DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ORTHOPEDIC CENTER OF SOUTH FLORIDA,

Petitioner,

v.

MICHAEL SODE,

Respondent.

No. 4D18-3478

[June 12, 2019]

Petition for writ of certiorari to the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No. 

CACE-17-011371.

Richard A. Jarolem of Traub Lieberman Straus & Shrewsberry, LLP,

Palm Beach Gardens, for petitioner.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach,

and Thomas H. Leeder of Leeder Law, Plantation, for respondent.

CONNER, J.

In this case, we address a matter of first impression: the extent to which 

the financial discovery limitations applicable to an expert apply to the 

business entity with which the expert is affiliated. Orthopedic Center of 

South Florida (“Petitioner”), a non-party in the action below, petitions for 

a writ of certiorari, seeking to quash a discovery order overruling its 

objections to a proposed subpoena duces tecum. The proposed subpoena 

was served on Petitioner by Michael Sode (“Respondent”). Petitioner 

contends the order compelling it to produce certain documents for 

“reference purposes only” at deposition is beyond the scope of permissible 

discovery under Florida Rule of Civil Procedure 1.280(b)(5) and Elkins v. 

Syken, 672 So. 2d 517 (Fla. 1996). We grant the petitition because we 

conclude that: (1) the protections from invasive discovery afforded to 

individual experts apply equally to the business entity with which the 

expert is affiliated; (2) Respondent used an improper discovery 

methodology; and (3) the order grants impermissible discovery.
2

Background

In the action below, Respondent filed a complaint against the defendant 

for alleged injuries he suffered in a bicycle accident. Respondent served a 

proposed subpoena duces tecum on Petitioner, the business entity under 

which the doctor who performed the compulsory medical exam runs his 

practice. 

Petitioner objected to the discovery requests and moved for a protective 

order. At the hearing, Petitioner conceded that Respondent was entitled 

to some discovery pursuant to Allstate Insurance Co. v. Boecher, 733 So. 

2d 993 (Fla. 1999). However, Petitioner contended that most of what 

Respondent sought was not proper discovery from the examining doctor, 

who was an expert under rule 1.280(b)(5)(A)(iii). Petitioner argued, 

therefore, that Respondent could not circumvent the rule by requesting 

the otherwise impermissible discovery from the non-party corporate entity 

affiliated with the examining doctor. 

Respondent argued that the limits of Elkins and rule 1.280(b)(5) do not 

apply to Petitioner because it is a corporation, and it is not afforded the 

protections of an expert. Respondent argued that the defense expert, along 

with several other doctors, are officers, directors, and partners of 

Petitioner. Respondent asserted that five out of nine of the doctors, who 

are owners of Petitioner, perform compulsory medical examinations for the 

defense. Respondents contended that the partners share in the revenue 

and profits, and that could point to financial bias and incentive for the 

defense expert to accept a certain type of case. Respondent also pointed 

out that it learned through a deposition that the defense firm had hired 

Petitioner 120 times in three years, showing that Petitioner had made 

hundreds of thousands of dollars from this type of work. 

The trial court sustained some objections and overruled others. The 

trial court did not address Petitioner’s objections that the discovery 

exceeded rule 1.280(b)(5), or that such discovery requests were 

burdensome and invasive on a non-party. The trial court did not make 

findings of “unusual or compelling circumstances,” but it compelled the 

discovery. See Fla. R. Civ. P. 1.280(b)(5)(A). The trial court ordered that 

Petitioner’s representative must bring to the deposition “for reference 

purposes only” documents responsive to Respondent’s requests 1, 2, 6, 8-

12, and 15. These paragraphs requested documents pertaining to the 

following:

1. Voire Dire of the Designated Witness(es): Does 

the witness maintain a curriculum vitae or resume? 
3

Please provide a brief description of your biographical 

background, including your employment history and 

educational history. Please describe your relationship 

with the Practice[] and the provenance of your 

designation as its witness for the relevant subject 

matters. Please describe all steps you have taken to 

prepare for your testimony on those subjects matters 

for which you have been designated, including, where 

appropriate, persons interviewed and documents 

reviewed. Have you prepared any notes, written 

summaries, or document collections to assist you in 

making your testimony accurate and complete? Have 

you brought those with you today? During your 

testimony, will you refer to any such notes, written 

summaries, or document collections when necessary to 

ensure your testimony is accurate and complete?

2. Overview and Ownership. Describe the medical 

Practice’s business model and primary business activities. 

