ASSURANCE GROUP OF AMERICA, INC., etc. v. SECURITY PREMIUM FINANCE, INC., etc.

Third District Court of Appeal
State of Florida
Opinion filed November 30, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1602
Lower Tribunal No. 17-22446
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Assurance Group of America, Inc., etc., et al.,
Petitioners,
vs.
Security Premium Finance, Inc., etc.,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Carlos Guzman, Judge.
Warren Gammill & Associates, P.L., and Warren P. Gammill, for
petitioners.
FORS | Attorneys at Law, and Jorge L. Fors and Fernando A. Prego,
for respondent.
Before LOGUE, LINDSEY, and MILLER, JJ.
LOGUE, J.
Assurance Group of America, Inc. and Germaine Elizabeth Escobar
seek a writ of certiorari quashing the trial court’s protective order, which
prevents them from taking a second deposition of Security Premium Finance
Inc.’s corporate representative. Petitioners, defendants below, argue that
Respondent’s corporate representative is a material witness, and they will
be irreparably harmed if they are prevented from taking the deposition.
Petitioners identified eight areas of inquiry in their deposition notice, which
they contend are different from the areas of inquiry on which they previously
deposed the corporate representative. Respondent, plaintiff below, argues
there is no irreparable harm because Petitioners already deposed their
corporate representative once before, as well as deposing their marketing
representative (in his individual capacity and not as corporate
representative), and both witnesses testified concerning the same eight
areas of inquiry.
While there is nothing in the Florida Rules of Civil Procedure that
expressly forbids a second discovery deposition, Rule 1.280(c) does allow a
trial court, for good cause shown, to protect a party from discovery that would
cause annoyance, embarrassment, oppression, or undue burden or
expense. See Medina v. Yoder Auto Sales, Inc., 743 So. 2d 621, 623 (Fla.
2d DCA 1999). “[R]ule 1.280(c) . . . gives the trial court significant discretion
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in determining whether such potentially cumulative depositions should
occur[.]” Racetrac Petroleum, Inc. v. Sewell, 150 So. 3d 1247, 1252 (Fla. 3d
DCA 2014). Abusive, cumulative depositions of corporate executives,
moreover, have been cited as an example of good cause sufficient to warrant
a protective order. See Medero v. Florida Power & Light Co., 658 So. 2d 566,
567–68 (Fla. 3d DCA 1995).
“In circumstances involving the denial of the right to take testimony of
an alleged material witness, it has been recognized that such a denial cannot
be remedied on appeal since ‘there would be no practical way to determine
after judgment what the testimony would be or how it would affect the result.’”
Id. at 567 (quoting Travelers Indem. Co. v. Hill, 388 So. 2d 648, 650 (Fla. 5th
DCA 1980)). As Respondent correctly points out, however, in cases where
certiorari has been granted under these circumstances the issue did not
concern a second deposition of a material witness, but rather whether an
initial deposition should have been permitted. A finding of irreparable harm
under those circumstances, therefore, is distinguishable from the present
matter. C.f. Adkins v. Sotolongo, 227 So. 3d 717, 720-22 (Fla. 3d DCA 2017)
(Luck, J., concurring) (discussing weakness of rationale for establishing
irreparable harm in cases involving denial of deposition of material witness).
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This is also not a situation in which newly discovered evidence or new
developments necessitate a second deposition, as a review of the record
reflects that the corporate representative did provide testimony during her
initial deposition concerning the areas of inquiry on which Petitioners now
seek a second deposition. Accordingly, we find no irreparable harm and
dismiss the petition.
Dismissed.
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