ALLSTATE INSURANCE COMPANY, PETITIONER,
v.
ROBERT BOECHER, RESPONDENT

Fla. 4th DCA | 1998-01-21
No. 97-2644
STONE, C.J., and GUNTHER, J., concur.
705 So. 2d 106 Florida District Court of Appeal, Fourth District (1998) Negative Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Allstate Insurance sought review of an order requiring it to produce discovery regarding its use of an expert witness in an uninsured motorist claim. The Fourth District held that recent rule amendments limiting expert discovery do not apply to discovery from parties themselves, and affirmed the trial court's denial of Allstate's motion for a protective order.


Holding

The court held that the rule amendments limiting expert witness discovery apply only to discovery directed at expert witnesses themselves, not to discovery from parties seeking information about their relationship with experts. The court affirmed the denial of Allstate's protective order motion, finding no undue burden in requiring a party to produce its own business records regarding expert witness engagement.


Headnotes

[1] Discovery rules limiting the scope of discovery from expert witnesses do not apply to discovery sought from a party to the litigation.

[2] A party may be compelled to produce information regarding its business relationship with an expert witness it intends to call at trial, even if such information could not…

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Key Quotes

“[a]n overly burdensome, expensive discovery process will cause many qualified experts, including those who testify only on an occasional basis, to refrain from participating in the process, particularly if they have the perception that the process could invade their personal privacy.”

Establishes the rationale for protecting expert witnesses from burdensome discovery, distinguishing them from parties.

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Facts & Procedural History

In an automobile accident lawsuit, the claimant sought interrogatories from Allstate Insurance regarding its relationship with Biodynamics Research Co…

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Opinion of the Court
FARMER, Judge.

FARMER, Judge.

We deny this petition for certiorari review of an order overruling objections to interrogatories in automobile accident litigation, but take the time to explain why recent amendments to rule 1.280 limiting discovery from expert witnesses do not apply.

This is a suit by the alleged victim of an accident against Allstate Insurance, his uninsured motorist carrier. On the basis that Allstate would call Biodynamies Research Corporation (an accident reconstruction and injury causation expert employed by the UM carrier) as an expert in this case, the claimant propounded interrogatories to Allstate as to information concerning the relationship between the UM carrier and Biodynamies. The questions sought the identity of eases in which Biodynamies had performed analyses and rendered opinions for Allstate nationally and in the preceding three years. The questions also sought to learn the amount of the fees Allstate had paid Biodynamies nationally and during the preceding three years. These same interrogatories were also propounded directly to Biodynamies, the witness itself.

Biodynamies’ objections were deferred, but a hearing was held on Allstate’s objections to the interrogatories. Allstate argued that the questions were overbroad and burdensome, claiming that such records were not kept and would have to be compiled, and the information requested would be impossible to ascertain without great financial hardship. Be cause the discovery in question was directed to Allstate, a party, and not to the expert, the trial court found inapplicable Elkins v. Syken, 672 So. 2d 617 (Fla.1996), in which the supreme court approved a district court’s decision quashing, as overly burdensome, an order requiring expert witness physicians to produce tax records and information regarding patients examined for litigation purposes. The trial court reasoned that requiring such discovery from a party was not as “invasive” as requiring it. directly from the expert.

The criteria approved by the supreme court in Elkins were the basis for an amendment to rule 1.280, Florida Rules of Civil Procedure, effective January 1,1997. See In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 106 (Fla.1996) (adding rule 1.280(b)(4)(A)(iii)). The new provision lists the kinds of discovery a party may obtain from another party’s expert witness. A portion of that rule provides, “[ajn expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents.” Fla.R.Civ.P. 1.280(b)(4)(A)(iii). Under the new rule, the claimant plainly could not discover this information directly from the expert witness itself.

Allstate claims that the claimant sought to circumvent the rule by seeking to discover from Allstate, qua party defendant, that which under the rule it could not discover from Biodynamics. The third district refused to permit that tactic in Carrera v. Casas, 695 So. 2d 768 (Fla. 3d DCA 1997) (noting discovery had been sought improperly from defendants, rather than from their experts, and quashing order denying defendants’ request for protective order as to information sought, which did not fall within limited parameters set forth in Elkins). We disagree with the third district and certify conflict.

