final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Thomas
J. Rebull, Judge. Lower Tribunal No. 16-33154.
Navarro McKown, and Luis F. Navarro, for appellant.
Weinberg Wheeler Hudgins Gunn & Dial, LLC, and Lawrence
E. Burkhalter, Kate D. Spinelli and Kyle R. Jackson, Sr., for
SALTER, SCALES and LOBREE, JJ.
2013, a truck belonging to appellee Coca-Cola Refreshments
USA ("Coca-Cola") was involved in a two-vehicle
accident that caused the truck to crash into a home where
appellant Corinna Clarke ("Clarke") lived. Members
of Clarke's family who also either occupied or owned the
home filed a negligence lawsuit against Coca-Cola (the
"First Lawsuit"). On the eve of the First
Lawsuit's trial, plaintiffs voluntarily dismissed the
First Lawsuit, which prompted the trial court to tax costs
against the plaintiffs.
the dismissal of the First Lawsuit, Clarke - who was not a
party in that action, but who is represented by the same
counsel who represents the First Lawsuit's plaintiffs -
filed her own negligence lawsuit against Coca-Cola (the
"Clarke Lawsuit"). In her amended complaint, Clarke
sought damages for lost personal property and displacement
from her home as a result of the accident.
the pendency of the Clarke Lawsuit, Clarke sought to depose
the Coca-Cola truck driver, Kenroy Buckle, and to obtain
production of documents from him. Coca-Cola sought a
protective order on the ground that, in the First Lawsuit,
Mr. Buckle already had responded to multiple discovery
requests, including sitting for two lengthy depositions, on
the same subject matter. On February 8, 2018, the trial court
granted the protective order as to Mr. Buckle's
deposition only (noting a lack of objection by Coca-Cola to
Clarke using the deposition transcripts from the First
Lawsuit), and allowed other discovery sought by Clarke to
proceed. Subsequently, Coca-Cola moved for summary judgment,
and, on May 21, 2018, the trial court entered final summary
judgment in favor of Coca-Cola.
jurisdiction to review the protective order. Fla. App. R.
Proc. 9.110(h). A trial court "for good cause
shown" may enter a protective order "to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense." Fla. R. Civ. P. 1.280(c);
Beekie v. Morgan, 751 So.2d 694, 697 (Fla. 5th DCA
2000). In this case, the trial court recognized a hardship on
Mr. Buckle to sit for another deposition, only to be
questioned by the same attorney who had deposed him twice
we understand the practical efficiencies the trial court
sought to advance, we conclude that the trial court did not
sufficiently consider and balance Clarke's due process
right to full discovery. The trial court denied the
protective order for all discovery except the Buckle
deposition. Yet, "oral depositions are considered
essential by most trial attorneys." Beekie, 751
So.2d at 697. That Clarke had not participated in the earlier
case in which Mr. Buckle was deposed was a factor too
important to disregard in the granting of Coca-Cola's
motion for protective order. See Marshall v. Buttonwood
Bay Condo. Ass'n, 118 So.3d 901, 903 (Fla. 3d DCA
cannot assume that Clarke could not propound a new or
different line of questions in a deposition of Mr. Buckle.
That a material witness has undergone extensive questioning
in an earlier deposition in a related case is not a
justification under the facts of this case to deny Clarke the
opportunity to probe further. Expert Installation Serv.
Inc. v. Fuerte, 933 So.2d 1231, 1232-33 (Fla. 3d DCA
2006). Because depositions are an essential part of civil
discovery practice, the mere existence of a deposition
transcript from an earlier lawsuit involving similar issues
does not necessarily preclude a new deposition of a material
witness. See Shindorf v. Bell, 207 So.3d 371, 373
(Fla. 2d DCA 2016).
we acknowledge both the hardship on Mr. Buckle to sit for
another deposition and the trial court's goal of judicial
efficiency, Clarke is entitled to a thorough preparation of
her case, including her taking Mr. Buckle's deposition.