Nothing Is Certain Except for Death, Taxes…and Exclusion of Evidence?: How Deterrence Theory and a Federal Circuit Split Reveal a Need To Amend Florida Rule of Civil Procedure 1.380(d)

Florida Rule of Civil Procedure 1.380(d) is deceptively simple. When a party fails to fulfill their initial disclosure obligations under Rule 1.280(a) or (g), that party is “not allowed” to use the undisclosed information or witness for evidentiary purposes going forward.^[1] However, if the failure was either substantially justified or is harmless, then the party is not disallowed from using that information or witness.^[2] Further, a court may, “[i]n addition to or instead of this sanction,” impose alternative sanctions as provided in the rule.^[3]

Because Rule 1.380(d) was amended in 2025, there are very few appellate decisions referencing its current form.^[4] However, the rule’s amendments have been clear about its origins. The Civil Procedure Rules Committee has consistently followed the federal version of the same rule — Federal Rule of Civil Procedure 37 — in modifying the Florida rule.^[5] Indeed, Rule 1.380(d) is identical to its federal Rule 37(c)(1) counterpart.^[6] In Gleneagle Ship Management. Co. v. Leondakos, 602 So. 2d 1282, 1283-84 (Fla. 1992), the Florida Supreme Court recognized this relationship and articulated that federal rules and decisions can be used as guidance in interpreting Florida’s own civil procedure rules. Given the dearth of Florida appellate decisions, any state court addressing this rule would likely consider equivalent federal caselaw.

Here lies a fundamental problem: For 30 years, federal courts have been divided on how to interpret Rule 37(c)(1).^[7] Some circuits have held that the absence of either exception (substantial justification or harmless) mandates exclusion, which this article describes as the “automatic exclusion view.”^[8] Others understood the rule as permitting district courts to impose alternative sanctions instead of exclusion, even when a party has not shown their failure to be substantially justified or harmless.^[9] This article describes this as the “discretionary exclusion view.” Still, others have alternated between both groups, adding to the confusion.^[10]

One might ask why this federal circuit split has any bearing on Florida’s own rule. After all, Florida is free to choose its own procedural path. What prevents Florida from simply interpreting Rule 1.380(d) in its own way, irrespective of the federal circuit split?^[11] The answer is simple: The rule is textually flawed.

This article examines the federal circuit split in detail and explains how it is ultimately derived from a fundamental textual flaw in Rule 37(c)(1). This article further argues why the automatic exclusion view better serves both rules’ underlying goals, but requires Rule 1.380(d) to be amended to resolve the textual flaws. For ease of reading, note that because Rule 1.380(d) is based on and identical to its federal rule counterpart,^[12] all references and reasoning pertaining to Rule 37(c)(1) apply equally to Rule 1.380(d).

Background

• The Rule 37(c)(1) Circuit Split — Almost all of the federal circuit courts have taken places on either side of the split at some point. The 11th Circuit is the only exception,^[13] which is notable given it includes Florida. However, it is difficult to place certain circuits squarely on either side because many have alternated their view over the past 30 years, warranting a third group of circuits with uncertain positions.^[14]

1) The “Automatic Exclusion View” Group: “Automatic view” circuit courts have seen Rule 37(c)(1) as imposing upon courts a mandate to exclude evidence running afoul of mandatory disclosure requirements. These courts generally view the rule as functioning automatically, although some have extended further beyond that baseline.

