Certiorari Review of Orders Denying Discovery in Civil Cases.

• Author: Richardson, Adam
• Position: Part 2

This is Part II of my column on certiorari review of orders denying discovery in civil cases. In Part I, I reviewed the history of the writ of certiorari and the jurisdictional prerequisite of "irreparable harm." Generally, orders denying discovery do not inflict such harm. But, as I explained in Part I, the district courts of appeal fashioned an exception to the general rule: "'when the requested discovery is relevant or is 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.'" (1) At the end of Part I, I relayed the justification the courts have given for this exception. In this part, I discuss cases in which the courts have granted or denied review, examine their justification, and offer concluding thoughts.

Cases in Which Review Granted

It is difficult to create a typology of cases in which the district courts have shown a willingness to grant review and quash orders denying discovery. However, I can offer the following rough typology, with decisions summarized in the endnotes:

1) The deposition of a material witness, which the lion's share of cases involve. (2) The Third District explains that "[a] material witness is one who possesses information 'going to some fact affecting the merits of the cause and about which no other witness might testify.'" (3)

2) The deposition of a party. (4)

3) Ex parte communications between a defendant and healthcare providers for whom the defendant is allegedly vicariously liable, in medical-malpractice cases. (5)

4) Photographs when there is no substitute available to the petitioner. (6)

5) Records of adverse medical incidents pursuant to Amendment 7, an amendment to the state constitution, in medical-malpractice cases. (7)

6) Financial documents in family law cases. (8)

7) Compulsory medical examinations of plaintiffs. (9) Space does not permit a discussion of the 2-1 decision in Royal Caribbean Cruises v. Cox, 974 So. 2d 462 (Fla. 3d DCA 2008), but the majority and dissenting opinions discussed jurisdiction at length.

8) Key physical evidence. (10)

9) Information related to settlements. (11)

10) When timing is an issue; for example, cases involving terminally ill witnesses or when there are time limits. (12)

11) Varied other documents. (13)

Cases in Which Review Denied

Cases in which the district courts have denied review are not susceptible to rough categorization because they are so fact-dependent. However, consideration of the cases yields some broad conclusions.

The issue in Katz v. Riemer, 305 So. 3d 663 (Fla. 3d DCA 2020), was whether the defendants' affirmative defenses in a legal-malpractice lawsuit were eviscerated by the denial of discovery. The plaintiffs' tort claims against the attorneys were based on a post-nuptial agreement that their mother had entered into with their stepfather providing that if the mother predeceased the stepfather, the stepchildren would receive 30% of his net estate upon his death. The plaintiffs alleged that, after the mother died, the stepfather depleted his assets with the advice of the defendants. The defendants sought disclosure of the money the plaintiffs inherited from their mother because their defense was that the actual purpose of the agreement, ensuring the plaintiffs' financial health, had been accomplished. The trial court denied the discovery. The Third District dismissed the ensuing certiorari petition because the denial did not eviscerate the defendants' defense: "In determining whether a defense has been eviscerated, courts must look at the legal elements of the petitioner's defenses, compare them with the discovery the trial court has granted and also review the complaint. Further, the discovery sought must be relevant to the issues as framed by the pleadings." (14) The court determined that the beneficiaries' claims related to the agreement and its clear and unambiguous terms, so the alleged intent and the plaintiffs' present economic health were not relevant to the issues as framed by the complaint.

Next, in Duran v. MFM Group, 841 So. 2d 500 (Fla. 3d DCA 2003), the plaintiff took the deposition of a nonparty witness (a former employee of the defendant) to obtain financial information. At the deposition, the witness refused to answer certain financial questions based on the accountant-client privilege. The trial court denied the plaintiff's motion to compel the testimony, and the plaintiff sought certiorari review. The Third District determined it lacked jurisdiction: "No showing has been made that the former employee is the only source for the financial information sought by [the plaintiff]. To the contrary, it appears there are many other witnesses who can testify to the same information...." (15)

In Plantz v. John, 170 So. 3d 822 (Fla. 2d DCA 2015), the defendant in a medical-malpractice action sought discovery, which the trial court denied, into the credentials of the medical expert who signed the plaintiff's presuit affidavit. The Second District determined it had no jurisdiction because any error in the denial of the discovery could be remedied on appeal. Specifically, the court said that the trial court's discovery ruling could be challenged in a certiorari proceeding to review the trial court's ruling on the defendant's then-pending motion to dismiss for failure to comply with the statutory presuit requirements, if the trial court denied that motion.

I noted above that the district courts have granted review of orders denying discovery relating to settlements. However, it is important to acknowledge other distinguishable decisions involving settlements. In Wal-Mart Stores v. Strachan, 82 So. 3d 1052 (Fla. 4th DCA 2011), the plaintiff filed a lawsuit against several defendants. All but one settled. The remaining defendant raised a setoff defense and requested the settlement amounts. The trial court denied the discovery reasoning the defendant was not entitled to a setoff; the Fourth District dismissed the resulting petition. It distinguished a case where review was granted, Anderson v. Vander Meiden, 56 So. 3d 830 (Fla. 2d DCA 2011), because in Strachan the defendant was "seeking discovery of the settlement amounts, not discovery to ascertain whether the settled claims arose from the same injury." (16) It was undisputed that the claims in Strachan arose from the same incident and injuries, and the defendant did not need the amounts to have the jury apportion fault. Alternatively, the court concluded that, if the defendant was entitled to a setoff, an appeal was an adequate remedy because the case could be remanded for discovery of the amounts and setoffs. (17)

Other decisions where the courts have denied review are set out in the endnote. (18)

There are two fairly common-sense conclusions we can draw from the above cases. First, there is no irreparable harm when the allegedly material evidence is not material under the analysis in Katz or, second, the court determines on the particular facts of the case that the party can adequately challenge the order on plenary appeal. Another conclusion is that there is no irreparable harm when the information has been or can be obtained from other sources.

Examining the Justification

The justification for certiorari review of an order denying discovery of material evidence effectively eviscerating the petitioner's case is that

[i]t is difficult to understand how the denial of the right to [obtain the discovery] can be remedied on appeal since there would be no practical way to determine after judgment what the [evidence] would be or how it would affect the result. Certiorari is the proper remedy here. (19)

Does the justification hold up? In his authoritative treatise on Florida appellate practice, Philip Padovano says:

This argument has some practical appeal but it also has two weaknesses...