 In 1969, the Federal Rules AdvisoryCommittee was concerned about perpetuating such a principle because of: (1) a party's ability to unduly delay an adversary'sdepositions and other discovery by noticing all possible depositions first; (2) the unfairness of a notice race to plaintiffs, whohave to wait 20 days after commencement of the action to notice depositions, assuring an automatic discovery priority fordiligent defendants; (3) the unwillingness of the courts to exercise their discretion to alter priority in the absence of compellingreasons, the determination of which merely engendered further and unnecessary litigation; and (4) the prospect that lawyers

would be prone to plan for orderly discovery without judicial intervention, if priority were not unilaterally obtainable. 159 Thus,

the United States Supreme Court added to then federal Rule 26 160 the same provision that Florida adopted in 1972, 161 in whatis now subdivision (e) of Rule 1.280 (“Sequence and Timing of Discovery”), unequivocally denying discovery priority to any

party, absent court order. 162 Thus, there is no priority of discovery either in federal or Florida civil cases. As a general matter,each party is free to notice its own discovery and to conduct it, irrespective of the status of discovery requested by other parties.That is not to say that a form of effective priority does not remain, in limited circumstances, at the outset of litigation, where






the plaintiff is precluded from taking discovery of a defendant for a limited period of time. 163 But even there, the advantage

is a very small one. 164

¶ 280.9 Supplementation of Responses; Subdivision (f)

Subdivision (f) of the Florida rule expressly provides that once a complete response to a discovery request is made, the

responding party “is under no duty to supplement the response to include information thereafter acquired.” 165 This representsan area of significant difference with the much longer Federal Rule 26(e) counterpart, which expressly imposes a duty upon aparty to supplement or correct a prior disclosure or response to include information subsequently acquired, either if ordered todo so by the court or under either of two specified circumstances, also expressly applicable to expert testimony as to which areport is required. Notably, however, with respect to expert disclosures, at least one district court of appeal has “condemned”

the practice of allowing experts to develop or change their opinions during, or shortly before, trial. 166

¶ 280.10 Court Filing of Information Obtained in Discovery; Subdivision (g)

Added in 2011 as part of an overall effort to limit the amount of information made public through the litigation process,subdivision (g) of the Florida rule generally prohibits filing information obtained in discovery except when good cause existsto do so, and good cause exists only where the filing of the information is allowed or required by another rule of procedure or

a court order. 167 Furthermore, all filings must comply with new rule 2.425, Florida Rules of Judicial Administration, which

restricts the filing of sensitive information in all types of cases except traffic and criminal proceedings. 168 Together, these newprovisions provide enhanced privacy protection to litigants and those referenced in litigation by limiting the information filed in

court and therefore subject to electronic access and distribution, including Internet distribution. 169 Subdivision (g) expresslypermits sanctions for violations of the general prohibition, but the Florida Supreme Court explained that “continual education

and a change in mindset for all those involved in the litigation process are necessary for these rules to work as intended.” 170

Westlaw. © 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotesa0 Carlton Fields, Miami, Florida.

1 See In re Florida Rules of Civil Procedure 1967 Revision, 187 So. 2d 598, 613 (Fla. 1966) (Committee Note to Rule 1.280); 30

West's F.S.A. at 407 to 408 (1985) (Historical Note).

2 See West's Federal Civil Judicial Procedure and Rules at 136–42 (1997) (Advisory Committee Notes to 1970 Amendment).

3 In re The Florida Bar, 265 So. 2d 21, 22–28 (Fla. 1972). The Committee Note states, inter alia: “The general rearrangement of the

discovery rule is more logical and is the result of 35 years of experience under the federal rules.” Id. at 28.

4 In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 978–79 (Fla. 1988). The Committee Note points out (among other

things) the reliance on Federal Rule 26 for the new provision in subdivision (b)(2) relating to indemnity agreements. Amendments

to Rules of Civil Procedure, 536 So. 2d at 979.

5 The amendment added what is now subdivision (b)(5)(A)(iii), in accordance with the Supreme Court's prior decision in Elkins v.

Syken, 672 So. 2d 517 (Fla. 1996). See In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105–106, 114 (Fla. 1996).

In 2000, the Supreme Court added a clarifying court commentary. See Amendments to the Florida Rules of Civil Procedure, 773 So.

2d 1098, 1112 (Fla. 2000). This subject matter is addressed at length in Commentary ¶280.3[5][e], infra.

6 The amendment added subdivision (b)(5). See In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 106, 115 (Fla.

1996). This subject matter is addressed at length in Commentary ¶280.4[5][b], infra.

7 See In re Amendments to Florida Rules of Civil Procedure, 966 So. 2d 943, 947 (Fla. 2007).



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8 See, e.g., Suburban Propane v. Pitcher, 564 So. 2d 1118, 1123–24 (Fla. 1st DCA 1990); Cotton States Mut. Ins. Co. v. Turtle Reef

Assocs., 444 So. 2d 595, 596 (Fla. 4th DCA 1984).

9 See In re Implementation of Committee on Privacy and Court Records Recommendations—Amendments to Florida Rules of Civil

Procedure; £Florida Rules of Judicial Administration; £Florida Rules of Criminal Procedure; £Florida Probate Rules; £Florida Small

Claims Rules; £Florida Rules of Appellate Procedure; £Florida Family Law Rules of Procedure., 78 So. 3d 1045 (Fla. 2011). When

added, the new provision was numbered subdivision (f), but the 2012 amendments inserted a new subdivision (d) and shifted the

2011 addition to the present subdivision (g). While one of its sentences refers to the filing of “discovery documents,” it is clear from

the full text of the subdivision, from the accompanying Committee Note, and from Judicial Administration Rule 2.425 that this is not

intended to encompass discovery notices or requests themselves, but rather information obtained from responses to discovery notices

or requests. The use of the term “information” suggests that the coverage of the provision is broader than “documents” produced, for

example, in response to a subpoenas or document requests, and would include answers to interrogatories and transcripts of testimony

taken in discovery.



Claims Rules; £Florida Rules of Appellate Procedure; £Florida Family Law Rules of Procedure., 78 So. 3d 1045 (Fla. 2011).




12 See In re Amendments to Florida Rules of Civil Procedure—Electronic Discovery, 95 So. 3d 76 (Fla. 2012).

13 Specific differences of note will, however, be addressed in the course of the commentaries on the Florida rule. See, e.g., Commentary

¶280.9, infra, concerning the absence of any duty in Florida to supplement discovery responses, in contrast with the federal rule

requiring supplementation. Areas of continued overlap will also be highlighted where instructive.

14 ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992).

15 See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995); Davich v. Norman Bros. Nissan, Inc., 739 So. 2d 138, 140 (Fla. 5th

DCA 1999); Balas v. Ruzzo, 703 So. 2d 1076 (Fla. 5th DCA 1997).

16 Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855, 856 (Fla. 2d DCA 1997); American Southern Co. v. Tinter, Inc., 565 So. 2d 891

(Fla. 3d DCA 1990); see also Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995).

17 See Commentary ¶280.4[1], infra, on protective orders. But see Florida Power & Light Co. v. Goldberg, 738 So. 2d 506, 507 (Fla. 3d

DCA 1999) (granting certiorari and quashing an “order permitting post-trial discovery into matters wholly collateral and irrelevant

to the proceedings”).

