19th Cir. — Judge Lillian Ewen: Florida Civil Discovery Handbook

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Verbatim from the order, captured 2026-07-24; whitespace normalised only. No OCR was used anywhere in this chain. DISCOVERY DISPUTES • TLS Discovery Handbook Committee Jeremy Branning, Chair Honorable Christine Marlewski Andrew Reiss Geddes Anderson, Jr. Weston Smith Kim Ashby Rachel Walters Tom Dart Whitney Untiedt Jennifer Lester • Chapter 1: Discovery Standard and Expectations ................................................ 1 • Chapter 4: Written Discovery Practice .................................................................. 59 Documents Requested ........................................................................ 59 Duty of Good Faith and Due Diligence ..................................... 59 Formulating Requests for Documents ...................................... 59 Use of Form Requests .............................................................. 59 Reading and Interpreting Requests for Documents .................. 60 Contact When a Document Request is Received ..................... 60 Responding to Document Requests ......................................... 61 Objections ................................................................................. 62 When Production is Limited by Interpretation ........................... 63 Supplementation of Document Production ............................... 64 Claim of Privilege ...................................................................... 64 Oral Requests for Production of Documents ............................ 65 Location of Production .............................................................. 65 Available for Copying ................................................................ 65 Manner of Production ............................................................... 66 • Chapter 6: Expert Witness Discovery ................................................................... 84 I. Introduction ...................................................................................... 84 II. Discovery From a Party ................................................................... 85 A. Retained Experts ...................................................................... 85 1. Opinion Discovery .............................................................. 85 2. “Financial” or “Litigation Bias” Discovery ............................. 87 3. “Relationship Bias” Discovery .............................................. 89 B. Consulting Experts .................................................................. 92 C. Non-Party Medical Providers .................................................... 93 1. “Pure” and “Hybrid” Treating Physicians.............................. 93 2. Opinion Discovery ............................................................... 94 3. “Financial” or “Litigation Bias” Discovery ............................. 95 4. Relationship Bias” Discovery ............................................... 98 D. LOP Providers .......................................................................... 100 1. Opinion Discovery .............................................................. 100 • 2. “Financial” or “Litigation Bias” Discovery ............................. 101 3. “Relationship Bias” Discovery .............................................. 101 III. Discovery Served Directly on the Experts ...................................... 102 A. Retained Experts ...................................................................... 102 1. Opinion Discovery .............................................................. 102 2. “Financial” or “Litigation Bias” Discovery ............................. 102 3. “Relationship Bias” Discovery .............................................. 103 B. Consulting Experts .................................................................. 103 C. Non-Party Medical Providers .................................................... 103 1. Opinion Discovery .............................................................. 103 2. “Financial” or “Litigation Bias” Discovery ............................. 104 3. “Relationship Bias” Discovery .............................................. 105 D. LOP Providers .......................................................................... 106 E. Discovery in Support of Unreasonable Medical Bill Defense .... 107 IV. Discovery from a Party’s Attorney or Law Firm .............................. 110 A. Regarding “Retained” Experts .................................................. 110 B. Regarding Non-Party Medical Providers .................................. 111 V. Privacy Rights of Non-Parties & Non-Party Medical Records ......... 112 VI. Discovery Regarding Expert Not Testifying at Trial ....................... 113 VII. Northup Discovery ........................................................................ 1 114 • Chapter 7: Compulsory Medical Examinations ..................................................... 116 Location of the CME 117 Selection of the Examiner by the Defense 118 Attending and Recording the CME 119 Discovery of the CME Examiner 123 • 131 Discovery of Lawyer-Client Privileged Communications ..................... 137 Third Party Bad Faith Actions ..................................................... 138 Examination Under Oath by Insurer ........................................... 138 Privilege Logs ...................................................................................... 139 Inadvertent Disclosure......................................................................... 140 • Appendix 1-1: Discovery Wake-up Call to the Bar ..................................................... 160 • Appendix 1-2: Breaking the Addiction to Boilerplate Discovery Practices ................. 163 • Appendix 3-1: Committee Notes to Florida’s 2012 e-Discovery Rules Amendments ............................................................................. • Appendix 3-2: Comparison of Florida and Federal Rules of E-Discovery ........................................................................... • Appendix 3-3: Standing Order on Electronically Stored Information Discovery .......... 194 • Appendix 3-4: Stipulation Establishing Electronic Discovery Protocol ........................ 196 • Appendix 6-1: Significant Cases Involving the Breadth and Scope Of Expert Witness Discovery ............................................................................... • DISCOVERY STANDARD AND EXPECTATIONS The goal of discovery is to prevent surprise, trickery, bluff, and legal gymnastics. 1 Full and fair discovery is essential to the truth -finding function of our justice system, and parties and non-parties alike must comply with the technical provisions of the discovery rules and the purpose and spirit of those rules. 2 According to Webster’s dictionary, “discovery” means “the act or process of discovering. ”3 Although the scope of discovery differs from case to case, when viewed in a strictly textual context, the critical sentences in all of the discovery rules share a common principle: “to secure the just, speedy, and inexpensive determination of every action.” 4 Relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics. 5 Furthermore, courts neither countenance nor tolerate actions that are not forthright and merely delay and obfuscate the discovery process. 6 As explained in the opinions attached in Appendix 1- 1 and Appendix 1-2, boilerplate approaches are inconsistent with the rules and can result in the waiver of all objections and even sanctions. Accordingly, both requests for and responses to discovery must be thoughtful, case-specific, and factually supported. 7 Most importantly, whether conducting or responding to discovery, and in both oral and written practice, counsel must conduct themselves consistent with the standards of • 1 Fla. Peninsula Ins. Co. v. Newlin, 273 So. 3d 1172,1182 (Fla. 2d DCA 2019). 2 Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla. 2014). 3 Discovery, Merriam–Webster's Seventh New Collegiate Dictionary (1969). 4 FLA. R. CIV. P. 1.010. 5 Bainter, 150 So. 3d at 1133. 6 Bainter, 150 So. 3d at 1118. 7 See e.g., FLA. R. CIV. P. 1.350(b) (“the reasons for the objection shall be stated”) (emphasis added). • behavior codified in (1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; (5) the decisions of the Florida Supreme Court; and (6) the applicable code of conduct and standing orders promulgated by the circuit or county court within which the action is pending. Further, counsel and parties alike must be mindful that their discovery requests, as well as their objections and responses to discovery requests, are subject to FLA. STAT. § 57.105 ( 2023), which authorizes courts to award sanctions against parties who raise claims and defenses not supported by material facts. 8 Section 57.105(2) specifically provides that expenses, including fees and other losses, may be awarded for the assertion of, or response to, any discovery demand that the court considered having been taken primarily for the purpose of unreasonable delay . Moreover, Section 57.105(6) provides that the provisions of Section 57.105 are supplemental to other sanctions or remedies that are available under law or under court rules. Accordingly, the court has awarded sanctions when a party filed a motion to dismiss that was unsupported by the facts and the law, and the same party continually objected to discovery requests, the subject of which was directed to the issues raised in the motion to dismiss. 9 Furthermore, it is sanctionable to first object to a discovery request and, after the objections are overruled, respond that no such documents exist . Such conduct has been found to constitute discovery abuse and improper delaying • 49 Craig Ball at www.craigball.com. 50 William F. Hamilton, Magistrate Judge Matthewman’s New E-Discovery Paradigm and Solving the E-Discovery Paradox, 71 Fla. L. R. 150 (2020). • civil procedure rules for e- discovery were developed by (i) adopting tested federal rules and (ii) distilling Florida common law authority into rules appropriate for the wide array of Florida case types and sizes .55 Because the Florida e- discovery rules are modeled on the federal rules, Florida trial courts are likely to find federal e- discovery decisions persuasive. 56 Florida courts will also seek guidance from decisions in other states with rules similar to Florida and federal rules. State court judges are also likely to be influenced • by the publications of e-discovery “think tanks” such The Sedona Conference®, 57 and EDRM58 which are private research groups of lawyers, judges and e- discovery vendors dedicated to develop ing e-discovery standards and best practices . The Sedona Conference® writings have been widely cited in the federal courts, especially its Sedona Principles59 and Cooperation Proclamation.60 Also especially helpful are its Glossary 61 of e-discovery related terms, and its commentaries on Search and Retrieval Methods, 62 Achieving Quality,63 and Litigation Holds,64 and its Primer on Social Media.65 In addition to publications by The Sedona Conference and models, guides, datasets and tools published by EDRM, m any excellent text and trade publications, including free online resources, are also available. 66 The Association of Certified E -Discovery Specialists (“ACEDS”) offers various certificates and certifications for attorneys, paralegals and e- discovery professionals. 67 • Florida Civil Procedure Rules and Judicial Administration Rules now expressly address issues raised by the use of digital technology in Florida Courts 68 and discovery of ESI. 69 Effective September 1, 2012, the Florida Supreme Court adopted several amendments to the Florida Rules of Civil Procedure 70 largely modeled on the 2006 Amendments to the Federal Rules of Civil Procedure. 71 Effective January 1, 2020, the Florida Supreme Court amended Fla. R. Civ. P. 1.380(e) ( Failure to Preserve Electronically Stored Information) to make it consistent with Federal Rule of Civil Procedure 37(e).72 Compatibility with federal rules enables Florida courts to use federal decisions on electronic discovery as persuasive authority 73 and ensures harmony of e- discovery law between cases in Florida state courts and cases in federal courts and other states. The Florida electronic discovery rules contain adjustments from their federal counterparts that arguably make the rules better suited to the broader range of state court cases. A chart comparing the Florida electronic rules and the federal rules is attached to this chapter as Appendix A. Specialized ESI discovery rules address the characteristics of electronically stored • 68 See, e.g., Fla. R. Jud. Admin. 2.420. 69 See In re: Amendments to the Fla. Rules of Civ. Procedure-2019 Regular-Cycle Report, 2019 Fla. LEXIS 2249 (Fla. Dec. 5, 2019); In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, 95 So. 3d 76 (Fla. 2012) . See also Fla. R. Civ. P. 1.285 (inadvertent disclosure of privileged material) . In addition, Florida’s 9th, 11th, 13th, and 17th Circuits have business or commercial litigation sections with special local administrative rules and processes for more complicated cases . These local rules include special handling of electronically stored information. Refer to local rules and comply with all requirements when handling cases assigned to a special commercial or business court. 70 Id. 71 FED. R. CIV. P. 16, 26, 33, 34, 37 and 45. The Federal Rules of Civil Procedure were amended, effective December 1, 2015. 72 See 2019 Committee Note to Fla. R. Civ. P. 1.380. 73 Federal courts have generated copious numbers of cases under the federal e-discovery rules since 2007, because federal district judges and magistrates regularly enter published discovery opinions and orders, which creates a body of useful written law that is largely absent in Florida state court. • production for privilege, privacy, and trade secrets 74 before it is disclosed. Today it is far more difficult and expensive to access, search, categorize, compile, and produce relevant ESI than in traditional paper productions when a modest number of documents were organized in centralized locations. Issues related to the spiraling cost issues of e- discovery contribute to the special treatment for ESI provided in the new rules and case law. Florida rules expressly provide that ESI is discoverable, 75 but they also require proportionality of expense. 76 Florida rules help maintain cost proportionality by providing an express framework for dealing with issues of preservation, production, and protection for hard- to-find and retrieve ESI and the media, equipment, and third- party Internet “cloud” storage websites that hold ESI. 77 A person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost. The • 78 Id. 79 Zubulake, 217 F.R.D. at 322; F.D.I.C. v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013) (requesting defendants ordered to pay part of the ESI discovery fees for its 94 separate production requests based on inaccessibility after analyzing Zubulake factors). 80 Compare Root v. Balfour Beatty Constr., LLC, 132 So. 3d 867,869 (Fla. 2d DCA 2014) (order compelling the production of social media discovery that implicates privacy rights demonstrates irreparable harm), with Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015) (photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established). • Florida rules also provide additional protection for inadvertently produced confidential and privileged information. 81 Rule 1.285, Florida Rules of Civil Procedure, establishes a process by which a party, person, or entity may retroactively assert privilege as to inadvertently disclosed materials, regardless of whether the inadvertent disclosure was made pursuant to “for mal demand or informal request.” 82 The privilege must be asserted within ten days of actual discovery of the inadvertent disclosure by serving a prescribed written notice of the assertion of privilege on the party to whom the materials were disclosed. 83 A party receiving notice under Rule 1.285(a) must promptly (1) return, sequester, or destroy the materials and any copies of the materials, (2) notify any other party, person, or entity to whom it has disclosed the materials of the fact that the notice has been served and of the effect of t he rule, and (3) take reasonable steps to retrieve the materials disclosed. 84 Rule 1.285 prescribes the manner in which a receiving party may challenge the assertion of privilege 85 and the effect of a court determination that privilege applies. 86 Counsel and parties often enter into “clawback” agreements stipulating that privilege is not waived by inadvertent disclosure connected with the • litigation and obtain a court order confirming the agreement.87 Because ESI and the modern computer devices and storage locations that create, hold, communicate, or manipulate ESI are complex and constantly evolving, sometimes expert assistance is needed to search and prepare ESI for production. Such expert assistance may involve legal as well as technical issues and tasks. The parties and court should consider the appointment of special masters or third- party neutral experts in appropriate cases. The developing principles for electronic discovery and the Committee Notes to the Florida Rules of Civil Procedure encourage cooperation and transparency by the parties during meetings between counsel early in a case to try to agree on the scope of preservation and discovery and methods of production. 88 Early "meet and confer" federal court requirements can be successful in managing e-discovery issues in large and small cases. Many Florida state court judges now require parties to meet and confer early to address e-discovery. Counsel is encouraged to bring any areas of disagreement to the court for resolution early in a case. These issues may also be addressed in a Rule 1.200 or Rule 1.201 case management conference. 89 Specific mention of case management • for electronically stored information is found in Rule 1.200 90 and in Rule 1.201 for cases that are declared complex. 91 In resolving these disputes courts must balance the need for legitimate discovery with principles of proportionality and the just, speedy and efficient resolution of the case.92 PROTECTING CLIENT CONFIDENCES AND DATA One of the foremost challenges in this complex data environment is the protection of the client’s confidential information, included personal protected information and privileged communications. Counsel must ensure that client information is protected and is disclosed only to the extent required by law or reasonably necessary to serve the client’s interest. 93 Court recordkeeping and filing is now done in electronic format in Florida courts . This makes unfettered third party electronic access to court records, including client information in the record, far easier than ever before. Accordingly, counsel should only put in the record that which is required or reasonably necessary to serve the client’s interest. If necessary, counsel should invoke the process of sealing private or sensitive information before the record becomes available as a public record. 94 In anticipation of electronic recordkeeping and the need for protection of privacy interests of parties and non- parties, the Florida Supreme Court enacted rules requiring lawyers to analyze and screen information for certain confidential information before it is placed in • the court record. 95 The scope of data requiring protection expands frequently. 96 At a minimum, pursuant to Rule 1.280(g), information should not be filed with the court absent good cause, which is satisfied only when the filing of the information is allowed or required by another applicable rule of procedure or by court order.97 The lawyer is obligated to know enough about the client’s computer systems and the locations of potentially relevant ESI to fully comply with discovery obligations . The client should also be fully informed of and guided in the process of preserving relevant information. At the same time, the client’s business processes and handling of data should be protected from unnecessary intrusion by perceived but unwarranted court - related obligations. DUTIES OF ATTORNEY AND CLIENT REGARDING PRESERVATION OF ESI Electronically stored information is by its very nature ephemeral and easily transportable. Relevant ESI is easily lost, altered, destroyed, or hidden. Therefore, steps need to be taken to ensure its preservation. The duty to preserve may arise for those who • 95 FLA. R. CIV. P. 1.280(g); 1.310(f)(3); 1.340(e); 1.350(d); and Fla. R. Jud. Admin. 2.420; 2.425. 96 See e.g., In re Amendments to Fla. Rule of Judicial Admin. 2.420 - 2017 Fast-Track Report, 233 So. 3d 1022 (Fla. 2018); FLA. R. JUD. ADMIN. 2.420 (Public Access to and Protection of Judicial Branch Records) . FLA. R. JUD. ADMIN. 2.420 was reorganized effective Sept. 21, 2006 (939 So. 2d 966) and amended effective Apr. 5, 2007 (954 So. 2d 16); Mar. 18, 2010 (31 So. 3d 756). Subsection 2.420(d) now contains twenty-two protected information categories which counsel and the clerk must designate and keep confidential when putting information in the court record. Subsection (d) alone was amended Oct. 1, 2010; July 7, 2011 (31 So. 3d 756); May 1, 2013 (SC11- 2466); Dec. 18, 2014 (SC14-569); Jan. 22, 2015 (SC14-2434); and Jan. 1, 2018 (SC17-2053). See Fla. R. Jud. Admin. 2.420 (History). See also FLA. R. CIV. P. 1.280(g); FLA. R. JUD. ADMIN. 2.425. 97 FLA. R. CIV. P. 1.280(g) provides: “Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule.” • 104 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). 105 See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005); Golden Yachts, Inc. v. Hall , 920 So. 2d 777, 781 (Fla. 4th DCA 2006). 106 See Metro. Opera Ass’n Inc. v. Local 100, Hotel Emps. and Rest. Emps. Int’l Union, 212 F.R.D. 178, 218-219 (S.D.N.Y. 2003); but see Thomas Allman, DETERRING E-DISCOVERY MISCONDUCT BY COUNSEL SANCTIONS: THE UNINTENDED CONSEQUENCES OF QUALCOMM V. BROADCOM, 118 Yale L.J. Pocket Part 161 (2009). • 107 Like their federal counterparts, Florida judges have statutory, rule- based, and inherent authority to sanction parties and their counsel for discovery violations and for spoliation. Judges are taught to seek out the source of the problem and administer a measured sanction that remedies the wrong committed. If the party is not the culprit, it makes little sense to administer the sanction against an innocent participant . See Ham v. Dunmire, 891 So. 2d 492, (Fla. 2004) (dismissal based solely on an attorney's neglect in a manner that unduly punishes a litigant espouses a policy that the Supreme Court of Florida does not wish to promote). Florida courts are not averse to applying appropriate sanctions to counsel. Id. at 498 (a trial court "unquestionably has power to discipline counsel" for discovery violations). 108 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). • Judge Scheindlin goes on to hold that “parties need to anticipate and undertake document preservation with the most serious and thorough care, if for no other reason than to avoid the detour of sanctions.” 111 Counsel should document their efforts to prove reasonableness in the event mistakes are made and relevant ESI deleted, despite best efforts. In any large ESI preservation, collection and production, some errors are inevitable, and Judge Scheindlin notes this on several occasions in Pension Committee, including the opening paragraph where she observes: In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. • provide a road map to practitioners on what needs to be done in order to preserve ESI from destruction, either intentional or accidental, and so avoid sanctions for spoliation. These and hundreds of other cases like it in the federal system are quite likely to be referred to and cited in state court proceedings. Although none of these federal cases are binding upon state court system, many judges find them persuasive, and the federal cases provide a starting point for further argument. The Florida Supreme Court has confirmed that a reasonable anticipation of litigation triggers the duty to preserve relevant information, 112 bringing Florida in line with the federal courts and the majority of other state jurisdictions. Effective January 1, 2020, the Florida Supreme Court amended Florida's discovery sanctions rule by adopting a rule substantially similar to Fed. R. Civ. P. 37(e),113 which provides that, if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. • Fla. R. Civ. P. 1.380(e) confirm s the common law rule that electronically stored information must be preserved when a party can reasonably anticipate litigation 114 and facilitates the use of federal case law as persuasive authority in the absence of Florida precedent. CONFERRING WITH OPPOSING COUNSEL Litigation c ounsel should meet and confer at the commencement of the case concerning all phases of the EDRM model, 115 which includes preservation scope and methods, collection verification, processing standards, search methods, review standards, and production format.116 Counsel should also discuss confidentiality concerns and related issues concerning the consequences and cure of the inadvertent disclosure of privileged information. It is now common in the federal system for parties to enter into “clawback” agreements and seek court orders under Fed. R. Civ. P. 502(d) protecting both sides from waiver from unintentional disclosure. 117 Florida has a n inadvertent disclosure rule, Rule 1.285, Florida Rules of Civil Procedure (Inadvertent Disclosure of Privileged Materials) . Notwithstanding Rule 1.285, c lawback agreements are advisable and should be encouraged by courts and strengthened by court order . Because these agreements and protections are completely reciprocal, it is difficult to • 114 Fla. R. Civ. P. 1.380(e) expressly uses language encompassing the reasonable anticipation of litigation trigger as follows: "If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery... ." (emphasis supplied). 115 https://edrm.net/edrm-model/. • imagine legitimate grounds to oppose this important safety net.118 Some judges require a meet and confer in cases that would benefit from discovery case management. See Appendix 3-3 , FIFTEENTH JUDICIAL CIRCUIT STANDING ORDER ON ELECTRONICALLY STORED INFORMATION DISCOVERY. 119 Of course, the parties can case manage their own electronic discovery by stipulation. Appendix 3.4 has a detailed stipulation available on the website of the Business Law Section of The Florida Bar. The stipulation can and should be tailored to a given case and provides an excellent and broad range of issues for discussion with the assistance of experts or IT personnel if available and merited. KEY WORD SEARCH, RELEVANCY AND SCOPE OF DISCOVERY Electronic document search predicts a likelihood that a particular document is relevant to the search. Search methodologies ranging from simple keyword, to more complicated keyword strings, to predictive coding algorithm identify only potentially relevant documents, viz. files. The fact that a document or file contains a keyword does not in and of itself make it relevant or discoverable. Example: Party A in a commercial case seeks discovery of all emails in the possession or control of Party B that relate to the same transaction that is at issue or similar transactions for the previous five years . Two key words selected by Party A are the word “cobalt” and the name “Prosser.” Party B is willing to run those key words and then select and produce discoverable, non- privileged documents. Party A contends that • 118 F ED. R. EVID. 502 orders, properly drafted, are enforceable in other courts, including state court . Clawback agreements in state court, even if entered in the form of a court order, generally do not have authority and application outside the particular litigation. 119 The Standing Order in Appendix 3-3 is also found at Electronically-Stored-Information-Discovery-Order.pdf (palm-beach.fl.us). • The predictive coding algorithms will continue to improve; the costs of e-discovery will continue to rise because of the volume of information; and the cost of the predictive coding will continue to decline under competitive pressures in the software mark et. The result is that increasingly counsel managing e-discovery will deploy predictive coding and technology assisted review in all sized cases.122 All search results should be checked for quality. The set of documents that have been identified for production as relevant should be checked by statistical sampling to determine whether any non -response documents are included in the production. Similarly, the set of documents determined to be non- relevant and not subject to production should be checked by statistical sampling to assure that no relevant documents have been excluded from the production set. The identification of marginally relevant documents in the excluded set (otherwise known as the “null” set) does not necessarily vitiate the entire search, but rather should be discussed with opposing counsel. Electronic discovery is not a game of perfection. COLLECTION AND REVIEW OF ESI After counsel and litigants are satisfied the ESI has been preserved from destruction, and often as part of those efforts, the potentially relevant ESI should then be carefully collected. This requires copying of the computer files in a manner that does not alter or delete relevant information, which typically includes the file metadata and information associated with the ESI (such as file name and file path) . Self-collection by the custodians themselves may be a dangerous practice in some circumstances due to their technical limitations and increased risk of accidental or intentional deletion of • vendors in e-discovery cannot discharge an attorney’s duty of competence and personal responsibility. 3. Inform the client of all obligations for discovery by both sides and develop a plan to protect privileged or private information. Again, counsel should be actively involved in client’s ESI preservation and collection efforts. 4. Work with the client and IT experts, if required, to develop a plan to collect and review ESI for possible production, including a review for private, privileged, or trade secret information that may be entitled to protection from open disclosure. Determinations of responsiveness, relevance, or qualification for confidentiality or privilege protections should not be delegated to the client, IT expert, or vendor as these are uniquely legal determinations for which counsel is responsible. 5. Determine the preferred format to make and receive production of ESI, typically either in the original native format, which would necessarily include all internal metadata of a document, or in some type of flat-file type PDF or TIFF format, with a load file containing the file’s internal metadata and extracted text. Metadata is an inherent part of all ESI and should be included in most productions . The removal of internal metadata from a document, which may include such information as who created the document, the date of creation, last date it was accessed, blind copy of an email, and the like, constitutes an alteration of the original electronic version of that document and is typically not desired or necessary. Counsel may make specific objections to the production of the contents of any metadata fields. 6. Do not underestimate the power of the “meet and confer” process. Although not required under the Florida rules, like it’s federal counterpart, Rule 1.200 (pretrial • procedure) gives the court latitude to consider the “possibility of an agreement between the parties regarding the extent to which . . . information should be preserved and the form in which it should be produced.” Some judges require a meet and confer in certain cases for good reason. Appendix 3-3 contains an example of an order requiring counsel to meet and confer. Discussing these issues with opposing counsel from the outset may reduce cost for the client, set early expectations on the amount of ESI that will be involved, and minimize potential issues down the line by agreeing on production file formats, date ranges, custodians and keyword searches. In some cases, opposing parties may even share a large part of the e-discovery cost by sharing a third-party vendor from which both parties access the files. 7. Determine whether expert legal or technical assistance, or both, may be needed to sort out legal or practical issues involving ESI and its media or equipment . Reach out to opposing counsel early to attempt to coordinate and cooperate on technical issues and set up lines of communication and cooperation between the IT technicians that may be retained by both sides to assist in the e- discovery efforts. It may be appropriate for the parties to retain third-party neutral experts in some cases with unusual or complex technical issues, or other e-discovery challenges, such as searches of large, disorganized collections of ESI. 8. Seek disclosure of the opposition’s preservation efforts and intended production formats, and what ESI they will seek discovery of, including metadata, if any . Send a request for the opponent to preserve electronically stored information as soon as possible and propound a formal discovery request at the earliest possible date. 9. Evaluate the reasonability and suitability of the opponent’s preservation, • collection, and production plans, including any search or production issues, and attempt early resolution of any disputes before any large productions to avoid expensive do-overs. Beware of keyword searching, which is frequently ineffective. Far better technological solutions are now available. 124 When keyword terms are used as part of a search and review protocol they should always be carefully tested and should never be blindly negotiated based on counsel’s intuitions. Counsel should discuss the recall and precision of any search. Precision measures the percentage of relevant documents are retrieved by the search; recall measures the percentage of relevant documents in the collection retrieved by the search. The production set and null set should be tested with random sampling. 10. Determine whether discoverable ESI is available from multiple sources, including third parties. Frequently ESI documents, such as e- mail or draft contracts that have been communicated to or handled by multiple parties will contain useful additional or even conflicting information. Some sources of information are more accessible than others, meaning they are easier or less costly to access . Upon a proper showing under the rules, parties must be required to obtain information from the least burdensome source, and the court must limit unreasonably cumulative or duplicative discovery. 125 11. Weigh the cost of ESI discovery and determine whether costs may be shifted to the requesting party or whether the cost of discovery outweighs the potential • 124 William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009); Ralph Losey, ADVENTURES IN ELECTRONIC DISCOVERY, Child’s Game of “Go Fish” is a Poor Model for e- Discovery Search (West Thomson Reuters, 2011); Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012). 125 FLA. R. CIV. P. 1.280(d) (the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive). • Effective September 1, 2012, the Florida Rules of Civil Procedure establish a workable framework for production of electronically stored information. A prominent issue for production of ESI involves the form of production, which can implicate the completeness and utility of the ESI produced as well of the cost of production if the ESI must be translated or converted into the requested form . Fortunately, the Florida R ules of Civil Procedure contemplate these issues as will be discussed below. Nonetheless, the most prudent course for counsel on both sides is to meet and confer on the form of production beforehand to avoid disappointment, motion practice, non- productive effort, and needless cost of repeated production. Courts do not demand agreement. Courts demand disciplined, informed good-faith negotiations. A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. 128 The form should usually be specified. The requesting party should consider the reasons for specifying a given form, such as: (1) Will the document’s native functionality be needed, such as a spreadsheet’s embedded calculations? (2) Will the native form 129 of the document be needed in order to determine the context in which the document was created or stored? (3) What are the format requirements of the software that the requesting party plans to use to review the production? If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use in the • 130 FLA. R. CIV. P. 1.350(b). 131 Id. ESI is usually “ordinarily maintained” in its native format, meaning the bit coding format used by the software in which the ESI was created. However, some companies utilize a process of converting documents from native to PDF or TIFF images. Electronic files are collections of encoded on and off values. However, a reasonably useable format may be ESI produced in load files with searchable metadata and extracted text. On some occasions, searchable PDF conversion of native files may be adequate if there is an agreement that the original metadata is not relevant. 132 Such an effort would be equivalent to the unsavory practice of shuffling unnumbered pages or removing file labels from folders before producing paper discovery to the opponent. • PRODUCTION OF ESI PURSUANT TO SUBPOENA Production of electronically stored information pursuant to subpoena potentially raises the now familiar issues of form of production, undue burden, and who pays the cost of production. Fortunately, effective September 1, 2012, the civil procedure rules specifically address these issues and provide a pathway for counsel and judges to negotiate these issues. The issue of form of production in response to a subpoena is much the same as the issues implicated in a Rule 1.350 request for production and amended Rule 1.410 addresses the issues in similar fashion. It makes abundant sense for the party issuing the subpoena to specify the preferred form of production. However, if a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. 136 Persons responding to a subpoena may object to discovery of ESI from sources that are not reasonably accessible because of undue costs or burden. 137 On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought, or the form requested is not reasonably accessible because of undue costs or burden. Once that showing is made, the court may order that the discovery not be had or may nonetheless order discovery limited to such sources or in such forms if the requesting party shows good cause, considering the limitations set out in Rule 1.280(d)(2). The court may specify conditions of the discovery, including ordering that • some or all of the expenses of the discovery be paid by the party seeking the discovery.138 Failure of the court or a party to make provision for cost of production from non-parties to produce subpoenaed documents is a departure from the essential requirements of the law and may remedied by certiorari review.139 The court will undoubtedly take into account whether the subpoena is directed to a party, or a person or organization controlled by or closely identified with a party, or to a person or entity totally unrelated to and disinterested in the case. Subpoenas to non- parties have become a major issue in discovery of ESI because an enormous amount of ESI is sent, stored, shared, or created on systems owned or controlled by third parties, including internet accessible sites. DISCOVERY OF SOCIAL MEDIA ESI Social media refers to a broad array of networking sites with varying participation by individuals, businesses, governmental bodies, and other organizations. Social media sites are proliferating in type, form, and content. No longer just a way for kids and young adults to connect about their current activities and status, social media has captured the attention of individuals of all ages as well as businesses, corporations, government entities, and virtually any organization or person that wants to reach target or broad audiences. Some of the more popular social media sites are Facebook , LinkedIn, Flickr, Instagram , YouTube, Snapchat®, and Twitter , but there are many more. Social media policies, agreements, structure, make- up, and culture all differ from site to site, which creates varied and complex data management and ownership issues and • 143 Artigliere, Brouillard, Gelzer, Reich, and Teppler, Diagnosing and Treating Legal Ailments of the Electronic Health Record: Toward an Efficient and Trustworthy Process for Information Discovery and Release, 18 THE SEDONA CONFERENCE JOURNAL 209 (2017), available online at https://s3.amazonaws.com/IGG/publications/EHR.TSC.Vol18.rev.pdf • subject.144 Florida case law 145 protects a responding party from over -intrusive inspections of its computer systems by the requesting party . Direct inspection of the opposition’s computer devices requires a showing of good cause before such an inspection is allowed. The rules, both state and federal, initially provide for the production of the relevant ESI stored on electronic devices, not the devices themselves. Generally, direct access to and inspection of the opposition’s devices is permitted in cases where the producing party’s search and production has not been competently or honestly performed.146 The background and reasoning for this law is set out in the Menke case: Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an “electronic filing cabinet.” Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought . In fact, even more information can be extracted, such as what internet sites an individual might access as well as the time spent in internet chat rooms. In civil litigation, we have never heard of a discovery request which would simply ask a party litigan t to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation. Requests for production ask the party to produce copies of the relevant information in those filing cabinets for the adversary. • computer or device of a party or witness or a person’s email account may lead to sanctions or admissibility 154 challenges and potential disqualification of counsel in egregious cases, such as where counsel has accessed privileged documents of the opposing party. 155 A basis for disqualification of counsel is if counsel has obtained, reviewed, and used privileged documents of the opposing party.156 Social media is a prolific source of information and a potential candidate for self - help discovery . Counsel should be familiar with the technology and characteristics of social media so as to be able to properly find, collect, and preserve information. For example, it may be important to know that the target person of a viewed LinkedIn  account will know who viewed their account unless the requesting person’s LinkedIn settings are set to not disclose such access. Another example involves Facebook  privacy settings. Only limited information is available about a Facebook subscriber except for persons accepted as “Friends.” However, it is unethical to “Friend” an opposing party or witness for the sole purpose of extracting additional information from them on Facebook.157 Information protected by Facebook privacy settings should be requested • CONCLUSION Discovery of ESI is potentially complicated, ever -changing, and extremely important in many cases. Counsel must be conversant enough with the terminology, law, rules, and technology to identify issues and fully advise the client on electronic discovery issues. • I. DO CUMENT REQUESTS Duty of Good Faith and Due Diligence Counsel and parties should conduct discovery timely, in good faith, and with due diligence. It is expected that everyone will cooperate and act courteously in all phases of the discovery process with a goal of fairly and efficiently exchanging information about the case so that it may be resolved in a timely, just, and cost-effective manner. Formulating Requests for Documents In addition to complying with the provisions of Rules 1.350 and 1.351, Florida Rules of Civil Procedure, a document request, whether a request for production or subpoena duces tecum, should be clear, concise, and reasonably particularized . For example, a request for “each and every document supporting your claim” or a request for “the documents you believe support Count II” is objectionably broad in most cases . Attorneys should never use requests for production to harass or improperly burden an adversary or to cause the adversary to incur unnecessary expense. 159 Use of Form Requests Counsel should review any standard form document request or subpoena duces tecum and modify it to apply to the facts and contentions of the particular case. A “boilerplate” request or subpoena not directed to the particular facts and issues involved in a case should not be used. Neither should burdensome “boilerplate” definitions or • instructions be used in formulating a document request or subpoena or instructions that create obligations on the part of the responding party that do not otherwise exist in the Florida Rules of Civil Procedure. Words used in discovery normally should carry their plain and ordinary meaning unless the particular case requires a special or technical definition, which should be specified plainly and concisely. Reading and Interpreting Requests for Documents An attorney receiving a request for documents or a subpoena duces tecum shall reasonably and naturally interpret it, recognizing that the attorney serving it generally does not have specific knowledge of the documents sought and that the attorney receiving the request or subpoena generally has or can obtain pertinent knowledge from the client. Attorneys should not strain to interpret the request in an artificially restrictive manner in order to avoid disclosure. Furthermore, evasive or incomplete disclosures, answers, or responses are treated as a failure to answer 160 and may be sanctionable.161 Contact When a Document Request is Received After becoming aware that an action has been initiated but before discovery is ever exchanged, an attorney should become generally familiar with the client’s records and storage systems, including electronically stored media, so that counsel may properly advise the client on production, preservation, and protection of relevant data, records , and the treatment of privileged or private information during litigation. 