Florida Family Law Rule 12.380
RULE 12.380. FAILURE TO MAKE DISCOVERY; SANCTIONS
(a) Motion for Order Compelling Discovery. On reasonable
notice to other parties and all persons affected, a party may apply
for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a
party may be made to the court in which the action is pending or in
accordance with rule 12.310(d). An application for an order to a
deponent who is not a party must be made to the circuit court
where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under rule 12.310 or 12.320, or a
corporation or other entity fails to make a designation under rule
12.310(b)(6) or 12.320(a), or a party fails to answer an interrogatory
submitted under rule 12.340, or if a party in response to a request
for inspection submitted under rule 12.350 fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested, or if a party in response to a request for
examination of a person submitted under rule 12.360(a) objects to
the examination, fails to respond that the examination will be
permitted as requested, or fails to submit to or to produce a person
in that party’s custody or legal control for examination, or if any
person fails to comply with any discovery request or requirement
under the Florida Family Law Rules of Procedure, including, but not
limited to, the failure to comply with rule 12.285, the discovering
party may move for an order compelling an answer, or a designation
or an order compelling inspection, or an order compelling an
examination in accordance with the request. The motion must
include a certification that the movant, in good faith, has conferred
or attempted to confer with the person or party failing to make the
discovery in an effort to secure the information or material without
court action. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the examination
before applying for an order. If the court denies the motion in whole
or in part, it may make such protective order as it would have been
empowered to make on a motion made under rule 12.280(d).
(3) Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer shall be treated as a
failure to answer.
(4) Award of Expenses of Motion. If the motion is
granted and after opportunity for hearing, the court must require
the party or deponent whose conduct necessitated the motion or the
party or counsel advising the conduct to pay to the moving party
the reasonable expenses incurred in obtaining the order that may
include attorneys’ fees, unless the court finds that the movant failed
to certify in the motion that a good faith effort was made to obtain
the discovery without court action, that the opposition to the
motion was substantially justified, or that other circumstances
make an award of expenses unjust. If the motion is denied and after
opportunity for hearing, the court must require the moving party to
pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion that may
include attorneys’ fees, unless the court finds that the making of
the motion was substantially justified or that other circumstances
make an award of expenses unjust. If the motion is granted in part
and denied in part, the court may apportion the reasonable
expenses incurred as a result of making the motion among the
parties and persons.
(b) Failure to Comply with Order.
(1) If a deponent fails to be sworn or to answer a
question after being directed to do so by the court, the failure may
be considered a contempt of the court.
(2) If a party or an officer, director, or managing agent
of a party or a person designated under rule 12.310(b)(6) or
12.320(a) to testify on behalf of a party fails to obey an order to
provide or permit discovery, including an order made under
subdivision (a) of this rule or rule 12.360, the court in which the
action is pending may make any of the following orders:
(A) An order that the matters regarding which the
questions were asked or any other designated facts shall be taken
to be established for the purposes of the action in accordance with
the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient
party to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in
evidence.
(C) An order striking out pleadings or parts of
them or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part of it, or rendering a
judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in
addition to them, an order treating as a contempt of court the
failure to obey any orders except an order to submit to an
examination made under rule 12.360(a)(1)(B) or subdivision (a)(2) of
this rule.
(E) When a party has failed to comply with an
order under rule 12.360(a)(1)(B) requiring that party to produce
another for examination, the orders listed in subdivisions (b)(2)(A)–
(b)(2)(C), unless the party failing to comply shows the inability to
produce the person for examination.
Instead of any of the foregoing orders or in addition to
them, the court must require the party failing to obey the order to
pay the reasonable expenses caused by the failure, which may
include attorneys’ fees, unless the court finds that the failure was
substantially justified or that other circumstances make an award
of expenses unjust. Alternatively, the court may defer ruling on the
party’s motion for sanctions until the conclusion of the matter in
controversy.
(c) Expenses on Failure to Admit. If a party fails to admit
the genuineness of any document or the truth of any matter as
requested under rule 12.370 and if the party requesting the
admissions proves the genuineness of the document or the truth of
the matter, the requesting party may file a motion for an order
requiring the other party to pay the requesting party the reasonable
expenses incurred in making that proof, which may include
attorneys’ fees. The court may issue such an order at the time a
party requesting the admissions proves the genuineness of the
document or the truth of the matter, upon motion by the requesting
party, unless it finds that
(1) the request was held objectionable under rule
12.370(a)(3),
(2) the admission sought was of no substantial
importance, or
(3) there was other good reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for
Inspection. If a party or an officer, director, or managing agent of a
party or a person designated under rule 12.310(b)(6) or 12.320(a) to
testify on behalf of a party fails
(1) to appear before the officer who is to take the
deposition after being served with a proper notice,
(2) to serve answers or objections to interrogatories
submitted under rule 12.340 after proper service of the
interrogatories, or
(3) to serve a written response to a request for
inspection submitted under rule 12.350 after proper service of the
request, the court in which the action is pending may take any
action authorized under subdivisions (b)(2)(A)–(b)(2)(C) of this rule.
Any motion specifying a failure under subdivisions (d)(2) or
(d)(3) must include a certification that the movant, in good faith,
has conferred or attempted to confer with the party failing to
answer or respond in an effort to obtain such answer or response
without court action. Instead of any order or in addition to it, the
court may require the party failing to act to pay the reasonable
expenses caused by the failure, which may include attorneys’ fees,
unless the court finds that the failure was substantially justified or
that other circumstances make an award of expenses unjust. The
failure to act described in this subdivision may not be excused on
the ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as provided by
rule 12.280(d).
(e) Electronically Stored Information; Sanctions for
Failure to Preserve. Absent exceptional circumstances, a court
may not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the
routine, good faith operation of an electronic information system.