18 Rule 7.020(b), Fla. Sm. Cl. R.

19 In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 979 (Fla. 1988) (Committee Note). The federal rule regarding

indemnity agreements is now contained in Rule 26(a)(1)(D), which requires initial production of “any insurance agreement under

which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the

action or to indemnify or reimburse for payments made to satisfy the judgment.”

20 In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 979 (Fla. 1988) (Committee Note).

21 Absent such rule and the related statutes, insurance and other indemnity agreements would generally be outside of the scope of

permissible discovery under Rule 1.280(b)(1) in much the same way that information concerning the assets of a defendant sued for

a money judgment are generally outside the scope of permissible discovery until a judgment is actually entered and post-judgment

collection proceedings are commenced.

22 The additional statutory requirement for disclosure of “A statement of any policy or coverage defense which such insurer reasonably

believes is available to such insurer at the time of filing such statement” (see West's F.S.A. § 627.4137(1)(d)) is not expressly covered

by the procedural rule. The statute also creates an obligation to “amend” the required statement “immediately” upon discovery of

facts calling for same (see West's F.S.A. § 627.4137(2)). This is contrary to Florida Rule 1.280(f), which provides that “[a] party who

has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response

to include information thereafter acquired.” Because the statutory duty would relate to extra-judicial disclosure by the insurer, no

conflict should arise in actual proceedings from the differing provisions of the statute and rule.

23 Typically, insurers' claims files are deemed privileged. However, the work product privilege attaches to statements and materials

prepared by a party's investigator or insurer only if they were prepared in contemplation of litigation; the mere likelihood of litigation

does not satisfy the qualification. Cotton States Mut. Ins. Co. v. Turtle Reef Ass'n., 444 So. 2d 595, 596 (Fla. 4th DCA 1984) (looking





























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to federal case law for guidance, the court concluded that a portion of an insurance company's claims file may be excluded from

work product where it results from an investigation in its early stages because such an investigation is conducted in the ordinary

course of business and the object is to determine whether to honor or resist the claim and whether to seek subrogation against a third

party); Allstate Indem. Co. v. Ruiz, 780 So. 2d 239, 241 (Fla. 4th DCA 2001) (citing Cotton States with approval, and noting it

was based on Carver v. Allstate Ins. Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982), which had held that “the key inquiry is whether the

probability of litigation is ‘substantial and imminent' ”), quashed on other grounds, 899 So. 2d 1121 (Fla. 2005). But see Liberty Mut.

Fire Ins. Co. v. Bennett, 883 So. 2d 373, 374 (Fla. 4th DCA 2004) (Klein, J., concurring specially) (stating belief that Cotton States

and Ruiz incorrectly decided and conflicted with decisions of other district courts of appeal, Carver had subsequently been rejected

by Fifth Circuit in United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981), and Davis rule “that litigation need not necessarily

be imminent … as long as the primary motivating purpose behind the creation of the document was to aid possible future litigation”

was correct), quashed on other grounds, 905 So. 2d 119 (Fla. 2005); Neighborhood Health Partnership, Inc. v. Peter F. Merkle M.D.,

P.A., 8 So. 3d 1180, 1185 (Fla. 4th DCA 2009) (where, purporting to clarify Cotton States, the court said that, “at a minimum, a

claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence

or circumstance-such as an act giving rise to the accrual of a cause of action”). Communications between an insured and its insurer

made for the information and benefit of the attorney defending the insured fall within the attorney-client privilege and are not subject

to discovery. Staton v. Allied Chain Link Fence Co., 418 So. 2d 404, 405–06 (Fla. 2d DCA 1982).

24 See In re Amendments to Florida Rules of Civil Procedure—Electronic Discovery, 95 So. 3d 76 (Fla. 2012).

25 See Commentary ¶280.7, infra.

26 By comparison, Federal Rule 34(a)(1)(A) references electronically stored information as “including writings, drawings, graphs,

charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information

can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”

27 Nevin v. Palm Beach County Sch. Bd., 958 So. 2d 1003, 1006 (Fla. 1st DCA 2007); Travelers Indem. Co. v. Fields, 262 So. 2d

222, 223 (Fla. 1st DCA 1972).

28 See Northup v. Herbert W. Acken, M.D., P.A., 865 So. 2d 1267 (Fla. 2004). The Court also said: “In essence, Florida litigants must

make a simple and discrete decision prior to entry of a pretrial case management order by the trial court. An 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.” Id. See also Bishop v. Adult Comprehensive Protective Servs., Inc., 872 So. 2d 272 (Fla. 2d DCA 2004)

(holding that, pursuant to Northup, interrogatory requesting all materials that a party “ ‘might conceivably offer as evidence’ at trial.

… is overbroad and improperly seeks information protected by the attorney work product privilege”).

29 See Northup v. Acken, 865 So. 2d 1267 (Fla. 2004).

30 See Gabriel v. Northern Trust Bank of Florida, N.A., 890 So. 2d 517 (Fla. 4th DCA 2005), receded from in Grinnell Corp. v. Palms

2100 Ocean Blvd., Ltd., 924 So. 2d 887 (Fla. 4th DCA 2006) (en banc). It is the author's experience that discovery requests of this

nature are in widespread use in commercial cases in Florida, as elsewhere around the country.

31 See Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887 (Fla. 4th DCA 2006) (en banc) (receding from Gabriel v.

Northern Trust Bank of Florida, N.A., 890 So. 2d 517 (Fla. 4th DCA 2005) on ground that Gabriel panel had misapplied holding

in Northup v. Acken, 865 So. 2d 1267 (Fla. 2004)).

32 See West's F.S.A. §§ 90.501, et seq.

33 Travelers Indem. Co. v. Fields, 262 So. 2d 222, 223 (Fla. 1st DCA 1972) (citing Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla.

1970), conformed to, 236 So. 2d 148 (Fla. 3d DCA 1970)).

34 Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994) (quoting Dodson v. Persell, 390 So. 2d 704, 708 (Fla.

1980)).

35 Colonial Penn Ins. Co. v. Blair, 380 So. 2d 1305, 1306 (Fla. 5th DCA 1980) (citing Surf Drugs, Inc. v. Vermette, 236 So. 2d 108

(Fla. 1970), conformed to, 236 So. 2d 148 (Fla. 3d DCA 1970) (what constitutes work product is incapable of concise definition

adequate for all occasions)). See also McGarrah v. Bayfront Med. Ctr., Inc., 889 So. 2d 923, 927 (Fla. 2d DCA 2004) (holding that

videotape made at direction of plaintiff's attorney of compulsory medical examination requested by defendant was “protected work

product”); Huet v. Tromp, 912 So. 2d 336, 338–39 (Fla. 5th DCA 2005) (holding that documents, reports or videotapes prepared by

investigators at the request of attorney in anticipation of, or connection with, litigation are protected work product, as are investigators'











































“observations,” unless party intends to call investigators as witnesses at trial). Two district court have held, categorically, that an

attorney's time records are protected work product, and, where they are sought solely for the purpose of supporting a claim for

attorneys' fees, the party seeking production must, therefore, establish that they are relevant to a disputed issue, needed to prepare for

a fee hearing, and that substantially equivalent material cannot be obtained from another source. Estilien v. Dyda, 93 So. 3d 1186,

1188–89 (Fla. 4th DCA 2012); HCA Health Services Of Florida, Inc. v. Hillman, 870 So. 2d 104, 107 (Fla. 2d DCA 2003).

