CIVIL PRACTICE CORNER
CIVIL PRACTICE CORNER
Florida’ s New“ Proportionality” Standard for Civil Discovery: It’ s a Game Changer
ADAM RABIN
For years, many attorneys and judges have queried when the Florida Supreme Court would adopt the civil discovery“ proportionality” standard that the federal courts adopted in 2015. Some attorneys and judges favored the Florida courts adopting the federal proportionality standard; others were against it. Effective as of January 1, 2025, the Florida Supreme Court ended the debate when it added the proportionality standard to Florida Rule of Civil Procedure 1.280.
On May 23, 2024, the Florida Supreme Court initially adopted the federal proportionality standard, incorporating it into Florida Rule of Civil Procedure 1.280( c)( 1) but allowing for public comments before the amendment took effect on January 1, 2025. 1 Based on the public comments that followed, the Court then made further amendments to Rule 1.280 on December 5, 2024. 2
According to the Court, the central purpose of its December 5, 2024 amendments was to make the“ proportionality and discovery changes more effective” and“ to resolve potential inconsistencies.” 3 The final version of amended Rule 1.280( c)( 1), incorporating the proportionality standard, became effective on January 1, 2025.
Under the new Rule 1.280( c)( 1), discovery may be obtained in a civil case if it meets the following standard:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party ' s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 4
Before this amendment, the historic and more liberal standard for obtaining discovery in Florida was a matter was discoverable if the discovery was“ reasonably calculated to the lead to the discovery of admissible evidence.” With the added requirement of proportionality, however, discovery now must meet three criteria: it must be relevant to a party’ s claim or defense, not be privileged, and be proportional to the needs of the case. Further, what is proportional to the needs the case requires a weighing of six factors, including:( 1) the importance of the issues at stake in the action,( 2) the amount in controversy,( 3) the parties’ relative access to relevant information,( 4) the parties’ resources,( 5) the importance of the discovery in resolving the issues, and( 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
In adopting this balancing test that considers the above six factors for proportionality, recognizing there is no precedent under Florida law on how to apply the proportionality standard, the Florida Supreme Court added the following comment to Rule 1.280( c)( 1) in its December 5, 2024 amendments:“ The scope of discovery in subdivision( c)( 1) is amended to adopt almost all the text of Federal Rule of Civil Procedure 26( b)( 1) and is to be construed and applied in accordance with the federal proportionality standard.” 5
The Court further stated this comment“ should be sufficient to lead practitioners and judges to look to federal history and precedents when applying proportionality.” 6
While this comment to the rule does not explain whether federal cases from Florida’ s federal districts or the Eleventh Circuit should be given any more weight than federal cases from, for example, California or Ohio, one should expect that federal cases from Florida’ s federal districts and the Eleventh Circuit, because of their geographic proximity to Florida, will often be cited in state court when there are no Florida cases on point that apply the new proportionality standard.
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