162 Then upon receiving a document request, counsel should promptly confer with the client and take reasonable steps to ensure that the client (i) understands what documents are requested, • be complied with fully or so that appropriate objections can be raised.171 Objections made to document requests should be specific, not generalized,172 and should be in compliance with the provisions of Rules 1.350(b) and 1.410(c), Florida Rules of Civil Procedure . Boilerplate objections such as “the request is overly broad, unduly burdensome, and outside the scope of permissible discovery” are insufficient without a full, fair explanation particular to the facts of the case. Federal courts have held that general objections without specificity are deemed a waiver of all objections.173 While this may not yet be the rule in Florida state courts, the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure. Florida courts often turn to federal courts for guidance when construing the Florida Rules of Civil Procedure.174 Objections to portions of a document request do not excuse the responding party from producing those documents to which there is no objection. 175 Specific objections should be matched to specific requests. Absent compelling circumstances, failure to assert an objection to a request for production within the time allowed for responding constitutes a waiver and will preclude a party from asserting the objection in response to a motion to compel. 176 When Production is Limited by Interpretation • 171 The Florida Bar Guidelines for Professional Conduct, Section G.1. 172 FLA. R. CIV. P. 1.350(b) (“[T]he reasons for the objection shall be stated.”). 173 See Memorandum Opinion and Order Regarding the Court’s Order to Show Cause Why Counsel for Both Parties Should Not be Sanctioned for Discovery Abuses rendered March 13, 2017, Liguria Foods, Inc. v. Griffith Laboratories, Inc., Case No. C 14- 3041-MWB, United St ates District Court Northern District of Iowa; see also Opinion & Order rendered February 28, 2017, Fischer v. Forrest, et al., Case No. 14 Civ. 1304, United States District Court Southern District of New York. 174 TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339, 341–42 (Fla. 4th DCA 2001). 175 FLA. R. CIV. P. 1.350(b) (“If an objection is made to part of an item or category, the part shall be specified.”). 176 American Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981). • If a party objects to a request as overbroad when a narrower version of the request would not be objectionable, the documents responsive to the narrower version ordinarily should be produced without waiting for a resolution of the dispute over the scope o f the request. When production is limited by a party’s objection, the producing party should clearly describe the limitation in its response. Supplementation of Document Production A party who has responded to a request for production with a response that was complete when made is under no duty to supplement its response with information the party later acquires. 177 Claim of Privilege A party who responds to or objects to discovery requests and who withholds information otherwise discoverable by asserting that the information is privileged or subject to other protection from discovery must assert a claim expressly and must describe the nature of the documents, communications, or things not produced or disclosed, such that, without revealing the privileged or protected information itself, the description will enable other parties to assess the applica bility of the privilege or protection. 178 Withholding materials without notice is contrary to the intention of Rule 1.280(b)(6), Florida Rules of Civil Procedure, and may result in sanctions . If a motion to compel is filed, the party asserting a protection has the obligation to establish by affidavit or other • Because a party is entitled to discovery both by deposition and by interrogatory, it is ordinarily insufficient to answer an interrogatory by reference to an extrinsic matter, such as “see deposition of Eugene Swanson” or “see insurance claim.” For example, a corporation may be required to state its official, corporate response even though one of its high-ranking officers has been deposed because the testimony of an officer may not necessarily represent a complete or express corporate answer . Similarly, a reference to a single document is not necessarily a full answer, and the information in the document— unlike the interrogatory answer—is not ordinarily set forth under oath . In rare circumstances, it may be appropriate for a corporation or partnership to answer a complex interrogatory by saying something such as “Acme Plumbing Company adopts as its answer to this interrogatory the deposition testimony of Eugene Swanson, its Secretary, on pages 33 –76 of his deposition transcript.” This may suffice when an individual has already fully answered an interrogatory in the course of a previous deposition and the party agrees to be bound by this testimony . However, counsel are reminded, as provided in Rule 1.380(a)(3), Florida Rules of Civil Procedure, that for purposes of discovery sanctions, an evasive or incomplete answer shall be treated as a failure to answer. Interrogatories Should be Reasonably Particularized Interrogatories designed to force an exhaustive or oppressive catalogue of information are generally improper. For example, an interrogatory such as “identify each and every document upon which you rely in support of your second affirmative defense” is objectionably overbroad in a typical case, although it may be appropriate, for example in a simple suit on a note. While there is no simple and reliable test, common sense and • good faith usually suggest whether such an interrogatory is appropriate. Producing Records in Lieu of Answering Interrogatories Under certain circumstances, a party may be permitted to produce records in lieu of answering interrogatories.199 When an answer to an interrogatory may be derived from documents (including electronically stored information) and the burden of deriving the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, the party answering the interrogatory may produce documents in lieu of answering the interrogatory. 200 However, the party wishing to respond to interrogatories in this manner must observe the following practices as required by Rule 1.340(c), Florida Rules of Civil Procedure: • Specify the documents to be produced in sufficient detail to permit the interrogating party to locate and identify the records and to ascertain the answer as readily as could the party from whom discovery is sought, or identify a person who will be available to assist the requesting party in locating and identifying the records at the time they are produced. 201 • Give the requesting party an opportunity to inspect and make copies of the records. 202 • Produce electronically stored information in the form in which it is ordinarily • maintained or in a reasonably usable form.203 It is to the benefit of the answering party to make the document search as simple as possible, or the answering party may be required to answer the interrogatory in full. Answering Objectionable Interrogatories If any interrogatory is objectionable because of overbreadth, the responding party, although objecting, must answer the interrogatory to the extent that the interrogatory is not overbroad. In other words, an objection for overbreadth does not relieve the duty to respond to an interrogatory, to the extent that is not overbroad, while a party awaits a judicial determination regarding the objection. III. REQUESTS FOR ADMISSION Number and Scope of Requests for Admission Requests for admissions should be used sparingly and never to harass or impose undue burden or expense on adversaries . A party may only serve 30 requests for admission (including all subparts) on any other party. 204 Leave of court, upon motion and notice and for good cause, is required if any party would like to serve more than 30 requests, unless the parties stipulate to a larger number. 205 If requests for admission are served with the initial process, the responding party has 45 days to respond. Otherwise, responses are due within 30 days of service. 206 All requests for admissions should be within the scope of general discovery rules.207 Responding to Requests for Admission • W hen responding to requests for admissions served pursuant to Rule 1.370, the responding party is required to state each discovery request in full as numbered, followed by the answer, objection or other response.208 If any portion of a request remains unanswered, the requested admission may be deemed admitted. The response should specifically deny the matter or set forth in detail the reasons why the responding party cannot truthfully admit or deny the matter . If parts of the statement are true and parts of the statement are untrue, the answering party must still specify that some of the requested matter is true and then qualify or deny the remainder. 209 If the court determines that an answer does not comply with the rule requirements, it may order either that the matter is admitted or that an amended answer must be served. 210 Under certain conditions, the court may allow a late response. Objections Reasons for an objection must be stated.211 An answering party cannot give lack of information or knowledge as a reason for failing to admit or deny a request unless the party states that the party has made a reasonable inquiry and determined that the information known or readily obtainable is insufficient to enable the party to admit or deny the request. 212 Asserting Fifth Amendment Privilege While Rule 1.370(b) of the Florida Rules of Civil Procedure purports to make • the designated area(s) of inquiry.230 Additional resources addressing the proper conduct of Rule 1.330(b)(6) depositions include Robert D. Peltz and Robert C. Weill, Corporate Representative Depositions: In Search of a Cohesive & Well Defined Body of Law,231 and, Carriage Hills Condo., Inc. v. Jbh Roofing & Constr., Inc.232 Conclusion The proper, ethical and professional conduct of depositions in Florida is addressed in almost every circuit through various guidelines for professional conduct, discovery handbooks and local rules. Counsel must educate themselves on these guidelines and rules, and at all times rise to the level of professionalism expected of members of The Florida Bar. • 230 Discovery Practice Middle District of Florida – rev. 6/5/15. 231 33 NOVA L. REV. 393 (2009). 232 109 So. 3d 329 (Fla. 4th DCA 2013). • circumstances, whether the opinion differs from that of other qualified experts or recognized authorities and treatises, and any relationship or circumstance that may give rise to bias on the part of the expert. 237 Discovery as to these factors therefore should be broad enough for the opposing party to challenge the expert and the expert’s testimony, especially the expert’s credibility. 238 Accordingly, when engaging in discovery to obtain facts with which to assault the credibility of an opponent’s expert witness, a party may seek that information from multiple sources including: (1) the party for whom the expert will testify; (2) the party’s insurance company; (3) the expert; and, in certain circumstances, (4) the attorney for the party. II. Discovery Served on a Party • Florida Rule of Civil Procedure 1.280(b)(5) ( Trial Preparation: Experts ) confines both the discovery methods that may be employed when directed to expert witnesses and the subject matter of that discovery. 239 Specifically, Rule 1.280(b)(5)(A) provides, in relevant part, that the discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 1.280(b)(1) 240 and which are “ acquired or • Rule 1.280(b)(5)(A)(i) allows a party to obtain information about another party’s expert “initially only through the vehicle of interrogatories.” 243 Until these interrogatories have been served, discovery by other means is impermissible. 244 Rule 1.280(b)(5)(A)(ii) thereafter allows a party to depose without order any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial. It is important to note that an “expert,” as the term is used in Rule 1.280(b)(5), is an “expert witness” as • 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 discoverable thing.”). 241 It is significant to note that the only mention of the word “retained” in FLA. R. CIV. P. 1.280(b)(5) is in Rule 1.280(b)(5)(B). See FLA. R. CIV. P. 1.280(b)(5)(B) (referring to “an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial”) (emphasis added). It appears that over time, and likely because of the advent of treating physician experts, trial courts started referring to Rule 1.280(b)(5)(A) experts as “retained” experts. Rather than correct the nomenclature, the authors of this chapter have defined these types of experts as “retained” experts. 242 FLA. R. CIV. P. 1.280(b)(5)(A) (emphasis added). 243 Smith, 96 So. 3d at 1103 (quoting Cont’l Ins. Co. v. Cole, 467 So. 2d 309, 311 (Fla. 4th DCA 1985). 244 Smith, 96 So. 3d at 1103 (citations omitted) . See Miller v. Harris, 2 So. 3d 1070, 1073 (Fla. 2d DCA 2009) (holding trial court departed from essential requirements of law by ordering subpoena to issue before determining whether usual interrogatories would provide the limited information normally discoverable in an automobile negligence action). • defined in Florida Rule of Civil Procedure 1.390(a).245 Further discovery by other means may be ordered upon motion, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of the rule regarding fees and expenses, as the court may deem appropriate.246 Rule 1.280(b)(5)(A) additionally provides that production of an expert’s financial and business records may be required “only under the most unusual or compelling circumstances” 247 and that an expert witness may not be compelled to compile or produce non-existent documents.248 2. “Financial” or “Litigation Bias” Discovery • One manner by which a party may attack the credibility of a witness is by exposing a potential bias. 249 As it relates to a “retained” expert, bias may be demonstrated by revealing an expert’s receipt of financial remuneration for testifying and an expert’s financial or business interest in supporting the opinions expressed . Accordingly, a party is entitled to discover a “retained” expert’s potential for “financial” or “litigation bias” (i.e., the bias that would stem from an expert’s general involvement in litigation), as set forth below. Prior to 1994, some trial courts had permitted broad discovery into the private financial affairs of experts far beyond what was reasonably necessary to fairly litigate the potential for bias and which was invasive and harassing and threatened to chill the • willingness of experts to become involved in litigation. In Syken v. Elkins, 250 the Third District Court of Appeal, en banc , quashed a trial court order requiring the “retained” experts in the case to produce expansive private financial information, including tax returns and information regarding patients who were examined for purposes of litigation in unrelated actions. In doing so, the Syken court fashioned various criteria for financial discovery and a methodology that balanced a party's need to obtain financial bias discovery regarding a “retained” expert with the need to protect the expert’s privacy rights. 251 The Syken court’s criteria subsequently was adopted in full by the Florida Supreme Court in Elkins v. Syken, 252 and codified, in part, in Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii), later renumbered as Rule 1.280(b)(5)(A)(iii).253 Subsection (iii) of Rule 1.280(b)(5)(A) unquestionably was implemented to protect “retained” experts from the annoyance, embarrassment, oppression, undue burden, or expense associated with discovery of financial information. 254 Rule 1.280(b)(5)(A)(iii) accordingly provides as follows: (iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial: • 250 644 So. 2d 539 (Fla. 3d DCA 1994), approved, 672 So. 2d 517 (Fla. 1996). 251 Id. at 546. 252 672 So. 2d 517 (Fla. 1996). 253 IN RE AMENDMENTS TO FLA. R. CIV. PRO.--ELEC. DISCOVERY, 95 So. 3d 76, 80 (Fla. 2012). 254 See FLA. R. CIV. P. 1.280 (Committee Notes 1996 Amendment). • Given the purpose of financial discovery - to expose potential bias to the jury - courts have ruled that the financial bias information available under Rule 1.280(b)(5)(A)(iii) usually is sufficient to accomplish this purpose. 256 Thus, an expert generally “shall not be required to disclose his or her earnings as an expert witness or income derived from other services,”257 and a trial court must make a finding of “the most unusual or compelling circumstances” before an expert is required to do so.258 The rule clearly limits discovery of the “retained” expert’s general financial information where such information is sought solely to establish bias. 259 3. “Relationship Bias” Discovery • Another way bias may be demonstrated is by revealing an expert’s relationship with a party or a party’s attorney or law firm. Accordingly, Florida courts have permitted broad discovery into a “retained” expert’s potential for “relationship bias” (i.e., the bias • that stems from a “retained” expert’s involvement with a party, an agent for a party, such as a particular insurance carrier, or a party’s attorney or law firm), as set forth below.260 After the Florida Supreme Court’s ruling in Elkins, parties were limited in the type of discovery they could obtain for impeachment purposes to the information set forth in Rule 1.280(b)(5)(A)(iii). Subsequently, in Allstate Ins. Co. v Boecher, the court recognized the need for allowing more extensive relationship bias discovery to assist counsel in impeaching examining physicians and other “retained” experts by demonstrating the experts’ economic ties to insurance companies or defense law firms.261 In Boecher, the plaintiff had sued his uninsured motorist insurance company and was seeking from it discovery of the identity of cases and the amount of fees paid by the insurance company to its “retained” expert during the preceding three years . The precise issue before the court was whether its prior ruling in Elkins and former Rule 1.280(b)(4)(iii) prevented discovery requests from being propounded directly to a party regarding the extent of that party’s use of and payment to a particular “retained” expert.262 The Boecher court ultimately ruled that the limitations on expert discovery adopted in Elkins could not be used to shield discovery sought from a party regarding its relationship with its expert, particularly its financial relationship.263 It reasoned that where • 260 See e.g., Allstate Ins. Co. v Boecher, 733 So. 2d 993, 997 (Fla. 1999) (ruling that w here discovery is directed to a party about the extent of that party’s relationship with a particular expert, “the balance of the interests shifts in favor of allowing the pretrial discovery”); Morgan, Colling & Gilbert v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001) (ruling that had merits of case been considered, trial court’s order requiring plaintiff’s law firm to produce certain financial relationship documents would have conformed to trend of i nsuring fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a party or representative). 261 733 So. 2d 993 (Fla. 1999). 262 Id. at 994 (emphasis added). 263 Id. at 998. • discovery is directed to a party about the extent of that party’s relationship with a particular expert, “the balance of the interests shifts in favor of allowing the pretrial discovery.” 264 The court distinguished Elkins and emphasized that Elkins involved discovery propounded directly on the party’s expert regarding the extent of that expert’s relationship with others.265 Additionally, the court reasoned that the information being requested by the plaintiff in Boecher was directly relevant to a party’s efforts to demonstrate to the jury the expert’s bias by demonstrating the expert’s “ongoing relationship” with the party. 266 T he court explained that t he more extensive the financial relationship between a party and a witness, the more likely it is that the witness has a vested interest in that financially beneficial relationship continuing.267 It opined that a jury is entitled to know the extent of the financial connection between the witness and a party and the cumulative amount a party has paid an expert during their relationship. 268 It further opined that a party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness’s financial incentive to continue the financially advantageous relationship.269 The court in Boecher therefore concluded that “the jury’s right to assess the potential bias of the expert outweighs any of the competing interests expressed in • Elkins.”270 It further clarified that the protections afforded “retained” experts under Elkins and former Rule 1.280(b)(4)(iii) were not intended “to place a blanket bar on discovery from parties about information they have in their possession about an expert, including the party’s financial relationship with the expert.” 271 Courts in Florida subsequently have extended the holding in Boecher to allow a plaintiff to obtain discovery directly from an insured party defendant regarding the relationship between the defendant’s insurer and the defendant’s “retained” expert. 272 Florida courts additionally have extended Boecher ’s application to plaintiffs and have ruled that defendants are entitled to obtain from plaintiffs Boecher discovery regarding plaintiffs’ “retained” experts (i.e., “Reverse Boecher”).273 B. “Consulting” Experts • As to experts retained in anticipation of litigation or in preparation for trial, but who are not expected to be called as a witness at trial (i.e., a “consulting” expert), Rule 1.280(b)(5)(B) provides that a party may discover facts known or opinions held by such experts only as provided in Rule 1.360(b) or “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain • 270 Id. at 998. 271 Id. 272 See e.g., Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000) (“Where an insurer provides a defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is discoverable from the insured.”). 273 See e.g., Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001) (opining that trial court’s order requiring plaintiff’s law firm to produce deposition and trial transcripts in its possession of plaintiff’s expert witnesses and copies of billing invoices submitted by experts to law firm for previous three years conformed to trend of insuring fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a party or representative); Springer, 769 So. 2d at 1069 (“[A] defendant may question a plaintiff about any relationship between his or her attorney and the plaintiff’s trial expert.”). • In addition to the “retained” experts specifically identified in Rule 1.280(b)(5), Florida courts have recognized other types of “experts” about whom and from whom discovery is permitted. These types of experts are identified and discussed below. 1. “Pure” and “Hybrid” Treating Physicians • 274 FLA. R. CIV. P. 1.280(b)(5)(B) (emphasis added). 275 Muldow v. State, 787 So. 2d 159 (Fla. 2d DCA 2001); Myron By & Through Brock v. Doctors Gen., Ltd., 573 So. 2d 34 (Fla. 4th DCA 1990). See infra, p. 17 Miscellaneous Issues. 3. Discovery Regarding Expert Not Testifying at Trial. 276 See e.g., Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA 2012), disagreed with on other grounds in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct. 12, 2017) (“For purposes of uncovering bias, we see no meaningful distinction between a treating physician witness, who also provides an expert opinion (the so- called ‘hybrid witness’), and retained experts.”); State Farm Mut. Auto. Ins. Co. v. German, 12 So. 3d 1286, 1287 (Fla. 5th DCA 2009). See also Field Club v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (noting for purposes of expert witness fees as a taxable cost that physician could properly be considered a retained expert witness because, even though he was plaintiff’s treating physician, he also gave his expert opinions on plaintiff’s injuries and their significance); Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) (rejecting black letter rule whereby testimony offered by treating physician is never considered f or purposes of a one-expert-per-side limitation). 277 See Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (finding F LA. R. CIV. P. 1.280(b)(3) did not apply to sworn statement taken by defendant from subsequently treating dentist without notice to plaintiff in malpractice case because treating physician, “while unquestionably an expert , [did] not acquire his expert knowledge for the purpose of litigation” as the rule contemplates) (emphasis added) . See Gutierrez v. Vargas, 239 So. 3d 615, 622-23 (Fla. 2018); Clair v. Perry, 66 So. 3d 1078, 1079 n. 1 (Fla. 4th DCA 2011); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998). • physician may hold the same qualifications as a “retained” expert witness, “treating physicians form medical opinions in the course of rendering treatment and may therefore testify to the fact that they formed those opinions, and explain why they did so, provided such testimony is otherwise admissible.” 278 A “hybrid” treating physician, in contrast, has characteristics of both a “pure” treating physician and a “retained” expert. In one regard, the physician is a “fact” witness, a mere treating physician. In another regard, the same physician also provides expert opinions at trial regarding causation, the permanency of injuries, prognosis, and the need for, and cost of, future treatment . Hence, the “hybrid” treating physician is not a typical “pure” treating physician that a patient independently sought out, nor is she a witness retained merely to give an expert opinion about an issue at trial. 279 2. Opinion Discovery Discovery as to the facts and opinions held by “pure” or “hybrid” treating physician expert witnesses in cases where a party is making a claim for personal injury damages is permitted pursuant to Florida Rule of Civil Procedure 1.280(b), because the care and treatment of a party is relevant and not privileged. A party may seek to obtain discovery of this type of information pursuant to Florida Rule of Civil Procedure 1.280(a) by way of written interrogatories, requests for production of documents, requests for admissions, • and physical and/or mental examinations.280 In addition, Florida Rule of Civil Procedure 1.390(b) provides that an expert’s testimony may be taken at any time before the trial in accordance with the rules for taking depositions.281 3. “Financial” or “Litigation Bias” Discovery • “A treating physician, like any other witness, is subject to impeachment based on bias.”282 Notwithstanding, trial courts have grappled with the scope and breadth of financial or litigation bias discovery regarding treating physicians in that “[t]estimony given by treating physicians blurs the boundary between fact testimony and expert testimony….” 283 A thoughtful explanation of the issue of whether a party is entitled to discovery regarding a treating physician is set forth in State Farm Mut. Auto. Ins. Co. v. German.284 In his concurring opinion, Judge Torpy explained that a treating physician, like any other witness, may be questioned at trial concerning any bias he or she might have for or against a party. 285 He noted that a treating physician who devotes a substantial portion of his or her practice to expert testimony on behalf of plaintiffs might have a bias towards plaintiffs just as a “retained” expert, and thus, inquiry at trial to expose that potential bias is permitted. 286 He reasoned that it logically followed then that pretrial • in a slightly different context, the Florida Supreme Court in the case of Gutierrez v. Vargas likewise focused on the role played by the physician, rather than the rule- of-thumb label of “treating physician” in ultimately deciding the issue of whether a treating physician was a mere “fact witness” or an expert subject to the “one expert per specialty” at trial limitation. 293 Accordingly, discovery of financial or litigation bias information as to treating physicians, regardless of whether the treating physician is deemed to be a “pure” treating physician or a “hybrid,” is permissible. Logic and reason dictate, however, that a treating physician expert is entitled to the same protection from overly intrusive general financial bias discovery afforded to “retained” experts under Rule 1.280(b)(5)(a)(iii). 294 Determination as to the scope and extent of this type of discovery will need to be made by the trial judge on a case-by-case basis. 295 Additionally, obtaining this type of discovery directly from the plaintiff may prove inadequate because the plaintiff may not have possession, custody, or control of the treating physician’s relevant documents . A party • seeking this type of discovery will likely need to seek and obtain it from the treating physician directly.296 4. “Relationship Bias” Discovery • In contrast, relationship bias discovery as to treating physicians, regardless of classification, is severely restricted, especially when such discovery is sought from the plaintiff. In Worley v. Cent. Fla. Young Men's Christian Ass'n, Inc. , the Florida Supreme Court addressed the issue of whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is discoverable. 297 In Worley, the defense had asked plaintiff during her deposition if plaintiff’s law firm had referred her to plaintiff’s treating physicians . It then propounded discovery on plaintiff seeking to discover the existence of a referral relationship between plaintiff’s law firm and plaintiff’s treating physicians. 298 The Florida Supreme Court ultimately held that the financial relationship between a plaintiff’s law firm and a plaintiff’s treating physicians was not discoverable from the plaintiff or the plaintiff’s law firm. 299 • 296 See infra, p. 97 DISCOVERY SERVED DIRECTED ON THE EXPERTS. 297 Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15- 1086, 2017 WL 4547140 (Fla. Oct. 12, 2017). 298 Id. at 20 (noting that defendant had propounded three sets of Boecher interrogatories directed to specific doctors employed by three medical providers and a supplemental request to produce directed to plaintiff’s law firm). 299 Id. at 22-25. The Worley decision resulted in disparate treatment between plaintiff and defense litigants, the Fourth and Fifth District Courts of Appeals recently certified to the Supreme Court of Florida, as a matter of great public importance, the questions of whether Worley should be applied to protect both the defendant’s insurer and law firm, who are not parties to the litigation, from having to disclose financial relationships with retained experts. Younkin v. Blackwelder, No. SC19-385, 2019 WL 2180625 (Fla. 5th DCA 2019), Dodgen v. Grijalva, 281 So. 3d 490, 492 (Fla. 4th DCA 2019), and Barnes v. Sanabria, No. 5D19-1461, 2020 WL 250460 (Fla. 5th DCA 2020). • In reaching its decision, the Worley court observed that several Florida courts had extended Boecher to allow discovery of the financial relationship between law firms and treating physicians. 300 It noted that Boecher had dealt with the discovery of expert witnesses who had been retained for the purpose of litigation, whereas the discovery at issue in Worley dealt with treating physicians . The court found though that the “relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its retained expert.” 301 It explained that a treating physician “typically” testifies concerning the physician’s own medical performance on a particular occasion and does not opine about the performance of another.302 The court in Worley additionally held that the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney -client privilege, and the defense is precluded from discovering this type of protected information from the pl aintiff and plaintiff’s law firm. 303 Left unresolved by Worley , however, is the issue of whether this type of discovery is available from the treating physician or medical provider directly. 304 • In recent years, trial courts have observed an increased use by health care providers of “letter of protection” (“LOP”) agreements.305 The existence of an LOP undeniably gives the provider of medical treatment under an LOP (an “LOP Provider”) a financial interest in the outcome of the plaintiff’s personal injury case.306 Limited discovery from the plaintiff regarding the existence of an LOP in a case therefore is crucial in demonstrating the LOP Provider’s potential bias in the litigation. 307 As with treating physicians, trial courts similarly have grappled with the scope and breadth of discovery regarding LOP Providers. 308 1. Opinion Discovery. Discovery as to the facts and opinions held by an LOP Provider in cases where a party is making a claim for personal injury damages is permitted pursuant to Florida Rule of Civil Procedure 1.280(b), because the care and treatment of a party is relevant and not • privileged.309 A party may seek to obtain discovery of this type of information about an LOP Provider pursuant to Rule 1.280(a) by way of written interrogatories, requests for production of documents, and requests for admissions.310 Florida Rule of Civil Procedure 1.390(b) likewise allows for the testimony of an LOP Provider to be taken at any time before the trial in accordance with the rules for taking depositions. 311 2. “Financial” or “Litigation Bias” Discovery. Discovery of financial or litigation bias information as to an LOP Provider is permissible for the same reasons it is permissible for “pure” and “hybrid” treating physicians. 312 O btaining this type of discovery directly from the plaintiff, however, may prove inadequate because the plaintiff may not have possession, custody, or control of the LOP Provider’s relevant documents. A party seeking this type of discovery will likely need to seek and obtain it from the LOP Provider. 313 3. “Relationship Bias” Discovery. Based on the Florida Supreme Court’s ruling in Worley, it would appear that Boecher-type relationship bias discovery from the plaintiff regarding an LOP Provider’s relationship with the plaintiff’s law firm (including any referral relationship) is similarly restricted. 314 A party seeking this type of discovery will need to seek and obtain it from • the LOP Provider.315 III. Discovery Served Directly on the Experts A. “Retained” Experts 1. Opinion Discovery Generally. A party may obtain by deposition from a non-party “retained” expert the same type of expert opinion discovery available from a party.316 Rule 1.280(b)(5)(A) provides that a party is entitled to know the “facts known and opinions held by experts.” 317 Rule 1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed” under Rule 1.390. 318 Accordingly, a party may depose a retained expert witness and obtain the facts known and opinions held by that expert. 2. “Financial” or “Litigation Bias” Discovery A party may obtain by deposition from a non-party “retained” expert the same type of financial or litigation bias discovery available from a party. 319 The deposing party is entitled to discover the financial or litigation bias listed in Rule 1.280(b)(5)(A)(iii) . Rule 1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed” under Rule 1.390. 320 Accordingly, a party may depose a “retained” expert witness and obtain financial or litigation bias discovery from that expert. • 315 See infra, p. 97 DISCOVERY SERVED DIRECTLY ON THE EXPERTS. 316 See supra, p. 105 DISCOVERY FROM A PARTY. 317 FLA. R. CIV. P. 1.280(b)(5). 318 FLA. R. CIV. P. 1.280(b)(5)(a)(ii). 319 See supra, p. 105 DISCOVERY FROM A PARTY. 320 FLA. R. CIV. P. 1.280((b)(5)(a)(ii). • 3. “Relationship Bias” Discovery Pursuant to the Florida Supreme Court’s rationale in Boecher, it would appear that relationship bias discovery regarding a “retained” expert is available only from a party. In Boecher, the Florida Supreme Court’s justification for expanding the discovery of impeachment information beyond what it had pronounced was the limit three years earlier in Elkins was that the discovery at issue in Boecher was served directly to a party.321 Hence, it would appear that neither party is entitled to this type of impeachment information in a deposition of the other party’s “retained” expert.322 B. “Consulting” Experts Because the identity of a “consulting” expert is protected by the work -product privilege, it would appear that neither party is entitled, at least initially, to any type of discovery directly from a consulting expert. 323 C. Non-Party Medical Providers 1. Opinion Discovery A party generally may obtain by deposition from a “pure” or “hybrid” treating physician or an LOP Provider the same type of expert opinion discovery available from a party. 324 Rule 1.280(b)(5)(A) provides that a party is entitled to know the “facts known and opinions held by experts.”325 Rule 1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or otherwise as a person expected to be called as an expert • 321 Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999). 322 See id. 323 See supra, p. 105 DISCOVERY FROM A PARTY. 324 Id. 325 FLA. R. CIV. P. 1.280(b)(5). • witness at trial may be deposed” under Rule 1.390.326 Accordingly, a party may depose a “pure” or “hybrid” treating physician or an LOP Provider and obtain the facts known and opinions held by that type of expert. 2. “Financial” or “Litigation Bias” Discovery A party generally may obtain by deposition from a “pure” or “hybrid” treating physician or an LOP Provider the same type of financial or litigation bias discovery available from a party. 327 Rule 1.280(b)(5)(A)(ii) provides that any person who is “disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed” under Rule 1.390. 328 Additionally, Florida Rule of Civil Procedure 1.310(b)(6) allows a party to depose a corporation or other entity that is not a party to the case. The party seeking discovery is required to describe, with reasonable particularity, the matters for examination.329 The corporation must then produce one or more witnesses who can testify as to the corporation's knowledge of the specified topics.330 This method of discovery enables the deposing party to gather information from the corporation by way of a human being named by that corporation to serve as the corporation's voice. The person(s) designated to testify represents the collective knowledge of the corporation.331 As the corporation's voice, the witness does not simply testify about matters within his or her personal knowledge, but • 326 FLA. R. CIV. P. 1.280(b)(5)(a)(ii). 327 See supra p. 105 DISCOVERY FROM A PARTY. 328 FLA. R. CIV. P. 1.280(b)(5)(a)(ii). 329 See FLA. R. CIV. P. 1.310(b)(6). 330 See id. 331 See Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA 2013). • D. LOP Discovery The Florida Supreme Court in Worley expressly stated that three items of discovery related to an LOP are available to the defense – (1) the LOP, (2) the percentage of the provider’s practice based on patients with LOPs, and (3) higher than normal medical bills.336 Specifically, the court opined that: • Accordingly, it would appear under Worley that these three types of discovery may be obtained directly from an LOP Provider.338 • the second category of discovery permitted in Giacalone have allowed discovery as to the amount received or accepted by the provider – not merely the amount charged or billed by the provider.343 Because of the relevance of the amount of damages in personal injury actions, Florida courts have found that defendant tortfeasors in such actions are entitled to obtain from a non-party provider the same three categories of “reasonableness” information the Giacalone court ruled was available to the defendant patient against the plaintiff provider.344 Indeed, discovery of this type of information appears to have been endorsed by the court in Worley.345 Perhaps the best explanation for why defendant tortfeasors are allowed to conduct • 343 See id; Laser Spine Inst., LLC v. Makanast, 69 So. 3d 1045, 1046 (Fla. 2d DCA 2011); Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson, 33 So. 3d 148, 150 (Fla. 4th DCA 2010); Katzman, M.D. v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011); Crable v. State Farm Mut. Auto. Ins. Co., No. 5:10–CV–402–OC–37TBS, 2011 WL 5525361, at *10 (M.D. Fla. Nov. 14, 2011). 344 See Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493, 495 (Fla. 2d DCA 2013) (applying Giacalone and stating that it did not matter who was seeking the information – the patient himself or a third -party defendant in a personal injury suit) . See also Columbia Hosp, 33 So. 3d at 150 (“We conclude that Defendants sufficiently explained below why they needed the information: in order to dispute, as unreasonable, the amount of medical expenses that the plaintiff will seek to recover from them, if the hospital charges non- litigation patients a lower fee for the same medical services.”); Katzman, M.D. v. Rediron Fabrication, Inc ., 76 So. 3d 1060, 1062, 1064 (Fla. 4th DCA 2011) (allowing discovery of the amounts collected over four years from health insurance compared to letters of protection for the same type of surgery as was performed in that case because the “limited intrusion into the financial affairs of the doctor in this case is justified by the need to discover case- specific information relevant to substantive issues in the litigation, i.e., the reasonableness of the cost and necessity of the procedure”); Makanast, 69 So. 3d at 1046; Crable, 2011 WL 5525361, at *10 (holding that nonparty, Dr. Deukmedjian, was required to provide information to the defendant regarding among other things, (1) the amount received by Deuk Spine in reimbursement from Medicare and private insurers for the same procedures performed on plaintiff, (2) what fields are searchable in Deuk Spine's medical billing software, (3) what other healthcare providers reimburse for the procedures performed on plaintiff, and (4) whether Deuk Spine negotiates lower rates for patient medical bills as a standard part of its practice). 345 See Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23- 24 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct. 12, 2017) (“Additionally, medical bills that are higher than normal can be presented to dispute the physician's testimony regarding the necessity of treatment and the appropriate amount of damages.”). But see Baker Cty. Med. Servs., Inc. v. Aetna Health Mgmt., LLC, 31 So. 3d 842, 845 (Fla. 1st DCA 2010) (“In determining the fair market value of the services, it is appropriate to consider the amounts billed and the amounts accepted by providers with one exception . The reimbursement rates for Medicare and Medicaid are set by government agencies and cannot be said to be ‘arms-length.’” • this discovery as to non- party medical providers was stated by the Fourth District Court of Appeal in Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson. 346 In Columbia Hosp., the trial court had ordered a non- party hospital in a personal injury action to produce certain confidential information as to the amounts charged by the hospital to different categories of patients for a particular medical procedure. 347 In concluding that the defendants had sufficiently explained their need for such information as a means by which to dispute as unreasonable the amount of the plaintiff’s medical expenses, the court noted as follows: [A] hospital's cost to provide a service no longer bears much relationship to what it charges, but reimbursement rates from third party payors give hospitals an incentive to set their usual charges at an artificially high amount, from which discounts are negotiated; cost -shifting results in discriminatorily high charges to uninsured patients, in that every patient is billed at full charges, but only the uninsured are expected to pay those amounts; as a result, actual charges are not instructive on what is r easonable; instead, Defendants argue, a realistic amount is what hospitals are willing to accept.348 • 346 Columbia Hosp., 33 So. 3d at 150. 347 Id . at 149. In particular, the defendants sought discovery from the hospital regarding the particular procedure the plaintiff had performed at the hospital, including the amount the hospital had charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients. 348 Id. at 150, n. 3. 349 Id. (emphasis added). • IV. Discovery from a Party’s Attorney or Law Firm. A. Regarding “Retained” Experts There appears to be only one Florida state court case addressing “retained” expert discovery propounded directly on a law firm.350 In Morgan, Colling & Gilbert, P.A. v. Pope, the Second District Court of Appeal held that the discovery was permissible. 351 The reasoning for allowing the discovery directly on the law firm was because neither of the “retained” experts were able in depositions to “provide sufficient information regarding its financial relationship with Morgan Colling.” 352 The court noted in dicta that had the “retained” experts provided the information, the discovery on the law firm would have been “moot or inappropriate.”353 The decision in Pope is noteworthy for three reasons . First, the dicta appears to be contrary to the Florida Supreme Court’s reasoning in Boecher. The discovery at issue in Pope was the same kind of relationship bias discovery at issue in Boecher. In Boecher, the Florida Supreme Court stated that the relationship bias discovery was permissible only because it was propounded on the party. Thus, it is curious that the Second District, in Pope, reasoned that the relationship bias discovery should have been propounded first upon the non-party expert. Second, Worley did not abrogate or even disagree with Pope. The holding in Worley applies only to treating physicians and LOP Providers, not the “retained” experts involved in Pope. Third, the Pope court never expressed any opinion as to whether the discovery should have been propounded on the party (in the form of • interrogatories and requests to produce) as opposed to the law firm . Because the “retained” expert bias discovery is available under ordinary discovery to a party, it would seem that trial courts should exercise their discretion to prohibit such discovery on a law firm (which could involve a corporate representative deposition of the law firm) in favor of ordinary expert discovery on a party seeking the same information as discussed in the preceding sections. B. Regarding Non-Party Medical Providers In Worley, the Florida Supreme Court disagreed with the rulings of two cases involving LOP Provider expert discovery propounded on a law firm. 354 The court disagreed with these rulings because it believed the “relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its “retained” expert.”355 Accordingly, the financial relationship between a plaintiff’s law firm and a plaintiff’s treating physician is not discoverable from the plaintiff’s law firm.356 • 354 Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 23 n.4 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15- 1086, 2017 WL 4547140 (Fla. Oct. 12, 2017), (disagreeing with Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co. , 103 So. 3d 200, 206 (Fla. 4th DCA 2012); and Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So. 3d 1178 (Fla. 4th DCA 2014)). 