Courts in this group generally read the rule strictly, separating the first sentence’s mandate from the second sentence’s allowance of discretion. When a party fails to properly disclose required information and does not satisfy either exception, that information must be excluded.^[15] This view is based on both the rule’s text and the notes of the federal Advisory Committee on Civil Rules, specifically the committee’s characterization of the sanction as automatic and self-executing.^[16]

Where courts in this group begin to deviate from each other is in terms of how many exceptions they grant to the general mandate. First, at least two courts have abided only by the exceptions provided in the first sentence of the rule.^[17] Second, other circuit courts treat the second sentence, which permits the court to impose other sanctions “instead of” exclusion,^[18] as another exception.^[19] Third, still others go beyond the rule and deem certain circumstances that would result from exclusion as a justifiable exception to the sanction.^[20]

The First Circuit’s decision in Klonoski v. Mahlab, 156 F.3d 255 (1st Cir. 1998), illustrates this second deviation well. The circuit court understood that the rule was mandatory by its strong language.^[21] However, the second sentence “somewhat temper[ed] this mandate” by allowing courts to impose alternative sanctions.^[22] In examining the whole subdivision, the First Circuit concluded that “the required sanction in the ordinary case is mandatory preclusion” because the rule is geared toward more strictly abiding by discovery obligations.^[23] Thus, while exclusion is the default, a court can impose lesser sanctions instead of exclusion according to the rule’s second sentence.^[24]

The 10th Circuit, while maintaining a similar reading, represents the third deviation. The court emphasized a different exceptional circumstance not specifically mentioned by Rule 37(c)(1) — when exclusion has the effect of a dismissal. Though the circuit court suggested that exclusion was automatically imposed in the absence of either exception,^[25] it took issue with the imposition of exclusion when doing so would operate to dismiss the case.^[26] Instead of immediately imposing exclusion, “the district court in particular should evaluate the efficacy of lesser sanctions.”^[27] In other words, even when the criteria for exclusion were satisfied, the lower court would still have discretion to not impose exclusion when exclusion would function as a dismissal.

Notably, both the First and 10th circuits have drifted away from their respective deviations back toward a strict reading of the rule, placing more emphasis on the two exceptions in isolation.^[28] However, as these earlier cases have not been overturned, their semi-automatic views remain viable. These views’ joint presence along with strict mandatory exclusion shows that even smaller fractures can exist among circuits in this group.

2) The “Discretionary Exclusion View” Group: In contrast to the previous group, circuits adopting a discretionary exclusion view find that the whole rule, not just the second sentence, grants discretion to the lower court. This view places more emphasis on the “instead of” phrase used by the rule’s second sentence.^[29] Unlike the automatic view, there are no mini-splits among circuits in this group.

This viewpoint acknowledges that Rule 37(c)(1) contains mandatory language.^[30] However, certain circuits have asserted that the rule provides for discretion in several different ways, including the two exceptions.^[31] As a result, courts adopting this view do not see the exceptions as binary choices, but rather as evidence that the lower court has alternative options.

This is best reflected in Hein v. Cuprum, 53 Fed. App’x 134 (2d Cir. 2002), in which the Second Circuit affirmed the lower court’s decision to not exclude the undisclosed evidence because “[the trial judge] took appropriate steps to ensure that plaintiff would not be harmed by the defendants’ nondisclosure.”^[32] In other words, even when there is not an affirmative showing of substantial justification or harmlessness, the trial judge could still decline to impose exclusion. In fact, it has been considered error for the lower court to deem exclusion to be mandatory even in the absence of the exceptions.^[33]

In sum, this view grants far less importance to the committee notes and instead focuses entirely on the text itself, much like a textualist would.^[34] In the discretionary view, the only way to reconcile the two sentences is to empower the lower court to impose alternative sanctions through the “instead of” phrase. The Third Circuit in particular has continued to use discretionary verbiage to describe the lower court’s ability to exclude evidence under the rule.^[35]

3) A Third Group — Circuits with Inconsistent Positions: The third group does not constitute a “viewpoint” so much as a compilation of circuits that have repeatedly flipped their position on the issue (except for the 11th Circuit). Their decisions can be categorized as either automatic or discretionary, but are often inconsistent with prior and subsequent decisions within the same circuit. This creates a strong air of uncertainty on the issue.

