Discovery is a powerful tool for gathering information, but can be overwhelming when your Association needs to respond to an Opposing Party’s Discovery Requests

By: Christine M. Praria, CP, FRP, Lead Litigation Paralegal – and Russell E. Klemm, Esq., Partner -- Clayton & McCulloh, P.A.

Discovery can be a useful tool for getting important information during litigation, and for gathering important facts and documents needed to support your case. However, if Discovery is served against your Association, it can be a burdensome and expensive process for your Board and Management.

What do you Mean by “Discovery?”

We’re not “discovering” the New World or discovering a new antibiotic use for mold! In legal parlance, “Discovery” is a process which each “Party to” (participant in) a lawsuit can use to formally gather information and evidence from other Parties, and sometimes from “third parties,” not otherwise involved in the litigation, such as Contractors and vendors. This allows the Parties to evaluate how much evidence each side has, supporting their respective claims. Sometimes the Discovery process can help drive settlement discussions, especially if one side realizes they may not have as strong a case on paper as their heart, or their gut instinct, was telling them.

Is Discovery Optional?

The Florida Rules of Civil Procedure (often abbreviated “Fla. R. Civ. Proc.,” but here I’ll refer to them as “the Rules”), dictate how the Discovery process is to be handled, and possible penalties for not complying.

Once a lawsuit is filed, all Parties to that suit have the right to “propound” Discovery Requests to the Opposing Parties. They also have a complementary obligation to respond to any Discovery that may be served on them, in turn.

Common Discovery Tools

Discovery is a blanket term that covers several kinds of investigative tools:

• Requests for Admission – These are statements that the responding Parties must either admit or deny. If the suggested “fact” is denied, reasons must be listed as to why the statement is not true. Many times, you won’t know the answer one way or another; however, the Rules require a “Good Faith” response.

• Interrogatories – This is a set of questions that the responding Party must answer. The Rules limit the number of Interrogatories a Party can serve on the same Opposing Party, to avoid abuse of process and burdensome, repeated, or redundant requests. The person answering the questions on the responding Party’s behalf must swear an oath as to the accuracy and truth of the answers.

• Request for Production – This type of Discovery seeks documents that fit certain categories. A complete response must gather any documents or materials relevant to the definitions and requests listed (otherwise known as “responsive” documents). If the requested category is vague, or so broad as to be a hardship for the responding Party to gather, because it covers so many documents, the responding Attorney may object that it is “overly vague and unduly burdensome.” An effort must still be made to hand over the documents sought, within reason.
  
  The materials demanded in a Production Request could include:

• Documents
• Photos
• E-mails and other electronic communications, including texts and faxes
• Reports
• Architectural records; and much more

• Subpoenas – these generally involve “third parties,” that are not otherwise involved in the suit. A Subpoena is used to compel someone who is not a Party to the lawsuit to turn over relevant documents, or to be deposed under oath (see “Depositions,” below).
• Privilege Log – Sometimes your attorney advises that certain documents should not be turned over, because of their sensitive nature. They might fall under “Attorney/Client Privilege,” for example, or some other legally accepted “privilege.” (Here, a “privilege” means a legitimate legal reason for withholding documents or information). Your attorney must then draft a document referred to as a Privilege Log, to be included with the “Response to Request for Production,” and the documents being produced, listing all documents or other items not being produced, along with the reason why.

My Attorney says I am going to be Deposed; what does that mean?

The above are forms of written Discovery. Depositions are also part of the Discovery process. At a Deposition, the person being interviewed (the Deponent), must appear at the date and time agreed or noticed, to answer the Opposing Attorney’s questions, under oath, while a Court Reporter records the entire interview word for word in a written transcript, for possible use in Court.

If you are represented by an Attorney, at a Deposition, make sure you wait a few seconds after each question asked by Opposing Counsel. Your Attorney may wish to make an “objection” to the form of the question, before you answer.

The Rules changed in 2025, to require “Initial Discovery Disclosures” to be filed along with (or within 60 days of) filing a new Complaint.

Initial Discovery Disclosures are automatic exchanges of information now required at the beginning of a lawsuit. The information in these Disclosures will include things like:

• Contact information for Witnesses and the subjects they are expected to testify to
• Documents or document categories a Party expects to rely on to support their case
• The amount of “Damages” (money being sought by a wronged Party), along with the documents supporting that amount
• Insurance information relevant to the case, if any

These materials may be submitted (or “served,” via Process Server) directly to the Opposing Parties, not filed with the Court. These Disclosures are often sent with the Complaint for the Process Server to deliver everything together (for one service fee, which saves money), but they do not have to be, as long as they are served within 60 days of filing the Complaint.

