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Certiorari Review of Orders Denying Discovery in Civil Cases, Part II

Appellate Practice

This is Part II of my column on certiorari review of orders denying discovery in civil cases. In Part I, I reviewed the history of the writ of certiorari and the jurisdictional prerequisite of “irreparable harm.” Generally, orders denying discovery do not inflict such harm. But, as I explained in Part I, the district courts of appeal fashioned an exception to the general rule: “‘when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.’”[1] At the end of Part I, I relayed the justification the courts have given for this exception. In this part, I discuss cases in which the courts have granted or denied review, examine their justification, and offer concluding thoughts.

Cases in Which Review Granted

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

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

2) The deposition of a party.[4]

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

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

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

6) Financial documents in family law cases.[8]

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

8) Key physical evidence.[10]

9) Information related to settlements.[11]

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

11) Varied other documents.[13]

Cases in Which Review Denied

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

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

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

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

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

Other decisions where the courts have denied review are set out in the endnote.[18]

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

Examining the Justification

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

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

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

This argument has some practical appeal but it also has two weaknesses. First, it is an argument that could be made about any order denying discovery.[20] The danger in applying the rationale of the argument too freely is that it might convert an extraordinary remedy into a routine step in the process. Second, the argument fails to take full account of the remedies that are available on direct appeal. In many cases it may be an adequate remedy to reverse the judgment for a new trial to be conducted with the benefit of the discovery previously denied.[21]

That last point alludes to the harmless-error doctrine, which Judge Torpy discussed in his separate opinion in Bill Kasper Construction v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012): “A not-so-obvious fallacy [in the logic of the justification] is that these cases are based on a false legal premise — that the burden to demonstrate harm lies with the aggrieved litigant. In fact, the burden is on the beneficiary of the erroneous ruling to demonstrate that the error did not cause harm.”[22] For this point, Judge Torpy cited Gormley v. GTE Products Corp., 587 So. 2d 455, 459 (Fla. 1991), and Special v. Baux (Special I), 79 So. 3d 755, 766-67 (Fla. 4th DCA 2011) (en banc), rev’d sub nom., Special v. West Boca Medical Center (Special II), 160 So. 3d 1251 (Fla. 2014). Judge Torpy wrote that “an appellee will be hard-pressed to meet its burden to show harmlessness when the record does not reveal the substance of the requested discovery.”[23]

The citations raise an interesting point about jurisprudential evolution that Judge Torpy likely understood but did not elaborate upon. Gormley was decided about 10 years after the Fifth District offered its justification in Travelers Indemnity Co. v. Hill. In Gormley, 388 So. 2d 648 (Fla. 5th DCA 1980), the Supreme Court, apparently for the first time, held the appellee in a civil case has the burden of proving harmlessness[24] — a holding that undermines the justification, as Judge Torpy recognized. Yet since Gormley, the district courts continue to rely on the justification to permit certiorari review. Judge Torpy also relied on the Fourth District’s Special decision establishing a harmless-error rule for civil cases, decided the year before Bill Kasper. The Supreme Court later quashed that decision and established a test that imposed a higher burden on the appellee than that imposed by the Fourth District. Since Judge Torpy’s separate opinion in Bill Kasper, then, it ostensibly has become easier for the appellant in a civil case to obtain reversal, making his analysis more persuasive. Judge Luck, then of the Third District, sounded a similar note in his concurring opinion in Adkins v. Sotolongo, 227 So. 3d 717 (Fla. 3d DCA 2017).[25]

I find Judge Torpy’s analysis persuasive; it identifies significant flaws in the justification, and courts’ adherence thereto. But there is a problem. Even if the trial court erred in denying discovery of material evidence, there is no guarantee that the district court will reverse a judgment and remand for the discovery to be had. The simple truth is that district courts are very reluctant to reverse. Plenary appeal is better described as a theoretically adequate remedy. Affording certiorari review for orders denying discovery of material evidence might make it more likely that the complaining party gets the discovery and does not have to place his or her hope on an appeal.

