Business Law 101 / Discovery in Landlord/Tenant cases

By Albert L. Kelley, Esq.

Discovery is the process of gaining information from the opposing side to help build your case or expose weaknesses in the opposing party’s case. While Florida has a broad and liberal discovery policy in civil court, the rules in Landlord-Tenant Law are a little different.

Generally, discovery is not allowed in eviction cases. There just isn’t time to do it. Under the rules, a party generally has 30 days to respond to a discovery request. This would delay the eviction hearing too long. If, however, the Landlord also sues for back rent, discovery may be allowed for that purpose alone. This depends in part on the amount of the back rent and in part on whether the parties are represented by counsel. If the amount of back rent puts the parties in small claims court, discovery will not be allowed unless both sides are represented by counsel.

There are basically four types of discovery: Request For Production, Interrogatories, Request For Admissions and Depositions.

Request For Production: This is a request (or actually a demand) for the opposing side to provide copies of documents that are related to the case. Florida’s discovery rules allow a party to request copies of documents “regarding any matter, not privileged, that is relevant to the subject matter of the pending action”. That is a very broad definition. What is relevant is often up for interpretation and Plaintiffs and Defendants often disagree on this point. Even if the item requested will not be admissible in Court, if the item appears reasonably calculated to lead to admissible evidence, it is allowable.

Interrogatories: Interrogatories are written questions that the opposing party is required to answer. While the opposing party is supposed to respond to these, if they are represented by an attorney, usually the attorney will draft the answers and the opposing party will merely sign them. The answers to interrogatories may be used during the trial.

Request for Admissions: These are a series of statements that the opposing party must either admit or deny. Those items they admit do not need to be proven at the trial. If the opposing party fails to respond to a Request For Admission, the statements are deemed admitted.

Depositions: A deposition is a formal procedure where by the requesting party and opposing party meet before a court reporter. The requesting party asks the opposing party a series of questions which must be answered. If the opposing party objects to a question, they usually still must answer it, however, before the answer can be used in trial, the judge reviews the objection and determines if the answer should be heard. If the opposing party (for example, we will say the Defendant, though this applies to both parties) fails to appear for his deposition, the Plaintiff may apply for a Writ of Bodily Attachment.

If the opposing party fails or refuses to respond to discovery, the party seeking discovery can file a Motion to Compel with the Court. The Court can Order the response to be made within a certain time, and can also sanction the noncomplying party, including having to pay money to the requesting party, paying the requesting party’s legal fees for both the discovery and the subsequent hearing, having pleadings or evidence stricken or in a severe case, or in the worst cases having a judgment entered against them or dismissing their case.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.