As the years go by, the Florida Rules of Civil Procedure have begun to look more and more like the Federal Rules of Civil Procedure, with the state court system amending its rules to more closely track the federal rules. But one area where there’s still a noticeable difference between the state and federal rules is the area of expert witness discovery. For those who practice in both state and federal court, understanding these differences is critical.
Today, we’re going to take a deep dive into expert discovery in state court. Rule 1.280(c)(5) “establishes the parameters of discovery directed to a non-party retained expert.” Grabel v. Sterrett, 163 So. 3d 704, 706 (Fla. 4th 2015). The rule doesn’t mince words when it comes to expressing a hard cap on permissible expert discovery, stating that expert discovery “may be obtained only as follows.” Fla. R. Civ. P. 1.280(c)(5) (emphasis added). It then proceeds to set out both what information a party may seek from an expert andhow a party may go about obtaining that information.
There are essentially three methods of obtaining information from experts who are either disclosed by interrogatories or expected to testify at trial.
1. Information discoverable through interrogatories directed to opposing party.
Under Rule 1.280(c)(5)(A)(i), a party may, throughinterrogatories, require the other party to provide the following three categories of information regarding the expert: (1) the identity of the expert; (2) “the subject matter on which the expert is expect to testify”; and (3) “a summary of the grounds for each opinion.” Fla. R. Civ. P. 1.280(c)(5)(A)(i).
2. Information discoverable through deposition questions directed at expert.
Under Rule 1.280(5)(A)(ii), a party may depose the expert. Fla. R. Civ. P. 1.280(c)(5)(A)(ii). Notably, this rule is quite broad it terms of what a party may ask an expert at a deposition. Specifically, a party may depose an expert about any and all facts and opinions that are discoverable under the general discovery rule, which is Rule 1.280(c)(1).
3. Information discoverable through any discovery mechanism.
Under Rule 1.280(c)(5)(A)(iii), a party may, through any discovery mechanism, obtain the following information regarding the expert: (1) “[t]he scope of employment in the pending case and the compensation for such service”; (2) “[t]he expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants”; (3) “[t]he identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial”; and (4) “[a]n 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 will not be required to disclose the expert’s earnings as an expert witness or income derived from other services.” Fla. R. Civ. P. 1.280(c)(5)(A)(iii).
The reason why a party may obtain this discovery via any discovery mechanism (e.g., through interrogatories, questions at a deposition of the expert or party, or subpoena duces tecums served on the expert) is that, unlike the other subparts of Rule 1.280(c)(5)(A) which limit discovery to a particular mechanism, subpart (iii) contains no such limitation. Id. (stating generally that “[a] party may obtain the following discovery regarding” the expert without limiting the means of obtaining said discovery to any mechanism).
The below chart illustrates the categories of information discoverable from experts and the mechanisms through which a party can seek that information.
Before moving on, it is worth adding a caveat to the above. On motion, “the court may order further discovery by other means[.]” Fla. R. Civ. P. 1.280(c)(5). So, a party can move the court to approve other discovery to serve on experts or the opposing party.
Why is all this background is important? Because if you practice in state court, you know that it’s quite common to be on the receiving end of a Notice of Deposition Duces Tecum (or to see your expert served with a subpoena duces tecum for deposition) that demands that the expert produce items or documents that fall well outside the bounds of permissible expert discovery (e.g., broad requests for the expert’s entire “file”). While there are certain kinds of discovery requests that are fair—for example, materials the expert considered when forming his or her opinion—others simply create unnecessary and burdensome busywork for the expert (and the lawyer who retained them). When responding to overbroad requests, educate your opposing counsel—and, if necessary, the court—on what is discoverable under the Florida rules and what’s not.