Discovery Interrogatories from Plaintiff to Defendant with Production Requests
Note: This summary is not intended to be an all-inclusive
summary of discovery law in Florida, but does include basic and other information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions,
oral questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed to
the Plaintiff, Defendant or the attorney for response in writing.
The answers or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions are
usually recorded by a court reporter, who swears the person to tell the
truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Florida Family Law Rules of Procedure
Florida has adopted the Florida Family Law Rules of Procedure which
contain rules governing discovery.
General Provisions Regarding Discovery: Florida Rule
of Civil Procedure 1.280 shall govern general provisions concerning discovery
in family law matters with the following exceptions:
(a) Supplementing of Responses. A party is under a duty to amend
a prior response or disclosure if the party: (1) obtains information or
otherwise determines that the prior response or disclosure was incorrect
when made; (2) obtains information or otherwise determines that the
prior response or disclosure, although correct when made, is no longer
materially true or complete.
(b) Time for Serving Supplemental Responses. Any supplemental response
served pursuant to this rule shall be served as soon as possible after
discovery of the incorrect information or change, but in no case shall
the supplemental response be served later than 24 hours before any applicable
hearing absent a showing of good cause.
(c) Documents Considered Confidential. A determination as to the confidentiality of a court record shall be made in accordance
with Florida Rule of Judicial Administration 2.051.
(d) Sealing of Records. Records found to be con-fidential
under Florida Rule of Judicial Administration 2.051 shall be sealed on
request of a party. (Rule 12.280)
Florida Rule of Civil Procedure 1.280 provides:
(a) Discovery Methods. Parties may obtain discovery by one or more
of the following methods:
depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter
upon land or other property for inspection and other purposes; physical
and mental examinations; and requests for admission. Unless the court orders
otherwise and under subdivision (c) of this rule, the frequency of use
of these methods is not limited, except as provided in rule 1.200 and rule
1.340.
(b) Scope of Discovery. Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter of the pending action,
whether it relates to the claim or defense of the party seeking discovery
or the claim or defense of any other party, including the existence, description,
nature, custody, condition, and location of any books, documents, or other
tangible things and the identity and location of persons having knowledge
of any discoverable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) Indemnity Agreements. A party may obtain discovery of the existence
and contents of any agreement under which any person may be liable tosatisfy
part or all of a judgment that may be entered in the action or to indemnify
or to reimburse a party for payments made to satisfy the judgment. Information
concerning the agreement is not admissible in evidence at trial by reason
of disclosure.
(3) Trial Preparation: Materials. Subject to the provisions of subdivision
(b)(4) of this rule, a party may obtain discovery of documents and tangible
things otherwise discoverable under subdivision(b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for another party or by or for that
party's representative, including that party's attorney, consultant, surety,
indemnitor, insurer, or agent, 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. In ordering discovery of the materials when
the required showing has been made, the court shall protect against disclosure
of the mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party concerning the litigation.
Without the required showing a party may obtain a copy of a statement concerning
the action or its subject matter previously made by that party. Upon request
without the required showing a person not a party may obtain a copy of
a statement concerning the action or its subject matter previously made
by that person. If the request is refused, the person may move for an order
to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award
of expenses incurred as a result of making the motion. For purposes of
this paragraph, a statement previously made is a written statement signed
or otherwise adopted or approved by the person making it, or a stenographic,
mechanical, lectrical, or other recording or transcription of it that is
a ubstantially verbatim recital of an oral statement by the person making
it and contemporaneously recorded.
(4) Trial Preparation: Experts. Discovery of facts known and opinions
held by experts, otherwise discoverable under the provisions of subdivision
(A)(i) as follows:
By interrogatories a party may require any other party to identify
each person whom the other party expects to call as an expert witness at
trial and to state the subject matter on which the expert is expected to
testify, and to state the substance of the facts and opinions to which
the expert is expected to testify and a summary of the grounds for each
opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person
expected to be called as an expert witness at trial may be deposed in accordance
with rule 1.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person
disclosed by inter-rogatories or otherwise as a person expected to be called
as an expert witness at trial:
1. The scope of employment in the pending case and the compensation
for such service.
2. The expert's general litigation experience, including the percentage
of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period,
in which the expert has testified by deposition or at trial.
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 An expert may
be required to produce financial and business records only under the most
unusual or compelling circumstances and may not be compelled to compile
or produce nonexistent documents. Upon motion, the court may order further
discovery by other means, subject to such restrictions as to scope and
other provisions pursuant to subdivision (b)(4)(C) of this rule concerning
fees and expenses as the court may deem appropriate and to state the subject
matter on which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to testify and
a summary of the grounds for each opinion.
(B) A party may discover facts known or opinions held by 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, 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 facts or opinions on the same subject by other
means.
(C) Unless manifest injustice would result, the court shall require
that the party seeking discovery pay the expert a reasonable fee for time
spent in responding to discovery under subdivisions (b)(4)(A) and (b)(4)(B)
of this rule; and concerning discovery from an expert obtained under subdivision
(b)(4)(A) of this rule the court may require, and concerning discovery
obtained under subdivision (b)(4)(B) of this rule shall require, the party
seeking discovery to pay the other party a fair part of the fees and expenses
reasonably incurred by the latter party in obtaining facts and opinions
from the expert.
