deposition

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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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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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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