36 See National Union Fire Ins., Co. v. Florida Constr., Commerce & Ind. Self Ins. Fund, 720 So. 2d 535 (Fla. 2d DCA 1998); Scott

Paper Co. v. Ceilcote Co., Inc., 103 F.R.D. 591 (D.Me.1984).

37 See Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595, 596 (Fla. 4th DCA 1984); Allstate Indem. Co. v. Ruiz,

780 So. 2d 239, 241 (Fla. 4th DCA 2001) (citing Cotton States with approval, and noting it was based on Carver v. Allstate Ins.

Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982), which had held that “the key inquiry is whether the probability of litigation is ‘substantial

and imminent' ”), quashed on other grounds, 899 So. 2d 1121 (Fla. 2005); Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1193

(Fla. 1st DCA 1985) (citing Cotton States with approval for proposition that “[d]ocuments and tangible things prepared … at a time

when the ‘mere likelihood' of litigation exists are not entitled to protection from discovery under the work product doctrine”). But

see Liberty Mut. Fire Ins. Co. v. Bennett, 883 So. 2d 373, 374 (Fla. 4th DCA 2004), decision quashed, 905 So. 2d 119 (Fla. 2005)

(Klein, J., concurring specially) (stating belief that Cotton States and Ruiz incorrectly decided and conflicted with decisions of other

district courts of appeal, Carver had subsequently been rejected by Fifth Circuit in United States v. Davis, 636 F.2d 1028, 1040 (5th

Cir. 1981), and Davis rule “that litigation need not necessarily be imminent … as long as the primary motivating purpose behind the

creation of the document was to aid possible future litigation” was correct), quashed on other grounds, 905 So. 2d 119 (Fla. 2005);

Neighborhood Health Partnership, Inc. v. Peter F. Merkle M.D., P.A., 8 So. 3d 1180, 1185 (Fla. 4th DCA 2009) (where, purporting

to clarify Cotton States, the court said that, “at a minimum, a claim of work product protection requires that a specific litigation

matter can be reasonably anticipated as a result of an occurrence or circumstance-such as an act giving rise to the accrual of a cause

of action”); McRae's, Inc. v. Moreland, 765 So. 2d 196, 197 (Fla. 1st DCA 2000) (2–1 decision noting Cotton States but declining

to follow it, instead holding it is sufficient if, at time statements were taken, “it was foreseeable that litigation could arise from the

incident”; neither majority nor dissent mentioned court's earlier decision in Swilley); Orange Park Christian Academy v. Russell, 899

So. 2d 1215, 1215 (Fla. 1st DCA 2005) (citing McRae's with approval); Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 447 (Fla.

3d DCA 2006) (stating that all districts except the Fourth follow rule that likelihood of litigation must merely be foreseeable, while

Fourth requires that litigation be “ ‘substantial and imminent' ”) (citations omitted).

38 See Prudential Ins. Co. v. Fla. Dep't of Ins., 694 So. 2d 772, 774 (Fla. 2d DCA 1997) (holding documents generated “in anticipation

of the likelihood of litigation” were work product, quoting from Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760, 761 (Fla. 2d

DCA 1989) that “ ‘[e]ven preliminary investigative materials are privileged if compiled in response to some event which foreseeably

could be made the basis of a claim' ”); McRae's, Inc. v. Moreland, 765 So. 2d 196, 197 (Fla. 1st DCA 2000) (2–1 decision holding it is

sufficient if, at time statements were taken, “it was foreseeable that litigation could arise from the incident”; however neither majority

nor dissent mentioned court's earlier contrary decision in Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1193 (Fla. 1st DCA

1985)); Orange Park Christian Academy v. Russell, 899 So. 2d 1215, 1215 (Fla. 1st DCA 2005) (citing McRae's with approval);

Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446–447 (Fla. 3d DCA 2006) (stating that all districts except the Fourth follow

rule that likelihood of litigation must merely be foreseeable, while Fourth requires that litigation be “ ‘substantial and imminent' ”)

(citations omitted); Beverly Enters.—Fla., Inc. v. Olvera, 734 So. 2d 589, 590 (Fla. 5th DCA 1999); Neighborhood Health Partnership,

Inc. v. Peter F. Merkle M.D., P.A., 8 So. 3d 1180, 1185 (Fla. 4th DCA 2009) (where, purporting to clarify Cotton States, the court

said that, “at a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated

as a result of an occurrence or circumstance-such as an act giving rise to the accrual of a cause of action”).

39 The Supreme Court did review the decision in Allstate Indem. Co. v. Ruiz, 780 So. 2d 239, 241 (Fla. 4th DCA 2001), in which the

district court of appeal had held that the litigation must be “imminent” rather than merely “foreseeable,” recognizing that its decision

conflicted with those of other district courts of appeal. However, the Supreme Court found it unnecessary to resolve that conflict

because of the manner in which it resolved the case. See Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1130–31 (Fla. 2005). See

also Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 447 (Fla. 3d DCA 2006) (noting that “[i]t appears that the Florida Supreme

Court has not yet resolved this conflict”).

40 See Commentary ¶280.4[5], infra.

41 Rule 1.390(a), Fla. R. Civ. P. (emphasis added).

42 Expert witnesses, their qualification to testify and the appropriate subject of expert testimony are matters generally beyond the

scope of this commentary. Substantial commentary on these subjects is contained in Ehrhardt, 1 Florida Practice: Florida Evidence §§













































702.1 et seq. (2011 ed.). For authority on appropriate subjects of expert testimony and for recent developments in what is sometimes

referred to as “junk science,” see: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993);

Flanagan v. State, 625 So. 2d 827, 829 n. 2 (Fla. 1993) (explaining that although Daubert construed Federal Rule 702 as superseding

the test in Frye v. United States, 293 Fed. 1013, 1014 (D.C.Cir.1923), Florida still adheres to the Frye test for the admissibility of

scientific expert opinion evidence, i.e., regarding scientific principles “sufficiently established to have gained general acceptance in

the particular field”); Toro v. State, 642 So. 2d 78, 81–82 (Fla. 5th DCA 1994). See also E.I. DuPont De Nemours & Co., Inc. v.

Castillo ex rel. Castillo, 748 So. 2d 1108, 1114 (Fla. 3d DCA 2000).

43 A treating physician is generally not considered an expert, but the rule is not absolute, and a treating physician may be deemed

an expert in certain circumstances. See, e.g., Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1064–65 (Fla. 4th DCA 2011),

review dismissed, 88 So. 3d 149 (Fla. 2012); Clair v. Perry, 66 So. 3d 1078, 1080 n.1 (Fla. 4th DCA 2011). For additional discussion

on the limitations on discovery applicable to treating physicians, see Commentary ¶280.3[5][e], infra.

44 Continental Ins. Co. v. Cole, 467 So. 2d 309 (Fla. 4th DCA 1985).

45 The change occurred in former subdivision (b)(3)(A) at the time of renumbering to (b)(4)(A). The Florida rule is now found at

subdivision (b)(5)(A). The present federal rule merely provides, in relevant part, that: “A party may depose any person who has been

identified as an expert whose opinions may be presented at trial.” Rule 26(b)(4)(A), Fed. R. Civ. P.

