Certiorari Review of Orders Denying Discovery in Civil Cases, Part II

In Part II of my column, I talked about the types of cases in which the courts have granted or denied review of orders denying discovery in civil cases. The courts have been willing to grant review and quash orders in cases involving the deposition of a material witness or party, ex parte communications between a defendant and healthcare providers in medical-malpractice cases, photographs, records of adverse medical incidents, financial documents in family law cases, compulsory medical examinations of plaintiffs, key physical evidence, information related to settlements, and timing issues. On the other hand, cases in which the courts have denied review are too fact-dependent to categorize. The issue in Katz v. Riemer was whether the defendants’ defenses in a legal-malpractice lawsuit were hurt by the judge not allowing certain evidence to be found. The plaintiffs were suing their stepfather’s lawyers for giving him bad advice after their mother died. The lawyers wanted to see how much money the plaintiffs got from their mother, but the judge said no. The court decided that the money the plaintiffs got wasn’t important to the case. In one case, a person tried to get financial information from a former employee of a company, but the court said they could ask other people instead. In another case, a doctor wanted to know more about a medical expert, but the court said they could deal with that later if they needed to. In some court cases, the judge denied requests to see how much money had been settled in a lawsuit. The court said it wasn’t necessary for the defendant to know the settlement amounts. In another case, the court said it was okay to ask for the settlement amounts because it was important for the case. The court also said that if the defendant needed to know the settlement amounts, they could appeal the decision. In other cases, the courts also said no to requests for settlement amounts because there were other ways to get the information. The justification for reviewing a decision denying the request for important evidence in court cases is flawed, according to Judge Torpy. He says that the burden is on the party benefiting from the decision to prove that it didn’t cause harm. The courts have upheld this justification, but it has been contradicted by later legal decisions. Even if a trial court makes a mistake in denying evidence, there’s no guarantee that a higher court will reverse the decision. So, while it’s technically possible to appeal these decisions, it’s not very likely that the appeal will be successful. Judges Torpy and Luck have identified a problem with preserving errors in court. Judge Torpy says that the complaining party has the responsibility to preserve the error, but it’s not always clear what needs to be done to preserve it. Judge Luck thinks there are ways to present evidence before a judgment to show that not being able to gather evidence affected the result. But it’s unclear what exactly needs to be done to make sure the issue is preserved. The district courts have been using certiorari review as a way to review orders when they actually don’t have the jurisdiction to do so. This is not fair to the parties involved and puts a strain on the courts. To fix this, the Supreme Court could change the rules to allow appeals of certain orders denying discovery, but with some limitations to prevent too many appeals. It’s important for the courts to make sure that denying discovery really won’t affect the case before denying an appeal. And if a party does appeal, the court needs to carefully consider if the denial of discovery was harmless or not.

Source: https://www.floridabar.org/the-florida-bar-journal/certiorari-review-of-orders-denying-discovery-in-civil-cases-part-ii/