Consider the Fifth Circuit. The circuit took an automatic stance on the rule,^[36] but flipped to a discretionary view about four years later.^[37] Since then, the circuit reverted back to an automatic stance and remained there consistently in recent years.^[38]

The Seventh Circuit charted a similar course throughout the last 30 years, albeit with more changes. Like the Fifth Circuit, this circuit initially staked an unabashedly automatic stance.^[39] Just a few years later, the court switched to a discretionary stance.^[40] The circuit then changed its position twice more before most recently sticking with an automatic view.^[41]

The Sixth Circuit followed largely the same tale. The circuit took a staunchly automatic view at first before detouring into the discretionary exclusion group.^[42] Then, in subsequent cases, the Sixth Circuit returned to a more pro-automatic perspective.^[43]

Interestingly, unlike its other sibling circuits discussed so far in this group, the Ninth Circuit began with a discretionary view,^[44] briefly switched to automatic exclusion,^[45] and then found its way back to the discretionary interpretation.^[46]

It is unclear why these circuits, in contrast to their sibling circuits of the other two groups, have been so inconsistent with their decisionmaking. Not only have these four circuits not acknowledged their erratic past, several of them have also cited their own contrary decisions without acknowledging the differences.^[47] Uncertainty arises in that these courts have never expressly overturned the conflicting decisions. The possibility remains that these circuits will again flip their views should the opportunity arise.

The 11th Circuit stands uniquely as the only circuit that has never staked a position in this debate. In Taylor v. Mentor Worldwide LLC, 940 F.3d 582 (11th Cir. 2019), the circuit court considered the lower court’s decision to deny the defendant’s motion to strike undisclosed testimony and grant the defendant’s motion for alternative relief.^[48] The majority held that the lower court did not err, noting that Rule 37 grants a trial court discretion to decide how to respond to a failure to disclose.^[49] However, the majority further held that the trial judge properly based his denial on his finding that the nondisclosure was harmless.^[50] As a result, the majority sidestepped the issue of automatic versus discretionary application altogether.

The concurrence and dissent more pointedly address the discussion. In concurrence, Judge Carnes acknowledged that the 11th Circuit still has not decided on the circuit split.^[51] He further posited that the motion for alternative relief, on its own, allowed the trial court to impose lesser sanctions, even if substantial justification or harmlessness had not been shown.^[52]

Judge Tjoflat, as the dissenter, asserted that the majority’s decision completely neutered Rule 37(c)(1)’s self-executing and automatic function.^[53] In his view, the plaintiff’s failure to disclose was neither honest nor harmless, thereby requiring exclusion.^[54] Judge Tjoflat further felt that the majority’s interpretation incorrectly allowed the lower court to excuse the violation as long as the prejudice could be removed via cross-examination, running contrary to the rule’s directive.^[55] He argued that alternative sanctions are meant to address situations in which exclusion proves ineffective.^[56] As such, Judge Tjoflat propounded that these lesser sanctions are inappropriate to apply to the “mine-run” of cases where the threat of exclusion provides enough deterrence.^[57]

Analysis

• Why Rule 37(c)(1)’s Text Points Toward Both Views — When starting from the text itself, simply choosing one group’s interpretation over the other is insufficient. The problem at the heart of the split lies fundamentally in the language of Rule 37(c)(1), which becomes clear when applying the “plain-meaning” rule.

The plain-meaning rule requires courts to first look to the meaning of the text and ends the interpretive analysis if the words are plain and clear.^[58] The same principle applies to rules of civil procedure.^[59] Legal scholarship has extensively examined the plain-meaning rule.^[60]

When starting from plain meaning, two phrases become significant. The first is “instead of,”^[61] which has the plain meaning of “as a substitute for or alternative to.”^[62] In the context of the rule, this phrase is straightforward: The court may, as an alternative to exclusion, impose the other sanctions described.

The second significant phrase, “not allowed to use,”^[63] separately has the plain meaning of “indicating a denial of permission to use or do something.”^[64] Again, when examined in the confines of its usage, this language makes sense. If certain criteria are not satisfied, a party is simply disallowed from using the undisclosed evidence.