(D) As used in these rules an expert shall be an expert witness
as defined in rule 1.390(a).
(5) Claims of Privilege or Protection of Trial Preparation Materials.
When a party withholds information otherwise discoverable under these rules
by claiming that it is privileged or subject to protection as trial preparation
material, the party 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 information itself privileged or protected,
will enable other parties to assess the applicability of the privilege
or protection.
(c) Protective Orders. 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; (3) that the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery; (4)
that certain matters not be inquired into, or that the scope of the discovery
be limited to certain matters; (5) that discovery be conducted with no
one present except persons designated by the court; (6) that a deposition
after being sealed be opened only by order of the court; (7) that a trade
secret or other confidential research, development, or commercial information
not be disclosed or be disclosed only in a designated way; and(8) that
the parties simultaneously file specified documents or information enclosed
in sealed enve-lopes to be opened as directed by the court. 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.
(d) Sequence and Timing of Discovery. Except as provided in subdivision
(b)(4) or unless the court upon motion for the convenience of parties and
witnesses and in the interest of justice orders otherwise, methods of discovery
may be used in any sequence, and the fact that a party is conducting discovery,
whether by deposition or otherwise, shall not delay any other party's discovery.
(e) Supplementing of Responses. A party who has responded to a request
for discovery with a response that was complete when made is under no duty
to supplement the response to include information thereafter acquired.
MANDATORY DISCLOSURE
(a) Application: (1) Scope. Rule 12.285 shall apply to all proceedings
within the scope of these rules except proceedings involving adoption,
simplified dissolution, enforcement, contempt, injunctions for domestic
or repeat violence, and uncontested dissolutions when the respondent is
served by publication and does not file an answer. Additionally, no financial
affidavit or other documents shall be required under this rule from a party
seeking attorneys' fees, suit money, or costs, if the basis for the request
is solely under section 57.105, Florida Statutes, or any successor statute.
Except for the provisions as to financial affidavits and child support
guidelines worksheets, any portion of this rule may be modified by order
of the court or agreement of the parties.
(2) Original and Duplicate Copies. Unless otherwise agreed by the
parties or ordered by the court, copies of documents required under this
rule may be produced in lieu of originals. Originals, when available, shall
be produced for inspection upon request. Parties shall not be required
to serve duplicates of documents previously served.
(b) Time for Production of Documents. (1) Temporary Financial Hearings.
Any document required under this rule in any temporary financial relief
proceeding shall be served on the other party for inspection and copying
as follows.
(A) The party seeking relief shall serve the required documents
on the other party with the notice of temporary financial hearing, unless
the documents have been served under ubdivision (b)(2) of this rule.
(B) The responding party shall serve the required documents on the
party seeking relief on or before 5:00 p.m., 2 business days before the
day of the temporary financial hearing if served by delivery or 7 days
before the day of the temporary financial hearing if served by mail, unless
the documents have been received previously by the party seeking relief
under subdivision (b)(2) of this rule. A responding party shall be given
no less than 12 days to serve the documents required under this rule, unless
otherwise ordered by the court. If the 45-day period for exchange of documents
provided for in subdivision (b)(2) of this rule will occur before the expiration
of the 12 days, the provisions of subdivision(b)(2) control.
(2) Initial and Supplemental Proceedings. Any document required
under this rule for any initial or supplemental proceeding shall be served
on the other party for inspection and copying within 45 days of service
of the initial pleading on the respondent.
(c) Disclosure Requirements for Temporary Financial Relief. In any
proceeding for temporary financial relief heard within 45 days of the service
of the initial pleading or within any extension of the time for complying
with mandatory disclosure granted by the court or agreed to by the parties,
the following documents shall be served on the other party:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if the party's gross annual
income is less than $50,000, or Florida Family Law Rules of Procedure Form
12.902(c) if the party's gross annual income is equal to or more than $50,000.
This requirement cannot be waived by the parties. The affidavit also must
be filed with the court.
(2) All federal and state income tax returns, gift tax returns,
and intangible personal property tax returns filed by the party or on the
party's behalf for the past year. A party may file a transcript of the
tax return as provided by Internal Revenue Service Form 4506 in lieu of
his or her individual federal income tax return for purposes of a temporary
hearing.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income
tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior to service of the financial affidavit.
(d) Parties' Disclosure Requirements for Initial or Supplement Proceedings.
A party shall serve the following documents in any proceeding for an initial
or supplemental request for permanent financial relief, including, but
not limited to, a request for child support, alimony, equitable distribution
of assets or debts, or attorneys' fees, suit money, or costs:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if the party's gross annual
income is less than $50,000, or Florida Family Law Rules of Procedure Form
12.902(c) if the party's gross annual income is equal to or more than $50,000,
which requirement cannot be waived by the parties. The financial affidavits
also must be filed with the court. A party may request, by using the Standard
Family Law Interrogatories, or the court on its own motion may order, a
party whose gross annual income is less than $50,000 to complete Florida
Family Law Rules of Procedure Form 12.902(c).
(2) All federal and state income tax returns, gift tax returns,
and intangible personal property tax returns filed by the party or on the
party's behalf for the past 3 years.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income
tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior to service of the financial affidavit.
(5) A statement by the producing party identifying the amount and
source of all income received from any source during the 3 months preceding
the service of the financial affidavit required by this rule if not reflected
on the pay stubs produced.
