RULE 8.245. DISCOVERY

(a) Scope of Discovery. Unless otherwise limited by the
court in accordance with these rules, the scope of discovery is as
follows:

(1) In General. Parties may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter of
the pending action, whether it relates to the claim or defense of the
party seeking discovery or the claim or defense of any other party,
including the existence, description, nature, custody, condition, and
location of any books, documents, or other things, whether stored
in a paper or electronic format, and the identity and location of
persons having knowledge of any discoverable matter. It is not
ground for objection that the information sought will be
inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence.

(2) Claims of Privilege or Protection of Trial Preparation
Materials. When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or
subject to protection as trial preparation material, the party must
make the claim expressly and describe the nature of the document,
communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected, will
allow other parties to assess the applicability of the privilege or
protection.

(b) Required Disclosure.

(1) At any time after the filing of a shelter petition, a
petition alleging a child to be a dependent child, or a petition for
termination of parental rights, on written demand of any party, the
party to whom the demand is directed must disclose and permit
inspecting, copying, testing, or photographing matters material to
the cause. If the child had no living parent with intact parental
rights at the time the dependency allegations arose, then the person
who was serving as the legal custodian of the child at that time is
entitled to obtain discovery during the pendency of a shelter or
dependency petition.

(2) The following information must be disclosed by any
party on demand:

(A) The names and addresses of all persons
known to have information relevant to the proof or defense of the
petition’s allegations.
(B) The statement of any person furnished in
compliance with the preceding paragraph. The term “statement”
means a written statement made by this person and signed or
otherwise adopted or approved by the person, or a stenographic,
mechanical, electronic, or other recording, or a transcript of it, or
that is a substantially verbatim recital of an oral statement made by
this person to an officer or agent of the state and recorded
contemporaneously with the making of the oral statement. The
court may prohibit any party from introducing in evidence the
material not disclosed, to secure and maintain fairness in the just
determination of the cause.

(C) Any written or recorded statement and the
substance of any oral statement made by the demanding party or a
person alleged to be involved in the same transaction. If the number
of oral statements made to any person are so numerous that, as a
practical matter, it would be impossible to list the substance of all
the oral statements, then the party to whom the demand is directed
will disclose that person’s identity and the fact that this person has
knowledge of numerous statements. This disclosure will allow the
demanding party to depose that person.

(D) Papers or objects belonging to the demanding
party that are to be used at the adjudicatory hearing.

(E) Reports or statements of experts, including
results of physical or mental examinations and of scientific tests,
experiments, or comparisons.

(3) The disclosures required by subdivision (b) of this
rule must be made within 10 days from the receipt of the demand
for them. Disclosure may be made by allowing the requesting party
to review the files of the party from whom discovery is requested
after redaction of nondiscoverable information.

(c) Limitations on Disclosure.

(1) On application, the court may deny or partially
restrict disclosure authorized by this rule if it finds there is a
substantial risk to any person of physical harm, intimidation,
bribery, economic reprisals, or unnecessary annoyance or
embarrassment resulting from the disclosure, that outweighs any
usefulness of the disclosure to the party requesting it.

(2) Disclosure must not be required of legal research or
of records, correspondence, or memoranda, to the extent that they
contain the opinion, theories, or conclusions of the parties’
attorneys or members of their legal staff.

(d) Production of Documents and Things for Inspection
and Other Purposes.

(1) Request; Scope. Any party may request any other
party:

(A) to produce and permit the party making the
request, or someone acting on the requesting party’s behalf, to
inspect and copy any designated documents, including writings,
drawings, graphs, charts, photographs, phono-records, and other
data compilations from which information can be obtained,
translated, if necessary, whether stored in paper or electronic
format, by the party to whom the request is directed through
detection devices into reasonably usable form, that constitute or
contain matters within the scope of subdivision (a) and that are in
the possession, custody, or control of the party to whom the request
is directed; and

(B) to inspect and copy, test, or sample any things
that constitute or contain matters within the scope of subdivision
(a) and that are in the possession, custody, or control of the party to
whom the request is directed.