46 Thompson v. Wal-Mart Stores, Inc., 60 So.3d 440, 444 (Fla. 3d DCA 2011).

47 Smith v. Eldred, 96 So. 3d 1102, 1103–04 (Fla. 4th DCA 2012). Smith granted a certiorari petition and quashed an order permitting

expert discovery by a subpoena and requests for production.

48 Smith v. Eldred, 96 So. 3d 1102, 1103–04 (Fla. 4th DCA 2012) (quoting what is now Fla. R. Civ. P. 1.280(b)(5)(A)).

49 Wackenhut Corp. v. Crant-Heisz Enterprises, Inc., 451 So. 2d 900, 902 (Fla. 2d DCA 1984). See also Nevin v. Palm Beach County

School Bd., 958 So. 2d 1003, 1006 (Fla. 1st DCA 2007) (stating that, “[w]here an expert has been specially employed in anticipation

of litigation but is not expected to be called as a witness at trial, facts known or opinions held by the expert are deemed to be work-

product and may be discovered only ‘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’”).

50 See City of Jacksonville v. Rodriguez, 851 So. 2d 280, 283 (Fla. 1st DCA 2003). Rodriguez relied upon Wright & Miller's Federal

Practice and Procedure, Civil § 2033, n.23 and In re Shell Oil Refinery, 134 F.R.D. 148, 150, 19 Fed. R. Serv. 3d 1284 (E.D. La.

1990), and it is notable that in the most recent version of the Wright & Miller treatise, a division in the modern case law on this point

is discussed. Wright & Miller's, Federal Practice and Procedure, Civil § 2033 nn.25–26 and accompanying text.

51 State v. Mark Marks, P.A., 698 So. 2d 533, 538 (Fla. 1997).

52 Myron v. Doctors Gen., Ltd., 573 So. 2d 34 (Fla. 4th DCA 1990).

53 Avis Rent-A-Car Sys. v. Smith, 548 So. 2d 1193, 1194 (Fla. 4th DCA 1989).

54 Colaizzo v. Office of Criminal Conflict and Civil Regional Counsel, 82 So. 3d 195, 197 (Fla. 4th DCA 2012).

55 Colaizzo v. Office of Criminal Conflict and Civil Regional Counsel, 82 So. 3d 195, 197 (Fla. 4th DCA 2012).

56 “[W]here such fees are mentioned by statute or rule, it is contemplated that they are to be assessed after the fact, not as a prerequisite

to obtaining the presence of a witness. See § 92.231(2), Fla. Stat. (1981) …; Rule 1.280(b)(3)(C). …” Engel v. Rigot, 434 So. 2d

954, 956–57 (Fla. 3d DCA 1983) (Pearson, J., concurring).

57 Engel v. Rigot, 434 So. 2d 954, 956 (Fla. 3d DCA 1983) (citing Worley v. Massey-Ferguson, Inc., 79 F.R.D. 534, 542 (N.D. Miss.

1978) (it is within court's discretion not to require payment of expert fees under appropriate circumstances)).

58 See Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). See also Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) (where Elkins v.

Syken, 672 So. 2d 517 (Fla. 1996), places limitations on the scope of discovery propounded directed to an expert, nothing in Elkins

or Rule 1.280(b)(5)(A)(iii) prevents discovery requests from being propounded directly to a party for information in that party's

possession regarding the extent of its own use of and payment to a particular expert).

59 In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 114–16 (Fla. 1996). In 2012, this subdivision was renumbered

(b)(5)(A)(iii). See In re Amendments to Florida Rules of Civil Procedure—Electronic Discovery, 95 So. 3d 76 (Fla. 2012).

60 Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996), and Syken v. Elkins, 644 So. 2d 539, 544 (Fla. 3d DCA 1994).

61 Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996).



64 Compare the criteria enumerated above from the Court's Elkins decision with the new subdivision of the rule, set forth above.





















































65 Rule 1.280(b)(5)(A)(iii), Fla. R. Civ. P.

66 Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999). See also Allstate Ins. Co. v. Hodges, 855 So. 2d 636 (Fla. 2d DCA 2003);

Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001) (commenting, in dicta, that such discovery requests could

also be propounded to the party's attorney).

67 See Amendments to the Florida Rules of Civil Procedure, 773 So. 2d 1098, 1112 (Fla. 2000). For additional cases explaining this

rule, see Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000); Allstate Ins. Co. v. Pinder, 746 So. 2d 1255 (Fla. 5th DCA 1999).

68 See Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1064–65 (Fla. 4th DCA 2011), review dismissed, 88 So. 3d 149 (Fla.

2012) (rejecting certiorari petition where treating physician subjected to limited discovery beyond the matters set forth in what is

now Rule 1.280(b)(5)(A)). It might be noted that, in a withdrawn opinion released earlier in the same proceeding, Katzman v. Rediron

Fabrication, Inc., 2011 WL 3477093 (Fla. 4th DCA 2011), opinion withdrawn and superseded on clarification, 76 So. 3d 1060 (Fla.

4th DCA 2011), review dismissed, 88 So. 3d 149 (Fla. 2012), the Fourth District utilized the term “hybrid” witness to describe a

treating physician who also served as an expert and had a potential interest in the outcome of the litigation. Katzman v. Rediron

Fabrication, Inc., 2011 WL 3477093 at *3. In the superseding opinion, 76 So.3d 1060, the court never used the “hybrid” term, but

the final headnote in the decision as reported in Southern Third does so, apparently as a relic of the withdrawn opinion. The change

between the withdrawn and final decisions in Rediron is discussed in the court's related decision in Katzman v. Ranjana Corp., 90

So. 3d 873, 876–77 (Fla. 4th DCA 2012).

69 West's F.S.A. § 768.72(1).

70 West's F.S.A. § 768.72(1) (“No discovery of financial worth shall proceed until after the pleading concerning punitive damages is

permitted.”).

71 West's F.S.A. § 768.72(1). The same statute also recognizes the claimant's right to seek leave to amend to add a punitive damages

claim in accordance with the rules of civil procedure (see Rule 1.190, Fla. R. Civ. P.).

72 See Gross v. Security Trust Co., 453 So. 2d 944, 945 (Fla. 4th DCA 1984) (“Whether depositions, or any discovery, should be limited

is within the broad discretion of the trial court.”).

73 See Smith v. Southern Baptist Hosp., 564 So. 2d 1115, 1118 (Fla. 1st DCA 1990) (“The trial court may limit discovery only when

the movant has made an affirmative showing of good cause.”).

74 The party moving for a protective order must make a particular request and a specific demonstration of facts in support of the request,

as opposed to conclusory or speculative statements about the need for a protective order and the harm which would be suffered

without one. Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16, 101 S. Ct. 2193, 68 L. Ed. 2d 693, 25 Fair Empl. Prac. Cas. (BNA) 1377,

26 Empl. Prac. Dec. (CCH) P 31841, 31 Fed. R. Serv. 2d 509 (1981). “Such demonstrations are preferably made by affidavits from

knowledgeable persons and may include in camera submissions or in camera proceedings attended by opposing counsel.” Brittain v.

Stroh Brewery Co., 136 F.R.D. 408, 412–13 (M.D. N.C. 1991) (citations omitted).

75 “As a practical matter, a trial court weighs a variety of factors in deciding whether to refuse discovery to a party.” Palmer v. WDI Sys.,

588 So. 2d 1087, 1088 (Fla. 5th DCA 1991); see also Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir.1985) (under

balancing of interests approach to rule governing protective orders, appellate court affirmed district court's ruling in products liability

case that non-party's interests in keeping confidential the names of medical study participants outweighed defendant manufacturer's

interests in obtaining the names); Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 945–46 (Fla. 2002) (directing trial

courts to balance nonpublic employee privacy interests against right of litigant to discover facts in determining relevancy of any

discovery request which implicates such a privacy interest).

