Eller-I.T.O. Stevedoring Co. v. Pandolfo

Third District Court of Appeal
State of Florida
Opinion filed June 17, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2904
Lower Tribunal No. 13-4180
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Eller-I.T.O. Stevedoring Company, L.L.C.,
Petitioner,
vs.
Lazaro Pandolfo and Olga Alvarez a/k/a Olga Alvarez Sarria,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lisa
Walsh, Judge.
Hamilton, Miller & Birthisel, Jerry D. Hamilton, Robert M. Oldershaw and
Michael J. Dono, for petitioner.
Matias R. Dorta and Gonzalo R. Dorta, for respondents.
Before WELLS, ROTHENBERG and EMAS, JJ.
ON MOTION FOR CLARIFICATION
WELLS, Judge.
We grant Appellant’s Motion to Clarify, withdraw our previous opinion filed
April 29, 2015, and substitute the following opinion in its place.
Eller-I.T.O. Stevedoring Co., L.L.C. (“Eller-ITO”) seeks certiorari review of
an order compelling an outside-attorney for Eller-ITO, Timothy J. Armstrong,
assisting in Eller-ITO’s representation herein, to be deposed by the respondents.
Because we find no record basis for ordering this Eller-ITO attorney to appear for
deposition, we grant certiorari and quash without prejudice the order under review.
See State v. Donaldson, 763 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (granting
certiorari and quashing order compelling opposing counsel to sit for deposition);
see also Scottsdale Ins. Co. v. Camara de Comercio Latino-Americana de los
Estados Unidos, Inc., 813 So. 2d 250, 252 (Fla. 3d DCA 2002) (citing Donaldson,
granting certiorari and quashing order that denied motion for protective order and
compelled opposing counsel to appear for deposition).
In Donaldson, this court, citing in part to Shelton v. American Motors Corp.,
805 F. 2d 1323, 1327 (8th Cir. 1986), stated “[t]aking the deposition of opposing
counsel in a pending case is an extraordinary step which will be rarely justified.”
Donaldson, 763 So. 2d at 1254. As Shelton (where the deposition of an in-house
attorney was at issue) confirms, such depositions “should be limited to where the
party seeking to take the deposition has shown that (1) no other means exist to
obtain the information than to depose opposing counsel; (2) the information sought
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is relevant and non-privileged; and (3) the information is crucial to the preparation
of the case.” Shelton, 805 F. 2d at 1327 (citation omitted); see also Zimmerman v.
State, 114 So. 3d 446, 447 (Fla. 5th DCA 2013) (“Because of a belief that the
discovery process was being abused, the Shelton test was erected as a barrier to
protect trial attorneys from unnecessary depositions.”).
The record in this case confirms that attorney Armstrong, although not
counsel of record, is directly involved in the instant litigation having both directed
and overseen “various aspects of Eller-ITO’s investigation of the accident on
which [respondents] . . . premised their allegations and claims sub judice, as well
as [having] prepar[ed] and receiv[ed] documentation [including attorney-client
privileged communications and work product documents] related to the
investigation,” thereby obligating respondents to satisfy Shelton’s requirements
before being allowed to take his deposition. See Broughton v. Cotter Corp., 65 F.
3d 823, 828-31 (10th Cir. 1995) (precluding the deposition of outside counsel
because of the extent of that attorney’s role in representing the party); Nat’l W.
Life Ins. Co. v. W. Nat’l Life Ins. Co., No. A-09-CA-711, 2010 WL 5174366, at
*3 (W.D. Tex. Dec. 13, 2010) (“[T]he critical factor in determining whether the
Shelton test applies is not the status of the lawyer as ‘trial counsel,’ but the extent
of the lawyer’s involvement in the pending litigation.” (quoting Murphy v.
Adelphia Recovery Trust, No. 3-09-MC-105-B, 2009 WL 4755368, at *3 (N.D.
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Tex. Nov. 3, 2009))); Massillon Mgmt., LLC v. Americold Realty Trust, No. 5:08-
CV-799, 2009 WL 614831, at *3-6 (N.D. Ohio Jan. 21, 2009) (holding that in-
house counsel who was working with outside counsel to assist in developing
strategy, taking discovery, and assisting in defending an action was not subject to
being deposed because the criteria set forth in Shelton had not been satisfied)
(citing Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F. 3d 621, 628 (6th Cir.
2002) as having adopted Shelton)). Because respondents failed to satisfy Shelton’s
requirements, we grant the petition for writ of certiorari and quash the lower
court’s order without prejudice.
Certiorari granted.
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