How Have a Party’s Discovery Obligations Changed Under the Recent Amendments and What Remedies Are Now Available When Filing a Discovery Motion?

Effective as of January 1, 2025, the Florida Supreme Court adopted significant amendments to the Florida Rules of Civil Procedure, including material changes to Rule 1.280 and Rule 1.380.  In amending Rule 1.280, the Court adopted much of  Federal Rule of Civil Procedure 26, including:  1) each party now has a duty to serve initial disclosures; (2) each party now has a duty to supplement initial disclosures and prior discovery responses; and (3) that the federal “proportionality” standard will now apply to discovery requests to balance relevance with the needs of the case. In amending Rule 1.380, the Court expanded trial court’s authority to award sanctions against a party or counsel for failure to comply with discovery obligations.

Parties Must Now Serve Initial Disclosures Before Undertaking Discovery

Under amended Rule 1.280(a), each party’s initial disclosures are due within 60 days after service of the complaint or joinder of a party to the case, based on the information reasonably available to the party at that time.  A party’s initial disclosures must include the name and contact information for each person likely to have discoverable information, including the subject matter of that information, that the disclosing party may use in support of its claims or defenses, unless the use is solely for impeachment.  A party’s initial disclosures must also include a copy or description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that may be used to support its claims or defenses. The initial disclosures must provide a computation for each category of damages claimed and a copy of the documents or other evidentiary material unless they are privileged or the computation applies to noneconomic damages, the latter of which still requires the disclosing party to identify categories of damages and to provide supporting documents.  Finally, the initial disclosures must provide a copy of any insurance policy or agreement that may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

The Duty to Supplement Initial Disclosures and Prior Discovery Responses

Under amended Rule 1.280(g), each party is now under a continuing obligation to timely supplement or correct initial disclosures and prior responses to requests for production, interrogatories, and requests for admissions, when that party learns “in some material respect” the prior disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

The Addition of the Federal “Proportionality” Standard to Discovery Requests

In amended Rule 1.280(c)(1), the Florida Supreme Court has now incorporated into the scope of discovery the “proportionality” standard provided in Federal Rule of Civil Procedure 26(b)(1). Under the amendment, parties may now obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and is “proportional” to the needs of the case.

In balancing relevance against the needs of the case, a trial court must consider six factors, including:  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. Before this amendment, requested discovery was presumptively discoverable so long as it was “reasonably calculated to lead to the discovery of admissible evidence.”

Expanded Court Authority to Issue Sanctions for a Party’s Failure to Make Discovery and the Duty to Certify Before Filing a Motion to Compel

Rule 1.380 has been amended to provide an enforcement mechanism for the initial  disclosures and supplemental discovery obligations. Should a party fail to disclose information or identify a witness, the party will not be allowed to use that information or witness as evidence on a motion, at a hearing, or at a trial, unless the failure to disclose is harmless or substantially justified.

A party may move to compel disclosure and for appropriate sanctions when a party fails to serve initial disclosures. Likewise, a party may move to compel if a party fails to answer a question in deposition, answer an interrogatory, produce documents or electronically stored information in response to a request for production, or respond to a request for admission, among other failures.

Amended Rule 1.380(d) sets forth that where a party fails to provide information or identify a witness, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In addition or instead of this sanction, the trial court on motion after giving an opportunity to be heard, may also inform the jury of the party’s failure, as well as order monetary sanctions.

Amended Rule 1.380(e)(2) imposes a new duty that a party filing a motion to compel “must include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain the answer or response without court action.”

If you need sophisticated counsel who understand the new rules for your complex case, call the attorneys at Rabin Kammerer Johnson at 561-659-7878.