[CLC-Discussion] MTC 558.004(15) document request denied

Tue Oct 20 14:08:25 PDT 2020

Three thoughts:

  1.  Civil Procedure seems to be more of a general/broad use for discovery, as opposed to this particular statute that specifically calls for discovery under certain conditions, so it seems like the statute should control
  2.  The wording of the judge’s order seems to only address that discovery can be made through civil procedure, but the statute calls for sanctions. 558 should function to avoid (excessive) litigation and making a request for discovery per 558 fits this objective
  3.  Perhaps a 57.105 motion should have been made specifically citing non-compliance with 558

Paul J. Kelly
Paul J. Kelly, P.A.
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St. Petersburg, Florida 33713

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Subject: Re: [CLC-Discussion] MTC 558.004(15) document request denied

Another reminder of how 558 is a real beauty.

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
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Subject: Re: [CLC-Discussion] MTC 558.004(15) document request denied

Agreed and with the 30 day time limit it imposes an obligation and undue burden on contractors to essentially produce their file regardless of whether the 558 has merit or not and most times prior to a response even being due.

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of RPPTL CLC-Discussion
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Cc: Brian Tannenbaum; Salvatore Scro
Subject: [CLC-Discussion] MTC 558.004(15) document request denied

This result is how I would expect most circuit judges to respond to such a motion.  This section of the statute as originally conceived was arguably a legislative intrusion into the judicial process.  I can’t think of any other situation where a judge would be asked to sanction a party for pre-litigation discovery non-compliance, especially where the contractor is not obliged under the statute to even make an offer.  What if the production response was late or merely incomplete?  What if there were objections to the discovery?  This brings about a whole layer of dispute which I can understand judges not being inclined to deal with.

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Subject: [CLC-Discussion] MTC 558.004(15) document request denied

Good morning all,
We are representing a homeowner in a defect case. I just received an unexpected result on a Motion to Compel Documents requested under Section 558.004(15), Florida Statutes and for the cost of the motion..

At hearing there was no argument that the contractor was in violation of the section. The judge read to him the part of the motion that said :
“Section 558.004 provides that “any party who failed to provide the requested materials shall be subject to such sanctions as the court may impose for a discovery violation.” Fla. Stat. § 558.004(15).”

He asked him why he shouldn’t award sanctions. Opposing counsel agreed that was the law but argued that now that litigation had begun the request should have been re-submitted under the rules of civil procedure.  I argued against that obviously because the wording and the intent of the statute are clear and the contractor had admitted non-compliance. ,  The judge reserved ruling and came back with a denial with the order stating :  “The Plaintiff may seek discovery using the Rules of Civil Procedure. “

This was in Orange County. Any thoughts?

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
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