Does the medical Practice have any signed contracts with 

the Defendant, Defendant’s Insurance Company, or 

Defendant’s Law Firm[?] Provide the names and identities 

of all persons or entities who hold or have held a direct or 

indirect ownership interest in your Practice. Describe how 

the owners share and divide in the Practice[’]s profits, 

revenues, and expenses. Does the medical Practice track 

the amount of business generated by each doctor within 

the Practice? If yes, how so? Does the doctor that brings 

in or obtains the patient or medical exam receive a larger 

share of the revenue generated by that examination? Do 

the other doctors within the Practice also share in the 

revenue generated by the doctor that brought in the 

patient or exam to a lesser degree?

. . . .

6. Revenues. The percentage of your revenue that is 

generated from providing medical services in the last 

three full years. Please be prepared to specific [sic] the 

percentage of revenue derived from (1) Defense 

Compulsory Medical Exams (DCME); (2) PIP 
4

Independent Medical Exams (PIP IME); (3) Worker’s 

Compensation Claims; (4) Fees for Depositions on 

behalf of Defendants; (5) Trial Testimony on behalf of 

Defendants; (6) Letters of Protection; (7) Health 

Insurance; (8) PIP; (9) Consulting Work. Please be 

prepared to provide the revenue percentage or split for 

your treatment of patients that actually choose your 

Practice versus patients that were referred to your 

Practice for treatment or medical evaluations by 

employers, insurance companies, defense law firms or 

their servicing agents.

. . . .

8. Letters of Protection (LOP). Has your Practice 

accepted LOPs? Under what circumstances does or has 

your Practice accept[ed] LOPs? How many LOPs have you 

accepted in each year? Does accepting an LOP in anyway 

change your doctor’s care and treatment of a patient? 

Whether the Practice has ever accepted less than full face 

value of a medical bill generated under LOP, and if so, the 

average percentage discount you have accepted.

9. DCMEs. Does your Practice perform DCME? Identify 

each doctor within your Practice that performs DCME. 

Who makes the decision in choosing your doctors to 

perform the DCME? Who are you hired by to perform the 

DCME? Provide the total number of DCMEs performed by 

all the doctors in your Practice. Please be able to further 

specify how many DCMEs were performed by each doctor 

within your Practice for each year. Please identify each 

insurance company that [has] paid you for performing 

these DCMEs for each year and the number of times per 

year. Please identify each defense law firm that you [sic] 

enlisted your services in performing DCME for each year 

and the number of times per year.

10. PIP IMEs. Does your Practice perform PIP IMEs? 

Identify each doctor within your Practice that performs PIP 

IMEs. Who chooses your doctors to perform the PIP IMEs? 

Who are you hired by to perform the PIP IMEs? Does the 

injured party choose your doctor? Provide the total 
5

number of PIP IMEs performed by all the doctors in your 

Practice for each year. Please be able to further specify 

how many PIP IMEs were performed by each doctor within 

your Practice for each year. Please identify each insurance 

company that [has] paid you for performing these PIP

IMEs for each year and the number of times per year. 

Please identify each defense law firm that you [sic] enlisted 

your services in performing PIP IMEs for each year and the 

number of times per year.

11. Worker’s Compensation. Does your Practice accept 

worker’s compensation cases? How does your practice 

obtain worker’s compensation cases? Identify the doctors 

in your Practice that provide worker’s compensation 

medical care and treatment to injured employee/patient. 

Does the injured employee/patient get to choose your 

Practice or doctors as their initial choice doctor? Does the 

employer, worker’s compensation insurance company, or 

servicing agent get to choose your Practice as the injured 

employee’s initial choice of doctor? How many injured 

employees/patients worker’s compensation cases does 

your Practice obtain each year as the initial treating 

physician? Does your Practice perform IMEs for 

employers, worker’s compensation insurance companies, 

or their servicing agents? If so, how many IMEs does your 

Practice perform each year for the employer, worker’s 

compensation insurance carrier, and servicing agent? 

Specify how many IMEs each doctor performs per year for 

the employer, worker’s compensation insurance carrier, 

and servicing agent. Does you[r] Practice perform IMEs 

for injured Employees/Claimants? If so, how many IMEs 

does your Practice perform each year for injured 

Employees/Claimants?

12. Consulting. Provide the total number of times you 

have performed consulting work on behalf of any 

defendants, insurance companies, and defense law firms. 

Please be able to further specify how many were performed 

by each doctor in the Practice for each year.

. . . .
6

15. Marketing and Advertising. Does your Practice 

market or advertise its services? If so, what services does 

it market or advertise? How does your Practice market or 

advertise? Does it use any online services or websites? If 

so, identify each online service or website that the Practice 

uses? What specific services does the Practice market or 

advertise using the online services or websites?

Certiorari Analysis

Certiorari review is discretionary. Grabel v. Sterrett, 163 So. 3d 704, 

706 (Fla. 4th DCA 2015). Before relief may be granted, the petition must 

establish a departure from the essential requirements of law, resulting in 

material injury that cannot be corrected on post-judgment appeal. Id. 