76 See Rule 1.280(c), Fla. R. Civ. P.

77 See generally Board of Trustees of Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So. 3d 450 (Fla.

2012) (explaining limited role of certiorari in review of discovery orders); Biomet, Inc. v. Fleury, 912 So. 2d 706 (Fla. 2d DCA

2005); Smith v. Florida Power & Light Co., 632 So. 2d 696, 697 n. 1 (Fla. 3d DCA 1994); Malt v. Simmons, 405 So. 2d 1018 (Fla.

4th DCA 1981); Simons v. Jorg, 375 So. 2d 288, 289 (Fla. 2d DCA 1979).

78 See Rosaler v. Rosaler, 442 So. 2d 1018 (Fla. 3d DCA 1983) (“The trial court has wide discretion in its treatment of requests for

discovery and the court's ruling will not be disturbed unless an abuse of that discretion has been shown.”). See also Beekie v. Morgan,

751 So. 2d 694 (Fla. 5th DCA 2000) (where, although noting that certiorari relief is rarely appropriate to review protective orders, the

court granted certiorari and quashed a protective order which “depart[ed] from the essential requirements of law”); Office of Attorney

General v. Millennium Communications & Fulfillment, Inc., 800 So. 2d 255 (Fla. 3d DCA 2001) (same); Grooms v. Distinctive

Cabinet Designs, Inc., 846 So. 2d 652, 654 (Fla. 2d DCA 2003) (granting certiorari and quashing trial court denial of protective order,
















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stating that “[o]rders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable

harm and are thus appropriate for certiorari review”).

79 For example, Rule 1.310 governing depositions upon oral examination and Rule 1.320 governing depositions upon written questions

do not expressly provide for objections.

80 First City Dev. v. Hallmark of Hollywood Condo. Ass'n, 545 So. 2d 502, 502–03 (Fla. 4th DCA 1989) (once a party files its objections

to discovery, it is unnecessary for the discovery proponent to file a motion to compel; while such a motion is permissible, it is equally

permissible for the proponent to notice the objections for hearing).

81 The discovery respondent would typically bring the matter to the court either (a) in response to a deposition notice or (b) upon an

objection arising during a deposition in which the deponent's counsel wants the deposition to cease altogether, requiring a prompt

motion for protective order (see Rule 1.310(d), discussed, infra). That is not to say that the respondent would be precluded from

proceeding by motion in response to non-deposition discovery, but the ability to interpose a self-operative objection, subject only to

subsequent determination if tested by the discovery proponent, is a far more practical procedural device.

82 First City Dev. v. Hallmark of Hollywood Condo. Ass'n, Inc., 545 So. 2d 502, 502–03 (Fla. 4th DCA 1989). But see Commentary

¶090.5[4], supra, as to the question of whether hearings are generally required on motions, and if so what type of motions can be

determined without a hearing.

83 See Rule 3.220(d)(3), Fla. R. Crim. P. (“The filing of a motion for protective order by the prosecutor will automatically stay the times

provided for in this subdivision.”); Rule 8.060(b)(3), Fla. R. Juv. P. (“The filing of a motion for protective order by the petitioner

will automatically stay the times provided for in this subdivision [relating to discovery, generally].”).

84 See Trawick, Florida Practice and Procedure, § 16:13 (2012 ed.). Prior editions have contained the same statement for decades.

85 See Momenah v. Ammache, 616 So. 2d 121, 124 (Fla. 2d DCA 1993) (“The filing of a motion for protective order does not act as

an automatic stay in a civil action.”); Stables v. Rivers, 559 So. 2d 440 (Fla. 1st DCA 1990) (“Petitioners argue that the filing of the

motion for protective order acted as an automatic stay of the scheduled depositions. We find no support for this contention in the

Florida Rules of Civil Procedure.”). Momenah expressly noted and disagreed with Mr. Trawick's opposing view.

86 See, e.g., Federal Aviation Admin. v. Landy, 705 F.2d 624, 634 (2d Cir.1983) (“It is clear, however, that it is not the filing of [a motion

to vacate a deposition notice] that stays the deposition, but rather a court order.”); Pioche Mines Consol., Inc. v. Dolman, 333 F.2d

257, 269 (9th Cir.1964) (“Any such rule [suspending deposition appearance by filing a motion to terminate or limit an examination]

would be an intolerable clog upon the discovery process. [Former] Rule 30(b) places the burden on the proposed deponent to get an

order, not just to make a motion…. [U]nless he has obtained a court order that postpones or dispenses with his duty to appear, that

duty remains.”). See also Berisford Int'l, plc v. Weiss, 1992 WL 296427 (S.D.N.Y. 1992) (citing Landy); United States v. Fesman,

781 F.Supp. 511 (S.D.Ohio 1991) (relying on Goodwin v. City of Boston, 118 F.R.D. 297, 298 (D.Mass.1988)) (“[T]he filing of …

a motion for a protective order does not automatically operate to stay a deposition or other discovery”); American Health Sys., Inc.

v. Liberty Health Sys., 1991 WL 4405 (E.D.Pa.1991) (same); Macrovision Corp. v. VSA Ltd., 1989 WL 69961 (D.Or.1989) (“The

filing of a motion for a protective order does not automatically stay a noticed deposition. A ruling of the court is necessary.”).

87 See Rule 1.380(d), Fla. R. Civ. P.

88 Rule 1.380(d), Fla. R. Civ. P. (emphasis added).

89 See Rules of Civil Procedure, 48 F.R.D. 459, 538 (U.S.Sup.Ct. 1970).

90 See In re The Florida Bar, 265 So. 2d 21, 39 (Fla. 1972) (as to last sentence of Rule 1.380(d) and Committee Note indicating that the

rule was “[d]erived from F[ederal] R[ule] 37 as amended in 1970”); and compare subdivision (d) as amended in 1972 to the form as

originally adopted in 1966 in In re Florida Rules of Civil Procedure 1967 Revision, 187 So. 2d 598, 622 (Fla. 1966).

91 See Rules of Civil Procedure, 146 F.R.D. 401, 689 (U.S.Sup.Ct. 1993) (emphasis added to both former and revised portions of rule

to highlight change).

92 Rules of Civil Procedure, 146 F.R.D. 401, 692 (U.S.Sup.Ct. 1993) (emphasis added).

93 Donahoo v. Matthews, 660 So. 2d 391, 392 (Fla. 5th DCA 1995); Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA

1993); Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992); Madax Intern. Corp. v. Delcher Intercontinental Moving Services,

Inc., 342 So. 2d 1082, 1084 (Fla. 2d DCA 1977); Godshall v. Hessen, 227 So. 2d 506, 508 (Fla. 3d DCA 1969).

94 City of Miami Beach v. Wolfe, 83 So. 2d 774 (Fla. 1955); but see Rose v. Brouwer, 253 So. 2d 279 (Fla. 1st DCA 1971) (order

restricting taking of plaintiff's deposition to 72-hour period prior to trial presumptively limited the defendant's ability to prepare

for such trial).

