Courts Must Make a Finding of Good Cause to Prevent Discovery of Documents that Are Reasonably Calculated to Lead to the Discovery of Admissible Evidence

Posted on February 21, 2018

In Boren v. Rogers, 2018 Fla. App. LEXIS 1347 (Fla. 5th DCA 2018), the Court addressed the issue of whether Petitioner, Ann Boren, was entitled to a review of the documents she requested from Thomas Rogers, Esquire, the purported Trustee of the Trusts at issue and also the attorney who prepared the trust documents . Fla. R. Civ. P. 1.280(b)(1) allows a party to obtain discovery regarding any non-privileged information that is relevant to the subject matter of the pending action and that would be admissible at trial or appears reasonably calculated to lead to the discovery of admissible evidence. Subsection (c) of that rule permits a court, upon a showing of good cause, to order that discovery not be had.

Petitioner filed an amended complaint seeking to void a 2014 trust and a 2013 trust, both executed by Elaine Mullins (“Mullins”). Petitioner alleged that Mullins’ long standing estate plan provided that her assets would be distributed among certain family members, including Petitioner. Later in Mullins’ life, she was befriended by Evelyn Rivera (“Rivera”), Co-Respondent and a non-family member, who allegedly unduly influenced Mullins into creating the 2013 and 2014 trusts. These trusts named Rivera as a substantial beneficiary and cut out the Petitioner.  The Co-Respondent and designated Trustee, Thomas Rogers, Esquire (“Rogers”) answered the complaint and asserted that Petitioner lacked standing to void the trusts under the doctrine of dependent relative revocation because the trust was initially created in 1992 and was amended and/or restated in 1996, 2000, 2002, 2005, 2007, 2013, and 2014. Co-Respondent Rogers stated that Petitioner must first show she would have been a beneficiary under an earlier trust before she would be entitled to receive a copy of the most recent trust documents.

Petitioner requested Co-Respondent Rogers produce these documents, and Co-Respondent Rogers moved for a protective order for all the requested documents. Co-Respondent Rogers gave the court four reasons for his protective order: 1) Petitioner must overcome the presumption that Mullins’ 1988 will is lost or destroyed; 2) Petitioner’s request was overbroad because it asked for documents from a period of twenty-two to thirty years; 3) the requested documents are irrelevant to the amended complaint and should not be produced because Petitioner did not allege the specific trust for which she claims that she is a beneficiary and, without having possession of the original 1988 will, Petitioner must first overcome the presumption that this will was destroyed by Mullins; and 4) the requested documents contain Mullins’ “private financial information,” and are protected by the constitutional right of privacy. See Art. I, § 23, Fla. Const. Following the initial hearing on the motion for protective order, the trial court directed Rogers provide the trust instruments from 1992 to 2007 to the Court for its in-camera review.  Following its review of the documents, the Court ordered that Petitioner was “not entitled to a review of those documents,” and granted the motion in its entirety as to all requested documents without further explanation.

The Fifth District Court of Appeal (“Fifth DCA”) found that the trial court made no finding of good cause and provided no explanation in its order for denying the motion. It also did not separately analyze the individual requests in Petitioner’s discovery request. Petitioner’s request was directed at documents that are, based on the allegations in the amended complaint, likely admissible at trial or otherwise reasonably calculated to lead to admissible evidence. Further, this order eviscerates Petitioner’s claim because she would need the trust documents at trial to establish that she has standing as a prior interested beneficiary in the trust to bring this suit. This cannot be remedied on direct appeal because, without access to these documents, Petitioner does not have the ability to explain or demonstrate on direct appeal how the trust documents would have established her standing.

Because the trial court did not make the requisite finding of good cause as to why these trust documents must be protected from production, the Fifth DCA granted the petition for writ of certiorari, quashed the protective order, and remanded the case back to the trial court to either permit discovery of the requested trust documents or make the requisite finding of good cause as to why these trust documents must be protected.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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