Elkins concerned undue burdens placed on expert witnesses, who are not parties to the lawsuit. 672 So. 2d at 522 (“[T]he two cases before-us involve pretrial discovery of defense medical experts_”). The supreme court’s opinion plainly focuses on the hardships placed on the expert witnesses themselves as a result of overly burdensome discovery requests made applicable personally on the witnesses rather than the party.1 The court justified its holding by stating that:

“an overly burdensome, expensive discovery process will cause many qualified experts, including those who testify only on an occasional basis, to refrain from participating in the process, particularly if they have the perception that the process could invade their personal privacy.”

672 So. 2d at 522. Moreover, the text of rule 1.280(b)(4)(A)(iii) is expressly directed not to parties but, again, only to discovery from expert witnesses:

“[a] party may obtain [certain] discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial .... ” [e.s.]

See Fla.R.Civ.P. 1.280(b)(4)(A)(iii); and In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 114 (Fla.1996).

In this case, the discovery runs solely to the party itself, a UM carrier, not its expert. It calls upon that party to provide information as to that party’s use of a specific expert witness whom the party intends to use in the present case. The case and the rule demonstrate that the nature of protection for a party from relevant discovery requests is qualitatively different from that afforded to someone who is merely a witness. See Syken v. Elkins, 644 So. 2d 539, 545 (Fla. 3d DCA 1994) (“decisions in this field have gone too far in permitting burdensome inquiry into the financial affairs of physicians.... ”). Moreover, the information sought is indisputably relevant and meaningful to impeaching the witness.

In this instance the trial judge’s order denying the motion for protection must be understood as rejecting Allstate’s contentions about undue burden. We perceive no error in that regard and agree with the trial judge that the circumstances here present are not as “invasive” as they would be if directed solely to an outside expert witness. Allstate knows — or can readily lay its hands on records showing the data — just how often and when it has used this expert witness. Although its motion for protective order contains boilerplate text about difficulties in locating the information sought — in having to search numerous files — there is nothing in the record furnished by Allstate suggesting that its burden in providing this information is any more difficult than the ordinary retrieval of common, routine business records.

To be sure, we live in the age of computers — not the bygone era of hooded clerics poring over ancient manuscripts seeking hidden truths. A labor that, just a few years ago, might have taken office clerks weeks or months now entails mere milliseconds of data processing time. It occurs to us that, in this pervasively computerized generation of doing business, any going concern would be sorely tried to establish burdensomeness in the mere retrieval of this kind of information. Surely Allstate has the power to pluck the data from its own cyberspace. The burden placed on this party should be presumed to be no more difficult than selecting the correct keys on a board or icons on a screen. Allstate has done nothing in this record to dispel such a presumption.

We therefore deny the petition as demonstrating no departure from the essential requirements of law.

STONE, C.J., and GUNTHER, J., concur. . The court approved the en banc opinion of the third district in its entirety. See Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994). That opinion makes clear that the subject of the protective order was a subpoena duces tecum served on the expert witness, thereby placing on the witness rather than the party the burden of compiling and reporting the information sought.


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Cited By

  • Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999)
    …PARIENTE, J. We have for review Allstate Insurance Co. v. Boecher, 705 So. 2d 106 (Fla. 4th DCA 1998), in which the Fourth District certified conflict with Carrera v. Casas, 695 So. 2d 763 (Fla. 3d DCA 1997), regard [*994] ing whether this Court’s decision in Elkins v. Syken, 672 So. 2d 517 (Fla.1996), or Florida Rule of Civil Pr…
    1 / 2
  • Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576 (Fla. 2d DCA 2014)
    …ly advantageous relationship. [*580] Id. at 997-98 (emphasis added). The supreme court echoed the Fourth District’s assessment that the “information would be ‘indisputably relevant and meaningful.’ ” Id. at 998 (quoting Allstate Ins. Co. v. Boecher, 705 So. 2d 106, 107 (Fla. 4th DCA 1998), approved, 733 So. 2d 993). We have previously cited Boecher to support our conclusion that evidence of a doctor’s financial interest in a case, by way of a letter of protection, was properly admitted to attack the doctor’s…
  • State Farm Mut. Auto. Ins. Co. v. Gurbachan Pal Soni, 719 So. 2d 368 (Fla. 4th DCA 1998)
    …PER CURIAM. The petition for writ of certiorari is denied. Allstate Ins. Co. v. Boecher, 705 So. 2d 106 (Fla. 4th DCA), rev. granted, 719 So. 2d 286 (Fla.1998). As we did in Boecher, we certify conflict with Carrera v. Casas, 695 So. 2d 763 (Fla. 3d DCA 1997). DELL and GROSS, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.…

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