Third District Court of Appeal
State of Florida
Opinion filed February 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0155
Lower Tribunal No. 04-11813
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Steve Ferguson, et al.,
Petitioners,
vs.
The Republic of Trinidad and Tobago, etc.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County,
Reemberto Diaz, Judge.
The Law Office of Stephen James Binhak, P.L.L.C., and Stephen
James Binhak; León Cosgrove, LLP, and Scott B. Cosgrove, for petitioners.
Sequor Law, P.A., and Cristina Vicens Beard, Edward H. Davis, Jr.,
Arnoldo B. Lacayo, and Christopher A. Noel, for respondent.
Before MILLER, GORDO and BOKOR, JJ.
BOKOR, J.
Petitioners Steve Ferguson, Inversiones Lastraval, and Argentum
International Marketing Services seek certiorari review of an order denying
a motion to depose a corporate representative of non-party witness, the
Airports Authority of Trinidad and Tobago, in a long-running racketeering
case brought against petitioners by respondent here, the Republic of
Trinidad and Tobago. The trial court denied the deposition primarily because
it considered the Airports Authority to be a mere instrumentality of
respondent, rendering the deposition cumulative since the petitioners
deposed other representatives of the Republic of Trinidad and Tobago.
The petitioners allege that the denial of the motion was improper
because the Airports Authority is a material witness. We agree. Certiorari
relief is appropriate when: (1) there has been a departure from the essential
requirements of the law, which (2) cannot be rectified on direct appeal. See,
e.g., Williams v. Oken,
62 So. 3d 1129, 1132 (Fla. 2011). Unless otherwise
limited by the trial court or the Rules of Civil Procedure, “[p]arties may obtain
discovery regarding any matter, not privileged, that is relevant to the subject
matter of the pending action.” Fla. R. Civ. P. 1.280(b)(1). “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 law.” Hepco Data, LLC v. Hepco Med., LLC,
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301 So. 3d 406, 412 (Fla. 2d DCA 2020); see also Nucci v. Simmons,
20 So.
3d 388, 391 (Fla. 2d DCA 2009) (granting certiorari review of denied
deposition motion “[b]ecause the trial court departed from the essential
requirements of the law in failing to use the correct analysis for determining
whether to deny the motion”). “A trial court's denial of a party's right to
depose a material witness has been found to constitute irreparable harm
subject to certiorari review.” Adkins v. Sotolongo,
227 So. 3d 717, 719 (Fla.
3d DCA 2017); see also Medero v. Fla. Power & Light Co.,
658 So. 2d 566,
567 (Fla. 3d DCA 1995) (granting certiorari where “the trial court made no
finding, and there is nothing in the record before us, to rebut the suggestion
by [the petitioner] that [the witness] is a material witness; and there was no
finding of good cause to preclude this particular deposition”).
Based on the record before us, we conclude that the Airports Authority
of Trinidad and Tobago is not a mere instrumentality of the Republic of
Trinidad and Tobago, but a sui generis statutory entity that would constitute
a material fact witness. See Sardinas v. Lagares,
805 So. 2d 1024, 1026
(Fla. 3d DCA 2001) (“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.” (quotations and emphasis omitted)). Additionally, as
the purported corporate representative provided by respondent was not
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competent to testify to issues properly within the ambit of a corporate
representative for a sui generis entity, there is no basis to conclude that the
deposition of the Airports Authority representative would be cumulative. We
therefore grant the petition and quash the trial court’s December 10, 2020
order denying petitioners’ motion for deposition of the Airports Authority
representative.
Petition granted.
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