Fl. R. Civ. P. 1.380

As amended through January 1, 2025

Rule 1.380 - FAILURE TO MAKE DISCOVERY; SANCTIONS

(a) Motion for Order Compelling Discovery. On reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:

(1)Appropriate Court. An application for an order to a party may be made to the court in which the action is pending or in accordance with rule 1.310(d). An application for an order to a deponent who is not a party must be made to the circuit court where the deposition is being taken.

(2)Motion.

(A) If a party fails to make a disclosure required by rule 1.280(a), any other party may move to compel disclosure and for appropriate sanctions.

(B) The discovering party may move for an order compelling an answer if:

(i) a deponent fails to answer a question propounded or submitted under rule 1.310 or 1.320; or

(ii) a party fails to answer an interrogatory submitted under rule 1.340.

(C) The discovering party may move for an order compelling a designation if a corporation or other entity fails to make a designation under rule 1.310(b)(6) or 1.320(a).

(D) The discovering party may move for an order compelling an inspection if a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested.

(E) The discovering party may move for an order compelling an examination if a party:

(i) in response to a request for examination of a person submitted under rule 1.360(a) objects to the examination;

(ii) fails to respond that the examination will be permitted as requested;

(iii) fails to submit to examination; or

(iv) fails to produce a person in that party's custody or legal control for examination

(F) A discovering party may move for an order compelling a response if a party fails to produce documents and things under rule 1.350(b).

(G) When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

(H) If the court denies the motion in whole or in part, it may make the protective order as it would have been empowered to make on a motion made under rule 1.280(d).

(3)Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is treated as a failure to answer.

(4)Award of Expenses of Motion.

(A) If the motion is granted and after opportunity for hearing, the court must require the party or deponent whose conduct necessitated the motion, or the party or counsel advising the conduct, to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys' fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust.

(B) If the motion is denied and after opportunity for hearing, the court must require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(C) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.

(b) Failure to Comply with Order.

(1) If, after being ordered to do so by the court, a deponent fails to be sworn or to answer a question or produce documents, the failure may be considered a contempt of the court.

(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:

(A) An order that the matters regarding which the questions were asked or any other designated facts will be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.

(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.

(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made under rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.

(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in subdivisions (b)(2)(A), (b)(2)(B), (b)(2)(C), and (b)(2)(D) of this rule, unless the party failing to comply shows the inability to produce the person for examination.

(3) Instead of any of the foregoing orders or in addition to them, the court must require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys' fees. The court must issue the order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, on motion by the requesting party, unless it finds that:

(1) the request was held objectionable under rule 1.370(a);

(2) the admission sought was of no substantial importance; or

(3) there was other good reason for the failure to admit.

(d) Failure to Disclose or to Supplement an Earlier Response. If a party fails to provide information or identify a witness as required by rule 1.280(a) or (g), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(1) may order payment of the reasonable expenses, including attorneys' fees, caused by the failure;

(2) may inform the jury of the party's failure; and

(3) may impose other appropriate sanctions, including any of the orders listed in rule 1.380(b)(2)(A)-(b)(2)(D).

(e) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection.

(1) The court in which the action is pending may take any action authorized under subdivisions (b)(2)(A)-(b)(2)(C) of this rule if a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails:

(A) to appear before the officer who is to take the deposition after being served with a proper notice;

(B) to serve answers or objections to interrogatories submitted under rule 1.340 after proper service of the interrogatories; or

(C) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request.

(2) Any motion specifying a failure under subdivisions (e)(1)(B) or (e)(1)(C) must include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain the answer or response without court action.

(3) Instead of any order or in addition to it, the court must require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(4) The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 1.280(d).

(f) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) on finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only on a finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Fl. R. Civ. P. 1.380

Amended by 2024 WL 4983566, effective 1/1/2025; amended by 292 So. 3d 660, effective 1/1/2020; amended by 131 So.3d 643, effective 1/1/2014; amended by 95 So.3d 76, effective 9/1/2012; amended by 917 So.2d 176, effective 1/1/2006; amended by 858 So.2d 1013, effective 1/1/2004; amended by 682 So.2d 105, effective 1/1/1997; amended by 536 So.2d 974, effective 1/1/1989; amended by 458 So.2d 245, effective 1/1/1985; amended by 265 So.2d 21, effective 1/1/1973.

Committee Notes

1972 Amendment. Derived from Federal Rule of Civil Procedure 37 as amended in 1970. Subdivision (a)(3) is new and makes it clear that an evasive or incomplete answer is a failure to answer under the rule. Other clarifying changes have been made within the general scope of the rule to ensure that complete coverage of all discovery failures is afforded.

2003 Amendment. Subdivision (c) is amended to require a court to make a ruling on a request for reimbursement at the time of the hearing on the requesting party's motion for entitlement to such relief. The court may, in its discretion, defer ruling on the amount of the costs or fees in order to hold an evidentiary hearing whenever convenient to the court and counsel.

2005 Amendment. Following the example of Federal Rule of Civil Procedure 37 as amended in 1993, language is included in subdivision (a)(2) that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with the federal rule as well as similar local rules of state trial courts. Subdivision (a)(4) is revised to provide that a party should not be awarded its expenses for filing a motion that might have been avoided by conferring with opposing counsel. Subdivision (d) is revised to require that, where a party failed to file any response to a rule 1.340 interrogatory or a rule 1.350 request, the discovering party should attempt to obtain such responses before filing a motion for sanctions.

2012 Amendment. Subdivision (e) is added to make clear that a party should not be sanctioned for the loss of electronic evidence due to the good-faith operation of an electronic information system; the language mirrors that of Federal Rule of Civil Procedure 37(e). Nevertheless, the good-faith requirement contained in subdivision (e) should prevent a party from exploiting the routine operation of an information system to thwart discovery obligations by allowing that operation to destroy information that party is required to preserve or produce. In determining good faith, the court may consider any steps taken by the party to comply with court orders, party agreements, or requests to preserve such information.

2013 Amendment. This rule was amended to add "substantially" before "justified" in subdivisions (a)(4), (b)(2), and (d), to make the rule internally consistent and to make it more consistent with Federal Rule of Civil Procedure 37, from which it was derived.

2019 Amendment. Subdivision (e) of this rule was amended to make it consistent with Federal Rule of Civil Procedure 37(e).