Discovery in Administrative Proceedings: Whose Right and Who's Right?

AuthorStiller, Shaw

Judge Bram Canter, a former administrative law judge at the Florida Division of Administrative Hearings (DOAH), accurately captured the universe of discovery in administrative proceedings:

The proceedings at DOAH move more rapidly than civil cases in the circuit courts. Most hearings are scheduled 60 to 90 days after a petition for hearing is filed with an agency. Therefore, it is not just advantageous to a lawyer to begin discovery immediately, as it would be in a civil case; it is essential. (1) While the Uniform Rules of Procedure (2) and current practice at DOAH allow prompt and full discovery consistent with this observation, the existing authority in F.S. Ch. 120 for this approach is not so clear.

The one, brief statutory provision in Ch. 120 that authorizes discovery in administrative proceedings vests the presiding officer with the power "to effect discovery." (3) Unlike the corresponding Florida Rule of Civil Procedure 1.280, Ch. 120 does not directly authorize parties to "obtain discovery." Florida Administrative Code Rule 28-106.206, which governs administrative proceedings involving disputed issues of fact, does not recognize this distinction and grants to parties the right to obtain discovery as allowed under the Florida Rules of Civil Procedure. In contrast, Fla. Admin. Code R. 28-106.305, which governs administrative proceedings not involving disputed issues of fact, more closely tracks the language of Ch. 120 and does not contain the same direct grant of authority to parties to obtain discovery. Nevertheless, agency practice often parallels discovery in disputed fact hearings.

As suggested below, minor legislative revisions could provide the authority for a uniform approach to discovery in administrative proceedings. Subsequent rulemaking by the Administration Commission could memorialize DOAH's current practice pertaining to discovery in disputed fact proceedings and provide uniform guidance to agencies in how to handle discovery during proceedings not involving disputed facts. (4)

The Statutes

The provisions of F.S. [section]120.569(1) "apply in all proceedings in which the substantial interests of a party are determined by an agency." (5) The additional provisions of F.S. [section]120.57(1) apply whenever the proceeding involves a disputed issue of material fact; those of F.S. [section]120.57(2) apply when there are no disputed material facts. (6) Proceedings that involve disputed issues of material fact were formerly referred to in statute as formal proceedings, with those that are not referred to as informal proceedings. (7)

The sole statutory authority for discovery in both types of administrative proceedings provides in full as follows:

The presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, including the imposition of sanctions, except contempt. (8) The language shown in italics has been in the Administrative Procedure Act since the original enactment in 1974:

An agency, or its duly empowered presiding officer, or a hearing officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon its own motion, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida rules of civil procedure. (9) While the provision has been moved to F.S. [section]120.569(2)(f) and some language pertaining to other duties has changed over time, the provision itself has remained essentially unchanged. Because this provision appears in F.S. [section]120.569(2) (f) and neither the original nor the current versions of F.S. [section][section]120.57(1) and 120.57(2) contain any further reference to discovery, this language is the only authority for discovery in disputed fact and undisputed fact proceedings.

This statute differs significantly from Fla. R. Civ. P. 1.280, which sets forth the general provisions governing discovery as follows:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as 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 discovery is as follows:

In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any...

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