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The Sode Case And The Limits On Discovery

Discovery is an essential process in any legal case. During the discovery period, both plaintiffs and defendants have the right to investigate the incident in question and learn about the evidence, witnesses, and experts that the other side lines up to present their case. This is to make sure neither side gets ambushed during the trial by evidence they aren’t prepared for. After all, it can be hard to explain something suspicious when you’re on the spot, even if you have a good explanation.

Another reason why thorough discovery is important is because it encourages both sides to settle. When both sides know all the facts of a case, it’s often easy to see who has the better argument. That’s why it’s rare for a case to go to trial unless one side is being especially stubborn or the case is genuinely ambiguous.

Discovery’s Limits



Discovery is supposed to be thorough because it’s hard to know what’s relevant until you have all the information. However, you aren’t allowed to ask for everything. People have a right to privacy, so (for instance) you can’t ask a witness for their relationship history when it has nothing to do with the case.

This protection of privacy extends to most of an expert witness’s background. Expert witnesses are allowed to examine and comment on evidence in a court case, so it’s important to establish their credentials and the reason you should trust their opinions. However, experts can often be biased because of their personal history or where their paycheck comes from. That’s why both sides are allowed to bring in their own experts to comment on the same evidence.

The risk of bias is also why lawyers will often demand background information on expert witnesses, information like business practices, client histories, which cases they offered testimony for in the past, and who owns the business they work for. However, most of this information is protected by things like Florida’s Rules of Civil Procedure. Expert witnesses need to prove their expertise, and the opposing party can check if they’re biased, but they can’t be excessive about it.

The Orthopedic Center of South Florida v. Michael Sode



This rule of reasonable discovery was recently underlined by the Fourth District Court of Appeals in Florida. Michael Sode is suing a construction company in Broward County in a personal injury lawsuit, and as part of the suit he went through a compulsory medical exam. This was so the examining doctor could provide expert testimony for the case.

After the exam, Sode’s lawyer subpoenaed the company the doctor worked for, the Orthopedic Center of South Florida, for detailed information about its business practices and finances. The argument was that a corporation that offers an expert witness doesn’t have the same privacy protections as the individual witness. The Orthopedic Center disagreed, and they filed a petition with the Fourth DCA. The court ruled in their favor, saying corporations do get the same protections.

It’s worth noting that this ruling is specifically about corporations connected to expert witnesses, not corporations directly involved in a case. Financial information and business practices are often essential to understand a corporation’s motivations and actions, and this ruling doesn’t affect subpoena access when the corporation is a defendant.

It’s unlikely this ruling will be overturned if Sode’s lawyers try to appeal since it merely extends the state’s existing rules on protecting expert witnesses. Still, it’s a strong reminder to lawyers on both sides to keep the discovery period on task.