Jul 10, 2020 - Insights by Walton Lantaff
Regardless of what field you practice in, any litigator in the State of Florida will be familiar with what’s been dubbed “Expert Witness” requests for production. It is used to obtain documentation regarding a party’s expert witnesses, such as their reports, photographs, CVs, and the material referenced in generating their opinions. Although this is so common, nowhere in the Florida Rules of Civil Procedure is this method of expert discovery condoned.
Expert witness discovery is governed by 1.280(b)(5), Florida Rules of Civil Procedure. The intent of the Rule is clear, stating, “Discovery of facts known and opinions held by experts . . . may be obtained only as follows[.]” Id. By using “only” as a modifier, our Florida Supreme Court unambiguously meant to use this rule as the sole source of expert witness discovery methods. A party may utilize expert witness interrogatories to obtain the identity of the expert, the subject matter the expert will testify on, and “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Fla. R. Civ. P. 1.280(b)(5)(A)(i). Once that’s done, a party may then depose that expert in accordance with Rule 1.390. Fla. R. Civ. P. 1.280(b)(5)(A)(ii).
Our 4th District Court of Appeals ruled on this issue in Smith v. Eldred. There, the plaintiff in an accident case attempted to subpoena the defendant’s expert for documentation and also issued a request for production directed to the expert himself. Smith v. Eldred, 96 So.3d 1102 (Fla. 4th DCA 2012). Addressing the very Rule we are discussing now (then codified Fla. R. Civ. P. 1.280(b)(4)), the Court stated the Rule’s intent was to restrict the information discoverable from an expert, even though it’s the party answering the discovery. Id. The Court held, “[a] request for production is simply NOT a method condoned by the rule except ‘[u]pon motion.’” Id. at 1104 (citing Fla. R. Civ. P. 1.280(b)(4)(A)(iii)(4) (now codified as Fla. R. Civ. P. 1.280(b)(5)(A)(iii)(4)).
How then are we to obtain this documentation? Rule 1.390 states an expert’s testimony can be obtained “in accordance with the rules for taking depositions.” Fla. R. Civ. P. 1.390(b). You can simply request the documents duces tecum at deposition to achieve the same result.
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