The trial judge has the weapons to combat discovery

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THE TRIAL JUDGE HAS THE WEAPONS TO COMBAT DISCOVERY ABUSE - IT’S ONLY A MATTER OF WHEN AND HOW TO USE THEM Discovery abuses are a recurring problem in civil practice. Questionable litigation tactics and outright contempt of court pervade our justice system. Many practitioners are frustrated by the ostensible reluctance of trial courts to sanction parties for discovery abuse. This reluctance probably stems from the trial courts’ failure to fully appreciate their broad powers, including a failure to appreciate the limited scope of appellate review of procedurally correct sanctions orders. However, the reality is that the trial court has the power to end discovery abuses. The appellate courts will sustain the trial court’s authority if it is exercised in a procedurally correct manner with thorough findings of fact. The party moving for sanctions can make the trial court’s job easier by fully advising the court of the law and proper procedure. Working together, counsel moving for sanctions and the trial courts can end discovery abuses. EXPENSES OF MOTION TO COMPEL: Fla. R.Civ. P. 1.380 is the most widely used authority for sanctions as a result of discovery abuses. The Rule gives the trial court broad discretion. The Rule requires the award of expenses, unless the court finds that the opposition to a motion to compel is justified. The Rule provides: Award of Expenses of Motion . If the motion [to compel] is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party 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 opposition to the motion was justified or that other circumstances make an award of expenses unjust. Id. (emphasis added).
2 Updated 9/2007 2007 Handbook on Discovery Practice 1 Ford Motor Co. v. Garrison, 415 So.2d 843 (Fla. 1st DCA 1982). 2 Eastern Airlines. Inc. v. Dixon, 310 So2d 336 (Fla. 3d DCA 1975). 3 First & Mid-South Advisorv Co. v. Alexander/Davis Properties. Inc., 400 So.2d 113 (Fla. 4th DCA 1981); St. Petersburg Sheraton Corp. v. Stuart, 242 So.2d 185 (Fla. 2d DCA 1970). 4 Summit Chase Condominium Ass’n Inc. v. Protean Investors. Inc., 421 So.2d 562 (Fla. 3d DCA 1982); Rankin v. Rankin, 284 So.2d 487 (Fla. 3d DCA 1973); Goldstein v. Great Atlantic and Pacific Tea Co., 118 So.2d 253 (Fla. 3d DCA 1960). 5 Patsy v. Patsy, 666 So.2d 1045 (Fla. 4th DCA 1996) (upholding an award of attorney’s fees after finding motion was frivolous). As for inherent power to strike pleadings and enter a default judgment, see discussion infra of Tramel v. Bass, 672 So.2d 78 (Fla. 1 st DCA 1996); rev. denied , 680 So.2d 426 (Fla. 1996). Therefore, it is required that the court shall award expenses unless the court finds the opposition was justified. The trial court should in every case , therefore, award expenses which may include attorney fees where there is no justified opposition. The party against whom the motion is filed is protected in that the Rule provides that the moving party shall pay the opposing party’s expenses if the motion is denied. If the court finds that the motion

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