Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

What is discovery in a Florida divorce? This is a process in which parties seek information to support his or her side of the case. For example, in discovery parties may request of each other paystubs and bank statements for purposes of discovering the other parties’ income for calculation of child support. Can a party object to discovery? Maybe, and whether or not the objection will be sustained depends on the nature of the discovery sought, among other factors. This is illustrated in the case McCloud v. Tackett 1D20-1782 (Fla. 1st DCA December 10, 2020).

The parties were involved in a divorce case and they disagreed about time-sharing for their minor children. Due to the husband’s demanding work schedule, he relied on his live-in fiancee to communicate with his lawyers about the case, as well as a private investigator hired by him. At some point in the proceedings, the husband was awarded majority time-sharing with the children. The wife then sent discovery requests for “production of copies of any communications sent or received by [the husband’s fiancee] regarding any matter related to parenting or time-sharing of the parties' children, along with communications regarding [the wife]. The latter request encompassed communications between [the husband’s fiancee] and any attorney representing [the husband] or between [the husband’s fiancee] and the private investigator employed by [the husband]. [The wife] also requested financial documents relating to expenditures made by [the husband and his fiancee] on behalf of the children.”

The trial court found that communications between the fiancee and the husband’s attorneys was privileged because the fiancee acted as an agent for the husband. The court therefore decided that communications between the fiancee and the husband’s lawyer were covered by the attorney-client privilege and could not be disclosed. The fiancee was nonetheless ordered to appear for her deposition and the wife was permitted to issue revised discovery requests which were not covered by the attorney-client privilege. The wife appealed by filing a petition for writ of certiorari, claiming the trial court departed from the essential requirements of the law by denying her the discovery she sought and that she would be irreparably harmed.

The appellate court began by discussing the application of a writ of certiorari to discovery matters: "‘For a denial of discovery to constitute material, irreparable harm, thus conferring certiorari jurisdiction, the denial must 'effectively eviscerate[] a party's claim, defense, or counterclaim.' [citation omitted]. Stated differently, ‘[c]ertiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of trial courts.’ Owusu v. City of Miami, 45 Fla. L. Weekly D879, D879 (Fla. 3d DCA Apr. 15, 2020) [citation omitted].”

Applying this standard to the wife’s claim, the appellate court dismissed the wife’s petition, holding “The same is true here. [The wife] asserts that the court's order denies her the ability to obtain ‘essential information regarding the relationship between [the fiancee] and the minor children’; [the husband’s] ‘true relationship with the minor children’; [the husband’s] ‘views regarding [Petitioner's] relationship with the children"‘; and ‘the beliefs as to what the nature of [the wife’s] ongoing relationship with the children should be[.]’ But all of these issues may be thoroughly scrutinized when [the fiancee] is deposed. Thus, we can confidently say that the trial court's discovery ruling ‘does not effectively eviscerate’ [the wife’s] ability to advance her claims or present her defenses.”

Discovery is an important part of building a Florida family law case. Schedule a consultation with a Miami family law attorney to go over a solid discovery plan for your case.