Fla. Fam. L. R. P. 12.380

RULE 12.380

FAILURE TO MAKE DISCOVERY; SANCTIONS

(a) Motion for Order Compelling Discovery. On reasonable

notice to other parties and all persons affected, a party may apply

for an order compelling discovery as follows:

(1) Appropriate Court. An application for an order to a

party may be made to the court in which the action is pending or in

accordance with rule 12.310(d). An application for an order to a

deponent who is not a party must be made to the circuit court

where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question

propounded or submitted under rule 12.310 or 12.320, or a

corporation or other entity fails to make a designation under rule

12.310(b)(6) or 12.320(a), or a party fails to answer an interrogatory

submitted under rule 12.340, or if a party in response to a request

for inspection submitted under rule 12.350 fails to respond that

inspection will be permitted as requested or fails to permit

inspection as requested, or if a party in response to a request for

examination of a person submitted under rule 12.360(a) objects to

the examination, fails to respond that the examination will be

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permitted as requested, or fails to submit to or to produce a person

in that party’s custody or legal control for examination, or if any

person fails to comply with any discovery request or requirement

under the Florida Family Law Rules of Procedure, including, but not

limited to, the failure to comply with rule 12.285, the discovering

party may move for an order compelling an answer, or a designation

or an order compelling inspection, or an order compelling an

examination in accordance with the request. The motion must

include a certification that the movant, in good faith, has conferred

or attempted to confer with the person or party failing to make the

discovery in an effort to secure the information or material without

court action. When taking a deposition on oral examination, the

proponent of the question may complete or adjourn the examination

before applying for an order. If the court denies the motion in whole

or in part, it may make such protective order as it would have been

empowered to make on a motion made under rule 12.280(d).

(3) Evasive or Incomplete Answer. For purposes of this

subdivision an evasive or incomplete answer shall be treated as a

failure to answer.

(4) Award of Expenses of Motion. If the motion is

granted and after opportunity for hearing, the court must require

the party or deponent whose conduct necessitated the motion or the

party or counsel advising the conduct to pay to the moving party

the reasonable expenses incurred in obtaining the order that may

include attorneys’ fees, unless the court finds that the movant failed

to certify in the motion that a good faith effort was made to obtain

the discovery without court action, that the opposition to the

motion was substantially justified, or that other circumstances

make an award of expenses unjust. If the motion is denied and after

opportunity for hearing, the court must require the moving party to

pay to the party or deponent who opposed the motion the

reasonable expenses incurred in opposing the motion that may

include attorneys’ fees, unless the court finds that the making of

the motion was substantially justified or that other circumstances

make an award of expenses unjust. If the motion is granted in part

and denied in part, the court may apportion the reasonable

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expenses incurred as a result of making the motion among the

parties and persons.

(b) Failure to Comply with Order.

(1) If a deponent fails to be sworn or to answer a

question after being directed to do so by the court, the failure may

be considered a contempt of the court.

(2) If a party or an officer, director, or managing agent

of a party or a person designated under rule 12.310(b)(6) or

12.320(a) to testify on behalf of a party fails to obey an order to

provide or permit discovery, including an order made under

subdivision (a) of this rule or rule 12.360, the court in which the

action is pending may make any of the following orders:

(A) An order that the matters regarding which the

questions were asked or any other designated facts shall be taken

to be established for the purposes of the action in accordance with

the claim of the party obtaining the order.

(B) An order refusing to allow the disobedient

party to support or oppose designated claims or defenses, or

prohibiting that party from introducing designated matters in

evidence.

(C) An order striking out pleadings or parts of

them or staying further proceedings until the order is obeyed, or

dismissing the action or proceeding or any part of it, or rendering a

judgment by default against the disobedient party.

(D) Instead of any of the foregoing orders or in

addition to them, an order treating as a contempt of court the

failure to obey any orders except an order to submit to an

examination made under rule 12.360(a)(1)(B) or subdivision (a)(2) of

this rule.

(E) When a party has failed to comply with an

order under rule 12.360(a)(1)(B) requiring that party to produce

another for examination, the orders listed in subdivisions (b)(2)(A)–

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(b)(2)(C), unless the party failing to comply shows the inability to

produce the person for examination.

Instead of any of the foregoing orders or in addition to

them, the court must require the party failing to obey the order to

pay the reasonable expenses caused by the failure, which may

include attorneys’ fees, unless the court finds that the failure was

substantially justified or that other circumstances make an award

of expenses unjust. Alternatively, the court may defer ruling on the

party’s motion for sanctions until the conclusion of the matter in

controversy.

(c) Expenses on Failure to Admit. If a party fails to admit

the genuineness of any document or the truth of any matter as

requested under rule 12.370 and if the party requesting the

admissions proves the genuineness of the document or the truth of

the matter, the requesting party may file a motion for an order

requiring the other party to pay the requesting party the reasonable

expenses incurred in making that proof, which may include

attorneys’ fees. The court may issue such an order at the time a

party requesting the admissions proves the genuineness of the

document or the truth of the matter, upon motion by the requesting

party, unless it finds that

(1) the request was held objectionable under rule

12.370(a)(3),

(2) the admission sought was of no substantial

importance, or

(3) there was other good reason for the failure to admit.

(d) Failure of Party to Attend at Own Deposition or Serve

Answers to Interrogatories or Respond to Request for

Inspection. If a party or an officer, director, or managing agent of a

party or a person designated under rule 12.310(b)(6) or 12.320(a) to

testify on behalf of a party fails

(1) to appear before the officer who is to take the

deposition after being served with a proper notice,

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(2) to serve answers or objections to interrogatories

submitted under rule 12.340 after proper service of the

interrogatories, or

(3) to serve a written response to a request for

inspection submitted under rule 12.350 after proper service of the

request, the court in which the action is pending may take any

action authorized under subdivisions (b)(2)(A)–(b)(2)(C) of this rule.

Any motion specifying a failure under subdivisions (d)(2) or

(d)(3) must include a certification that the movant, in good faith,

has conferred or attempted to confer with the party failing to

answer or respond in an effort to obtain such answer or response

without court action. Instead of any order or in addition to it, the

court may require the party failing to act to pay the reasonable

expenses caused by the failure, which may include attorneys’ fees,

unless the court finds that the failure was substantially justified or

that other circumstances make an award of expenses unjust. The

failure to act described in this subdivision may not be excused on

the ground that the discovery sought is objectionable unless the

party failing to act has applied for a protective order as provided by