A Florida Divorce & Child Custody attorney provides answers to the most common questions when appealing discovery orders in a Florida divorce or child custody case.
APPEALING DISCOVERY ORDERS THROUGH A WRIT OF CERTIORARI
Sometimes divorce court judges in Florida make mistakes when it comes to requiring you to produce sensitive financial information or documentation that is not relevant to your lawsuit or another person’s lawsuit. In this situation, there is a process for seeking an order from an appellate court to prevent you from producing what should be kept private. Such an order is known as a Writ of Certiorari. The process for obtaining a Writ of Certiorari to prevent you from having to respond to inappropriate requests for information connected to a divorce or child custody lawsuit is explained in further detail below.
As with other appeals, a Petition for Writ of Certiorari must be initiated within 30 days of the rendition date of the lower court’s order. However, unlike most appeals, you really need to “be ready to go” by the deadline, because to appeal you must file what is essentially an appellate brief with the appellate court by the 30 day deadline.
When filing a Petition for Writ of Certiorari in Florida for purposes of limiting financial discovery you need to convince the appellate court that the trial court (1) departed from the essential requirements of the law by granting the discovery and (2) that you will suffer incredible harm that is irreparable if the appeal is not addressed immediately.
If your Petition for Writ of Certiorari is convincing, the appellate court will require the other party to file a response to your request for the Writ, which is essentially equivalent to an Answer Brief. Thereafter, you will be permitted to file a response to the other party’s response before the appellate court makes a final decision.
To obtain a Writ of Certiorari to stop a discovery request, you typically need to establish that (1) the information sought is privileged or irrelevant and (2) represents “cat out of the bag information” that will forever harm the party seeking to stop the disclosure.
As an example, if the divorce court judge orders you to disclose a trade secret that does not have to do with the divorce, you might obtain a Writ of Certiorari, because once the trade secret is disclosed, the “secret” is no longer a “secret”.
A common area of a request for certiorari involves when one party seeks financial discovery from you that is beyond the scope of what is relevant to your case. This often arises in the context of cases to modify support or set aside a settlement agreement. In these types of cases, only limited disclosure of financial information is appropriate. As such, your constitutional right to privacy of financial information would be violated if you had to produce financial information not relevant to the case. In these cases, appellate courts are likely to grant the Petition for Writ of Certiorari.
Another area where it is common to see an appellate court grant a Writ of Certiorari is when the divorce court judge requires production of documents that are subject to an applicable privilege, such as the attorney client privilege. In these situations, the only way to stop the disclosure of the privileged information is to seek a Writ of Certiorari.
There are other situations when seeking a Writ of Certiorari is appropriate. The bottom line is that if a divorce court judge enters a non-final order that is not appealable, you should seek out a qualified appellate lawyer to determine if there is a basis for seeking a Writ of Certiorari. Given the applicable time deadlines, you should attempt to seek assistance of appellate counsel as soon as possible.
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