Another issue Judges Torpy and Luck have identified is preservation. Here we run into a similar unpredictability problem. Judge Torpy observed that it is the complaining party that has the burden of preserving error. He wrote that, “where discovery is denied or limited, a proffer of the evidence is obviously not necessary to preserve the error. One cannot proffer that which he does not have through no fault of his own.”[26] This is a very generous, automatic rule of preservation. In my view, it is the appropriate rule if the courts were to more often deny review of orders denying discovery of material evidence.

But in his separate opinion in Adkins, Judge Luck agreed with Padovano’s criticism of the justification and wrote that “there are practical ways, pre-judgment, the party seeking to depose a material witness can present that witness’s testimony to preserve the argument that the lack of deposition affected the result.”[27] Judge Luck then listed seven such ways:

(1) proffer the questions and anticipated testimony; (2) have the attorney proffer the harm caused in preparing the case for trial; (3) subpoena the material witness for trial and question the witness outside the presence of the jury; (4) subpoena the material witness for trial and ask the deposition questions in front of the jury; (5) take the deposition after trial in support of a new trial motion; (6) ask that the material witness be ordered to present an affidavit of anticipated testimony; or (7) seek some combination of these things.[28]

Some of this seems excessive, and it raises an obvious problem: A party cannot predict at what point he or she will have done enough that the district court will agree that the issue has been preserved. This is a real fear because the preservation analysis is not an algorithm.


The justification for the exception reads more like a legal fiction to allow certiorari review when the district courts actually lack jurisdiction. In these cases, the district courts have transformed the writ of certiorari into a writ of expediency, where often the only real harm is the expenditure of time and money — long held to not be enough to confer jurisdiction.[29] The implication is worrisome because, in developing and entrenching this “blanket rule,” the district courts have “loosen[ed] [their] certiorari jurisdiction” in “a backdoor way around the constitutional limitation on appeals from nonfinal orders, and usurp[ed] the Florida Supreme Court’s authority to designate certain nonfinal orders as appealable.”[30] And this while the Supreme Court has consistently warned that certiorari review is very limited.[31]

Proper application of certiorari jurisdictional standards would mean far fewer decisions granting review of orders denying discovery of material evidence. Appropriate cases would be those cases, for example, where timing is an issue or where the denial infringes on a constitutional right of the petitioner, as in the Amendment 7 cases.[32]

But no one can seriously dispute that forcing the aggrieved party to go through the motions in the trial court, deprived of material evidence and expending time and resources when there is some likelihood of reversal, is unjust — even as we recognize that the hardship does not justify certiorari review. Moreover, it is not just the parties’ time and resources at stake when immediate review is denied in such circumstances, but those of the trial courts and the district courts. To ensure fairness, conserve resources, and reduce pressure on the district courts to expand certiorari review beyond its jurisdictional limits, the Supreme Court could amend Florida Rule of Appellate Procedure 9.130 to authorize permissive nonfinal appeals of orders denying discovery, a procedure similar to federal permissive appeals under 28 U.S.C. §1292(b).[33] The trial court would have to certify that the discovery could materially affect the proceedings. Imposing such a requirement would prevent litigants from flooding the district courts with appeals from every denial of discovery. However, unlike the federal procedure, the complaining party should not then have to obtain permission from the appellate court to proceed.[34]

To account for those cases where the trial court will not certify, the district courts should ensure that a plenary appeal involving an order denying discovery really is adequate (which they should do regardless of an amendment). Following Judge Torpy, it would not be necessary to proffer the evidence to preserve the issue for appellate review. And if the complaining party appeals, the district court would have to faithfully apply the harmless-error standard from Special II, acknowledging, as Judge Torpy did, that “an appellee will be hard-pressed to meet its burden to show harmlessness when the record does not reveal the substance of the requested discovery.”[35]

[1] Westerbeke Corp. v. Atherton, 224 So. 3d 815, 821 (Fla. 2d DCA 2017) (quoting Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009)).

