Committee explores enhancing discovery enforcement mechanisms
The Civil Procedure Rules Committee is proposing adding enforcement mechanisms to discovery rules, revisions the panel says are necessary after the Florida Supreme Court added “proportionality” language in recent civil procedure reforms.
The Board of Governors, when it meets Friday, will be asked to recommend acceptance, rejection, or amendment of the committee’s proposed amendments to Rule 1.340 (Interrogatories), 1.350 (Production of Documents and Things…), and 1.380 (Failure to Make Discovery; Sanctions).
The proposed revisions are necessary, “to address concerns raised by the Court’s adoption of ‘proportionality’ within Florida Rule of Civil Procedure 1.280 (General Provisions Governing Discovery),” according to a staff analysis.
The May 23 Supreme Court order, In Re: Amendments to Florida Rules of Civil Procedure, Case No. SC2023-0962, codifies “active case management” and other reforms that grew out of a Supreme Court workgroup’s exhaustive review. The revisions are the first of what the Supreme Court called “a phased approach” to civil justice reforms, and include revisions to Rule 1.280. The reforms take effect January 1.
In his lone dissent, Justice Jorge Labarga opposed incorporating proportionality language from Federal Rule 26(b)(1) into Rule 1.280, “in the absence of input from The Florida Bar’s Civil Procedure Rules Committee.”
“I would refer the issue of proportionality to the rules committee for its consideration and commentary before amending rule 1.280 to include rule 26(b)(1) proportionality language,” Labarga wrote.
Sponsors of the Civil Procedure Rules Committee proposal note that Rules 1.340, 1.350, and 1.380 “lack the enforcement mechanisms” that are in Federal Rules of Civil Procedure 33 (Interrogatories to Parties), 34 (Producing Documents), or 37 (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions).
“The committee has concerns that without the proposed amendments, judges and courts will be flooded with blanket objections citing proportionality with no further explanation,” according to a staff analysis. “A flood of vague objections will clog the Courts and require hearing time — an already precious commodity.”
It also notes that “with the Court’s adoption of new rule 1.202 governing conferrals, specificity in discovery objections will facilitate the goal of greater transparency for litigants during the conferral process.”
The committee’s proposed amendment to Rule 1.340 (Interrogatories), would, among other things, add a subdivision (a) “to require that grounds for objecting to an interrogatory be stated with specificity and provided that any ground not stated in a timely objection is waived, unless the court, for good cause shown, excuses the failure,” according to the analysis. The proposed amendment generally tracks language from Fed. R. Civ. P. 33(B)(4), the analysis notes.
A proposed amendment to Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), would revise subdivision (b) to replace “unless the request is objected to, in which event the reasons for the objection shall be stated” with “or state with specificity the grounds for objecting to the request, including the reasons.” The revision would track Fed. R. Civ. P. 34(b)(2)(B), the committee noted.
“Also, in subdivision (b), the Committee proposes replacing ‘the part shall be specified’ with ‘the objection must state with specificity the grounds for objecting, including the reasons. An objection must state whether any responsive materials are being withheld on the basis of that objection.’” The change would track Fed. R. Civ. P. 34(b)(2)(B)-(b)(2)(c), the analysis notes.
The committee’s proposed amendments to Rule 1.380 (Failure to Make Discovery, Sanctions) would create a new subdivision (a)(2)(A), which would state “[I]f a party fails to make disclosure required by rule 1.280(a), any other party may move to compel disclosure and for appropriate sanctions,” according to the analysis. That proposed amendment tracks Fed. R. Civ. P. 37(a)(3)(A), the committee noted.
The committee also proposes new subdivisions (d) and (d)(1)-(d)(3) to track the enforcement mechanisms in Fed. R. Civ. P. 37 (c)(1) and (c)(1)(A)-(c)(1)(c). Another proposed revision would delete the conferral requirement in subdivision (a)(2) “as it does not conform to the certificate requirements” in new Rule 1.202 (Conferral Prior to Filing Motions).
“The proposed amendments before the Board of Governors on Friday are based on enforcement mechanisms found in the Federal Rules of Civil Procedure that were not adopted as part of SC23-962,” noted Florida Bar senior attorney Heather Savage Telfer. “The Committee continues to identify concerns and suggest fixes to improve the Florida Rules of Civil Procedure.”
