Depositions

Denial of Right to Depose Material Witness

Posted by David Adelstein on April 23, 2017
Depositions, Standard of Review / Comments Off on Denial of Right to Depose Material Witness

Depositions are an integral part of a dispute’s “truth seeking” discovery process. This is where parties can depose a witness under oath and explore key factual issues and parties’ positions, both from a liability and damages perspective.   Certain depositions can be introduced for purposes of substantive evidence at trial.   Other depositions can be used for purposes of impeachment in case a witness changes his/her position or story at trial. The significance of a deposition of a material witness in a civil case cannot be understated.

 

If an opposing party wants to limit or prevent a deposition from moving forward, that party will file a motion for protective order based on its good cause reasoning to restrict that deposition. The burden is on that party to support its good cause reasoning. If the court grants the motion for protective order, an appellate issue arises. “When a party has been denied the right to depose an alleged material witness without finding of good cause to preclude the deposition, the trial court departs from the essential requirements of law.”   Akhnoukh v. Benvenuto, 42 Fla.L.Weekly D882 (Fla. 2d DCA 2017). This gives the denied party the right to move for a writ of certiorari: “Certiorari jurisdiction generally exists to review the denial of a motion to compel the deposition of a material witness.” Id. (further explaining that a witness can be material even if relevant information can be obtained from a party).

 

For instance, in Akhnoukh, the plaintiffs obtained a protective order that prevented defendants from deposing plaintiff’s minor son (who was not a party). The son was the only passenger in the car at the time of the accident; he was eight year’s old at the time of the car accident and eleven year’s old at the time of the protective order. The defendants wanted to take the minor’s accident since he was sitting in the front passenger seat and an eyewitness to the accident and could shed value on the moments before the accident, the impact of the accident, whether the mother was wearing a seat belt, and the mother’s activities after the accident. Nonetheless, the trial court granted the protective order. The appellate court, however, quashed the motion for protective order:

 

The trial court did not require Benvenuto [plaintiff] to establish good cause for the protective order. She based her argument on her [minor] son’s age, lack of maturity, and experience but provided no evidence. She also did not provide any evidence of how the taking of the deposition may be detrimental to her son. The trial court made no findings of good cause and departed from the essential requirements of law in prohibiting the deposition.  Thus, we grant the petition and quash the trial court’s order granting the motion for protective order. The trial court in its discretion may take protective measures if necessary for the minor’s well-being, such as requiring that the deposition take place before the court or a magistrate.

Akhnoukh, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein on December 04, 2015
Depositions / Comments Off on Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

 

Speculative and inadmissible testimony should not be considered on a summary judgment.

This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015).  In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am.   He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have done nothing to cause or avoid the accident.

The estate of the decedent filed a wrongful death action (founded in negligence). The defendants moved for summary judgment based on the undisputed evidence. The plaintiff-estate responded based on inadmissible and speculative evidence of the decedent’s folks.   The trial court granted summary judgment and the appellate court affirmed. In affirming, the appellate court gave a great discussion of summary judgments, particularly summary judgments involving negligence actions:

 

In a negligence action, summary judgment is improper [u]nless a defendant can establish unequivocally the absence of negligence[ ] or that the plaintiff’s negligence was the sole proximate cause of the injury. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.

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The estate relied solely on the deposition testimony of Panzera’s [decedent’s] parents, wherein they surmised that O’Neal [semi-tractor’s driver] could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see Panzera before the collision occurred. Their conclusions were based only on their personal review of the scene after the accident. The Panzeras admitted that they do not have experience in accident reconstruction and were not present at the time of the accident. Therefore, their bare allegations of negligence are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.

Panzera, supra (internal quotations and citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Posted by David Adelstein on July 24, 2015
Depositions, Evidence, Expert Testimony / Comments Off on Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

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Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.  

Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.”

Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time before the trial in accordance with the rules for taking depositions and may be used at trial, regardless of the place of residence of the witness.”

This means a party can utilize the deposition of an expert instead of calling the expert to the witness stand. The deposition is utilized by reading portions of the deposition transcript or offering portions of a videotaped deposition.

It is common for portions of depositions to be read to the jury (or, shown to the jury in a videotaped deposition). In this regard, Florida Rule of Civil Procedure 1.330(a)(4) states: “If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.”

