The Fourth District Court of Appeal sent a word of warning to trial lawyers and courts with an opinion clarifying that corporations are covered by the same protections as the expert witnesses they're affiliated with and shouldn't be subject to methods aimed at stretching the boundaries of discovery.

“We caution trial counsel from employing, and trial courts from approving, novel discovery methods which exceed the limits of authorized discovery,” the opinion said.

The underlying dispute between a plaintiff in a personal injury case and the medical practice employing an expert witness for the defense presented a matter of first impression for the Fourth DCA.

Orthopedic Center of South Florida had asked the court to quash a discovery order from Michael Sode, treated by one of its doctors after he was hit by a van because his bicycle had got caught on some flyaway fencing.

Sode sued a Broward construction company in June 2017 but instead of seeking information from the doctor who performed his compulsory medical exam, the plaintiff subpoenaed Orthopedic Center of South Florida, asking for a variety of information about the practice, including its business model, revenue history, consulting and marketing practices, and the names of everyone with ownership interest and how they profit from the business.

The center argued the plaintiffs' requests for specific financial information “for reference purposes only” were invasive and beyond the scope of permissible discovery under Florida's Rules of Civil Procedure.

But Sode argued it was fair game because corporations aren't entitled to the same subpoena protections as their individual experts.

The Fourth DCA disagreed, finding that the discovery methodology was improper and granted a protective order for the orthopedic center. Plaintiffs attorneys Andrew A. Harris of Burlington & Rockenbach in West Palm Beach and Thomas H. Leeder of Leeder Law in Plantation did not respond to requests for comment by deadline.

The court looked to Elkins v. Syken, where the Florida Supreme Court “recognized the necessity of striking a balance between a party's need for information to demonstrate a medical expert's potential bias, with the expert's right to be free from burdensome and intrusive discovery requests.”

From that, Rule 1.280(b)(5) was born, limiting discovery from experts who are hired by one party.

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'Wheel it back in'

It was a battle the orthopedic center “felt it was necessary to fight,” according to its attorney, Richard A. Jarolem of Traub Lieberman Straus & Shrewsberry in Palm Beach Gardens. Jarolem, who represents various expert witnesses, said this case is an extreme example of the “gamesmanship” he often sees in discovery, especially involving financial information and experts' past testimony in other cases.

“Almost every day I see discovery requests that are what I believe beyond the scope of Rule 1.280(b)(5) and Elkins,” Jarolem said.

Jarolem conceded that plaintiffs and defense attorneys are expected to zealously represent their clients by going after as much information as possible, but said he was glad the court drew a line.

“Although we're not happy with seeing this, we certainly understand why the boundaries of discovery are constantly being pushed,” Jarolem said. “We just have to make sure that, when things like this come up, we try and wheel it back in to the designed boundaries under the rule and under the case law.”

Fourth DCA Judge Burton C. Conner wrote the opinion, backed by Judges Dorian K. Damoorgian and Spencer D. Levine. Chief Judge Melanie G. May concurred specially.

Read the opinion:

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