Planning Your Discovery :

Planning Your Discovery1:
Some thoughts on when and how to use your discovery tools.
Discovery procedures are not “cookbook” processes. One does not open the book, turn
to the recipe and simply follow the same recipe for each case. The propounding of
interrogatories and the noticing of the defendant’s deposition, with the complaint is not always
the appropriate course of action. Consider what must be proven, what elements have to be
demonstrated, and what legal standard has to be met. Evaluate the known obstacles that you
will certainly encounter as you move forward with the case. Consider what hurdles might
appear even though they are not presently a stumbling block. Each case is different; it may be
similar to others, but each has its own idiosyncrasies, be it in the facts, the law or maybe even
the opposing counsel. Many may not be foreseeable, others will be obvious, still others will
require some work to discover – that is one of the reasons why it is called “discovery.” Where to
do we start? Each of us knows the discovery tools we have our “bag.”. But when do we send out
the interrogatories in this case? Are the standards ones sufficient in this case? How many do we
propound in this particular case? When do we take depositions and of whom and in what
order? Should the deposition be noticed in someone’s individual capacity, as corporate
representative, as the person with the most knowledge or some combination of these?
Unlike the King in Alice in Wonderland who suggests we begin at the beginning, let’s do
the reverse. Let’s start at the end, the very, very end. Let’s start with the jury instructions that
the jury will have in the jury room after all of the testimony has been presented, all exhibits
have been admitted and brought back to that jury room, after the opening statements and
closing arguments have been presented and even after the judge has read those instructions to
the jury and provided each juror with a copy. Why there?
Because it is those instructions that the jury will use to complete the verdict form. tt is
those instructions that the jury will use as their template to see if you, the plaintiff, have proven
what was required to be proved. tt is those instructions that lay out what should have been your
map to develop your order of proof for your case. tf you fail to prove what the jury instruction
says you must prove, you have lost your case, or if you are the defense, you have just prevailed.
Your discovery is your tools to prove what you must.
Looking at the jury instructions at the beginning of your case, not just at the end, helps
you to develop your discovery strategy based upon what you must prove. Consider how you
might go about proving it. For example:
Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued
validity, of the citation and their application to the principle(s) for which they are cited.
1- List the elements you will need to prove. tf possible, at that early stage lay out a
preliminary order of proof. Not the standard one that you use in every case – at least
not until you determine that the standard one is all you will need. Contemplate what
person(s), item(s), photograph(s), document(s) or action(s) [taken or not taken] will
allow you to prove those necessary elements?
2- tf the scene or site is relevant (i.e. auto accident site, building construction issue, etc.)
visit it personally.2 See it with you own eyes, drive it as each party drove it. Take notes,
photographs and, if appropriate, measurements. When you are ready to take
depositions, propound interrogatories or retain experts your own familiarity with the
premises may be critical.
3- tf construction, layout or design of buildings is important, obtain the public record plans,
drawings, permits, etc.
tn summary, travel in the shoes of the plaintiff and defendant, know the layout,
the path and the obstacles that each party faced before you propound your discovery.
Submit your discovery but only with some knowledge or expectation of what it might
produce. Do not conduct a fishing expedition.
The questions are multiple and yet case specific.
1. Should you depose the defendant before you know what the independent witnesses
will have to say? Maybe yes, maybe no depending on the case.
2. tf you depose the witnesses first are you helping to prepare the plaintiff/defendant
for her or his deposition?
3. ts it smart to take the deposition of the plaintiff in a Pt case without first having all
the past and present medical records?
4. ts it wise to depose a party in a contract case before you have all the relevant written
documents existing before and after “the contract” in addition to the actual
5. Who is/are the best person(s) or entit(ies) to depose and in what order?
6. ts the deposition to be one taken as a duces tecum? tf so, what is to be requested?
7. Do t videotape the deposition?
8. tf applicable, do t qualify the witness so the deposition can be used at trial?
9. Where do t take (location) the deposition?
Remember you cannot and should not trespass or enter into a business unless it is open to the public, such as a
roadway, store during business hours, etc., without an order of the court.
10. Will the judge take calls on objections from the deposition?
11. Should t consideration use of written depositions?
1- Do t conduct a records pickup without deposition under Fla. R. Civ. P. 1.351 or with
deposition under Fla. R. Civ. P. 1.350?
2- When do t submit a request to produce documents? What do t ask for in the R/P?
3- When do t conduct a records pickup deposition? Before or after t submit a request
to produce records?
4- What if there is a lot of e-discovery? Do t need an e-discovery consultant in setting
up discovery? An expert? And independent E-discovery expert?
