In In re Amendments to Florida Rules of Civil Procedure, the Florida Supreme Court amended several rules of civil procedure related to case management and discovery after receiving public comments on the proposed amendments, including from the Florida Justice Reform Institute. Indeed, the Court took one of the Institute’s suggestions—imposing proportionality in discovery—over objections by a majority of the Florida Bar’s rules committee that had put forward the initial rule proposals for the Court’s consideration.
This proceeding began when the Florida Bar’s Civil Procedure Rules Committee (the “Committee”) filed a report with two alternative proposals to codify active case management in the Florida Rules of Civil Procedure in response to the Florida Supreme Court’s request that the Committee make such proposals. The Committee’s proposals were largely geared toward ensuring the timely progression of cases, with a focus on having the parties adhere to deadlines established early in the case and requiring initial disclosures of pertinent information.
A minority of the Committee favored adopting the proportionality language included in Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Put simply, proportionality is the common-sense consideration of what magnitude of discovery makes sense in a case given the issues involved and the often astronomical cost of discovery. The majority of the Committee, however, “decided not to include proportionality” in the proposals it submitted to the Court, for the stated reasons that the workgroup initially created to make recommendations on rule changes “did not recommend adding proportionality,” the Court’s referral letter to the Committee did not request that the Committee address proportionality, and, purportedly, “proportionality [was] already addressed in other parts of the civil rules.”
In its comment, the Institute recommended that the Court revise Florida Rule of Civil Procedure 1.280 to state expressly that discovery must be proportional to the needs of the case, in line with the comparable federal rule. The Institute disagreed with the Committee’s suggestion that consideration of proportionality was beyond the Court’s call in addressing case management, as it is the one change to the rules “that might actually address the burdensomeness of discovery in civil cases.”
Although proportionality was expressly not recommended by the Committee, the Court made the Institute’s proposed change to Rule 1.280 in a May 23 decision with little discussion. While the amended rules take effect January 1, 2025, the Court said that, because the amendments adopted were substantially different than either alternative submitted by the Committee, interested persons would have 75 days from the date of the opinion—or until August 6, 2024—to file comments with the Court regarding the rule amendments. In a separate opinion, Justice Labarga dissented to incorporating proportionality, stating that he would prefer to refer the issue back to the Committee for additional consideration before amending the rule to include that language.
The Florida Justice Reform Institute was represented by William W. Large.