Navigating Through the Discovery Differences Between Florida State Courts and Federal Courts

It is well known that the Florida Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure. Both the Federal Rules of Civil Procedure and the Florida Rules of Civil Procedure state the rules shall be construed, administered, and employed by the court and the parties “to secure the just, speedy, and inexpensive determination of every action” and proceeding. See Rule 1, Fed. R. Civ. Pro. 1 and Rule Fla. R. Civ. Pro. 1.010. However, regardless of the nearly identical scopes and purposes, the two sets of rules vary widely and considerably in certain aspects; though, in an effort to promote consistency and predictability, the Florida Supreme Court continues to amend and revise the Florida Rules of Civil Procedure to more closely reflect the Federal Rules of Civil Procedure.

Most recently, in December 2020, the Florida Supreme Court decided that Rule 1.510 of the Florida Rules of Civil Procedure would be amended, effective May 1, 2021 to state that the summary judgment standard should be construed and applied in accordance with the federal summary judgment standard. By doing so, Florida became the 39th state to adopt the federal summary judgment standard articulated by the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the Celotex trilogy). This was a major development as Florida courts had typically imposed a more stringent standard on summary judgment movants, often requiring them to disprove the other side’s case in order to win summary judgment.

The Florida Supreme Court opted to largely replace the text of Florida Rule of Civil Procedure 1.510 with the text of Federal Rule of Civil Procedure 56, with some exceptions for timing-related issues. In re Amendments to Fla. Rule of Civ. Pro. 1.510, No. SC20-1490, 46 Fla. L. Weekly S95a (Fla. Apr. 29, 2021). The new rule became effective May 1, 2021 and governs adjudication of any summary judgment motion decided on or after that date. Rather than mentioning the Celotex trilogy in the text of Rule 1.510, the Florida Supreme Court added a Court Note to the rule explaining that the “federal summary judgment standard” refers to the Celotex trilogy “and more generally to case law interpreting Federal Rule of Civil Procedure 56.”

By adopting the federal summary judgment standard, along with its adoption of the federal Daubert standard for admission of expert testimony in 2019, the Florida Supreme Court continues to take strides to narrow the differences between litigating in Florida state and federal courts.

However, despite these significant movements to mirror the Federal Rules of Civil Procedure, there remain many key procedural differences between litigating in state and federal courts in Florida. The following are just a few notable areas of the formal discovery process in which the Florida Rules of Civil Procedure differ from its federal counterpart.

Discovery

One of the primary differences between the Federal Rules and Florida Rules is the Federal Rules’ mandatory duty to disclose and supplement certain information without waiting on discovery requests from another party; which is not required under the Florida Rules. Prior to the enactment of Rule 26 of the Federal Rules of Civil Procedure, it was believed by attorneys, judges, and the general public that rampant discovery abuses by adversarial attorneys caused much of the unnecessary delay and expense of trial. Therefore, federal courts determined that the liberal, permissive discovery requirements enumerated in Rule 26 would inform the parties of the relevant facts, eliminate surprise, help limit the issues, and provide a basis for either intelligent settlement or an efficient trial.

Federal Rule of Civil Procedure 26(a)(1) proscribes that the disclosing party must provide to the opposing party the following information that is reasonably available to it without a pending discovery request:

• The names and contact information of any party who may have knowledge of or access to discoverable information or evidence that could support or contradict the fundamental claims of a case;
• A catalog of all documents, electronically stored information (“ESI”), and tangible items that will be used by either party to make its case;
• A complete breakdown of all damages sought by disclosing parties, including how those figures were determined; and
• All insurance agreements under which an insurance company may be liable to satisfy, indemnify, or reimburse all or part of a possible judgment.

All of this information must be included in a party’s rule 26(a)(1) initial disclosures filing. While there may be exceptions to these rules as outlined in Rule 26(a)(1), in most cases cases, attorneys will need to disclose potentially relevant documents and discoverable information while adhering to obligations in good faith and without being prompted by any other party to the action.