5- How can t be sure that all of the paper discovery is produced? How do t secure the
documents and kept them intact and unaltered for trial?
6- How do t handle the records custodian? [Consider the eventual use for trial]
7- How will the records be copied? Will they be color or black and white? Who will
copy them?
8- Do t need them Bates Stamped?
Must t use the standard approved interrogatories? Should t? Can t add others?
When should t send out the interrogatories?
To whom should they be submitted directed?
How are the questions worded? Are the sufficiently focused? [tf not, the information
received will not be able to be used for impeachment.]
5- How many should t send?
6- Do they relate to the specific elements that t need to prove?
1- Are they sufficiently narrow in focus?
2- Does each relate to an element, or a part of an element, that t need to prove or a
predicate t need to establish?
3- Am t using them properly to establish authenticity of items of evidence?
4- Can t eliminate defenses or establish claims, or portions of them, by each of these
5- When should they be sent with respect to the other discovery that will be
undertaken? With respect to motions for (partial) summary judgment?
1- Would an inspection be helpful? Would it be helpful at this time even though
changes have been made?
2- When is the best time (of day, of year) to have it done? ts the property
deteriorating? Can it be preserved? Do t need to file a “motion to preserve” the
3- Will my expert need to be there?
4- Do t want to video tape it?
5- How will it help me in trial to prove or disprove something?
tnterrogatories may be propounded at anytime by the plaintiff even with the complaint.
They may be propounded by the defendant once served.4
An attorney is no longer bound by the Supreme Court standard interrogatories. [See,
amendment to rules Sept. 2010] The initial “standard” interrogatories are only required when
they are “on a subject included therein.” Further, a party may serve fewer than all of the
standard interrogatories. Therefore, specially crafted interrogatories may be served, up to 30 in
number, but even more with the permission of the court.
Consider dividing up your interrogatories. tnitial interrogatories regarding the liability
portion of the accident/incident may be advisable at first. After further investigation additional
interrogatories involving discovery on causation, damages, and even experts may be more
helpful and enlightening. The timing and content of interrogatories will be, or in the author’s
opinion, should be case specific. “Cookbook” discovery may leave many things undiscovered, or
worse, unusable at trial.
As one gets closer to trial supplemental interrogatories are almost a necessity since
there is no continuing duty to supplement discovery as long as the responses were complete
when initially answered5. Fla. R. Civ. P. 1.280(f)
PRACTICE TIP # 1: While permission of the court is usually necessary most attorneys will
stipulate to the propounding of supplemental interrogatories. tf they are going to be submitted,
do so sufficiently before the discovery cut off to leave time for follow up discovery that may be
necessitated by the answers.
Determining what the plaintiff is contending by their claims or what the asserted
defenses really mean can be obtained by contention interrogatories.6 Fla. R. Civ. P. 1.340(b)
See Brown Bag Outline titled “tNTERROGATORtES: PROPOUNDtNG AND RESPONDtNG 1.340” dated May 2011
which is available from Judge Kest’s J.A., Diane.
Remember, answers are due in 30 days unless they were served with the complaint and then it is 45 days.
The Federal rules of discovery are different and do have a continuing duty supplement discovery. Florida has
specifically decided, by its omission from the rules, not to require supplementation. See, Federal Rule 26 (e)
allows for contention interrogatories and, coupled with other portions of the rules, does not
limit when they can be propounded. Even though the information sought is not within their
personal knowledge, it is discoverable.
Caution, however, on attempting to use contention interrogatories for impeachment at
trial. The rule specifically provides that an answer under a contention interrogatory made by a
party relying on knowledge from some other source is a “qualified answer” and “…may not be
used as direct evidence for or impeachment against the party giving the answer…” unless it
would be otherwise admissible. The answering party must supply in the answer, not only the
answer, but also “…the source on which the information is based.” Fla. R. Civ. P. 1.340 (b)
Corporate officers and employees
Designated representatives who can be deposed
Records custodians
Corporate secretaries, officers, and directors
Agents and other decision and/or policy makers
Death cases:
The personal representative
The survivors for purposes of death benefit claims
The estate planning attorney and CPA or accountants
Prior spouses, children born out of wedlock
Other potential claimants including claims made against the estate
Liability witnesses:
Eye witnesses
Knowledge witnesses (of prior existing conditions or activities)
Law enforcement
This outline involves discovery issues. A “Motion for More Particular Statement” can be filled under Fla. R. Civ. P.
1.140(e) if a pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive
pleading.” This section appears to be limited to pleadings, however.
