Serving Privilege Log After Denial of Protective Order

In this insurance case, the trial court denied State Farm’s motion for protective order.  On Appeal, State Farm argued that the trial court should have conducted an in-camera review or addressed the objections to the discovery.  The appellate court affirmed on the basis that State Farm’s argument was premature, because “the general denial of State Farm’s motion was equivalent to a determination that all of the documents were ‘otherwise discoverable.’  At that point, State Farm’s claims of privilege and protection under the work product doctrine became mature,” thus giving State Farm the right to file a privilege log to protect any applicable privileges.  Thus, the appeal was premature in the absence of the trial court’s determinative ruling on the privilege issues.

State Farm v. Coburn, 39 Fla. L. Weekly D334b (Fla. 2d DCA Feb. 12, 2014).

No Discovery After Settlement

In this foreclosure case, certain borrower-defendants stipulated to a deficiency judgment, while one defendant did not. The non-settling defendant prevailed at trial on the basis that the lender lacked standing to pursue the debt. The other defendants then sought to set aside their stipulated settlement agreement, and sought a deposition and other discovery from the lender while the motion to set aside remained pending. The trial court allowed the discovery, and the appellate court reversed, holding: “The parties reached a settlement and stipulated to a deficiency judgment. Although the respondents have moved to set aside their stipulation, the trial court has not ruled on the motion. Therefore, the settlement and stipulation remain in effect and bar any further discovery.”

Eagle FL VI SPE, FL v. BB&T, 39 Fla. L. Wkly D48a (Fla. 2d. DCA Dec. 27, 2013)



Person responding to subpoena entitled to costs of production

In this case, the trial court ordered a third party to produce documents that were alleged to be confidential, and denied the third party its costs in providing the production.  The appellate court affirmed on the confidentiality issue, but reversed on the costs issue, holding, “The failure to make provision for the cost to a non-party to produce subpoenaed documents constitutes a departure from the essential requirement of law.”

First Call Ventures, LLC v. Nationwide Relocation Services, Inc., 38 Fla. L. Wkly D2431a (Fla. 4th DCA Nov. 20, 2013)


Two Requirements for Trial Court to Order Mental Evaluation of Party

In this family law case, the father sought to compel the examination of the mother by a psychologist pursuant to Florida Rule of Civil Procedure 1.360(a)(1).  The trial court granted the motion and the mother filed a petition for Writ of Certiorari.

The Third DCA found that, in order to compel a party’s attendance at a mental examination, the court must determine that (1) the mental state of the party to be examined is “in controversy,” and (2) the mental state of the party to be examined cannot adequately be determined without the assistance of an expert.

In this case, the 3rd DCA found that the father had not established either requirement and entered an Order Quashing that portion of the trial court’s ruling which required the mother to undergo a mental evaluation.

Wade v. Wade, 38 Fla. L. Weekly D2222b (Case No. 3D13-2317 Oct. 23, 2013)

Vorbeck v. Betancourt – Dismissal of Pure Bill of Discovery

In this case, the plaintiffs filed a complaint for a “pure bill of discovery” to obtain information attempting to confirm plaintifffs’ suspicions that a 50% owner of the subject company had misappropriated corporate assets.  The trial court dismissed the complaint, and the appellate court affirmed, on the basis that “the bill of discovery was improper because the [plaintiffs] (1) filed it merely to substantiate their suspected claims and (2) possessed an adequate remedy at law,” namely, a statutory basis to obtain corporate records.

Vorbeck v. Betancourt, 38 Fla. L. Weekly D57a (Fla. 3d DCA Dec. 26, 2012)



Rescission of Settlement Agreement for Discovery Misconduct – Garvin v. Tidwell

In this case, the plaintiff was injured when she fell off of a horse, named “Buster,” who had behaved obstreperously while plaintiff tried to ride him.  Defendant claimed that Buster never exhibited any dangerous behavior.  The case settled.  After the settlement, plaintiff’s counsel received an unmarked advertisement quoting the defendant as saying that she decided to give a calming supplement, “Ex Stress, to her horse, Buster, because he ‘can be a little difficult at times.’”  Defendant had not produced this advertisement in response to various discovery requests despite being in possession of the advertisement.  The plaintiff then moved to rescind the settlement agreement based upon these facts.  The trial court denied the motion.  The appellate court reversed, holding, “Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.”  The court further held that the plaintiff had further established the elements of unilateral mistake:

“[T]his case involves a plaintiff who entered into a settlement agreement believing that, after conducting discovery, she had all of the material facts in front of her, when in fact she did not. There does not appear to have been any reasonable way for appellant to find out about the advertisement or Buster’s ‘difficult’ behavior other than through the methods she had already employed. Thus, appellant’s mistake lacks inexcusable neglect.”

Garvin v. Tidwell, 37 Fla. L. Wkly D2506a (Fla. 4th DCA Oct. 24, 2012)


In camera review required for discovery records protected by constitutional right of privacy – James v. Veneziano

In this car accident case, the plaintiff sought defendant’s medical records for the past 10 years based on the belief that the defendant’s medical problems caused the car accident.  The trial court ordered the defendant to produce the records.  The Defendant objected to producing the records on the basis that he had a right of privacy in the records.  On certiorari review, the appellate court reversed, holding, “We find the order departed from the essential requirements of law because when a party challenges a discovery order concerning material to which the party asserts his or her constitutional right to privacy, the trial court must conduct an in camera examination to determine the relevance of the materials to the issues raised or implicated by the lawsuit.”  Accordingly, the appellate court required the trial court on remand to conduct an in camera inspection and an additional hearing to determine the relevance of the records.

 James v. Veneziano, 37 Fla. L. Weekly D2338a (Fla. 4th DCA Oct. 3, 2012)

Error to enter Summary Judgment while discovery pending – Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC

Bayview Loan filed a commercial foreclosure action against Almond and later moved for summary judgment.  At some point, it is not clear whether it is before or after the MSJ was filed, Almond moved to compel the deposition of Bayview’s corporate representative.  It is also unclear whether that motion to compel was ever ruled on.

Almond informed the trial court of the outstanding discovery in its memorandum in opposition to summary judgment.  However, the trial court entered summary judgment without Almond having taken the deposition of Bayview’s corporate rep.

The Second DCA found that “the facts had not been sufficiently developed” and overturned the entry of summary judgment.

Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC, 37 Fla. L. Weekly D2353a (Fla. 2d DCA Oct. 5, 2012)

Rules Updates – New E-discovery and E-mail Service Rules Effective September 1st

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to implement service by email, the following rules have been updated:

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to facilitate electronic discovery, the following rules have been updated:

All of these amendments are effective as of September 1, 2012.

Florida Supreme Court implements e-discovery amendments – Effective September 1st

The amendment covers seven civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).

The amendment largely mirrors the Federal Rules, but does not require an initial case management conference.