(2) Procedure. Without leave of court the request may
be served on the petitioner after commencement of proceedings and
on any other party with or after service of the summons and initial
petition on that party. The request must set forth the items to be
inspected, either by individual item or category, and describe each
item and category with reasonable particularity. The request must
specify a reasonable time, place, and manner of making the
inspection or performing the related acts. The party to whom the
request is directed must serve a written response within 15 days
after service of the request, except that a respondent may serve a
response within 30 days after service of the process and initial
pleading on that respondent. The court may allow a shorter or
longer time. For each item or category the response must state that
inspection and related activities will be permitted as requested
unless the request is objected to, in which event the reasons for the
objection must be stated. If an objection is made to part of an item
or category, the part must be specified. When producing
documents, the producing party must either produce them as they
are kept in the usual course of business or identify them to
correspond with the categories in the request. The party submitting
the request may move for an order under subdivision (k) concerning
any objection, failure to respond to the request, or any part of it, or
failure to permit inspection as requested.

(3) Persons Not Parties. This rule does not preclude an
independent action against a person not a party for production of
documents and things.

(4) Filing of Documents. Unless required by the court, a
party must not file any of the documents or things produced with
the response. Documents or things may be filed only when they
should be considered by the court in determining a matter pending
before the court.

(e) Production of Documents and Things Without
Deposition.

(1) Request; Scope. A party may seek inspection and
copying of any documents or things within the scope of subdivision
(d)(1) from a person who is not a party by issuance of a subpoena
directing the production of the documents or things when the
requesting party does not seek to depose the custodian or other
person in possession of the documents or things.

(2) Procedure. A party desiring production under this
rule must serve notice on every other party of the intent to serve a
subpoena under this rule at least 10 days before the subpoena is
issued if service is by delivery or email and 15 days before the
subpoena is issued if service is by mail. The proposed subpoena
must:

(A) be attached to the notice and state the time,
place, and method for production of the documents or things, and
the name and address of the person who is to produce the
documents or things, if known, and if not known, a general
description sufficient to identify the person or the particular class
or group to which the person belongs;

(B) include a designation of the items to be
produced; and

(C) state that the person who will be asked to
produce the documents or things has the right to object to the
production under this rule and that the person will not be required
to surrender the documents or things.

A copy of the notice and proposed subpoena must not be furnished
to the person on whom the subpoena is to be served. If any party
serves an objection to production under this rule within 10 days of
service of the notice, the documents or things must not be produced
under this rule and relief may be obtained under subdivision (g).

(3) Subpoena. If no objection is made by a party under
subdivision (e)(2), an attorney of record in the action may issue a
subpoena or the party desiring production must deliver to the clerk
for issuance a subpoena and a certificate of counsel or pro se party
that no timely objection has been received from any party. The clerk
must issue the subpoena and deliver it to the party desiring
production. The subpoena must be identical to the copy attached to
the notice, specify that no testimony may be taken, and require only
production of the documents or things specified in it. The subpoena
may give the recipient an option to deliver, electronically serve, or
mail legible copies of the documents or things to the party serving
the subpoena. The person on whom the subpoena is served may
condition the preparation of copies on the payment in advance of
the reasonable costs of preparing the copies. The subpoena must
require production only in the county of the residence of the
custodian or other person in possession of the documents or things
or in the county where the documents or things are located or
where the custodian or person in possession usually conducts
business. If the person on whom the subpoena is served objects at
any time before the production of the documents or things, the
documents or things must not be produced under this rule, and
relief may be obtained under subdivision (g).

(4) Copies Furnished. If the subpoena is complied with
as provided in subdivision (e)(3), the party receiving the copies must
furnish a legible copy of each item furnished to any other party who
requests it on the payment of the reasonable cost of preparing the
copies.

(5) Independent Action. This rule does not affect the
right of any party to bring an independent action for production of
documents and things.

(f) Protective Orders. On motion by a party or by the
person from whom discovery is sought, and for good cause shown,
the court in which the action is pending may make any order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense that justice requires,
including one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified
terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the
scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present
except persons designated by the court;
(6) that a deposition after being sealed be opened only
by order of the court;

(7) that confidential research or information not be
disclosed or be disclosed only in a designated way; and

(8) that the parties simultaneously file specified
documents or information enclosed in sealed envelopes to be
opened as directed by the court.