Medical personnel at the scene
Non-Expert Damage witnesses (accountants, employers, before/after)
Photographs or videos taken
Lost wages and earnings or earning potential documentation
Scarring information – photographs before and after
Medical damages – bills, invoices, insurance claims
Collateral source information
Subsequent remedial measures taken
Evidence of prior knowledge of the condition or similar situations
Survivors – named and maybe unnamed
Minors – (relationships and physical evidence demonstrating)
Net accumulations
Support and services—(physical evidence demonstrating)
Medical expenses
Lost earnings or ability to earn
tt is important to note that even though a rule exists allowing the taking of an expert’s
deposition (Fla. R. Civ. P. 1.390), the interrogatory rule seems to require the propounding of
expert interrogatories before an experts deposition may be taken. Fla. R. Civ. P. 1.280 (b)(4) &
(A)(1) [“Discovery of facts known and opinions held by experts … may be obtained only as
follows: (A)(i) [b]y interrogatories of a party ….” [ttalics supplied]
PRACTICE TIP #2: While we all want to have the opposing side identify and respond with
information about their experts, until the expert is identified as one who will testify at trial
discovery of the expert is generally not permitted. Accordingly, either at a case management
conference or by specific order resulting from a motion filed requesting disclosure dates, one
Fla. R. Civ. P. 1.280(b)(4)(A)(i)
should have the court establish an early date for designation and disclosure of experts who will
be testifying at trial.
PROFESSIONALISM POINTER: Most skilled and experienced attorneys will, or should, meet with
opposing counsel and develop their own agreed upon case management order or
discovery/disclosure cutoff agreement. Laying out the dates for discovery by agreement is far
superior to a court imposing disclosure dates and discovery cutoff dates.
tf interrogatories are sent but not answered, or not answered completely they are
useless. tnterrogatories must be carefully drafted. They must be narrow in scope and
timeframe, specific as to language, relevant, or at least designed to lead to discoverable
information, and requesting information that is in existence or readily available but not readily
available to the party propounding the discovery.
The drafting should contemplate objections such as “overly broad,” “not relevant,”
“unreasonably expensive,” “not designed to lead to discoverable information,” “ambiguous,”
“violates work product,” “unduly burdensome,” “involves trade secrets or confidential
communications,” “is designed to annoy or embarrass the responding party,” and/or
“constitutes and violates attorney client privilege.” An interrogatory properly drafted can result
in discovery being available within 35 days. One that is subject to objections and that is
ambiguous could takes months with the setting of hearings, entry of orders and the subsequent
responses. A little close attention at the time they are drafted can expedite the movement of
the case.
PRACTtCE TtP #3: For example, simply stating in your interrogatories that “no communications
between counsel and this party are being sought” eliminates any “attorney client” objection.
There are three specific methods to obtain documents and records. Fla. R. Civ. P. Rule
1.350 involves obtaining production of records from parties, Fla. R. Civ. P. Rule 1.351 is used to
attempt to obtain records from non-parties without a deposition and Fla. R. Civ. P. 1.310(b), the
general deposition rule, allows a party to take a deposition duces tecum from any one.
tt is important to remember that there does not appear to be a limitation on the number
of times, the timeframe or the subject matter9 that can be sought under these “requests to
For a more detailed discussion of the processes and uses of Request to Produce, see Brown Bag Outline titled:
REQUEST TO PRODUCE under Fla. R. Civ. P. 1.350 and 1.351 dated January 11, 2012 which is available from Judge
Kest’s JA., Diane.
The rule itself is all encompassing. tt allows for writings, drawings, graphs, charts, photographs, phone records
“and other date compilations from which information can be obtained.” With e-discovery arguably the depth is
even broader. tt should not be forgotten that rule also allows for testing, sampling, inspecting, copying and even
entering upon land and other property.
produce rules.” However, there are a few requirements that do come into play. The court will
require some relevancy of the requested items, that they be calculated to lead to discoverable
information and that there be a common sense basis for the request if an objection is raised.
Krypton Broadcasting of Jacksonville, tnc. v. MGM – Pathe Communications Co., 629 So.2d 852
(Fla. 1st DCA 1993) Second, generally the party cannot be made to create or develop
something that does not already exist. Allstate v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999)
Further, these discovery tools can be used at any time “after commencement of the
action.” Leave of court is not required, hence the term “request” to produce. Responses are
required within 30 days, or if served with the complaint within 45 days.