355 Id. at 23. The close reading of the facts in Worley reveals it is not a case involving discovery served on a law firm. Compare Worley, 228 So. 3d at 20, in which the Supreme Court suggested that the supplemental request to produce was propounded on Morgan and Morgan – the law firm, with Worley, 163 So. 3d at 1243, in which the Fifth District stated that the supplemental request was propounded upon Worley – the party. Thus, it is unclear whether the Florida Supreme Court actually was expressing disapproval with the functionality of discovery upon a law firm generally, or whether the disagreement with the Fifth District’s opinion was based only on the substance of the discovery – the financial relationship between the plaintiff’s law firm and the LOP Provider . In any event, because expert bias discovery is available under ordinary discovery to a party, it would seem that trial courts should exercise their discretion to prohibit discovery on a law firm (which could involve a corporate representative deposition of the law firm) in favor of ordinary expert discovery on a party seeking the same information as discussed in D ISCOVERY FROM NON-PARTY EXPERTS 3.c. and DISCOVERY FROM A PARTY’S ATTORNEY OR LAW FIRM 1. 356 Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 25 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15- 1086, 2017 WL 4547140 (Fla. Oct. 12, 2017). • V. Privacy Rights of Non-Parties & Non-Party Medical Records Privacy rights, statutory law,357 and common sense dictate that discovery of non- party medical records and information is severely restricted.358 The issue has arisen most often in association with experts who do a Compulsory Medical Examination (“CME”) and are asked to provide records or information from records of CME’s for other patients . Simply redacting the names of patients does not necessarily resolve privacy and patient confidentiality issues, and the issues of undue burden and relevance are also associated with such requests. 359 Section 456.057(7)(a)(3), Florida Statutes (2018), as it has been interpreted and applied by Florida courts, creates “a broad and express privilege of confidentiality as to the medical records and the medical condition of a patient.” 360 The clear terms of the statute prohibit the production of a nonparty patient’s medical records, and they prohibit discussion about a nonparty patient's medical condition without prior notice to that • nonparty.361 Similarly, an interrogatory to a party requesting that the party furnish a “general summary of the opinions and basis of the opinions” offered by his medical experts in other cases has been found to invade the privacy rights of non- parties, as protected by the referenced statute.362 VI. Discovery Regarding Expert Not Testifying at Trial While a party is entitled to reasonable discovery from and about a testifying expert witness, such access changes when the expert is withdrawn from the witness list. A party is entitled to discover facts known or opinions held by an expert who has been retained by a party in anticipation of litigation or preparation for trial and who is not expected to testify at trial, only as provided in Florida Rule of Civil Procedure 1.360(b). 363 Alternatively, such discovery may be had 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. 364 Thus, an expert witness that is not expected to testify in trial may not be deposed except upon such a showing of exceptional circumstances. Where a party, through expert interrogatory answers, initially discloses a particular expert as a witness at trial, but later withdraws the expert from the party’s trial witness list, the opposing party is precluded from taking the expert’s deposition absent a showing • 361 Crowley, 66 So. 3d at 358. See also Brana v. Roura, 144 So. 3d 699, 700 (Fla. 4th DCA 2014) (noting that section 456.057(7)(a), Florida Statutes, requires notice to patients whose medical records are sought before issuance of a subpoena for records by a court of competent jurisdiction). 362 Coopersmith, 91 So. 3d at 246 (denying discovery where nonparty CME patient information was requested from party as opposed to compulsory medical examination physician). 363 FLA. R. CIV. P. 1.360(b) (Report of Examiner). 364 State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493, 498 (Fla. 5th DCA 2014). • of compelling circumstances. 365 However, where a party withdraws the expert’s name from the party’s trial witness list after the expert gives testimony unfavorable to that party, such testimony may be allowed to be presented at trial . If the opposing party hires the expert or lists the expert on the party’s trial witness list and calls the witness to testify at trial, the trial court has the discretion to allow the jury to be told that the opposing party originally retained the expert. 366 However, if a party retains an expert, then chooses not to call the expert at trial due to the expert’s unfavorable testimony, and the opposing party chooses to use the expert’s deposition in the party’s case- in-chief, the opposing party may not be permitted to establish that the other party previously retained the expert. 367 VII. Northup Discovery In Florida, a party may serve discovery requests and is entitled to receive copies of depositions, witness statements, surveillance videos, and other impeachment -type materials in the opposing party’s possession if it is reasonably anticipated by the opposing party that the items requested are going to be used for purposes of impeachment at trial.368 In Northup v. Acken, the Florida Supreme Court held “that if attorney work product is expected or intended for use at trial, it is subject to the rules of discovery.” 369 Specifically, the court articulated the decision litigants must make before the entry of a • 365 Rocca v. Rones, 125 So. 3d 370, 372 (Fla. 3d DCA 2013). 366 See Broward Cty. v. Cento, 611 So. 2d 1339, 1340 (Fla. 4th DCA 1993); DISCOVERY, CIVPRAC FL-CLE 16-1.D.6. (12th ed. 2017). 367 Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938 (Fla. 5th DCA 1982) . See also Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968 (Fla. 3d DCA 2002) (finding that opposing party should not have been allowed, on its direct examination, to bring out fact that expert was originally plaintiff's expert where plaintiff had dismissed party that expert had determined was negligent and opposing party at trial had failed to list that expert on its trial witness list). 368 See Northup v. Acken, 865 So. 2d 1267, 1272 (Fla. 2004). 369 Id. • insured should be afforded the same protections as are afforded to plaintiffs for Rule 1.360 and workers’ compensation examinations.” Discovery of the CME Examiner Notably, t here are third -party privacy concerns for the court to consider when analyzing discovery directed to CME examiners. Section 456.057(7)(a), Florida Statutes requires notice to patients whose medical records are sought before issuance of a subpoena for the records by a court of competent jurisdiction. Simply redacting the non- party patients’ information is not enough. 406 Consider Judge May’s concurring opinion in Coopersmith relative to the Court’s frustration with this type of discovery practice. I concur with the majority in its reasoning and result, but write to express my concern over recent discovery issues we have seen. We are increasingly reviewing orders on discovery requests that go above and beyond those relevant to the case. Attorneys a re propounding interrogatories and making requests for production, which require physicians to divulge private, confidential information of other patients, and to “create” documents. • In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore [the] financial interests of medical witnesses and the volume of referrals to those witnesses. See Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). And now, attempts to expand the scope of that discovery to treating physicians [,] as well as retained experts[,] are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over - strained justice system, it further taints the public’s view of our profession. 407 • The work product privilege protects from discovery “documents and tangible things otherwise discoverable” if a party prepared those items “in anticipation of litigation or for trial.”410 There is no requirement in this rule that for something to be protected as work product, it must be an item ordered to be prepared by an attorney. 411 Materials may qualify as work product even if no specific litigation was pending at the time the materials were compiled. Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim. 412 The standard to be applied in the First, Second, Third and Fifth District Courts of Appeal in determining whether documents are protected by the work product doctrine, is whether the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future. 413 Prior to 2015, the Fourth District applied a slightly stricter standard, finding that documents were not work product unless they were prepared when the probability of litigation was substantial and imminent, 414 or, they were prepared after the claim had already • accrued.415 However, the 4th DCA joined the other DCA’s in Millard Mall Servs. v. Bolda,416 with a dissent endorsing the continued use of the standard. When a party asserts the work product privilege in response to a request for production, the party need only assert in their response the objection and reason for the objection. It is not required that the objecting party file with the objection an affidav it documenting that the incident report was prepared in anticipation of litigation. If the opposing party wants to pursue the request over the objection, the party seeking to compel may file a motion challenging the status of the document as work product. The party asserting the privilege must then show that the documents were prepared in anticipation of litigation. 417 Under Rule 1.280(b)(3), Florida Rules of Civil Procedure, a party may obtain discovery of an opposing party’s “documents . . . prepared in anticipation of litigation . . . only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Therefore, the party requesting such privileged material has a considerable burden to show that the party has both a significant need and an undue hardship in obtaining a substantial equivalent. 418 Need and undue hardship “must be demonstrated by affidavit or sworn testimony.”419 Documents protected by the assertion of work product protection must not be lightly invaded, but only upon a particularized showing of need satisfying the criteria set forth in Rule • 415 Compare Liberty Mut. Fire Ins. Co. v. Bennett, 883 So. 2d 373, 374 (Fla. 4 th DCA 2001), quashed 905 So. 2d 119 (Fla. 2005). 416 Bolda, 155 So. 3d 1272 (Fla. 4 th DCA 2015) (Reports created in the course of shopping mall’s investigations were protected from disclosure under the work produce doctrine; a lawsuit need not be filed for information gathered in an accident investigation to qualify for work product protec tion). 417 Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855 (Fla. 2d DCA 1997). 418 Metric Eng’g, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003) (need and undue hardship need to be shown to justify compelling production of protected work product); CXS Transp., Inc. v. Carpenter, 725 So. 2d 434, 435 (Fla. 2d DCA 1999). 419 N. Broward Hosp. Dist. V. Button, 592 So.2d 367 (Fla. 4th DCA 1992); but see Columbia Hosp. Corp. of Broward v. Fain, 16 So.3d 236 (Fla. 4th DCA 2009) (constitutional amendment on patient rights to discovery records for adverse medical incidents not pre-empted by work product assertion). • litigation, and when this is so the reports are not work product. For example, reports prepared solely for personnel reasons, such as to decide whether an employee should be disciplined, are not work product. 435 However, even if an incident report is prepared for one reason not in anticipation of litigation, it will still be protected as work product if it was also prepared for litigation purposes. 436 Claims Files A party is not entitled to discovery related to the claim file or the insurer’s business practices regarding the handling of claims until the obligation to provide coverage and damages has been determined.437 However, the claims file may be discoverable when an insurer is sued for bad faith after any coverage dispute has been settled.438 Surveillance Video • 2d 301, 305-306 (Fla. 4th DCA 2001); Carson v. Jackson, 466 So. 2d 1188, 1191 (Fla. 4th DCA 1985); see also Jaffee v. Redmond, 518 U.S. 1, 10-12 (1996) (In 1996, the United States Supreme Court held that the psychotherapist privilege serves the public interest and, if the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled.). 444 Nelson v. Womble, 657 So. 2d 1221, 1222 (Fla. 5th DCA 1995) (citing Sykes v. St. Andrews Sch., 619 So. 2d 467, 469 (Fla. 4th DCA 1993)). 445 See Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1476 (11th Cir. 1984) (applying Florida law to a claim for mental anguish due to medical malpractice); Belmont v. N. Broward Hosp. Dist., 727 So.2d 992, 994 (Fla. 4th DCA 1999) (no privilege after patient ’s death in proceeding in which party relies upon condition as element of claim or defense); Nelson, 657 So. 2d at 1222 (psychotherapist-patient privilege did not preclude discovery in personal injury action seeking loss of consortium and infliction of mental anguish); Scheff v. Mayo, 645 So.2d 181, 182 (Fla. 3d DCA 1994) (mental anguish from rear -end motor vehicle accident); Sykes v. St. Andrews Sch ., 619 So. 2d 467, 468 (Fla. 4th DCA 1993) (emotional distress from sexual battery); F.M. v. Old Cutler Presbyterian Church, Inc., 595 So.2d 201, 202 (Fla. 3d DCA 1992) (allegations of sexual, physical and emotional abuse of a minor placed her mental state at issue and waived her right to confidentiality concerning her mental condition); Arzola v. Reigosa, 534 So.2d 883 (Fla. 3d DCA 1988) (post-accident mental anguish damages arising out of an automobile/bicycle collision barred the plaintiff from invoking the psychotherapist-patient privilege). Compare Nelson, 657 So.2d at 1222 (determining loss of enjoyment of life as a claim for loss of consortium) with Partner-Brown v. Bornstein, D.P.M., 734 So.2d 555, 556 (Fla. 5th DCA 1999) (“The allusion to loss of enjoyment of life, without more, does not place the mental or emotional condition of the plaintiff at issue so to waive the protection of section 90.503.”). 446 Arzola, 534 So. 2d at 883; Connell v. Guardianship of Connell , 476 So.2d 1381 (Fla. 1st DCA 1985); Helmick v. McKinnon, 657 So.2d 1279, 1280 (Fla. 5th DCA 1995) (In the context of personal injury actions, pre-accident psychological and psychiatric records are relevant to determine whether the condition existed before the accident). See Palm Beach Cty. Sch. Bd. v. Morrison, 621 So.2d 464, 469 (Fla. 4th DCA 1993) (rejecting the argument that the plaintiff waived the psychotherapist-patient privilege because it was not timely asserted and reasoning that because it was asserted before there was an actual disclosure of the information for which the patient claimed the privilege, section 90.507, Florida Statutes was not applicable). • produced does not amount to a significant part of the matter or communication for which the privilege is being asserted.447 The waiver provision contained in section 90.507, Florida Statutes (2018) will apply, however, when information previously produced in discovery is considered a substantial part of the patient’s claim of privilege.448 Limited voluntary disclosure of some aspects of the psychotherapist-patient privileged matters or communications will not constitute a waiver.449 The exception to the privilege does not apply merely because the patient’s symptoms accompanying a physical injury are of a type which might arguably be associated with some separate mental or emotional condition. 450 In addition, a claim for loss of enjoyment of life, • 447 Id.; Garbacik v. Wal-Mart Transp., LLC, 932 So. 2d 500, 503- 504 (Fla. 5th DCA 2006) (citing Sykes v. St. Andrews Sch., 619 So.2d 467, 469 (Fla. 4th DCA 1993)). Commercial Carrier Corp. v. Kelley , 903 So.2d 240, 241 (Fla. 5th DCA 2005) (no waiver of privilege recognized, even though patient voluntarily disclosed some aspects of the privileged matters or communications during her deposition by admitting that she had been prescribed anti-depressants for her post-traumatic stress disorder following the horrific traffic crash at issue, since the plaintiff never placed her mental state a material element of any claim or defense); Olson v. Blasco, 676 So.2d 481, 482 (Fla. 4th DCA 1996) (A defendant’s listing of therapists’ names in response to a criminal discovery request does not waive the privilege in a wrongful death action stemming from the same facts when there is no showing that there will be a defense based on a mental condition.); Bandorf v . Volusia Ct y. Dept. of Corrections, 939 So.2d 249, 250 (Fla. 1st DCA 2006) (worker’s compensation plaintiff claiming fatigue and neurological symptoms from physical injuries does not place emotional or mental condition at issue); Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006) (The psychotherapist-patient privilege is not waived in joint counseling sessions). Bandorf, 939 So.2d at 251 (upholding the privilege in a worker’s compensation action involving an employees’ repetitive exposure to mold, toxic substances and chemicals in the workplace which led the employee to suffer fatigue and neurological symptoms). Byxbee v. Reyes, 850 So.2d 595, 596 (Fla. 4th DCA 2003) (quoting Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999)). 448 Garbacik, 932 So.2d at 503; Morrison, 621 So. 2d at 468; Yoho v. Lindsley, 248 So.2d 187, 192 (Fla. 4th DCA 1971). 449 Weinstock v. Groth, 659 So.2d 713, 715 (Fla. 5th DCA 1995) (plaintiff able to assert privilege because she had not placed her mental condition at issue in her defamation action); Cruz -Govin v. Torres, 29 So.3d 393, 396 (Fla. 3d DCA 2010) (“The statutory exception applies when the patient, not the opposing party who seeks the privileged information, places his mental health at issue.”). 450 Oswald v. Diamond, 576 So.2d 909, 910 (Fla. 1st DCA 1991) (reversing in part a trial order granting a motion to compel discovery of medical records to the extent that medical testimony and reports not pertaining to the diagnosis and treatment of a mental or emotional disorder may exist). • “without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.”451 The party seeking to depose a psychotherapist or obtain psychological records bears the burden of showing that the patient’s mental or emotional condition has been introduced as an issue in the case. 452 What is more, if a plaintiff has not placed his or her mental condition at issue, the defendant’s sole contention that the plaintiff’s mental stability is at issue will not overcome the privilege. The privilege does not protect from discovery any relevant medical records of a psychiatrist or other medical provider made for the purpose of diagnosis or treatment of a condition other than mental or emotional ailments. 453 Thus, relevant medical records that do not pertain to the diagnosis or treatment of a mental, emotional or behavioral disorder are not privileged and should be produced even if they are maintained by a psychiatrist . On the other hand, records made for the purpose of diagnosis or treatment of a mental, emotional or behavioral condition that may contain other medical information, such as physical examinations, remain privileged and are not subject to disclosure. 454 Florida law recognizes that a plaintiff who has incurred a physical injury may allege and • prove physical pain and suffering as an element of a claim for monetary damages. 455 The term “pain and suffering” has not been judicially defined, however, Florida courts have provided a number of factors that may be considered by the trier of fact in awarding damages for pain and suffering.456 These factors recognize that pain and suffering has a mental as well as a physical component. Physical pain and suffering, absent mental anguish, can impair the enjoyment of life.457 Section 90.503(2) specifically applies to communications and records “including alcoholism and other drug addiction.” In the cases noted below, the trial court allowed discovery of defendant driver’s treatment for drug addiction post -accident, inasmuch as the complaint alleged that the defendant driver was under the influence of drugs and alcohol at the time of the accident, other discovery supported that allegation, and defendant’s answer denied being under the influence. On review, the appellate courts stated that the defendant did not abrogate the privilege by denying the allegations of the complaint, the plaintiff did not establish the existence of any of the other exceptions to the privilege, and they granted certiorari, and quashed the orders. 458 It is worth noting that in David J. Burton, D.M.D., P.A. v. Becker , 516 So.2d 283 (Fla. 2d DCA 1987) the court held that medical records of the physician’s treatment for drug abuse were subject to disclosure in a medical malpractice case, because section 397.053(2), Florida Statutes (1985), permitted a court to order disclosure of drug treatment records when good cause is shown. However, Section 397.053 was repealed effective October 1, 1993. The 2009 amendment to Chapter 397 contains section 397.501, which provides for the rights of clients receiving • Consider Brown v. Montanez, 90 So.3d 982, (Fla. 4th DCA 2012) where the Court held that where the criminal defendant was sent to drug related treatment as a result of his bond and not as a negotiated criminal plea agreement with the Court, there had been no Court ordered examination of the mental or emotional condition of the patient under § 90.503(4)(b), Fla. Stat. (2011). DISCOVERY OF LAWYER-CLIENT PRIVILEGED COMMUNICATIONS • communication to discovery . A waiver by the client of part of the privileged communications, serves as a waiver as to the remainder of the communications about the same subject.461 In Southern Bell Tel. & Tel. Co. v. Deason, 462 the Florida Supreme Court set forth the following criteria to judge whether a corporation’s communications are protected by the attorney- client privilege: (1) the communication would not have been made but for the contemplation of legal services; (2) the employee making the communication did so at the direction of his or her corporate superior; (3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services; (4) the content of the communication relates to the legal services being rendered, within the scope of the employee’s duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents. • discoverable in a subsequent criminal case involving the insured, and, the presence of criminal defense counsel at the EUO did not waive the privilege.464 PRIVILEGE LOGS Rule 1.280(b)( 6), Florida Rules of Civil Procedure , provides, in part, that a party withholding information from discovery claiming that it is privileged shall make the claim expressly, and shall describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protections . It has been suggested that the privilege log should include at a minimum (for documents), sender, recipients, title or type, date and subject matter. 465 The United States District Court for the Southern District of Florida has promulgated a Local Rule for the content required in a privilege log. 466 In at least one instance, that Local Rule has served as guidance for a Florida court.467 Guidance for the content required in a privilege log can also be found in the Civil Discovery Handbook for the United States District Court Middle District of Florida.468 The failure to file a privilege log can result in a waiver of the attorney -client privilege.469 However, that is not a common sanction, and Florida courts generally recognize that such a sanction should be resorted to only when the violation is serious. 470 The failure to submit a • 464 Reynolds v. State, 963 So.2d 908 (Fla. 2d DCA 2007) (“The examination is part of the insurer’s fact gathering for the dual purposes of (1) defending the insured, and (2) determining whether the policy covers the incident giving rise to the claim against the insured.”). 465 Bankers Sec. Ins. Co. v. Symons, 889 So.2d 93 (Fla. 5th DCA 2004). 466 Local Rule 26.1(e)(2), U.S. District Court, Southern District of Florida (Rev. 12/1/20). 467 TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). 468 Middle District Discovery, a Handbook on Discovery Process (Feb. 1, 2021). 469 Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1129 (Fla. 2014). 470 Gosman, 937 So. 2d at 293; Nevin v. Palm Beach Cty. Sch. Bd., 958 So. 2d 1003 (Fla. 1st DCA 2007) (citing Matlock v. Day, 907 So. 2d 577 (Fla. 5th DCA 2005)). • lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information’s receipt. The opinion is not intended to address metadata in the context of discovery documents. Inadvertent disclosure does not always involve disclosure to the opposing party. Privileged materials may be inadvertently disclosed to a party’s own expert. In that circumstance, a party does not automatically waive the privilege simply by furnishing protected or privileged material. The court will consider whether the expert relied upon the material in forming his or her opinion. 483 • diligence and good faith of counsel.487 2. OTHER FORMS OF DISCOVERY Preservation of objections to other forms of discovery is generally accomplished in accordance with the Rule of Civil Procedure applicable to that particular method of discovery. For instance, objections to interrogatories served under Rule 1.340 are preserved by serving any objections to the interrogatories within 30 days after service of the interrogatories. If objections are served, the party submitting the interrogatories may move for an order under Rule 1.380(a) on any objection to or in the event of f ailure to answer an interrogatory . Similarly, in the case of production of documents under Rule 1.350, a party objecting to the production of documents shall state its objection in the written response to the document production request, in which event the party submitting the request may seek an order compelling the discovery in accordance with Rule 1.380. Similar procedures exist for the production of documents and things without a deposition under Rule 1.351 and for the examination of persons under Rule 1.360. The timely filing of objections to written discovery as described above effectively stays any obligation of the party objecting to the discovery to provide same until such time as the objections are ruled upon. This does not, of course, prevent the court from granting an award of attorneys’ fees or other sanctions under Rule 1.380 in the event that the court finds that the objections were without merit. With respect to the necessity for filing a privilege log when withholding information from discovery claiming that it is privileged, see Chapter Eight, Privilege Logs. • The language of Rule 1.380(a)(2) of the Florida Rules of Civil Procedure, authorizing a party to move the court to compel production of discovery, applies to all civil litigation matters: If a deponent fails to answer a question propounded or submitted under rule 1.310 or 1.320, or a corporation or other entity fails to make a designation under rule 1.310(b)(6) or 1.320(a), or a party fails to answer an interrogatory submitted under rule 1.340, or if a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted under rule 1.360(a) objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party’s custody or legal control for examination, the discovering part y may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request. 488 • 506 Z anathy v. B each Harbor C lub Ass’n, 343 So. 2d 6 25 (Fl a. 2d DCA 1 977). It is likely an abuse of discretion to strike a party’s pleadings based on a non- party’s refusal to comply with discovery requests. Haverfield Corp. v. Franzen, 694 So. 2d 162 (Fla. 3d DCA 1997) (Shevin, J., dissenting in part). 507 CB Condos., Inc. v. GRS S. Fla., Inc., 165 So. 3d 739, 741 (Fla. 4th DCA 2015). 508 Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006). 509 Id. at 780. • The failure to make the required findings in an order requires reversal. 526 In Ham v. Dunmire ,527 the Florida Supreme Court held that participation of the litigant in the misconduct is not required to justify the sanction of dismissal. Relying on its prior decision in Kozel v. Ostendorf,528 the court held that the litigant’s participation, while “extremely important,” is only one of several factors that must be weighed: [A] litigant’s involvement in discovery violations or other misconduct is not the exclusive factor but is just one of the factors to be weighed in assessing whether dismissal is the appropriate sanction. Indeed, the fact that the Kozel Court articulated six factors to weigh in the sanction determination, including but not limited to the litigant’s misconduct, belies the conclusion that litigant malfeasance is the exclusive and deciding factor. The text of the Kozel decision does not indicate that litigant involvement should have a totally preemptive position over the other five factors, and such was not this Court’s intent. Although extremely important, it cannot be the sole factor if we are to properly administer a smooth flowing system to resolve disputes. • OPINION & ORDER Andrew J. Peck, United States Magistrate Judge *1 It is time, once again, to issue a discovery wake -up call to the Bar in this District: 1 the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must: • Third, the responses to requests 1-2 stating that the requests are “overly broad and unduly burdensome” is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections. See , e.g., Mancia v. Mayflower Textile Servs. Co. , 253 F.R.D. 354, 358 (D. Md. 2008) (Grimm, M.J.) (“[B]oilierplate objections that a request for discovery is ‘over[broad] and unduly burdensome, and not reasonably calculated to lead to the • Conclusion The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now -current Rules and update their “form” files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege). • 320 F.R.D. 168 United States District Court, N.D. Iowa, Central Division. LIGURIA FOODS, INC., Plaintiff, v. GRIFFITH LABORATORIES, INC., Defendant. No. C 14– 3041–MWB | Signed March 13, 2017 Synopsis Background: Manufacturer of pepperoni products brought action against spice supplier, alleging on claims for breach of implied warranty of fitness for a purpose and breach of implied warranty of merchantability that spices delivered were defective and caused spoilage, leading to economic damages. Order was entered to show cause why counsel for both parties should not be sanctioned for discovery abuses. • No party has the unilateral ability to dictate the scope of discovery based on their own view of the parties’ respective theories of the case because litigation in general and discovery in particular are not one sided. Fed. R. Civ. P. 26(b)(1). 1 Cases that cite this headnote • Concepts of materiality, relevancy, and discoverability are not fixed; parties can change their views of the necessity of certain information or their theories of the case during the course of discovery as new facts and relationships are revealed or explained. Fed. R. Civ. P. 26(b)(1). Cases that cite this headnote • Merely asserting boilerplate objections that the discovery sought is vague, ambiguous, overbroad, unduly burdensome, et cetera, without specifying how each interrogatory or request for production is deficient and without articulating the particular harm th at would accrue if the responding party were required to respond to the proponent’s discovery requests is not adequate to voice a successful objection. Fed. R. Civ. P. 33, 34. 6 Cases that cite this headnote • It is not a valid objection that interrogatories or requests for documents are “premature” if they were propounded after the time specified in the governing provisions and there was no order specifying the timing of discovery on any specific issues. Fed. R. Civ. P. 26(d)(1), (d)(2). Cases that cite this headnote • Federal Civil Procedure Depositions and Discovery Federal Civil Procedure Failure to respond; sanctions • There is no limitation on the sequence of discovery and a party cannot delay responding to discovery simply because the other party has not yet responded to its discovery. Fed. R. Civ. P. 26(d)(3). Cases that cite this headnote • When an objecting party makes no attempt to show specifically how each interrogatory or request for production is not relevant or how each question is overly broad, burdensome, or oppressive, and no attempt to articulate the particular harm that would accrue if the responding party were required to respond to the proponent’s discovery requests, but relies, instead, on the mere statement that the interrogatory or request for production was overly broad, burdensome, oppressive, and irrelevant, the response is not adequate to voice a successful objection; instead, the response is an unacceptable “boilerplate” objection. Fed. R. Civ. P. 33, 34. 7 Cases that cite this headnote • Imposition of sanctions against parties was not warranted for making general objections to discovery requests or “boilerplate” objections to certain specific requests, since parties had cooperative and professional relationship during discovery, counsel di d everything that court might expect them to do to confer and cooperate to work out issues about scope of discovery, parties’ reliance on improper “boilerplate” objections was result of local “culture” of protectionist discovery responses, parties did not try to raise frivolous defenses for their conduct when called on it, and parties were able to work out most of their discovery disputes through consultation and cooperation. Fed. R. Civ. P. 33 , 34. 12 Cases that cite this headnote • The “natural and probable consequences” of “boilerplate” objections to an interrogatory or request for production is delay and impediment of discovery, not the narrowing of issues and the avoidance of expense and delay toward which the discovery rules are aimed. Fed. R. Civ. P. 33, 34. 1 Cases that cite this headnote • MEMORANDUM OPINION AND ORDER REGARDING THE COURT’S ORDER TO SHOW CAUSE WHY COUNSEL FOR BOTH PARTIES SHOULD NOT BE SANCTIONED FOR DISCOVERY ABUSES MARK W. BENNETT, U.S. DISTRICT COURT JUDGE, NORTHERN DISTRICT OF IOWA • TABLE OF CONTENTS I. INTRODUCTION ...171 A. Factual Background ...171 1. The nature of the litigation ...171 2. Potentially obstructionist discovery responses ...172 • II. LEGAL ANALYSIS ...182 A. Proper Discovery Responses ...182 • I know that I am not alone in my goal of eliminating “boilerplate” responses and other discovery abuses, because the goal is a worthy one. 5 As one commentator observed: Though boilerplate objections are relatively common in modern civil litigation, the legal community can take steps to curb their use. Attorneys and judges alike must recognize the costs these objections impose on the efficient administration of justice and on the legal profession. Only with such an understanding, and an attendant willingness to effectively penalize those who issue boilerplate objections, can their use be reduced. Hopefully, with an increased focus on preventing abusive discovery practices, including boilerplate objections, the legal profession can move toward fairer, more effective discovery practices. 6 Thus, while I find the task distasteful, I embark on my consideration of whether the conduct of the parties in this case warrants sanctions for discovery abuses. • After reviewing those discovery responses, I entered an order advising the parties that I suspected that the discovery responses listed in the following table were improper: • 173 side would engage in “boilerplate” objections. Thus, many lawyers have become fearful to comply with federal discovery rules because their experience teaches them that the other side would abuse the rules. Complying with the discovery rules might place the m at a competitive disadvantage. • Returning to the matter of the conduct of counsel in this case, counsel for both parties reiterated that their relationship has been professional and effective in narrowing the scope of discovery requests. They represented that the responses with which I had taken issue, and which they admitted were improper under the Federal Rules of Civil Procedure, were taken by counsel in this case as signals of a need or desire to narrow discovery requests, and a desire for discussion, rather than as refusals to provide responses or indications of any intent to impede or improperly delay discovery. Thus, while they admitted that both sides had made improper discovery responses, they suggested that this was a poor case in which to impose sanctions, because there had been no bad faith and no real detriment or impediment to discovery. • Furthermore, counsel for both parties sincerely pledged not to engage in such improper discovery practices in the future and to work within their firms to change the way their firms do things. They also both suggested that they would be willing to put together courses or continuing legal education programs for lawyers or law students about the applicable discovery rules and proper and improper discovery objections. They also raised legitimate concerns that sanctions could impede their ability to obtain pro hac vice admission in other jurisdictions, which they suggested was a negative consequence out of proportion to their conduct in this case, which had involved an effective working relationship between opposing counsel *182 despite whopping defiance of discovery rules and court decisions. Formal discovery under the Federal Rules of Civil Procedure is one of the most abused and obfuscated aspects of our litigation practice. 12 • A. Proper Discovery Responses Unfortunately, experience has taught me that attorneys do not know or pay little attention to the discovery rules in the Federal Rules of Civil Procedure. I preface this discussion with an observation by United States District Judge Paul w. Grimm, of the District of Maryland, who was, at the time, a member of the Advisory Committee on Civil Rules, and the Chair of the Discovery Subcommittee, and David S. Yellin, a litigation associate with a New York law firm: [Surveys have] found that, “[a]lthough the civil justice system is not broken, it is in serious need of repair. In many jurisdictions, today’s system takes too long and costs too much.” Few practicing attorneys would be surprised that discovery was singled out as “the primary cause for cost and delay,” and often “can become an end in itself.” Hon. Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. REV. 495, 495–96 (2013) (citations omitted). Furthermore, “[b]y some estimates, discovery costs now comprise between 50 and 90 percent of the total litigation costs in a case” and “[d]iscovery abuse also represents one of the principal causes of delay and congestion in the judic ial system.” Beisner, Discovering A Better Way, 60 DUKE L.J. at 549. It is ignoring the applicable Federal Rules of Civil Procedure that I find is at least partially responsible for the increase in the costs and delays of discovery. 13 • Thus, I will begin my analysis with the rules that are pertinent, here. In this case, I am concerned with responses to interrogatories and document requests, which are specifically governed by Rules 33 and 34 of the Federal Rules of Civil Procedure, respectively. Nevertheless, Rule 26 also establishes important requirements for all discovery. • The first part of Rule 26 that is significant, here, is Rule 26(b), which defines the scope of permissible discovery, generally, as follows: (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case , considering the importance of the issues at *183 stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance • [4]As a counterbalance to the breadth of permissible discovery set out in Rule 26(b), Rule 26(c) provides, “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more [listed limitations].” FED. R. CIV. P. 26(c)(1). In short, as I explained more than a decade -and-a-half ago, “as long as the parties request information or documents relevant to the claims at issue in the case, and such requests are tendered in good faith and are not unduly burdensome, discovery shall proceed.” St. Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) . “The party resisting production bears the burden of establishing lack of relevancy or undue burden.” Id. at 512 . I have found nothing to suggest that a more restrictive view of the scope of discovery is now the norm. • Rule 26(d) sets out requirements for the timing of discovery that are pertinent, here. Specifically, Rule 26(d)(1) provides that, generally, a party may not seek discovery before the parties’ discovery conference, but Rule 26(d)(2) provides that document requests pursuant to Rule 34 may be delivered ‘[m]ore than 21 days after the summons and complaint are served on a party.” Rule 26(d)(3) sets out the rule for the “sequence” of discovery, as follows: (3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. FED. R. CIV. P. 26(d)(3) (emphasis added). Indeed, the Advisory Committee Notes, 1970 Amendments explain, “[One] principal effect[ ] of the new provision [is] ... to eliminate any fixed priority in the sequence of discovery.... In principle, one party’s initiation of discovery should not wait upon the other’s completion, unless the delay is dictated by special considerations.” Thus, Rule 26(d)(3) makes clear that there is no limitation on the sequence of discovery and that a party cannot delay responding to discovery simply because the other party has not yet responded to its discovery. • Rule 26(b)(5) is also relevant, here, because it recognizes the propriety of asserting privileges in response to interrogatories or document requests, but it also requires more than bald assertions of privilege, as follows: (5) Claiming Privilege or Protecting Trial –Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that *184 the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed— and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. FED. R. CIV. P. 26(b)(5)(A) (emphasis added). The Eighth Circuit Court of Appeals recognized, some time ago, that Rule 26(b)(5) codified a common process for eliminating time-consuming delays in the determination of privilege issues by requiring the party asserting the privilege to provide the party seeking discovery with a list or log that describes the pertinent documents without disclosing the allegedly privileged communications they contain. PaineWebber Grp., Inc. v. Zinsmeyer Trusts P’ship, 187 F.3d 988, 992 (8th Cir. 1999) . Thus, Rule 26(b)(5)(A) ’s requirement of a privilege log as part of any privilege - based objection to discovery is nothing new. • Finally, Rule 26(e) is relevant, here, because it imposes obligations to correct or supplement prior discovery answers, as follows: (e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a) —or who has responded to an interrogatory, • 175 request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. Fed. R. Civ. P. 26(e). • The discovery responses at issue, here, are to requests for interrogatories, pursuant to Rule 33, and requests for production of documents, pursuant to Rule 34. The specific requirements of Rules 33 and 34 at issue are the requirements for objections. Rule 33 provides, in pertinent part, as follows: (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. FED. R. CIV. P. 33(b)(4) (emphasis added). Similarly, Rule 34 provides, in pertinent part, as follows: (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. FED. R. CIV. P. 34(b)(2)(B) & (C) (emphasis added). • [5]The key requirement in both Rules 33 and 34 is that objections require “specificity.” As I explained a decade - and-a-half ago, “the mere statement by a party that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant *185 is not adequate to voice a successful objection”; “[o]n the contrary, the party resisting discovery must show specifically how ... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.” St. Paul Reins. Co., Ltd., 198 F.R.D. at 511– 12 (internal quotation marks and citations omitted). In other words, “merely assert[ing] boilerplate objections that the discovery sought is vague, ambiguous, overbroad, unduly burdensome, etc.... without specifying how each [interrogatory or] request for production is deficient and without articulating the particular harm that would accrue if [the responding party] were required to respond to [the proponent’s] discovery requests” simply is not enough. Id. at 512. Again, I have found nothing to suggest that such responses are now considered adequate; rather, there is precedent too ample to cite, in both the Eighth Circuit and the Seventh Circuit, where the lead attorneys for both sides have their offices, demonstrating the insufficiency of such responses. • Although Rule 33 contains an express “waiver” provision, explaining that a party has waived “[a]ny ground not stated in a timely objection,” Rule 34 does not. Nevertheless, as a magistrate judge of this court recently explained, that does not mean that inadequate responses to requests for documents do not constitute waivers: Federal Rule of Civil Procedure 34 does not explicitly provide that a party waives an objection by failing to file a timely response to a request for production of documents. Nonetheless, courts have routinely found that “if the responding party fails to make a timely objection, or fails to state the reason for an objection, he may be held to have waived any or all of his objections.” Scaturro v. Warren & Sweat Mfg. Co., Inc. , 160 F.R.D. 44, 46 (M.D. Pa. 1995) (citing 4A Moore’s Federal Practice, § 34.05[2] ) (emphasis in original). See also Henry v. National Housing Partnership, 2007 WL 2746725 (N.D. Fla. 2007) (finding that the law is “well settled” that a party’s failure to file timely objections to a request for production of documents constitutes a waiver of the objections); Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988) (“Any other result would completely frustrate the time limits contained in the Federal Rules and give a license to litigants to ignore the time limits for discovery without any adverse consequences.”). In Cargill, Inc. v. Ron Burge Trucking, Inc. , 284 F.R.D. 421, 424 (D. Minn. 2012), the Court addressed the issue of whether “the same waiver provision found in Rule 33(b)(4) applies to document requests under Rule 34 .” After reviewing the history of the “automatic waiver provision” found in Rule 33 , the Court noted that recent decisions concerning waiver of objections “reflect broad exercise of judicial discretion.” Id. at 425. Sellars v. CRST Expedited, Inc. , No. C15-0117, 2016 WL 4771087, at *2 (N.D. Iowa Sept. 13, 2016) (footnote omitted). The court then listed factors to consider in determining whether to excuse a waiver, and conditions under which courts will impose a waiver. Id. • 176 B. Improper discovery responses Although the federal discovery rules were intended to facilitate discovery and refocus cases on the legal merits, “the discovery process has supplanted trial as the most contentious stage in litigation.” London, Resolving the Civil Litigant’s Discovery Dilemma , 26 GEO. J. LEGAL ETHICS at 837. Improper discovery responses necessarily add to the contentiousness of litigation, because they start with non-disclosure as their premise. • The recitation, in the preceding section, of the specific requirements of the applicable discovery rules highlights what is wrong with the sort of “boilerplate” objections that the parties used in this case, but it does not address their full negative impact: The problems with using boilerplate objections, however, run deeper than their form or phrasing. Their use obstructs the discovery process, violates numerous rules of civil procedure and ethics, and imposes costs on litigants that frustrate the timely and just resolution of cases. Jarvey, Boilerplate Discovery Objections , 61 DRAKE L. REV. at 916. There may also be practical consequences for the party who asserts such objections. “District courts often *186 repeat the warning: ‘Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.’ ” Id. (citing Walker v. Lakewood Condo. Owners Ass’n , 186 F.R.D. 584, 587 (C.D. Cal. 1999) (citations omitted); Adelman v. Boy Scouts of Am. , 276 F.R.D. 681, 688 (S.D. Fla. 2011) (“[J]udges in this district typically condemn boilerplate objections as legally inadequate or meaningless.” (citations omitted) (internal quotation marks omitted)); Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., No. 09-CV-11783, 2011 WL 669352, at *2 (E.D. Mich. Feb. 17, 2011) (refusing to consider “[b]oilerplate or generalized objections”)); see id. at 688 (identifying other reasons that “boilerplate” objections are disfavored). • I now find, without doubt or hesitation, that the discovery responses by the parties in this case that I identified as potentially abusive and/or not in compliance with the applicable rules, but mere “boilerplate” objections, are just that. I am not convinced that the possible exceptions to the “boilerplate” objections that I noted in two of Liguria’s responses or the three additional responses that Liguria now cites are sufficient to “show specifically how ... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.” St. Paul Reins. Co., Ltd., 198 F.R.D. at 511– 12. Even if I accepted all five of the responses that Liguria has identified as adequate, there are certainly plenty of others that are not. • [6] [7]First, as I suggested, in the table, above, several discovery responses by both parties violate Rule 26(d) . It is not a valid objection that interrogatories or requests for documents are “premature” if, as is the case here, they were propounded after the time specified in Rule 26(d)(1) or (d)(2) and there was no order specifying the timing of discovery on any specific issues. Rule 26(d)(3) also makes clear that there is no limitation on the sequence of discovery and that a party cannot delay responding to discovery simply because the other party has not yet responded to its discovery. FED. R. CIV. P. 26(d)(3)(B); see also id. Advisory Committee Notes, 1970 Amendments. Moreover, it is not an “objection” at all, and certainly not a valid one, that a party may not have a response or responsive documents, yet, or that the party may have to supplement its response later, because Rule 26(e) imposes that very obligation to supplement responses. See id. at 26(e). • [8] [9]The rest of the discovery responses identified in the table fail the “specificity” requirements of Rules 33(b)(4) and 34(b)(2) in various ways, while utterly failing to carry the objecting party’s burden to demonstrate lack of relevance or undue burdensomeness under Rule 26(b)(1) . St. Paul Reins. Co., Ltd., 198 F.R.D. at 511. As the Eighth Circuit Court of Appeals has explained, an objecting party does not have “the unilateral ability to dictate the scope of discovery based on their own view of the parties’ respective theories of the case,” so that a “lack of relevance” objection, without explanation, is contrary to the rules. Sentis Grp., Inc., 763 F.3d at 925. When, as here, an objecting party makes no attempt to “show specifically how ... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive,” and no attempt to “articulat[e] the particular harm that would accrue if [the responding party] were required to respond to [the proponent’s] discovery requests,” but relies, instead, on “the mere statement ... that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant,” the response “is not *187 adequate to voice a successful objection”; instead, the response is an unacceptable “boilerplate” objection. St. Paul Reins. Co., Ltd. , 198 F.R.D. at 511 –12 (internal quotation marks and citations omitted). Moreover, simply stating that a response is “subject to” one or more general objections does not satisfy • Thus, the general objections and the “boilerplate” objections to specific requests did not preserve the parties’ rights, or, at the very least, they ran a substantial risk of delaying and increasing the costs of discovery, because they provided the opposing party with no clue how to begin narrowing the issue, and because the court might have to become involved to determine whether any waiver should be excused. Sellars, 2016 WL 4771087 at *2. A better approach to preserving rights and narrowing the scope of discovery, and one likely to cause less ultimate delay and expense, would be to request an extension of time to respond and to confer on troublesome discovery requests. Yet another approac h would have been to request an ex parte and in camera review of certain documents by a magistrate judge, who might quickly render an opinion on whether the documents in question were discoverable. • C. Sanctions [12]This litany of discovery abuses leads to the question of whether sanctions are appropriate for such misconduct. I am not alone *188 in thinking that more frequent application of sanctions by trial judges might have a beneficial impact. As Chief Justice Kechum wrote, Civil lawyers who are brave enough to appear in front of juries are becoming extinct. Perhaps they no longer have the time to appear in front of juries because they are dealing with pusillanimous objections to interrogatories and reading pages and pages of mindless interrogatory instructions. I wish more judges would punish this nonsense. Even better: I wish judges could force these lawyers who play games with interrogatories to appear before juries. These discovery-abusing lawyers would quickly find that you can’t win a jury trial by being cute or tricky; you only win by doing the hard work. Chief Justice Ketchum II, Impeding Discovery, 2012–JUN W. VA. L. at 21 (emphasis added); accord Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 932 (“Judges are in a unique position to deter the use of unethical boilerplate discovery objections. Unlike attorneys, judges may rely on their authority to issue sanctions under Federal Rule of Civil Procedure 26 and on the inherent power of the court. In order to curb boilerplate objections, judges should be more willing to dole out sanctions against lawyers who abuse the discovery process by issuing these objections.” (footnotes omitted). On the other hand, as I pointed out at the beginning of this decision, imposing sanctions is an odious task. As one commentator has observed, • 178 Although courts certainly have the power to sanction discovery violators, many are reluctant to impose severe sanctions in the discovery context because of the oft-enunciated policy that cases should be decided on their merits. Also, though they rarely say so, many judges are reluctant to impose sanctions that may adversely affect the professional reputations and livelihoods of lawyers who practice before them. Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 MINN. L. REV. at 511 . I turn to the court’s authority to impose sanctions and whether doing so is appropriate in this case. • As I have pointed out, “Rule 26(g) of the Federal Rules of Civil Procedure imposes on counsel and parties an affirmative duty to conduct pretrial discovery in a responsible manner.” St. Paul Reins. Co., Ltd., 198 F.R.D. at 515 (citing FED. R. CIV. P. 26(g), Advisory Committee Notes to 1983 Amendments). The Rule specifically requires certification that the responses or objections to discovery requests are “not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” FED. R. CIV. P. 26(g)(2)(B). Thus, this Rule allows the court to impose sanctions on the signer of a discovery response when the signing of the response is incomplete, evasive, or objectively unreasonable under the circumstances. St. Paul Reins. Co., Ltd., 198 F.R.D. at 515 . Even if the opposing party “did not seek sanctions pursuant FED. R. CIV. P. 26(g), the court has authority to make a sua sponte determination as to whether Rule 26(g) sanctions should be imposed.” Id. Rule 26(g)(3) states, “The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.” FED. R. CIV. P. 26(g)(3). The Eighth Circuit Court of Appeals has rejected the notion “that it is an abuse of discretion for a district court to impose something other than the minimally punitive sanction available within the range of possible sanctions,” flatly stating, “[i]t is not.” Sentis Grp., Inc., 763 F.3d at 926. • More specifically, as to the basis for determining whether sanctionable conduct has occurred and what sanctions to apply, I have explained as follows: The Advisory Committee’s Notes indicate that the “nature of sanctions is a matter of judicial discretion to be exercised in light of the particular circumstances.” FED.R.CIV.P. 26(g), Advisory Committee Notes to the 1983 Amendments. The standard for imposing Rule 26(g) sanctions is objective. The court tests the signer’s certification under an objective standard of reasonableness, except that it may inquire into the signer’s actual knowledge and motivation to determine whether a discovery request, response or objection was interposed for an improper purpose. *189 Oregon RSA No. 6 v. Castle Rock Cellular, 76 F.3d 1003, 1007 (9th Cir.1996) ; accord Zimmerman v. Bishop Estate , 25 F.3d 784, 790 (9th Cir.) , cert. denied , 513 U.S. 1043, 115 S.Ct. 637, 130 L.Ed.2d 543 (1994) . While there is no requirement that the court find bad faith to find improper purpose, see Oregon RSA No. 6 , 76 F.3d at 1008, outward behavior that manifests improper purpose may be considered in determining objective improper purpose deserving sanction. See Townsend v. Holman Consulting Corp. , 929 F.2d 1358, 1366 (9th Cir.1990) (Rule 11 sanctions). The certification by the signer is tested as of the time the discovery paper is signed. The court must strive to avoid the wisdom of hindsight in determining whether the certification was valid at the time of the signature, and all do ubts are to be resolved in favor of the signer. See, e.g., Bergeson v. Dilworth, 749 F.Supp. 1555, 1566 (D.Kan.1990) . However, each signing of a new discovery request, response, or objection must be evaluated in light of the totality of the circumstances known at the time of signing. Therefore, the practical import of Rule 26(g) is to require vigilance by counsel throughout the course of the proceeding. Chapman & Cole v. Itel Container Int’l, B.V., 865 F.2d 676 (5th Cir.) , cert. denied , 493 U.S. 872, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989). St. Paul Reins. Co., Ltd. , 198 F.R.D. at 516 (footnotes omitted). • Liguria proposes that, if I conclude that sanctions are appropriate, notwithstanding Liguria’s contention that it did not make its responses for any improper purposes, the proper sanction is the submission of a presentation to either (1) a group of civil l itigation trial attorneys at the Chicago Bar Association or Illinois State Bar Association, or (2) a group of law students at a Chicago area law school engaged in an advanced civil procedure course covering the rules of discovery. Liguria suggests that such a presentation include the following topics: (a) Rules 26, 33, and 34 of the Federal Rules of Civil Procedure ; (b) proper approaches to propounding and responding to discovery requests; and (c) reasons why “boilerplate” objections are improper. • 179 well-accepted proposition that one ordinarily intends the natural and probable consequences of one’s actions.” See, e.g., Red River Freethinkers v. City of Fargo, 764 F.3d 948, 955 (8th Cir. 2014) . The “natural and probable consequences” of “boilerplate” objections is delay and impediment of discovery, not the narrowing of issues and the avoidance of expense and delay toward which the discovery rules are aimed. Ordinarily, I would also likely find that the impropriety of employing such frivolous objections in every single discovery response also demonstrates the parties’ obstructionist attitude toward discovery and would further confirm suspicions that the responses were interposed for an improper purpose. Cf. St. Paul Reins. Co., Ltd., 198 F.R.D. at 517. • I have suggested, more than once, in this opinion that judges should be more involved in trying to eliminate discovery practices that are improper. Indeed, nearly twenty years ago, a commentator explained that all of the groups of lawyers involved in his conversations with large- firm litigators “pointed to judges as pivotal to changing how the system operates.” He cautioned, Yet it seems clear after talking to the judges about how they view these disputes, as well as after talking to lawyers about the tactics they deploy, that judicial intervention is not likely to be the answer. Judges do not have the time, resources, or inclination to constantly monitor the discovery process. Stronger judges who were committed to changing the norms of the system would probably hel p. They will need considerably more resources to do so, however. Nelson, The Discovery Process as a Circle of Blame , 67 FORDHAM L. REV. at 804–05. One resource available to judges, when they encounter attorneys willing to do so, is to use those attorneys to spread proper practices, rather than improper ones • Thus, I strongly encourage counsel for both parties to take the steps that they have volunteered to take to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses. I would be gratified to see the parties prepare presentations to either (1) a group of civil litigation trial attorneys at the Chicago Bar Association or Illinois State Bar Association, or (2) a group of law students at a Chicago area law school engaged in an advanced civil pr ocedure course covering the rules of discovery and, in particular, (a) Rules 26 , 33, and 34 of the Federal Rules of Civil Procedure ; (b) proper approaches to propounding and responding to discovery requests; and (c) reasons why “boilerplate” objections are improper. Because no sanctions are imposed, I neither require them to do so nor need to review what they intend to do. These are very honorable, highly skilled, extremely professional and trustworthy lawyers. The legal culture of “boilerplate” discovery objections will not change overnight. I trust these lawyers to do their part, as I will do mine. • III. CONCLUSION Federal discovery rules and the cases interpreting them uniformly finding the “boilerplate” discovery culture impermissible are not aspirational, they are the law. What needs to be done? I am confident, based on the sincere representations from lead counsel in this case, that they will be ambassadors for changing the “boilerplate” discovery objection culture in both their firms. I also encourage them to change the “boilerplate” culture with other firms that they come up against in litigation. I encourage all lawyers, when they receive “boilerplate” objections, to informally request that opposing counsel withdraw them by citing the significant body of cases that condemn the “boilerplate” discovery practice. If opposing counsel fail to withdraw their “boilerplate” objections, the *191 lawyers should go to the court and seek relief in the form of significant sanctions—because the offending lawyers have been warned, given a safe harbor to reform and conform their “boilerplate” discovery practices to the law, and failed to • The second part of this process is for judges to faithfully apply the discovery rules and put an end to “boilerplate” discovery by imposing increasingly severe sanctions to change the culture of discovery abuse. I realize my judicial colleagues, especially state trial court judges, are overwhelmed with cases, deluged with discovery matters, likely sick and tired of them, and lack the resources needed to deal with them in as timely a manner as they aspire to. In my view, the imposition of increasingly severe sanctions will help solve the problems. Lawyers are advocates and trained to push the envelope —rightly so. Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the “boilerplate” discovery culture and do our part to solve this cultural discovery “boilerplate” plague. Like Chief Justice Ketchum, I am convinced that “[s]tiff sanctions by judges for each violation would have a dramatic effect on these unauthorized boilerplate objections. The word would spread quickly, and the practice would suddenly stop.”14 • The addiction to “boilerplate” discovery objections has been exacerbated by an unintended consequence of a 1980 amendment to Rule 5 of the Federal Rules of Civil Procedure. That amendment exempted interrogatories and requests for documents, as well as their responses, from filing with the court. The rationales—“the added expense” of copying and the “serious problems of storage in some districts”—made some sense at the time. 15 However, judges no longer have access to discovery requests and their responses, unless brought to their attention by motion. Thus, because both sides to federal litigation are so often afflicted with this addiction, there is not only no incentive to brin g the matter to the court’s attention, there is a perverse incentive to bilaterally succumb to the addiction without the need to ever inform the court of the parties’ “boilerplate” addiction. This makes the discovery of “boilerplate” addiction much more di fficult for judges. “Boilerplate” responses cause the very harm that justifies their prohibition, even if neither party brings them to the court’s attention. • As one commentator explained, The hallmark of a boilerplate objection is its generality. The word “boilerplate” refers to “trite, hackneyed writing”— an appropriate definition in light of how boilerplate objections are used. An objection to a discovery request is boilerplate when it merely states the legal grounds for the objection without (1) specifying how the discovery request is deficient and (2) specifying how the obje cting party would be harmed if it were forced to respond to the request. For example, a boilerplate objection might state that a discovery request is “irrelevant” or “overly broad” without taking the next step to explain why. These objections are taglines, complet ely “devoid of any individualized factual analysis.” Often times they are used repetitively in response to m ultiple discovery requests. Their repeated use as a method of effecting highly uncooperative, scorched -earth discovery battles has earned them the nicknames “shotgun”—and “Rambo”—style objections. The nicknames are indicative of the federal courts’ extreme disfavor of these objections. Matthew L. Jarvey, Boilerplate Discovery Objections: How They are Used, Why They are Wrong, and What We Can Do About Them, 61 DRAKE L. REV. 913, 914–16 (2013) (footnotes omitted). • My views on the extent of the scourge and the possible cures are not entirely idiosyncratic— or even new. See, e.g., Stanley P. Santire, Discovery Objections Abuse In Federal Courts: “... Objecting to Discovery Requests Reflexively—But Not Reflectively ...,” 54–AUG HOUS. LAW. 24 (2016) ; Hon. Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. REV. 495 (2013); Jarvey, Boilerplate Discovery Objections, 61 • 181 DRAKE L. REV. 913 ; Mitchell London, Resolving the Civil Litigant’s Discovery Dilemma , 26 GEO. J. LEGAL ETHICS. 837 (2013); Chief Justice Menis E. Ketchum II, Impeding Discovery: Eliminating Worthless Interrogatory Instructions And Objections, 2012–JUN W. VA. L. 18 (2012); John H. Beisner, Discovering A Better Way: The Need for Effective Civil Litigation Reform , 60 DUKE L.J. 547 (2010); John S. Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 MINN. L. REV. 565 (2000); Robert L. Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio- economic Factors that Contribute to Unreasonable, Inefficient, and Amoral Behavior In Corporate Litigation, 67 FORDHAM L. REV. 773 (1998); Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 HOFSTRA L. REV. 561 (1996). For example, I note that, in 1986 —a full three decades ago — the A.B.A. Commission on Professionalism “encouraged judges to impose sanctions for abuse of the litigation process, noting that the Federal Rules permit the imposition of sanctions for such abuse.” See Cary, Rambo Depositions, 25 HOFSTRA L. REV. at 594 (emphasis added) (citing A.B.A. Comm’n on Professionalism, “... In the Spirit of Public Service:” A Blueprint for the Rekindling of Lawyer Professionalism, 112 F.R.D. 243, 265, 291–92 (1986)). Thus, calls for judges to be more willing to punish discovery abuses came from the bar, as well as from commentators and the bench. • London, Resolving the Civil Litigant’s Discovery Dilemma, 26 GEO. J. LEGAL ETHICS at 851 (footnotes omitted) (quoting Lee v. Max Int’l, L.L.C., 638f3 1318, 1321 (10th Cir. 2011)). • Although I have made no secret of my unhappiness with obstructionist practices in discovery and, on one occasion, I fashioned a sanction for such conduct that the appellate court found too unusual to affirm without more notice to the sanctioned party, I have still rarely imposed sanctions for obstructionist practices in my twenty -two years as a federal district judge and my three years prior to that as a federal magistrate judge. See Security Nat’l Bank of Sioux City v. Abbott Labs., 299 F.R.D. 595 (N.D. Iowa 2014) (requiring an attorney to write and produce a training video that addressed the impropriety of her obstructionist deposition conduct as a sanction for such conduct), rev’d , 800 F.3d 936 (8th Cir. 2015) (vacating the sanction for failure to give adequate advance notice of the unusual nature of the sanction being considered); St. Paul Reins.Co., Ltd., v. Commercial Fin. Corp. , 197 F.R.D. 620 (N.D. Iowa 2000) (a party’s continued assertion of privileges, after once being warned of the impropriety of its assertions, was “without substantial justification,” and warranted the payment of the opposing party’s attorney’s fees and expenses in bringing a moti on to compel as a sanction); St. Paul Reins.Co., Ltd., v. Commercial Fin. Corp., 198 F.R.D. 508 (N.D. Iowa 2000) (requiring an attorney to write an article regarding why his objections to discovery requests were improper and submit such article to bar journals). • Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 936. • Francis E. McGovern & E. Allan Lind, The Discovery Survey, 51 LAW & CONTEMP. PROBS. 41, 41 (1988) • Judges and lawyers must not downplay the costs imposed by discovery: The unchecked rise in discovery costs has attracted the attention of corporations, which now list discovery as one of their m ost pressing concerns when litigation is imminent. This concern is well founded. Discovery costs in U.S. commercial litigation ar e growing at an explosive rate; estimates indicate they reached $700 million in 2004, $1.8 billion in 2006, and $2.9 billion in 2007. And these figures do not even account for the billions of dollars that corporations pay each year to settle frivolous lawsui ts because the burdens of litigating until summary judgment or a favorable verdict are too onerous. Beisner, Discovering a Better Way, 60 DUKE L.J. at 574 (also discussing economic consequences of the “litigation tax”). • Chief Justice Ketchum II, Impeding Discovery, 2012–JUN W. VA. L. at 20. • 182 judges now work. But unintended consequences of civil rules of procedure, which often render the proposed cure worse than the alleged disease, are nothing new. See e.g., Mark W. Bennett, Essay: The Grand Poobah And Gorillas In Our Midst: Enhancing Civil Justice In The Federal Courts Courts–Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And Other Reforms Like Trial By Agreement, 15 NEV. L.J., 1293, 1300 (Summer 2015). • 183 APPENDIX 3-1 Committee Notes to Florida’s 2012 and 2019 e-Discovery Rules Amendments • 1.280 Committee Notes 2012 Amendment. Subdivisions (b)(3) and (d) are added to address discovery of electronically stored information. The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a rule 1.200 or rule 1.201 case management conference. Under the good cause test in subdivision (d)(1), the court should balance the costs and burden of the requested discovery, including the potential for disruption of operations or corruption of the electronic devices or systems from which discovery is sought, against the relevance of the information and the requesting party’s need for that information. Under the proportionality and reasonableness - 13 - factors set out in subdivision (d)(2), the court must limit the frequency or extent of discovery if it determines that the discovery sought is excessive in relation to the factors listed. In evaluating the good cause or proportionality tests, the court may find its task complicated if the parties know little about what information the sources at issue contain, whether the information sought is relevant, or how valuable it may be to the litigation. If appropriate, the court may direct the parties to develop the record further by engaging in focused discovery, including sampling of the sources, to learn more about what electronically stored information may be contained in those sources, what costs and burdens are involved in retrieving, reviewing, and producing the information, and how valuable the information sought may be to the litigation in light of the availability of information from other sources or methods of discovery, and in light of the parties’ resources and the issues at stake in the litigation. • 185 APPENDIX 3-2 COMPARISON OF FLORIDA AND FEDERAL RULES OF E-DISCOVERY • Note: In some respects, the requirements for the Initial Case Management Report and Conference in Fla. R. Civ. P. 1.201(b) resemble the purposes of a Federal Rule 26(f) “meet and confer” requirement. (See Fed. R. Civ. P. 26 below). However, the Federal Rule 26(f) meet and confer requirement is mandatory in every case, and only state court cases that are declared complex under Fla. R. Civ. P. 1.201 automatically include the Rule 1.201(b)(1)(J) requirements. • 189 burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its 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. [OMITTED (e) – (g)] • (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or RULE 37. FAILURE TO MAKE DISCLOSURES OR TO COOPERATE IN DISCOVERY; SANCTIONS • (e) F AILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. • 195 forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. • STANDING ORDER ON ELECTRONICALLY STORED INF ORMATION DISCOVERY • The Court understands that Plaintiff designated on Form 1.997 (Civil Cover Sheet) this matter constitutes a business tort, products liability matter, professional malpractice, antitrust/trade regulation, business transaction, intellectual property, shareholder derivative action, securities litigation or trade secrets, and sua sponte , pursuant to Fla.R.Civ.P. 1.200, hereby ORDERS and ADJUDGES: 1. Plaintiff shall serve this Order upon counsel for Defendant within 20 days of the first appearance of counsel for Defendant, and shall schedule a meet and confer with counsel for Defendant within 60 days of such service. 2. At the meet and confer, both counsel for Plaintiff and Defendant shall be prepared to discuss in detail, and will actually discuss: a. Whether this matter should be considered Complex Litigation pursuant to Rule 1.201, including the factors in Rule 1.201(2) as to which there is mutual agreement; b. The identity, employment position and employment address of electronically stored information (ESI) custodians who exist for each of their respective clients; c. The structure of each of their client’s respective computer systems and a descriptive identification of all relevant software, including the • 200 APPENDIX 3-4 STIPULATION ESTABLISHING ELECTRONIC DISCOVERY PROTOCOL • The parties agree that they will cooperate in good faith regarding the disclosure and formulation of appropriate search methodology, terms and protocols in advance of any ESI search. With the objective of limiting the scope of review and production, and thereby reducing discovery burdens, the parties agree to meet and confer as early as possible, and in advance of any producing party search commencement, to discuss, inter alia: • A. Native File Format. The parties agree that production will be made in native format, as the ESI exists on the producing party's computer system. Where structured data (e.g., data from a database) is requested, appropriate queries will be used to extract relevant data from any such database, which data shall match specified criteria, and returning specified fields, in a form and format that is verifiably responsive and readable by the use of commonly available tools. If a producing party asserts that certain ESI is inaccessible or otherwise unnecessary or inadvisable under the circumstances, or if the requesting party asserts that, following production, certain ESI is not reasonably usable, the parties shall meet and confer with their respective technology experts to discuss resolving such assertions. If the parties cannot resolve any such disputes after such a meet and confer has taken place, the issue shall be presented to the Court for resolution. • 203 B. Document Image Format. Unless otherwise agreed to in writing by a requesting party, ESI shall be produced in native data format, together with all associated metadata. In such cases where production in native format is not possible or advisable (e.g., redacted documents), native format files shall be converted to static images and each page thereof saved electronically as a single-page "TIFF" image that reflects how the source document would have appeared if printed out to a printer attached to a computer viewing the file. Accompanying this TIFF shall be a mu ltipage text (.TXT) file containing searchable text from the native file, and the metadata as discussed later in this document. Load files of the static images should be created and produced together with their associated static images to facilitate the us e of the produced images by a document management or litigation support database system. If voluminous TIFF production is anticipated, the parties shall meet and confer to determine how such production is be made reasonably usable by the requesting party. The parties shall meet and confer to the extent reasonably necessary to facilitate the import and use of the produced materials with commercially available document management or litigation support software. • K. Attachments. Email attachments and embedded files must be mapped to their parent by the Document or Production number. If attachments and embedded files are combined with their parent documents, then "BeginAttach" and "EndAttach" fields listing the unique beginning and end number for each attachment or embedded document must be included. L. Structured data. To the extent a response to discovery requires production of discoverable electronic information contained in a database, in lieu of producing the database, the parties agree to meet and confer to, with an understanding of which fields are relevant, agree upon a set of queries to be made for discoverable information and generate a report in a reasonably usable and exportable electronic file (e.g., Excel or CSV for mat) for review by the requesting party or counsel. Upon review of the report(s), the requesting party may make reasonable requests for additional information to explain the database schema, codes, abbreviations, and different report formats or to request specific data from identified fields. • 208 the parties shall then meet and confer to attempt to resolve the problems. B. If either party objects to producing the requested information on the grounds that such information is not reasonably accessible because of undue burden or cost, or because production in the requested format is asserted to be not reasonably accessible because of undue burden or cost, and before asserting such an objection, the responding party will inform the requesting party of the format in which it is willing to produce it, the nature and location of the information claimed to not be reasonably accessibl e, the reason(s) why the requested form of production would impose an undue burden or is unreasonably costly, and afford the requesting party 10 business days from receipt of such notice to propose an alternative means of compliance with the request. Such proposal may include alternative cost estimates for ESI discovery production, may offer a proposal for ESI discovery cost allocation, or both. Notwithstanding anything contained herein to the contrary, a producing party shall not produce ESI in a format not requested or designated by the requesting party unless (i) the parties have met and conferred, and, having been unable to resolve such format production conflict at such meet and confer session, (ii) prior to referral to and resolution of such issue by the court. C. If a party believes that responsive ESI no longer exists in its original format, or is no longer retrievable, the responding party shall explain where and when it was last retrievable in its original format, and disclose the circumstances surrounding the change in status of that ESI, including the date of such status change, the person or persons responsible for such state change, the reason or reasons such ESI is no longer retrievable in that format, and whether any backup or copy of such original ESI exists, together with the location and the custodian thereof. • 213 APPENDIX 6-1 SIGNIFICANT CASES INVOLVING THE BREADTH AND SCOPE OF EXPERT WITNESS DISCOVERY • Elkins v. Syken , 672 So. 2d 517 (Fla. 1996) . On conflict certiorari review , the supreme court acknowledged that the issues presented in the case were an expanding problem, approved what the court called a well -reasoned decision, adopted in full the criteria governing the discovery of financial information from expert witnesses in an effort to prevent the annoyance, embarrassment, oppression, undue burden or expense, claimed on behalf of medical experts, and directed that the criteria be made part of the commentary to Fla. R. Civ. P. 1.280. The court stated that discovery was never intended to be used as a tactical tool to harass an adversary in a manner that actually chills the availability of information by non-party witnesses. • Allstate v. Boecher , 733 So. 2d 993 (Fla. 1999) . Conflict certiorari review of appellate decisions, one sustaining a trial court’s order overruling Allstate’s objections to interrogatories directed to it seeking the identity of cases in which its expert had performed analyses and rendered opinions for Allstate nationally in the preceding three years, and the amount of fees paid to that expert nationally during that same period. In approving that order, the court held that neither its decision in Elkins nor Fla. R. Civ. P. 1.280(b)(4)(A)(iii) prevents this type of discovery . The court pointed out that, unlike the information requested in Elkins, which related to the extent of the expert’s relationships with others, the specific information sought from Allstate in this case pertained to the expert’s ongoing relationship with Allstate. The court further stated that the information requested was directly relevant to the party’s efforts to demonstrate to the jury the witness’s bias. • Katzman v. Rediron , 76 So. 3d 1060 (Fla. 4th DCA 2011) . Defendant sought discovery form Dr. Katzman, plaintiff’s treating physician, regarding how often he had • 214 ordered discectomies over the past four years (the procedure performed on both plaintiffs after an auto accident, on referral from plaintiffs’ attorney, and under letters of protection), and what he had charged to perform it in litigation and non- litigation cases. Dr. Katzman objected and argued that the discovery was overbroad and exceeded the financial discovery permitted from retained experts under the discovery rules and Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) . The circuit court ruled that Dr. Katzm an must respond and provide information as to the number of patients and what amount of money he collected from health insurance companies and under letters of protection, over the preceding four years. The appellate court held that since a lawyer referred the patient to the physician in anticipation of litigation the physician had injected himself into the litigation, and the circumstance would allow the defendant to explore possible bias on the part of the doctor. It agreed that Elkins discovery should ge nerally provide sufficient discovery into such financial bias. The appellate court further held that the discovery sought is not relevant merely to show that the witness may be biased based on an ongoing financial relationship with a party or lawyer, but was relevant to a discrete issue, whether the expert had performed an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether he allegedly overcharged for the medical services at issue, a substantive issue being the reasonableness of the cost and necessity of the procedure. In the Court’s view, it meets the requirements of “unusual and compelling circumstances,” and denied the petition to quash the discovery order. • Steinger v. Geico , 103 So. 3d 200 (Fla. 4th DCA 2012) . The trial court ordered plaintiff’s law firm to produce discovery pertaining to the law firm’s relationship with four of plaintiff’s treating physicians who would render expert opinions on matters such as causation, permanency, and future damages . The production requests included all records of payments by the firm to these doctors, as well as all letters of protection to them. Client names could be redacted in cases that settled or where no lawsuit was filed. The appellate court stated that where there is a preliminary showing that the plaintiff was referred to the doctor by the lawyer (whether directly or through a third party) or vice versa, the defendant is entitled to discover information regarding the exte nt of the relationship between the law firm and the doctor with the trial court balancing the privacy rights of the former patients and clients, and implementing appropriate safeguards . “Normally, discovery seeking to establish that a referral has occurred should first be sought from the party, the treating doctor or other witnesses, not the party’s legal counsel. We do not suggest, however, that the law firm may never be a primary source for such discovery where, as here, the doctor has no records or provides nebulous testimony about the doctor’s past dealings with the referring law firm.” The appellate court further stated: “We do not suggest that all financial discovery from a physician who also serves as an expert in litigation must always be l imited to those matter s listed in Rule 1.280(b)(5)(A). We stress that the limitations of financial bias discovery from expert witnesses cannot be used as a shield to prevent discovery of relevant information from a material witness – such as a treating physician. The rule limits discovery of the general financial information of the witness where it is sought solely to establish bias . However, trial courts have discretion to order additional discovery where relevant to a discrete issue in a case . See Rediron, 76 So. 3d at 1064- 65.” Since from the record the Court was unable to determine whether defendant had established the existence of a referral relationship between the doctors and the law firm, it granted the petition, stating that it was premature to order more extensive financial bias discovery, and remanded the case for proceedings consistent with the opinion. • Lytal v. Malay, 133 So. 3d 1178 (Fla. 4th DCA 2014) . The trial court ordered plaintiff’s law firm to provide a list of all payments made to plaintiff’s treating expert, who was expected to provide expert opinions at trial, with all client and patient information redacted. At his deposition, the doctor denied having any records and provided “nebulous testimony” in connection with the number of patients who were represented by the law firm. The court held that under these circumstances the law firm was an ap propriate source of this information, citing the Steinger case, and denied the petition to quash the discovery order. • Brown v. Mittelman, 152 So. 3d 602 (Fla. 4th DCA 2014). Defense counsel, in a case arising from an automobile accident, subpoenaed the person in one of plaintiff’s treating physician’s office with the most billing knowledge, to produce documents regarding patients previously represented by both of plaintiff’s law firms, LOP cases, and referrals from both law firms . One of plaintiff’s attorneys had referred her to that doctor, who treated her under a LOP agreement. The trial court overruled the doctor’s objections to the subpoena. The appellate court stated that because Rule 1.280(b)(5) did not apply to the requested discovery, and because “a law firm’s financial relationship with a doctor is discoverable on the issue of bias” the petition for certiorari was denied. The court pointed out that a party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). The court noted that the financial relationship between the treating doctor and plaintiff’s attorneys in present and past cases creates the potential for bias and discovery of such relationship is permissible. The discovery available under Rule 1.280(b)(5) does not compel full disclosure of a treating physician’s potential bias, but limits financial discovery to an approximation of the portion of the expert’s involvement as an expert witness based on data such as the percentage of earned income derived from serving as an expert witness . A physician’s continued financial interest in treating other patients referred by a particular law firm could conceivably be a source of bias “not immediately apparent to a jury,” Morgan, Colling & Gilbert, P.A. v. Pope , 798 So. 2d 1 (Fla. DCA 2001), at 3. Rule 1.280(b)(5) neither addresses or circumscribes discovery of this financial relationship. Also, the court stated that whether the law firm directly referred the patient to the treating doctor does not determine whether discovery of the doctor/law firm relationship is allowed, and pointed out that a potential bias arising from a letter of protection exists independent of any referral relationship, as does a doctor’s referral arrangements with a law firm in other cases. • 222 2d 529 (Fla. 1 st DCA 1990) (requesting party must obtain records through normal discovery process). See also Rojas v. Ryder Truck Rental, Inc ., 641 So. 2d 855 (Fla. 1994) (proper for injured party to sign appropriately limited release for out -of-state medical records where subpoenas have been ignored). The person being examined should have a form of identification to verify their identity if re quested. If a patient information sheet was forwarded to counsel for the party to be examined at least 7 business days before the date for the examination, the party to be examined should bring the completed information sheet with them. Written intake forms or histories that are deemed necessary by the examiner must be provided to counsel for the party to be examined no later than 7 days prior to the exam. These forms can be reviewed by counsel and completed by the party to be examined and must be brought to the office of the examiner on the day of the exam. The examining physician may question the party about entries made on the form regarding medical issues. See Bozman v. Rogers, 640 So. 2d 180 (Fla. 1 st DCA 1994) (court could require party being examined to provide all “appropriate” information by filling out forms and answering questions at CME). • Retained experts must be produced for discovery deposition without the necessity of a subpoena. If specific items are to be brought to the deposition by the retained expert witness, opposing counsel must be notified well in advance of the deposition. • The Court will not require counsel to tender fees for discovery or trial testimony in advance of or as a condition of the examiner appearing. However, the Court does require full payment to be remitted to the examiner no later than 10 business days from receipt of the invoice from the examiner’s office. • Affirmed Failure to disclose past attack by dog and pre- existing sy mptoms rose to level of effort to sty mie discovery on central issue amounting to fraud. • 231 (Fla. 2d DCA 2017) willfully violated their discovery obligations. • Affirmed Patient’s unexplained inconsistencies in discovery answers about prior medical problems and having been in a prior case (albeit a divorce) meant that reasonable minds could differ on the remedy, so trial judge affirmed. McKnight v. Evancheck, 907 So. 2d 699 (Fla. 4th DCA 2005) • Affirmed discovery that either appear calculated to evade or stymie discovery on issues central to her case. The integrity of the civil litig ation process depends on truthful disclosure of facts. A system that depends on an adversary 's ability to uncover falsehoods is doo m ed to failure, which is why this kind of conduct must be discouraged in the strongest possible way. Although Cox insists on her constitutional right to have her case heard, she can, by her own conduct, forfeit that right. This is an area where the trial court is and should be vested with dis cretion to fashion the apt re medy. Wh ile this court mi ght have i mposed a lesser sanction, the question in this case is close enou gh that we cannot declare the lower court to have abused its discretion.” • Reversed Dental malpractice case in which Defendant moved for directed verdict based on fraudulent answers to pretrial discovery that were uncovered during cross-examination; court deferred ruling u ntil a fter verdict and granted JNOV for f raud on court; REVERS ED because review of dis missal for fraud prior to trial (abuse of discretion) is not equivalent to standard of review for JNOV; review is far less deferential to trial judge once jury verdict is entered. • Reversed Discovery response did not reveal prior slip and fall in which there was no attorney and no case filed. The alleged inconsistencies were more likely misinterpretation and not fraud, and could be better handled with impeachment and vigorous cross examination. EXHIBITS & EVIDENCE • Chapter 2: Preservation and Spoliation of Evidence ............................................. 4 Preservation .............................................................................. 4 Safe Harbor for Electronically Stored Information ..................... 7 Spoliation .................................................................................. 8 Sanctions .................................................................................. 