The Recent Changes to the Rules Impose Additional Requirements on Both Parties to a Civil Lawsuit, at the early stages of the Case.

As indicated above, “Initial Discovery Disclosures” require that the information, documentation, and other materials required to commence a Civil Lawsuit in Florida now, must be “front loaded,” meaning the Plaintiff must now make what (in some cases) are extraordinary efforts, to ensure that all relevant information, evidence, and even Witnesses, are identified at the opening of the case, rather than during the course of the case.

A Defendant must also devote more time, resources, and attention to what is required to defend the case, at a much earlier stage. This is because the “Case Management Order,” which the Judge enters in every new case, sets strict deadlines for identifying all Witnesses and Evidence, and for the completion of all Discovery (as well as setting the expected Trial Date).

All these new procedural requirements, which were enacted to streamline the litigation process, and prevent cases from “languishing” on Court Dockets, adds significantly to the cost of a case, for all Parties.

How does our Association protect itself from Discovery-related problems?

1. Keep highly detailed, well-organized records. Label files clearly and logically and file them in a way that allows you to lay your fingers on exactly what you are looking for, as quickly as possible.

See our article, “Top 10 Documents Your Association must produce for any Official Records Inspection (and what you must NOT provide!” for more information about what is considered an “Official Record” of an Association, and what is considered “privileged.” An Association’s “Official Records” must include:

1. Architectural Committee (“ARC”) records, approvals, and denials
2. Covenant Enforcement violation letters, and other correspondence with Owners
3. Photos of Covenant Violations, such as unmown grass, or of storm damage, etc.
4. Board and other Association Meeting Minutes; and more

2. Respond as completely as possible before the deadline. Generally, the deadline to respond to a Discovery Request is thirty (30) days (with a few exceptions). Extensions may be requested, if needed, but there is no guarantee the other side will agree. If you don’t respond truthfully, completely, and timely, it could result in:
   1. A Motion to Compel asking the Judge to force your compliance; or
   2. Sanctions – Court-ordered penalties, such as the payment of the other Parties’ Attorney’s Fees, for refusing to comply.
       
3. Make sure to cooperate with your Association Counsel in preparing your Discovery Requests, and especially any Discovery Responses. Your counsel can advise you as to which questions you do not have to answer, because they fall into one or more categories of valid objections. They will also let you know which documents do not need to be produced – again, under certain (limited) circumstances. These can include things like:
   1. Vague
   2. Burdensome
   3. Attorney/client privileged

Discovery can be an overwhelming, time consuming, and expensive process for your Association. It may require a large investment of your own, and your Manager’s, time, energy, and effort, even when your Association is being represented by counsel.

Your Attorney will count on you to cooperate fully, to answer all his or her questions completely and honestly, to the best of your abilities, and to search your Association’s or your Manager’s documents thoroughly, for anything that may be responsive.

Your counsel will then have to spend (potentially) hours, going through the files you present to them, pouring through each document to confirm there are no privileged or other material that must be redacted (blocked from view with a black box covering the text, for example), or which documents must not be produced, and must be listed in a Privilege Log.

Christine M. Praria, CP, FRP, has been a Legal Assistant for 40 years and has been a Certified Paralegal and Florida Registered Paralegal for three years.  This October marks Christine’s 6th year at Clayton & McCulloh, P.A., where she is the Lead Litigation Paralegal working with Atty Klemm.  Christine is a Member of NALA (the National Association of Legal Assistants), serving on NALA’s Diversity, Equity and Inclusion Committee.

Russell E. Klemm, Esq. has been practicing law for 45 years, and has been a Partner at Clayton & McCulloh, P.A., for over 22 years.  His experience in Homeowners and Condo Owners Association law spans 30 years.  Russ is admitted to the Florida and California (inactive) Bars, all Federal Courts in the State of Florida, and to the 11th Circuit Court of Appeals.

Nothing in this article is intended as legal advice and should not be taken as such.  If you need legal advice, please make an appointment to speak with one of our attorneys.  You can contact dbatan@clayton-mcculloh.com to set up a consultation.