Moreover, pursuant to Rule 26(a)(2), parties in federal court actions are required to disclose to the other parties the identity of any expert witness(es) it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705, the subject matter on which the expert is expected to offer testimony, and in some instances a report prepared by the expert may be required with the disclosure.

In addition to the mandatory disclosure requirements, Rule 26(e)(1) of the Federal Rules of Civil Procedure imposes an additional duty on the parties to supplement or correct their disclosures, both initial and expert, responses to interrogatories, responses to requests for production, and responses to requests for admission at appropriate intervals if the party learns that a prior disclosure or response was incomplete or incorrect, and if the additional or corrective information has not otherwise been made known during the discovery process, or if ordered by the court.

Federal Rule of Civil Procedure 26(f), requires the parties to an action to confer in advance of the mandatory scheduling conference and, among other things, discuss the nature and basis of the claims, make arrangements for the initial disclosures and discuss any issues about preserving discoverable information and develop a proposed discovery plan. This Rule 26 Conference requires discussion of any issues about disclosure, discovery, or preservation of electronically stored information, including forms in which it should be produced, claims of privilege or of protection as trial-preparation materials.

Rule 16 of the Federal Rules of Civil Procedure governs the federal courts’ requirement of pre-trial conferences, scheduling orders, and case management. As for ESI, in large part, the Florida Rules of Civil procedure substantively track the federal rules; however, Florida rules differ from the federal rules in at least one important respect. The Florida rules do not require an early “meet and confer”-type conference regarding eDiscovery as required under Rule 26(f) of the federal rules. As previously stated, the federal courts enacted Rule 26 to promote a more liberal and permissive discovery process, and to eliminate surprise and produce more speedy and efficient trials; “meet and confer” conferences require the parties to get together at the outset of the litigation and begin working together to most effectively and efficiently litigate the claims.

Currently, the Florida Rules of Civil Procedure contain no such mandatory disclosure requirements as proscribed in the Federal Rules of Civil Procedure; though numerous Florida state courts have imposed the same or similar requirements in their complex litigation divisions. However, the designation of an action as “complex” is not automatic, but subject to the court’s discretion. Pursuant to Rule 1.201(a)(1) of the Florida Rules of Civil Procedure, “a ‘complex action’ is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the action, keep costs reasonable, or promote judicial efficiency.” In determining whether an action is complex, the court must consider a number of factors, including, but not limited to, the number of parties, the time required to complete trial, and the number of witnesses, experts, exhibits, and pre-trial motions. Similar to the case management plan requirement in federal court, parties in Florida’s “complex” matters in state court, are required to prepare and file an initial case management report. Notably, perhaps simply to be different, “complex” state court matters are required to confer at least 20 days prior to the initial case management conference, whereas the Federal Rules of Civil Procedure require parties to confer at least 21 days before the scheduling conference.

Pursuant to Rule 1.340 of the Florida Rules of Civil Procedure, a party may serve on any other party no more than thirty written interrogatories, including all subparts, unless a court permits a larger number on motion and notice and for good cause. Fla. R. Civ. Pro. 1.340(a). However, in federal court, the number of interrogatories a party is permitted to propound on another party without leave of court or stipulation is limited to twenty-five, including all discrete subparts. Fed. R. Civ. Pro. 33(a)(1).

Additionally, in federal court, notices of depositions, interrogatories, requests for production, requests for admissions, responses and objections to interrogatories, request for production,  the responses and objections to interrogatories, requests for production, and requests for admissions, and other information provided pursuant to Rule 26 (a)(1), Federal Rules of Civil Procedure, shall not be filed with the Court as a matter of course. Discovery materials are filed only in limited circumstances, including if ordered by the Court, if necessary, to the presentation or defense of a motion, or if required by law or rule. Whereas, in Florida state court, many of the documents identified above are required to be filed with the court.

Based on the Florida Supreme Court’s recent decisions and the nationwide trend to adopt more uniform rules of procedure, coupled with the focus on enhancing predictability and efficiency, one can reasonably anticipate that the Florida Rules of Civil Procedure will continue to be amended to further synchronize the practice of law in Florida state and federal courts.