Opinion
Case No. 2D20-1587
03-10-2021
Sherry Dix CAVEY, as Personal Representative of the Estate of Spencer Wade Cavey, deceased, Petitioner, v. Rick WELLS, Sheriff of Manatee County, in his official capacity, Respondent.
Richard N. Asfar of Cotney Construction Law, LLP, Tampa; and Michael J. Trentalange of Trentalange & Kelley, P.A., Tampa, for Petitioner. Richard A. Giuffreda and Christy M. Imparato of Purdy, Jolly, Giuffreda, Barranco & Jisa, P.A., Fort Lauderdale, for Respondent.
Richard N. Asfar of Cotney Construction Law, LLP, Tampa; and Michael J. Trentalange of Trentalange & Kelley, P.A., Tampa, for Petitioner.
Richard A. Giuffreda and Christy M. Imparato of Purdy, Jolly, Giuffreda, Barranco & Jisa, P.A., Fort Lauderdale, for Respondent.
SMITH, Judge.
In this petition for writ of certiorari, we review the trial court's order granting a protective order barring the deposition of Richard (Rick) Wells (Sheriff), sheriff of Manatee County, in a negligence action brought by petitioner, Sherry Dix Cavey, as personal representative of the estate of her son, Spencer Cavey. Because the trial court prematurely ruled on relevancy determinations and because there was neither any good cause showing by the Sheriff for the issuance of the protective order nor findings of such by the trial court, we grant the petition and quash the order below. We decline to comment on the Sheriff's request that our court adopt the "apex doctrine," where the trial court made no findings related to the same. See Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.").
The apex doctrine "protects the top officers of a corporation from being deposed without a showing that they have unique or special knowledge of the events in question and that the party seeking the deposition is unable to obtain the information using less intrusive means." Citigroup Inc. v. Holtsberg, 915 So. 2d 1265, 1269 (Fla. 4th DCA 2005) (citing Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995) ). While neither this court nor the Florida Supreme Court has expressly adopted the apex doctrine, our sister courts have adopted the apex doctrine in the government context with respect to high-ranking government officials. See Miami-Dade County v. Dade Cnty. Police Benevolent Ass'n, 103 So. 3d 236, 239 (Fla. 3d DCA 2012) (applying the apex doctrine in granting petition for writ of certiorari and quashing order compelling the mayor, a high-ranking government official, to testify to information that is readily available from other sources under the apex doctrine); Horne v. Sch. Bd. of Miami-Dade Cnty., 901 So. 2d 238, 241 (Fla. 1st DCA 2005) ("[A] party seeking to depose a ... high-ranking governmental official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances." (citing United States v. Wal-Mart Stores, Inc., No. CIV.A. PJM-01-CV-1521, 2002 WL 562301, at *3 (D. Md. Mar. 29, 2002) )); Dep't of Agric. & Consumer Servs. v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) ("[An] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.").
I.
This case involves a one-count complaint for negligence against the Sheriff in his official capacity arising out of the suicide of Mr. Cavey while Mr. Cavey was detained in the Manatee County Jail. The personal representative alleges the sheriff's office failed to recognize that Mr. Cavey was a suicide risk when he was booked into the jail. Further, the personal representative alleges the sheriff's office failed to adequately monitor Mr. Cavey while he was in its custody and negligently supplied Mr. Cavey with the materials that led to his death—specifically, the personal representative alleges the sheriff's office negligently placed Mr. Cavey in a general population cell with the bedsheet he used to hang himself.
The Sheriff is named as a defendant in the lawsuit in his official capacity as the chief correctional officer of Manatee County; he is not named in his individual capacity. Unique to the facts of this case is the parties' personal relationship. The Sheriff personally knew Mr. Cavey and his family, including the personal representative, Mr. Cavey's mother.
The Sheriff moved for summary judgment in November 2018, and the hearing was set for February 13, 2020. While discovery was ongoing, and after the personal representative's deposition, the Sheriff ran into the personal representative at his doctor's office where the personal representative is employed. The two shared a conversation, during which the personal representative alleges the Sheriff made several inculpatory statements: including, (1) a number of sheriff's office employees were terminated or reassigned as a result of Mr. Cavey's suicide, (2) the personal representative's lawsuit is meritorious, and (3) the Sheriff would also pursue litigation if his child had been involved in the same incident.
Upon learning of the Sheriff's conversation with the personal representative, the personal representative sought to depose the Sheriff prior to the summary judgment hearing. The Sheriff objected and responded by filing a motion for protective order, supported by his sworn affidavit. In the affidavit, the Sheriff admitted he had a conversation with the personal representative at his doctor's office. Nevertheless, the Sheriff denied making statements to the personal representative about any employees being terminated or reassigned as the result of Mr. Cavey's suicide. The Sheriff also denied telling the personal representative that the personal representative's case is meritorious or that he would have brought suit if the roles were reversed. The personal representative filed no response to the motion.