95 Les Violins v. Alzamora, 541 So. 2d 1353, 1354 (Fla. 3d DCA 1989).

96 Smith v. Southern Baptist Hosp., 564 So. 2d 1115, 1117 (Fla. 1st DCA 1990).





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97 Smith v. Southern Baptist Hosp., 564 So. 2d 1115, 1117–18 (Fla. 1st DCA 1990).

98 This is not to suggest that depositions are a public proceeding which anyone may attend. Exactly the contrary is true. See Miami

Herald Pub. Co. v. Gridley, 510 So. 2d 884, 14 Media L. Rep. (BNA) 1288 (Fla. 1987), extending to civil cases the holding of Palm

Beach Newspapers, Inc. v. Burk, 471 So. 2d 571, 12 Media L. Rep. (BNA) 1225 (Fla. 4th DCA 1985), decision approved, 504 So.

2d 378, 13 Media L. Rep. (BNA) 2087 (Fla. 1987). The Supreme Court reasoned, in the newspaper cases, that because depositionsare non-public proceedings, deposition transcripts are not obtainable by non-parties until the transcripts are filed and thus become

public record documents. Because non-parties (who are not themselves being deposed) are not permitted to attend depositions, the

provisions of subdivision (c)(5) relating to exclusion from depositions necessarily apply only to those persons who might otherwise

be permitted to attend.

99 Aetna Life Ins. Co. v. Hausman, 598 So. 2d 223, 224 (Fla. 5th DCA 1992).

100 See Rule 1.280(c)(7), which expressly contemplates such protection for any commercial information, including but not limited to

trade secrets.

101 Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 947 (Fla. 2002) (holding that private employer does not have standing to

challenge discovery request based exclusively on privacy interest of its employees in their personnel files; however, “employees may

have a privacy interest in certain information contained in their personnel files, which they may assert as intervenors in the litigation”

and “in the appropriate case, the trial court should fully consider the employees' alleged privacy interest—in the context of determining

the relevancy of any discovery request which implicates it—regardless of whether the subject employees have intervened”); North

Fla. Reg'l Hosp., Inc. v. Douglas, 454 So. 2d 759 (Fla. 1st DCA 1984) (however, employees may move to intervene and assert their

own rights, and employer may still assert its own interests in preventing disclosure).

102 East Colonial Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276, 1277–78 (Fla. 5th DCA 1982).

103 See, e.g., West's F.S.A. §§ 90.5015 (qualified journalist's privilege), 90.502 (lawyer-client privilege), 90.503 (psychotherapist-patient

privilege), 90.504 (husband-wife privilege), 90.5055 (accountant-client privilege) and 90.506 (trade secrets privilege), among others.

104 See, e.g., West's F.S.A. § 90.507 (Sec. 507 of the Florida Evidence Code providing for “Waiver of privilege by voluntary disclosure”);

Ehrhardt, Florida Evidence §§ 502.8, 507 (2012 ed.).

105 See, e.g., Staton v. Allied Chain Link Fence Co., 418 So. 2d 404, 405–06 (Fla. 2d DCA 1982) (statements protected by attorney-

client privilege are undiscoverable except in the rarest of circumstances, such as waiver and contemplation of a crime or perpetration

of a fraud); West's F.S.A. § 90.502.

106 Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1380 (Fla. 1994), citing West's F.S.A. § 90.502.

107 Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1380 (Fla. 1994), citing West's F.S.A. § 90.502(1)(b).

108 National Sec. Fire & Cas. Co. v. Dunn, 705 So. 2d 605, 608 (Fla. 5th DCA 1997) (citing Shell Oil Co. v. Par Four P'ship, 638 So.

2d 1050 (Fla. 5th DCA 1994)).

109 See West's F.S.A. §§ 90.501, et seq.; see also Commentary ¶280.3[4], supra.

110 See Commentary ¶280.3[4], supra.

111 See Rule 1.280(c)(7), Fla. R. Civ. P.

112 West's F.S.A. § 90.506 (“Privilege with Respect to Trade Secrets”).

113 See, e.g., Inrecon v. Village Homes at Country Walk, 644 So. 2d 103, 105 (Fla. 3d DCA 1994); Grooms v. Distinctive Cabinet

Designs, Inc., 846 So. 2d 652, 655 (Fla. 2d DCA 2003) (citing Inrecon); Freedom Newspapers, Inc. v. Egly, 507 So. 2d 1180, 1184

(Fla. 2d DCA 1987).

114 See Commentary ¶280.4[5][c], infra. See also Inrecon v. Village Homes at Country Walk, 644 So. 2d 103, 105 (Fla. 3d DCA 1994)

(“It is widely recognized that the trade-secret privilege is not absolute.”); 1979 Sponsors' Note to West's F.S.A. § 90.506; Ehrhardt,

Florida Evidence §§ 506.1 to 506.2 (2004 ed.).

115 Rule 1.280(b)(6), Fla. R. Civ. P. It was not until the 1996 amendments to the Florida Rules of Civil Procedure that Rule 1.280 first

required a party responding to a discovery request to prepare or serve what is generally referred to as a “privilege log” identifying

those documents withheld from discovery and the grounds upon which they are withheld. This omission was rectified by the addition

of former subdivision (b)(5), now subdivision (b)(6), derived from post-1993 Federal Rule 26(b)(5). See In re Amendments to Florida

Rules of Civil Procedure, 682 So. 2d 105, 116 (Fla. 1996) (“Subdivision (b)(5) is added and is derived from Federal Rule of Civil

Procedure 26(b)(5)(1993)”) (Committee Note on 1996 Amendment). See also Rule 26.1(g)(3)(b), S.D. Fla. L. R., which requires that

any objection to an interrogatory or document request shall state with specificity the grounds therefore and, if a claim of privilege or

work product is asserted, the objection should also contain information sufficient to identify the withheld communication or document,
















































including, among other things, the general subject matter of the communication or document, the source of the communication or

document, and persons present during the communication or addressee of the document.

116 Del Carmen Calzon v. Capital Bank, 689 So. 2d 279, 281 (Fla. 3d DCA 1995) (§ 90.502(2), West's F.S.A. “clearly protects the

contents of those documents and an order to divulge that information without first conducting an in camera inspection by the court

is a departure from the essential requirements of law.”).

117 See Royal Caribbean Cruises, Ltd. v. Doe, 964 So. 2d 713, 718, 2007 A.M.C. 1313 (Fla. 3d DCA 2007) (disapproved of by, Board

of Trustees of Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So. 3d 450 (Fla. 2012)); Life Care

Centers of America v. Reese, 948 So. 2d 830, 833 (Fla. 5th DCA 2007); Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006).

118 See Metabolife Intern., Inc. v. Holster, 888 So. 2d 140, 141 (Fla. 1st DCA 2004); Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449

(Fla. 3d DCA 2004); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002); General Motors Corp. v. McGee,

837 So. 2d 1010, 1033, Prod. Liab. Rep. (CCH) P 16477 (Fla. 4th DCA 2002), as modified on clarification, (Mar. 5, 2003). But

see Allstate Ins. Co. v. McClusky, 836 So. 2d 1068 (Fla. 5th DCA 2003) (holding requirement of privilege log excused where party

asserting privilege relied on erroneous orders of trial court refusing to direct filing of one); Scottsdale Ins. Co. v. Camara De Comercio

Latino-Americana De Los Estados Unidos, Inc., 813 So. 2d 250 (Fla. 3d DCA 2002) (refusing to consider argument that petitioner

had waived privilege by not filing privilege log because argument never made in trial court).

