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Appealing a Protective Order that Precludes You from Deposing Material Witness

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari.  I further discussed that this was not an easy appeal, and typically, it is not an easy appeal.  

But, what about the scenario where the trial court precludes you from taking a deposition of a material witness?  For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward.  Say the trial court agrees with the opposing party and grants the protective order precluding you from taking the deposition.  You believe, however, that this witness has key testimony for purposes of your case. What do you do?  A petition for a writ of certiorari is an option and could very well be the right option based on the importance of the witness and anticipated testimony.

In a recent opinion, Hepco Data, LLC v. Hepco Medical, LLC, 2020 WL 1870320 (2d DCA 2020), the appellate court granted a petition for writ of certiorari and quashed a trial court’s order that denied certain depositions from going forward.  In quashing the trial court’s order, the appellate court provided a solid discussion on this issue that serves as analysis for a party that is deprived of their right from taking the deposition of a key witness:

We next address whether the trial court departed from the essential requirements of the law. When a party is denied the right to depose an alleged material witness without a finding of good cause to preclude the deposition, the trial court departs from the essential requirements of the lawSee Nucci, 20 So. 3d at 391; Medero, 658 So. 2d at 567. Certiorari relief is warranted because “[a] material witness is one who possesses information ‘going to some fact affecting the merits of the cause and about which no other witness might testify.’ ” Nucci, 20 So. 3d at 391 (quoting Sardinas v. Lagares, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001)). A trial court also departs from the essential requirements of the law where the discovery order blanketly denies, without explanation, a party’s motion to compel discoverySee Giacalone, 8 So. 3d at 1236 (noting the “circuit court’s order was a form order containing no explanation of its decision to deny the motion or an analysis of the individual requests”); see also Towers, 960 So. 2d at 849 (granting certiorari relief where trial court made a wholesale characterization that the discovery sought was a “fishing expedition” when it was clear from the record that the discovery request sought “many relevant items”).

Here, “[t]he order under review departs from the essential requirements of law because the trial court made no finding, and there is nothing in the record before us, to rebut the suggestion… that [the witness] is a material witness; and there was no finding of good cause to preclude this particular deposition.” Medero, 658 So. 2d at 567….The trial court made no finding as to the immateriality of the proposed witnesses or that Respondents met their burden in proving good cause under rule 1.280(c), inasmuch as the record is devoid of such showing by Respondents. For these reasons, we find Medero persuasive.

Even so, relevancy is not a proper ground for protective relief under rule 1.280(c).

Hepco Data, LLC, 2020 WL at *5-6.



Please contact David Adelstein at [email protected] 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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