There are few certainties on the Florida Bar Exam. So many subjects are tested and much of preparing requires taking reasonable risks by gambling on which subjects are more likely to appear based on available data. One certainty, though, is that Florida Civil Procedure will show up.
An area to know well is discovery. In Florida, a deposition of a nonparty requires a subpoena to compel the nonparty's attendance. Depositions may be taken orally or by written questions.
Defendant may provide notice of deposition without court order at any time after served with the complaint. In contrast, plaintiff may not take a deposition within 30 days after service of the complaint except with leave of court or without leave of court but only if the notice states that the person to be examined will go outside the reach of the subpoena power before the 30-day period ends. An early deposition such as this, however, may not be used against a party who is unable to obtain counsel during that time.
Plaintiff must generally go to where the action is pending for the deposition. Defendant's deposition is usually taken at defendant's county of residence or business if it differs from where the action is pending. A corporate defendant's deposition is usually taken at its principal place of business, and a nonparty who is a resident of Florida may be compelled to appear for a deposition only in the county in which the non-party resides, is employed, or transacts business in person. In contrast, a nonparty who resides outside the state of Florida may be deposed only in the county in which that nonparty was served with a subpoena or as fixed by court order. In all instances, depositions must be relevant to the subject matter of the action and cannot be privileged.
Evidence objected to during a deposition is taken subject to the objection. Any error that might have been cured if the objection had been made is waived if not made at the deposition. However, objections to competency of witnesses as well as competency, relevancy, or materiality of testimony and evidentiary rules such as hearsay and best evidence are not waived even if those objections are not made before or during deposition.
Depositions may be used for a variety of purposes at trial. The deposition testimony of a party may be used by an adverse party for any purpose, and the deposition of any person (party or nonparty) may be used by any party to impeach or contradict the deponent as a witness. In addition, the deposition testimony of a any person (party or nonparty) may be used by any party for any purpose if the court finds that the witness is dead or at the time of the hearing or trial is more than 100 miles from its location or is out of state. The same is true if the party or nonparty is unavailable due to illness, infirmity, age, or imprisonment. Lastly, the deposition testimony may be used for any purpose if the following is true: the party or nonparty was unable to be subpoenaed; the party or nonparty is subpoenaed but refuses to appear; or if other circumstances justify use of deposition testimony only.
If part of the deposition is offered by a party, any adverse party may require that party to introduce any other part that in fairness ought to be considered. If a party is substituted or if the case is first dismissed and then refiled, any previously taken deposition may be used.
Another avenue for discovery is interrogatories. Written interrogatories may be served on any other party to the lawsuit. The party receiving the interrogatories will then have 30 days to either answer or object. (The defendant will have 45 days after service of the complaint.) Answers are signed by the party and objections are signed by the attorney. When interrogatories are directed towards an organization, answers may be given by an officer of the organization or by an agent designated by the party.
Interrogatories in Florida may not exceed 30 questions unless the court on motion and for good cause allows a greater number. If challenged, the proponent of the interrogatories exceeding 30 has the burden of justifying the additional questions.
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