SYBAC Solar, GMBH v. 6th Street Solar Energy Park of Gainesville, LLC , 2017 Fla. App. LEXIS 4584 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SYBAC SOLAR, GMBH, f/k/a SYBAC )
SOLAR, AG, a Foreign Corporation, )
)
Petitioner, )
)
v. ) Case No. 2D16-2624
)
6th STREET SOLAR ENERGY PARK )
OF GAINESVILLE, LLC, )
)
Respondent. )
_____________________________________ )
Opinion filed April 5, 2017.
Petition for Writ of Certiorari to the
Circuit Court of Polk County, Keith P.
Spoto, Judge.
Michael M. Brownlee and J. Brock
McClane of Fisher Rushmer, P.A., Orlando,
and John H. Adams, Cecily M. Welsh, and
Alan Bookman, of Emmanuel Sheppard &
Condon, Pensacola, for Petitioner.
Daniel A. Fox and Benjamin W. Hardin, Jr.,
of Hardin & Ball, P.A., Lakeland, for
Respondent.
SILBERMAN, Judge.
Sybac Solar, GMBH, seeks certiorari review of an order granting a motion
to compel deposition filed by 6th Street Solar Energy Park of Gainesville, LLC. 6th
Street sought to depose Christian Rautenberg as Sybac's corporate representative in
furtherance of 6th Street's counterclaim for defamation against Sybac based on
Rautenberg's alleged statements. We conclude that it was a departure from the
essential requirements of the law to require Rautenberg to testify as Sybac's corporate
representative regarding matters on which the two have adverse interests. Accordingly,
we grant the petition.
In December 2012, Sybac filed a complaint against 6th Street to recover
approximately $6 million Sybac allegedly loaned 6th Street to develop a solar power
plant in Gainesville. In April 2015, 6th Street served a notice of deposition on Sybac
seeking to depose a corporate representative pursuant to Florida Rule of Civil
Procedure 1.310(b)(6) (2011). Sybac produced two representatives, Konstantin Sassen
and Laura Tyson, who testified for over two days. 6th Street then noticed Rautenberg
for deposition as a corporate representative. In November 2015, Rautenberg testified
as the corporate representative but on advice of counsel refused to answer any
questions pertaining to a meeting held on December 20, 2013. Statements Rautenberg
allegedly made at this meeting are the subject of a separate defamation action filed by
one of 6th Street's founding partners against Rautenberg individually and against Sybac
for vicarious liability.
In December 2015, 6th Street filed an amended counterclaim in this case
adding a defamation count against Sybac in which it asserted that Rautenberg made
the alleged defamatory statements on December 20, 2013, as an agent of Sybac.
Sybac answered the counterclaim and filed affirmative defenses. Among other things,
Sybac asserted that it did not approve the December 20, 2013, meeting; that it did not
-2-
ratify any statements Rautenberg made at the meeting; and that Rautenberg was not
acting as Sybac's agent when he allegedly made the defamatory statements.
6th Street filed a motion to compel in which it requested, among other
things, that Rautenberg be compelled to give a deposition as corporate representative
of Sybac and answer deposition questions regarding the December 20, 2013, meeting.
After a hearing in April 2016, the trial court granted the motion to compel, ordered
Rautenberg to appear for a continued deposition as Sybac's corporate representative,
and required Rautenberg to answer "[a]ll questions in any way concerning" the
December 20, 2013, meeting. This petition for certiorari followed.
To be entitled to certiorari relief, "[a] petitioner must establish (1) a
departure from the essential requirements of the law, (2) resulting in material injury for
the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Barker
v. Barker, 909 So. 2d 333, 336 (Fla. 2d DCA 2005) (quoting Parkway Bank v. Fort
Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). The last two
elements are jurisdictional and must be addressed before this court can reach the
merits of the petition. Id.
Generally speaking, orders compelling depositions often result in material
injury that cannot be corrected on appeal, or irreparable harm, because once the
information is released, any damage cannot be undone. Univ. of W. Fla. Bd. of Trs. v.
Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013); Horne v. Sch. Bd. of Miami-Dade
Cty., 901 So. 2d 238, 240 (Fla. 1st DCA 2005). This case involves irreparable harm
arising from the intended use of Rautenberg's deposition testimony as Sybac's
corporate representative to bind Sybac. See Carriage Hills Condo., Inc. v. JBH Roofing
-3-
& Constructors, Inc., 109 So. 3d 329, 335 (Fla. 4th DCA 2013) ("When a Rule
1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee
'is deemed to be the testimony of the corporation itself.' " (quoting State Farm Mut. Auto.
Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D. Pa. 2008))).
On the merits, Sybac argues that the circuit court departed from the
essential requirements of the law by failing to apply "the plain and unambiguous
language" of rule 1.310(b)(6) granting a corporation the sole authority to designate its
corporate representative. Sybac claims that rule 1.310(b)(6) does not authorize the
deposing party to unilaterally name a person to testify on behalf of the corporation,
especially when that person has adverse interests to the corporation.