119 Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93, 95 (Fla. 5th DCA 2004). See also Magical Cruise Co. v. Dragovich, 876 So. 2d

1281, 1281–82 (Fla. 5th DCA 2004) (Griffin, J., concurring specially).





122 Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93, 95 (Fla. 5th DCA 2004) (citations omitted). See also Fifth Third Bank v. ACA

Plus, Inc., 73 So. 3d 850, 852 (Fla. 5th DCA 2011) (quashing order that held untimely produced privilege log constituted a waiver);

Magical Cruise Co. v. Dragovich, 876 So. 2d 1281, 1281–82 (Fla. 5th DCA 2004) (Griffin, J., concurring specially).

123 Century Bus. Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156 (Fla. 4th DCA 2005) (clarifying its earlier opinion

in TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001)).

124 Nevin v. Palm Beach County Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA 2007) (citing Judge Griffin's specially concurring

opinion in Matlack v. Day, 907 So. 2d 577, 579 (Fla. 5th DCA 2005)).

125 See Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., 26 So. 3d 620, 623 (Fla. 4th DCA 2009) (stating that “a privilege log

is not required from a non-party producing documents,” relying on the language of what is now Rule 1.280(b)(6)).

126 See Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., 26 So. 3d 620, 623 (Fla. 4th DCA 2009) (stating that “a privilege log is

not required from a non-party producing documents,” relying on the language now found in Rule 1.280(b)(6); and that “a protective

order is the available remedy for non-parties, relying on Rule 1.280(c)).

127 Carnival Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA 1998) (citing Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d

1377, 1383 (Fla. 1994)) (“The burden of establishing the attorney-client privilege rests on the party claiming it.”); Wal-Mart Stores,

Inc. v. Weeks, 696 So. 2d 855, 856 (Fla. 2d DCA 1997) (the party objecting to document production on the basis of work product

bears the burden of establishing the doctrine's applicability); Cone v. Culverhouse, 687 So. 2d 888, 892 (Fla. 2d DCA 1997) (the

burden of establishing the accountant-client privilege rests on the party seeking to invoke the privilege).

128 See International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D.Del.1974) (“[A] party resisting disclosure on the ground of the

attorney-client privilege must by affidavit show sufficient facts as to bring the identified and described document within the narrow

confines of the privilege.”).

129 See Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855, 856 (Fla. 2d DCA 1997) (finding that Wal-Mart's stated objection and assertion

of work product privilege, without any evidence to support such assertion, were insufficient to satisfy its burden); RTC v. Diamond,

137 F.R.D. 634, 642 (S.D.N.Y.1991) (finding that vague, conclusory allegations of the work product doctrine's applicability did not

satisfy burden).

130 See Commentary ¶280.3[4], supra.

131 Paradise Pines Health Care Associates, LLC v. Bruce, 27 So. 3d 83, 83–84 (Fla. 1st DCA 2009), review denied, 46 So. 3d 1002 (Fla.

2010); Metric Engineering, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003); Ashemimry v. Ba Nafa, 847 So. 2d 603, 605

(Fla. 5th DCA 2003); District Bd. of Trustees of Miami-Dade Community College v. Chao, 739 So. 2d 105, 107–08 (Fla. 3d DCA





























































1999); Prudential Ins. Co. of America v. Florida Dept. of Ins., 694 So. 2d 772, 774 (Fla. 2d DCA 1997); Dade County School Bd. v.

Soler By and Through Soler, 534 So. 2d 884, 885, 50 Ed. Law Rep. 909 (Fla. 3d DCA 1988).

132 Whealton v. Marshall, 631 So. 2d 323, 325 (Fla. 4th DCA 1994). See also Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279

(Fla. 3d DCA 1995). Although the few cases on the subject can be read otherwise, the requirement that the showing be made in

the motion to compel should not apply where the basis of the challenge to the claims of privilege, in the first instance, is that they

are legally unfounded.

133 Agri-Business, Inc. v. Bridges, 397 So. 2d 394, 395 (Fla. 1st DCA 1981). See also Kmart Corp. v. Sundmacher, 997 So. 2d 1158 (Fla.

3d DCA 2008), where the court granted a petition for a writ of certiorari and quashed a trial court order denying the defendant's motion

to compel the plaintiff to produce photographs depicting the condition of the defendant's floor at the time the plaintiff allegedly slipped

and fell. The court concluded that the defendant had satisfied the requirements of what is now Rule 1.280(b)(4) by demonstrating

that the photographs were relevant and material; there was no other means of obtaining the discovery requested; and the photographs

were the best evidence of the condition of the floor at the time of the alleged slip and fall. Kmart Corp. v. Sundmacher, 997 So. 2d

1158, 1160 (Fla. 3d DCA 2008) (defendant failed to demonstrate entitlement to certiorari relief) (Ramirez, J., dissenting).

134 See Zirkelbach Const., Inc. v. Rajan, 93 So. 3d 1124, 1129–30 (Fla. 2d DCA 2012); Falco v. North Shore Laboratories Corp., 866

So. 2d 1255, 1257 (Fla. 1st DCA 2004); Florida East Coast Railway, L.L.C. v. Jones, 847 So. 2d 1118, 1119 (Fla. 1st DCA 2003);

Metric Engineering, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003); CSX Transp., Inc. v. Carpenter, 725 So. 2d 434

(Fla. 2d DCA 1999).

135 Universal City Development Partners, Ltd. v. Pupillo, 54 So.3d 612, 614 (Fla. 5th DCA 2011).

136 Prudential Ins. Co. of America v. Florida Dept. of Ins., 694 So. 2d 772, 773 (Fla. 2d DCA 1997); Southern Bell Tel. & Tel. Co. v.

Deason, 632 So. 2d 1377, 1384–87, 27 A.L.R.5th 829 (Fla. 1994) (to be entitled to discover factual portions, party must demonstrate it

meets need and hardship exception to what is now Rule 1.280(b)(4)); Whealton v. Marshall, 631 So. 2d 323, 325 (Fla. 4th DCA 1994).

137 See, e.g., State v. Rabin, 495 So. 2d 257, 262 (Fla. 3d DCA 1986) (“Generally, fact work product is subject to discovery upon

a showing of ‘need,’ whereas opinion work product is absolutely, or nearly absolutely, privileged.”). See also Rule 1.280(4), Fla.

R. Civ. P. (the court, when ordering discovery of materials prepared in anticipation of litigation upon the showing of need/undue

hardship, “should protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other

representative of a party concerning the litigation.”).

138 Grooms v. Distinctive Cabinet Designs, Inc., 846 So. 2d 652, 655 (Fla. 2d DCA 2003); Sheridan Healthcorp, Inc. v. Total Health

Choice, Inc., 770 So. 2d 221 (Fla. 3d DCA 2000); Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1278 (Fla. 3d DCA 1993);

Scientific Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991); Freedom Newspapers, Inc. v. Egly, 507

So. 2d 1180, 1184 (Fla. 2d DCA 1987).

139 See Goodyear Tire & Rubber Co. v. Cooey, 359 So. 2d 1200 (Fla. 1st DCA 1978). See also Grooms v. Distinctive Cabinet Designs,

Inc., 846 So. 2d 652, 655 (Fla. 2d DCA 2003); General Hotel & Restaurant Supply Corp. v. Skipper, 514 So. 2d 1158 (Fla. 2d DCA

1987).

