certiorari

Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Posted by David Adelstein on April 07, 2017
Standard of Review, Trial Perspectives / Comments Off on Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The corporation is not required to designate ‘the witness with the most knowledge’ of the designated subject matter; indeed the witness is not required to have any personal knowledge whatsoever. And there may be a good reason why a corporation does not produce the most knowledgeable witness for deposition. For example, the person with the greatest knowledge of the subject matter ‘may not totally embrace the corporation’s position.’” Instead, the corporation is required to prepare the designated witness to testify regarding the designated subject matter.) (internal citations omitted).

Typically, the corporation can designate the representative(s) it wants to testify about the designated topics. With that said, the Second District in Sybac Solar explained that a deposing party that does not like the designated representative(s) can move the trial court to depose another corporate representative of its choice subject to the discretion of the trial court to issue a protective order.  

In this case, the deposing party moved to compel the opposing party to designate a certain individual as a corporate representative. The trial court granted the motion. The opposing party appealed –through a writ of certiorari since orders compelling a deposition can result in irreparable harm that cannot be undone on a final appeal. The Second District reversed in part because the individual had interests that were adverse to that of the company and would not be a proper corporate spokesperson; thus, the individual could not be a corporate representative for those topics.

I find this case frustrating. An entity should be entitled to designate those person(s) it wants to speak on the designated topics. The entity has a duty to prepare the person(s) to speak about the topics and the entity’s position because the person may not have, and is not required to have, the most knowledge about the topic. As long as the person is sufficiently prepared, the story should end.   If the person says “I don’t know” or “I don’t recall” during the entire deposition or gives wishy-washy answers (based on their lack of preparation), than that it is a different story.  But assuming the person is prepared, if the opposing party does not like the answers they are not precluded from taking depositions of other persons, or even the designated representatives, based on their personal knowledge. Otherwise, everyone will move to depose the person they want to serve as the corporate representative (which is probably the person with the most knowledge) which waters down this rule.

 

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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Punitive Damages for Business Torts

Posted by David Adelstein on March 31, 2017
Standard of Review, Trial Perspectives / Comments Off on Punitive Damages for Business Torts

Punitive damages can be warranted in business torts, although you are dealing with a much tougher threshold. Typically, the misconduct warranting the punitive damages needs to be intentional, i.e., the defendant had knowledge of the wrongfulness of the conduct and its high probability of damage and engaged in the misconduct anyway. See Fla. Stat. 768.72. This is because “‘the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for the wrongful conduct and to deter similar misconduct by it and other actors in the future.’”   See Bistline v. Rogers, 42 Fla. L. Weekly D706a (Fla. 4th DCA 2017) quoting Owens-Corning Fiberglass Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999). Thus, an award of punitive damages for a business tort will typically need to require evidence showing fraud, malice, or deliberately outrageous conduct. See Bistline, supra.

A party, however, just cannot come right out of the gate and sue for punitive damages. Rather, a party needs to file a lawsuit and thereafter make an evidentiary proffer supporting the intentional misconduct that it believes gives rise to punitive damages for a business tort. What is plead is an allegation – it is not evidence—and will not support an evidentiary proffer. Again, there needs to be an evidentiary proffer with evidence reasonably showing the basis of the intentional misconduct to support an award for punitive damages.   See Bistline, supra (reversing award of punitive damages because there was not reasonable evidentiary proffer and because trial court based amendment to assert punitive damages on allegations in complaint, which is not evidence).

It is important that a party moving for punitive damages properly make that evidentiary proffer with the court to allow it to amend its complaint to include these damages. This is important in any punitive damages proffer, particularly in business tort disputes where the threshold is greater.  In this manner, the procedural requirements in Florida Statute s. 768.72 are crucial to comply with. Because an impermissible punitive damages award is difficult to remedy on appeal, a defendant will be entitled to certiorari review “to determine whether a trial court has complied with the procedural requirements of section 768.72…but not the sufficiency of the evidence.” See Bistline, supra, quoting Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. DCA 2006).

 

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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The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Posted by David Adelstein on December 25, 2014
Appeal, Standard of Review / Comments Off on The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Petitions for Writs of Certiorari

What is a petition for a writ of certiorari (or “cert,” for short)? A petition for a writ of cert is when a petitioner wants to appeal a non-final order (e.g., an interlocutory order that does not finally dispose of the dispute such as a final adverse judgment against the petitioner) issued by the trial court when there is no direct right to appeal that non-final order.

In order for an appellate court to entertain a petition for a writ of cert, the petitioner MUST establish that (a) the trial court departed from the essential requirements of the law and (b) this departure caused irreparable injury to the petitioner that cannot be remedied by a later appeal from a final judgment against the petitioner.   See Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000). This is a challenging burden or appellate standard of review for a petitioner to overcome which is why many petitions for writs of cert are denied by appellate courts. Indeed, the Florida Supreme Court explained:

“[C]ertiorari is an extraordinary remedy that should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders. For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”

Belair, So.2d at 1166 (internal quotations and citations omitted).

For example, let’s say you were sued by another party (referred to as the plaintiff). Instead of answering the lawsuit (referred to as a complaint), you elect to move to dismiss a portion of the complaint or the entire complaint. The trial court denies the motion to dismiss meaning the plaintiff can still pursue these claims against you. This order denying the motion to dismiss is considered a non-final or interlocutory order without a direct or immediate right to appeal. Thus, in order to appeal, your basis (as a petitioner) is through a petition for a writ of cert where you need to establish that (a) the trial court departed from essential requirements of the law in denying the motion to dismiss and (it is a BIG and) that you are caused irreparable injury that cannot be remedied by a later appeal of a final judgment against you. See, e.g., Florida Fish and Wildlife Comm’n v. Pringle, 770 So.2d 696 (Fla. 1st DCA 2000) (denying petition for writ of cert of order denying motion to dismiss); Saddlebrook Resorts, Inc. v. Seminole Electric Supply Co., 426 So.2d 1310 (Fla. 2d DCA 1983) (denying petition for writ of cert of order denying motion to dismiss portion of complaint).

 

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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