Richard A. Jarolem Prevails on Appeal Protecting Expert Witnesses from Abusive Discovery Tactics in Florida

The 4th District Court of Appeals in Florida holds that restrictions on expert discovery extend to the business of the expert and cautions trial attorneys and trial courts to not accept novel discovery requests that are contrary to those restrictions.  

On June 12, 2019, the Fourth District Court of Appeals in Florida issued an opinion in Orthopaedic Center of South Florida v. Sode, on a matter of first impression: the extent to which the financial discovery limitations applicable to an expert apply to the business entity with which the expert is affiliated. Traub Lieberman Straus & Shrewsbury Partner Richard A. Jarolem represented Orthopedic Center of South Florida (“Petitioner”), a non-party in the action, in petitioning for a writ of certiorari, seeking to quash a discovery order overruling the Petitioner’s objections to a proposed subpoena duces tecum.

Michael Sode (“Respondent”) filed a complaint in the Circuit Court of the Seventeenth Judicial Circuit against the defendant for alleged injuries he suffered in a bicycle accident. Respondent served an extensive subpoena duces tecum on Petitioner; the business entity under which the doctor who performed the compulsory medical exam runs his practice.

Petitioner objected to the discovery requests and moved for a protective order. At the hearing, Petitioner conceded that Respondent was entitled to some discovery pursuant to Rule 1.280(b) (5), Fla. R. Civ. P., Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999).

At the hearing on its objections, Petitioner contended that most of what Respondent sought was not proper discovery from the examining doctor, who was an expert under Rule 1.280(b)(5)(A)(iii), Fla. R. Civ. P. Petitioner argued, therefore, that Respondent could not circumvent the rule, Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999), by requesting the otherwise impermissible discovery from the non-party corporate entity affiliated with the examining doctor. Respondent argued that the limits of the Rule, Elkins and Boecher do not apply to Petitioner because it is a corporation, and it is not afforded the protections of an expert.

The trial court sustained some objections and overruled others. The trial court did not address Petitioner’s objections that the discovery exceeded Rule 1.280(b)(5), or that such discovery requests were burdensome and invasive on a non-party. The trial court did not make findings of “unusual or compelling circumstances,” as required pursuant to Rule 1.280(b)(5)(A), Fla. R. Civ. P.,  and compelled the discovery to be used “for reference purposes only” by the deponent. .

On appeal, Petitioner contended the order compelling it to produce certain documents for “reference purposes only” at deposition was beyond the scope of permissible discovery under Rule 1.280(b)(5), Fla. R. Civ. P.,  and Elkins. Respondent argued that the limits of Elkins and the rule do not apply to Petitioner because it is a corporation, and is not afforded the protections of an expert

The appellate court granted the petition, rejected Respondent’s argument, and held that: (1) the protections from invasive discovery afforded to individual experts apply equally to the business entity with which the expert is affiliated; (2) Respondent used an improper discovery methodology; and (3) the order granted impermissible discovery under the Rule, Elkins and Boecher. The appellate court in granting the petition specifically stated “We caution trial counsel from employing, and trial courts from approving, novel discovery methods which exceed the limits of authorized discovery”.

The decision is Orthopedic Center of South Florida v. Sode, No. 4D18-3478 (Fla. 4th DCA June 12, 2019).

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