EARLY NON-PARTY RECORDS – Fla. R. Civ. P. 1.35110:
Obtaining early records from non-parties can provide a vast amount of information that
will assist with future discovery. From this information, one can draft specifically focused
interrogatories. Further more focused requests to produce to the party and non-parties will
assist determining what depositions need to be taken and, as importantly, in what order.
Subsequently, request for admissions can be then be designed to (1) obtain early admissions or
(2) allow recovery for attorney’s fees and costs for those items that should have been admitted
but were not.
Areas of inquiry, in a Pt case for example, can include admitting prior accidents, prior
injuries and/or treatment, prior job losses or periods of no income, the existence and
authenticity of medical and employment records and photographs or diagrams. From a
plaintiff’s standpoint it can include demonstrating the defendant’s knowledge of a dangerous
condition, prior injuries to others, code violations, lack of routine preventive inspections and lax
or non-existence maintenance policies, for example.
Many attorneys automatically use depositions as a tool of first resort without any
consideration of its appropriateness in a particular case. tt may well be that an immediate and
early deposition should be taken before the party/witness can be educated by the rest of
discovery -- or maybe not.
The real question is not when “may” a party take a deposition, but when “should” a
party take a deposition? Just some of the factors to be considered include:
1- Has the witness/party previously given a recorded statement, under oath or not?
Maybe a statement was taken by an adjuster. A written narrative may have provided
While an objection by a party to this method of discovery is reviewable by the trial court, an objection by a nonparty immediately ends any attempt to obtain the records under this rule without any action by the trial court. Fla.
R. Civ. P. 1.351
See Brown Bag Outline titled, “Discovery Depositions Part I: Practical Considerations in Planning and Preparing to
Take a Discovery Deposition” Revised on July 13, 2010.
to somebody. tf you already have a detailed accounting that can be used at a later
point, is it critical to take that one deposition now?12
2- Am t prepared with all the background information and facts that t need to conduct
an in depth discovery deposition, knowing that this will probably by the only
deposition that t will get to take of this witness/party, save for possibly a
supplemental just prior to trial? See Footnote 11. Have t been to the scene to
observe its layout; do t know what the independent witnesses are going to say; do t
know the prior relevant history of this person; or even know the best method by
which to take this deposition?
3- Do t know enough to decide if t will take this deposition by video, upon written
questions, or just with a court reporter?
4- Do t want to take it at my office, at opposing counsel’s office, or maybe at the
business where this occurred or even at the scene?
5- Do t want it as a “duces tecum” and if so do t know specifically what records t want
brought? Will t have had time to review the written documents before the
deposition to formulate my inquiry and to make sure all the records are there? Am t
leaving adequate time to require compliance with the duces tecum?
6- Will t have all the aids or exhibits available – photographs, diagrams, objects, SOP’s,
contracts, etc.? How will t use these for impeachment if this is going to be read or
played to the jury?
7- Will t be able to set the stage for impeachment with the limited knowledge that t
have at this early stage?
8- ts the taking of the deposition now being done to perpetuate testimony? tf so can t
get all of the parties necessary properly noticed – including those who may not be in
the case but may be brought in later?
9- tf this witness’ testimony maybe based on other testimony or opinions, i.e. experts
or measurements, will this witness/party even be able to adequately respond to the
10- ts my taking of the deposition going to allow the opposing party to put on testimony
that he/she would otherwise not have available for trial?
tf the deposition being taken is by description or of a corporate representative,
do t have sufficient information and documents to ask the proper questions to bind
the corporation?
How will t present or use this testimony at trial? For impeachment? As
substantive testimony? By video? Do t have the exhibits and aids in the proper form
for use on a video deposition?
Remember generally a deposition of a party or witness will generally only be allowed to be taken on one
occasion absent very unusual circumstances. See §14 DEPOStTtON GUtDELtNES, ¶(E), Uniform Administrative
Policies and Procedures of the Civil Courts of the Ninth Judicial Circuit, Orange County, Florida Revised Nov, 2006.
How will objections be handled if this is to be used for trial? Am t prepared to
ask and re-ask questions properly to accommodate editing for trial?
The concept and use of discovery is not complicated. However, its effective use
can be. Forethought, planning, knowledge of the tools, how they are and can be used
and will be used must be considered before embarking on a discovery campaign. Look
at each case individually. Don’t just “do the same old thing” each time. Consider your
fact pattern; determine if variations in your normal procedures would be more likely to
produce better results.
Judge John Marshall Kest , Revised March 10, 2013
Comments, recommendations, "practice tips," and "professionalism pointers" are solely those of Judge John
Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual
procedures, policies and requirements of that judicial division or judge.