(a) Motion for Order Compelling Discovery. On reasonable
notice to other parties and all persons affected, a party may apply
for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a
party may be made to the court in which the action is pending or in
accordance with rule 12.310(d). An application for an order to a
deponent who is not a party must be made to the circuit court
where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under rule 12.310 or 12.320, or a
corporation or other entity fails to make a designation under rule
12.310(b)(6) or 12.320(a), or a party fails to answer an interrogatory
submitted under rule 12.340, or if a party in response to a request
for inspection submitted under rule 12.350 fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested, or if a party in response to a request for
examination of a person submitted under rule 12.360(a) objects to
the examination, fails to respond that the examination will be
permitted as requested, or fails to submit to or to produce a person
in that party’s custody or legal control for examination, or if any
person fails to comply with any discovery request or requirement
under the Florida Family Law Rules of Procedure, including, but not
limited to, the failure to comply with rule 12.285, the discovering
party may move for an order compelling an answer, or a designation
or an order compelling inspection, or an order compelling an
examination in accordance with the request. The motion must
include a certification that the movant, in good faith, has conferred
or attempted to confer with the person or party failing to make the
discovery in an effort to secure the information or material without
court action. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the examination
before applying for an order. If the court denies the motion in whole
or in part, it may make such protective order as it would have been
empowered to make on a motion made under rule 12.280(d).
(3) Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer shall be treated as a
failure to answer.
(4) Award of Expenses of Motion. If the motion is
granted and after opportunity for hearing, the court must require
the party or deponent whose conduct necessitated the motion or the
party or counsel advising the conduct to pay to the moving party
the reasonable expenses incurred in obtaining the order that may
include attorneys’ fees, unless the court finds that the movant failed
to certify in the motion that a good faith effort was made to obtain
the discovery without court action, that the opposition to the
motion was substantially justified, or that other circumstances
make an award of expenses unjust. If the motion is denied and after
opportunity for hearing, the court must require the moving party to
pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion that may
include attorneys’ fees, unless the court finds that the making of
the motion was substantially justified or that other circumstances
make an award of expenses unjust. If the motion is granted in part
and denied in part, the court may apportion the reasonable
expenses incurred as a result of making the motion among the
parties and persons.
(b) Failure to Comply with Order.
(1) If a deponent fails to be sworn or to answer a
question after being directed to do so by the court, the failure may
be considered a contempt of the court.
(2) If a party or an officer, director, or managing agent
of a party or a person designated under rule 12.310(b)(6) or
12.320(a) to testify on behalf of a party fails to obey an order to
provide or permit discovery, including an order made under
subdivision (a) of this rule or rule 12.360, the court in which the
action is pending may make any of the following orders:
(A) An order that the matters regarding which the
questions were asked or any other designated facts shall be taken
to be established for the purposes of the action in accordance with
the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient
party to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in
evidence.
(C) An order striking out pleadings or parts of
them or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part of it, or rendering a
judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in
addition to them, an order treating as a contempt of court the
failure to obey any orders except an order to submit to an
examination made under rule 12.360(a)(1)(B) or subdivision (a)(2) of
this rule.
(E) When a party has failed to comply with an
order under rule 12.360(a)(1)(B) requiring that party to produce
another for examination, the orders listed in subdivisions (b)(2)(A)–
(b)(2)(C), unless the party failing to comply shows the inability to
produce the person for examination.
Instead of any of the foregoing orders or in addition to
them, the court must require the party failing to obey the order to
pay the reasonable expenses caused by the failure, which may
include attorneys’ fees, unless the court finds that the failure was
substantially justified or that other circumstances make an award
of expenses unjust. Alternatively, the court may defer ruling on the
party’s motion for sanctions until the conclusion of the matter in
controversy.
(c) Expenses on Failure to Admit. If a party fails to admit
the genuineness of any document or the truth of any matter as
requested under rule 12.370 and if the party requesting the
admissions proves the genuineness of the document or the truth of
the matter, the requesting party may file a motion for an order
requiring the other party to pay the requesting party the reasonable
expenses incurred in making that proof, which may include
attorneys’ fees. The court may issue such an order at the time a
party requesting the admissions proves the genuineness of the
document or the truth of the matter, upon motion by the requesting
party, unless it finds that
(1) the request was held objectionable under rule
12.370(a)(3),
(2) the admission sought was of no substantial
importance, or
(3) there was other good reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for
Inspection. If a party or an officer, director, or managing agent of a
party or a person designated under rule 12.310(b)(6) or 12.320(a) to
testify on behalf of a party fails
(1) to appear before the officer who is to take the
deposition after being served with a proper notice,
(2) to serve answers or objections to interrogatories
submitted under rule 12.340 after proper service of the
interrogatories, or
(3) to serve a written response to a request for
inspection submitted under rule 12.350 after proper service of the
request, the court in which the action is pending may take any
action authorized under subdivisions (b)(2)(A)–(b)(2)(C) of this rule.
Any motion specifying a failure under subdivisions (d)(2) or
(d)(3) must include a certification that the movant, in good faith,
has conferred or attempted to confer with the party failing to
answer or respond in an effort to obtain such answer or response
without court action. Instead of any order or in addition to it, the
court may require the party failing to act to pay the reasonable
expenses caused by the failure, which may include attorneys’ fees,
unless the court finds that the failure was substantially justified or
that other circumstances make an award of expenses unjust. The
failure to act described in this subdivision may not be excused on
the ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as provided by
rule 12.280(d).
(e) Electronically Stored Information; Sanctions for
Failure to Preserve. Absent exceptional circumstances, a court
may not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the
routine, good faith operation of an electronic information system.