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The 3d DCA in Rocca v. Rones, 38 Fla. L. Weekly D2378a (Fla. 3d DCA November 13, 2013), granted a petition for certiorari and quashed the trial court's order regarding the deposition of a witness who had been previously disclosed as a party's expert and then withdrawn. The 3d DCA concluded that a withdrawn expert may only be deposed upon a showing of exceptional circumstances, such as when the party deposing the witness is unable to obtain similar information by different means.

The underlying action involved a dispute regarding the proper ownership interests in funds derived from the sale of a business. Plaintiff's lawyer had originally hired an accounting expert to opine on the amount of plaintiff's damages as well as to assist in the preparation for trial. The accounting expert was also originally placed on plaintiff's list of testifying witnesses; however, when the defendants notified plaintiff's counsel that they intended to depose the expert, he was withdrawn as a witness.

Although the accounting expert had been removed from plaintiff's witness list and another accounting expert added in his place, the defendants argued that they needed to depose the first accounting expert because defendants had no other way of calculating plaintiff's potential damages. The trial court entered an order compelling the first accounting expert's deposition.

On appeal, the 3d DCA determined that the trial court should not have compelled the deposition of the first accounting expert. Florida law provides that when an expert has been specially employed in preparation for litigation but is not to be called as a witness at trial, the facts known or opinions held are deemed to be work product and may be discovered only by a showing of exceptional circumstances. See Fla. R. Civ. Pro. 1.280(b)(5)(B). See also Forman v. Fink, 646 So. 2d 236, 237 (Fla. 3d DCA 1994) and Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258, 1259 (Fla. 3d DCA 1989).

The initially disclosed accounting expert was precisely the type of expert protected by Rule 1.280 because the expert had been hired to examine data and to provide his expert opinion on the information plaintiff's counsel had provided him. The 3d DCA reasoned that the initial expert could only be deposed upon a showing of exceptional circumstances, such as if the defendants were unable to obtain similar information through different means.

The defense did not satisfy this burden, especially because the defendants had subsequently hired their own accountant expert. Accordingly, the trial court's decision was reversed.


 

 

This summary was prepared by Karissa Owens of our firm.


Karissa Owens

 

 


38 Fla. L. Weekly D2378a

 

Civil procedure -- Discovery -- Work product -- Deposition of non-testifying expert -- Trial court departed from essential requirements of law in ordering deposition of expert who had been employed by plaintiff in preparation for litigation, and who had initially been listed as a testifying witness but subsequently withdrawn as a testifying witness, in the absence of a showing of exceptional circumstances

MATHEW ROCCA, Petitioner, vs. VICTOR RONES, etc., et al., Respondents. 3rd District. Case No. 3D13-2500. L.T. Case No. 11-596. Opinion filed November 13, 2013. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Bernard S. Shapiro, Judge. Counsel: Wintter & Associates, P.A., and Christopher Q. Wintter and Max G. Soren (Hollywood), for petitioner. Shendell & Pollock, P.L., and Kenneth S. Pollock, Matthew A. Tornincasa, and Diran V. Seropian (Boca Raton), for respondent Victor Rones; David Howard Goldberg, P.L., and David Howard Goldberg, for respondents Irene Boyansky and Emile Martin.

(Before ROTHENBERG, EMAS and FERNANDEZ, JJ.)

(ROTHENBERG, Judge.) This petition for writ of certiorari comes to us after the trial court ordered the deposition of a non-testifying expert witness and also issued an order requiring the petitioner to show cause why he should not be sanctioned for instructing the same expert witness to refuse to answer deposition questions at a prior ordered deposition. We agree that the trial court's rulings depart from essential requirements of law, and therefore grant certiorari and quash the relevant orders.

BACKGROUND

The underlying action involves a dispute regarding the proper ownership interests in funds derived from the sale of a business. Although the Plaintiff-Petitioner Mathew Rocca maintains an interest in the sold property based on a trust left to him by his father and grandfather, he has little personal knowledge as to the value of the business or the defendants' actions allegedly depriving him of the money to which he is entitled. Rocca's counsel, therefore, hired an accounting expert, Robert Stone, to review the record and the numbers, form an expert opinion regarding the amount of Rocca's damages, and assist him in his preparation of the case. Stone was initially placed on Rocca's list of testifying witnesses; however, when the defendants notified Rocca that they intended to depose Stone, he was removed from the witness list.

Although Stone had been removed from the witness list and Rocca claimed that Stone possessed no material factual information that had not been provided to the defendants, and Rocca had subsequently amended his witness list by adding an accounting expert who will testify at trial, the defendants argued that they needed to depose Stone because they have no other way of calculating the potential damages. Apparently persuaded by the defendants' arguments, the trial court issued an order requiring that Stone be deposed, but only as a non-expert fact witness. At Stone's deposition, however, the defendants asked several questions that likely fall under the work product or accountant-client privilege, including the methods and calculations of the damages Stone had formulated based on the information provided by Rocca. Rocca's attorney instructed Stone not to answer these questions, and the defendants ended the deposition. The defendants subsequently filed motions to compel Stone's deposition testimony and requiring Rocca's attorney to show cause why he should not be held in contempt for refusing to comply with the earlier order requiring Stone's limited deposition. The trial court granted both of these motions. This petition for a writ of certiorari, along with a motion to stay the proceedings below, followed.

ANALYSIS

Florida Rule of Civil Procedure 1.280 provides that:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Fla. R. Civ. P. 1.280(b)(5)(B) (emphasis added). The protection provided by rule 1.280(b)(5)(B) applies to experts initially disclosed as testifying witnesses that are later withdrawn as such. Forman v. Fink, 646 So. 2d 236, 237 (Fla. 3d DCA 1994). When an expert has been specially employed in preparation of litigation but is not to be called as a witness at trial, the facts known or opinions held are deemed to be work product and may be discovered only by a showing of exceptional circumstances, as mandated by rule 1.280. Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258, 1259 (Fla. 3d DCA 1989).

Stone is precisely the type of expert protected by rule 1.280. He was hired to examine the data and provide his expert opinion based only on the information that Rocca provided him. Stone seemingly has no personal knowledge of the underlying facts of the case other than those provided to him by Rocca or Rocca's attorney, and Stone has been withdrawn as a testifying witness. Based on these facts, Stone cannot properly be classified as a fact witness, and may only be deposed upon a showing of exceptional circumstances in which the defendants are unable to obtain similar information by different means. The defendants have not made such a showing. The defendants have hired their own expert witness and have been given access to Rocca's designated trial expert accountant.

Should the trial court determine that Stone has pertinent factual information unrelated to what has been disclosed to him by Rocca or his attorneys or otherwise protected by privilege, or that exceptional circumstances apply because the defendants are unable to acquire relevant information by any other means, it can certainly order Stone's deposition for those limited purposes within the mandates of rule 1.280(b)(5)(B). Without such a showing, however, the orders requiring Stone's deposition and requiring Rocca to show cause why he should not be held in contempt of court depart from the essential requirements of law.

Certiorari granted; orders quashed.













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