(6) All loan applications and financial statements prepared or
used within the 12 months preceding service of that party's financial affidavit
required by this rule, whether for the purpose of obtaining or attempting
to obtain credit or for any other purpose.
(7) All deeds within the last 3 years, all promissory notes within
the last 12 months, and all present leases, in which the party owns or
owned an interest, whether held in the party's name individually, in the
party's name jointly with any other person or entity, in the party's name
as trustee or guardian for any other person, or in someone else's name
on the party's behalf.
(8) All periodic statements from the last 3 months for all checking
accounts, and from the last 12 months for all other accounts (for example,
savings accounts, money market funds, certificates of deposit, etc.), regardless
of whether or not the account has been closed, including those held in
the party's name individually, in the party's name jointly with any other
person or entity, in the party's name as trustee or guardian for any other
person, or in someone else's name on the party's behalf.
(9) All brokerage account statements in whichperson or entity,
in the party's name as trustee or guardian for any other person, or in
someone else's name on the party's behalf.
(10) The most recent statement for any profit sharing, retirement,
deferred compensation, or pension plan (for example, IRA, 401(k), 403(b),
SEP, KEOGH, or other similar account) in which the party is a participant
or alternate payee and the summary plan description for any retirement,
profit sharing, or pension plan in which the party is a participant or
an alternate payee. (The summary plan description must be furnished to
the party on request by the plan administrator as required by 29 U.S.C.
§ 1024(b)(4).)
(11) The declarations page, the last periodic statement, and the
certificate for all life insurance policies insuring the party's life or
the life of the party's spouse, whether group insurance or otherwise, and
all current health and dental insurance cards covering either of the parties
and/or their dependent children.
(12) Corporate, partnership, and trust tax returns for the last
3 tax years if the party has an ownership or interest in a corporation,
partnership, or trust greater than or equal to 30%.
(13) All promissory notes for the last 12 months, all credit card
and charge account statements and other records showing the party's indebtedness
as of the date of the filing of this action and for the last 3 months,
and all present lease agreements, whether owed in the party's name individually,
in the party's name jointly with any other person or entity, in the party's
name as trustee or guardian for any other person, or in someone else's
name on the party's behalf.
(14) All written premarital or marital agreements entered into
at any time between the parties to this marriage, whether before or during
the marriage. Additionally, in any modification proceeding, each party
shall serve on the opposing party all written agreements entered into between
them at any time since the order to be modified was entered.
(15) All documents and tangible evidence supporting the producing
party's claim of special equity or nonmarital status of an asset or debt
for the time period from the date of acquisition of the asset or debt to
the date of production or from the date of marriage, if based on premarital
acquisition.
(16) Any court orders directing a party to pay or receive spousal
or child support.
(e) Duty to Supplement Disclosure; Amended Financial Affidavit.
(1) Parties have a continuing duty to supplement documents described
in this rule, including financial affidavits, whenever a material change
in their financial status occurs.
(2) If an amended financial affidavit or an amendment to a financial
affidavit is filed, the amending party also shall serve any subsequently
discovered or acquired documents supporting the amendments to the financial
affidavit.
(f) Sanctions. Any document to be produced under this rule that
is served on the opposing party fewer than 24 hours before a nonfinal hearing
or in violation of the court's pretrial order shall not be admissible in
evidence at that hearing unless the court finds good cause for the delay.
In addition, the court may impose other sanctions authorized by rule 12.380
as may be equitable under the circumstances. The court may also impose
sanctions upon the offending lawyer in lieu of imposing sanctions on a
party.
(g) Extensions of Time for Complying with Mandatory Disclosure.
By agreement of the parties, the time for complying with mandatory disclosure
may be extended. Either party also may file, at least 5 days before the
due date, a motion to enlarge the time for complying with mandatory disclosure.
The court shall grant the request for good cause shown.
(h) Objections to Mandatory Automatic Disclosure. Objections to
the mandatory automatic disclosure required by this rule shall be served
in writing at least 5 days prior to the due date for the disclosure or
the objections shall be deemed waived. The filing of a timely objection,
with a notice of hearing on the objection, automatically stays mandatory
disclosure for those matters within the scope of the objection. For good
cause shown, the court may extend the time for the filing of an objection
or permit the filing of an otherwise untimely objection. The court shall
impose sanctions for the filing of meritless or frivolous objections.
(i) Certificate of Compliance. All parties subject to automatic
mandatory disclosure shall file with the court a certificate of compliance,
Florida Family Law Rules of Procedure Form 12.932, identifying with particularity
the documents which have been delivered and certifying the date of service
of the financial affidavit and documents by that party.
(j) Child Support Guidelines Worksheet. If the case involves child
support, the parties shall file with the court at or prior to a hearing
to establish or modify child support a Child Support Guidelines Worksheet
in substantial conformity with Florida Family Law Rules of Procedure Form
12.902(e). This requirement cannot be waived by the parties.
(k) Place of Production.(1) Unless otherwise agreed by the parties
or ordered by the court, all production required by this rule shall take
place in the county where the action is pending and in the office of the
attorney for the party receiving production. Unless otherwise agreed by
the parties or ordered by the court, if a party does not have an attorney
or if the attorney does not have an office in the county where the action
is pending, production shall take place in the county where the action
is pending at a place designated in writing by the party receiving production,
served at least 5 days before the due date for production.