This rule is designed to prevent a party from taking a deposition out of context and misleading the jury by reading or showing only select portions of the deposition versus allowing the jury to hear the “whole truth.” See Kaminsky v. Travelers Indem. Co., 474 So.2d 287, 288 (Fla. 3d DCA 1985) (“[W]here one party reads selected and prejudicial portions of the other party’s deposition for impeachment, it is error to prohibit opposing counsel from reading other portions of that same deposition in an effort to demonstrate the “whole truth.”); see also Mitchell v. Bonnell, 770 So.2d 1292, 1294 (Fla. 3d DCA 2000) (“We hold that Mitchell [plaintiff] had the right to present additional portions of Dr. Gordon’s deposition for the purpose of explaining, clarifying, and/or placing in context those limited sections presented by the defense by way of direct examination. The court’s failure to allow this was an abuse of discretion.’); Eggers v. Narron, 254 So.2d 382, 385 (Fla. 4th DCA 1971) (“When the plaintiff in this case elected to introduce into evidence a part of Eggers’ deposition, each of the defendants thereupon became entitled under this provision of subsection (4) of the rule to offer into evidence during the defendants’ case any other parts of Eggers’ deposition.”).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Benefit of Corporate Representative Depositions

Posted by David Adelstein on March 15, 2015
Depositions, Evidence / Comments Off on Benefit of Corporate Representative Depositions

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Depositions are a routine form of discovery in civil disputes. In disputes involving businesses or governmental bodies (the “Entity”), the opposing party will take what is known as a corporate representative deposition.

In a corporate representative deposition, the party taking the deposition will designate topics that they want the Entity to answer questions about. The Entity then has to duty to prepare a representative or representatives to answer questions relating to the topics. The Entity has discretion on the representative(s) it chooses to answer questions relating to the topics provided that the representative(s) it chooses is reasonably prepared. For example, assuming there are ten topics that the Entity will be asked questions about, the Entity may elect to designate different representatives to answer questions on select topics.

The benefit of a corporate representative deposition is that the Entity is answering questions on behalf of the Entity (and not necessarily as it pertains to their personal knowledge). This means the representative is designated to bind the Entity to his/her answers to the questions relating to the applicable topics.

Regarding corporate representative depositions, Florida Rule of Civil Procedure 1.310(b)(6) provides:

“In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.”

 

A good discussion of corporate representative depositions is contained in the Fourth District Court of Appeal’s opinion in Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329, 334-336 (Fla. 4th DCA 2013) (internal citations and quotations omitted):

“As the “voice” of the entity, the witness is required to testify about matters known or reasonably available to the organization. The organization must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. That preparation must enable the designee to give complete, knowledgeable, and binding answers on behalf of the corporation. If the deponent cannot answer questions regarding the designated subject matter, the corporation has failed to comply with its Rule 1.310(b)(6)….

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Rule 1.310(b)(6) does not require—or for that matter even contemplate—that the corporation produce the witness with the “most knowledge” on the specified topic(s), and the witness is not required to possess any personal knowledge at all.

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Utilized properly, Rule 1.310(b)(6) streamlines the discovery process and gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf. In exchange for that control the entity is required to have the right person present at the deposition. This of course benefits the requesting party as it prevents the corporation from frustrating the opposing party’s discovery by simply playing ‘ping-pong’ with him: the first official would disclaim knowledge, as would the second, and so on.

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When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee is deemed to be the testimony of the corporation itself. As such, the testimony is binding on the entity. That does not, however, mean that the testimony is akin to a judicial admission which conclusively establishes a fact and estops the corporate party from offering other evidence on the matter. Rather, testimony given at a Rule 1.310(b)(6) deposition is evidence which, like other deposition testimony, can be contradicted.”

 

Furthermore, a great benefit of a corporate representative deposition is that the testimony can be used by the party taking the deposition for any purpose. This means the testimony can be used at trial as substantive evidence (during a party’s case-in-chief, portions of the transcript can be read into evidence) or as impeachment evidence (to impeach the testimony of a witness). To this point, Florida Rule of Civil Procedure 1.330(a)(2) provides:

“The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.”

 

Thus, corporate representative depositions are a valuable tool in disputes and should be utilized. And, a party defending a corporate representative deposition should take steps to determine the representative(s) selected and that the representative(s) is prepared to answer questions relating to the topics. Also, since the representative(s) will be binding the Entity to his/her answers, it is important that objections are preserved for the record during the deposition if the representative(s) is asked questions outside of the designated topic areas.  Why?  Because you do not want the Entity bound to answers to questions in which that representative(s) was not designated as a representative to bind the Entity.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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