Discovery in Florida is generally open. However, there comes a time when you receive a notice of intent to issue subpoenas, or a notice of deposition, that plainly appears targeted to harass your client or their associates. While perhaps thinly linked to the case’s subject matter, the probable substance of the discovery has more to do with making personal discomfort, not evidentiary progress. In those instances, Florida law provides good case law to protect both parties and third-parties from harassing discovery. This article provides a glimpse at that Florida law against harassing discovery.

If you have questions about harassing discovery, harassing depositions, or harassing subpoenas, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, or www.bernhardlawfirm.com.

The Rules Against Harassing Discovery

Under Florida Rules of Civil Procedure 1.280(b)–(c), 1.310(c)–(d), and 1.410, the Court may quash subpoenas and limit the scope and manner of taking discovery, and order a limitation on evidence or deposition questions, where they are conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the deponent. Fla. R. Civ. P. 1.280(b)–(c), 1.310(c)–(d), and 1.410; Rasmussen v. S. Fla. Blood Serv., 500 So. 2d 533, 538 (Fla. 1987) (holding privacy and other interests outweighed plaintiff’s interests in discovery); Ferrandino v. Riley, 236 So. 3d 493, 494 (Fla. 1st DCA 2018) (holding evidence was sufficient to support conclusion that subpoena subjected witness to undue burden and harassment); CVS Caremark Corp. v. Latour, 109 So. 3d 1232, 1234–35 (Fla. 1st DCA 2013) (reversing order denying protective order where depositions would cause undue burden or expense); see also Mathews v. Kant, 427 So. 2d 369, 370 (Fla. 1st DCA 1983) (affirming order quashing subpoenas on an implicit finding that they were unreasonable and oppressive); Leonhardt v. Cammack, 327 So. 2d 848, 849 (Fla. 4th DCA 1976) (reversing order denying protective order from discovery not relevant to the cause of action in the complaint).

Discovery Framed by the Pleadings

Discovery is limited to those matters relevant to the litigation as framed by the parties’ pleadings. Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) (reversing denial of protective order from discovery on matters not relevant as framed by the pleadings). Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (“It is axiomatic that information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings.”). Certain discovery, and discovery of certain kinds of information, “may reasonably cause material injury of an irreparable nature” that includes “cat out of the bag” material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving other confidential information that may cause injury if disclosed. Id.

Thus, “[a] protective order should be granted when the pleadings, at the time a trial court rules upon a motion for protective order, indicate the [records] are not related to any pending claim or defense.” E.I. DuPont De Nemours & Co., Inc. v. Sidran, 140 So. 3d 620, 629 n.11 (Fla. 3d DCA 2014) (“Discovery in civil cases must be relevant to the subject matter of the case and must be admissible”); see also Walter v. Page, 638 So. 2d 1030, 1031 (Fla. 2d DCA 1994) (holding deposition duces tecum on officer financial records was too broad under the proper claims of the case, and protective order should have been granted).

Discovery Is Not a Search Warrant

Neither a subpoena nor a deposition duces tecum “is not the equivalent of a search warrant, and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party then searches to find what may be wanted.” Gen. Elec. Capital Corp. v. Nunziata, 124 So. 3d 940, 943 (Fla. 2d DCA 2013) (reversing denial of motion for protective order where internal operating documents requested were not relevant to discovery in aid of execution); Walter v. Page, 638 So. 2d 1030, 1031 (Fla. 2d DCA 1994) (reversing denial of protective order on broad deposition duces tecum); Richard Mulholland and Assocs. v. Polverari, 698 So. 2d 1269, 1270 (Fla. 2d DCA 1997) (reversing denial of protective order where attorney representation documents requested were not related to any properly pending claim or defense). 

Limited Financial Discovery Before Judgment

A plaintiff is not entitled to plenary financial discovery before judgment, and even after judgment, is not entitled to discovery on other business transactions, trusts, loans, and other investment matters of a defendant. Winderting Investments, LLC v. Furnell, 144 So. 3d 598, 603 (Fla. 2d DCA 2014) (holding plaintiff not entitled to discovery of nonparty’s personal financial information); Regions Bank v. MDG Frank Helmerich, LLC, 118 So. 3d 968, 970–71 (Fla. 2d DCA 2013) (affirming order sustaining objections to post-judgment discovery of all trusts to which loan guarantors were a grantor, trustee, or beneficiary); Capco Properties, LLC v. Monterey Gardens of Pinecrest Condo., 982 So. 2d 1211, 1213–14 (Fla. 3d DCA 2008) (holding plaintiff not entitled to pre-trial discovery of principals’ personal financial information). 

Third-Party Non-Party Records Are Protected

Even as to non-parties (third parties not actively prosecuting or defending the lawsuit), financial records and attorney-client communications are also not discoverable; in fact, they are strongly protected against discovery intrusions under Florida law. Rousso v. Hannon, 146 So. 3d 66, 69–70 (Fla. 3d DCA 2014) (reversing order for discovery of third-party records). When documents or information appear to be privileged, the party seeking disclosure bears the burden of proving that they are not. Id. at 70.

As the Third District Court of Appeal has made plain, third-party financial records and records (kept by an attorney or otherwise) are of the utmost sensitivity and are not discoverable unless the party seeking discovery establishes the need sufficient to overcome the privacy rights of the third party. Id. This third-party discovery is not subject to a mere relevance inquiry; rather, the party seeking discovery must establish the need for the information that outweighs the privacy and other interests. Id.

A plaintiff is not entitled to compel disclosure of income and financial documents from non-party companies—these are unwarranted invasions into the privacy rights of non-parties. Bradstreet v. Taraschi, 529 So. 2d 809, 810 (Fla. 5th DCA 1988) (quashing order compelling production of documents from non-parties in a dissolution action). Absent sustainable allegations and proofs of improper financial dealings between party and subpoenaed non-party, that were intended or resulted in secreting income or assets from the Plaintiff, such discovery on non-parties is improper. Id.

Protective Orders Even for Non-Parties

The Court should grant a protective order against taking discovery of non-parties, seeking financial records and other related information of a non-party, where the discovery is not plainly related to any pending claim or defense nor shown to be reasonably calculated to lead to discovery of admissible evidence—and, the party seeking discovery has met the heightened necessity standard. Id.; Jerry’s South, Inc. v. Morran, 582 So. 2d 803, 804–05 (Fla. 1st DCA 1991) (holding a protective order should have been granted against discovery of financial records of nonparty, and proposed discovery of all business records of defendant corporations was unduly burdensome and broad).

Under these rules and case law decisions, a party may have substantial ammunition against harassing discovery. If you have questions about harassing discovery, harassing depositions, or harassing subpoenas, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, or www.bernhardlawfirm.com.