A striking problem arises here. In isolation, each phrase has a plain meaning that makes sense within the context of its particular use in the rule. However, when working together, the language is self-defeating and contradictory. Some courts have tried to reconcile the “instead of” as tempering the mandate of the “not allowed to use.”^[65] However, this fundamentally cannot be. Consider these brief examples.

Suppose that a produce-loving judge visits a farmer’s market stand. The stand has exactly two kinds of fruit for sale: apples and bananas. There is also a sign indicating that the judge may select a banana as an alternative to an apple. If that sign is to be trusted, then selecting an apple cannot be mandatory and automatic; if it were, the possibility of alternatively selecting a banana simply could not exist. The judge can equally take an apple, banana, or both, but does not need to have a particular fruit in his or her hand by the end of the visit.

Now suppose a different premise. The sign’s new directive is that the judge must take an apple if the fruit vendor is absent. If that is true, then the choice of a banana cannot possibly be substituted for that of an apple. If the fruit vendor is nowhere to be seen (meaning that the judge must take an apple) but the judge somehow leaves holding only a banana, something has gone terribly wrong. In this circumstance, selecting a banana instead of an apple does not merely temper the mandate of taking an apple — it nullifies the mandate altogether.

These may be simple examples, but they should illustrate the discrepancy. Since the problem is rooted in the text itself, picking one view over another does little to fix the underlying error. Doing so simply chooses to give credence to one part of the rule while ignoring another. This would only act as a temporary salve until a new interpretation comes along to wash it off. Therefore, a change to the rule itself is needed to point it in only one direction: toward either automatic or discretionary exclusion. Naturally, however, the most important question is toward which direction the rule should orient.

• The Dual Purpose of Rule 37: Why “Automatic Exclusion” Is the Better Policy — The answer to this question begins to reveal itself by examining the rule’s purpose. In the U.S. Supreme Court’s own words:

[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.^[66]

There are, therefore, two primary goals at the heart of Rule 37. The first is to punish the specific party that did not abide by discovery requirements. The second is to discourage others from engaging in the same type of conduct. Though the Court did not describe the second goal as such, this reflects a concept commonly known as general deterrence.^[67] Because of Florida Rule 1.380(d)’s status as a reflection of the federal rule equivalent,^[68] deterrence is also Rule 1.380’s underpinning goal.

These are sensible goals. When a party fails to disclose critical information, that party potentially denies its opponent the opportunity to fairly and timely consider that new information for its case.^[69] If gone unpunished, litigants would be free to turn their cases into trials by ambush, which would do great injustice to discovery’s entire purpose.^[70] It makes practical sense to institute a method punishing parties engaging in misconduct while sending a message to future litigants that such misconduct will not be tolerated.

Other courts, as well as legal scholars, have also acknowledged that deterrence is part of Rule 37’s foundation.^[71] Yet, while deterrence has been generally referenced, there has been no thorough analysis of how the principles of deterrence theory play into the rule. Deterrence theory, while often applied in a criminal context, has been used in non-criminal subject areas.^[72] This article is the first to formally apply deterrence theory principles to Rule 37(c)(1) (and, by extension, Rule 1.380(d)).

1) What Is Deterrence Theory?: The general idea behind deterrence theory is that individuals are less likely to commit a particular offense if the punishment satisfies certain criteria.^[73] As originally conceived, the theory focused more on the relative balance of pain or pleasure of the punishment versus offense.^[74] Modern deterrence theory has migrated toward considering an offender’s rational motivation rather than a base dependence on pain or pleasure.^[75] Still, the central concept remains the same.

