Fla. R. Civ. P. 1.380

Failure to Make Discovery; Sanctions

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RULE 1.380. 	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 1.310(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.
(A) 	If a party fails to make a disclosure required by
rule 1.280(a), any other party may move to compel disclosure and
for appropriate sanctions.

(B) 	The discovering party may move for an order
compelling an answer if:
(i) 	a deponent fails to answer a question
propounded or submitted under rule 1.310 or 1.320; or
(ii) 	a party fails to answer an interrogatory
submitted under rule 1.340.
(C) 	The discovering party may move for an order
compelling a designation if a corporation or other entity fails to
make a designation under rule 1.310(b)(6) or 1.320(a).
(D) 	The discovering party may move for an order
compelling an inspection if a party in response to a request for
inspection submitted under rule 1.350 fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested.
(E) 	The discovering party may move for an order
compelling an examination if a party:
(i) 	in response to a request for examination
of a person submitted under rule 1.360(a) objects to the
examination;
(ii) 	fails to respond that the examination will
be permitted as requested;
(iii) 	fails to submit to examination; or
(iv) 	fails to produce a person in that party’s
custody or legal control for examination
(F) 	A discovering party may move for an order
compelling a response if a party fails to produce documents and
things under rule 1.350(b).
(G) 	When taking a deposition on oral examination,
the proponent of the question may complete or adjourn the
examination before applying for an order.

(H) 	If the court denies the motion in whole or in
part, it may make the protective order as it would have been
empowered to make on a motion made under rule 1.280(d).
(3) 	Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer is treated as a failure
to answer.
(4) 	Award of Expenses of Motion.
(A) 	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 opposition to the motion was
substantially justified or that other circumstances make an award
of expenses unjust.
(B) 	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.
(C) 	If the motion is granted in part and denied in
part, the court may apportion the reasonable expenses incurred as
a result of making the motion among the parties and persons.
(b) 	Failure to Comply with Order.
(1) 	If, after being ordered to do so by the court, a
deponent fails to be sworn or to answer a question or produce
documents, 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 1.310(b)(6) or 1.320(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 1.360, 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 will 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 1.360(a)(1)(B) or subdivision (a)(2) of
this rule.
(E) 	When a party has failed to comply with an
order under rule 1.360(a)(1)(B) requiring that party to produce
another for examination, the orders listed in subdivisions (b)(2)(A),
(b)(2)(B), (b)(2)(C), and (b)(2)(D) of this rule, unless the party failing
to comply shows the inability to produce the person for
examination.
(3) 	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.

(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 1.370 and if the party requesting the
admissions thereafter 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 must issue the order at the time a
party requesting the admissions proves the genuineness of the
document or the truth of the matter, on motion by the requesting
party, unless it finds that:
(1) 	the request was held objectionable under rule
1.370(a);
(2) 	the admission sought was of no substantial
importance; or
(3) 	there was other good reason for the failure to admit.
(d) 	Failure to Disclose or to Supplement an Earlier
Response. If a party fails to provide information or identify a
witness as required by rule 1.280(a) or (g), the party is not allowed
to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction,
the court, on motion and after giving an opportunity to be heard:
(1) 	may order payment of the reasonable expenses,
including attorneys’ fees, caused by the failure;
(2) 	may inform the jury of the party’s failure; and
(3) 	may impose other appropriate sanctions, including
any of the orders listed in rule 1.380(b)(2)(A)–(b)(2)(D).
(e) 	Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for
Inspection.

(1) 	The court in which the action is pending may take
any action authorized under subdivisions (b)(2)(A)–(b)(2)(C) of this
rule if a party or an officer, director, or managing agent of a party or
a person designated under rule 1.310(b)(6) or 1.320(a) to testify on
behalf of a party fails:
(A) 	to appear before the officer who is to take the
deposition after being served with a proper notice;
(B) 	to serve answers or objections to
interrogatories submitted under rule 1.340 after proper service of
the interrogatories; or
(C) 	to serve a written response to a request for
inspection submitted under rule 1.350 after proper service of the
request.
(2) 	Instead of any order or in addition to it, the court
must 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.
(3) 	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 rule 1.280(d).
(f) 	Failure to Preserve Electronically Stored Information.
If electronically stored information that should have been preserved
in the anticipation or conduct of litigation is lost because a party
failed to take reasonable steps to preserve it, and it cannot be
restored or replaced through additional discovery, the court:
(1) 	on finding prejudice to another party from loss of
the information, may order measures no greater than necessary to
cure the prejudice; or

(2) 	only on a finding that the party acted with the
intent to deprive another party of the information’s use in the
litigation may:
(A) 	presume that the lost information was
unfavorable to the party;
(B) 	instruct the jury that it may or must presume
the information was unfavorable to the party; or
(C) 	dismiss the action or enter a default judgment.
Committee Notes
1972 Amendment. Derived from Federal Rule of Civil
Procedure 37 as amended in 1970. Subdivision (a)(3) is new and
makes it clear that an evasive or incomplete answer is a failure to
answer under the rule. Other clarifying changes have been made
within the general scope of the rule to ensure that complete
coverage of all discovery failures is afforded.
2003 Amendment. Subdivision (c) is amended to require a
court to make a ruling on a request for reimbursement at the time
of the hearing on the requesting party’s motion for entitlement to
such relief. The court may, in its discretion, defer ruling on the
amount of the costs or fees in order to hold an evidentiary hearing
whenever convenient to the court and counsel.
2005 Amendment. Following the example of Federal Rule of
Civil Procedure 37 as amended in 1993, language is included in
subdivision (a)(2) that requires litigants to seek to resolve discovery
disputes by informal means before filing a motion with the court.
This requirement is based on successful experience with the federal
rule as well as similar local rules of state trial courts. Subdivision
(a)(4) is revised to provide that a party should not be awarded its
expenses for filing a motion that might have been avoided by
conferring with opposing counsel. Subdivision (d) is revised to
require that, where a party failed to file any response to a rule
1.340 interrogatory or a rule 1.350 request, the discovering party

should attempt to obtain such responses before filing a motion for
sanctions.
2012 Amendment. Subdivision (e) is added to make clear that
a party should not be sanctioned for the loss of electronic evidence
due to the good-faith operation of an electronic information system;
the language mirrors that of Federal Rule of Civil Procedure 37(e).
Nevertheless, the good-faith requirement contained in subdivision
(e) should prevent a party from exploiting the routine operation of
an information system to thwart discovery obligations by allowing
that operation to destroy information that party is required to
preserve or produce. In determining good faith, the court may
consider any steps taken by the party to comply with court orders,
party agreements, or requests to preserve such information.
2013 Amendment. This rule was amended to add
“substantially” before “justified” in subdivisions (a)(4), (b)(2), and (d),
to make the rule internally consistent and to make it more
consistent with Federal Rule of Civil Procedure 37, from which it
was derived.
2019 Amendment. Subdivision (e) of this rule was amended
to make it consistent with Federal Rule of Civil Procedure 37(e).

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