[2] Dimeglio v. Briggs-Mugrauer, 708 So. 2d 637 (Fla. 2d DCA 1998) (presuit CME doctor who examined plaintiff, in lawsuit for uninsured-motorist benefits); Nucci v. Simmons, 20 So. 3d 388 (Fla. 2d DCA 2009) (plaintiff’s attorney in action alleging defendant doctor did not bill for service properly, as letter of protection, which attorney arranged, was involved); Rogan v. Oliver, 110 So. 3d 980 (Fla. 2d DCA 2013) (attorneys who gave advice to plaintiff relating to actions he took that defendants criticized, in defamation action); Akhnoukh v. Benvenuto, 219 So. 3d 96 (Fla. 2d DCA 2017) (in car-accident case, plaintiff’s minor son, only passenger in car); Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984) (in defamation case, identities of speakers in meeting and content of their remarks); Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992) (in medical-malpractice case, answers from treating physicians regarding meeting they had with pathologist who conducted decedent’s autopsy, between provisional and final reports); Sabol v. Bennett, 672 So. 2d 93 (Fla. 3d DCA 1996) (further deposition of plaintiff’s girlfriend on issues she refused to answer questions on in first deposition); Lifemark Hosps. of Fla. v. Hernandez, 748 So. 2d 378 (Fla. 3d DCA 1998) (plaintiff’s retained, but non-testifying, expert psychologist who performed examination of plaintiff, in medical-malpractice case); Lifemark Hosps. of Fla. v. Izquierdo, 899 So 2d 478 (Fla. 3d DCA 2005) (minor patient’s mother’s treating psychiatrist, in medical-malpractice case, as relevant to defendant’s causation theory); Somarriba v. Ali, 941 So. 2d 526 (Fla. 3d DCA 2006) (in car-accident case, plaintiff’s former attorney in prior car-accident case); Marshall v. Buttonwood Bay Condo. Ass’n, 118 So. 3d 901 (Fla. 3d DCA 2013) (plaintiff association’s representatives, in lien-foreclosure action); Publix Super Markets v. Hernandez, 176 So. 3d 350 (Fla. 3d DCA 2015) (records custodians at plaintiff’s healthcare providers regarding financial arrangements for payment of services rendered to plaintiff, in slip and fall case, as critical to defense against damages element); 575 Adams LLC v. Wells Fargo Bank, 197 So. 3d 1235 (Fla. 3d DCA 2016) (plaintiff’s only listed witness); Solonina v. Artglass Int’l, 256 So. 3d 971 (Fla. 3d DCA 2018) (three key witnesses to terms of a contract in breach-of-contract action); Hepco Data v. Hepco Med., 301 So. 3d 406 (Fla. 3d DCA 2020) (blanket denial of depositions of witnesses who were familiar with course of dealings between parties in action over existence, or not, of agreement); Ferguson v. Republic of Trinidad & Tobago, No. 3D21-0155, 2022 WL 468147 (Fla. 3d DCA Feb. 16, 2022) (deposition of corporate representative of entity that was held to not be mere instrumentality of plaintiff); Brennan v. Bd. of Pub. Instruction of Broward Cnty., 244 So. 2d 463 (Fla. 4th DCA 1971) (three employees of defendant, in personal-injury case); Towers v. City of Longwood, 960 So. 2d 845 (Fla. 5th DCA 2007) (protective order against deposition duces tecum of nonparty witness, an official of defendant city, in dispute with city over development project; plaintiff “completely barred from obtaining discovery from” witness).

[3] Sardinas v. Lagares, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001) (quoting Wingate v. Mach, 157 So. 421, 422 (Fla. 1934) (emphasis in Sardinas)).

[4] Kesler v. Brown, 637 So. 2d 958 (Fla. 2d DCA 1994) (plaintiff former client in legal-malpractice case); Shindorf v. Bell, 207 So. 3d 371 (Fla. 2d DCA 2016) (defendant nurse in medical-malpractice action, whom plaintiffs deposed in earlier lawsuit against different defendants over same incident); Cavey v. Wells, 313 So. 3d 188 (Fla. 2d DCA 2021) (defendant in wrongful-death action, regarding conversation he had with personal representative after lawsuit filed); Expert Installation Serv. v. Fuerto, 933 So. 2d 1231 (Fla. 3d DCA 2006) (plaintiff, in personal injury case, by party that was not party when her deposition was taken); Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 2000) (oral deposition of defendant driver in car-accident case).

