MARIA J. SOMARRIBA AND YASEL DIAZ, PETITIONERS,
v.
JAVED S. ALI AND ISAAC A. VELAZQUEZ, RESPONDENTS
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The court granted a petition for certiorari to quash a protective order that barred a plaintiff from deposing her former attorney regarding injuries from a prior accident. The court held that no recognized legal ground supported the protective order, especially where the testimony was potentially critical to rebutting the defendant's causation defense.
The court held that the protective order should be quashed because no recognized legal ground supported prohibiting Somarriba from deposing Velazquez. The fact that Velazquez is an attorney does not disqualify him as a witness, and Somarriba had waived attorney-client privilege regarding the prior accident.
[1] An order prohibiting the taking of a material witness' deposition inflicts harm that cannot be remedied on final appeal, and is therefore reviewable by certiorari.
[2] A trial court departs from the essential requirements of law by granting a protective order that prohibits the taking of a material witness' deposition without recognized…
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Join FLexlaw to unlock all legal intelligence“An order prohibiting the taking of a material witness' deposition inflicts the type of harm that can not be remedied on final appeal.”
Establishes that certiorari is appropriate to review orders barring material witness depositions because the harm is irreparable.
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Join FLexlaw to unlock all legal intelligenceSomarriba sued Ali for injuries from a motor vehicle collision in August 2003. Ali's defense relied on a prior automobile accident in March 2000 as th…
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CORTINAS, Judge.
Petitioner, Maria J. Somarriba (“Somar-riba”), seeks a writ of certiorari quashing an order granting Isaac A. Velazquez’s (“Velazquez”) motion for a protective order barring Somarriba from taking his deposition. Respondents Javed Ali (“Ali”) and Velazquez were ordered to respond to the petition, but declined to do so. We grant the petition and quash the order. Somarriba is the plaintiff in a personal injury lawsuit against defendant Ali, involving a motor vehicle collision in August 2003, which allegedly caused Somarriba to suffer cervical and lumbosacral spinal trauma. A significant part of Ali’s defense in the lawsuit is that a prior automobile accident in March 2000 (“the 2000 accident”) actually caused Somarriba’s injuries.
In order to rebut Ali’s defense, Somarri-ba subpoenaed Velazquez, the attorney who represented her in the lawsuit concerning the 2000 accident. Somarriba sought to depose Velazquez regarding the facts and circumstances surrounding her injuries in the 2000 accident. However, Velazquez moved for a protective order in response to the subpoena, arguing that he had no recollection and, therefore, was incompetent to testify. Subsequently, the trial court granted Velazquez’s motion for a protective order and this petition for certiorari follows.
“An order denying discovery is not ordinarily reviewable by certiorari.... ” Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231, 1233 (Fla. 3d DCA 2006) (quoting Medero v. Fla. Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995)). However, we have found that an order prohibiting the taking of a material witness’ deposition inflicts the type of harm that can not be remedied on final appeal. See, e.g., Expert Installation, 933 So. 2d at 1233; Medero, 658 So. 2d at 567; Criswell v. Best W. Int’l, Inc., 636 So. 2d 562, 563 (Fla. 3d DCA 1994)(finding that the order denying discovery could not be adequately reviewed on final appeal because it would be impossible to know how the information elicited would have affected the outcome of the case). Most recently, in Expert Installation, we reaffirmed the importance of taking oral testimony and found that the trial court erred in granting a protective order prohibiting the taking of a material witness’ deposition. Expert Installation, 933 So. 2d at 1233.
Here, we find no recognized ground for prohibiting Somarriba from deposing Velazquez1 and, in not responding to the instant petition, respondents have failed to offer any. Velazquez’s testimony may be critical to rebut the disputed cause of Somarriba’s injuries. Additionally, on final appeal it would be difficult for us to determine how his testimony would have affected the outcome of this case. Accordingly, we conclude that the trial court departed from the essential requirements of law and quash the order before us.
Certiorari granted.
. Notably, it is well-settled that the fact that a person is a lawyer does not necessarily disqualify him as a witness. See Hoyas v. State, 456 So. 2d 1225 (Fla. 3d DCA 1984); Sec. Trust Co. v. Grant, 155 So. 2d 805 (Fla. 3d DCA 1963). Here, Velazquez can testify as to matters regarding Somarriba’s injuries in the 2000 accident because Somarriba voluntarily waived the attorney client privilege. See Hoyas, 456 So. 2d at 1228.
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Allstate Ins. Co. v. Total Rehab & Med. Ctrs., Inc., 123 So. 3d 1162 (Fla. 4th DCA 2013)…ney, attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.810(a), which allows the taking of the deposition of any person. See Marbulk Shipping, Inc. v. Bhagat, 948 So. 2d 931, 932 (Fla. 3d DCA 2007); Somarriba v. Ali, 941 So. 2d 526, 528, n. 1 (Fla. 3d DCA 2006); Young, Stern, & Tannenbaum, P.A. v. Smith, 416 So. 2d 4, 5 (Fla. 3d DCA 1982). As the trial court retains authority under Rule 1.310(c)(d) to prohibit inquiry of genuinely privileged materials, we cannot say the order…
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Marshall v. Buttonwood BAY Condo. Ass'n, Inc., 118 So. 3d 901 (Fla. 3d DCA 2013)…ight Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995). This Court repeatedly has found that an order prohibiting the taking of a material witness’s deposition inflicts the type of harm that cannot be remedied on final appeal. See, e.g., Somarriba v. Ali, 941 So. 2d 526 (Fla. 3d DCA 2006); Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231 (Fla. 3d DCA 2006); Medero, 658 So. 2d 566; Criswell v. Best W. In’l, Inc., 636 So. 2d 562 (Fla. 3d DCA 1994); see also Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 200…
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Publix Super Mkts., Inc. v. Hernandez, 176 So. 3d 350 (Fla. 3d DCA 2015)…Nonetheless, “an order denying discovery will be reviewed by [*352] petition for writ of certiorari when the order will cause irreparable harm.” Criswell v. Best Western Int'l Inc., 636 So. 2d 562, 563 (Fla. 3d DCA 1994); see also Somarriba v. Ali, 941 So. 2d 526, 527 (Fla. 3d DCA 2006) (“An order denying discovery is not ordinarily reviewable by certio-rari. However, we have found that an order prohibiting the taking of a material witness’ deposition inflicts the type of harm that cannot be remedied on fina…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Medero v. Fla. Power & Light Co., 658 So. 2d 566 (Fla. 3d DCA 1995)
- Hoyas v. State, 456 So. 2d 1225 (Fla. 3d DCA 1984)
- Criswell v. Best W. Int'l, Inc., 636 So. 2d 562 (Fla. 3d DCA 1994)
- Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231 (Fla. 3d DCA 2006)
- Sec. Tr. Co. v. Grant, 155 So. 2d 805 (Fla. 3d DCA 1963)