(2) If venue is contested, on motion by a party the court shall
designate the place where production will occur pending determination of
the venue issue.
(l) Failure of Defaulted Party to Comply. Nothing in this rule shall
be deemed to preclude the entry of a final judgment when a party in default
has failed to comply with this rule.( Rule 12.285)
FINANCIAL AFFIDAVITS IN ENFORCEMENT AND CONTEMPT
PROCEEDINGS
Any party in an enforcement or contempt proceeding may serve upon
any other party a written request to file and serve a financial affidavit
if the other party's financial circumstances are relevant in the proceeding.
The party to whom the request is made shall file and serve the requested
financial affidavit within 10 days after the service of the written request.
The court may allow a shorter or longer time. The financial affidavit shall
be in substantial conformity with Florida Family Law Rules of Procedure
Form 12.902(b) (Short Form), all sections of which shall be completed.
(Rule 12.287)
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
Depositions before an action or pending an appeal shall be governed
by Florida Rule of Civil Procedure 1.290. (Rule 12.290)
Florida Rule of Civil Procedure 1.290 provides:
(a) Before Action.(1) Petition. A person who desires to perpetuate
that person's own testimony or that of another person regarding any matter
that may be cognizable in any court of this state may file a verified petition
in the circuit court in the county of the residence of any expected adverse
party. The petition shall be entitled in the name of the petitioner and
shall show:
(1) that the petitioner expects to be a party to an action cognizable in a court of Florida, but is presently unable to bring
it or cause it to be brought, (2) the subject matter of the expected action
and the petitioner's interest therein, (3) the facts which the petitioner
desires to establish by the proposed testimony and the petitioner's reasons
for desiring to perpetuate it, (4) the names or a description of the persons
the petitioner expects will be adverse parties and their addresses so far
as known, and (5) the names and addresses of the persons to be examined
and the substance of the testimony which the petitioner expects to elicit
from each; and shall ask for an order authorizing the petitioner to take
the deposition of the persons to be examined named in the petition for
the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a
notice upon each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner will
apply to the court at a time and place named therein for an order described
in the petition. At least 20 days before the date of hearing the notice
shall be served either within or without the county in the manner provided
by law for service of summons, but if such service cannot with due diligence
be made upon any expected adverse party named in the petition, the court
may make an order for service by publication or otherwise, and shall appoint
an attorney for persons not served in the manner provided by law for service
of summons who shall represent them, and if they are not otherwise represented,
shall cross-examine the deponent.
(3) Order and Examination. If the court is satisfied that the perpetuation
of the testimony may prevent a failure or delay of justice, it shall make
an order designating or describing the persons whose depositions may be
taken and specifying the subject matter of the examination and whether
the deposition shall be taken upon oral examination or written nterrogatories.
The deposition may then be taken in accordance with these rules and the
court may make orders in accordance with the equirements of these rules.
For the purpose of applying these rules to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending
shall be deemed to refer to the court in which the petition for such deposition
was filed.
(4) Use of Deposition. A deposition taken under this rule may be
used in any action involving the same subject matter subsequently brought
in any court in accordance with rule 1.330.
(b) Pending Appeal. If an appeal has been taken from a judgment
of any court or before the taking of an appeal if the time therefor has
not expired, the court in which the judgment was rendered may allow the
taking of the depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings in the court. In such case the
party who desires to perpetuate the testimony may make a motion for leave
to take the deposition upon the same notice and service as if the action
was pending in the court. The motion shall show (1) the names and addresses
of persons to be examined and the substance of the testimony which the
movant expects to elicit from each, and (2) the reason for perpetuating
their testimony. If the court finds that the perpetuation of the testimony
is proper to avoid a failure or delay in justice, it may make an order
allowing the deposition to be taken and may make orders of the character
provided for by these rules, and thereupon the deposition may be taken
and used in the same manner and under the same conditions as are prescribed
in these rules for depositions taken in actions pending in the court.
(c) Perpetuation by Action. This rule does not limit the power of
a court to entertain an action to perpetuate testimony.
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
Provisions regarding who may take depositions shall be governed
by Florida Rule of Civil Procedure 1.300. (Rule 12.300)
Florida Rule of Civil Procedure 1.300 provides:
(a) Persons Authorized. Depositions may be taken before any notary
public or judicial officer or before any officer authorized by the statutes
of Florida to take acknowledgments or proof of executions of deeds or by
any person appointed by the court in which the action is pending.
(b) In Foreign Countries. In a foreign country depositions may be
taken (1) on notice before a person authorized to administer oaths in the
place in which the examination is held, either by the law thereof or by
the law of Florida or of the United States, (2) before a person commissioned
by the court, and a person so commissioned shall have the power by virtue
of the commission to administer any necessary oath and take testimony,
or (3) pursuant to a letter rogatory. A commission or a letter rogatory
shall be issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission or a letter
rogatory that the taking of the deposition in any other manner is impracticable
or inconvenient, and both a commission and a letter rogatory may be issued
in proper cases. A notice or commission may designate the person before
whom the deposition is to be taken either by name or descriptive title.
A letter rogatory may be addressed "To the Appropriate Authority in .....(name
of country)......" Evidence obtained in response to a letter rogatory need
not be excluded merely for the reason that it is not a verbatim transcript
or that the testimony was not taken under oath or any similar departure
from the requirements for depositions taken within Florida under these
rules.