[5] Alachua Gen. Hosp. v. Stewart, 649 So. 2d 357 (Fla. 1st DCA 1995); Henry v. Nat’l Health Care Affiliates, 696 So. 2d 1223 (Fla. 2d DCA 1997) (mem.); Reynoso v. Greynolds Park Manor, 659 So. 2d 1156 (Fla. 3d DCA 1995) (on rehearing); Pub. Health Trust of Dade Cnty. v. Franklin, 693 So. 2d 1043 (Fla. 3d DCA 1997); Estate of Schwartz v. H.B.A. Mgmt., 673 So. 2d 116 (Fla. 4th DCA 1996) (on rehearing); cf. Boyd v. Pheo, Inc., 664 So. 2d 294 (Fla. 1st DCA 1995) (dismissing when it was personal representative of decedent’s patient who sought ex parte communications with current and former employees of nursing home).

[6] Wackenhut Corp. v. Crant-Heisz Enters., 451 So. 2d 900 (Fla. 2d DCA 1984) (photographs taken by non-testifying expert of scene of fire in warehouse, which had subsequently been replaced); Fla. Power Corp. v. Dunn, 850 So. 2d 655 (Fla. 2d DCA 2003) (accident-scene photographs); Kmart Corp. v. Sundmacher, 997 So. 2d 1158 (Fla. 3d DCA 2008) (photographs of condition of floor obtained by plaintiff, in slip and fall case, for which there was no substitute); Carroll Contracting v. Edwards, 528 So. 2d 951 (Fla. 5th DCA 1988) (photographs of accident scene from nonparty newspaper, in car-accident case, sought by defendant).

[7] Baldwin v. Shands Teaching Hosp. & Clinics, 45 So. 3d 118 (Fla. 1st DCA 2010); Acevedo v. Doctors Hosp., 68 So. 3d 949 (Fla. 3d DCA 2011).

[8] Bushong v. Peel, 85 So. 3d 511 (Fla. 2d DCA 2012) (documents on financial status of companies owned by former wife, in divorce action); Mason v. Jenssen, 113 So. 3d 41 (Fla. 2d DCA 2012) (father’s financial information, in child-support action); Phillips v. Phillips, 264 So. 3d 1129 (Fla. 2d DCA 2019) (financial records of trust relevant to husband’s financial resources, in divorce action, as relevant to wife’s claims for temporary support and attorneys’ fees); Hall v. Hall, 277 So. 3d 639 (Fla. 5th DCA 2019) (certain financial records of wife, in divorce case, regarding valuation of her interest in medical practice).

[9] Royal Caribbean Cruises v. Cox, 974 So. 2d 462 (Fla. 3d DCA 2008); Gomez v. Rendon, 126 So. 3d 315 (Fla. 3d DCA 2013); JA & M Developing Corp. v. Perez, 114 So. 3d 410 (Fla. 3d DCA 2013) (mem.).

[10] Westerbeke Corp., 224 So. 3d at 816 (disassembly of piece of allegedly defective generator, the condition of which was key to defense theory, in personal injury and product liability actions).

[11] Anderson v. Vander Meiden, 56 So. 3d 830 (Fla. 2d DCA 2011) (settlement documents between nonparties, as related to setoff defense, to determine whether settled claims arose from same injury at issue in underlying lawsuit); Young, Stern & Tannenbaum v. Smith, 416 So. 2d 4 (Fla. 3d DCA 1982) (party’s attorney regarding alleged settlement agreement in underlying lawsuit); Marrero v. Rea, 312 So. 3d 1041 (Fla. 5th DCA 2021) (plaintiff and her attorney, sought by defendant in car-accident case, on whether plaintiff’s personal injury claims were settled presuit).

