Certiorari Review of Orders Denying Discovery in Civil Cases.

• Date: 01 March 2022
• Author: Richardson, Adam

The district courts of appeal state that, as a general rule, they rarely have common-law certiorari jurisdiction over orders that deny discovery because such orders do not work an irreparable harm. (1) Yet the district courts also recognize an exception: "One exceedingly narrow exception to the general rule exists where 'the requested discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim.'" (2)

Although the exception has been the subject of many reported decisions in civil cases, I did not find a comprehensive treatment of the exception in the decisional law or in secondary authorities. (3) I strive to afford that treatment in this two-part column. Part I summarizes the history of the writ of certiorari, explains certiorari jurisdiction, traces the development of the exception, and states the justification the courts have offered. Part II reviews the strengths and weaknesses of the exception, explores other issues such as the interaction of the exception with harmless error, provides examples of its application, and offers concluding thoughts--that in their application of the exception, the district courts have often strayed beyond certiorari's jurisdictional boundaries.

In writing this column, I attempted to locate every reported case in Florida on the exception. My research turned up about 140 opinions, though I cannot warrant complete success. Additionally, it is important to note that cases often used to deny petitions rather than dismiss them, even when the disposition was on jurisdictional grounds. Now the courts use precise terms more often than they do not. (4) Throughout this column, I use "dismissed" even when the decision says the disposition is "denied" if the court found lack of irreparable harm, the test of certiorari jurisdiction.

History of the Writ of Certiorari

"Certiorari" is legal Latin for "to be more fully informed." (5) The writ's history is convoluted. It developed in England after the Norman Conquest in the 11th century, after which power became more centralized in the office of the king. Among other things, it was used to transfer the records of a case from one forum to a superior forum, usually a royal court, to review the proceedings. The writ became a wide-ranging tool for the king's courts to assert authority by transferring cases to correct injustices. After the dislocations of the early modern era, the king's prerogative powers were circumscribed and most judicial functions were transferred to a common-law court. (6) There, the writ was used to ensure that lower courts followed the law governing the exercise of jurisdiction. (7) In America, the common law writ of certiorari became something of "an independent appellate remedy," though one that is extraordinary, discretionary, and available before judgment only when there is no other adequate remedy. (8)

The 1838 Constitution of the State of Florida gave the Florida Supreme Court appellate jurisdiction as well as the jurisdiction to issue certain identified writs and "such other remedial and original writs, as may be necessary to give it a general superintendence and control of all other Courts." (9) In Halliday v. Jacksonville & Alligator Plank Road Co., 6 Fla. 304, 305 (1855), the court referred to this provision and said: "It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment of justice." Ultimately, the court dismissed the case because the petitioner had "an ample remedy" by appeal. (10)

Halliday was the first time the court recognized its common-law certiorari jurisdiction. (11) However, jurisdiction was limited to final judgments of lower appellate courts. (12) Over time, the court expanded the scope of jurisdiction, eventually to include review of a trial court's nonfinal order. (13) In 1956, the constitution was amended to create the district courts of appeal, which along with the circuit courts now had exclusive common law certiorari jurisdiction. (14)

Certiorari Jurisdiction or "Irreparable Harm"

As the Supreme Court explained in Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011), "Certiorari review is intended to fill the interstices between direct appeal and the other prerogative writs and allow a court to reach down and halt a miscarriage of justice where no other remedy exists; it was never intended to redress mere legal error." (15) Certiorari is an extraordinary remedy that parties should not use to circumvent the Supreme Court's limited grant of appellate jurisdiction to the district courts over specific nonfinal orders in Florida Rule of Appellate Procedure 9.130. (16) The First District urged caution with certiorari 30 years ago: "The most recent pronouncement from the Supreme Court of Florida on certiorari jurisdiction suggests, if anything, the district courts of this state should be even more conservative in accepting certiorari jurisdiction to review interlocutory orders than they have been in the past." (17)

The petitioner has a high burden to obtain common law certiorari relief. He must establish three elements: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on [plenary] appeal." (18) The latter two elements are the tests used to determine certiorari jurisdiction and courts often refer to them together as "irreparable harm." (19)

Orders denying discovery typically do not result in irreparable harm because the aggrieved party can appeal the final judgment to the district court, which on plenary review can deem the denial error, reverse the judgment, and remand for further proceedings in which that discovery is available. (20) Thus, the error can be corrected in a post-judgment appeal. Moreover, the courts have consistently held that a party's unnecessary expenditure of time and money does not equate to irreparable harm, and orders denying discovery seem to fit squarely within that principle. (21)

Given the history of the writ of certiorari and the consistently stated principle that the writ should rarely be available, how did we get the "blanket rule," as one judge called it, (22) that an order denying discovery of material evidence results in an irreparable harm?

Development of the Exception

The earliest reported decision I could locate involving certiorari review of an order denying discovery is the one-paragraph opinion in Dade County v. Bosch, 133 So. 2d 578 (Fla. 3d DCA 1961). There, the trial court quashed a notice of taking the deposition of a defense expert because the expert had previously consulted with the plaintiff 's attorney on the case; according to the trial court, the doctor's opinion was the plaintiff 's work product. The defendant filed a petition for writ of certiorari. Ultimately granting the petition, the Third District wrote: "In causes similar to this, this court and others have assumed jurisdiction of such writs," citing American Ladder & Scaffold Co. v. Eadie, 120 So. 2d 65 (Fla. 3d DCA 1960), and City of Sarasota v. Colbert, 97 So. 2d 872 (Fla. 2d DCA 1957). (23) "Similar" was doing a lot of work: Both American Ladder and Colbert involved review of orders granting discovery, a different situation presenting a different concern. (24)

Although what is now identified as an exception lacked an articulated justification until 1980 (see next section), each...