By Ursula Ungaro, Carl Goldfarb, and Brittany Zoll
Boies Schiller Flexner’s Ursula Ungaro, Carl Goldfarb, and Brittany Zoll say the state’s civil procedure amendments emphasize resolving cases efficiently but introduce limits to conducting discovery.
A potential discovery pitfall awaits the unwary after the amendments to the Florida Rules of Civil Procedure went into effect this year. The amended rules have received considerable publicity, but the pitfall hasn’t.
Unlike the federal rule that ties commencement of discovery to an initial discovery conference, the new Florida rule ties the commencement of discovery to providing initial disclosures, which means that a party that completes its initial disclosures first can also serve discovery first. Initial disclosures must be made within 60 days of service of the complaint.
Other new rules also require courts to set a trial date through a case management order early in the proceedings and strongly discourage continuances. As a result, a party that waits the full 60 days to complete its initial disclosures has less time to conduct discovery than a party that makes its initial disclosures promptly.
Florida Rules of Civil Procedure 1.340(a)(9), 1.350(b)(3), and 1.370 all provide that a plaintiff may serve discovery at any time and that the defendant must respond in 30 days unless the discovery is served with service of process and the initial pleading, in which case the defendant must respond in 45 days.
But pursuant to the amended Rule 1.280(f), plaintiffs are no longer allowed to serve discovery requests with the initial pleading and demand the defendants to respond in 45 days. Nor can plaintiffs or defendants serve discovery requests once the initial pleading has been filed and demand the opposing party respond with 30 days—unless the party serving the discovery has satisfied its “initial disclosure obligations,” with limited exceptions.
Rule 1.280(a)(1)’s initial disclosures are similar to those in Federal Rule of Civil Procedure 26(a)(1)(A) and require, among other things, disclosure of the name and contact information of individuals likely to have discoverable information, a description of all documents the disclosing party may use to support its claims or defenses, a computation of damages, and relevant insurance policies.
These disclosures must be made within 60 days after service of the complaint unless a different time is ordered by the court. And pursuant to subsection (f)(1), until a party makes its disclosures, it may not seek discovery from “any source” unless the case is exempt or if authorized by stipulation or court order.
This means a plaintiff can’t simply serve discovery with the complaint and require a defendant to respond within 45 days, as sophisticated counsel recently did in a case where the authors of this article represented one of the defendants. Any other construction of the rules nullifies Rule 1.280(f). Notably, if a plaintiff or defendant wants to serve early discovery, they can do so by promptly completing their initial disclosures.
Florida courts have yet to address the conflict among these rules, but we believe the clear reading of the amended Florida rules indicate that Rule 1.280(f) trumps the timing provisions in Rules 1.340(a)(9), 1.350(b)(3), and 1.370, which govern interrogatories, requests for production, and requests for admission, for at least two reasons.
First, in amending Florida Rule of Civil Procedure 1.280, the Florida Supreme Court specifically stated that it was amending Rule 1.280(f) to make clear that providing initial disclosures was a prerequisite to serving discovery. Second, our interpretation is consistent with the central thrust of the recent amendments to the Florida Rules of Civil Procedure, which aimed to bring the state discovery rules closer in line with the Federal Rules of Civil Procedure.
Tellingly, Federal Rule of Civil Procedure 26(d)(1) states a party can’t seek discovery from “any source” until the parties have conferred, and Florida Rule of Civil Procedure 1.280(f) similarly prohibits seeking discovery from “any source” until the propounding party has made its initial disclosures. The use of the identical “any source” phrase reinforces our conclusion that the amended Florida rule prohibits discovery until the applicable prerequisite is satisfied, just as the governing federal rule does.
Our construction also is consistent with the spirit of the amendments, which aim to ensure cases proceed to trial without undue delay and wasteful discovery. Florida Rule of Civil Procedure 1.200, which governs pretrial procedure and case management, was amended to specify the “court must issue the case management order no later than 120 days after commencement of the action.”
Courts will now assign all civil cases to one of three alternative management tracks—complex, general, or streamlined. For the longest track, the trial date must be set no later than 24 months from the case management conference, which must be held within 60 days of the order declaring the case complex. For streamlined and general cases, the schedule will be tighter and must be “consistent with administrative orders entered by the chief judge of the circuit.”
Rule 1.440 has been amended to remove the requirement that a matter be at issue—that is, that the pleadings are closed, before it can be scheduled for trial, thereby allowing a trial date to be set early in the case.
Rule 1.460 was amended to say motions to continue trial are “disfavored and should rarely be granted and then only upon good cause shown.” The rule governing summary judgment motions, Rule 1.510, was modified to tie the deadline for moving for summary judgment deadline to the Case Management Order, whereas before the briefing schedule was tied to the summary judgment hearing date, which was set much later in the case.
Collectively, the new rules mean timing matters more than ever. As attorneys adapt to the new requirements, they should put a premium on making initial disclosures and commencing discovery promptly as litigants face a shorter runway to get their cases ready for summary judgment and trial.
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Reproduced with permission. Copyright May 16, 2025 by Bloomberg Industry Group, Inc. (800-372-1033) http://www.bloombergindustry.com.