[12] Belcher v. Johnson, 834 So. 2d 422 (Fla. 2d DCA 2003) (testimony from woman of “advanced age and deteriorating mental status,” to determine whether she was disqualified as witness); McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012) (financial information from decedent husband’s company sought by surviving spouse, relevant to her time-limited decision to take elective share, in probate action); Phillips v. Phillips, 264 So. 3d 1129 (Fla. 2d DCA 2019) (financial records of trust relevant to husband’s financial resources, in divorce action, as relevant to wife’s claim for temporary support and attorneys’ fees); Robert v. W.R. Grace & Co., 639 So. 2d 1056 (Fla. 3d DCA 1994) (second deposition of terminally ill plaintiff, which he requested leave for); Toomey v. N. Trust Co., 182 So. 3d 891 (Fla. 3d DCA 2016) (elderly witnesses, one of whom was terminally ill, to preserve their testimony).

[13] PDR Grayson Dental Lab v. Progressive Dental Reconstruction, 203 So. 3d 213 (Fla. 1st DCA 2016) (in fraud action by purchaser of business against seller, seller’s financial records in its accountant’s possession); Haynes v. Int’l Harvester Co., 277 So. 2d 51 (Fla. 2d DCA 1969) (form that dealer submitted to manufacturer as request for warranty credit, in action apparently over defective truck); Criswell v. Best W. Int’l, 636 So. 2d 562 (Fla. 3d DCA 1994) (reports of accidents on defendant’s stairwell that took place after subject fall, as relevant to plaintiff’s argument that stairwell was negligently constructed); Foster v. Bank of Am., 215 So. 3d 158 (Fla. 3d DCA 2017) (records of defendant bank relating to allegedly stolen check that bank allegedly negligently negotiated); Springer v. Greer, 341 So. 2d 212 (Fla. 4th DCA 1976) (records from nonparty pharmacists in action against doctor and others alleging conspiracy to addict doctor’s patients to drugs); Herman v. J.P. Morgan Sec., 35 So. 3d 188 (Fla. 4th DCA 2010) (mem.) (blanket denial of all discovery that defendant argued left him unable to defend); Colonial Penn Ins. Co. v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980) (traffic-court transcript involving same accident, transcribed by plaintiff); Helmick v. McKinnon, 657 So. 2d 1279 (Fla. 5th DCA 1995) (plaintiff’s mental-health records, in car accident case, where plaintiff placed her mental health at issue).

[14] Katz, 305 So. 3d at 667 (cleaned up).

[15] Duran, 841 So. 2d at 501; see also Adkins v. Sotolongo, No. 3D21-2153, 2021 WL 5348900 (Fla. 3d DCA 2021).

[16] Strachan, 82 So. 3d at 1054.

[17] Similar is the 2-1 decision in American Prime Title Services v. Wang, 317 So. 3d 1183 (Fla. 3d DCA 2021). The dissent would have found irreparable harm but denied the petition.