There are three primary principles that fuel the deterrent nature of a punishment: severity; celerity;^[76] and certainty.^[77] “Severity” describes the significance of the punishment.^[78] “Celerity” refers to how quickly the punishment is imposed after the offense occurs.^[79] Finally, “certainty” relates to the likelihood of the punishment’s imposition.^[80] “Certainty” has been considered the strongest of the three principles.^[81]

The interplay between these principles is complex and has been extensively studied. Severity, for instance, was once thought to be one of the strongest deterrence factors.^[82] However, recent research indicates that severity’s true effect can be ambiguous.^[83] Indeed, there is some indication that higher severity may be inversely related to offense rates.^[84] However, some of the reasons attributed to this include factors such as the crime not involving rational thought or the severity being insufficiently supported by other principles like certainty.^[85]

Celerity is notably under documented,^[86] primarily because the opportunities to test swiftness are few and far between.^[87] Celerity has been recognized as being significant in certain non-criminal contexts.^[88] However, some scholars have indicated that slower punishments may actually be perceived by offenders as worse than faster punishments, as offenders generally prefer to have their punishment completed as soon as possible.^[89]

Across all three principles, one important distinction that arises is between objectivity and subjectivity. Objective severity, celerity, and certainty refer to the respective aspect of the punishment as it really exists.^[90] Put another way: “What actually happens?” On the other hand, subjective severity, celerity, and certainty describe the potential offender’s personal perception of that aspect of the punishment.^[91] “What does a person think will happen?” is a simple way to conceptualize this.

Regarding certainty in particular, subjective certainty carries a higher deterrence effect compared to objective certainty.^[92] An individual’s subjective belief about a punishment’s certainty can be derived from a number of sources, including personal experience, stories shared by others, and publicity about the punishment.^[93] Interestingly, an individual’s first impression of certainty tends to be high, which contributes to the deterrent effect.^[94]

2) Applying Deterrence Theory Principles to Rule 37(c)(1): When applying these three principles to the two opposing interpretations of Rule 37(c)(1), severity and celerity require the least analysis. Thus, those will be assessed first.

There is no doubt that exclusion is quite a severe sanction.^[95] There are more severe sanctions, like dismissal, but exclusion of evidence and testimony certainly ranks high. However, exclusion’s severity will not change whether it is automatic or discretionary. Therefore, the effect of exclusion’s severity will remain identical regardless of the interpretation.

The same is true of celerity. Whether exclusion operates automatically or as a matter of discretion, the process for acquiring exclusion sanctions is the same: A party must move to strike the undisclosed information or witness and then the district court eventually considers the motion.^[96] Neither automatic nor discretionary application will accelerate that process. Additionally, district courts are already preoccupied with several hundred thousand pending cases, with an additional 100,000 being filed each year.^[97] Regardless of the viewpoint, district courts can only consider these motions so quickly. Thus, celerity’s effect does not change whether one looks at Rule 37(c)(1) through an automatic or discretionary lens.

In sum, both severity and celerity remain consistent variables in the deterrence evaluation. Certainty, however, is the distinguishing factor. Many district courts have been transparent about their reluctancy to impose exclusion sanctions,^[98] which is both significant and concerning from a deterrence standpoint. These decisions operate as publicity about the punishment and function to reduce subjective certainty. After all, the district court is the entity that will ultimately impose the sanction. If that court openly expresses that it can exclude evidence but is reluctant and leery to do so,^[99] litigants are signaled that exclusion’s probability is reduced, thereby lowering collective subjective certainty. Litigants cannot be certain about exclusion’s imposition when the court itself acknowledges that it rarely wants to do so.

The issue is compounded when considering the views of circuit courts that sit above those district courts.^[100] In “discretionary view” circuits, hesitancy at the district court level combined with the appellate court’s stance reinforces the message that these courts have the power to exclude evidence but will not exercise that discretion out of reluctancy. Meanwhile, in “automatic view” circuits, the lower courts’ reluctancy to impose supposedly required sanctions functions to make litigants uncertain about whether the district courts will be in line with the circuit court. Finally, in circuits with uncertain positions, the lack of clarity at the appellate level combined with trial court hesitancy creates similar uncertainty.

