Florida Rules of Civil Procedure

RULE 1.280 GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rule 1.200, 1.340, and 1.370.

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Indemnity Agreements. A party may obtain discovery of the existence and contents of an agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure.

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion.

For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i)By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.

(iii)A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:

1. The scope of employment in the pending case and the compensation for such service.

2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants.

3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.

4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.

An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A) and (b)(4)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(4)(A) of this rule the court may require, and concerning discovery obtained under subdivision (b)(4)(B) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(D) As used in these rules an expert shall be an expert witness as defined in rule 1.390(a).

(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

(d) Sequence and Timing of Discovery. Except as provided in subdivision (b)(4) or unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party's discovery.

(e) Supplementing of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired.

Expert Witnesses and Subpoena Duces Tecum

https://www.theexpertinstitute.com/expert-witnesses-and-subpoena-duces-tecum/

Understanding Subpoena Duces Tecum

A subpoena duces tecum is a subpoena for tangible objects. This may cover records, notes, a document tracking hours, or an actual item of potential evidence, such as a defective electric knife. Unlike a subpoena ad testificandum, which demands one appear and provide testimony, a subpoena duces tecum demands one appear and provide something physical.

When a Subpoena Duces Tecum Might Be Used

In civil litigation, and in criminal litigation in states where depositions are permitted, a subpoena duces tecum may be served on an expert witness along with a subpoena ad testificandum when a deposition is scheduled. This requires the expert to not only appear, but to bring along (or, depending on the jurisdiction, deliver beforehand) the requested documents.

In some states, discovery is accomplished by simply asking for the documents sought in writing. In other cases, a defense attorney must file a subpoena duces tecum in order to obtain an expert’s file.

Disclosing Data Requested

Rule 45 of the Federal Rules of Civil Procedure governs the duties one has when providing documents or electronically stored information. Documents must be produced as they are kept during the ordinary course of business. They should be organized and labeled to correspond to the categories listed in the subpoena. Information stored electronically must be produced in the form it is ordinarily maintained, or in a reasonably usable form.

An expert may not intentionally present requested documents in a state of disarray in an attempt to confuse the attorney for the other side. Experts may not deliberately withhold evidence requested under a subpoena duces tecum without comment. If certain evidence requested is withheld, (see below) this must still be acknowledged, with the other party being informed of the failure to disclose.

A subpoena is a legally enforceable demand for documents or testimony. Documents may not be held from disclosure simply because they contain evidence that is not favorable to their side. Experts are cautioned against discussions designed to avoid turning something over, as failure to comply with a subpoena could result in civil or criminal consequences to the expert.

Data That Does Not Have to be Disclosed, Even When Requested

Certain data is exempt from a subpoena duces tecum. For example, electronically stored information that is not reasonably accessible due to cost or other undue burden does not have to be disclosed. However, the person who issued the subpoena duces tecum may well make a motion to compel discovery or for a protective order to address concerns about data privacyor confidentiality. In that case, the court will consider the motion. The person refusing disclosure has the burden of establishing excessive cost or undue burden.

Privileged information may also be withheld, however, there are requirements in Rule 45 about the circumstances under which one can decline to provide privileged information. An expert should not make their own determination of what is and is not privileged information. Rather, the expert should consult with the attorney who hired them to discuss whether or not something falls under the cloak of privilege. This is particularly important in criminal cases. Prosecutors have a duty to disclose evidence that is exculpatory, goes towards negating a defendant’s guilt, or that might reduce a defendant’s potential sentence under Brady v. Maryland, 373 US 83 (1963), and are ethically bound by this rule. Consequently, when working on behalf of the prosecution, experts should ensure the prosecutor is aware of evidence requested and make the final determination about what is discoverable.

A word of caution, however: experts have their own reputations to uphold as well. If a prosecutor determines no disclosure is necessary, but the expert is concerned about the prosecutor’s interpretation of Brady, the expert should consider hiring their own counsel. Both civil and criminal penalties are possible for failing to comply with a legally supportable subpoena.

Common Requests in a Subpoena Duces Tecum

Of course, no two cases are alike, and no particular demand can be anticipated across every case. However, some data has become routine because it is so commonly demanded. The following is a list of commonly requested items in a subpoena duces tecum:

• 1. The complete expert file

  2. Copies of all reports written by the expert, prepared by the expert, or prepared at the expert’s direction

  3. Case notes

  4. Communications with anyone about the case, whether documented in a note, email, or a phone call summarized

  5. All information upon which the expert bases their conclusions, including all facts or data provided by the party’s attorney that the expert considered in forming opinions

  6. Other assumptions provided by the party’s attorney that the expert considered and relied upon when forming opinions

  7. A copy of the expert’s CV, professional memberships, licenses

  8. Copies of the expert’s publications

  9. Scientific articles upon which you relied in making conclusions about the case

  10. Scientific texts, treatises, technical articles or other professional publications which were relied on when forming an opinion, or to which testimony may relate

  11. The expert’s retainer, fee agreement, or contract

  12. Complete time and billing records for this file

Payment for Compliance with the Subpoena Duces Tecum

Rule 45 also provides for payment for an expert’s time which is spent responding to discovery. The rule calls for payment of a “reasonable fee,” however, this fee is not defined in the law. There is an exception to this rule when a “manifest injustice would result” if the party seeking discovery were to pay the fee. “Manifest injustice” is similarly not defined in the statute.

If You Receive a Subpoena Duces Tecum

A subpoena duces tecum is just as powerful as a subpoena ad testificandum. The law shows no preference between subpoenas for documents and subpoenas for testimony itself. As such, both types of subpoenas should be viewed with a healthy level of respect. Should an expert receive either type of subpoena, a call to the attorney they are working with is an excellent next step.

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