Opinion
No. 4D00-2880.
Opinion filed November 15, 2000.
Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. Case No. 99-3657CACE 08.
Jonathan M. Sabghir of Sabghir Associates, Tamarac, for petitioner.
Stuart B. Yanofsky of Conroy, Simberg Ganon, P.A., Hollywood, for Respondent, American General Corporation.
We grant the petition for writ of certiorari and quash the trial court's July 19, 2000 ex parte order granting respondent American General Corporation's motion to compel petitioner to produce certain medical records pursuant to a subpoena duces tecum. Petitioner did not attend the hearing on the motion because, he claims, he did not receive notice of the hearing. Respondents did not provide any evidence to refute petitioner's claim.
Although Local Rule 10 of the 17th Judicial Circuit allows for ex parte orders compelling discovery, such order may be entered only when the motion to compel alleges a complete failure to respond or object to discovery, and there has been no request for extension of time. Where those conditions are not met, Florida Rules of Civil Procedure 1.380(a) and 1.090(d) apply, requiring that the motion not be heard without proper notice. See American Cas. Ins. Co. v. Bly Elec. Const. Serv., Inc., 562 So.2d 825 (Fla. 4th DCA 1990). In the present case, we find that respondents failed to show that there was a complete failure to respond or object to the subpoena duces tecum. We therefore remand for further proceedings consistent with this opinion.
DELL, FARMER and SHAHOOD, JJ., Concur.