A hearing on the motion for protective order was held on April 1, 2020, after which the trial court granted the Sheriff's motion. In making its ruling, the trial court first discussed the concept of relevance and found that the Sheriff would not have any relevant testimony relating to policies or procedures that should have been in place at the jail, opining that such information comes more appropriately from other sources. The trial court also found that the Sheriff would not be a relevant fact witness because he has no firsthand knowledge of what took place in the jail when Mr. Cavey died. With regard to the Sheriff's conversation with the personal representative, the trial court found that the Sheriff's statements constitute inadmissible subsequent remedial measures because they relate to the alleged reassignment or termination of the sheriff's office employees involved in the death of Mr. Cavey. The trial court further found that such subsequent remedial measures are not relevant to the issue of negligence, would confuse the jury and any probative value would be substantially outweighed by the prejudicial effect they would have on the jury. The trial court then questioned whether it should "allow inquiry into that statement given the fact that I've already come to the conclusion ... that this is a subsequent remedial measure and is not coming before the trier of fact anyway." The personal representative argued that the question of whether any of the Sheriff's statements would be admissible is an evidentiary issue to be resolved at trial. The trial court noted the personal representative's objection but ultimately found, "I don't believe that it's appropriate to allow that inquiry when it is so clear to me that it is not admissible, and I'm not going to authorize a deposition to inquire about an issue that is not coming before the trier of fact that there's no arguable merit in it—in its admission." The trial court stated:
So while I don't disagree that I may be putting the cart before the horse here and getting a little bit ahead of myself, I do find definitively that the alleged statement is a remedial measure taken well after the purported negligence and is therefore not admissible.
So the motion for protective order is well taken and will be granted. There is simply no relevance that attaches to the [S]heriff's testimony, at least in my mind, and the only relevance that could attach to the alleged inculpatory statements made in the doctor's office are not admissible anyway, at least based upon my ruling.
II.
"Certiorari review ‘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.’ " Nucci v. Simmons, 20 So. 3d 388, 390 (Fla. 2d DCA 2009) (quoting Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So. 2d 445, 448 (Fla. 2d DCA 2002) ); see also Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009) (stating an order denying discovery that is relevant or reasonably calculated to lead to the discovery of admissible evidence "effectively eviscerates a party's claim, defense, or counterclaim," thus warranting certiorari relief). "A discovery order denying a party the right to depose a witness is appropriate for certiorari review." Hepco Data, LLC v. Hepco Med., LLC, 301 So. 3d 406, 410 (Fla. 2d DCA 2020) (citing Medero v. Fla. Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995) ).
The personal representative has met her burden of showing a material injury that cannot be corrected on postjudgment appeal because, as this court has previously explained, after judgment it would be impossible to determine whether or how this discovery prohibition affected the outcome of the case. See Bush v. Schiavo, 866 So. 2d 136, 140 (Fla. 2d DCA 2004).
III.
Our inquiry does not stop here as the personal representative must also show the trial court's departure from the essential requirements of the law. Florida Rule of Civil Procedure 1.280(b)(1) freely provides:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Id. (emphasis added); see also Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 948 (Fla. 2002) (Pariente, J., concurring) (expressing the importance of broad and liberal discovery rules in our adversary system).
"A trial court possesses broad discretion in overseeing discovery, and protecting the parties that come before it." Bush, 866 So. 2d at 138 (quoting Rojas v. Ryder Truck Rental, Inc., 625 So. 2d 106, 107 (Fla. 3d DCA 1993), approved, 641 So. 2d 855, 857 (Fla. 1994) ). Such protection is afforded under rule 1.280(c), which provides for protective orders in the context of discovery "for good cause shown ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Understandably, the burden of demonstrating good cause for the issuance of a protective order falls upon the party seeking protection. See Bush, 866 So. 2d at 138 ; see also Deltona Corp. v. Bailey, 336 So. 2d 1163, 1170 (Fla. 1976) (explaining that before a party will be completely deprived of the right to take a deposition, a strong showing of good cause is required).
In this case, the personal representative seeks to depose the Sheriff for the purpose of questioning him regarding the alleged inculpatory statements made to her. The Sheriff concedes he had a conversation with the personal representative. However, he disputes that any statements were inculpatory. In issuing the protective order, the trial court found that the Sheriff is "clearly not the relevant and appropriate witness for any policy determination or policy inquiry" and that the Sheriff would not be a relevant fact witness because he "has no firsthand knowledge of that which took place in the [jail]." With regard to the Sheriff's alleged statement that some of the sheriff's office employees involved had been reassigned, the trial court found that "the alleged statement is a remedial measure taken well after the purported negligence and is therefore not admissible."
