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Appeal of Discovery Order — Not so Easy!

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers).  It may not occur in every case, but it will occur.  There is no such thing as discovery orders always going in your favor.  Not possible.  Some discovery orders entered against you are understandable.  Others lead to a certain amount of frustration.  And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice.  

The appeal of a discovery order, however, is through a petition for writ of certiorari where you MUST show an error by the trial court that is a: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.”  Katz v. Riemer, 45 Fla.L.Weekly D1093a (Fla. 3d DCA 2020) (citation omitted).  The appealing party must show they are irreparably harmed that CANNOT be remedied on a post-judgment appeal.  Id

When discovery is denied, it is very difficult to show the irreparable harm necessary to support a petition for writ of certiorari.  Id.   “[O]nly where the requested discovery ‘is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim,’ is relief by writ of certiorari appropriate.”  Id. (citation omitted).  This is not an easy task!

For example, in Katz, the trial court denied discovery the defendant’s sought. The defendant filed a petition for writ of certiorari.  The defendant claimed the denial of the discovery irreparably harmed it because it eviscerated an affirmative defense. 

To determine whether the denial of discovery eviscerated the defendant’s affirmative defense, “courts must look at the legal elements of the petitioner’s defenses, compare them with the discovery the trial court has granted, and also review the complaint.”  Katz, supra (internal citation omitted).  “Further, the discovery sought must be ‘relevant to the issues as framed by the pleadings.’”  Id. (citation omitted).

The appellate court in Katz denied the defendant’s petition for writ of certiorari. The defendant’s defense was not eviscerated by the denial of discovery per the trial court’s order.  The appellate court found that the discovery did not seem to go to any affirmative defense, the record provided to the appellate court did not even include the defendant’s answer and affirmative defenses, and the transcript from the discovery hearing showed that the defendant did not raise the defense at the hearing.  Moreover, the appellate court stated that the discovery sought was not framed by the allegations in the complaint.

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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