Chapter 11-7 Judicial Resolution of Discovery Disputes

• Jurisdiction: Florida

11-7 Judicial Resolution of Discovery Disputes

As indicated in the Introduction and in Section 11-8 below, trial judges have broad discretion with respect to discovery matters. That discretion extends beyond just determining what falls within the scope of permissible discovery in a given case. It also extends into what sanctions to impose for the failure to respond sufficiently to discovery requests and, more egregiously, for the failure to comply with court orders regarding discovery.

11-7:1 Motions to Compel

A party dissatisfied with the opposing party's response to discovery requests may move the court to enter an order compelling a response or, at least a better response, as the case may be.⁴⁵ A motion to compel seeks an order from the court requiring the party served with the discovery requests to produce documents and/or answers to interrogatories the court finds to be non-privileged and within the broad scope of permissible discovery. The court may also compel a person or legal entity (through its representative) to appear for deposition. Where no response is received at all, most Florida trial court judges will grant Motions to Compel, ex parte (i.e., without a hearing or notice to the other party). Where only a partial, incomplete, evasive, or otherwise unsatisfactory response is filed, a party seeking to compel discovery should file a timely motion and schedule it for hearing before the party on whom discovery was served files and sets hearings on any objections and/or motions for protective order. Again, he or she, who is the first to set the matter for hearing on his or her own motion, is likely to get the floor first before the judge, thereby putting opposing counsel on the defensive. Prior to scheduling any such matter for hearing, however, it is incumbent that the movant has conferred, or attempted to confer, in good faith with the opposing party in effort to avoid the need for judicial intervention, and the fact of having made the "good faith" effort must be certified in the motion. The careful practitioner will ensure to review local Administrative Orders and the Circuit Court's Local Rules regarding resolving discovery disputes. The requirements for submitting Motions to Compel, in particular, often vary drastically from county to county with respect to both the availability of ex parte relief as well as unique certifications required prior to the submission of such motions.

11-7:2 Motions for Protective Orders

A motion for "protective...