DANIEL S. NEWMAN, etc., et al., Petitioners,
MAYER BROWN, LLP, et al., Respondents.
final until disposition of timely filed motion for rehearing.
Petition of writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Joseph Murphy,
Judge; L.T. Case No. 10-49061.
Reus, Scot C. Stirling and Robert O. Stirling of Beus Gilbert
PLLC, Phoenix, and Stuart Z. Grossman and Rachel W. Furst of
Grossman Roth Yaffa Cohen, P.A., Coral Gables, for
K. Pettis and Debra P. Klauber of Haliczer, Pettis &
Schwamm, Fort Lauderdale, for respondents.
Daniel Newman ("the Receiver") seeks certiorari
review of a non-final order that granted Respondent Mayer
Brown, LLP's motion to compel discovery with respect to
thirty-eight nonparties. Below, Newman was appointed as a
receiver for these thirty-eight investor entities and
individuals ("Assignors"), which all contractually
assigned their claims against Mayer Brown to the Receiver.
The latter is the plaintiff, and Mayer Brown is one of the
defendants in the underlying action. During discovery, Mayer
Brown moved to compel the Receiver to produce documents and
comply with deposition requests concerning the Assignors. The
trial court granted the motion and the Receiver filed the
instant petition for writ of certiorari, arguing that the
trial court erred in compelling discovery because the
Assignors were nonparties and thus could not take part in
discovery without a subpoena. As set forth below, we deny the
2009, Newman was appointed by the United States District
Court for the Middle District of Florida as a receiver for
claims of securities fraud filed by four hedge funds
("Founding Partners") and for the Founding Partners
Capital Management Co. ("FPMC"). The federal court
order appointing the Receiver gave him authority to assert
claims "for the benefit and on behalf of" the four
funds and "their investors and other creditors,"
i.e., the Assignors. Newman filed suit against Mayer Brown, a
law firm, which allegedly facilitated the
fraud. The suit was filed by Newman both in his
capacity as Receiver for the funds and as the
"Assignee" of claims belonging to thirty-eight
individual or entity investors in the funds.
parties filed discovery requests. At issue is Mayer
Brown's request for the production of privilege logs by
the nonparty Assignors and its request that the Assignors
appear for deposition. The Receiver refused to comply with
these discovery requests, arguing that he did not represent
the Assignors and that they are not parties to this action.
He further claimed he was not in custody, possession or
control of the Assignors' documents and could not force
the Assignors to produce documents or appear for depositions.
Brown filed a motion to compel compliance with its discovery
requests, arguing at the subsequent hearing that "a
defendant who is sued on an assigned claim may not be
subjected to a greater discovery burden than if the claim had
not been assigned." The assignment agreements entered
into by the Receiver with each of the thirty-eight Assignors
are central to Mayer Brown's contention that the
assignments provide benefits to the Assignors, as each
assignment states that "any recoveries made on [the
Receiver's] Claims [related to the individual
assignor's investment in the funds] shall benefit
all creditors and investors . . . to the extent
determined appropriate by the Receiver or directed by the
Court . . . ." Mayer Brown furthermore noted that the
Assignors "agree[d] to provide reasonable cooperation
and assistance to the Receivers' (sic) legal counsel
and/or the Receiver in connection with the Claims" and
set forth details of this cooperation and assistance,
including an agreement to appear for deposition and
"delivering a sworn or written statement of facts known
responded that the Assignors were not parties and Mayer Brown
should therefore use subpoenas and "discovery devices
that are appropriate for non-parties."
trial court granted Mayer Brown's motion to compel. The
order states that the Assignors "shall be treated as
parties to the case for discovery purposes in
producing documents and appearing for deposition . . . with
the same protections and obligations applying to the
Assignors as apply to [the] parties." (emphasis added).
The Receiver filed the instant petition seeking certiorari
review of the order.
by certiorari is appropriate when a discovery order departs
from the essential requirements of law, causing material
injury to a petitioner throughout the remainder of the
proceedings below and effectively leaving no adequate remedy
on appeal." Allstate Ins. Co. v. Langston, 655
So.2d 91, 94 (Fla. 1995). The critical inquiry for
jurisdictional purposes is whether the order "creates
material harm irreparable by postjudgment appeal."
Bared & Co. v. McGuire, 670 So.2d 153, 156-57