(c) Selection by Stipulation. If the parties so stipulate in writing,
depositions may be taken before any person at any time or place upon any
notice and in any manner and when so taken may be used like other depositions.
(d) Persons Disqualified. Unless so stipulated by the parties, no
deposition shall be taken before a person who is a relative, employee,
attorney, or counsel of any of the parties, is a relative or employee of
any of the parties' attorney or counsel, or is financially interested in
the action.
DEPOSITIONS UPON ORAL EXAMINATION
Depositions upon oral examination shall be governed by Florida
Rule of Civil Procedure 1.310. (Rule 12.310)
Florida Rule of Civil Procedure 1.310 provides:
(a) Serving Questions; Notice. After commencement of the action
any party may take the testimony of any person, including a party, by deposition
upon written questions. The attendance of witnesses may be compelled by
the use of subpoena as provided in rule 1.410. The deposition of a person
confined in prison may be taken only by leave of court on such terms as
the court prescribes. A party desiring to take a deposition upon written
questions shall serve them with a notice stating (1) the name and address
of the person who is to answer them, if known, and, if the name is not
known, a general description sufficient to identify the person or the particular
class or group to which that person belongs, and (2) the name or descriptive
title and address of the officer before whom the deposition is to be taken.
(a) When Depositions May Be Taken. After commencement of the action
any party may take the testimony of any person, including a party, by deposition
upon oral examination. Leave of court, granted with or without notice,
must be obtained only if the plaintiff seeks to take a deposition within
30 days after service of the process and initial pleading upon any defendant,
except that leave is not required (1) if a defendant has served a notice
of taking deposition or otherwise sought discovery, or (2) if special notice
is given as provided in subdivision (b)(2) of this rule. The attendance
of witnesses may be compelled by subpoena as provided in rule 1.410. The
deposition of a person confined in prison may be taken only by leave of
court on such terms as the court prescribes. (b) Notice; Method of Taking;
Production at Deposition. (1) A party desiring to take the deposition of
any person upon oral examination shall give reasonable notice in writing
to every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each person
to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to which
the person belongs. If a subpoena duces tecum is to be served on the person
to be examined, the designation of the materials to be produced under the
subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition
by plaintiff if the notice states that the person to be examined is about
to go out of the state and will be unavailable for examination unless a
deposition is taken before expiration of the 30-day period under subdivision
(a). If a party shows that when served with notice under this subdivision
that party was unable through the exercise of diligence to obtain counsel
to represent the party at the taking of the deposition, the deposition
may not be used against that party.
(3) For cause shown the court may enlarge or shorten the time for
taking the deposition.
(4) Any deposition may be recorded by videotape without leave of
the court or stipulation of the parties, provided the eposition is taken
in accordance with this subdivision.
(A) Notice. A party intending to videotape a deposition shall state
in the notice that the deposition is to be videotaped and shall give the
name and address of the operator.
(B) Stenographer. Videotaped depositions shall also be recorded
stenographically, unless all parties agree otherwise.
(C) Procedure. At the beginning of the deposition, the officer before
whom it is taken shall, on camera: (i) identify the style of the action,
(ii) state the date, and (iii) swear the witness.
authorized in these rules.
(D) Custody of Tape and Copies. The attorney for the party requesting
the videotaping of the deposition shall take custody of and be responsible
for the safeguarding of the videotape, shall permit the viewing of it by
the opposing party, and, if requested, shall provide a copy of the videotape
at the expense of the party requesting the copy.
(E) Cost of Videotaped Depositions. The party requesting the videotaping
shall bear the initial cost of videotaping.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with rule 1.350 for the production of documents and
tangible things at the taking of the eposition. The procedure of rule 1.350
shall apply to the request.
(6) In the notice a party may name as the deponent a public or private
corporation, a partnership or association, or a governmental agency, and
designate with reasonable particularity the matters on which examination
is requested. The organization so named shall designate one or more officers,
directors, or managing agents, or other persons who consent to do so, to
testify on its behalf and may state the matters on which each person designated
will testify. The persons so designated shall testify about matters known
or reasonably available to the organization. This subdivision does not
preclude taking a deposition by any other procedure authorized in these
rules.
(7) On motion the court may order that the testimony at a deposition
be taken by telephone. The order may prescribe the manner in which the
deposi-tion will be taken. A party may also arrange for a stenographic
transcription at that party's own initial expense.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed
as permitted at the trial. The officer before whom the deposition is to
be taken shall put the witness on oath and shall personally, or by someone
acting under the officer's direction and in the officer's presence, record
the testimony of the witness, except that when a deposition is being taken
by telephone, the witness shall be sworn by a person present with the witness
who is qualified to administer an oath in that location. The testimony
shall be taken tenographically or recorded by any other means ordered in
accordance with subdivision (b)(4) of this rule. If requested by one of
the parties, the testimony shall be transcribed at the initial cost of
the requesting party and prompt notice of the request shall be given to
all other parties. All objections made at time of the examination to the
qualifications of the officer taking the deposition, the manner of taking
it, the evidence presented, or the conduct of any party, and any other
objection to the proceedings shall be noted by the officer upon the deposition.
