Liebreich v. Church of Scientology Flag Service Organization, Inc.
855 So. 2d 658, 2003 WL 22023439, 2003 Fla. App. LEXIS 13023 (2003)
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Rule of Law:
Florida Rule of Civil Procedure 1.380(a)(4) limits an award of expenses for a motion to compel discovery to only those reasonable expenses incurred in obtaining the order, and a trial court must consider apportioning such expenses if the motion is granted in part and denied in part.
Facts:
- The Church of Scientology Flag Service Organization, Inc. (Flag) filed a lawsuit against Dell Liebreich for breach of contract and tortious interference with a contractual relationship.
- Kennan Dandar and Thomas Dandar represent Liebreich in this and other litigation involving the Church of Scientology.
- During Liebreich’s deposition in Texas, her counsel advised her not to answer various questions, citing attorney-client privilege and other grounds.
- Flag’s counsel adjourned the deposition to obtain a telephone conference with Judge Baird, who advised that specific rulings required a motion to compel discovery.
- The deposition resumed, and Liebreich’s counsel again advised her to refrain from answering a number of further questions on attorney-client privilege and other grounds.
Procedural Posture:
- Flag filed a lawsuit against Liebreich in a trial court for breach of contract and tortious interference.
- After Liebreich's deposition, Flag filed a motion pursuant to Florida Rule of Civil Procedure 1.380(a), seeking an order compelling Liebreich to answer specific questions and for an award of expenses.
- The trial court heard the motion and determined that five of seventeen questions were protected by attorney-client privilege, while twelve were not, and ordered Liebreich to answer the twelve questions.
- The trial court ordered sanctions, stating that Flag was entitled to recover reasonable attorney’s fees and expenses in connection with the motion to compel and the Texas deposition.
- After a hearing to determine the reasonable amount of fees and expenses, the trial court entered a final judgment awarding Flag $11,824.26 as a sanction against Liebreich and her counsel.
- Dell Liebreich, individually and as personal representative of the estate of Lisa McPherson, and her attorneys Kennan Dandar and Thomas Dandar (appellants) challenged this final judgment, appealing to the Florida District Court of Appeal.
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Issue:
Does Florida Rule of Civil Procedure 1.380(a)(4) permit a trial court to award expenses incurred beyond those directly related to obtaining an order compelling discovery, and must a court consider apportioning expenses when a motion to compel is granted in part and denied in part?
Opinions:
Majority - Silberman, Judge.
No, Florida Rule of Civil Procedure 1.380(a)(4) does not permit a trial court to award expenses incurred beyond those directly related to obtaining an order compelling discovery, and a court must consider apportioning expenses when a motion to compel is granted in part and denied in part. The rule specifically limits the award of costs to “reasonable expenses incurred in obtaining the order.” The trial court in this case improperly awarded fees and costs incurred for the Texas deposition itself, which went beyond the scope of “obtaining the order” to compel discovery, as confirmed by a prior appellate ruling in Ford Motor Co. v. Garrison. Furthermore, when a motion to compel is granted in part and denied in part, the rule provides that “the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.” The trial court here failed to make findings regarding whether it considered apportionment, despite ruling in Liebreich's favor on five of the seventeen questions. Therefore, the award of sanctions must be reversed and remanded for recalculation to include only expenses for obtaining the order and for consideration of apportionment.
Analysis:
This case emphasizes a strict interpretation of Florida Rule of Civil Procedure 1.380(a)(4) regarding the scope of recoverable expenses for discovery sanctions. It clarifies that such awards are limited to the costs directly associated with securing the court order, not the underlying discovery activity itself. The ruling also reinforces the trial court's obligation to consider apportionment of expenses when a motion to compel is partially successful, promoting fairness by ensuring that a party is not fully penalized when some of their objections were valid. This serves as an important reminder to litigators and trial courts to meticulously document and justify discovery expenses and to carefully apply the rule's provisions.