For all three groups, subjective certainty logically is reduced since exclusion may not even be imposed despite the criteria being met, which is primarily a result of the discretionary view.^[101] Regarding sanctions generally, a lack of national uniformity has also been noted as failing to promote the deterrence goal.^[102] The current split demonstrates a similar lack of consistency.

Automatic exclusion, by contrast, effectively merges both objective and subjective certainty. If the court must impose exclusion, there is high objective certainty. Similarly, if a litigant is fully aware that a court must and will impose exclusion, there is stronger subjective certainty. This would be especially true if that certainty is publicized through trial court decisionmaking, as opposed to the current hesitancy. Additionally, if fellow lawyers and litigants experience exclusion as a mandatory and automatic matter, as opposed to a hesitant and discretionary function, subjective certainty would rise further. Consistent application is necessary to advance deterrence,^[103] which mandatory and automatic exclusion ensures.

• How Rule 1.380(d) Should Be Amended — As deterrence theory principles demonstrate, automatic exclusion functions better to serve Rule 37’s deterrence goal. The same reasoning likewise applies to Florida’s Rule 1.380(d). However, as stated, the current text of either rule does not lend itself to truly automatic exclusion.^[104] This article proposes that Rule 1.380(d) should be amended as follows:

(d) Failure to Disclose or to Supplement an Earlier Response.

(1) Mandatory Exclusion. If a party fails to provide information or identify a witness as required by rule 1.280(a) or (g), the court must order that the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial., unless the However, the court shall not disallow the party’s use of such information or witnesses on this basis if the party shows that its failure was substantially justified or is harmless.

(2) Other Sanctions. In addition to the order in subdivision (d)(1) of this rule or when sanctions are nonetheless appropriate despite the substantial justification or harmlessness of the party’s failure or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(1)(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

(2)(B) may inform the jury of the party’s failure; and

(3)(C) may impose other appropriate sanctions, including any of the orders listed in rule 1.380(b)(2)(A)–(b)(2)(D).^[105]

These changes would accomplish several things. First, they would help clarify, once and for all, exclusion’s binary application. If a party fails to disclose certain required information, the court must presumptively impose exclusion unless there is substantial justification or harmlessness. Splitting the exceptions into a new sentence provides further clarity that substantial justification and harmlessness will be the only methods to escape exclusion. A court could no longer evade exclusion even when neither exception is satisfied.^[106] The new second sentence further removes any doubt about who carries the burden of proof regarding the exceptions.

Second, adding the new subdivision (2) makes it clearer that other sanctions should be imposed only when exclusion proves ineffective. Like the original rule, a court can still impose alternative sanctions on top of exclusion. However, the new underlined portion provides a more obvious fallback if exclusion cannot be imposed. Removing “instead of” eliminates confusion as to the question of discretion.

Third, although the Civil Procedure Rules Committee generally moves in lockstep with the Federal Rules of Civil Procedure,^[107] this is an opportunity for the Florida judiciary to get ahead of a potential statewide appellate split. Since Rule 1.380(d) is identical to Rule 37(c)(1) and Florida appellate courts have not yet properly addressed Rule 1.380(d)’s exclusion sanction,^[108] civil litigants simply have no firm conception of how Florida trial courts will apply the rule in terms of automatic versus discretion application. This dampens certainty,^[109] which can be reinvigorated by acting to preemptively amend the rule.

Conclusion

With this article’s proposed changes, Rule 1.380(d) would better fulfill the foundational goal of general deterrence by making exclusion truly automatic while also clarifying other significant details. This would ensure that exclusion is applied properly to parties who flagrantly violate initial discovery requirements without substantial justification or harmlessness, while also permitting alternative sanctions as appropriate. Making sure that exclusion is always applied in the absence of either exception enhances the punishment’s certainty, which helps to strengthen the foundational deterrence goal. The Civil Procedure Rules Committee should propose such an amendment with expedience to do justice to Rule 1.380(d)’s (and its parent, Rule 37(c)(1)’s) goals while also preempting a potential state-level appellate split on the same issue.^[110]

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