If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just,
order that any party or person provide or permit discovery.

(g) Depositions.

(1) Time and Place.

(A) At any time after the filing of the petition
alleging a child to be dependent or a petition for termination of
parental rights, any party may take the deposition on oral
examination of any person who may have information relevant to
the allegations of the petition.

(B) The deposition must be taken in a building in
which the adjudicatory hearing may be held, in another place
agreed on by the parties, or where the trial court may designate by
special or general order. A resident of the state may be required to
attend an examination only in the county in which the resident
resides, is employed, or regularly transacts business in person.

(2) Procedure.

(A) The party taking the deposition must give
written notice to each other party. The notice must state the time
and place the deposition is to be taken and the name of each person
to be examined.
(B) Subpoenas for taking depositions must be
issued by the clerk of the court, the court, or any attorney of record
for a party.

(C) After notice to the parties the court, for good
cause shown, may extend or shorten the time and may change the
place of taking.

(D) Except as otherwise provided by this rule, the
procedure for taking the deposition, including the scope of the
examination and obtaining protective orders, must be the same as
that provided by the Florida Rules of Civil Procedure.

(3) Use of Deposition. Any deposition taken under this
rule may be used at any hearing covered by these rules by any
party for the following purposes:

(A) For the purpose of impeaching the testimony
of the deponent as a witness.

(B) For testimonial evidence, when the deponent,
whether or not a party, is unavailable to testify because of one or
more of the following reasons:

(i) The witness is dead.

(ii) The witness is at a greater distance than
100 miles from the place of hearing or is out of the state, unless it
appears that the absence of the witness was procured by the party
offering the deposition.

(iii) The party offering the deposition has
been unable to procure the attendance of the witness by subpoena.

(iv) The witness is unable to attend or testify
because of age, illness, infirmity, or imprisonment.

(v) It has been shown on application and
notice that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.

(vi) The witness is an expert or skilled
witness.

(4) Use of Part of Deposition. If only part of a deposition
is offered in evidence by a party, an adverse party may require the
party to introduce any other part that in fairness ought to be
considered with the part introduced, and any party may introduce
any other parts.

(5) Refusal to Obey Subpoena. A person who refuses to
obey a subpoena served on the person for the taking of a deposition
may be adjudged in contempt of the court from which the subpoena
issued.

(6) Limitations on Use. Except as provided in
subdivision (3), no deposition must be used or read in evidence
when the attendance of the witness can be procured. If it appears to
the court that any person whose deposition has been taken has
absented himself or herself by procurement, inducements, or
threats by or on behalf of any party, the deposition must not be
read in evidence on behalf of that party.

(h) Perpetuating Testimony Before Action or Pending
Appeal.

(1) Before Action.

(A) Petition. A person who desires to perpetuate
the person’s own testimony or that of another person regarding any
matter that may be cognizable in any court of this state may file a
verified petition in the circuit court in the county of the residence of
any expected adverse party. The petition must be titled in the name
of the petitioner and show:

(i) that the petitioner expects to be a party
to an action cognizable in a court of Florida, but is presently unable
to bring it or cause it to be brought;
(ii) the subject matter of the expected action
and the person’s interest in it;

(iii) the facts that the person desires to
establish by the proposed testimony and the reasons for desiring to
perpetuate it;

(iv) the names or a description of the persons
expected to be adverse parties and their names and addresses so
far as known; and

(v) the names and addresses of the persons
to be examined and the substance of the testimony expected to be
elicited from each and asking for an order authorizing the petitioner
to take the deposition of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.

(B) Notice and Service. The petitioner must serve a
notice on each person named in the petition as an expected adverse
party, with a copy of the petition, stating that the petitioner will
apply to the court at a time and place in the notice for an order
described in the petition. At least 20 days before the date of the
hearing, the notice must be served either within or without the
county in the manner provided by law for serving of summons.
However, if service cannot with due diligence be made on any
expected adverse party named in the petition, the court may order
service by publication or otherwise and must appoint an attorney
for persons not served in the manner provided by law for service of
summons. The attorney must represent the adverse party and, if he
or she is not otherwise represented, must cross-examine the
deponent.

