Trenam’s Appellate Newsletter: Bad Discovery Order? Here are a Few of Your Options
You’ve just been ordered to respond to discovery that seeks information that has nothing to do with the claims or defenses in the case, seeks information that would take hundreds of hours and thousands of dollars to compile or seeks information that is highly sensitive and confidential. Alternatively, you’ve been denied discovery that is essential to your case. There are a few things you can do.
1. Ask the Court to Reconsider its Discovery Order. A trial court can reconsider a non-final order, such as a discovery order, at any time. You may supplement your motion with additional legal or factual support, but be mindful of the judge’s patience when making an argument to him or her for the second time. However, if you have a strong position, courts appreciate the opportunity to fix an order before being reversed on appeal.
2. Petition the Appellate Court for a Writ of Certiorari Quashing the Discovery Order. Trial courts have broad discretion when it comes to setting the terms for discovery. That being said, they must still follow the law. Certiorari review comes into play when the trial court has failed to follow the law and the harm caused by the order cannot be fixed by an appeal at the end of the case. For example, if the court ordered you to produce privileged information, the order is appropriate for certiorari review. Once the privileged information is disclosed, it cannot be undone. Certiorari review is typically not granted when a court allows discovery of irrelevant information or information that is overbroad or unduly burdensome to collect.
A petition for writ of certiorari is governed by Florida Rule of Appellate Procedure 9.100 and must be filed within 30 days of the trial court’s order. Unlike an appeal of a final order, your petition must contain your argument for review. So, after you calendar your deadline for the petition, consider the work that will need to go into the petition so your team plans accordingly. Simultaneously with filing your petition, move for a stay of the discovery order. First seek stay relief with the trial court and, if a stay is denied, ask the court that will review your petition for a stay.
3. Appeal the Discovery Order at the End of the Case. You can appeal an unfavorable discovery order at the end of the case along with an appeal of the final order. Because this route doesn’t prevent you from having to respond to the discovery, this option is more likely to be used when you’ve been blocked from obtaining needed discovery and that discovery may have led to a better final decision. Keep in mind the deference given to a trial court’s decision on discovery, which makes it difficult to obtain reversal.
If you’ve lost a battle in discovery, consider whether and when you should seek relief from the appellate court. Be sure to calculate any deadlines for seeking relief while you consider the best course of action.