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Plantation-Simon Inc. v. Bahloul

Florida Court of Appeals, Fourth District

April 1, 1992

PLANTATION-SIMON INC., an Indiana corporation, as general partner of Plantation Mall Developers Limited Partnership, an Indiana Limited Partnership, as General Partner of Fashion Mall at Plantation Associates, a Florida General Partnership, and General Partner of Plantation Center Limited Partnership, a Delaware Limited Partnership, Petitioner,
v.
Doured Al BAHLOUL, Respondent.

Joseph S. Beckman, Fort Lauderdale, for petitioner.

Dirk Lorenzen of Squire, Sanders & Dempsey, Miami, for respondent.

Page 1160

FARMER, Judge.

A wise man once said that an ounce of history is worth a pound of logic. Without knowing how it got that way, one might theoretically be able to read rule 1.310(b)(6), Florida Rules of Civil Procedure, to require that all depositions of corporations follow the procedure set forth in that subdivision of the rule. [1] The history of the rule, however, teaches otherwise.

The substance of rule 1.310(b)(6) was borrowed from a 1970 amendment to rule 30, Federal Rules of Civil Procedure. Before that amendment was adopted, a party desiring to take the deposition of an officer, director or managing agent of a corporate party was confronted with two alternatives. If he knew which officer-director-agent he wanted to question, he needed only to name the corporation and the officer in his notice and he could use the ordinary discovery rules to enforce compliance.

If he did not know the name of the officer, however, he often faced considerable difficulty. The federal courts had generally held that the examining party could not "burden" the corporation to name an officer having knowledge on the subject. As a consequence, a corporate party could frustrate the opposing party's discovery by simply playing "ping-pong" with him: the first official would disclaim knowledge, as would the second, and so on. It was to cure this problem that rule 30 was amended by the addition of what is now found in rule 30(b)(6), Federal Rules of Civil Procedure. See 8 Wright & Miller, Federal Practice and Procedure (Civil) Sec. 2103 (1970 & Supp.1991).

The Notes of the Advisory Committee on Rules contain the following explanation about the new designation procedure:

This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them. On the other hand, a court's decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subdivision.

The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties not [sic-now?] encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a "managing agent." * * * It will curb the "bandying" by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it. * * * The provision should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. Some courts have held that under the existing rules a corporation should not be burdened with choosing which person is to appear for it. E.g., United States v. Gahagan Dredging Corp., 24 ...


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