8 • Chapter 3: Electronic Discovery ............................................................................ 12 The Duty of Electronic Discovery Competence ................................... 12 Law, Policy, and Principles of Electronic Discovery ............................ 13 Protecting Client Confidences and Data.............................................. 22 Duties of Attorney and Client Regarding Preservation of ESI ............. 23 Conferring with Opposing Counsel ...................................................... 31 Key Word Search, Relevancy and Scope of Discovery ...................... 32 Collection and Review of ESI .............................................................. 35 Framework for the Trial Lawyer Facing E-Discovery ........................... 36 Requesting Production and Making Production of ESI ........................ 41 Production of ESI Pursuant to Subpoena ............................................ 44 Discovery of Social Media ESI ............................................................ 46 Discovery of Electronic Media and Health Records ............................ 47 Inspection of Opposing Party Devices ................................................ 49 “Self-Help” Discovery .......................................................................... 52 Ten Practical Steps for Handling Electronic Evidence ........................ 55 Conclusion .......................................................................................... 58 • Award of Expenses and Fees on Motion to Compel .................. 149 Sanctions for Failure to Obey Court Order ................................. 150 Spoilation of Evidence……………………………………………… 152 Required Due Process and Findings of Fact .............................. 153 • CHAPTER TWO PRESERVATION AND SPOLIATION OF EVIDENCE I n Florida, all parties have an obligation to preserve evidence when litigation is reasonably anticipated, even if a legal claim has not been filed. However, there is no independent cause of action for spoliation of evidence against a party to the underlying litigation,11 and this discovery handbook does not discuss the elements of a potential spoliation claim against a third- party custodian of potentially relevant evidence. Instead, as a threshold discovery issue that should be given attention at the earliest stages of potential or actual litigation, this chapter discusses whether and when a party may have a duty to preserve relevant evidence, and reviews the spectrum of remedies for negligent and intentional spoliation. PRESERVATION “[T]he first issue that must be addressed in any [preservation- spoliation] analysis is whether a duty exists on the part of the possessor to preserve or maintain the evidence.” 12 If the duty does not exist, the spoliation analysis goes no further. Indeed, the landmark spoliation holding in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987), was grounded in the fact that the defendant hospital had a statutory duty to maintain and produce the medical records sought by the plaintiff . In addition to statutory duties, a regulation, contract, court order, or discovery request may • 11 Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-47 (Fla. 2005). 12 Martino, 908 So. 2d at 348 (Wells, J., concurring); see also Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2d DCA 2012) (before considering whether any spoliation sanction may be necessary, the court must first determine that the evidence did, in fact, exist, and that the alleged spoliator had a duty to preserve it)( called into doubt on other grounds by Adamson v. R.J. Reynolds Tobacco Co., 325 So. 3d 887 (Fla. 4th DCA 2021)). • impose a duty to maintain or preserve certain items.13 However, the duty of preservation is not a strict -liability concept. 14 Instead, it involves a determination of what is reasonable under the circumstances and in light of the nature and type of evidence at issue (such as whether it was tangible or electronic, static or dynamic, etc.) “A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request. ”15 Thus, a party has no duty to preserve items that were never within its custody,16 nor does it have a duty to resist the lawful repossession of an item by a third-party.17 For similar reason, a personal-injury plaintiff has no duty to provide advance notice to a defendant about an upcoming surgery because there is no obligation to preserve the status quo of a litigant’s body for future examination. 18 M oreover, due to the passage of time, even if a preservation duty may have existed in the past, reason may dictate that the duty expired before any request for the evidence was made. 19 Likewise, in the absence of a reasonably diligent preservation request, • 13 Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004) 14 Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1058 (Fla. 2d DCA 2017) (citing Reed v. Alpha Prof’l Tools, 975 So. 2d 1202, 1204 (Fla. 5th DCA 2008)). 15 Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303,1309 (N.D. Fla. 2002) 16 Evidence is not in a party’s custody when it is inadvertently lost or destroyed due to the actions of a third party. Derosier v. Cooper Tire & Rubber Co., 819 So. 2d 143 (Fla. 4th DCA 2002) (holding that no preservation or spoliation issue was presented when separated tread from an allegedly defective tire was discarded by unknown persons immediately after an automobile accident while the plaintiff was being transported to the hospital)(distinguished on other grounds by Coursen v. Toyota Motor North America, Inc., No, 102010CA003069, 2013 WL 1387042 (Fla. Cir. Ct. Jan. 9, 2013)); Fleury v. Biomet, Inc., 865 So. 2d 537 (Fla. 2d DCA 2003) (holding that an allegedly defective artificial knee that was discarded by hospital staff shortly after surgery to remove it was not spoliation of evidence because the knee was not in the party’s custody at the time of its loss). 17 Landry, 226 So. 3d at 1057-58. 18 Faris v. Southern-Owners Ins. Co., 240 So. 3d 848, 851 (Fla. 5th DCA 2018). 19 Martino, 908 So. 2d at 350 (there is no basis upon which to impose any spoliation sanction when a suit is filed two years after an incident and the defendant did not preserve the property during the intervening years); see also Harrell v Mayberry, 754 So. 2d 742, 745 (Fla. 2d DCA 2000) (denying spoliation relief because, among other reasons, the plaintiffs allowed more than four years to pass before requesting another inspection of the item). • Florida’s courts have generally avoided basing a preservation duty on simply a pending or reasonably foreseeable litigation: the courts require further analysis to make such a determination. For example, in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015), the court approved the judge’s reasoning in a bench trial that it was inappropriate for the defendant to systematically delete certain emails and other documents both before and after a lawsuit was filed because the defendant always knew that litigation was a certainty and that the subject emails and documents would be sought in the litigation. 20 On the other hand, in Osmulski v. Oldsmar Fine Wine, Inc. , 93 So. 3d 389, 392 (Fla. 2d DCA 2012), the court held that even though the retail -store defendant knew that the personal-injury plaintiff had pursued a claim against its insurance carrier, the store had no duty to preserve video- surveillance recordings because no written demand for them was made before their automatic deletion. Reasoning that “it [would] not [be] fair to businesses or homeowners to require them to preserve video evidence in the absence of a written request to do so,” 21 the court held: if a defendant has knowledge that an accident or incident has occurred on its property and that same defendant has a video camera that may have recorded the accident or incident, that defendant has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant’s video operations. 22 • As similarly noted in Martino23, a discovery request – and not merely the initiation of a lawsuit – should generally be the earliest trigger for any duty to preserve electronic evidence because the use of “any earlier demarcation point could lead to unlimited and chaotic disruption of electronic recordkeeping,” and impose “unfair and unpredicta ble standards of behavior.” SAFE HARBOR FOR ELECTRONICALLY STORED INFORMATION By rule, there is a good-faith exemption concerning the failure to preserve certain electronically stored information. Pursuant to Rule 1.380(e)(2) 24 of the Florida Rules of Civil Procedure, a party is subject to sanctions “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation.” Upon such finding, the court may: “(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Since Florida’s state courts may consider federal rules as persuasive guidance, practitioners should likewise be aware of Rule 37(e) of the Federal Rules of Civil Procedure, which proscribes how and when federal courts should impose sanctions for the spoliation of electronically stored information. Guidance may also be found in ethics opinions issued by The Florida Bar. For instance, The Florida Bar has found that attorneys may advise clients to change the privacy settings on their clients’ social media pages so they are not publicly accessible, as long as doing so does not violate the rules or • compliance with the rules of civil procedure.”33 Furthermore, before a court may exercise any leveling mechanism due to the spoliation of evidence, it should consider: (1) the willfulness or bad faith, if any, of the party whose actions led to loss of the evidence, (2) the extent of the prejudice suffered by the other party, and (3) what is required to cure the prejudice. 34 In other words, “a trial court must balance the impact of the sanction against the severity of the infraction.”35 Any need to employ a remedial mechanism to ensure a just determination of the case may also depend on the arguments advanced by the parties, such as when the party that failed to preserve the evidence argues that “the thing lost was not as represented by the injured party,” or that the injured party should not prevail because of its failure to present the lost item as evidence. 36 From the circumstances presented in each case, and within the broad discretion of the trial court, a remedy or combination of remedies may be employed, with the spectrum including the admission of evidence about the pre- incident condition of the lost item and the circumstances surrounding its spoliation, as well as instructing the jury on inferences that may be drawn or rebuttable presumptions that it must employ. 37 When the spoliation was merely negligent and not intentional, generally the harshest sanctions that may be appropriate are the use of adverse evidentiary inferences • or rebuttable presumptions.38 For example, an adverse-inference instruction advises the jury that it may, but is not required to, infer that the evidence would have been unfavorable to the party that failed to preserve it. 39 However, even the use of an adverse- inference instruction as the mildest of these remedies is “strong medicine” because it invades the province of the jury. 40 Accordingly, such references “are reserved for circumstances where the normal discovery procedures have gone seriously awry,” such as when a defendant received within ten days of an incident a request to preserve crucial evidence within its possession and the evidence was subsequently destroyed. 41 When there exist specifically enumerated duties to preserve the evidence, such as by statute, regulation, contract, or court order,42 then the negligent loss of such evidence may warrant the use of a rebuttable presumption that shifts the burden of proof as to a particular claim or defense to the opposing party responsible for the loss of the item, such as a rebuttable presumption of negligence or fault. 43 In cases involving intentional spoliation, it may be appropriate to employ the draconian remedy of dismissing a plaintiff’s claims or entering a default judgment against a defendant. 44 And when the spoliation was the result of negligence or inadvertence, the • prejudice may be so great as to warrant such a sanction.45 In the absence of willfulness or bad faith, however, a dismissal or default – the harshest of all sanctions – “is appropriate only when the movant presents evidence (e.g., expert testimony) demonstrating that its case is fatally prejudiced by its inability to examine the spoliated evidence.”46 In other words, to enter a dismissal or default “based solely on prejudice to the movant, the spoliated evidence must be so crucial as to completely prevent the movant from [establishing its claim or defense], not merely prevent the movant from [establishing its claim or defense] completely.” 47 Thus, when necessary, the utilization of an adverse-inference instruction or rebuttable presumption is preferred, and the sanction of dismissal or default is the last resort reserved for the most extreme cases where a lesser sanction would fail to achieve a just result. 48 • CHAPTER THREE ELECTRONIC DISCOVERY The exabytes of digital information streaming about us today are rich rivers of evidence that will help us find the truth and move us to do justice more swiftly, more economically and more honorably than ever before. It will require every litigator to master new skills and tools and alter the approaches and attitudes we bring to the adversarial process. We must reinvent ourselves to master modern evidence or be content with a justice system that best serves the well-heeled and the corrupt. The path to justice is paved with competent evidence and trod by counsel competent in its use. 49 • Digital evidence is important in almost every case because the vast majority of information today is created and maintained electronically. Computers, phones, and other electronic devices pervade our culture. We live in a digital ecosystem. The principal challenge of e-discovery is to cost effectively locate the important case information within the troves of electronically stored information holding information about us. The electronic discovery era has ushered into practice a new discovery paradigm requiring a new mindset and litigation skills.50 THE DUTY OF ELECTRONIC DISCOVERY COMPETENCE Competent client representation requires the legal skills, knowledge, thoroughness, and preparation necessary for the representation. 51 Electronically stored information ("ESI") 52 competence i s essential for effective and efficient electronic • discovery, Lawyers and judges must become and remain competent on ESI fundamentals and discovery. Staying current entails having up- to-date knowledge about how digital information is created, used, managed, stored, communicated, and manipulated. New technology and information cultures are rapidly evolving. Small personal computer devices such as digital phones watches and hundreds of “apps” are linked to cloud storage locations where information may reside indefinitely . Social media locations maintain more data loaded accounts than the most populous nations combined. Similarly, everyday routine appliances and systems -- such as online security systems and the electronic systems on automobiles and machinery record – constantly store and transmit data. Such data generically referred to as the “Internet of Things” is a rich source of evidence. The volume of potentially relevant electronic evidence continues to increase exponentially. INTRODUCTION TO ELECTRONIC DISCOVERY LAW, POLICY, AND PRINCIPLES The complexity in application of discovery rules and policies to ESI has created a burgeoning body of federal common law.53 Florida e-discovery case law is important, but less robust because most Florida trial court judges do not publish their decisions and discovery disputes rarely reach the appellate level . 54 Most importantly, current Florida • Rules of Civil Procedure. The term ESI is not defined in the Florida and federal rules because of the ever - evolving nature of digital information. The Comments to the Federal Rules explain that the term ESI should be construed expansively “to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” 53 This chapter focuses on Florida state court e- discovery. The discussion of federal law herein is undertaken because of the availability of federal law for guidance in state court cases and is not intended to provide practitioners with a manual for e-discovery in federal court. 54 See e.g., League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 390– 91 (Fla. 2015)(duty to preserve potentially relevant evidence is triggered when litigation is reasonably foreseeable); Shamrock- Shamrock, Inc. v. Remark, 271 So. 3d 1200 (Fla. 5th DCA 2019)(absent a statute, contract, or discovery • request to preserve, a third party does not have a duty to preserve potentially relevant evidence because a third party does not have a duty based solely on the foreseeability of litigation); Shir Law Group., P.A. v. Carnevale, 271 So.3d 152 (Fla. 3d DCA Apr. 24, 2019) (forensic examination of the party’s computers by neutral expert was appropriate where parameters and search protocols were crafted to protect against disclosure of privileged or irrelevant information); Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015) (no expectation of privacy in photos posted on Facebook regardless of privacy settings used by producing party); Root v. Balfour Beatty Constr., LLC, 132 So 3d 867 (Fla. 2d DCA 2014) (privacy interest in Facebook postings upheld against overbroad request); Antico v. Sindt Trucking, Inc.,148 So. 3d 163 (Fla. 1st DCA 2014) (access to decedent’s iPhone granted to determine whether she was texting during automobile accident in which she was killed); E.I. DuPont De Nemours & Co. v. Sidran, 140 So. 3d 620, 650 (Fla. 3d DCA 2014) (sanctions not appropriate for fraud on the court in the manner in which ESI was collected and stored by defendant for discovery in multiple suits); Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012), rev. den., 109 So. 3d 781 (Fla. 2013) (preservation obligations before case is filed are explained in this case) ; Holland v. Barfield , 35 So. 3d 2010 Fla. App. LEXIS 6293; 35 Fla. L. Weekly D 1018 (Fla. 5th DCA May 7, 2010) (order granting opposing expert in wrongful death case unrestricted access to review petitioner’s hard drive and SIM card quashed as violative of privacy); Menke v. Broward Cty. Sch. Bd., 916 So. 2d 8 (4th DCA 2005) (establishing basis and limits on access to opposing party’s hardware in order to search for discoverable information); Strasser II: Strasser v. Yalamanchi, 783 So. 2d 1087 (Fla. 4th DCA 2001) (spoliation of electronic records); Strasser I: Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996) (designating Florida procedural rules giving rise to discovery of ESI and the equipment that holds them and setting limits on scope of such discovery); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., No. 03-5045 AI, 2005 WL 674885 (Fla. Cir. Ct. Mar. 23 2005) (one of the best known e- discovery opinions in the country, primarily because the sanctions for ESI spoliation resulted in a default judgment for $1.5 Billion. The judgment was reversed on other grounds). For a more expansive discussion of Florida case law, see Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E- DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic Discovery (2021). The University of Florida Levin College of Law E-Discovery Project maintains a publicly available curated database of Florida state and federal e-discovery cases. https://ediscovery.law.ufl.edu/. 55 See In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, 95 So. 3d 76 (Fla. 2012). 56 See the following Federal Rules of Civil Procedure and accompanying rule commentary pertaining to the 2015 amendment: Rule 16(b), 26(a)(1)(B), 26(b)(2)(B), 26(f), 26(b)(5), 33, 34, 37(f) and 45. See also the large and rapidly growing body of opinions by United States Magistrate Judges and District Court Judges in Florida and elsewhere around the country . Federal law is far more developed than Florida e- discovery law and provides useful guidance for lawyers and judges. That is not likely to change because Florida trial court decisions are seldom published. • 59 https://thesedonaconference.org/publication/The_Sedona_Principles . 60 See “The Sedona Conference® Cooperation Proclamation,” 10 Sedona Conf. J. 331 (2009 Supp.). 61 https://thesedonaconference.org/publication/The_Sedona_Conference_Glossary . 62 https://thesedonaconference.org/publication/Commentary_on_Search_and_Retrieval_Methods . 63 https://thesedonaconference.org/publication/Commentary_on_Achieving_Quality_in_the_E - Discovery_Process. 64 https://thesedonaconference.org/search/node/%22legal%20holds%22 65 https://thesedonaconference.org/publication/Primer_on_Social_Media 66 See e.g., Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic Discovery (2021) updated annually and available from LexisNexis and from The Florida Bar. 67 www.aceds.org. • information. ESI (i) is alterable; (ii) is frequently ephemeral; (iii) is easily hidden, mislabeled, or destroyed; (iv) is stored in multiple locations, (v) is created in a variety of formats; (vi) is searchable ; and (vii) contains metadata. ESI is also voluminous. One thousand gigabyte (the equivalent of one terabyte) computer hard drives are now standard issue. A single gigabyte of text-based information is equivalent to thirty Bankers boxes filled with paper or the amount of paper that would fill the bed of a pickup truck . Many people today receive hundreds of e-mails and text messages a day that are stored in multiple locations, some of which may be unknown to the recipient. It is not uncommon for business managers to maintain hundreds of thousands of emails and attachments . Large enterprises commonly store trillions of emails and attachments and may have to search through millions of emails to locate relevant evidence. Not all electronically stored information is easily collected. Obtaining information from backup tapes presents challenges. Specialized software is necessary to recover deleted emails. Data stored on old legacy computers and expired software present retrieval challenges. These accessibility challenges raise issues of cost, proportionality, and burden shifting. The places on which ESI can be stored or located are manifold and ever changing and include the over one-trillion websites that now exist on the Internet. ESI is easier and cheaper to search and to produce in electronic form than the same quantity of paper documents, but it is often much more difficult to locate and retrieve all relevant ESI because of the high volume of total ESI maintained on a multiplicity of systems. The cost and difficulty of ESI production is compounded by the need to review the • person from whom discovery is sought has the initial burden of showing that the information sought, or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made by specific evidence, the court may nonetheless order the discovery upon a showing of good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery. 78 In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), the court set forth an analytical framework for determining whether it is appropriate to shift the costs of electronic discovery . If the responding party is producing data from “inaccessible” sources, i.e. data that is not readily useable and must be restored to an accessible format, the court identified seven factors to be considered in determining whether shifting the cost of production is appropriate. 79 The current Rule 26(b) of the Federal Rules of Civil Procedure takes Zubulake a step further by requiring all discovery, even from locations that are reasonably accessible to be bounded by proportionality. The scope of discovery may also be limited by the producing party or person’s privacy rights, as when the relevance or need for the information requested does not exceed the privacy interests of the person or party from whom it is sought. 80 • 81 FLA. R. CIV. P. 1.285. 82 FLA. R. CIV. P. 1.285(a). 83 Id. The notice must include specifics on the materials in question, the nature of the privilege asserted, and the date on which inadvertent disclosure was discovered. The process applies to any privilege cognizable at law, including the attorney -client, work product, and the several other types of privileges recognized in the Florida Evidence Code. See Fla. Stat. §§ 90.501 –90.510 (journalist, lawyer -client, psychotherapist-patient, sexual assault counselor-victim, domestic violence advocate-victim, husband-wife, clergy, accountant-client, and trade secret privileges). Id. 84 FLA. R. CIV. P. 1.285(b). Nothing in Rule 1.285 diminishes or limits any ethical obligation with regard to receipt of privileged materials pursuant to Fla. R. Prof. Conduct 4-4.4(b). Id. 85 FLA. R. CIV. P. 1.285(c). 86 FLA. R. CIV. P. 1.285(d). • possess or control evidence and those who seek to use it in litigation. 98 For counsel advising clients on preservation duty, it is essential to advise the client to preserve potentially relevant evidence as soon as there is a reasonable chance a lawsuit will ensue.99 A finding of spoliation against client or counsel is indeed a serious outcome and may have ramifications beyond the case at issue. A common e -discovery issue for parties and counsel is the “scope” of evidence that must be preserved. Virtually all cases involve decision-making on the time frame for preservation, the substantive content which determines whether documents are relevant, and the breadth of places in which relevant evidence may be found. In large cases, parties may delineate preservation by persons who are likely to have relevant information. Persons likely to have access to relevant ESI are often called “custodians” by virtue of the ESI being located their email account, text message account, etc. The very breadth of reasonably required preservation may raise issues of burden and cost. However, in applying proportionality to limit discovery duties, counsel must be careful to distinguish between scope of preservation versus scope of production. Preservation occurs at a point in time in which potential issues may not be crystallized and the relevance of certain documents may be fuzzy or indeterminable . Counsel and parties should usually err on the side of preservation, at least until the relevance pict ure sufficiently clarified to safely determine non -relevant information . While some federal cases have expressed the principle that scope of preservation efforts may be guided by • 98 Loss of evidence can be devastating to the party whose case would benefit from lost evidence; but a person or party holding relevant evidence may likewise suffer through sanctions if the evidence is lost or destroyed. 99 See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 390–91 (Fla. 2015)(duty to preserve potentially relevant evidence is triggered when litigation is reasonably foreseeable) . • reasonableness and proportionality, 100 other federal courts disagree. 101 In any event, counsel should advise a client to put a litigation hold in place and undertake reasonable efforts to identify and preserve evidence that is relevant by discovery standards.102 As for counsel’s duties with regard to preservation of evidence, the seminal federal case was written by Manhattan District Court Judge, Shira Scheindlin. It is actually a series of opinions written in the same case, collectively known as Zubulake, after the plaintiff, Laura Zubulake. There are four key opinions in this series. 103 These decisions are widely known by both federal and state judges and practitioners around the country. Judge Scheindlin’s last opinion, Zubulake V , has had the greatest impact upon federal courts and is also starting to have an impact on state courts, including Florida. In Zubulake V, Judge Scheindlin held that outside legal counsel has a duty to make certain that their client’s ESI is identified and placed on hold . This new attorney duty arises because of the unusual nature and characteristics of ESI and information technology systems in which ESI is stored . Unlike paper documents, ESI can be easily modifi ed or deleted, both intentionally and unintentionally . In many IT systems, especially those • 100 See e.g., Victor Stanley, Inc. v. Creative Pipe, Inc ., 269 F.R.D. 497, 523 (D. Md. 2010); Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010) (“Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done--or not done--was proportional to that case and consistent with clearly established applicable standards”). 101 Orbit One Commc’ns, Inc. v. Ronsen, 271 F.R.D. 429 (S.D.N.Y. 2010) (“Although some cases have suggested that the definition of what must be preserved should be guided by principles of "reasonableness and proportionality," [citations to Victor Stanley and Rimkus omitted], this standard may prove too amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may recycle.”). 102 Information on preservation advice and litigation holds in Florida state court litigation is found in Ch. 5, Initial Procedures in EDiscovery and Preservation of Evidence in Florida State Court, Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic Discovery (2021). 103 Zubulake v UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ( Zubulake IV); and Zubulake v. UBS Warburg LLC , 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V). • Of course, a party to litigation may have a duty to preserve evidence in various forms, paper or ESI, and the bad faith failure to do so may constitute actionable spoliation. This is nothing new.105 But the extension of this duty to the litigants’ outside legal counsel in Zubulake V , which is sometimes called the “ Zubulake Duty,” is fairly new and controversial.106 Although the “ Zubulake Duty” has been accepted by many federal judges in Florida and elsewhere, it is unknown whether Florida state court judges will also • However, counsel is obligated to have sufficient knowledge of client’s IT systems to allow counsel to competently supervise the client’s evidence preservation efforts, or lacking such knowledge and competence, should retain experts who do. The duty to preserve of client and counsel may require a corporate client in certain circumstances to provide a written litigation hold notice to its employees who may be involved in the lawsuit, or who may otherwise have custody or control of computers and other ESI storage devices with information relevant to the lawsuit . The notice should instruct them not to alter or destroy such ESI. The potential witnesses to the case should • be instructed to construe their duty to preserve ESI broadly and reminded that the ESI may be located in many different computers and ESI storage systems, including for instance, desktop computers, laptops, server storage, CDs, DVDs, flash drives, home computers, iPods, iPads, iPhones, blackberries, Internet storage webs (cloud computing), social media accounts, Internet e- mail accounts, voice mail, etc . The client’s IT department or outside company should also be notified and instructed to modify certain auto-deletion features of the IT system that could otherwise delete potentially relevant evidence. In some cases, it may also be necessary to preserve backup tapes, but this is generally not required, especially if the relevant information on the tapes is likely just duplicative. 109 There should be reasonable follow-up to the written notice, including conferences with the key players and IT personnel. In 2010, Judge Scheindlin wrote another opinion on the subject of litigation holds and ESI spoliation that she refers to as a sequel to Zubulake. 110 Pension Committee provides further guidance to federal and state courts on preservation issues, and the related issues of sanctions . Judge Scheindlin held that the following failures constitute gross negligence and thus should often result in sanctions of some kind: After a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence. Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached: to issue a written litigation hold, to identify the key players and to ensure that their electronic and paper records are preserved, to cease the deletion of email or to preserve the records of • it is entitled to receive all emails containing “cobalt” or “Prosser.” Is Party A entitled to the discovery of all the emails identified in the word search using these terms? Answer: NO. Relevancy is determined by examination of the document itself. The words used in a search, even if they are agreed upon by the parties as appropriate search terms, are but a tool to identify potentially relevant documents . Relevancy is determined by legal analysis of whether the document is (1) relevant to the case's subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court.120 Documents that turn up in a word search may or may not meet these criteria, and Party B is only obligated to produce discoverable documents. The analog equivalent to the demand made by party A is to request a search of all file folders with the words “Cobalt” and “Prosser” on the file labels and then contend that all paper within those folders is discoverable . The determination of relevancy is made by examination of the document itself, not normally by the wording of the label on the folder in which the document is found. While not a perfect solution, and currently not the most sophisticated search methodology available, 121 Boolean keyword search strings are still widely utilized. When keywords are used, they should be carefully tested in advance to evaluate efficacy and multiple refinements should be considered, typically Boolean logic combinations ( AND, OR, NOT), proximity ranges, and parametric limitations (keywords searching in specific document fields). However, asking the judge to determine the search terms is not a good solution. Judges are not information retrieval experts . Parties should confer with each • 122 Artigliere & Hamilton, LEXISNEXIS PRACTICE GUIDE: FLORIDA E-DISCOVERY & EVIDENCE, § 9.14[3] (2021). • electronic evidence.123 Custodians are, for instance, quite likely to unintentionally change a computer file’s metadata. Simply opening or copying a file may change metadata fields. These altered metadata fields may prove to be import ant to the case. Custodians are also unlikely to have a sophisticated understanding of legal relevance typically adopting an overly narrow construction. After collection, the ESI is typically processed to eliminate redundant duplicates and meaningless words, such as “a”, “the,” “to,” and to prepare the ESI for search and viewing. Processing may be thought of as creating a searchable index of the words in the document collection. An e-discovery search does not search the documents themselves; all that is searched is the index. One of the factors of search quality is the quality of the index. Litigation counsel should be apprised of the indexing features of t he chosen software. Different software platforms will produce different search results because of the different document indexes. After processing, the ESI is then searched for relevancy, and the subset of potentially relevant ESI is then reviewed for final relevancy, privilege, and confidentiality. Typically, a small percentage of produced documents are redacted to eliminate from viewing privileged or confidential information. Only after this review is production made to the requesting party . All document productions should undergo a “quality control check” and statistical sampling to make reasonable assurances privileged or non-responsive documents are not being produced. FRAMEWORK FOR THE TRIAL LAWYER FACING E-DISCOVERY • 1. Familiarize yourself as early in the case as possible with the client’s electronic records and computer systems used for storing this ESI, including how ESI is distributed, maintained, deleted, and backed -up. If the client has a routine destruction policy for hard copies, or also for ESI (and most companies now do), address the issue of preservation immediately . Failure to preserve records, including ESI, may result in severe sanctions for the client and possibly counsel. 2. Ensure that written preservation hold notices are provided (in a timely manner) by the client to persons who may hold relevant ESI within their control that instructs them to immediately preserve any potentially relevant ESI and to not alter or destroy potentially relevant ESI pending the conclusion of the lawsuit. Notice should also be provided to third parties who are believed to hold or control ESI that is likely to be relevant to issues in the case . Counsel should follow -up on these written notices by prompt personal communications with key players, and then periodic reminder notices thereafter. Caution should be exercised is relying upon custodians to locate or collect potentially relevant ESI. In some circumstances such self -collection should not be permitted, or it should be supplemented by bulk collection of all the custodians' ESI. Bulk collection of all a custodian’s email within a certain date range is the rule in all but small cases. Keyword based collection is also disfavored in all but smalle r cases because of the known unreliability of keywords and concern that important evidence will be omitted. Mistakes are easily made in ESI preservation and collection, and counsel has a personal duty to supervise the preservation, search and collection of potentially relevant ESI. If counsel is not competent to carry out these responsibilities in a particular m atter, then counsel should affiliate with other counsel who are competent. The hiring of non-law firm • benefit.126 12. Electronic discovery is typically conducted in phases wherein the most easily accessible and likely relevant ESI is searched and produced first . Then the necessity for further discovery is evaluated. ESI reviewed in the first phase is often limited by date range, custodians, volume, and storage location. 13. Ensure to the extent possible that the value of the discovery sought and produced is proportional.127 Counsel should attempt to negotiate an e -discovery budget range based on the value of the case and other proportionality factors. 14. If any of the foregoing steps require expert consultation or assistance, find a suitable expert and involve the expert early in the e- discovery process even including the preservation phase. Again, parties should consider the advisability of sharing a neutral third-party expert, which can realize substantial cost and time savings. 15. Seek protection analogous to the protections offered by Federal Rule of Evidence 502. Fed. R. Evid. 502 allows parties to claw back information that has been inadvertently produced so long as the “court” finds that reasonable steps to prevent and rectify the disclosure were taken. Additionally, a court order under Fed. R. Evid. 502(d) provides the parties with the ability to claw -back the produced document regardless of whether inadvertence and regardless of whether “reasonable steps” were tak en to prevent the disclosure. Counsel litigating in Florida state courts, should seek analogous orders from state court judges. REQUESTING PRODUCTION AND MAKING PRODUCTION OF ESI • 128 FLA. R. CIV. P. 1.350(b). 129 Native format is a copy of the original electronic file. For example, e-mail from an Outlook e-mail program would be produced in a *.pst file. Native format files include the metadata of the original file. Native format files also are easy to modify . This presents difficulties in ensuring that the data has not altered after being produced. Cooperation of counsel and well -documented procedures are required to allow effective use of native format evidence at depositions and trial. • decision.133 The printed- out versions do not contain metadata, which may be discoverable. In addition, the printed version is not “reasonably usable” because a non- electronic version is not searchable which is essential when reviewing large numbers and volumes of emails. Metadata may also be needed for authentication when the time comes to introduce the information into evidence. Finally, the lack of metadata and production in an electronic format prevents the requesting party from organizing the information with the requesting party’s software according to date, subject matter, recipient, and sender. Fortunately, as discussed above, Rule 1.350(b) directly addresses this situation. Party A, having made a proper request, is entitled to receive the emails in the form requested unless there is an objection followed by an agreement by the parties or court determination on form. The dispute may have been avoided if Party B’s counsel contacted Party A before going through the extra expense of providing paper copies. In any event, the Rules anticipate that electronically stored information will be produced in a reasonable useable format. Printing ESI to paper is per se not reasonably usable format. The form of production may also be an issue when exercising the option to produce records in lieu of answering interrogatories, so the amendments to the civil rules effective September 1, 2012, (1) specifically authorize the production of electronically st ored information in lieu of answers to interrogatories, and (2) set out the procedure for determining the form in which to produce the ESI. 134 If the records to be produced consist of electronically stored information, the records must be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms. 135 • significant challenges in preservation of social media content. Social media sites routinely have privacy settings in which some information is public while other information is available to “friends” or another limited audience. However, in the civil discovery context, information and photographs posted on social media are not protected by any right of privacy regardless of any privacy settings that the user may have established. 140 Most social media sites include features allowing members to send direct messages between themselves, much like emails or text messages. Assuming relevancy under the facts and circumstances of a given case, social media evidence is discoverable. 141 However, not all information on social media will be relevant. The challenge for the parties and courts is limiting access to relevant social media information while protecting legitimate privacy interests in non-relevant information. Social media may contain important relevant evidence in any number of different legal disputes. It is important to note that the information of a member in a social media site is not obtained by subpoena of the social media provider itself, any more than email is obtained by subpoena of an email provider . The information is discovered from the member. It is their information, they own it, not the providers, and thus the proper course of conduct is a request for production, or subpoena, from them. 142 DISCOVERY OF ELECTRONIC MEDICAL AND HEALTH RECORDS • Presumptively, the same discovery principles and law for ESI in general apply to electronic medical records. However, electronic medical records, or the more inclusive expression electronic health records ("EHR"), present additional layers of issues for lawyers and judges in discovery and presentation of evidence. 143 Some of the more common discrete and overlapping issues complicating discovery of EHR include: (1) identifying what is relevant, proportional, and discoverable from the sometimes massive amount of data that health care providers amass administratively and medically in caring for patients; (2) protecting privacy interests of the target patient, other patients, and the health care provider; (3) identifying exactly constitutes a patient's medical record or chart; (4) economy, proportionality, and cost of processing records; (5) form of production; (6) proprietary information regarding vendor software; (7) communication of needs of requesting party and capabilities and requirements of the producing party; (8) identifying misleading, counterfeit, or altered data in EHR. As with any civil discovery, addressing discovery of EHR involves consideration of whether the request for records is made: by or to (i) a party or nonparty, (ii) a fact witness or expert witness, a health care provider or (iii) other entity or person pos sessing the records; in the course of an ongoing case or by request outside the case; during Florida's presuit process or during the case in chief; and with or without the patient's express written authorization. In each scenario, the requesting party should carefully craft communication so that the request clearly describes the scope and format of the records requested and the basis or authority by which the records are requested. • for discovery than access as prescribed by the trial court. 152 When direct inspection is appropriate, a protocol must be in place that requires the inspecting expert to disclose the relevant document located in the search to the producing party prior to production to the request party. The producing may then designate any of the documents as privileged. The requesting party then receives the non- objected to relevant documents and a privilege log that may subsequently be contested. SELF-HELP “DISCOVERY” Self-help discovery and private investigation occurs outside the litigation’s compulsory discovery processes. Valuable information may be accessed without alerting the opponent or witnesses from whom or about whom the information is collected. A simple example of self -help discovery is obtaining information available on the internet about a party, witness, opposing counsel, issue in the case, or industry or organization . Accessing social media to obtain publicly available information through self-help methods can be cost-effective if properly done, but there are some caveats and cautions. As with any collection of ESI for use in litigation, copying of the computer files should be done in a manner that does not alter or delete relevant information, such as contextual material or the metadata in or associated with the ESI. Collection by attorneys, attorney staff, or clients may be a dangerous practice due to technical limitations and increased risk of accidental or intentional deletion of electronic evidence . Further, the person who searches, finds, and collects information may be required to testify to establish the predicate a trial for its admission into evidence. If the information is sufficiently important to collect for litigation, it should be collected, stored, and preserved • properly, and include information necessary for ultimate introduction of the ESI into evidence. This may require sophisticated or expert involvement. Example: In an employment case, your employee client finds a government website that contains data in a spreadsheet about the employer’s industry that are relevant to issues in the case. The client takes a “screenshot” of the portions of the spreadsheet that apply to the employer and brings it to you. You print the screenshot to paper and place it in your file for potential use in the case . What issues may arise in connection with moving the paper screenshot into evidence? Answer: At this point, the file contains essentially a “picture” of a portion of ESI, so the client may ultimately need to testify at a minimum that the screenshot is a true and accurate depiction of what appeared on the website on the date and time of the screenshot. The client as well as the completeness and accuracy of the document are subject to challenge and cross-examination unless there is an admission on authenticity or admissibility from the opposing party . Spreadsheets may contain metadata, internal calculations, footnotes, and other information that may be essential to the case. The data on the government website may change at any time or may not otherwise be available in the future, so a full and proper collection should be done right away by a sophisticated person, including contextual information and metadata. If necessary, use competent and effective witnesses to obtain publicly available evidence. Proper collection, storage, and preservation of databases and spreadsheets can be technically challenging. Self-help collection of information that is not clearly public information can be problematic. Self-help is only productive if it is done within the law. 153 Efforts to access a • through formal rather than self-help discovery.158 TEN PRACTICAL STEPS FOR HANDLING ELECTRONIC EVIDENCE 1. Plan carefully to secure the client’s relevant electronic evidence and to obtain evidence from the opponent or third parties . Electronically stored information (ESI) is volatile and may be altered, corrupted, or lost by human accident or error, by malicious intentional conduct, or through the automated operation of computers. 