[18] Esman v. Bd. of Regents of State of Fla., 425 So. 2d 156 (Fla. 1st DCA 1983) (tape-recorded conversation day after surgical procedure involving allegedly negligent doctor and others, in medical-malpractice case); Jennings v. Elections Canvasing Comm’n of State of Fla., 958 So. 2d 1083 (Fla. 1st DCA 2007) (trade secrets relating to voting machines in challenge to election result, sought by losing candidate); Goslin v. Preisser, 148 So. 3d 869 (Fla. 1st DCA 2014) (independent psychosexual evaluation of former husband); McCloud v. Tackett, 308 So. 3d 687 (Fla. 1st DCA 2020) (paper discovery from former husband’s live-in girlfriend, relating to parenting and time-sharing in divorce action because trial court allowed former wife to depose girlfriend on nonprivileged information); Reserve Ltd. v. Coast Fed. Savings & Loan Ass’n, 550 So. 2d 27 (Fla. 2d DCA 1989) (defendant bank’s documents related to failed loan, where petitioner had other avenues of discovery not yet exhausted); Damsky v. Univ. of Miami, 152 So. 3d 789 (Fla. 3d DCA 2014) (discovery into contents of ex parte communications between defendant and treating physician, in medical-malpractice action); Prof’l Med. Specialties v. Renfroe, 362 So. 2d 397 (Fla. 4th DCA 1978) (answers in discovery deposition of plaintiffs’ lawyer related to statute-of-limitations defense in wrongful death action); U.S. Fid. & Guar. Co. v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981) (depositions of plaintiff, former lawyer, and others to determine if lawyer had settlement authority, in wrongful death case with alleged settlement; order could be reviewed on appeal); Caifin v. McInnis, 683 So. 2d 1137 (Fla. 4th DCA 1996) (defendant’s photographs of scene of car accident, in a car accident case where defendant admitted liability, because appeal provides adequate remedy); Trandex Ltd. v. Aragon Condo. Ass’n, 756 So. 2d 242 (Fla. 4th DCA 2000) (mem.) (depositions of plaintiff’s employees in lien foreclosure case); Romanos v. Caldwell, 980 So. 2d 1091 (Fla. 4th DCA 2008) (deposition of plaintiff’s counsel, in a medical malpractice case involving suicide, regarding his friendship with decedent, who he had seen just a few days before death); Indus. Tractor Co. v. Bartlett, 454 So. 2d 1067 (Fla. 5th DCA 1984) (limitation of financial discovery relevant to punitive damages claim, in replevin action, suggesting any error could be corrected on appeal); Palmer v. WDI Sys., 588 So. 2d 1087 (Fla. 5th DCA 1991) (documents relating to plaintiff’s financial ability to close a purchase, in action to recover deposit, claimed relevant to defense, because appeal will be adequate remedy); Thompson v. Deane, 703 So. 2d 1215 (Fla. 5th DCA 1997) (denial of oral request to reopen discovery, sought by defendant in medical malpractice case, in preparation for second trial and following amendment to complaint, because issue could be raised on appeal).

[19] Travelers Indem. Co. v. Hill, 388 So. 2d 648, 650 (Fla. 5th DCA 1980).

[20] See also Bill Kasper Constr. v. Morrison, 93 So. 3d 1061, 1064 (Fla. 5th DCA 2012) (en banc) (Torpy, J., concurring and concurring specially) (“An obvious fallacy in this logic is that the rationale for the so-called ‘exception’ applies in every circumstance where discovery is erroneously denied or restricted. Indeed, any discovery request might uncover a key piece of evidence.”).

[21] Philip J. Padovano, Florida Appellate Practice §30:5 (2021 ed.) (footnote omitted).

[22] Bill Kasper, 93 So. 3d at 1064 (Torpy, J., concurring and concurring specially).

[23] Id.

[24] See Special I, 79 So. 3d at 766.

[25] Adkins, 227 So. 3d at 722 (Luck, J., concurring).

[26] Bill Kasper, 93 So. 3d at 1065 (Torpy, J., concurring and concurring specially).

[27] Adkins, 227 So. 3d at 721 (Luck, J., concurring).

[28] Id. at 721-22.

[29] Walgreen Co. v. Rubin, 229 So. 3d 418, 421-23 (Fla. 3d DCA 2017); Whiteside v. Johnson, 351 So. 2d 759, 760 (Fla. 2d DCA 1977).

[30] Adkins, 227 So. 3d at 722 (Luck, J. concurring).

[31] E.g., Jay v. Royal Saxon, 720 So. 2d 214 (Fla. 1988); Bd. of Trustees of Internal Improvement Fund v. Am. Educ. Enters., 99 So. 3d 450 (Fla. 2012).

[32] See also Williams v. Spears, 719 So. 2d 1236, 1239 (Fla. 1st DCA 1998).

[33] See generally 16 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure §3929 (3d. ed.).

[34] For why there should not be such a requirement, see the last paragraph of Judge Torpy’s opinion in Bill Kasper.

[35] Bill Kasper, 93 So. 3d at 1064 (Torpy, J., concurring and concurring specially).


Adam Richardson practices appellate law as a shareholder in Burlington & Rockenbach, P.A., in West Palm Beach. Previously, he was a judicial clerk to Judge Robert M. Gross at the Fourth District Court of Appeal.

This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.

Appellate Practice