final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Raag Singhal,
Judge; L.T. Case No. CACE-17-011371.
Richard A. Jarolem of Traub Lieberman Straus &
Shrewsberry, LLP, Palm Beach Gardens, for petitioner.
A. Harris of Burlington & Rockenbach, P.A., West Palm
Beach, and Thomas H. Leeder of Leeder Law, Plantation, for
case, we address a matter of first impression: the extent to
which the financial discovery limitations applicable to an
expert apply to the business entity with which the expert is
affiliated. Orthopedic Center of South Florida
("Petitioner"), a non-party in the action below,
petitions for a writ of certiorari, seeking to quash a
discovery order overruling its objections to a proposed
subpoena duces tecum. The proposed subpoena was served on
Petitioner by Michael Sode ("Respondent").
Petitioner contends the order compelling it to produce
certain documents for "reference purposes only" at
deposition is beyond the scope of permissible discovery under
Florida Rule of Civil Procedure 1.280(b)(5) and Elkins v.
Syken, 672 So.2d 517 (Fla. 1996). We grant the
petitition because we conclude that: (1) the protections from
invasive discovery afforded to individual experts apply
equally to the business entity with which the expert is
affiliated; (2) Respondent used an improper discovery
methodology; and (3) the order grants impermissible
action below, Respondent filed a complaint against the
defendant for alleged injuries he suffered in a bicycle
accident. Respondent served a proposed subpoena duces tecum
on Petitioner, the business entity under which the doctor who
performed the compulsory medical exam runs his practice.
objected to the discovery requests and moved for a protective
order. At the hearing, Petitioner conceded that Respondent
was entitled to some discovery pursuant to Allstate
Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999).
However, Petitioner contended that most of what Respondent
sought was not proper discovery from the examining doctor,
who was an expert under rule 1.280(b)(5)(A)(iii). Petitioner
argued, therefore, that Respondent could not circumvent the
rule by requesting the otherwise impermissible discovery from
the non-party corporate entity affiliated with the examining
argued that the limits of Elkins and rule
1.280(b)(5) do not apply to Petitioner because it is a
corporation, and it is not afforded the protections of an
expert. Respondent argued that the defense expert, along with
several other doctors, are officers, directors, and partners
of Petitioner. Respondent asserted that five out of nine of
the doctors, who are owners of Petitioner, perform compulsory
medical examinations for the defense. Respondents contended
that the partners share in the revenue and profits, and that
could point to financial bias and incentive for the defense
expert to accept a certain type of case. Respondent also
pointed out that it learned through a deposition that the
defense firm had hired Petitioner 120 times in three years,
showing that Petitioner had made hundreds of thousands of
dollars from this type of work.
trial court sustained some objections and overruled others.
The trial court did not address Petitioner's objections
that the discovery exceeded rule 1.280(b)(5), or that such
discovery requests were burdensome and invasive on a
non-party. The trial court did not make findings of
"unusual or compelling circumstances," but it
compelled the discovery. See Fla. R. Civ. P.
1.280(b)(5)(A). The trial court ordered that Petitioner's
representative must bring to the deposition "for
reference purposes only" documents responsive to
Respondent's requests 1, 2, 6, 8-12, and 15. These
paragraphs requested documents pertaining to the following:
1. Voire Dire of the Designated Witness(es): Does
the witness maintain a curriculum vitae or resume?
Please provide a brief description of your biographical
background, including your employment history and educational
history. Please describe your relationship with the
Practice and the provenance of your designation as its
witness for the relevant subject matters. Please describe all
steps you have taken to prepare for your testimony on those
subjects matters for which you have been designated,
including, where appropriate, persons interviewed and
documents reviewed. Have you prepared any notes, written
summaries, or document collections to assist you in making
your testimony accurate and complete? Have you brought those
with you today? During your testimony, will you refer to any
such notes, written summaries, or document collections when
necessary to ensure your testimony is accurate and complete?
2. Overview and Ownership. Describe the medical
Practice's business model and primary business
activities. Does the medical Practice have any signed
contracts with the Defendant, Defendant's Insurance
Company, or Defendant's Law Firm[?] Provide the names and
identities of all persons or entities who hold or have held a
direct or indirect ownership interest in your Practice.
Describe how the owners share and divide in the
Practice[']s profits, revenues, and expenses. Does the
medical Practice track the amount of business generated by
each doctor within the Practice? If yes, how so? Does the
doctor that brings in or obtains the patient or medical exam
receive a larger share of the revenue generated by that
examination? Do the other doctors within the Practice also
share in the revenue generated by the doctor that brought in
the patient or exam to a lesser degree?
. . . .
6. Revenues. The percentage of your revenue that is
generated from providing medical services in the last three
full years. Please be prepared to specific [sic] the
percentage of revenue derived from (1) Defense Compulsory
Medical Exams (DCME); (2) PIP Independent Medical Exams (PIP
IME); (3) Worker's Compensation Claims; (4) Fees for
Depositions on behalf of Defendants; (5) Trial Testimony on
behalf of Defendants; (6) Letters of Protection; (7) Health
Insurance; (8) PIP; (9) Consulting Work. Please be prepared
to provide the revenue percentage or split for your treatment
of patients that actually choose your Practice versus