SYBAC SOLAR, GMBH, f/k/a SYBAC SOLAR, AG, a Foreign Corporation, Petitioner,
6th STREET SOLAR ENERGY PARK OF GAINESVILLE, LLC, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court of Polk
County, Keith P. Spoto, Judge.
Michael M. Brownlee and J. Brock McClane of Fisher Rushmer,
P.A., Orlando, and John H. Adams, Cecily M. Welsh, and Alan
Bookman, of Emmanuel Sheppard & Condon, Pensacola, for
A. Fox and Benjamin W. Hardin, Jr., of Hardin & Ball,
P.A., Lakeland, for Respondent.
Solar, GMBH, seeks certiorari review of an order granting a
motion to compel deposition filed by 6th Street Solar Energy
Park of Gainesville, LLC. 6th Street sought to
depose Christian Rautenberg as Sybac's corporate
representative in furtherance of 6th Street's
counterclaim for defamation against Sybac based on
Rautenberg's alleged statements. We conclude that it was
a departure from the essential requirements of the law to
require Rautenberg to testify as Sybac's corporate
representative regarding matters on which the two have
adverse interests. Accordingly, we grant the petition.
December 2012, Sybac filed a complaint against 6th Street to
recover approximately $6 million Sybac allegedly loaned 6th
Street to develop a solar power plant in Gainesville. In
April 2015, 6th Street served a notice of deposition on Sybac
seeking to depose a corporate representative pursuant to
Florida Rule of Civil Procedure 1.310(b)(6) (2011). Sybac
produced two representatives, Konstantin Sassen and Laura
Tyson, who testified for over two days. 6th Street then
noticed Rautenberg for deposition as a corporate
representative. In November 2015, Rautenberg testified as the
corporate representative but on advice of counsel refused to
answer any questions pertaining to a meeting held on December
20, 2013. Statements Rautenberg allegedly made at this
meeting are the subject of a separate defamation action filed
by one of 6th Street's founding partners against
Rautenberg individually and against Sybac for vicarious
December 2015, 6th Street filed an amended counterclaim in
this case adding a defamation count against Sybac in which it
asserted that Rautenberg made the alleged defamatory
statements on December 20, 2013, as an agent of Sybac. Sybac
answered the counterclaim and filed affirmative defenses.
Among other things, Sybac asserted that it did not approve
the December 20, 2013, meeting; that it did not ratify any
statements Rautenberg made at the meeting; and that
Rautenberg was not acting as Sybac's agent when he
allegedly made the defamatory statements.
Street filed a motion to compel in which it requested, among
other things, that Rautenberg be compelled to give a
deposition as corporate representative of Sybac and answer
deposition questions regarding the December 20, 2013,
meeting. After a hearing in April 2016, the trial court
granted the motion to compel, ordered Rautenberg to appear
for a continued deposition as Sybac's corporate
representative, and required Rautenberg to answer "[a]ll
questions in any way concerning" the December 20, 2013,
meeting. This petition for certiorari followed.
entitled to certiorari relief, "[a] petitioner must
establish (1) a departure from the essential requirements of
the law, (2) resulting in material injury for the remainder
of the trial (3) that cannot be corrected on postjudgment
appeal." Barker v. Barker, 909 So.2d 333, 336
(Fla. 2d DCA 2005) (quoting Parkway Bank v. Fort Myers
Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA
1995)). The last two elements are jurisdictional and must be
addressed before this court can reach the merits of the
speaking, orders compelling depositions often result in
material injury that cannot be corrected on appeal, or
irreparable harm, because once the information is released,
any damage cannot be undone. Univ. of W. Fla. Bd. of Trs.
v. Habegger, 125 So.3d 323, 325 (Fla. 1st DCA 2013);
Horne v. Sch. Bd. of Miami-Dade Cty., 901 So.2d 238,
240 (Fla. 1st DCA 2005). This case involves irreparable harm
arising from the intended use of Rautenberg's deposition
testimony as Sybac's corporate representative to bind
Sybac. See Carriage Hills Condo., Inc. v. JBH Roofing
& Constructors, Inc., 109 So.3d 329, 335 (Fla. 4th
DCA 2013) ("When a Rule 1.310(b)(6) deposition is
properly noticed and conducted, the testimony of the designee
'is deemed to be the testimony of the corporation
itself.' " (quoting State Farm Mut. Auto. Ins.
Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D. Pa.
merits, Sybac argues that the circuit court departed from the
essential requirements of the law by failing to apply
"the plain and unambiguous language" of rule
1.310(b)(6) granting a corporation the sole authority to
designate its corporate representative. Sybac claims that
rule 1.310(b)(6) does not authorize the deposing party to
unilaterally name a person to testify on behalf of the
corporation, especially when that person has adverse
interests to the corporation.
1.310(b)(6) circumscribes the procedure for noticing the
deposition of a corporation as follows:
In the notice a party may name as the deponent a public
or private corporation, a partnership or association, or
a governmental agency, and designate with reasonable
particularity the matters on which examination is requested.
The organization so named shall designate one or more
officers, directors, or managing agents, or other persons who
consent to do so, to testify on its behalf and may state the
matters on which each person designated will testify.
The persons so designated shall testify about matters known
or reasonably ...