Summary
The Florida Third District Court of Appeal granted a petition for writ of certiorari and quashed an order permitting the deposition of petitioners’ counsel. The court held that the respondent failed to satisfy the Shelton criteria, including showing that no other means existed to obtain the requested information. The underlying dispute involved a farm lease and purchase option.
Topics
Practice areas
Questions Presented
- Whether certiorari review was available to challenge the nonfinal order compelling the deposition of opposing counsel.
- Whether the Shelton criteria governed the proposed deposition of petitioners' counsel.
- Whether Sturon Nursery satisfied its burden to show that no other means existed to obtain the information sought from opposing counsel.
Holdings
- Certiorari review was available because an order compelling the deposition of opposing counsel can cause material, irreparable injury that cannot be remedied by post-judgment appeal.
- The Shelton test applies to a deposition of an attorney involved in the pending litigation, even if the attorney's role included transactional work or the attorney was not formally acting as counsel during every relevant period.
- Sturon Nursery failed to satisfy its burden to establish that no other means existed to obtain the information sought from opposing counsel; therefore, the order compelling Klein's deposition departed from the essential requirements of law.
Key quotations
“Deposing opposing counsel is an extraordinary step and fraught with concern. It should be the exception—not the rule.” (at 4)
“The burden is upon the party seeking to depose opposing counsel to satisfy the Shelton criteria before such a deposition may be authorized.” (at 5)
“Absent such a showing by Respondent and a corresponding supported finding by the trial court, the order constitutes a departure from the essential requirements of the law.” (at 8)
Factual background
The parties entered a ten-year farm lease in November 2020 containing a purchase option. In 2024, while discussions concerning exercise of the option were ongoing, petitioners served notices of default and lease termination and later filed an eviction complaint. Petitioners' counsel Karl Klein had participated in preparing the lease, the purchase-option discussions, prelitigation notices, and the ensuing litigation; Sturon Nursery sought to depose him as a potentially material witness.
Procedural history
Sturon Nursery served petitioners' counsel Karl Klein with a deposition subpoena in an underlying eviction action. Klein and his firm moved to quash the subpoena and for a protective order under Florida Rule of Civil Procedure 1.280(d). The circuit court denied the motion, allowing Klein's deposition after the depositions of material fact witnesses and permitting privilege objections on a question-by-question basis. Petitioners sought certiorari relief in the Third District Court of Appeal.