PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Cooperation and Professionalism During Discovery
AVERY S. CHAPMAN
Several recent Rules of Civil Procedure amendments and new rules have directly addressed the responsibility of counsel to be proactive when fulfilling discovery duties and obligations. These duties and obligations apply both to interactions with clients and adverse parties. Gone are the times when counsel can merely launch suit, and then casually promulgate discovery, while minimizing the importance of holding, gathering, and producing electronically stored information, and discovery, production and retention of hard copy material. Further, counsel must now ensure orderly progression of a case under the revised Rules.
Professionalism and cooperation have always been paramount in Florida discovery, and the amendments and new rules reinforce those precepts. The new initial disclosure requirements and proportionality standard under Rule 1.280, the Certification requirement of Rule 1.202, Local Rule 4, and the new differentiated case management order(“ DCMO”) scheduling regime, all require close cooperation and utmost professionalism to identify and resolve discovery disputes. To that end, counsel should contemplate adopting best practices discussed below.
1. Initial Disclosure requirements under Rule 1.280( a).
Within sixty days of service of a civil suit, a party must, without awaiting a discovery request, provide to the other parties initial discovery disclosures unless privileged or protected from disclosure. Rule 1.280( a)( 1). The disclosures include identifiable information for witnesses and relevant documents, information as to the nature and extent of injuries or damages, computation of damages, and disclosure of relevant insurance policies. Id. Lack of investigation is not an excuse to avoid initial disclosure obligations. Rule 1.280( a)( 1)( D)( 4).
Early disclosure is thus now mandated by the Rules. For guidance as to why initial disclosures are so important, the Florida Supreme Court’ s December 4, 2024, Opinion,
In re Amendments to Florida Rules of Civil
Procedure, No. SC2023-0962, as amended January 23, 2025, explains:
Further, to address the lack of coordination between the timing of initial discovery disclosures and the timing of the first set of discovery requests, the Court amends rule 1.280 to state that“[ a ] party may not seek discovery from any source before that party’ s initial disclosure obligations are satisfied, except when authorized by these rules, by stipulation, or by court order.”
This new early disclosure requirement, which is derived from Fed. R. Civ. P. 26( a), brings with it a host of professionalism obligations with respect to counsel’ s relationship with the client, to whom counsel must look to identify initially discoverable material. See Rule 26 Notes of Advisory Committee 1993(“ While far more limited, the experience of the few state and federal courts that have required prediscovery exchange of core information such as is contemplated in Rule 26( a)( 1) indicates that savings in time and expense can be achieved, particularly if the litigants meet and discuss the issues in the case as a predicate for this exchange ….”).
In other words, professionalism in discovery is not reserved merely for later in a case. Rather, professionalism is implicit in everything Florida lawyers do, and the new amendments bring particular relevance of professionalism to the initial obligations to hold, preserve, and satisfy discovery obligations. As well, litigation is not the trigger. Rather, once a dispute arises or is reasonably anticipated, counsel’ s duty arises to advise the client, and later actively participate with the client, to ensure that the client holds, preserves, and ultimately discloses relevant information. See, e. g., Am. Hospitality Mgmt. Co. v. Hettinger, 904 So. 2d 547, 549( Fla. 4th DCA 2005)(“ a defendant could be charged with a duty to preserve evidence when [ the defendant ] could reasonably have foreseen the claim”). Counsel’ s affirmative obligation to become involved early with the client’ s efforts is now codified through Rule 1.280( a), which
PBCBA BAR BULLETIN 17 expressly requires a good faith effort to identify and disclose identified relevant information. Rule 1.280( a) now states:“[ l ] ack of investigation is not an excuse to avoid Initial Disclosures.” For application of how this concept works in practice, see Chief Magistrate Judge Mattewman’ s cogent discussion in: EEOC v. M1 5100 Corp., No. 19- cv-8132, 2020 WL 3581372, at * 2( S. D. Fla. July 2, 2020):
It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to“ self-collect” discovery without any attorney advice, supervision, or knowledge of the process utilized.
This point would be hard to rebut if presented to a local state court judge. Communication and cooperation between counsel and client are paramount from the inception of the representation to ensure that the client understands discovery obligations, complies with those obligations, and that the lawyer has fulfilled oversight responsibilities mandated by the new Rules.
2. The proportionality standard under Rule 1.280; interrogatories under Rule. 1.340 and objections under Rule 1.350.
The amendment to Rule 1.280 did not invent a new standard for discovery, but rather adopts the standards and requirements of the federal rules, many of which already existed in the Rules beforehand. Fed. R. Civ. P. 26( b) has long-authorized discovery“ regarding any nonprivileged matter that is relevant to any party’ s claim or defense and proportional to the needs of the case.” That rule states explicitly that“[ i ] nformation within this scope of discovery need not be admissible in evidence to be discoverable.” That federal standard has been incorporated by our Supreme Court into Rule 1.280( c)( 1), which similarly provides
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