Any objection during a deposition shall be stated concisely and in a nonargumentative
and nonsuggestive manner. A party may instruct a deponent not to answer
only when necessary to preserve a privilege, to enforce a limitation on
evidence directed by the court, or to present a motion under subdivision
(d). Otherwise, evidence objected to shall be taken subject to the objections.
Instead of participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition and that
party shall transmit them to the officer, who shall propound them to the
witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during
the taking of the deposition, on motion of a party or of the deponent and
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, or that objection and instruction to a deponent not to answer
are being made in violation of rule 1.310(c), the court in which the action
is pending or the circuit court where the deposition is being taken may
order the officer conducting the examination to cease forthwith from taking
the deposition or may limit the scope and manner of the taking of the deposition
under rule 1.280(c). If the order terminates the examination, it shall
be resumed thereafter only upon the order of the court in which the action
is pending. Upon demand of any party or the deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion for
an order. The provisions of rule 1.380(a) apply to the award of expenses
incurred in relation to the motion.
(e) Witness Review. If the testimony is transcribed, the transcript
shall be furnished to the witness for examination and shall be read to
or by the witness unless the examination and reading are waived by the
witness and by the parties. Any changes in form or substance that the witness
wants to make shall be listed in writing by the officer with a statement
of the reasons given by the witness for making the changes. The changes
shall be attached to the transcript. It shall then be signed by the witness
unless the parties waived the signing or the witness is ill, cannot be
found, or refuses to sign. If the transcript is not signed by the witness
within a reasonable time after it is furnished to the witness, the officer
shall sign the transcript and state on the transcript the waiver, illness,
absence of the witness, or refusal to sign with any reasons given therefor.
The deposition may then be used as fully as though signed unless the court
holds that the reasons given for the refusal to sign require rejection
of the deposition wholly or partly, on motion under rule 1.330(d)(4).
(f) Filing; Exhibits. (1) If the deposition is transcribed, the
officer shall certify on each copy of the deposition that the witness was
duly sworn by the officer and that the deposition is a true record of the
testimony given by the witness. Documents and things produced for inspection
during the examination of the witness shall be marked for identification
and annexed to and returned with the deposition upon the request of a party,
and may be inspected and copied by any party, except that the person producing
the materials may substitute copies to be marked for identification if
that person affords to all parties fair opportunity to verify the copies
by comparison with the originals. If the person producing the materials
requests their return, the officer shall mark them, give each party an
opportunity to inspect and copy them, and return them to the person producing
them and the materials may then be used in the same manner as if annexed
to and returned with the deposition.
(2) Upon payment of reasonable charges therefor the officer shall
furnish a copy of the deposition to any party or to the deponent.
(3) A copy of a deposition may be filed only under the following
circumstances:
(A) It may be filed by a party or the witness when the contents
of the deposition must be con-sidered by the court on any matter pending
before the court. Prompt notice of the filing of the deposition shall be
given to all parties unless notice is waived. A party filing the deposition
shall furnish a copy of the deposition or the part being filed to other
parties unless the party already has a copy.
(B) If the court determines that a deposition previously taken is
necessary for the decision of a matter pending before the court, the court
may order that a copy be filed by any party at the initial cost of the
party.
(g) Obtaining Copies. A party or witness who does not have a copy
of the deposition may obtain it from the officer taking the deposition
unless the court orders otherwise. If the deposition is obtained from a
person other than the officer, the reasonable cost of reproducing the copies
shall be paid to the person by the requesting party or witness.
(h) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another party attends in person
or by attorney pursuant to the notice, the court may order the party giving
the notice to pay to the other party the reasonable expenses incurred by
the other party and the other party's attorney in attending, including
reasonable attorneys' fees.
(2) If the party giving the notice of the taking of a deposition
of a witness fails to serve a subpoena upon the witness and the witness
because of the failure does not attend and if another party attends in
person or by attorney because that other party expects the deposition of
that witness to be taken, the court may order the party giving the notice
to pay to the other party the reasonable expenses incurred by that other
party and that other party's attorney in attending, including reasonable
attorneys' fees.
DEPOSITIONS UPON WRITTEN QUESTIONS
Depositions upon written questions shall be governed by Florida
Rule of Civil Procedure 1.320. (Rule 12.320)
Florida Rule of Civil Procedure 1.320 provides:
(a) Serving Questions; Notice. After commencement of the action
any party may take the testimony of any person, including a party, by deposition
upon written questions. The attendance of witnesses may be compelled by
the use of subpoena as provided in rule 1.410. The deposition of a person
confined in prison may be taken only by leave of court on such terms as
the court prescribes. A party desiring to take a deposition upon written
questions shall serve them with a notice stating (1) the name and address
of the person who is to answer them, if known, and, if the name is not
known, a general description sufficient to identify the person or the particular
class or group to which that person belongs, and (2) the name or descriptive
title and address of the officer before whom the deposition is to be taken.
