Friday, August 14, 2009

Third District on Post-Judgment Discovery

In BDO Seidman, LLP v. Banco Espirito Santo International, Ltd., et al (3D07-2472), on a motion for review and cross motion to enforce mandate, the Third District analyzed the scope of discovery permitted after an appellant has posted the maximum fifty million dollar supersead bond but which is not sufficient to satisfy the judgment.

First, the court addressed its prior opinion within which it held a judgment and discovery in aid of execution are stayed by the filing of a supersedeas bond.

The original opinion "did not, however, address discovery authorized by section 45.045(3) for the purpose of determining whether assets have been or are being dissipated during a stay authorized by section 45.045(1)."

Of course, section 45.045(3) should not be read as authorization for an unfettered fishing expedition through an appellant’s records,3 which would amount to no more than discovery in aid of execution. Section 45.045(3) neither nullifies the protection provided by compliance with section 45.045(1) nor conflicts with our statements in BDO I. Rather, section 45.045(3) provides a narrow avenue for discovery for a limited stated purpose. Accordingly, Banco Espirito’s motion for review is granted. On remand, and after a careful review of the materials sought, section 45.045(3) discovery may be permitted, but only to the extent that the trial court determines that the discovery sought is “for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so.” §45.045(3), Fla. Stat. (2009).


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