“Certiorari jurisdiction does not lie to review every erroneous discovery 

order.” Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1062 (Fla. 

4th DCA 2011) (citing Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 

1995)). As such, appellate courts generally do “not review orders denying 

a party’s over-breadth or burdensome[] objections to discovery.” Id. 

However, disclosure of otherwise private financial information can result 

in irreparable harm if a petitioner affirmatively establishes the discovery 

is irrelevant to any issue in the litigation. Id. 

Respondents contend that because the discovery order is not the 

subject of a “clearly established principle,” certiorari relief is not available, 

and Petitioner will have to wait for a resolution when and if a plenary 

appeal is brought. However, “Petitioner is a non-party, [and] to the extent 

the order compels production of cat-out-of-the-bag information, certiorari 

jurisdiction lies.” Grabel, 163 So. 3d at 706. 

We grant certiorari relief because we conclude that the protections from 

invasive discovery afforded to individual experts apply equally to the 

business entity with which the expert is affiliated. That being the case, we 

determine that certiorari relief should be granted for two additional 

reasons: (1) Respondent used an inappropriate methodology for discovery; 

and (2) the proposed subpoena duces tecum seeks unauthorized 

information. We explain our reasoning.

Protections Afforded to Individual Experts Apply to Business Entities

In Elkins, our supreme court recognized the necessity of striking a 

balance between a party’s need for information to demonstrate a medical 

expert’s potential bias, with the expert’s right to be free from burdensome 

and intrusive discovery requests. 672 So. 2d at 522. In striking that 
7

balance, the supreme court adopted rule 1.280(b)(5), which limits 

discovery from experts who are obviously hired by one party. See Worley 

v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18, 22-23 (Fla. 2017) 

(discussing reasons for adopting rule 1.280(b)(5)(A)(iii)). The limitations 

were deemed necessary to prevent overly intrusive and harassing financial 

discovery which “serves only to emphasize in unnecessary detail that 

which would be apparent to the jury on the simplest cross-examination: 

that certain doctors are consistently chosen by a particular side in 

personal injury cases to testify on its respective behalf.” Elkins, 672 So. 

2d at 521 (approving and quoting Syken v. Elkins, 644 So. 2d 539, 545 

(Fla. 3d DCA 1994)). The Elkins court further explained:

Discovery was never intended to be used as a tactical tool to 

harass an adversary in a manner that actually chills the 

availability of information by non-party witnesses; nor was it 

intended to make the discovery process so expensive that it 

could effectively deny access to information and witnesses or 

force parties to resolve their disputes unjustly. To allow 

discovery that is overly burdensome and that harasses, 

embarrasses, and annoys one’s adversary would lead to a lack 

of public confidence in the credibility of the civil court process. 

The right to a jury trial in the constitution means nothing if 

the public has no faith in the process and if the cost and 

expense are so great that access is basically denied to all but 

the few who can afford it. In essence, an overly burdensome, 

expensive discovery process will cause many qualified experts, 

including those who testify only on an occasional basis, to 

refrain from participating in the process, particularly if they 

have the perception that the process could invade their 

personal privacy.

Id. at 522. 

Rule 1.280(b)(5) specifically provides: 

(5) Trial Preparation: Experts. Discovery of facts known and 

opinions held by experts, otherwise discoverable under the 

provisions of subdivision (b)(1) of this rule and acquired or 

developed in anticipation of litigation or for trial, may be 

obtained only as follows:

. . . .
8

(A)(iii) A party may obtain the following discovery regarding 

any person disclosed by interrogatories or otherwise as a 

person expected to be called as an expert witness at trial:

1. The scope of employment in the pending case and

the compensation for such service.

2. The expert’s general litigation experience, including 

the percentage of work performed for plaintiffs and 

defendants.

3. The identity of other cases, within a reasonable time 

period, in which the expert has testified by deposition 

or at trial.

4. An approximation of the portion of the expert’s 

involvement as an expert witness, which may be based

on the number of hours, percentage of hours, or 

percentage of earned income derived from serving as an 

expert witness; however, the expert shall not be 

required to disclose his or her earnings as an expert 

witness or income derived from other services.

An expert may be required to produce financial and business 

records only under the most unusual or compelling 

circumstances and may not be compelled to compile or produce 

nonexistent documents. Upon motion, the court may order 

further discovery by other means, subject to such restrictions 

as to scope and other provisions pursuant to subdivision 

(b)(5)(C) of this rule concerning fees and expenses as the court 

may deem appropriate.

Id. (emphases added). 

We conclude that the protections afforded to an expert under rule 

1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner, the non-party 

corporate entity with which the expert is affiliated. To hold otherwise 

would render Elkins and Rule 1.280 meaningless and create the same 

“chilling effect” from which Elkins sought to protect experts.