USE OF DEPOSITIONS IN COURT PROCEEDINGS
Use of depositions in court proceedings shall be governed by Florida
Rule of Civil Procedure 1.330. (Rule 12.330)
Florida Rule of Civil Procedure 1.330 provides:
a) Use of Depositions. At the trial or upon thehearing of a motion
or an interlocutory proceeding,any part or all of a deposition may be used
againstany party who was present or represented at the taking of the deposition
or who had reasonablenotice of it so far as admissible under the rules
of evidence applied as though the witness were then present and testifying
in accordance with any of the following provisions:
(1) Any deposition may be used by any partyfor the purpose of contradicting
or impeaching thetestimony of the deponent as a witness or for anypurpose
permitted by the Florida Evidence Code.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer,director, or managing agent or a person designated
under rule 1.310(b)(6) or 1.320(a) to testify on behalfof a public or private
corporation, a partnership or association, or a governmental agency that
is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (A) that the witness
is dead; (B) that the witness is at a greater distance than 100 miles from
the place of trial or hearing, or is out of the state, unless it appears
that the absence of the witness was procured by the party offering the
deposition; (C)that the witness is unable to attend or testify because
of age, illness, infirmity, or imprisonment; (D) that the
party offering the deposition has been unable to procure the attendance
of the witness by subpoena; (E) upon application and notice, that such
exceptional circumstances exist as to make it desirable, in the interest
of justice and with due regard to the importance of presenting the testimony
of witnesses orally in open court, to allow the deposition to be used;
or (F) the witness is an expert or skilled witness.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the party to introduce any other part that
in fairness ought to be considered with the part introduced, and any party
may introduce any other parts.
(5) Substitution of parties pursuant to rule 1.260 does not affect
the right to use depositions previously taken and, when an action in any
court of the United States or of any state has been dismissed and another
action involving the same subject matter is afterward brought between the
same parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter
as if originally taken for it.
(6) If a civil action is afterward brought, all depositions lawfully
taken in a medical liability mediation proceeding may be used in the civil
action as if originally taken for it.
(b) Objections to Admissibility. Subject to the provisions of rule
1.300(b) and subdivision (d)(3) of this rule, objection may be made at
the trial or hearing to receiving in evidence any deposition or part of
it for any reason that would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make
a person the party's own witness for any purpose by taking the person's
deposition. The introduction in evidence of the deposition or any part
of it for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition,
but this shall not apply to the use by an adverse party of a deposition
under subdivision (a)(2) of this rule. At the trial or hearing any party
may rebut any relevant evidence contained in a deposition whether introduced
by that party or by any other party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken
is waived unless made before the taking of the deposition begins or as
soon thereafter as the isqualification becomes known or could be discovered
with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition unless the ground of
the objection is one that might have been obviated or removed if presented
at that time.
(B) Errors and irregularities occurring at the oral examination
in the manner of taking the deposi-tion, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties and errors
of any kind that might be bviated, removed, or cured if promptly presented
are waived unless timely objection to them is made at the taking of the
deposition.
(C) Objections to the form of written questions submitted under
rule 1.320 are waived unless served in writing upon the party propounding
them within the time allowed for serving the succeeding cross or other
questions and within 10 days after service of the last questions authorized.
(4) As to Completion and Return. Errors and irregularities in the
manner in which the testimony is transcribed or the deposition is prepared,
signed, certified, or otherwise dealt with by the officer under rules 1.310
and 1.320 are waived unless a motion to suppress the deposition or some
part of it is made with reasonable promptness after the defect is, or with
due diligence might have been discovered.
INTERROGATORIES TO PARTIES
Interrogatories to parties shall be governed generally by Florida
Rule of Civil Procedure 1.340, with the following exceptions.
(a) Service of Interrogatories.
(1) Initial Interrogatories. Initial interrogatories to parties
in original and enforcement actions shall be those set forth in Florida
Family Law Rules of Procedure Form 12.930(b). Parties governed by the mandatory
disclosure requirements of rule 12.285 may serve the interrogatories set
forth in Florida Family Law Rules of Procedure Form 12.930(b) as set forth
in rule 1.340.
(2) Modification Interrogatories. Interrogatories to parties in
cases involving modification of a final Rules of Procedure Form 12.930(c).
Parties governed by the mandatory disclosure equirements of rule 12.285
may serve the interrogatories set forth in Florida Family Law Rules of
Procedure Form 12.930(c) as set forth in rule 1.340.
(b) Additional Interrogatories. Ten interrogatories, including
subparts, may be sent to a party, in addition to the standard interrogatories
contained in Florida Family Law Rules of Procedure Form 12.930(b) or Florida
Family Law Rules of Procedure Form 12.930(c). A party must obtain permission
of the court to send more than ten additional interrogatories. (Rule 12.340)
Florida Rule of Civil Procedure 1.340 provides:
(a) Procedure for Use. Without leave of court, any party may serve
upon any other party written inter-rogatories to be answered (1) by the
party to whom the interrogatories are directed, or (2) if that party is
a public or private orporation or partnership or association or governmental
agency, by any officer or agent, who shall furnish the nformation available
to that party. Interrogatories may be served on the plaintiff after commencement
of the action and on any other party with or after service of the process
and initial pleading upon that party. The interrogatories shall not exceed
30, including all subparts, unless the court permits a larger number on
motion and notice and for good cause. If the supreme court has approved
a form of interrogatories for the type of action, the initial interrogatories
shall be in the form approved by the court. Other interrogatories may be
added to the approved forms without leave of court, so long as the total
of approved and additional interrogatories does not exceed 30. Each interrogatory
shall be answered separately and fully in writing under oath unless it
is objected to, in which event the grounds for objection shall be stated
and signed by the attorney making it.