Rule 1.310(b)(6) circumscribes the procedure for noticing the deposition of
a corporation as follows:
In the notice a party may name as the deponent a public or
private corporation, a partnership or association, or a
governmental agency, and designate with reasonable
particularity the matters on which examination is requested.
The organization so named shall designate one or more
officers, directors, or managing agents, or other persons who
consent to do so, to testify on its behalf and may state the
matters on which each person designated will testify. The
persons so designated shall testify about matters known or
reasonably available to the organization. This subdivision
does not preclude taking a deposition by any other
procedure authorized in these rules.
(Emphasis added.) The substance of this rule was taken from an amendment to
Federal Rule of Civil Procedure 30(b)(6), which is rule 1.310(b)(6)'s federal counterpart.
Carriage Hills, 109 So. 3d at 334. Under these rules, the party seeking to depose a
witness must describe the subject for examination with reasonable particularity. The
corporation must then produce a witness to testify regarding this subject matter. Id.
-4-
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. Id. And there may be a good reason why a
corporation does not produce the most knowledgeable witness for deposition. Id. at
335. For example, the person with the greatest knowledge of the subject matter "may
not totally embrace the corporation's position." Id. Instead, the corporation is required
to prepare the designated witness to testify regarding the designated subject matter. Id.
at 334. The rule thus "streamlines the discovery process and gives the corporation
being deposed more control by permitting it to select and prepare a witness to testify on
its behalf." Id. at 335.
That said, the corporation does not have sole control over which of its
corporate officials may be deposed. See Racetrac Petroleum, Inc. v. Sewell, 150 So.
3d 1247, 1252 (Fla. 3d DCA 2014); Plantation-Simon, Inc. v. Bahloul, 596 So. 2d 1159,
1160-61 (Fla. 4th DCA 1992). Rule 1.310(b)(6) expressly states that the procedures
therein are not exclusive: "This subdivision does not preclude taking a deposition by
any other procedure authorized in these rules." As further explained in the committee
notes to rule 1.310(b)(6)'s federal counterpart:
This procedure supplements the existing practice whereby
the examining party designates the corporate official to be
deposed. Thus, if the examining party believes that certain
officials who have not testified pursuant to this subdivision
have added information, he may depose them. On the other
hand, a court's decision whether to issue a protective order
may take account of the availability and use made of the
procedures provided in this subdivision.
Plantation-Simon, 596 So. 2d at 1160 (quoting Fed. R. Civ. P. 30(b)(6) advisory
committee's note to 1970 amendment).
-5-
Therefore, even though a corporation has the sole responsibility for
choosing its corporate representative under rule 1.310(b)(6), the deposing party is not
necessarily limited to deposing only that witness. Racetrac Petroleum, 150 So. 3d at
1252; Plantation-Simon, 596 So. 2d at 1161. But the deposing party does not have the
unilateral authority to select the corporate representative who shall testify on behalf of
the corporation. Racetrac Petroleum, 150 So. 3d at 1252; Chiquita Int'l Ltd. v. Fresh Del
Monte Produce, N.V., 705 So. 2d 112, 113 (Fla. 3d DCA 1998); Plantation-Simon, 596
So. 2d at 1161. Instead, the deposing party's request to depose a specific corporate
representative is subject to the circuit court's discretion to issue a protective order.
Racetrac Petroleum, 150 So. 3d at 1252; Plantation-Simon, 596 So. 2d at 1161-62.
Accordingly, the trial court was not bound by Sybac's selection of Sassen
and Tyson as Sybac's corporate representatives or 6th Street's request to depose
Rautenberg as Sybac's corporate representative. Instead, the trial court should have
considered whether, as argued by Sybac, Rautenberg's interests were so adverse to
Sybac's that he would not be an appropriate corporate spokesperson. Based on
Sybac's defense to 6th Street's defamation counterclaim, Rautenberg's interests appear
to be directly adverse to those of Sybac, and he was therefore an inappropriate
spokesperson for the corporation. See Sanders v. Circle K Corp., 137 F.R.D. 292, 294
(D. Ariz. 1991) (denying a motion to compel the deposition of a named corporate
representative because he was accused of sexual harassment and discrimination and it
was in his interest to argue that he acted in the course and scope of his employment
while it was in the employer's interest to argue he was not).
-6-
We conclude that it was a departure from the essential requirements of
the law for the circuit court to require Rautenberg to testify as Sybac's corporate
representative regarding matters on which the two have adverse interests. Accordingly,
we grant the petition for certiorari and quash that portion of the order requiring
Rautenberg to answer "[a]ll questions in any way concerning" the December 20, 2013,
meeting as a corporate representative. In so doing, we note that 6th Street is not
precluded from noticing the deposition of a different corporate representative in
furtherance of the defamation counterclaim or from noticing the deposition of
Rautenberg in his individual capacity.
Petition granted; order quashed in part.
SLEET and BADALAMENTI, JJ., Concur.
-7-