Discovery Sanctions not Appropriate

The Third DCA recently held that a trial court erred in giving an adverse instruction based on a corporation’s failure to locate former employees in response to a 1.310(b)(6) deposition of a corporate representative. Bechtel Corp. v. Batchelor, 43 Fla. L.Weekly D40 (Fla. 3d DCA, December 27, 2017). The appellate court acknowledged that the rule requires the corporate representative to prepare for matters that are “reasonably available” whether from documents, former employees or other sources. However, when the incident in question was more than 30 years ago and the depo was set on short notice, it was not reasonable to expect the corporation to contact persons who were employed thirty years ago who might have knowledge.

The appellate court also found error because the corporation was not subject to a court order compelling the discovery. The normal rule is that “[a] sanction remedy for failure to allow discovery is legally unavailable to a party until the opposing party is first subject to and violates an order to provide such discovery.” Saewitzv. Saewitz, 79 So. 3d 831, 835 (Fla. 3d DCA 2012). See also Chmura v. Sam Rodgers Props., Inc., 2 So. 3d 984, 987 (Fla. 2d DCA 2008) (“Where a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate.”) (quoting Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004)).

Practical application:

#Always review 1.310 (b)(6) and Carriage Hills, 109 So.3d 329 (Fla. 4th DCA 2013) prior to preparing your client for a corporate representative depo and remember that your efforts are limited to information that is “reasonably available”.
#Object to any request for a discovery sanction if the opposing party has not sought and obtained an order compelling the discovery.