Filed: Apr. 29, 2015
Latest Update: Mar. 02, 2020
Summary: Third District Court of Appeal State of Florida Opinion filed April 29, 2015 Not final until disposition of timely filed motion for rehearing. _ No. 3D14-2904 Lower Tribunal No. 13-4180 _ 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 pet
Summary: Third District Court of Appeal State of Florida Opinion filed April 29, 2015 Not final until disposition of timely filed motion for rehearing. _ No. 3D14-2904 Lower Tribunal No. 13-4180 _ 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 peti..
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Third District Court of Appeal
State of Florida
Opinion filed April 29, 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.
Dorta Law, Matias R. Dorta and Gonzalo R. Dorta, for respondents.
Before WELLS, ROTHENBERG and EMAS, JJ.
WELLS, Judge.
Eller-I.T.O. Stevedoring Co., L.L.C. (“Eller-ITO”) seeks certiorari review of
an order compelling one of its in-house attorneys, Timothy J. Armstrong, 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
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.”).
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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.
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)
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(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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