2. Plan carefully before and during discovery to obtain and to secure the foundation needed to admit evidence . Frequently, foundation is available in the form of metadata or other electronically stored information such as the file path, which may be available for a limited time and is volatile, alterable, or corruptible . Foundation may also be obtained through testimony or ancillary ESI or information about the equipment or software associated with the ESI . Many times, such information or testimony is readi ly available only for a limited time. Plan for the admission of electronically stored information in the collection process. Manage the opposition so that the produced information will contain foundational information. 3. Request admission of the authenticity and admissibility of ESI whenever possible . Obtaining admissions on admissibility is not only economical; it saves drudgery and wasting of time during trial which can alienate the jury or judge. 4. When in doubt, err on the side of preservation. The scope of preservation and the timing of when preservation is triggered are based upon the circumstances of the case. Reasonable counsel may differ. However, the “down side” of • potential sanctions against a client and attorney who fail to preserve electronic evidence or who engage in spoliation are universally less acceptable than the burden of preservation. If preservation appears overly burdensome, seek judicial assistance in advance under the doctrine of proportionality . Seeking forgiveness after destruction of evidence is not a reasonable strategy. Avoid client preservation and self-collection. Work especially closely with international clients not familiar with U.S. based dis covery obligations. 5. Use summaries and charts rather than voluminous printouts when presenting evidence to the trier of fact. The rules permit the admission of a summary document distilling of numerous and obscure documents into a cogent and organized chart if the chart is accurately based on admissible evidence, is introduced by a qualified witness and properly noticed, and will assist the trier of fact in understanding the evidence. Presenting important evidence in organized form is much better than relying on a jury to locate information in a maze of exhibits. 6. Check public sources or social media. Information may be readily available from the Internet and especially social media. Valuable information may be retrievable outside formal discovery without alerting the opponent . When copying such media try to capture as much metadata as possible and document when the information was captured. The capture of a website as a PDF file will have its own metadata that may be used to demonstrate the capture time and date. 7. Use competent and effective witnesses to obtain publicly available evidence. Frequently authentication of evidence will require a witness to testify about the manner in which the evidence was obtained and the device or software associated with • (ii) has adopted a reasonable plan to obtain documents in a timely and reasonable manner, and (iii) is purposefully implementing that plan in good faith. Responding to Document Requests When responding to a request for production or inspection served pursuant to Rule 1.350, the responding party is required to state each discovery request in full as numbered, followed by the answer, objection, or other response. 163 To accommodate opposing counsel, attorneys should provide their opposing counsel with copies of their requests for documents in a format so their opposing counsel does not need to re- type the requests for documents in their response. 164 A response to a request for production should never be intentionally delayed to prevent opposing counsel from inspecting documents prior to a scheduled deposition or for any other tactical reason.165 A party is not required to produce evidence that the party does not have,166 nor manufacture evidence that does not exist.167 A party and counsel ordinarily have complied with the duty to respond to a document request if they have: • Responded to the requests within the time set by the governing rule, stipulation, or court-ordered extension; • Objected with specificity to objectionable requests; • Produced the documents themselves (or copies), specifically identified those documents that are being or will be produced, or specified precisely where the • documents can be found and when they can be reviewed. If the documents will be produced, the response should state a specific date when the responsive documents will be available. For example, to state that the requested documents will be made available at a “mutually agreeable time” is not sufficient. • Stated specifically that no responsive documents have been found or that no responsive documents are in the possession, custody or control of the responding party; and • Ensured a reasonable inquiry with those persons and a reasonable search of those places likely to result in the discovery of responsive documents. Objections Attorneys should not make objections solely to avoid producing documents that are relevant to the case or that are otherwise necessary to discover or understand the issues. “Relevancy” is broader in the context of discovery than in the trial context. 168 A party may be permitted to discover relevant evidence that would otherwise be inadmissible at trial if it may lead to the discovery of relevant evidence. 169 Also, it is misconduct to conceal a document, even temporarily, and even when the information may be available to opposing counsel by other means or from other sources. 170 Likewise, attorneys should not strain to interpret a request in an artificially restrictive manner to avoid disclosure . Attorneys should only object on the grounds of privilege or work -product when truly appropriate. When requests are unclear, counsel should attempt to discuss the requests with opposing counsel so that the requests can • evidence all facts essential to the establishment of the privilege or protection relied upon. Failure to file a motion to compel may result in a waiver of remedies otherwise available.179 Also, while waiver of attorney -client and work -product privileges is not favored in Florida,180 failure to provide a privilege log when objecting based on privilege may amount to a waiver of privilege.181 Oral Requests for Production of Documents As a practical matter, many attorneys produce or exchange documents upon informal request, often confirmed by letter. An attorney’s promise that documents will be produced should be honored. Requests for production of documents and responses may be made on the record at depositions but usually should be confirmed in writing to avoid uncertainty. An informal request may not support a motion to compel. Location of Production As a matter of convenience, the request may suggest production at the office of either counsel. Courts expect the attorneys to reasonably accommodate one another with respect to the place of production and shall make the records available in a reasonable manner (i.e., with tables, chairs, lighting, air conditioning or heat, and the like if possible). 182 Available for Copying • recognition systems . The parties are encouraged to then use marked or stamped documents as deposition and trial exhibits . This marking will prevent later confusion or dispute about which documents were produced. For relatively few documents, a list prepared by the inspecting attorney (which should be exchanged with opposing counsel) may be appropriate; however, when more documents are involved, the inspecting attorney may want to number each document . The producing party should allow such numbering so long as marking the document does not materially interfere with its intended use. Documents that would be materially altered by marking (e.g., promissory notes) should be listed rather than marked . Alternatively, copies of the documents (rather than originals) may be marked. Copying Photocopies of the original documents are often prepared by the producing party for the inspecting party as a matter of convenience . However, the inspecting party has the right to insist on inspecting the original documents. The photocopying of documents will generally be the responsibility of the inspecting party, but the producing party must render reasonable assistance and cooperation depending on its staffing facilities . In a case with a manageable number of documents, the producing party should allow its personnel and its photocopying equipment to be used with the understanding that the inspecting party will pay reasonable charges. If a large quantity of documents is produced, it may be reasonable for the inspecting party to furnish personnel to make copies on the producing party’s equipment or it may be reasonable for the inspecting party to furnish both the personnel and the photocopying equipment. It may also be reasonable for the documents to be photocopied • admissions privileged and applicable only to the instant proceeding, a Fifth Amendment privilege may still apply if the question asked could evoke a response “forming a link in the chain of evidence which might lead to criminal prosecution.” 213 In a concurring opinion, Justice Marshall with the United States Supreme Court stated: A witness is generally entitled to invoke the Fifth Amendment privilege against self -incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compuls ion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial . . .The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution of the witness.” 214 • CHAPTER FIVE PROPER CONDUCT OF DEPOSITIONS Starting on the date of admission to The Florida Bar, counsel pledges fairness, integrity and civility to opposing parties and their counsel, not only in court but also in all written and oral communications.220 The Rules Regulating the Florida Bar also prohibit a lawyer from “unlawfully obstruct[ing] another party’s access to evidence,” “fabricat[ing] evidence” or “counsel[ing] or assist[ing] a witness to testify falsely.” Rule 4-3.4. See also Rule 3 -4.3 and 3- 4.4 (misconduct may constitute a ground for discipline); Rule 4- 3.5 (Disruption of a Tribunal); Rule 4- 4.4 (Respect for Rights of Third Persons); Rule 4- 8 (Maintaining the Integrity of the Profession). The Florida Bar’s “Guidelines for Professional Conduct,” promulgated jointly by the Conference of Circuit Court Judges, the Conference of County Court Judges, and the Trial Lawyers Section of the Florida Bar, specifically address deposition conduct. 221 These guidelines make clear that counsel should refrain from repetitive and argumentative questions, as well as questions and comments designed to harass or intimidate a witness or opposing counsel. Counsel are also advised not to engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. Rule 1.310(c) of the Florida Rules of Civil Procedure provides that “examination and cross-examination of witnesses may proceed as permitted at trial.” It is the firm position of the Conference of Circuit Judges and the Conference of County Court Judges that the intention of Rule 1.310(c), as quoted above, is that counsel shall conduct themselves at • Experts generally are qualified to render opinions based on their experience, background, and training. In medical malpractice actions, the law imposes additional requirements to ensure the expert has the necessary expertise. 234 Like any witness, however, an expert and the testimony the expert presents are subject to impeachment. Challenges to the expert’s qualifications and the validity of an opinion may be made to the court in its gatekeeper role; and, if the opinion is allowed, challenges may be made before the trier of fact by way of cross-examination and rebuttal. 235 General challenges to an expert’s qualifications include the knowledge, skill, experience, training, and education of the witness . Rarely, however, will an expert be excluded on general challenges to qualification. Indeed, the court should not exclude an expert's opinion based on matters that go to the weight of the expert’s opinion because it is the exclusive province of the jury to weigh the evidence. 236 Challenges that go to the weight of an expert’s opinions include the reasons given by the witness for the opinion expressed, the reasonableness of the opinion in light of all surrounding facts and • 233 Updated by the Honorable Elizabeth G. Rice, Circuit Judge, Thirteenth Judicial Circuit, with significant contributions by Aaron Proulx, Esquire. 234 E.g., FLA. STAT. § 766.102(5) (2018). 235 In 2019, the Florida Legislature amended section 90.702 and 90.704, Florida Statutes, of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard, the standard for expert testimony found in Federal Rule of Evidence 702. In re Amendments to Florida Evidence Code, 278 So. 3d 551, (Mem)–552 (Fla. 2019), reh'g denied, SC19- 107, 2019 WL 4127349 (Fla. 2019). 236 See e.g., Univ. of Fla. Bd. of Trs. v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) (citation omitted). • 237 See FLA. STD. JURY INSTR. (CIV) 601.2. 238 See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L.ED.2d 347 (1974) (“A more particular attack on the witness’s credibility is effected by means of cross -examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.”) (quoting 3A J. W IGMORE, EVIDENCE s 940, p. 775 (Chadbourn rev. 1970)). 239 Smith v. Eldred, 96 So. 3d 1102, 1104 (Fla. 4th DCA 2012). 240 FLA. R. CIV. P. 1.280(b)(1) (Scope of Discovery – 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 • discovery to uncover evidence of bias is permissible for all the same reasons discovery on any trial issue is permitted.287 Judge Torpy also observed that the extent to which discovery is permitted on this issue of bias is a function of balancing its importance against the burden of providing the discovery.288 He concluded that in most instances, the correct balance is the same balance contained in Rule 1.280(b)(5)(A)(iii), because there is no logical distinction between treating physicians and “retained” experts for purposes of uncovering this type of informa tion. 289 The information to be obtained from this type of expert witness is similarly relevant, and the burdens of producing the information are the same for all of these types of professionals. 290 The distinction between “pure” and “hybrid” treating physicians has also been addressed by the federal courts in the context of Federal Rule of Civil Procedure 26(a) disputes regarding witness disclosures. 291 In resolving these types of disputes, federal courts (as did Judge Torpy) have focused on the substance of the expert’s testimony and have found the rule-of-thumb label of “treating physician” irrelevant. 292 Although arising • 305 Worley, 228 So. 3d at 23 n.4 (“A letter of protection is a document sent by an attorney on a client's behalf to a health-care provider when the client needs medical treatment, but does not have insurance. Generally, the letter states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider's bill from the proceeds of [a] settlement or award; and typically, if the client does not obtain a favorable recovery, the client is still liable to pay the provider's bills.”) (quoting Caroline C. Pace, Tort Recovery for Medicare Beneficiaries: Procedures, Pitfalls and Potential Values, 49 H OUS. LAW. 24, 27 (2012)); Carnival Corp. v. Jimenez, 112 So. 3d 513, 516 n.3 (Fla. 2d DCA 2013). 306 Carnival Corp., 112 So. 3d at 520. See also Worley, 228 So. 3d at 23 (recognizing that “bias on the part of a treating physician can be established by providing evidence of a . . . (LOP), which may demonstrate that the physician has an interest in the outcome of the litigation”). 307 See Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. 4th DCA 2013) (emphasizing relevance of evidence pertaining to a letter of protection to show potential bias) . See also Smith v. Geico Cas. Co., 127 So. 3d 808 (Fla. 2d DCA 2013) (concluding trial court did not abuse its discretion in allowing defendant to question plaintiff’s treating doctors about their reduction-of-fee agreements); Carnival Corp., 112 So. 3d at 520 (finding defendant could properly present evidence at trial and argue to jury that plaintiff’s treating physician was more likely to testify favorably on plaintiff’s behalf because of his financial interest in case arising from letter of protection). 308 See e.g., Pack, 119 So. 3d 1284 (recognizing existence of potential bias arising from letter of protection and distinguishing rulings in Katzman and Steinger regarding referral relationship). • 309 FLA. R. CIV. P. 1.280(b). See also Worley , 228 So. 3d at 23- 24 (stating that “bias on the part of the treating physician can be established by providing evidence of a letter of protection”). 310 See FLA. R. CIV. P. 1.280(a). See generally FLA. R. OF CIV. PRO. FORMS – STD. INTERROGATORY FORMS as to physicians who treated or examined party. 311 See FLA. R. CIV. P. 1.390(b). 312 See Worley, 228 So. 3d at 24 (finding that “bias on the part of the treating physician can be established by providing evidence of a letter of protection … which may demonstrate that the physician has an interest in the outcome of the litigation”). 313 See infra, p. 97 DISCOVERY SERVED DIRECTLY ON THE EXPERTS. 314 Worley, 228 So. 3d at 18, 22. • rather is speaking for the corporation.332 Accordingly, Rule 1.310(b)(6) allows a party to depose a representative of a treating physician’s or an LOP Provider’s practice. 3. “Relationship Bias” Discovery Pursuant to the Florida Supreme Court’s rationale in Boecher, it would appear that relationship bias discovery regarding a non-party medical provider is available only from a party. As mentioned, the Florida Supreme Court’s justification in Boecher for expanding the discovery of impeachment information beyond what it had pronounced was the limit in Elkins, was that the discovery at issue in Boecher was served directly to a party .333 Because this additional information was discoverable only because it was propounded on a party, the defense is not entitled to this information in a deposition of the expert nor a corporate representative deposition of the treating physician’s or an LOP Provider’s practice. However, the defense is entitled to discover the existence of a referral relationship with the plaintiff’s law firm directly from a “hybrid” treating physician or an LOP Provider because the evidence code clearly allows a party to attack a witness’s credibility based on bias. 334 Indeed, the existence of a reciprocal referral arrangement between a “hybrid” treating physician or an LOP Provider and a plaintiff’s law firm could reasonably be viewed as creating a bias toward testifying favorably for a party. 335 • bias on the part of the treating physician can be established by providing evidence of a letter of protection (LOP), which may demonstrate that the physician has an interest in the outcome of the litigation. In the instant case, Worley was treated by all of her specialists pursuant to letters of protection. Bias may also be established by providing evidence that the physician's practice was based entirely on patients treated pursuant to LOPs, as was found in the instant case. Specifically, a Sea Spine employee testified during depositions that at the time of Worley's treatment, its entire practice was based on patients treated pursuant to LOPs. Additionally, medical bills that are higher than normal can be presented to dispute the physician's testimony regarding the necessity of treatment and the appropriate amount of damages.337 • E. Discovery in Support of Unreasonable Medical Bill Defense In personal injury actions, plaintiffs must prove their medical expenses are reasonable.339 Consequently, defendant tortfeasors are entitled to obtain certain items of discovery to demonstrate that such medical expenses are not reasonable. Because Rule 1.280 permits parties to obtain discovery regarding matters that are relevant, a defendant may take the deposition duces tecum of a treating physician or an LOP Provider to obtain these items of discovery to challenge the reasonableness of a plaintiff’s medical bills. Some items of discovery that have been found relevant in challenging the reasonableness of medical bills have been borrowed from case law involving medical providers’ collection efforts against patients. 340 In Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc. , the Second District Court of Appeal ruled that where a medical provider sues a patient to collect on a medical bill, the defendant patient is entitled to discovery that would enable the patient to challenge the reasonableness element of the provider’s case. 341 In particular, the Giacalone court observed three non- exclusive kinds of evidence relevant in the determination of a claim of unreasonable pricing by a hospital - (1) the relevant market for services (including the rates charged by other similarly situated providers for similar services); (2) the usual and customary rate that the provider charges and receives for its services; and (3) the provider’s internal cost structure. 342 Other courts examining • pretrial case management order by the trial court: [a]n 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 m ental 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. 370 • even though the examinee had her own videographer present.400 The Second and Third DCAs follow this opinion. In most circumstances, the examinee’s desire to have the examination videotaped should be approved. There is no reason that the presence at an examination of a videographer should be treated differently from that of a court reporter. A trial court order that prohibits videotaping a compulsory examination without any evidence of valid, case- specific objections from the complaining party may result in irreparable harm to the requesting party and serve to justify extraordinary relief. 401 Similarly, an audiotape may be substituted to ensure that the examiner is not asking impermissible questions and that an accurate record of the examination is preserved. 402 Video or audio tape of the CME obtained by the examinee’s attorney should be considered work product as long as the recording is not being used for impeachment or use at trial.403 In McClennan v. American Building Maintenance,404 the court applied the rationale in Toucet, 581 So. 2d at 952, and Bartell, 498 So. 2d at 1378, to workers’ compensation disputes, and held that third parties, including attorneys, could attend an independent medical examination given under F la. Stat. § 440.13(2)(b) . In U.S. Security Insurance Company v. Cimino,405 the Florida Supreme Court held that for a medical examination conducted under F la. Stat. § 627.736(7) for personal injury protection benefits, “the • in the report(s) produced or testimony given. Failure to do so could result in the exclusion of such evidence at trial. For additional reference, please see Chapter 6: Expert Witness Discovery. • 1.280. If the moving party fails to show that the substantial equivalent of the material cannot be obtained by other means the discovery will be denied.420 It should be noted that if attorney work product is expected or intended for use at trial, it is subject to the rules of discovery . The Florida Supreme Court has held that the attorney work product doctrine and work product privilege is specifically bounded and limited to materials not intended for use as evidence or as an exhibit at trial, including rebuttal.421 Trade Secrets A “trade secret” is defined in section 688.002(4), Florida Statutes, as: Information, including a formula, pattern, compilation, program, device, method, technique or process that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Section 90.506, Florida Statutes provides: A person has a privilege to refuse to disclose, and to prevent other persons from disclosing a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or person’s agent or employee. Trade secrets are privileged under section 90.506, Florida Statutes, but the privilege is not absolute.422 Information constituting trade secrets can be obtained in discovery under certain in certain circumstances. To determine if those circumstances exist, a trial court generally must follow a three-step process: • 451 Partner-Brown v. Bornstein, 734 So. 2d 555 (Fla. 5th DCA 1999) 452 Broussard v. Broward County Bd. Of Commissioners, 992 So. 2d 882 (Fla. 4th DCA 2008) 453 Byxbee, 850 So.2d at 596. 454 Id.; Parrish v. City of Orlando, 53 So.3d 1199, 1203 (Fla. 5th DCA 2011) (“[W]here evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.”). C .F. Tampa Elec. Co. v. Bazemore, 96 So. 297, 302 (Fla. 1923) (In determining the measure of damages, the court embraced various elements when considering pain and suffering, including, physical and mental pain and suffering, resulting from the character or nature of the injur y the inconvenience, humiliation, and embarrassment the plaintiff will suffer on account of the loss of a limb, the diminished capacity for enjoyment of life to which all the limbs and organs of the body with which nature has provided us are so essential, and the plaintiff’s diminished capacity for earning a living); Bandorf, 939 So.2d at 251 (observing that, “[i]t should be apparent that physical pain and suffering, absent mental anguish, can impair the enjoyment of life”). • 461 Int’l Tel. & Tel. Corp v. United Tel. Co. of Fla., 60 F.R.D. 177 (M.D. Fla. 1973). 462 632 So. 2d 1377 (Fla. 1994). 463 Progressive v. Scoma, 975 So.2d 461 (Fla. 2d DCA 2007) (“Few evidentiary privileges are as jealously guarded as the attorney -client privilege. Permitting a third party who brings a bad faith claim to abrogate the attorney-client privilege previously held by the insured and insurer would seem to undermine the policy reasons for having such a privilege, such as encouraging open and unguarded discussions between counsel and client as they prepare for litigation.”). • designated claims or defenses; 491 prohibiting the introduction of certain evidence; 492 striking pleadings, which could result in a dismissal of the action; the entry of a default judgment, including an order for liquidated damages; 493 contempt of court; and the assessment of reasonable expenses or attorney’s fees.494 The courts have crafted a few additional possibilities: fines; 495 granting a new trial; 496 and, in the case of lost or • 491 Metro Dade Cty. v. Martinsen, 736 So. 2d 794, 795 (Fla. 3d DCA 1999) (finding that a party who engages in serious misconduct forfeits the right to participate in the proceedings, including the right to defend against an opposing party’s claims). But see Salazar v. Gomez, No. 3D19-1448, 2021 Fla. App. LEXIS 2273, at *5 (3d DCA Feb. 17, 2021) (cautioning that dismissal of claims for discovery violations must be reserved for only the most egregious circumstances). 492 Briarwood Capital, LLC v. Lennar Corp., 160 So. 3d 544 (Fla. 3d DCA 2015); Steele v. Chapnick, 552 So. 2d 209 (Fla. 4th DCA 1989) ( reversing dis missal because pla intiff s ubstantially c omplied with defendant’s discovery request, but authorizing alternative sanctions of precluding evidence on issues when plaintiff failed to reply to discovery demands, entering findings of fact adverse to plaintiff on those same issues, or imposing fines and fees); Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (trial court may exclude testimony of witness whose name had not been disclosed in accordance with pretrial order). 493 DYC Fishing, Ltd. v. Martinez, 994 So. 2d 461, 462 (Fla. 3d DCA 2008) (reversing trial court’s entry of default final judgment awarding unliquidated damages to the plaintiff and stating that in Florida, default judgments only entitle the plaintiff to liquidated damages); Bertrand v. Belhomme, 892 So. 2d 1150 (Fla. 3d DCA 2005); Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (finding that although “the striking of pleadings is the most severe of all sanctions which should be employed only in extreme circumstances[,] [a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith , willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.”) (citations omitted)). 494 FLA. R. CIV. P. 1.380(b)(2)(A)-(E) and (d); see Bartow HMA, LLC v. Kirkland, 146 So. 3d 1213 (Fla. 2d DCA 2014); Blackford v. Fla. Power & Light Co., 681 So. 2d 795 (Fla. 3d DCA 1996) (reversing summary judgment as sanction for fail ure to answer interrogatories, but authorizing attorney s’ fees and costs); United Services Auto. Ass’n v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986) (affirming attorneys’ fees and costs as sanctions for consistently tardy discovery responses, but reversing default). 495 Creative Choice Homes, II, Ltd., v. Keystone Guard Servcs., Inc., 137 So. 3d 1144 (Fla. 3d DCA 2014) (“[A] contemnor must be given a reasonable opportunity to purge the contempt before such fines are imposed.”); Evangelos v. Dachiel, 553 So. 2d 245 (Fla. 3d DCA 1989) ($500 sanction for failure to comply with discovery order, but default reversed); Steele, 552 So. 2d at 209 (imposition of fine and/or attorneys’ fees for failure to produce is possible sanction). The imposition of a fine for discovery violations requires a finding of contempt. Hoffman v. Hoffman, 718 So. 2d 371 (Fla. 4th DCA 1998); see also Channel Components, Inc. v. Am. II Elec., Inc., 915 So. 2d 1278 (Fla. 2d DCA 2005) (ordering over $79,000 as a sanction for violation of certain discovery orders does not constitute abuse of discretion). 496 Binger v. King Pest Control , 401 So. 2d 1310 (Fla. 1981) (intenti onal nondisclosure of witness, combined with surprise, disruption, and prejudice, warranted new trial); Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So. 2d 1283 (Fla. 1st DCA 1993) (new trial on punitive damages and attorneys’ fees as sanctions for withholding documents that were harmful to manufacturer’s case but were within scope of discovery request); Smith v. Univ. Med. Ctr., Inc., 559 So. 2d 393 (Fla. 1st DCA 1990) (plaintiff entitled to new trial because defendant failed to produce map that was requested repeatedly). • 497 Fed. Ins. Co. v. Allister M fg. Co., 622 So. 2d 1348 (Fla. 4th DC A 1993) (reversing the trial court’s granting of a motion for summary judgment and discussing options for imposing evidentiary inferences adverse to the party responsible for inadvertent loss of evidence). 498 Public Heal th Trust of Dade Cty. v. Valcin, 5 07 So. 2d 5 96 (Fla. 1 987) (rebuttable p resumption of negligence ex ists if p atient demonstrates t hat a bsence of hosp ital rec ords hinders patient’s ability to establish prima facie case); Amlan , I nc. v. Detroit Diesel Corp ., 651 So. 2d 7 01 (F la. 4th DCA 19 95) (destruction or unexplained absence of evidence may result in permissible shifting of burden of proof). 499 Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1 996) (affirming default against sheriff for intentionally omitting portion of videotape of automobile pursuit). 500 FLA. R. CIV. P. 1.380(a)(4) (2024) (emphasis added). • B. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence. • 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for the noncompliance; and 6) whe ther the delay created significant problems of judicial administration. • A trial court has the inherent authority to dismiss an action as a sanction when a party has perpetuated a fraud on the court . However, Because dismissal with prejudice is an extreme remedy that sounds the "death knell of a lawsuit," this power should be exercised cautiously, sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing. 529 Fraud on the court occurs where there is clear and convincing evidence “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” 530 Misconduct that falls short of the rigors of this test, including inconsistency, 531 nondisclosure, poor recollection, dissemblance, and even lying,532 is insufficient to support a dismissal or default for fraud, and potential harm must be managed through cross -examination.533 And even when fraud is shown, the imposition of a lesser sanction may be warranted and remains within the court’s discretion. 534 “When reviewing a case for fraud, the court should consider a proper mix of factors, and carefully balance a policy favoring adjudication on the merits • The Defendants’ Objections in These Cases Violate Rule 34 In these related cases asserting claims for, among other things, copyright and trademark violations, 2 defendants’ amended Rule 34 Responses (dated February 10, 2017) contain 17 “general objections,” including General Objections No. I stating that “Defendant objects to the requests to the extent that they call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.” At the end of the general objections, defendants state that “Subject to and without waiver of the foregoing general objections which a re hereby incorporated by reference into each response, Defendant’s Response to Plaintiff’s Request for Production of Documents are as follows....” • Turning to defendants’ responses to the requests, the Court will reproduce the first two: Request for Production of Documents 1. All emails, correspondence, letters and other written communications between any employee, agent, officer, director, or member of Defendant and Plaintiff from 2008 to present. Response: Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Plaintiff’s possession. 2. All drafts, revisions, amendments and final versions of Defendant’s catalog(s) from 2008 to present. Response: Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Pla intiff’s possession. Subject to and without waiving said objections, Defendant has provided Plaintiff with the cover page and page advertising either Bee -Quick or Natural Honey Harvester. • Second, General Objection I objected on the basis of non- relevance to the “subject matter of this litigation.” ( See page 3 above.) The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material “relevant to any party’s claim or defense....” Discovery about “subject matter” no longer is permitted. General Objection I also objects that the discovery is not “likely to lead to the discovery of relevant, admissible evidence.” The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon. See In re Bard IVC Filters Prod. Liab. Litig. , 317 F.R.D. 562, 564 (D. Ariz. 2016) (Campbell, D.J.) (“The 2015 amendments thus eliminated the ‘reasonably calculated’ phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts [and lawyers] continue to use the phrase. Old habits die hard.... The test going forward is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.’ ”). • discovery of material admissible in evidence,’ persist despite a litany of decisions from courts, including this one, that such objections are improper unless based on particularized facts.” (record cite omitted)). • Discovery is not limited to material that might be deemed relevant and admissible at trial because it is an investigatory tool intended to help litigants gain an understanding of the key persons, relationships, and evidence in a case and the veracity of those persons and purported evidence, even if the evidence discovered is later deemed not admissible. Fed. R. Civ. P. 26(b)(1). 2 Cases that cite this headnote • 174 of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. FED. R. CIV. P. 26(b)(1) (emphasis added). • [1] [2] [3]The Eighth Circuit Court of Appeals has explained that Rule 26(b)(1) does not give any party “the unilateral ability to dictate the scope of discovery based on their own view of the parties’ respective theories of the case,” because “[l]itgation in general and discovery in particular ... are not one sided.” Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 925 (8th Cir. 2014). Nor is discovery “limited to material that might be deemed relevant and admissible at trial,” because it “is a[n] investigatory tool intended to help litigants gain an understanding of the key persons, relationships, and evidence in a case and, as this case well illustrates, the veracity of those persons and purported evidence, even if the evidence discovered is later deemed not admissible.” Id. at 926. Furthermore, a party is wrong to suppose “that the concepts of materiality, relevancy, and discoverability are fixed rather than fluid such that parties cannot change their views of the necessity of certain information or their theories of the case during the course of discovery as new facts and relationships are revealed or explained.” Id. • [13]Ordinarily, I would likely find the parties’ use of what they admit are “standard,” albeit plainly improper, responses to discovery requests is objective evidence of intent to delay or impede discovery. St. Paul Reins. Co., Ltd., 198 F.R.D. at 517. Although I find that it makes a very poor jury instruction on “intent” for lay jurors, “[i]t is a • 184 1.380 Committee Notes 2019 Amendment. Subdivision (e) of this rule was amended to make it consistent with Federal Rule of Civil Procedure 37(e). 2012 Amendment. Subdivision (e) is added to make clear that a party should not be sanctioned for the loss of electronic evidence due to the good- faith operation of an electronic information system; the language mirrors that of Federal Rule of Civil Procedure 37(e). Nevertheless, the good- faith requirement contained in subdivision (e) should prevent a party from exploiting the routine operation of an information system to thwart discovery obligations by allowing that operation to destroy information that party is required to preserve or produce. In determining good faith, the court may consider any steps taken by the party to comply with court orders, party agreements, or requests to preserve such information. • Note: Florida Rules of Procedure do not have a universal requirement comparable to the Federal Rule 26(f) meet and confer. However, such measures may be ordered by the Court on a case-by-case basis as a matter of case management under Fla. R. Civ. P. 1.200 and 1.201 or by the court’s inherent case management authority. for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). • 190 RULE 1.340. INTERROGATORIES TO PARTIES (a)-(b) OMITTED (c) Option to Produce Records. When the answer to an interrogatory may be derived or ascertained from the records (including electronically stored information) of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer. An answer must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or must identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced. If the records to be produced consist of electronically stored information, the records shall be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms. (d) Effect on Co-Party. OMITTED (e) Service and Filing. OMITTED RULE 33. INTERROGATORIES TO PARTIES (a)-(c) OMITTED (c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. • (c) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents (including electronically stored information), or tangible things designated therein, but the court, on motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion on the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, documents, or tangible things. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A person responding to a subpoena may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue costs or burden. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought or the form requested is not reasonably accessible because of undue costs or burden. If that showing is made, the court may nonetheless order discovery from such sources or in such forms if the requesting party shows good cause, considering the limitations set out in rule 1.280(d)(2). The court may specify conditions of the discovery, including ordering that some or all of the expenses of the discovery be paid by the party seeking the discovery. A party seeking a production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 1.080. Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party. • 199 identity and number of servers, computers, electronic devices and email accounts that may contain relevant information or information that would potentially lead to the discovery of admissible evidence in this matter; d. The existence and nature of ESI preservation policies, whether, when, and how a litigation hold was placed on ESI, the possibility of agreements regarding the extent to which ESI should be preserved, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources; e. The need for an ESI disclosure clawback agreement beyond Fla.R.Civ.P. 1.285; f. The scope, estimated cost, and estimated time for completion of ESI discovery required for the claims/counterclaims alleged in accordance with Fla.R.Civ.P. 1.280; and, g. Whether any ESI issues may significantly protract this litigation, and if so, how such issues may be most efficiently mitigated. 3. Counsel for the Parties shall jointly prepare and file a short Notice of Compliance confirming they have met the requirements of Para. 1 and 2 of this Order. If the Report is filed within 15 days of the meet and confer, counsel for the parties need take no further action to comply with this Order, absent further motion by the parties or order of this Court. If the Notice of Compliance is not filed within 15 days of the meet and confer, Plaintiff shall notice a Case Management Conference pursuant to 1.200(a) for Uniform Motion Calendar to address the specific issues that have resulted in the lack of compliance. DONE AND ORDERED in Chambers at West Palm Beach, Florida on , 20 . • The parties will continue to meet and confer regarding any search process issues as necessary and appropriate. Nothing in this protocol, or the subsequent designation of any search terms,shall operate to limit a party's obligations under the Federal Rules of Civil Procedure and applicable decisional authority to otherwise search for and produce any requested non-privileged relevant evidence, or information that could lead to relevant evidence. This ESI protocol does not address or resolve any other objection to the scope of the parties' respective discovery requests. III. FORMAT OF PRODUCTION • 205 be "burned" onto the document's image at a location that does not obliterate or obscure any information from the source document. Any ESI produced in native data format shall be placed in a Logical Evidence Container that is Bates numbered , or the storage device (i.e., CD, USB, hard drive) containing such files shall be so Bates numbered. For purposes of further use in depositions, discussions or any court proceedings, the hash value of any document or ESI will constitute its unique controlling identifier. Alternately, if Bates numbers per document are desired, a spreadsheet may be created providing a Bates number to hash relationship. • Pack v. Geico, 119 So. 3d 1284 (Fla. 4th DCA 2013) . Plaintiff sought a new trial after a defense verdict alleging error when the trial court denied her motion in limine and permitted the defendant to introduce into evidence a letter of protection between her and her physician, who testified as her expert witness on her claim of more serious injuries to • 216 her neck . Plaintiff argued that evidence of a letter of protection, absent a referral relationship from the lawyer to the doctor, was not relevant according to the Court’s prior ruling in Katzman v. Rediron, 76 So. 3d 1060 (Fla. 4th DCA 2011) . The appellate court acknowledged that in Katzman it held that a letter of protection was not sufficient in itself to allow discovery of an expert beyond that permissible under Fla. R. Civ. P. 1.280(b)(4)(A). However, the Court stated that in Katzman it did not hold that a letter of protection is not relevant to show potential bias, and affirmed the trial court’s ruling denying plaintiff’s motion for new trial. • 227 counsel establishes a case-specific reason why such person’s presence would be disruptive, and that no other qualified individual in the area would be willing to conduct the examination with such person present. In the case of a neuropsychological exam, al l observers shall watch and listen from an adjacent room if available, or by video feed. If the examination is to be recorded or observed by others, the request or response of the examinee’s attorney shall include the number of people attending, their role, and the methods of recording. 5. Plaintiff’s counsel (or a representative) may videotape the examination and/or also send a court reporter and/or a videographer to the examination, provided that they do not interfere with the examination. 6. Neither Defendant’s attorney nor any of Defendant’s representatives may attend, observe, record or video the exam. Only if the video is identified as impeachment material for use at trial may the defense counsel obtain a copy. The medical examiner shall not be entitled to any payment of an additional fee or accommodation fee from the Plaintiff or his/her counsel, simply because of the presence of legally permitted third parties. 7. If a videotape or digital recording is made of the examination by counsel for Plaintiff, it is considered work-product, and neither the defense nor the examiner is entitled to a copy, unless and until same is designated as (or reasonably expected to become) trial evidence, subject to discovery only upon a showing of need and undue hardship. 