(C) Order and Examination. If the court is
satisfied that the perpetuation of the testimony may prevent a
failure or delay of justice, it must make an order designating or
describing the persons whose depositions may be taken and
specifying the subject matter of the examination and whether the
deposition must be taken on oral examination or written
interrogatories. The deposition may then be taken in accordance
with these rules and the court may make orders in accordance with
the requirements of these rules. For the purpose of applying these
rules to depositions for perpetuating testimony, each reference in
them to the court in which the action is pending must be deemed to
refer to the court in which the petition for the deposition was filed.

(D) Use of Deposition. If a deposition to perpetuate
testimony is taken under these rules, it may be used in any action
involving the same subject matter subsequently brought in any
court of Florida in accordance with the provisions of subdivision
(g)(3).

(2) Pending Appeal. If an appeal has been taken from a
judgment of any court or before the taking of an appeal if the time
for it has not expired, the court in which the judgment was
rendered may allow the taking of the depositions of witnesses to
perpetuate their testimony for use in further proceedings in the
court. In such case, the party who desires to perpetuate the
testimony may move for leave to take the deposition on the same
notice and service as if the action were pending in the court. The
motion must show the names and addresses of persons to be
examined, the substance of the testimony expected to be elicited
from each, and the reasons for perpetuating the testimony. If the
court finds that the perpetuation is proper to avoid a failure or
delay in justice, it may make orders as provided for by this rule and
the deposition may then be taken and used in the same manner
and under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the court.

(3) Perpetuation Action. This rule does not limit the
power of a court to entertain an action to perpetuate testimony.

(i) Rules Governing Depositions of Children Under 18.

(1) The taking of a deposition of a child witness or
victim under the age of 18 may be limited or precluded by the court
for good cause shown.

(2) The court, after proper notice to all parties and an
evidentiary hearing, based on good cause shown, may set
conditions for the deposition of a child under the age of 18
including:

(A) designating the place of the deposition;

(B) designating the length of time of the
deposition;

(C) permitting or prohibiting the attendance of any
person at the deposition;

(D) requiring the submission of questions before
the examination;

(E) choosing a skilled interviewer to pose the
questions;

(F) limiting the number or scope of the questions
to be asked; or

(G) imposing any other conditions the court feels
are necessary for the protection of the child.

(3) Good cause is shown based on, but not limited to,
one or more of the following considerations:

(A) The age of the child.

(B) The nature of the allegations.

(C) The relationship between the child victim and
the alleged abuser or the relationship of the child to the parties in
the case.

(D) The child has undergone previous interviews
for the purposes of criminal or civil proceedings that were recorded
either by videotape or some other manner of recording and the
requesting party has access to the recording.

(E) The examination would adversely affect the
child.
(F) The manifest best interests of the child require
the limitations or restrictions.

(4) The court, in its discretion, may order the
consolidation of the taking of depositions of a child under the age of
18 when the child is the victim or witness in a pending proceeding
arising from similar facts or circumstances.

(j) Supplemental Discovery. If, subsequent to compliance
with these rules, a party discovers additional witnesses, evidence,
or material that the party would have been under a duty to disclose
or produce at the time of the previous compliance, the party must
promptly disclose or produce such witnesses, evidence, or material
in the same manner as required under these rules for initial
discovery.

(k) Sanctions.

(1) If at any time during the course of the proceedings,
it is brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or with an order issued
under an applicable discovery rule, the court may:

(A) order the party to comply with the discovery or
inspection of materials not previously disclosed or produced;

(B) grant a continuance;

(C) order a new hearing;

(D) prohibit the party from calling a witness not
disclosed or introducing in evidence the material not disclosed; or

(E) enter an order that it deems just under the
circumstances.

(2) Willful violation by counsel of an applicable
discovery rule or an order issued under it may subject counsel to
appropriate sanction by the court.
Committee Notes
1991 Amendment. (a)(1) Termination of parental rights
proceedings have been added to discovery procedures.