PRODUCTION OF DOCUMENT AND THINGS AND ENTRY UPON LAND FOR INSPECTION
AND OTHER PURPOSES
Production of documents and things and entry upon land for inspection
and other purposes shall be governed by Florida Rule of Civil Procedure
1.350. (Rule 12.350)
Florida Rule of Civil Procedure 1.350 provides:
a) Request; Scope. Any party may request any other party (1) to
produce and permit the party making the request, or someone acting in the
requesting party's behalf, to inspect and copy any designated documents,
including writings, drawings, graphs, charts, photographs, phono-records,
and other data compilations from which information can be obtained, ranslated,
if necessary, by the party to whom the request is directed through detection
devices into reasonably usable form, that constitute or contain matters
within the scope of rule 1.280(b) and that are in the possession, custody,
or control of the party to whom the request is directed; (2) to inspect
and copy, test, or sample any tangible things that constitute or contain
matters within the scope of rule 1.280(b) and that are in the ossession,
custody,or control of the party to whom the request is approved by the
supreme court must be used; and those so used, with their subparts, are
included in the total number permitted.
PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
Production of documents and things without deposition shall be
governed by Florida Rule of Civil Procedure 1.351.
(Rule 12.351)
Florida Rule of Civil Procedure 1.351 provides:
a) Request; Scope. A party may seek inspection and copying of any
documents or things within the scope of rule 1.350(a) from a person who
is not a party by issuance of a subpoena directing the production of the
documents or things when the requesting party does not seek to depose the
custodian or other person in possession of the documents or things.
EXAMINATION OF PERSONS
Florida Rule of Civil Procedure 1.360 shall govern general
provisions concerning the examination of persons in family law
matters, except that examinations permitted under rule 1.360(a)(1) may
include, but are not limited to, examinations involving physical or mental
condition, employability or vocational testing, genetic testing, or any
other type of examination related to a matter in controversy. (Rule 12.360)
Florida Rule of Civil Procedure 1.360 provides:
(a) Request; Scope. (1) A party may request any other party to
submit to, or to produce a person in that other party's custody
or legal control for, examination by a qualified expert when the condition
that is the subject the examination or the party or person to be examined,
the court may establish protective rules governing such examination.
EVALUATION OF MINOR CHILD
(a) Appointment of Mental Health Professional or Other Expert.
(1)
When the issue of visitation, parental responsibility, or residential placement
of a child is in controversy, the court, on motion of any party or the
court's own motion, may appoint a licensed mental health professional or
other expert for an examination, evaluation, testing, or interview of any
minor child or to conduct a social or home study investigation. The parties
may agree on the particular expert to be appointed, subject to approval
by the court. If the parties have agreed, they shall submit an order including
the name, address, telephone number, area of expertise, and professional
qualifications of the expert. If the parties have agreed on the need for
an expert and cannot agree on the selection,the court shall appoint an
expert.
(2) After the examination, evaluation, or investi-gation, any party
may file a motion for an additional expert examination, evaluation,
interview, testing, or investigation by a licensed mental health professional
or other expert. The court upon hearing may permit the additional examination,
evaluation, testing, or interview based on good cause shown that further
examinations, testing, interviews, or evaluations would be in the best
interests of the minor child.
(3) Any order entered under this rule shall specify the issues
to be addressed by the expert.
(4) Any order entered under this rule may require that all interviews
of the child be recorded and the tapes be maintained as part of the expert's
file.
(5) The order appointing the expert shall include an initial allocation
of responsibility for payment.
(6) A copy of the order of appointment shall be provided immediately
to the expert by the court unless otherwise directed by the court. The
order shall direct the parties to contact the expert or investigator appointed
by the court to establish an appointment schedule to facilitate timely
completion of the evaluation.
(b) Providing of Reports. (1) Unless otherwise ordered, the expert
shall prepare and provide a written report to the attorney for each party
or the party, if unrepresented, and the guardian ad litem, if appointed,
a reasonable time before any evidentiary hearing on the matter at issue.
The expert also shall send written notice to the court that the report
has been completed and that a copy of the written report has been provided
to the attorney for each party or the party, if unrepresented, and the
guardian ad litem, if appointed. In any event, the written report shall
be prepared and provided no later than 30 days before trial or 75 days
from the order of appointment, unless the time is extended by order of
the court.
(2) On motion of any party, the court may order the expert to produce
the expert's complete file to another qualified licensed mental health
professional, at the initial cost of the requesting party, for review by
such qualified licensed mental health expert, who may testify.
(c) Testimony of Other Professionals. Any other expert who has
treated, tested, interviewed, examined, or evaluated a child may testify
only if the court determines that good cause exists to permit the testimony.
The fact that no notice of such treatment, testing, interview, examination,
or evaluation of a child was given to both parents shall be considered
by the court as a basis for preventing such testimony.
(d) Communications with Court by Expert. No expert may communicate
with the court without prior notice to the parties and their attorneys,
who shall be afforded the opportunity to be present and heard during any
such communication between the expert and the court. A request for communication
with the court may be informally conveyed by letter or telephone. Further
communication with the court, which may be conducted informally, shall
be done only with notice to the parties.
(e) Use of Evidence. An expert appointed by the court shall be
subject to the same examination as a privately retained expert and the
court shall not entertain any presumption in favor of the appointed expert's
findings. Any finding or report by an expert appointed by the court may
be entered into evidence on the court's own motion or the motion of any
party in a manner consistent with the rules of evidence.