8. The examining physician shall prepare a detailed written reporting setting forth all of the examining physician’s findings, including all tests made, diagnoses and conclusions. The report of the examiner shall be sent to Plaintiff’s counsel, as required by Rule 1.360(b), within 30 days of the examination unless otherwise agreed between counsel for the parties or ordered by the court due to special circumstances. 8a. If the examination involves neuropsychological testing: In addition to the report, the examiner • Affirmed Parties intentionally concealed and altered evidence central to the issues in the litigation and repeatedly and • Affirmed The court stated t hat t he evidence concerning Mr. Ram ey's conduct demonstrated clearly and convincingly that the plaintiff sentiently set in motion some unconscionable scheme calculated to interfere with the judi cial system's ability to adjudicate this matter by i mproperly influencing the trier of fact or unfairly ha mpering the presentation of the opposing party 's claim or defense. The court further stated that "the injuries that were lied about are the nexus of the case." App ct found that trial court properly exercised its discretion in imposing the severe sanction of dis missal for the clearly established severe misconduct of fraud on the court. • Affirmed Trial court made specific factual findings supported by clear and convincing evidence that Defendants attempted to defraud the court and conceal ownership interests by: (1) producing fabricated corporate documents; (2) committing perjury in affidavits and depositions; and (3) suborning the perjury of material witnesses and providing them with scripts of lies to repeat under oath; supported by overwhelming clear and convincing evidence. • Affirmed Officers of plaintiff corporation passed note to witness during depo and text message to witness during trial; ample evidence for the trial court to conclude unconscionable scheme was underway. • Reversed Mortgage foreclosure case dismissed for allegedly fraudulent allegations in the complaint regarding ownership of the paper at issue; assertions in a motion to dismiss the complaint do not provide an evidentiary basis for finding fraud upon the court. • Reversed Plaintiff’s husband got report from treater with info inconsistent with wife’s testimony and gave it to his lawyer; report by treating doctor was then changed at request of plaintiffs. Defendant failed to produce clear and convincing evidence of fraud; issue best managed on cross at trial. • Reversed evidence that the mortgagor lied and committed perjury with an intent to deceive the court. It was also a denial of due process to refuse mortgagor’s counsel the ability to put a witness on the stand to testify regarding the lies and perjury allegedly committed. • Reversed and Remanded Trial court based finding of fraud on still digital photos from surveillance video. Because the underlying video was not properly authenticated, there was not competent clear and convincing evidence of fraudulent litigation conduct • Reversed and remanded for new trial Trial court did not base findings of fraud on the court on evidence of record and findings were inconsistent with evidence. • Reversed Legal malpractice case in which most of the incon sistencies attributed to plaintiffs occurred in the underlying automobile action; not clear and convincing evidence of schem e to defraud in the malpractice case. • Reversed Real estate broker's attach ment of a forged and an altered docum ent to complaint did not warrant sanction of dismissal in action against real estate agents for t ortious inter ference with contractual relationships, where source of additions to docum ents remained open to speculation, and there was no evidence tha t broker submitted docum ents with intent to deceive. • Reversed and Remanded The trial court found eight instances of fraud perpetrated by the plaintiff that warranted dismissal . Appellate court determined that two of those instances did not amount to clear and convincing evidence of fraud (changing testimony during trial and not providing evidence of prior injuries despite never being asked). Case remanded for trial court to determine if the remaining six instances of fraud provided a basis for dismissal. • Reversed Product liability case wherein trial court granted Rule 1.540(b)(3) motion, struck affirmative defenses, and entered judgment on liability. Appellate court held there was insufficient evidence of fraud on the court and trial court abused its discretion. HEARING TIME & ARGUMENT LIMITS • substantive law pertaining to the preservation and/or spoliation of evidence.25 Attorneys may also advise their clients to remove information relevant to foreseeable litigation from social media pages as long as the social media information or data is preserved.26 SPOLIATION W hen a party’s actions have caused a crucial piece of evidence to be unavailable at the time of trial, the doctrine of spoliation applies.27 Spoliation concerns the prejudicial loss, “destruction, mutilation, alteration, or concealment of evidence.”28 Nevertheless, the evidence is not “lost” unless the party seeking its production has conducted a diligent search and has not found it. 29 And whether the destruction, alteration, or loss of the evidence is unduly prejudicial depends on the circumstances, including the totality of the evidence available to the parties . So generally, the extent of any prejudice cannot be assessed until an evidentiary hearing is conducted following the completion of discovery. 30 In addition, any spoliation may fall short of being unduly prejudicial if both parties are similarly affected by its loss, 31 or if the purportedly prejudiced party’s own actions or inactions contributed to the loss or destruction of the evidence.32 SANCTIONS The purpose of any spoliation sanction “is not to punish but rather to ensure • 74 See Fla. Stat. §§ 90.56 (Trade Secret Privilege); 688.001 et. seq. (Uniform Trade Secrets Act) . In Arko Plumbing Corp. v. Rudd, 230 So. 3d 520 (Fla. 3d DCA 2017), the Third DCA held that trade secret protection applied for requested vehicle ESI where a GPS tracking device on a plumbing company's trucks used a MotoMon program linked up to the GPS tracking devices and also captured in real time the customers and potential customers that the company's trucks visited to provide plumbing services . To determine whether information is protected as trade secret, a trial court generally must follow a three- step process: (1) determine whether the requested production constitutes a trade secret; (2) if the requested production constitutes a trade secret, determine whether there is a reas onable necessity for production; and (3) if production is ordered, the trial court must set forth its findings . See Niagara Indus. v. Giaquinto Elec. LLC, 238 So. 3d 840 (Fla. 4th DCA 2018) (if the court concludes documents are trade secrets, the burden shifts to the requesting party to show that the disclosure is reasonably necessary). 75 FLA. R. CIV. P. 1.280(b)(3) (“A party may obtain discovery of electronically stored information in accordance with these rules.”). 76 FLA. R. CIV. P. 1.280(d)(2)(ii) (“the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that . . . the burden or expense of the discovery outweighs its 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.”). In addition to F LA. R. CIV. P. 1.280(d)(2)(ii) involving ESI, proportionality in discovery is alive and well as a matter of Florida common law. See Worley v. Cent. Fla. Young Men's Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017) (200 hours and over $90,000 in costs to discover the collateral issue of bias in a case where the damages sought total $66,000 is unduly burdensome). 77 FLA. R. CIV. P. 1.280(d)(2)(ii). • Despite the complexity of EHR discovery, the same procedural rules that apply to discovery in general, electronic or otherwise, apply to medical records. Because of all the potential pitfalls, delays, undue cost, and need for discretion and protection of the record and privacy interests, it benefits counsel and the parties to talk early and often about conducting and managing discovery of EHR with each other and producing nonparties . Key questions that need to be clarified between requesting and producing persons or entities are the scope of the records sought and the scope of proper discovery. Potentially complicating the discussion would be terminology or definitional barriers between the requesting and producing parties, starting with (1) "what is the medical record?" and (2) whether or not defining the medical record limits discovery in any w ay. For example, entries about a patient by a person or machine that reside in the system but are not produced in any defined "report" generated as part of the "defined" medical record or any standard report under the software in use may arguably be discoverable. Issues of clarity for scope and form of production are most efficiently and economically handled by meet and confer or by negotiation rather than by motions and hearings. INSPECTION OF OPPOSING PARTY DEVICES An issue in e -discovery is direct access to the opposition’s computers and computer devices. There is a large body of federal and foreign state case law on the • the use of the computer devices for some time period and the potential of harm to the client’s hardware, software, and data. Any foray permitted by the court must balance the need for the level of access sought versus the potential harm to the party producing access. Any direct inspection by the requesting party must be conditioned on the use of, a qualified expert to conduct the copying and inspection. Additionally, a specific inspection protocol should be in place. One infrequent exception to the high bar protecting access to a party’s computer or personal device may be when there is a showing that the device may contain relevant information, and there is no less intrusive means of discovery other than access to the device. In Antico v. Sindt Trucking, Inc ., 149 evidence was presented in a wrongful death auto negligence case that showed that the decedent -driver was texting or talking on her iPhone at the time of the automobile accident at issue in the case. Over vague “privacy” objections, the trial judge ordered that the defense (requesting party) expert could examine the information on the decedent’s iPhone over a 9- hour period around the accident, but the order strictly controlled how the confidential inspection must proceed. 150 The first district upheld the order as a proper balance of the need for the discovery and protection of privacy interests. 151 However, the decision of the appellate court was apparently influenced by the plaintiff’s failure to advance any less intrusive alternatives • 149 148 So. 3d 163 (Fla. 1st DCA 2014); Artigliere & Hamilton, L EXISNEXIS PRACTICE GUIDE: FLORIDA E- DISCOVERY & EVIDENCE, Ch. 2 Governing Law in Electronic Discovery § 6.08 (2021). 150 Antico, 148 So. 3d at 167 (“[the trial court’s order] limits the data that the expert may review to the nine- hour period immediately surrounding the accident; it gives Petitioner's counsel a front -row seat to monitor the inspection process; and it allows Petitioner the opportunity to interpose objections before Respondents can obtain any of the data.” 151 Id. • ruled that the evidence was not admissible because the conversations were illegally intercepted under the SECURITY OF COMMUNICATIONS ACT, FLA. STAT. § 934.03). 154 Id. Attorneys implicated in such improper behavior may be subject to discipline. Fla. Bar v. Black , 121 So. 3d 1038 (Fla. 2013) (attorney reprimanded for obtaining and keeping opposing party’s iPhone which contained confidential and privileged information). 155 Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010) (attorney disqualified after client illegally obtained opposing party privileged information and provided it to her attorney) . The assessment and remedies vary depending on the findings and circumstances of the case after an evidentiary hearing to determine (1) whether counsel for a party possessed privileged materials, (2) the circumstances under which disclosure occurred, and (3) whether obtaining the privileged materials gave counsel an unfair advantage on material matters in the case. Id. 156 Id. 157 See The Philadelphia Bar Assoc. Professional Guidance Committee, Op. 2009- 2 (Mar. 2009). Presumably the decision in Florida would be the same under Florida Rules. See FLA. R. OF PROF. COND. 4- 4.1 (Truthfulness in Statements to Others) and 4-4.4 (Respect for Rights of Third Persons). • the creation, modification, transmission, or storage of the ESI. Professional investigators with e-Discovery credentials and experience are good candidates for investigations of social networking websites and conducting self -help e-Discovery. The receipt and management of ESI production from the opposition should be supervised by persons with adequate testifying witness skills. 8. Curb the client’s self-help efforts by delineating strict boundaries of behavior. While self-help and self-collection may be desirable for the client economically, the client must understand the risks of inadequate of improper collections . An unbiased, technically competent expert may be the best person to collect the electronic evidence. A competent investigator can then authenticate the collected information at trial or hearings. In no case should the client illegally obtain evidence, misappropriate a password, or access information through subversion or artifice. 9. Advise the client of preservation obligations and warn against loss, alteration, or destruction of ESI . Sanctions can arise from behavior the client (or attorney) considers routine. For example, removing injudicious Facebook entries after preservation is triggered may be considered spoliation if a copy of the Facebook entries as they appeared before removal was not preserved. 10. Cooperate with opposing counsel concerning the admissibility of electronic evidence. All parties are well advised to exchange information and to anticipate and resolve by agreement as many electronic -evidence issues as possible . The downstream costs associated with incorrect e -Discovery decisions and errors are substantial and occasionally case dispositive. Cooperation by counsel on such matters is a sign of strength, professionalism, and competency. • Speaking Objections Speaking objections to deposition questions are not permitted. They are designed to obscure or hide the search for the truth by influencing the testimony of a witness. They are, by definition, objections that are argumentative or suggest answers. Objections and statements that a lawyer would not dare make in the presence of a judge should not be made at depositions. For example: • “I object. This witness could not possibly know the answer to that. He wasn’t there.” The typical witness response after hearing that: “I don’t know. I wasn’t there.” • “I object, you can answer if you remember”, or, simply suggesting a witness only answer “if you know”. The typical witness response after hearing that: “I don’t remember.” • “I object. This case involves a totally different set of circumstances, with different vehicles, different speeds, different times of day, etc.” The typical witness response after hearing that: “I don’t know. There are too many variables to compare the two.” Coaching the deponent or suggesting answers through objections or otherwise is improper and should never occur. There is a difference between preserving an objection and coaching the witness. For example, objecting that a question is “vague” is a speaking objection, especially when it results in the witness expressing a lack of understanding of the question or an inability to answer the question. 225 There are other, similar, speaking objections, such as “calls for speculation” and “improper hypothetical”. The effect of these • Rule 1.310(d) provides that a “motion to terminate or limit examination” may be made upon a showing that objection and instruction to a deponent not to answer are being made in violation of Rule 1.310(c). Examinations Just as the objecting attorney is required to behave in a professional manner, the examining attorney has the same professional responsibility to treat opposing counsel and the witness or party being examined with respect and courtesy. Overly aggressive, hostile and harassing examinations intending to intimidate a witness or party would not be permitted in the presence of a judicial officer and are likewise not permitted at deposition. Intentionally misleading a witness or party is similarly unprofessional and not permitted. Rule 1.310(d) provides that a “motion to terminate or limit examination” may be made upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party. The Proper Response to Improper Conduct If opposing counsel exhibits any of the behavior described above, the proper response is to object and concisely describe the improper conduct . Counsel should exhaust all efforts to resolve a dispute that threatens the ability to proceed with deposition. If such action fails to resolve the issue, many judges permit counsel to telephone the court for a brief hearing when irreconcilable issues arise at deposition. Counsel may want to take a break during the deposition and call chambers, requesting a brief hearing to resolve the matter. This is especially true if the deposition is out-of-state and would be costly to reconvene . It helps to know the judge’s preferences in this regard, but judges • generally are aware that the use of this procedure—if not abused by counsel —provides an excellent opportunity to attempt to resolve issues on the spot before they develop into more costly and complex proceedings after the fact. However, it is important to note that these emergency hearings place the judge in a difficult position. Having not personally witnessed the behavior and without the aid of a deposition transcript, the judge’s ability to issue a thoughtful, informed order may be limited. A party or witness who reasonably believes that a deposition is “being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the witness or party,” or that “objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c),” may move to terminate or limit the deposition and immediately move for protective order . The most appropriate action is to make such motion orally and concisely on the record at the time of the deposition and follow promptly with a written motion for protective order . A copy of the deposition will need to be filed with the written motion . Rule 1.310(d) specifically provides that the taking of the deposition shall be suspended upon demand of any party or the deponent for the time necessary to make a motion for an order. All phases of the examination are subject to the control of the court, which has discretion to make any orders necessary to prevent abuse of the discovery and deposition process. Depositions of Corporate Representative(s) Rule 1.310(b)(6) permits the party seeking discovery to designate, with reasonable particularity, the matters for examination and requires the responding party to produce one or more witnesses who can testify as to the corporation’s knowledge of the specified topics. The Rule was designed in part to streamline litigation and is patterned closely after • 4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number 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 derived from other services. 255 • Rule 1.360 of the Florida Rules of Civil Procedure provides that a party may request that any other party submit to an examination by a qualified expert when the condition that is the subject of the requested examination is in controversy and the party submitting the request has good cause for the examination. The party making the request has the burden to show that the rule’s “good cause” and “in controversy” requirements have been satisfied. 372 Verified pleadings or affidavits may be sufficient to satisfy the rule’s requirements instead of an evidentiary hearing. The party making the request also must disclose the nature of the examination and the extent of testing that may be performed by the examining physician. 373 Although the examination may include invasive tests, the party to be examined is entitled to know the extent of the tests to make an informed decision about seek ing the protection of the court so that the testing will not cause injury . A party requesting a compulsory medical examination is not limited to a single examination of the other party; however, the court should require the requesting party to make a stronger showing of necessity before the second request is authorized. 374 A plaintiff who has sued multiple defendants, as multiple tortfeasors, may be subject to separate examinations by each • defendant.375 Some districts or judges may require that any objection to the examination must be set for hearing immediately and failure to do so may be deemed an abandonment of the “Request.”376 Location of the CME Rule 1.360 does not specify where the examination is to be performed . The Rule requires that the time, place, manner, conditions, and scope be “reasonable.” The determination of what is reasonable depends on the facts of the case and falls within the trial court’s discretion. 377 Rule 1.360 is based on Rule 35 of the Federal Rules of Civil Procedure, which has been interpreted as permitting the trial court to order the plaintiff to be examined where the trial will be held because the trial venue was selected by the plaintiff and it would make it convenient for the physician to testify. In McKenney v. Airport Rent -A-Car, Inc., an examination of the plaintiff in the county in which the trial was to be held was not an abuse of discretion, even though the plaintiff resided in a different county. 378 In Tsutras v. Duhe ,379 it was held that the examination of a nonresident plaintiff, who already had come to Florida at his expense for his deposition, should either be at a location that had the appropriate medical specialties convenient to the nonresident plaintiff, or the defense should be required to • the examining doctor objects to the presence of the third party . A doctor must provide a case-specific justification to support an objection in an affidavit that the presence at the examination of a third party will be disruptive.389 Once this test is satisfied, the defendant must prove at an evidentiary hearing that no other qualified physician can be located in the area who would be willing to perform the examination with a third party (court reporter, attorney, or other representati ve) present. 390 This criteria applies to compulsory examinations for physical injuries and psychiatric conditions.391 The rationale for permitting the presence of the examinee’s attorney is to protect the examinee from improper questions unrelated to the examination.392 Furthermore, the examinee has a right to preserve, by objective means, the precise communications that occurred during the examination . Without a record, the examinee will be compelled to challenge the credibility of the examiner should a dispute arise later . “Both the examiner and examinee should benefit by the objective recording of the proceedings, and the integrity and value of the examination as evidence in the judicial proceedings should be enhanced.” 393 The rationale for permitting a third party’s presence or recording the examination is based on the examinee’s right to privacy rather than the needs of the examiner. If the examinee is compelled to have his or her privacy disturbed in the form of a compulsory examination, the examinee is entitled to limit the intrusion to the purpose of • “When a party asserts the need for protection against disclosure of a trade secret, the court must first determine whether, in fact, the disputed information is a trade secret which] usually requires the court to conduct an in -camera review.” 425 A trial court may also conduct an evidentiary hearing.426 Such a hearing may include expert testimony.427 If the materials are trade secrets, the court must then determine whether there is a reasonable necessity for production. 428 Once a party has demonstrated that the information sought is a trade secret, the burden shifts to the party seeking discovery to demonstrate • privilege log at the same time as a discovery response is served, does not waive the privilege. 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. If a party does not submit a privilege log within a reasonable time before a hearing on the motion to compel, then the trial court can be justified in finding a waiver because there would be no basis on which to assess the privilege claim . A very late and inadequate privilege log could subject a party to waiver of the privilege.471 A privilege log is not required until such time as broader, preliminary objections have been addressed. “A party is required to file a [privilege] log only if the information is otherwise discoverable. Where the party claims that the production of documents is burdensome and harassing . . . the scope of discovery is at issue. Until the court rules on the request, the party responding to discovery does not know what will fall into the category of discoverable documents . . . .” 472 Waiver does not apply where assertion of the privilege is not document -specific, but category specific, and the category itself is plainly protected.473 INADVERTENT DISCLOSURE As communications technology advances (facsimile, e- mail, test, etc.), the opportunities for inadvertent disclosure of lawyer -client privileged communications increase. Inadvertent disclosure of lawyer -client privileged communications, and the resultant issues of waiver and disqualification have been addressed by Florida courts more frequently in recent years, and in 2010, Fla. R. Civ. P. 1.285 was enacted, governing the inadvertent disclosure of privileged materials. It was amended effective January 1, 2011.474 The rule is self-explanatory. To preserve • the privileges recognized by law, the party must serve written notice of the assertion of privilege on the party to whom the materials were disclosed, within ten days of actually discovering the inadvertent disclosure. The rule sets forth the duty of the party receiving such notice; 475 the right to challenge the assertion of the privilege; 476 and, the effect of a determination that the privilege applies.477 Florida law has always required the recipient of inadvertently disclosed attorney -client privileged communications to act appropriately, or risk being disqualified from the case. 478 An attorney who promptly notifies the sender and immediately returns the inadvertently produced materials without exercising any unfair advantage will, generally, not be subject to disqualification. 479 The recipient still has the right to challenge the claimed privilege on the basis of waiver.480 The rule does not set forth any specific test to determine whether a waiver occurred, however, the courts have addressed this issue in the past. To determine whether the privilege has been waived due to inadvertent disclosure, Florida courts will apply the “relevant circumstances” test. The test involves a factual determination, thus requiring an evidentiary hearing. The court must consider: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production; (2) the number of inadvertent disclosures; (3) the extent of disclosure; • Rule 1.380(a)(4) addresses a party’s failure to permit discovery and sanctions against the party wrongfully thwarting discovery. 1. D EPOSITIONS This issue most commonly arises in connection with a scheduled or court ordered deposition. A motion for protective order does not automatically stay a pending deposition.484 The movant must file the motion as soon as the need for protection arises, schedule the motion for hearing sufficiently in advance of the pending proceeding, and show good cause why discovery should not go forward. A party who seeks a protective order to prevent discovery must make every reasonable effort to have a motion heard before a scheduled deposition or other discovery is to occur . The movant bears the • burden of showing good cause and obtaining a court order related to the pending proceeding before discovery is to be had. To satisfy the “good cause” requirement, the movant should present record evidence rather than general or conclusory objections. 485 The failure to file a timely motion for a protective order or to limit discovery may result in a waiver. However, it does not bar a party from asserting privilege or exemption from matters outside the scope of permissible discovery.486 As always, lawyers should cooperate with each other concerning the scheduling of both, discovery, and a hearing on a motion for a protective order . Except where the taking of a deposition is an urgent matter or where the cancellation of a scheduled deposition would be prejudicial to a party, it is generally in the best interest of both parties to have the court rule on objections to depositions prior to the time that the deposition is conducted in order to avoid the necessity for a second deposition of a w itness after the issues are later resolved. Faced with a decision as to whether to attend a deposition while a motion for protective order is pending (and for which a prior hearing is unavailable), a lawyer often must make the difficult decision of whether to waive the objection by appearing at the deposition or risking sanctions by the court for not appearing. While the filing of a motion for protective order does not act as a stay until such time as an order is procured form the court, the courts have the authority to grant or withhold sanctions for failing to appear based upon the factors enumerated in the case law, including the • Following a hearing on a Motion to Compel, the prevailing party may be entitled to court- ordered “reasonable expenses incurred,” including attorneys’ fees, paid by the opposing party or deponent.489 Upon proper showing, the full spectrum of sanctions may be imposed for failure to comply with an order compelling discovery .490 The rule sets out possible alternative sanctions: adopting as established facts the matters which the recalcitrant party refused to address or produce; prohibiting the disobedient party from supporting or opposing • destroyed evidence, creation of an adverse evidentiary inference 497 or a rebuttable presumption.498 The court may rely on its inherent authority to impose drastic sanctions when a discovery-related fraud has been perpetrated on the court.499 AWARD OF EXPENSES AND FEES ON MOTION TO COMPEL A motion under Rule 1.380(a)(2) is the most widely used vehicle for seeking sanctions as a result of discovery abuses. Subsection (4) provides: Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action , that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons. 500 • unless the court finds the opposition was justified or an award would be unjust . Thus, under the Rule the trial court should award expenses , which may include attorney fees , in every case in which there is no defensible opposition or the motion to compel is not justified, as it would seem that the absence of a justifiable position should, by definition, render a sanction just. The Rule contemplates that the court should award expenses in the majority of cases. The courts should take a consistent hard line to ensure compliance with the Rule. Counsel should be required to work together in good faith to avoid the need for motion practice or unnecessary court intervention. Generally, where a party fails to respond to discovery and does not give sound reason for its failure to do so, sanctions should be imposed. The punishment should fit the fault, and any award must be limited to the reasonable expenses incurred in seeking a court order.501 Expenses, including fees, can be awarded without a finding of bad faith or willful conduct.502 The party to be sanctioned is entitled to a hearing before the sanction is imposed.503 SANCTIONS FOR FAILURE TO OBEY COURT ORDER If a party or its designated representative fails to obey a prior order to provide or • emails, text messages, and computer applications, and bringing the Rule into alignment with Federal Rule of Civil Procedure 37(e). 510 Under this new standard, negligent spoliation of ESI will not authorize the imposition of an adverse inference or adverse instruction sanction; the moving party must prove that the ESI evidence was lost or destroyed with an intent to deprive its use in the litigation. 511 REQUIRED DUE PROCESS AND FINDINGS OF FACT The trial court must hold a hearing and give the party facing sanctions for a discovery violation an opportunity to be heard before issuing an order. It is reversible error to award sanctions before a hearing on the motion to compel takes place.512 By the same token, striking a party’s pleadings before the deadline for compliance with discovery requires reversal. 513 A moving party’s failure to make a good faith effort to obtain the discovery without court action, and to so certify in the motion to compel, will be fatal to obtaining relief under subsection (4) of the rule. If the trial court dismisses an action or enters a default as a sanction for discovery violations, a predicate finding that the violations were willful or deliberate must be made.514 If the offending party is represented by counsel and the actions of the attorney – not the party – resulted in the discovery violation, detailed findings must be included in • 510 In re: Amendments to the Fla. Rules of Civil Proc.-2019 Regular-Cycle Rep., 292 So. 3d 660 (Fla. 2019). 511 FLA. R. CIV. P. 1.380(e)(2). 512 Joseph S. Arrigo Motor Co. v. Lasserre, 678 So. 2d 396, 397 (Fla. 1st DCA 1996) (reversing an award of $250 in sanctions where the award was entered before the motion hearing). 513 Stern v. Stein, 694 So. 2d 851 (Fla. 4th DCA 1997). 514 SPS Dev. Co., LLC v. DS Enters. of the Palm Beaches, Inc., 970 So. 2d 495, 498 (Fla. 4th DCA 2007); Zaccaria v. Russell, 700 So. 2d 187 (Fla. 4th DCA 1997). • the order, as delineated in Kozel v. Ostendorf .515 If the order does not contain such findings, it will be reversed.516 To preserve this issue for appellate review, however, the sanctioned party must ask the trial court to make these findings.517 Kozel findings are not required unless the recalcitrant party is represented by counsel. 518 Additionally, the Second DCA and Fifth DCA have ruled that the Kozel analysis is applicable only when the sanction is a dismissal with prejudice or its functional equivalent . The First DCA and Third DCA disagree, applying the Kozel analysis to all dismissals as a sanction, even those without prejudice. The Fourth DCA has not yet weighed in on this issue.519 It is reversible error to dismiss a case for discovery violations without first granting the disobedient party’s request for an evidentiary hearing. The party should be given a chance to explain the discovery violations.520 For purposes of assessing failure to make discovery, an evasive or incomplete answer must be treated as a failure to answer.521 The underlying court order (compelling a discovery response) or process (e.g., a subpoena, whether issued by the court or an attorney “for the court”), must be clear and • with competing policies to maintain the integrity of the judicial system.”535 Although a finding of fraud on the court generally requires proof that a party lied on a critical issue or intentionally destroyed or altered determinative evidence, any such finding must be supported by clear and convincing evidence that goes to “the very core issue at trial.”536 A trial court’s decision on whether to dismiss a case for fraud on the court is reviewed under a somewhat narrowed abuse of discretion standard, to take into account that the dismissal must be established by clear and convincing evidence.537 For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case. The better practice is for the trial court to conduct an evidentiary hearing and make specific findings of clear and convincing evidence to support dismissal for fraud, even where neither party requests the hearing. 538 The appellate court may remand the case to conduct a hearing.539 All of Florida's district courts of appeal have all applied the same basic test for fraud on the court sanctions.540 However, some nuance exists between the districts, and this case-dispositive issue should be considered in light of precedent within each district and statewide. For additional reference, please see the chart of case law in Appendix 11- 1, which displays representative cases by district and by appellate outcome. • C. Responses Of The Parties To The Order To Show Cause ...180 *170 1. Responses in briefs ...180 2. Responses at the evidentiary hearing ...181 • 170 III. CONCLUSION ...190 “Laws are like sausages, it is better not to see them being made.” —Otto von Bismarck This litigation is about who is responsible for tons and millions of dollars’ worth of sausage, of the peperoni variety, some of which turned rancid. It’s also about lawyers who were not concerned about how the federal discovery rules were made, but how and why they flaunted them. This ruling involves one of the least favorite tasks of federal trial and appellate judges —determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why exce llent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections. 1 More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.2 What follows is my ruling after a hearing on March 7, 2017, pursuant to my January 27, 2017, Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery *171 Abuses And Directions For Further Briefing, • Rule 1 of the Federal Rules of Civil Procedure states that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Nevertheless, modern “litigation” practice all too often disrega rds that admonition and seems to favor wars of discovery attrition. “[A]lthough the rule is ‘more aspirational than descriptive,’ ” it can, nevertheless, inform the courts’ authority to sanction discovery misconduct. 3 Furthermore, the specific Rules devoted to discovery attempt to facilitate the disclosure of relevant information and to avoid conflicts by setting out the when, what, and how of discovery, as well as how to raise objections, in ways that should lead to t he narrowing of issues and the resolution of disputes without the involvement of the court. Even so, discovery all too often becomes a needlessly time- consuming, and often needlessly expensive, game of obstruction and non- disclosure. Indeed, obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them. As I remarked at an earlier hearing in this matter, “So what is it going to take to get ... law firms to change and practice according to the rules and the cases interpreting the rules? What’s it going to take?” 4 While one of the attorneys gave the hopeful answer that admonitions from the courts had made clear what practices are unacceptable, it is clear to me that admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense. • 2. Potentially obstructionist discovery responses In my review of another discovery dispute between the parties, raised in Griffith’s January 12, 2017, Emergency Motion To Address Possible Discovery Abuses, the issue now before me, which involves potentially obstructionist discovery responses by both parties, came to my attention. In preparing for a hearing on January 23, 2017, on Griffith’s Motion, I reviewed some of Liguria’s written responses to Griffith’s discovery requests attached to the Motion. I noted discovery responses that I suspected or believed were abusive and/or not in compliance with the applicable rules, but mere “boilerplate” objections. At the hearing on January 23, 2017, after questioning Griffith’s lead counsel and hearing his candid responses, I indicated my belief that it was likely that Griffith’s written responses to Liguria’s discovery requests were also abusive “boilerplate” responses. Consequently, I directed the parties to file, under seal, all their written responses to each other’s discovery requests by the following day. I als o notified counsel of my intention to impose sanctions on every attorney who signed the discovery responses, if I determined that the responses were, indeed, improper or abusive. The parties filed their written responses to discovery requests, as directed, the following day. • Liguria’s responses to Griffith’s interrogatories and requests for production of documents were signed by local counsel on behalf of Liguria’s lead attorneys, who have their offices in Chicago, Illinois. Griffith’s pertinent discovery responses were signed by its lead attorney, who also has offices in Chicago, Illinois. At the January 23, 2017, hearing, *180 I ascertained that local counsel for both parties had acted essentially as “drop boxes” for filings, but did not have any active role in formulating the discovery responses in question. • 172 this case, with the exception of local counsel, appear and show cause, at a hearing previously scheduled for March 7, 2017, why he should not be sanctioned for discovery abuses.11 I also provided the table of the discovery responses, included above, showing the responses that I suspected were improper. In Section II of that order, I then directed the parties to submit, not later than February 28, 2017, briefs in response to the Show Cause part of the Order addressing the following matters: 1. Whether each of the discovery responses by that party identified in the table ... is or is not a violation of the rule cited or otherwise an abuse of discovery, and 2. If any responses identified in the table ... are discovery abuses, the appropriate sanction or combination of sanctions that is appropriate for an offending attorney. • In its brief in response to the Order To Show Cause, Griffith, like Liguria, states that its written responses to Liguria’s discovery requests were not intended for any improper purposes and that the parties have, in fact, conducted this litigation in a co operative and professional manner. Griffith also contends that a magistrate judge has already reviewed various of Griffith’s responses and found no fault with them. Griffith contends that both parties relied on standard “boilerplate” language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, and myriad other issues in this complex case. Indeed, Griffith contends that the eleven statements in its discovery responses that I identified in my Order To Show Cause do not constitute discovery abuses. T his is so, Griffith argues, because the responses were intended to preserve any objection, but not for harassment or delay, and they did not require any additional work or expense by * 181 Liguria. Griffith contends that certain of its responses were intended to narrow the privilege issues or protect information until an appropriate protective order was entered, or were intended to narrow the relevant time frame, where the parties have had a relationship since at least 1995, but the problems at the center of the litigation arose only in late 2012. Counsel for Griffith does acknowledge that, in light of my concerns expressed at the January 23, 2017, hearing and in the Order To Show Cause, four of its responses were not helpful nor well-constructed, but nevertheless were not in bad faith or for any improper purpose, and another response could have been “more artful” to indicate an intent to supplement that response later. • 2. Responses at the evidentiary hearing The first part of the hearing on March 7, 2017, was devoted to the issues raised in my Show Cause Order. Counsel for both parties candidly admitted that there were no published decisions that allowed or condoned the sort of “boilerplate” objections that I had pointed out in the Show Cause Order. Counsel for both parties also represented that, notwithstanding the “boilerplate” objections, they had conferred professionally and cordially and had been able to resolve most discovery issues by consultation, with what I agree was surprisingly little need for intervention by the court in such a complicated case involving such voluminous discovery. • The Order To Show Cause also specified that any attorney not arguing Griffith’s Motion was allowed to appear by telephone for the “show cause” portion of the hearing. See Order To Show Cause at 1. • The portion of the Supplemental Trial Management Order prohibiting “boilerplate” objections continues, as follows: For example: 1. When claiming privilege or work product, the parties must comply with FED. R. CIV. P. 26(b)(5)(A). 2. The Court does not recognize “object as to form” as a valid objection to a deposition question; rather, the objecting part y must state the basis for the form objection. e.g. compound, argumentative, etc. 3. Attorneys cannot respond to any discovery request with something similar to “blanket objections and a statement that disco very would be provided ‘subject to and without’ waiving the objections.” See, e.g. Network Tallahassee, Inc., v. Embarq Corp., 2010 WL 4569897 (N.D. Fla. 2010). After defining and prohibiting other obstructionist discovery conduct, the Supplemental Trial Management Order imposes an “affirmative duty to notify the court of alleged discovery abuse” and warns of the possibility of sanctions, as follows: D. AFFIRMATIVE DUTY TO NOTIFY THE COURT OF ALLEGED DISCOVERY ABUSE. Any party subjected to obstructionist conduct in discovery or depositions or conduct that the party reasonably believes to be intended to impede, delay, or frustrate the fair examination of deponents or the process of discovery shall promptly file a Repo rt to the Court in writing, advising the Court of the specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own m otion. The Court will then determine whether to issue a notice to show cause why sanctions should not be imposed, conduct a hearing after notice, and impose sanctions, if appropriate. E. SANCTIONS. Sanctions for obstructionist conduct or other misconduct during discovery may include, but are not limited to, individually or in combination, the following: 1. monetary sanctions; 2. attendance at, or preparation of, a continuing legal education presentation or training video on appropriate and inappropr iate discovery conduct tailored to the discovery violation; 3. preparation and submission for publication of a law review or legal journal article on appropriate and inappropriate disco very conduct tailored to the discovery violation; 4. revocation or suspension of pro hac vice status or admission to practice in the United States District Court for the Northern District of Iowa; 5. sanctions in FED. R. CIV. P. 37(b)(2)(A); or 6. any other reasonable sanction. • (d) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) OMITTED (e) D UTIES IN RESPONDING TO A SUBPOENA. