PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Cooperation and Professionalism During Discovery( Continued)
AVERY S. CHAPMAN
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.
The adoption of proportionality in Florida state court litigation as to the scope of appropriate discovery triggers professionalism and cooperation considerations. These considerations have already been implicit in the discovery process, but now are explicitly set forth. If it was not clear before, it is now mandated that counsel must not launch a fishing expedition. Reciprocally, responding counsel should not invoke substance-less, boilerplate objections, which are also now prohibited by the new Rules. Rules 1.340 and 1.350 strictly prohibit boilerplate, nonspecific discovery objections, requiring instead that objections to interrogatories and requests for production be stated with specificity, including reasons. " General " or " general objection " statements that are not tied to a specific request are impermissible.
Rule 1.340 has also been amended to reflect this new focus on proportional discovery, directing that“[ a ] ny use of standard interrogatories must be adjusted for proportional discovery.” Reciprocally, Rule 1.350 has likewise been amended to emphasize substance over form. See Rule 1.350( b)( 4)(“… state with specificity the grounds for objecting to the request, including the reasons ….”).
Discovery should be pointed and directed towards the issues, while objections must be specific. See, e. g., Rule 1.280( e)( 2)( A) &( B), and Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197,
1199( Fla. 4th DCA 2000). Both sides have an obligation to avoid litigating needlessly over the scope of discovery and appropriateness of objections. See, e. g., Civil Case Guidelines Regarding Discovery of Electronically Stored Information, developed jointly by the Electronic Discovery and Digital Evidence Committee and Rules Committee of the Business Law Section of the Florida Bar. https:// flabizlaw. org / wp-content / uploads / 2025 / 06 / BLS-Proposed-Civil- Case-Guidelines-re-ESI-Discovery-6.20.25- EDDEC-and-Rules-C-final-as-revised. pdf These Guidelines have now been circulated to all judges by the Chief Judges of the 13th and 15th Judicial Circuits, which should give counsel clear guidance as to the standards of practice and professionalism that are now expected.
3. The Differentiated Case Management Order.
Finally, the new DCMO scheme also supports cooperation among counsel.
See, e. g., Supreme Court Order SC2023- 0962( January 1, 2025), as adopted by the 15th Judicial Circuit in A. O 3.110-12 / 24, https:// www. 15thcircuit. com / sites / default / files / administrative-orders / 3.110. pdf.(“ Whereas, the plain purpose of modern case management is to serve the citizenry by developing innovative ways to improve fair, predictable, efficient and timely disposition of civil cases. To those ends, the procedures established by this Administrative Order will provide greater uniformity and predictability to the management of civil cases pending in this Circuit.”). The A. O. repeatedly allows and requires counsel to communicate and cooperate to meet or amend DCMO provisions, and should not be overlooked when confronting discovery issues.
4. Mandatory Consultation under new Rule 1.202, and existing consultation requirements under Local Rule 4.
New Rule 1.202( a) mandates that:“( a) Duty. Before filing a non-dispositive motion, the
PBCBA BAR BULLETIN 18 movant must confer with the opposing party in a good-faith effort to resolve the issues raised in the motion.” Subsection( b) of Rule 1.202 further requires a“ Certificate of Conferral” containing specific language describing the nature of the good faith consultation.
While new Rule 1.202 does not specify exactly what“ good faith” means, substantial guidance as to what the court considers good faith consultation effort is found in the mandated text of the certification. Rule 1.202( b). The text for the required certification states:“ I discussed the relief requested,” with a required description of the“ method of communication and date,”“ on the resolution of all or part of the motion.” In the event an opponent does not respond to party’ s request for consultation, then the certification must“ describe [ e ] with particularity all of the efforts undertaken to accomplish dialogue with the opposing party prior to filing the motion.”
Local Rule 4 has long-required consultation before a motion is noticed for a hearing. When combined with Rule 1.202, there is now a two-part consultation: before filing the motion, and before noticing the motion for hearing. While the Civil Rules Practice Committee is currently reviewing Local Rule 4 in light of recent Supreme Court guidance which may preempt or replace the local rule, it remains clear that more consultation is the best way to reduce discovery disputes and thus conserve judicial resources.
5. Conclusion.
Counsel must be mindful of their obligations and duties during the discovery process, particularly in light of the amended and new rules, and the new case management schema. Florida judicial leadership has made it clear that ignorance of the Rules and duties is no excuse, and that communication, cooperation, and professionalism are the sine qua non of proper discovery practice in Florida.