140 See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221 (Fla. 3d DCA 2000); Rare Coin-It, Inc. v. I.J.E., Inc., 625

So. 2d 1277, 1278 (Fla. 3d DCA 1993); General Hotel & Rest. Supply Corp. v. Skipper, 514 So. 2d 1158 (Fla. 2d DCA 1987).

141 Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., 26 So. 3d 620, 622 (Fla. 4th DCA 2009) (stating that “[a] trial court departs

from the essential requirements of law in ordering production of confidential information without conducting an in camera review

to determine whether the assertion of privilege is valid”); Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221,

222 (Fla. 3d DCA 2000) (determining whether documents contain trade secrets will usually require in camera review); National Sec.

Fire & Cas. Co. v. Dunn, 705 So. 2d 605, 608 (Fla. 5th DCA 1997) (in the absence of in camera inspection, court order compelling

disclosure of files allegedly containing attorney-client communications violates privilege); Messer v. E.G. Pump Controls, Inc., 667

So. 2d 321, 322 (Fla. 1st DCA 1995) (requiring trial court to conduct in camera review of materials claimed to be protected by trade

secret privilege); Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356, 358 (Fla. 4th DCA 1991) (court required to conduct in camera

inspection of materials claimed to be protected by attorney-client privilege and work product doctrine). See also Metric Engineering,

Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003); Florida East Coast Railway, L.L.C. v. Jones, 847 So. 2d 1118, 1119 (Fla.

1st DCA 2003). One exception to the attorney-client privilege and the work-product doctrine is where a plaintiff in a third party

bad faith action against an insurance company for failure to settle a claim within the policy limits seeks the insured's counsel's files;

because the plaintiff stands in the same posture as the insured, the plaintiff is entitled to the entire litigation file of the insured's counsel

from the inception of the lawsuit until the date that the judgment was entered in the underlying action. Continental Cas. Co. v. Aqua

Jet Filter Systems, Inc., 620 So. 2d 1141 (Fla. 3d DCA 1993); Snyder v. Value Rent-A-Car, 736 So. 2d 780 (Fla. 4th DCA 1999).
































































See also Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005) (concluding that first-party bad faith actions should generally be

subject to same considerations regarding discovery as third-party actions).

142 See Walanpatrias Foundation v. AMP Services Ltd., 964 So. 2d 903, 905 (Fla. 4th DCA 2007).

143 Huet v. Tromp, 912 So. 2d 336, 338 (Fla. 5th DCA 2005); Florida East Coast Ry., L.L.C. v. Jones, 847 So. 2d 1118, 1119 (Fla. 1st

DCA 2003); Grooms v. Distinctive Cabinet Designs, Inc., 846 So. 2d 652, 654 (Fla. 2d DCA 2003) (“Orders improperly requiring

the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari

review”); Prudential Ins. Co. of Am. v. Florida Dep't of Ins., 694 So. 2d 772, 773 (Fla. 2d DCA 1997); National Car Rental Sys.

v. Kosakowski, 659 So. 2d 455, 456 (Fla. 4th DCA 1995) (“Once a litigant is compelled to produce work product, the cat is out of

the bag and the harm is done.”).

144 Fla. R. Jud. Admin. 2.420(c)(9)(A). See also Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988).

145 Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 119 (Fla. 1988). See also Fla. R. Jud. Admin. 2.420.

146 Times Publ'g Co. v. Russell, 615 So. 2d 158 (Fla. 1993). See also Fla. R. Jud. Admin. 2.420.

147 Times Publ'g Co. v. Russell, 615 So. 2d 158, 159 (Fla. 1993). See also Fla. R. Jud. Admin. 2.420.

148 Scott v. Nelson, 697 So. 2d 207, 209 (Fla. 1st DCA 1997). See also Fla. R. Jud. Admin. 2.420.

149 Scott v. Nelson, 697 So. 2d 207, 209 (Fla. 1st DCA 1997); Sentinel Communications Co. v. Smith, 493 So. 2d 1048, 1049 (Fla. 5th

DCA 1986). See also Fla. R. Jud. Admin. 2.420.

150 Resha v. Tucker, 600 So. 2d 16, 18 (Fla. 1st DCA 1992). See also Fla. R. Jud. Admin. 2.420.

151 Scott v. Nelson, 697 So. 2d 207, 209–10 (Fla. 1st DCA 1997); Resha v. Tucker, 600 So. 2d 16, 18 (Fla. 1st DCA 1992).

152 Scott v. Nelson, 697 So. 2d 207, 210 (Fla. 1st DCA 1997). See also Fla. R. Jud. Admin. 2.420.

153 H.B.A. Management, Inc. v. Estate of Schwartz By and Through Schwartz, 693 So. 2d 541, 57 A.L.R.5th 855 (Fla. 1997).

154 Deltona Corp. v. Bailey, 336 So. 2d 1163, 1169–70 (Fla. 1976).

155 See Rule 1.280(d)(1), Fla. R. Civ. P.



158 See, e.g., Midland Inv. Co. v. Van Alstyne, Noel & Co., 50 F.R.D. 46, 47–48 (S.D.N.Y. 1970) (first party to serve notice of depositionsupon opponent was entitled to proceed with all depositions until complete, at which time opponent could begin depositions); E.I.

duPont de Nemours & Co. v. Phillips Petroleum Co., 23 F.R.D. 237, 238 (D.Del.1959) (extending the principle to bar an opponent

from engaging in any form of discovery until depositions by the noticing party were completed).

159 Advisory Committee's Note in Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, at Appendix

2 to the United States Supreme Court's Order dated March 30, 1970, Rules of Civil Procedure, 48 F.R.D. 459, 485, at 506–07

(U.S.Sup.Ct. 1970).

160 Rules of Civil Procedure, 48 F.R.D. 459 (U.S.Sup.Ct. 1970).

161 In re The Florida Bar: Rules of Civil Procedure, 265 So. 2d 21, 27–28 (Fla. 1972) (effective Jan. 1, 1973).

162 The post-1993 amended correlate in the federal rules, Federal Rule 26(d), continues to exist, but is complicated by the new federal

requirements for the initial meeting and exchange of discovery among counsel.

163 See, e.g., Rule 1.310(a) (generally precluding depositions of a defendant by a plaintiff within 30 days of service of initial process on

that defendant); Rule 1.340(a) (generally extending from 30 to up to 45 days the time for response to interrogatories served with or

shortly after service of initial process, by providing that answers need not be filed sooner than 45 days after service of initial process);

Rules 1.350(b), 1.360(a)(1)(A), and 1.370(a) (same 45-day provision as interrogatories).

164 Under Rule 1.310(a), Fla. R. Civ. P., for example, the 30-day time limitation is eradicated once the defendant has sought any discovery.

Thus, if the defendant serves discovery requests on day 10, plaintiff is free to proceed immediately.

165 Rule 1.280(e), Fla. R. Civ. P. (emphasis added); In re Estate of Lochhead, 443 So. 2d 283, 284 (Fla. 4th DCA 1983). See also Binger

v. King Pest Control, 401 So. 2d 1310, 1312 n.4 (Fla. 1981) (“There is no continuing duty of disclosure under Florida's Rules of

Civil Procedure, as there is under our criminal rules.”).

166 E.g., Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440, 444 (Fla. 3d DCA 2011).





















