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or • Katzman v. Ranjana Corp., 90 So. 3d 873 (Fla. 4th DCA 2012).Certiorari review of trial court order allowing discovery by subpoena duces tecum to Dr. Katzman, plaintiff’s treating physician on referral from another physician, that included voluminous information covering four year s concerning the number of times he performed four different surgeries, the amounts he had collected from health insurance coverage on an annual basis over four years regarding the type of surgeries (four) performed on plaintiff, and the number of patients and amounts received each year under letters of protection from attorneys. Dr. Katzman provided medical services pursuant to a letter of protection from her attorney . Dr. Katzman objected to the subpoena on the basis that it sought unrelated information, and confidential private business and financial records which exceeded the scope of permissible discovery under Fla. R. Civ. P. 1.280 as well as Elkins v. Sykens, 672 So. 2d 517 (Fla. 1996). He also asserted that the requests were extremely burdensome and would require thousands of man hours and dollars to comply. In denying the motion for protective order the trial court held, among other things, that the doctor potentially has a stake in the outcome of the litigation and had injected himself in the litigation by virtue of the letter of protection from plaintiff’s attorney. In quashing the order, the appellate court said that the trial court did not have the benefit of the appellate court’s revised opinion in Rediron when it entered its order, and thus had not seen that part of the revised opinion stating that it was the referral, not the letter of protection, that injects a doctor into litigation . On remand, the trial court was instructed to reconsider all of the objections raised by the doctor against the back drop of the clarified Rediron opinion, and that the trial court should consider petitioner’s argument of undue burden, since requiring information on four surgical procedures is far more extensive and potentially burdensome than the “limited intrusions” found in Rediron. • Worley v. Central Florida YMCA, 163 So. 3d 1240 (Fla. 5th DCA 2015) . During the discovery process in a slip and fall case, Morgan & Morgan tenaciously opposed all attempts by defendant to learn how plaintiff became a patient of certain medical care providers. After hearings on various discovery requests by defendant, the trial court entered an order that required plaintiff to produce “the names of any and all cases (including plaintiff, defense, court and case number) where a client was referred directly or indirectly by any Morgan & Morgan attorney” to the relevant treating physicians in the present case, which necessarily included information on whether plaintiff in the pending case was referred by Morgan & Morgan to her treating physicians . The appellate court concluded that the order did not depart from the essential requirements of law, especially considering that YMCA had sufficiently demonstrated a good faith basis for suspecting that a referral relationship existed. “The limited type of discovery presently at issue concerns only the existence of a referral relationship between Morgan & Morgan and the treating physicians in this case,” which is directly relevant to the potential bias of the physicians. The appellate court further held that: “Having exhausted all other avenues without success we find – contrary to the trial court’s preliminary ruling and to Burt v. Geico, 603 So. 2d 125 (Fla. 2d DCA 1992) – that it was appropriate for YMCA to ask Worley if she was referred to the relevant physicians by her counselor or her counselor’s firm.” • Requests for an examination must set forth the time, place, manner, conditions and scope of the examination as well as the name of and the qualifications of the person conducting the examination with specificity. If examinations under these rules are requested such written request should be made no later than 70 days before the pretrial date to allow time for objections, hearings on same and an opportunity to reset the examination. Objections to “Examination of Persons” under Fla. R. Civ. P. 1.360(a)(1)(A) must be filed no later than 30 days from the written request assuming service of process has occurred at least 15 days prior to the request being served. The objections must state the specific reasons for the objections. A hearing must be immediately requested on any objection filed. Failure to set the objection for immediate hearing will be deemed an “Abandonment of the Request” under the rules. Once the Plaintiff files the specific objection, the burden is on the Defendant to call up the objection for hearing if they cannot work it out. • 541 These “Guidelines” are published to assist trial counsel with issues that routinely come before the Civil Courts involving expert examinations of injured parties and discovery of those expert opinions. Counsels are not precluded from filing the appropriate motions and obtaining a hearing before the Court on a particular case should the facts of that case, in good faith, suggest that these standard provisions should not control. • The examination should occur in the county where the case is being tried absent agreement of counsel to the contrary. An out -of-county examination must be approved by the Court after an evidentiary hearing and the proper record having been made. While requiring an in-county exam is not a hard and fast, inflexible rule, it is generally well within the Court’s discretion. See McKenney v. Airport Rent-A-Car, 686 So. 2d 771 (Fla. 4 th DCA 1997). Generally, if an out-of- county examination is to be conducted, the transportation and loss of work expense will have to be borne by the party requesting the examination. • A plaintiff who was a resident of Florida and who has now moved out of State, or who was a guest in State may be requested to undergo a CME. Knowing that such a request is permitted under the rules and is a normal process of litigation, attorneys for the Plaintiff should notify opposing counsel when they learn that their client is going to move out of State to allow for an examination before the party moves. A request that an out -of-state examination be done if not agreed to, will require a hearing. • While an expert’s time is valuable, so is the time of the party who is being examined. The party being examined should arrive no later than 15 minutes before the start time of the examination. Examinations which have been scheduled for a specific time should commence within 30 minutes of that time. The party who was to be examined will be free to leave the examiner’s office if she/he has not been called in for the examin ation after having waited for 30 minutes from the published start time of the examination. • 224 counsel to pay a reasonable fee for the time reserved or the time used whichever is less. If counsel and the examiner can agree on such a fee, that fee will apply. If no agreement can be reached, the Court will, upon proper motion and hearing and notice to all parties of interest, including the examiner, establish a reasonable fee for the services. In some cases, this may involve an evidentiary hearing as to the reasonable amount of the fee and the time expended. Be sure to advise the Judicial Assistant as to how much time will be needed. See Fla. R. Civ. P. 1.390(c) • 228 shall provide all raw data, including copies of all notes, tests, test results, scoring and test protocols, to Plaintiff’s treating or retained psychologist or neuropsychologist, who must return them to the defense examiner at the conclusion of this case. 9. All protected health information generated or obtained by the examiner shall be kept in accordance with HIPPA requirements and shall not be disseminated by the examiner or defense counsel to any other person or entity not a party to this case without a specific order from this court. 10. The defense doctor shall not be identified as “independent”, “appointed by the court” or the like. The examination shall be referred to as a “Compulsory Medical Examination.” 11. Plaintiff shall not be required to wait any longer than thirty (30) minutes for the compulsory examination to begin from the start time referenced above . Likewise, the Compulsory Medical Examination doctor is not required to wait any longer than thirty (30) minutes from the start time referenced above for the Plaintiff to arrive. If there is an emergency by either the physician or the Plaintiff, each person shall immediately notify their respective legal representative with the reason for the need to reschedule. 12. Defense counsel must provide the examiner with a copy of this Order and explain the need for the examiner’s compliance. DONE AND ORDERED at, Palm Beach County, Florida , this ______ day of _____________, 20___. • THIRD DCA Pino v. CGH Hosp., Ltd., 278 So. 3d 251, (Fla. 3d DCA 2019), rev. denied, 2019 Fla. LEXIS 2287 (Fla. Nov. 25, 2019) Dismissal Affirmed The trial court conducted a comprehensive evidentiary hearing and, after considering transcripts, surveillance recordings, and live testimony, dismissed the case based upon findings that appellant grossly misrepresented the nature and extent of her injuries, as evidenced by indisputable recorded surveillance, repudiated her prior sworn testimony explicating the alleged location and material circumstances of the disputed accident, and fabricated evidence to support her theory of prosecution. The “falsehoods” bear directly on the central issues in controversy, namely liability and damages. • Affirmed Personal injury claim where the trial court conducted an evidentiary hearing and entered a 17- page order demonstrating that the plaintiff engaged in a pattern of fraudulent misconduct designed to bolster her claims and compromise the defense by lying about prior injuries that were the true source of her pain. • Reversed Premises liability case; Plaintiff claimed lost wages from a company she never worked for according to deposition testimony. Evidence on employment was conflicting, so trial judge should have held a hearing and made findings to resolve inconsistency; but if matter would not meet summary judgment standards, then it is not proper for dismissal. • Reversed Dismissal in Plaintiff PI case (alleged fraud re lack of disclosure of prior treatment) reversed because there could have been confusion due to broad questioning, plaintiff’s interrogatory answers led the defense to the truth, and the judge did not hold an evidentiary hearing . Did not m eet Cox v. Burke test (see Cox case below). • Reversed Question of whether i nconsistencies argued intentional fraudulent conduct, forgetfulness, result of a li mited command of the English language, or efforts to unlawfully live and work in the country, trial court erred in dis missing with prejudice without evidentiary hearing. PROPOSED ORDERS • In 1994, the Trial Lawyers Section of The Florida Bar, the Conference of Circuit Judges, and the Conference of County Court Judges formed a joint committee to provide a forum for the exchange of ideas on how to improve the day -to-day practice of law for trial lawyers and trial judges. At the committee’s first meeting, it was the overwhelming consensus that “discovery abuse” should be the top priority. The original handbook and the later editions are the result of the continued joint efforts of the Trial Lawyers Section, the Conference of Circuit Judges, and the Conference of County Court Judges. It is intended to be a quick reference for lawyers and jud ges on many recurring discovery problems. It does not profess to be the dispositive legal authority on any particular issue. It is designed to help busy lawyers and judges quickly access legal authority for the covered topics. The ultimate objective is to help curtail perceived abuses in discovery so that the search for truth is not thwarted by the discovery process itself. The reader should still do his or her own research, to include a review of local administrative orders and rules. The first edition of this handbook was prepared in the fall of 1995. This 2024 (eighteenth) edition updates the handbook through December 2023. • Chapter 9: Motions for Protective Order ............................................................... 144 Depositions ................................................................................ 144 Other Forms of Discovery .......................................................... 146 • 87 See infra n. 69-70. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which event the disclosure is also not a waiver in any other federal or state proceeding. See Fed. R. Evid. 502(d). While Florida state court rules do not have a parallel provision for a court order, the parties may stipulate to such an agreement themselves and request court approval. The effectiveness of such a state court order beyond the partic ular proceeding is questionable because the order impacts non-parties to the litigation. Fed. R. Civ. P. 502(d) should be contrasted with Fed. R. Evid. 502(b) that provides a mechanism for clawing back inadvertently disclosed information to which privilege or protection may apply. 88 See FLA. R. CIV. P. 1.280, 2012 Committee Notes (“The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information.”). 89 See FLA. R. CIV. P. 1.280, 2012 Committee Notes. • The appeals court granted certiorari to quash the administrative law judge’s order requiring production of Menke’s computers. The court held that production and search of a computer is to be conducted by the producing party so as to protect their confidential information. Menke suggests that the production of the computer itself is a last resort only justified “in situations where evidence of intentional deletion of data was present.”148 The Menke court concluded with these words: Because the order of the administrative law judge allowed the respondent’s expert access to literally everything on the petitioner’s computers, it did not protect against disclosure of confidential and privileged information. It therefore caused irreparable harm, and we grant the writ and quash the discovery order under review. We do not deny the Board the right to request that the petitioner produce relevant, non- privileged, information; we simply deny it unfettered access to the petitioner’s computers in the first instance. Requests should conform to discovery methods and manners provided within the Rules of Civil Procedure. • 255 FLA. R. CIV. P. 1.280(b)(5)(A)(iii). 256 See Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). 257 FLA. R. CIV. P. 1.280(b)(5)(A)(iii)4. See also Brana v. Roura, 144 So. 3d 699, 700 (Fla. 4th DCA 2014) (quashing trial court’s orders denying petitioners’ motions for protective order where respondent issued subpoenas to insurance carriers requiring disclosure of financial information concerning payments made by those carriers to expert witness doctor for services provided as a litigation expert and finding that information was protected from disclosure by Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii)4)). 258 FLA. R. CIV. P. 1.280(b)(5)(A); see Grabel v. Sterrett, 163 So. 3d 704, 704 (Fla. 4th DCA 2015). 259 See Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 204 (Fla. 4th DCA 2012), disagreed with on other grounds in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017), reh'g denied sub nom. Worley v. Cent. Fla. Young Men's Christian, Etc., No. SC15-1086, 2017 WL 4547140 (Fla. Oct. 12, 2017). • cover all expenses of the plaintiff’s return trip to Florida for examination. In Goeddel v. Davis, M.D. 380 a trial court did not abuse its discretion by compelling the plaintiff, who resided in another state, to submit to a compulsory medical examination in the forum state when the compulsory medical examination was to be conducted during the same trip as a deposition the plaintiff was ordered to attend, and the defendants were ordered to contribute to the cost of the plaintiff’s trip. In Blagrove v. Smith , 381 a Hernando County trial court did not abuse its discretion by permitting a medical examination in nearby Hillsborough County because of the geographical proximity of the two counties. However, a trial court did abuse its discretion when the court sanctioned a plaintiff with dismissal after finding the plaintiff willfully violated a court order in failing to attend a second CME despite the fact that the plaintiff had moved to a foreign state, advised counsel two days prior that he was financially unable to attend, and filed a motion for protective order with an affidavit detailing his finances and stating he had no available funds or credit to travel to Florida. 382 Selection of the Examiner by the Defendant Judges generally will allow the medical examination to be conducted by the doctor of the defendant’s choice. The rationale sometimes given is that the plaintiff’s examining and treating physicians have been selected by the plaintiff. 383 However, whether to permit a defendant’s request for examination under Rule 1.360 is a matter of judicial discretion. • Accordingly, an examiner will not be compelled to disclose CME reports of other non- party examinees or to testify about findings contained in those reports.408 Nevertheless, discovery concerning the examination report and a deposition of the examiner for use at trial is permissible under Rule 1.360, even though the examination was prepared in anticipation of litigation by an expert who was not expected to be called at trial . For example, in Dimeglio v. Briggs -Mugrauer,409 which involved a claim for uninsured motorist benefits , t he insurance contract provided that the claimant would consent to an examination by the insurer’s chosen physician if a claim was filed. Before initiation of the lawsuit, the insurer scheduled a medical examination that was attended by the claimant, and the examiner confirmed that the claimant had an suffered injury. After a suit was filed, the plaintiff sought to take the videotape deposition of the examiner for use at trial . The insurer filed a motion for a protective order, claiming that the examination and report were protected as work product, and the trial court agreed. The appellate court reversed, holding that although the examination was prepared in anticipation of litigation, Rule 1.360 applied, and the insurer could not claim a work product privilege for a physi cal examination of the plaintiff by the insurance company’s chosen physician. Following the production of written reports and prior to trial, counsel may be required to disclose to opposing counsel any changes of the examining expert’s opinion, diagnostic impressions, causation opinions, or other conclusions which are not contained • 429 Scientific Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991) (citing Goodyear Tire & Rubber Co. v. Cooey, 359 So. 2d 1200, 1202 (Fla. 1st DCA 1978)). 430 See Gen. Caulking Coating Co., 958 So. 2d at 509. 431 Id. (“Because the order under review makes no specific findings as to why it deemed the requested information not to be protected by the trade secret privilege we find that it departs from the essential requirements of the law for which no adequate remedy may be afforded to petitioners on final review.” (quoting Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996))). 432 Fla. Stat. § 90.506 ( “When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require.”). 433 Capital One, N.A. v. Forbes, 34 So. 3d 209, 213 (Fla. 2d DCA 2010); Cordis Corp. v. O’Shea, 988 So. 2d 1163, 1165 (Fla. 4th DCA 2008); Bestechnologies, Inc. v. Trident Envtl. Sys., Inc., 681 So. 2d 1175, 1177 (Fla. 2d DCA 1996). 434 Winn-Dixie Stores v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983) petition for review denied 446 So. 2d 100 (Fla. 1984); Sligar v. T ucker, 267 So. 2d 54 (Fla. 4th DCA 1972) cert. denied (Fla. 1972); Grand Union Co., v. Patrick, 247 So. 2d 474 (Fla. 3d DCA 1971). • APPLICABLE RULE Fla. R. Civ. P. 1.280(c), states in pertinent part: 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 discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; . . . . If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. • 501 Liebreich v. Church of Scientology Flag Serv. Org., Inc., 855 So. 2d 658, 660 (Fla. 2d DCA 2003) (remanding “for the trial court to determine sanctions based only on the reasonable expenses incurred in obtaining the order compelling discovery”); Eastern Airlines. Inc. v. Dixon, 310 So. 2d 336 (Fla. 3d DCA 1975). 502 Where the attorney, and not the client, is responsi ble for nonco mpliance with a discovery or der, a different set of factors must be applied in determining sanctions. So nson v. Hearn, 17 So. 3d 745 (Fla. 4th DCA 2009). 503 FLA. R. CIV. P. 1.380(a)(4); Burt v. SP Healthcare Holdings, LLC, 163 So. 3d 1274 (Fla. 2d DCA 2015). • permit discovery, the court in which the action is pending may take any punitive action as set forth under the Rules . As an example, not a limitation, Rule 1.380(b)(2) lays out specifically permissible sanction orders including: A. An order that the matters regarding which the questions were asked or any other designated facts, shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. • C. An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party. • E. When a party has failed to comply with an order under Rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination. 504 • Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust.505 Such sanctions may be imposed only where the failure to comply with the court’s • order is attributable to a party to the matter. If the failure is that of another party or of a third person whose conduct is not chargeable to the party, no such sanction may be imposed.506 A court may impose sanctions against a non-party that violates a discovery order, if the court find the non-party to be in contempt after a due process proceeding.507 For the trial court to be on solid footing it is wise to stay within the enumerated orders set forth in Rule 1.380(b)(2). If a court imposes an enumerated sanction, it is doubtful that the order will be viewed as outside the discretion of the court. A court should always strictly follow due process and make appropriate factual and legal findings on the record, in order to ensure its ruling will withstand appellate scrutiny. SPOILATION OF EVIDENCE Spoliation, or the destruction of evidence, can be the basis for a sanctionable discovery violation under Rule 1.380. If evidence is lost or destroyed, the court must apply a three- part test to determine what remedy may apply: (1) whether the evidence had existed at a prior point in time; (2) whether a party had a duty to preserve the evidence; and (3) whether the evidence was critical to proving or defending a claim. 508 If all three elements are proven, the court may remedy a negligent spoliation through an adverse instruction, and adverse inference, or a presumption. If the spoliation was found to be intentional, the court has discretion to strike the offender’s pleadings. 509 On January 1, 2020, The Florida Supreme Court adopted new language to Rule 1.380(e), extending the spoliation rule to electronically stored information (ESI), including • unambiguous, properly issued, and properly served, in order to be grounds for claiming or sanctioning a discovery violation. A court can only enforce an order compelling conduct when the order is clear, because otherwise the question of what constitutes a “violation” becomes far too murky to meet due process requirements. 522 Further, issuance and service of the court order must be procedurally correct, because only through properly issued and served process does the court obtain jurisdiction over the person from whom action is sought – and without jurisdiction there can be no “enforcement.” Discovery sanctions should be “commensurate with the offense.”523 It has been held that the striking of pleadings for discovery misconduct is the most severe of penalties and must be employed only in extreme circumstances:524 The striking of a party’s pleadings is justified only where there is “’a deliberate and contumacious disregard of the court’s authority.’” Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998) (quoting Mercer, 443 So. 2d at 946). In assessing whether the striking of a party’s pleadings is warranted, courts are to look to the following factors: • B. Procedural Background ...180 1. Pretrial matters ...180 2. The Show Cause Order ...180 • 2. The Show Cause Order On January 27, 2017, I entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing. In the Order To Show Cause, I directed that every attorney for the parties who signed a re sponse to interrogatories or a response to a request for documents in • On February 28, 2017, the parties filed those briefs, as directed. Those briefs were Liguria’s Brief In Response To Section II Of The Order To Show Cause Of January 27, 2017, and Griffith’s Response To Order To Show Cause. • 1. Responses in briefs In its brief in response to the Order To Show Cause, Liguria states that, based upon its review of my Order To Show Cause, the applicable Federal Rules of Civil Procedure, and its discovery responses, it recognizes that many of its objections are not state d with specificity. Liguria asserts, nevertheless, that it has not interposed any objection “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” pursuant to Rule 26(g)(1)(B)(ii). Liguria als o points out that some of its objections did interpose explanations to justify their basis, such as the ones that I identified, supra , in notes 8 and 9. In addition, Liguria argues that it did so in its responses to Interrogatories Nos. 2 and 18 and Request For Production No. 1. • II. LEGAL ANALYSIS Although it was the second issue to arise, I find it appropriate to rule, first, on the Order To Show Cause, relating to what I believed were obstructionist discovery responses by both parties. Having considered the parties’ arguments, I now confirm that belief as to all or nearly all the responses that I identified. The question of whether or not to impose sanctions, in light of such improper responses, is a much more difficult issue, however, because I find that this case involved courteous and professional attorneys who worked together in good faith to resolve discovery disputes without the need for intervention by the court. • [10] [11]I also reject Griffith’s argument that its general objections to discovery requests or its “boilerplate” objections to certain specific requests were to assure that Griffith was not waiving its rights while the parties met and conferred about the scope of privileges, pertinent time periods, and a myriad of other issues in this complex case. As I pointed out, above, under both Rule 33 and 34, any ground not stated in a timely objection is waived, unless the court excuses the failure. Sellars, 2016 WL 4771087 at *2. Indeed, the idea that such general or “boilerplate” objections preserve any objections is an “urban legend.” Jarvey, Boilerplate Discovery Objections , 61 DRAKE L. REV. at 925 –26 (quoting Carmichael Lodge No. 2103, Benevolent & Protective Order of Elks of U.S. of Am. v. Leonard, No. CIV S -07-2665 LKK GGH, 2009 WL 1118896, at *4 (E.D. Cal. Apr. 23, 2009) ). Chief Justice Menis E. Ketchum II of the West Virginia Supreme Court of Appeals had particularly harsh yet insightful condemnations for such practices: Many federal courts have opined that “subject to” or “without waiving” objections are misleading, worthless and without legitimate purpose or effect. They reserve nothing. As one federal judge observed, “The Parties shall not recite a formulaic objection f ollowed by an answer to the request. It has become common practice for a Party to object on the basis of any of the above reasons, and then state that ‘notwithstanding the above,’ the Party will respond to the discovery request, subject to or without waiving such objection. Such an objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been f ully answered or whether only a portion of the question has been answered.” Chief Justice Menis E. Ketchum II, Impeding Discovery: Eliminating Worthless Interrogatory Instructions And Objections, 2012–JUN W. VA. L. 18, 19 (2012) (citation omitted). He then observed, Our circuit judges are swamped with motions to compel regarding discovery. Stiff sanctions by judges for each violation would have a dramatic effect on these unauthorized boilerplate objections. The word would spread quickly, and the practice would suddenl y stop. “Without waiving” and “subject to” objections are cute and tricky but plainly violate the purpose of our Rules of Civil Procedure: “to secure just, speedy and inexpensive determination of every action.” Id. at 20 (citation omitted). • Griffith argues that, as to the matters identified in the Show Cause Order, this case does not involve the sort of extreme misconduct in discovery that should warrant sanctions. Nevertheless, Griffith’s counsel professes to having no objection to participa ting in a continuing legal education program or providing such a program, regarding the problems relating to “boilerplate objections,” or to writing an article on those problems for the court to review and approve. Griffith asserts, however, that under the facts of this case to impose a sanction, rather than a voluntary undertaking, would constitute an abuse of discretion. • I conclude that this is not an “ordinary” case where the parties’ responses to discovery were not only contrary to the applicable rules and “improper,” but warrant some sanction. In this case, I do not have lawyers who are not “brave enough to appear in front of juries,” but able tr ial lawyers; nor do I find that they focused on “pusillanimous objections” as an end in themselves or as part of a campaign to avoid timely and just disposition of this case. Compare Chief Justice *190 Ketchum II, Impeding Discovery, 2012–JUN W. VA. L. at 21. The parties agree, and I find, that they have had a cooperative and professional relationship during discovery, at least until the issues addressed in Griffith’s Motion arose. Indeed, it appears to me that counsel for the parties did everything that the court might expect them to do to confer and cooperate to work out issues about the scope of discovery. It is also clear to me that both parties’ reliance on improper “boilerplate” objections is the result of a local “culture” of protectionist discovery responses, even though such responses are contrary to the decisions of every court to address them. Notable by their absence from the parties’ responses to the Order To Show Cause are citations to any published rulings of any cour t approving the kind of “boilerplate” responses that the parties used in this case, and the parties did not try to raise frivolous defenses for their conduct when called on it. The fact that the parties were able to work out most of their discovery dispute s through consultation and cooperation is a clear indication that their “boilerplate” responses were completely unnecessary to protect any supposed rights or interests, but they do not warrant sanctions, in the circumstances presented, here. • To address the serious problem of “boilerplate” discovery objections, my new Supplemental Trial Management Order advises the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject t he party and/or its counsel to sanctions. 16 Objections must be specific and state an adequate individualized basis.” The Order also imposes an “affirmative duty to notify the court of alleged discovery abuse” and warns of the possible sanctions for obstructionist discovery conduct. 17 • The conduct identified in the Show Cause Order does not warrant sanctions, notwithstanding that the conduct was contrary to the requirements for discovery responses in the Federal Rules of Civil Procedure. NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS. • 186 (3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; (4) the limitation of the number of expert witnesses; (5) the potential use of juror notebooks; and (6) any matters permitted under subdivision (a) of this rule. (c) Notice. Reasonable notice shall be given for a case management conference, and 20 days' notice shall be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference must be specified in the order. Orders setting pretrial conferences must be uniform throughout the territorial jurisdiction of the court. (d) Pretrial Order. The court must make an order reciting the action taken at a conference and any stipulations made. The order controls the subsequent course of the action unless modified to prevent injustice. • 187 RULE 1.201. COMPLEX LITIGATION – NEW (a) OMITTED (b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within 60 days from the date of the order declaring the action complex. (1) At least 20 days prior to the date of the initial case management conference, attorneys for the parties as well as any parties appearing pro se shall confer and prepare a joint statement, which shall be filed with the clerk of the court no later than 14 days before the conference, outlining a discovery plan and stating: (A) a brief factual statement of the action, which includes the claims and defenses; (B) a brief statement on the theory of damages by any party seeking affirmative relief; (C) the likelihood of settlement; (D) the likelihood of appearance in the action of additional parties and identification of any nonparties to whom any of the parties will seek to allocate fault; (E) the proposed limits on the time: (i) to join other parties and to amend the pleadings, (ii) to file and hear motions, (iii) to identify any nonparties whose identity is known, or otherwise describe as specifically as practicable any nonparties whose identity is not known, (iv) to disclose expert witnesses, and (v) to complete discovery; (F) the names of the attorneys responsible for handling the action; (G) the necessity for a protective order to facilitate discovery; (H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment; (I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence; (J) the possibility of obtaining agreements among the parties regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources; [Remainder of Rule OMITTED ] THERE IS NO FEDERAL COUNTERPART TO FLORIDA’S COMPLEX LITIGATION PROCEDURAL RULES. • F. Color. For files not produced in their native format , if an original document contains color, the producing party shall produce color image(s) for each such document if reasonably feasible. G. Bates Numbering and Other Unique Identifiers. For files not produced in their native format, each page of a produced document shall have a legible, unique page identifier ("Bates Number") electronically " burned" onto the TIF image in such a manner that information from the source document is not obliterated, concealed, or interfered with. There shall be no other legend or stamp placed on the document image unless a document qualifies for confidential treatment pursuant to the terms of a Protective Order entered by this Court in this litigation, or has been redacted in accordance with applicable law or Court order. In the case of confidential materials as defined in a Protective Order, or materials redacted in accordance with applicable law or Court order, a designation may • 212 information. Within fourteen (14) days of such a request, the producing party must either (i) produce a full log for the requested documents or (ii) challenge the request. If a party challenges a request for further information, the parties shall meet and confer to try to reach a mutually agreeable solution. If they cannot agree, the matter shall be brought to the Court. All other issues of privilege, including the inadvertent production of privileged or protected documents or information, shall be governed by the Protective Order entered by the Court in this litigation. • Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994). En banc, the appellate court reviewed trial court orders requiring defendant’s trial experts to produce, among many other things, certain 1099s and P.A. federal income tax returns, as well as information regarding patients who were examined for purposes of litigation in unrelated matters. In quashing the orders, the court concluded that decisions in the field have gone too far in permitting burdensome inquiry into the financial affairs of physicians and established eight criteria limiting discovery of an opposing medical expert for impeachment . One of the limiting criteria was that production of the experts business records, files, and 1099s may be ordered produced only upon the most unusual or compelling circumstances. The court commented that the problem the criteria addresses is the attempt by litigators to demonstrate the possibility of a medical expert’s bias through “overkill discovery,” to prove a point easily demonstrable by less burdensome and invasive means, and that production of the information ordered in the cases before them caused annoyance and embarrassment while providing little information. • Smith v. Eldred , 96 So. 3d 1102 (Fla. 4th DCA 2012) . Trial court overruled defendant’s objection to plaintiff’s Notice of Intent to Serve a Subpoena and Notice of Service of Expert Witness Request for Production directed to defendant’s liability expert. Defendant asserted that Fla. R. Civ. P. 1.280(b)(4) does not allow a party to serve a subpoena or a request for production, and that a party may request the court to seek discovery of financial or business records by other means, but only when unusual or compelling circumstances exist . The appellate court agreed, quashed the order, and stated that Rule 1.280(b)(4) means what it says and says what it means, that the rule confines both the discovery methods that can be employed when directed to expert witnesses and the subject matter of that discovery, and that a request for productions is simply NOT a method condoned by the rule except upon motion. • 217 the court to grant certiorari and quash an order of the circuit court that overruled his objections to a subpoena duces tecum. The order required the expert to produce copies of all billing invoices submitted to State Farm and its attorneys for the past three years; to produce any existing document and/or statement that included the total amount of money paid by or on behalf of St ate Farm or its attorneys for work the expert had performed as an expert witness on their behalf for the past three years; and to produce all documents evidencing the amount or percentage of worked performed by Dr. Grabel on behalf of any defendant or their defense attorneys, during the last three years, including time records, invoices, 1099s or other income reporting documents. In granting certiorari and quashing the order, the appellate court held that without making any finding of “the most unusual or compelling circumstances” that might justify the production of financial and business records, the trial court ordered the doctor to produce financial and business records beyond that allowed by the rule and Elkins. v. Syken, 672 So. 2d 517 (Fla. 1996) . The court pointed out that plaintiff had obtained, or could obtain, records regarding payments from the insurer to the doctor pursuant to Allstate v. Boecher , and that this is more than sufficient information to reveal any potential bias. • 218 total amount of fees paid to the doctor for expert litigation services since 2009. The appellate court quashed the order, stating that this extensive financial discovery as to a retained expert exceeded that allowed by the rule and was unnecessary, pointing out that the rule expressly provides that “the expert shall not be required to di sclose his or her earnings as an expert witness.” The appellate court further held that the alleged inconsistencies do not constitute “unusual or compelling circumstance” to warrant such broad financial disclosure, as there was no showing that the inconsistencies were the result of falsification, misrepresentation, or obfuscation. • 220 and the qualifications of the person conducting the examination are set forth with specificity. See, Maddox v. Bullard, 141 So.3d 1264 (Fla. 5th DCA July 11, 2014) [Order on psychological examination reversed because specifics were not set forth in the order including the “manner, conditions or scope of the examination thereby, in effect, giving the psychologist ‘care blanche’ ….”] • FOURTH DCA Beseler v. Avatar Prop. & Cas. Ins. Co., 291 So. 3d 137 (Fla. 4th DCA 2020) Dismissal Reversed Insureds appealed the trial court's dismissal of their property insurance lawsuit for fraud upon the court. The Fourth DCA reversed the order dismissing their claim and remand for further proceedings, holding that the trial court abused its discretion in dismissing the suit because any inconsistencies between the insureds' statements regarding the cause of damage were not significant enough to warrant dismissal. These inconsistencies could have been well managed th rough impeachment and other less severe sanctions. Stein v. Defren, 247 So. 3d 24 (Fla. 4th DCA 2018) Dismissal Reversed Trial court failed to make findings of fact in its order granting dismissal as a sanction. An order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process. • Reversed and Remanded Trial court failed to provide an adequate order granting dismissal for fraud on the court because it did not include express written findings demonstrating that the trial court had carefully balanced the equities and supporting conclusion that the moving party had clearly and convincingly implemented a deliberate scheme calculated to subvert the judicial process. REMOTE & VIRTUAL APPEARANCES • A. "Electronically stored information:' or "ESI,” as used herein, means and refers to computer generated information or data of any kind, stored in or on any storage media located on computers, file servers, disks, tape or other real or virtualized devices or media. Non limiting examples of ESI include: • Digital Communications (e.g., e-mail, voice mail, instant messaging, tweets, etc.); • E-Mail Server Stores (e.g., Lotus Domino .NSF or Microsoft Exchange .EDB); • Word Processed Documents (e.g., Word or WordPerfect files and drafts); • Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); • Accounting Application Data (e.g., QuickBooks, Money, Peachtree data); • Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images); • Sound Recordings (e.g., .WAV and .MP3 files); • Video and Animation (e.g., .AVI and .MOY files); • Databases (e.g., Access, Oracle, SQL Server data, SAP, other); • Contact and Relationship Management Data (e.g., Outlook, ACT!); • Calendar and Diary Application Data (e.g., Outlook PST, blog entries); • Online Access Data (e.g., Temporary Internet Files, History, Cookies) ; • Presentations (e.g., PowerPoint, Corel Presentations); • Network Access and Server Activity Logs; • Project Management Application Data; • Computer Aided Design/Drawing Files; and • Backup and Archival Files (e.g., Veritas, Zip, .GHQ). • 201 with a native file that is not ordinarily viewable or printable from the application that generated, edited, or modified such native file which describes the characteristics, origins, usage and/or validity of the electronic file and/or (ii) information generated automatically by the operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted or otherwise manipulated by a user of such system. D. "Static Image" means or refers to a representation of ESI produced by converting a native file into a standard image format capable of being viewed and printed on standard computer systems. E. "Documents" includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data, data records or data compilations -stored in any medium (including cloud-based or cloud sourced media) from which information can be obtained. F. "Media" means an object or device, real or virtualized, including but not limited to a disc, tape, computer or other device, on which data is or was stored. II. SEARCH TERMS FOR ELECTRONIC DOCUMENTS • Message Service (SMS) systems; word processing systems; spreadsheet and database systems (including the database's dictionary, and the manner in which such program records transactional history in respect to deleted records); system history files, cache files, and cookies, graphics, animation, or document presentation systems; calendar systems; voice mail systems, including specifically, whether such systems include ESI; data files; program files; internet systems; and intranet systems. B. Information security systems, including access and identity authentication, encryption, secure communications or storage, and other information and data protection and technology deployments, where appropriate. C. Storage systems, including whether ESI storage is cloud, server based, or otherwise virtualized, and also including, without limitation, individual hard drives, home computers , "laptop" or "notebook" computers, personal digital assistants, pagers , mobile telephones, or removable /portable storage devices , such as CD-ROMs, DVDs, "floppy" disks , zip drives, tape drives, external hard drives , flash thumb or "key" drives, or external service providers. D. Back up and archival systems, whether physical or virtualized, and including without limitation continuous data protection, business continuity, disaster recovery systems, whether such systems are onsite, offsite, maintained using one or more third-party vendors, or cloud based. The parties, including the designated ESI person(s), shall meet and • G. ESI erasure, modification, or recovery mechanisms, such as metadata scrubbers, wiping programs , and including without limitation other programs that destroy, repeatedly overwrite or otherwise render unreadable or uninterpretable all of or portions of real or virtualized storage media in order to render such erased information irretrievable, and all policies in place during the relevant time period regarding the use of such processes and software , as well as recovery programs that can defeat scrubbing, thereby recovering deleted, but inadvertently produced ESL H. Policies regarding document and record management, including the retention or destruction of relevant ESI for any such time that there exists a reasonable expectation of foreseeable litigation in connection with such documents and records.

Source of truth

TLS Discovery Handbook Committee Jeremy Branning, Chair Honorable Christine Marlewski Andrew Reiss Geddes Anderson, Jr. Weston Smith Kim Ashby Rachel Walters Tom Dart Whitney Untiedt Jennifer Lester

Official source

19th Circuit — Administrative Orders (circuit19.org)

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Healthy · checked September 7, 2026

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—

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July 24, 2026benchpath-completeness-2026-07-24

Reviewer note: Document sha256: f6983dee9f62b775bb8423471df350effb2b5990b9961937814ac1124ef229b7. One rule per order rather than per topic, so an order's requirements stay together. Published during the completeness pass. | Title normalised 2026-07-26 for readability; the court's own asset name was "19th Cir. — judge-lillian-ewen__Florida-Civil-Discovery-Handbook.pdf: published requirements". Only the display title changed — the requirement text, source URL and hash are untouched.

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19th Cir. — Judge Lillian Ewen: Florida Civil Discovery Handbook

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