Improper Methodology

We begin with the observation that the notice of proposed subpoena 

duces tecum under review is unusual in its methodology. Specifically, it 
9

more accurately appears to be a document asking questions or requesting 

descriptions, rather than listing types of documents sought. According to 

the petition, Respondent served Petitioner with a proposed subpoena 

duces tecum in conjunction with the oral deposition of a corporate 

representative on a date to be determined in the future. We further note 

that the order granting discovery directs that Petitioner’s representative 

must bring to the deposition, “for reference purposes only,” documents 

responsive to Respondent’s requests. Thus, we assume the trial court 

construed the proposed subpoena duces tecum to be a discovery vehicle 

in which Respondent put Petitioner on notice of the questions Respondent 

would be asking during deposition, with the expectation that the deponent 

would bring documents to the deposition that would verify the answers to 

the questions.

The use of a proposed subpoena duces tecum for the production of 

documents for use at deposition is authorized under Florida Rule of Civil 

Procedure 1.310(b)(1). Fla. R. Civ. P. 1.310(b)(1) (“If a subpoena duces 

tecum is to be served on the person to be examined, the designation of the 

materials to be produced under the subpoena must be attached to or 

included in the notice [of taking deposition].”). We note that Florida Rule 

of Civil Procedure 1.351 addresses production of documents without 

deposition from non-parties. See Fla. R. Civ. P. 1.351(a). The procedure 

under rule 1.351 provides that advance notice of the request for 

production is accomplished by attaching to the notice a copy of the 

subpoena proposed to be served which, among other things, “shall include 

a designation of the items to be produced[.]” Fla. R. Civ. P. 1.351(b). We 

do not agree that the language of the rules requiring “the designation of 

the materials to be produced under the subpoena,” Fla. R. Civ. P. 

1.310(b)(1), or “a designation of the items to be produced” without 

deposition, Fla. R. Civ. P. 1.351(b), allows for a subpoena that asks 

questions or requests descriptions, rather than list the types of documents 

sought. Respondent has cited no caselaw for such an interpretation. Such 

an interpretation is fraught with problems, not the least of which would 

be the onslaught of motions addressing objections or compliance issues, 

revolving around interpreting the actual information sought by 

propounding a question. 

Subpoena Duces Tecum Seeks Unauthorized Information

As stated above, the protections afforded to an expert under rule 

1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner. Accordingly, to 

the same extent such information could be obtained from an expert, we 

conclude it is proper to seek the production of documents from a business 

entity non-party with whom an expert is affiliated that could establish bias 
10

on the part of the expert. Therefore, except as to paragraphs 1 and 15 of 

the proposed subpoena, we conclude that the trial court went well beyond 

the limits of rule 1.280(b)(5) and Elkins. The contested order permits

excessive discovery, with no finding of unusual or compelling 

circumstances. For example, the request under paragraph 2 (“Overview 

and Ownership”) quoted above, seeks the following information:

Provide the names and identities of all persons or entities who 

hold or have held a direct or indirect ownership interest in 

your Practice. Describe how the owners share and divide in 

the Practice[’]s profits, revenues, and expenses. Does the 

medical Practice track the amount of business generated by 

each doctor within the Practice? If yes, how so? Does the 

doctor that brings in or obtains the patient or medical exam 

receive a larger share of the revenue generated by that 

examination? Do the other doctors within the Practice also 

share in the revenue generated by the doctor that brought in 

the patient or exam to a lesser degree?

Such a request is not authorized under rule 1.280(b)(5)(A)(iii) or Elkins. 

We reject Respondent’s argument that proof that the defense law firm hired 

Petitioner, a business entity with nine doctors, for 120 cases in three years 

supports an “unusual or compelling circumstance” for the requested 

information.

Finally, to the extent this case presents a novel issue, we note Judge 

May’s specially concurring opinion in Coopersmith v. Perrine, 91 So. 3d 

246 (Fla. 4th DCA 2012):

In an effort to discredit medical witnesses for the other side, 

attorneys for both plaintiffs and defendants are exceeding the 

bounds of the rules of civil procedure, confidentiality laws, 

and professionalism by engaging in irrelevant, immaterial, 

burdensome, and harassing discovery. Parameters have 

already been expanded to allow both sides to explore financial 

interests of medical witnesses and the volume of referrals to 

those witnesses. See Elkins v. Syken, 672 So. 2d 517 (Fla. 

1996). And now, attempts to expand the scope of that 

discovery to treating physicians as well as retained experts are 

usurping the limited resources of our trial courts. This not 

only creates unnecessary burdens on our over-strained 

justice system, it further taints the public’s view of our 

profession.
11

Id. at 248 (May, C.J., specially concurring). We caution trial counsel from 

employing, and trial courts from approving, novel discovery methods 

which exceed the limits of authorized discovery.

Petition granted. 

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.