BISSELL BROTHERS, INC., D/B/A FAIRWAY PIZZA, INC., A FLORIDA CORPORATION, AND MICHAEL D. SLOMKA, M.D., PETITIONERS,
v.
DAWN FARES AND ALFRED FARES, RESPONDENTS; BISSELL BROTHERS, INC., D/B/A FAIRWAY PIZZA, INC., A FLORIDA CORPORATION, AND FREDERICK G. MCFALL, JR., D.D.S., PETITIONERS, V. DAWN FARES AND ALFRED FARES, RESPONDENTS
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Petitioners sought certiorari review of discovery orders compelling production of documents. The court held that doctors cannot be compelled to produce non-existent documents, but affirmed an order requiring production of 1099 forms as discoverable evidence of potential bias.
A person cannot be ordered to produce documents that do not exist, so the court quashed the portion of the order directing production of non-existent calendars and time records. However, the court affirmed the order directing Dr. Slomka to produce his 1099 forms from insurance carriers for the relevant years, as these forms are discoverable to show potential bias.
[1] A court may not order a party to produce documents that do not exist.
[2] A party may be compelled to produce IRS 1099 forms provided by insurance carriers for performing independent medical examinations, as such forms are discoverable as reaso…
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Join FLexlaw to unlock all legal intelligence“A person may not be ordered to produce documents which he does not have.”
Establishes the fundamental principle that discovery cannot compel production of non-existent documents
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Join FLexlaw to unlock all legal intelligenceDuring discovery in a lawsuit, respondent Dawn Fares was examined by two independent medical examiners, Drs. McFall and Slomka, hired by petitioners. …
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PER CURIAM.
The petitioners seek certiorari review of two orders of the circuit court ordering them to provide the respondents, the lower court plaintiffs, certain items of discovery. We find that, in part, the orders depart from the essential requirements of law.
In the course of discovery, the respondent, Dawn Fares was examined by two independent medical examiners, petitioners McFall and Slomka. Following the plaintiffs deposition of each doctor, the circuit court heard motions to compel and motions for protective orders. The circuit court denied the motions for protective orders and granted the motions to compel discovery of three items.
We find that the order departed from the essential requirements of law by directing Drs. McFall and Slomka to produce items that were not shown to be in existence. See e.g. Balzebre v. Anderson, 294 So. 2d 701 (Fla. 3d DCA1974). At his deposition, Dr. McFall testified that the three items he was compelled to produce, 1099 forms, appointment calendars for three years and time records on this particular case, did not exist. Dr. Slomka testified that he threw away his appointment calendars at the end of each year and therefore did not have them. A person may not be ordered to produce documents which he does not have. We quash that portion of the order. We affirm that portion of the order that directed Dr. Slomka to produce his Internal Revenue Service 1099’s for the years 1988, 1989 and 1990 provided by insurance carriers for performing independent medical examinations. Not only did Dr. Slomka agree at his deposition to produce the items, but the forms are clearly subject to discovery as reasonably calculated to lead to the discovery of relevant, admissible evidence concerning the physician’s bias. See, e.g., Bliss v. Brodsky, 604 So. 2d 923 (Fla. 2d DCA1992); Wood v. Tallahassee Memorial Regional Medical Center, 593 So. 2d 1140 (Fla. 1st DCA1992); McAdoo v. Ogden, 573 So. 2d 1084 (Fla. 4th DCA1991).
Accordingly, we find that the order compelling discovery of those materials that are not in existence departs from the essential requirements of law and would cause injury that could not be remedied on direct appeal and grant the petitions as to those items. We deny Dr. Slomka’s petition in so far as it concerns his financial information.
CAMPBELL, A.C.J., and HALL and THREADGILL, JJ., concur.
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Elkins v. Syken, 672 So. 2d 517 (Fla. 1996)…decision conflicted with the district court decisions in Abdel-Fattah v. Taub, 617 So. 2d 429 (Fla. 4th DCA 1993) (non-party expert required to compile information regarding defense-required examinations for past year), Bissell Bros., Inc. v. Fares, 611 So. 2d 620 (Fla. 2d DCA 1993) (IRS Form 1099’s subject to discovery), and Young v. Santos, 611 So. 2d 586 (Fla. 4th DCA 1993) (tax returns and independent medical examinations (IMEs) discoverable).2 For the reasons expressed, we approve the well-reasoned decis…
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Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994)…h v. Taub, 617 So. 2d 429 (Fla. 4th DCA 1993); (trial court ordered to determine reasonable cost for nonparty medical expert to compile information regarding defense-requested examinations done by him during past year); Bissell Bros., Inc. v. Fares, 611 So. 2d 620 (Fla. 2d DCA 1993) (Internal Revenue Service 1099 forms of independent medical examiners subject to discovery as reasonably calculated to lead to relevant evidence concerning bias); Young v. Santos, 611 So. 2d 586 (Fla. 4th DCA 1993) (doctor ordered…1 / 2
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LeJEUNE v. Aikin, 624 So. 2d 788 (Fla. 3d DCA 1993)…as to the total amounts of monies paid in professional fees, but no records are kept as to whom such money is paid and for what year. Clearly, a trial court has no authority to order the discovery of nonexistent records. See Bissell Bros. v. Fares, 611 So. 2d 620 (Fla. 2d DCA 1993); Balzebre v. Anderson, 294 So. 2d 701 (Fla. 3d DCA 1974). The petition for a writ of certiorari is granted, the orders under review are quashed, and the cause is remanded to the trial court for further proceedings. It is so orde…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 593 So. 2d 1140 (Fla. 1st DCA 1992)
- Zalanka v. State, 573 So. 2d 1084 (Fla. 4th DCA 1991)
- McADOO v. Gudrun Ogden and Leadley Ogden, 573 So. 2d 1084 (Fla. 4th DCA 1991)
- Balzebre v. Anderson, 294 So. 2d 701 (Fla. 3d DCA 1974)
- Bliss v. Jorge Brodsky, M.D., 604 So. 2d 923 (Fla. 2d DCA 1992)