Any ruling that the Sheriff's testimony would be inadmissible at trial, as the trial court alluded, was not only the incorrect standard for a motion for protective order but was also improperly considered where the deposition had not yet taken place and where the protective order precludes the personal representative from taking the Sheriff's deposition altogether. See Towers v. City of Longwood, 960 So. 2d 845, 849 (Fla. 5th DCA 2007) ("[I]t would be utterly impossible to tell whether Ms. Putz has any information that is relevant to the suit if Mr. Towers is prohibited from asking any questions of her."). Moreover, "[i]t is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fla. R. Civ. P. 1.280(b)(1) ; see also Maris Distribut. Co. v. Anheuser-Busch, Inc., 710 So. 2d 1022, 1024-25 (Fla. 1st DCA 1998) ("It is well settled that ‘a party may be permitted to discover relevant evidence that would be inadmissible at trial, so long as it may lead to the discovery of admissible evidence.’ "(quoting Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995) )). Accordingly, the appropriate inquiry at this stage of the litigation was whether the discovery was "reasonably calculated to lead to the discovery of admissible evidence." Fla. R. Civ. P. 1.280(b)(1).
The allegations in this case are that the Sheriff made comments that spoke directly to the liability of the sheriff's office's and the merits of the personal representative's case, and despite this, the trial court found that the Sheriff would not be a relevant fact witness because he has no firsthand knowledge of what happened in the jail and is not the appropriate person to testify as to the policies and procedures of the sheriff's office. Certainly, the Sheriff's alleged statement that the personal representative's negligence action is meritorious speaks directly to the issue of liability, and so, at the very least, the personal representative is entitled to depose the Sheriff about that statement. See § 90.803(18)(d), Fla. Stat. (2019) (providing that a statement by a party's agent is admissible against the party if it concerns a matter within the scope of the agency or employment and is made during the existence of the agency or employment relationship); see also Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028, 1033 (Fla. 2d DCA 2017) ("Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions."); Metro. Dade County v. Yearby, 580 So. 2d 186, 189 (Fla. 3d DCA 1991) (holding admission by party opponent or agent need not be based on personal knowledge because when a person or agent speaks against his own interest it may be assumed that he or his agent has made adequate investigation which gives statements substantial indicia of reliability). Accordingly, the trial court departed from the essential requirements of the law by prohibiting the personal representative from taking the Sheriff's deposition based upon the trial court's belief that the Sheriff would not be a relevant fact witness—especially where his statements could be considered an admission against interest and without any inquiry into whether the Sheriff's deposition was reasonably calculated to lead to the discovery of admissible evidence under rule 1.280(b).
We also hold that the trial court departed from the essential requirements of the law by prematurely ruling on the admissibility of the Sheriff's alleged statements related to the reassignment of certain sheriff's office employees. While the trial court found the Sheriff's statements to be inadmissible because they relate to subsequent remedial measures taken by the sheriff's office, as the personal representative argued at the hearing, there are exceptions to the rule that subsequent remedial measures are inadmissible at trial. Section 90.407 provides:
Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility
of precautionary measures, if controverted, or impeachment.
(Emphasis added.)
The exceptions may have application in this case where the Sheriff argued the personal representative has already deposed the sheriff's office employees working at the time of the incident and all reported that they are still working in the jail, which belies his alleged statement to the personal representative that sheriff's office employees were reassigned or terminated as a result of Mr. Cavey's death. This testimony would not necessarily be inadmissible as a subsequent remedial measure if it could be used for impeachment purposes or to prove the feasibility of precautionary measures. See § 90.407. Then again, as noted above, whether the testimony would ultimately be admissible at trial is not the proper inquiry at this stage. The proper inquiry is whether the Sheriff's deposition may reasonably lead to the discovery of admissible evidence. Ultimately, the trial court departed from the essential requirements of the law by making premature rulings on the admissibility of the Sheriff's yet-to-be-determined testimony and by failing to consider whether the Sheriff's deposition may reasonably lead to the discovery of admissible evidence.
Our holding is not intended to reach the evidentiary issue of whether these exceptions have been met, as such inquiry would fall under the trial court's purview once the discovery is developed and is brought for the court's resolution in an appropriate pretrial motion. See Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 459 (Fla. 2012) ("Whether this information may be ultimately admitted into evidence need not be resolved here.").
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Finally, and maybe most importantly, the trial court failed to make any findings of "good cause" that would support the issuance of a protective order. See Fla. R. Civ. P. 1.280(c) ("Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires ...."). Inconvenience alone does not constitute good cause—there must be an affirmative showing of annoyance, embarrassment, oppression, or undue burden or expense. See Beekie v. Morgan, 751 So. 2d 694, 697 (Fla. 5th DCA 2000).
Here, the only argument related to "good cause" was lodged in the motion for protective order, which alleged that it would be "unduly burdensome" for the Sheriff to sit for a deposition:
Compelling Sheriff Wells to appear for deposition would be unduly burdensome in light of the fact that said deposition interferes with fulfilling his public function as a high ranking elected official. Such a procedure is properly rejected because as Sheriff, Defendant Wells is particularly susceptible to being the target of discovery abuses such as being set for deposition for purposes of harassment, particularly where he is named in his official capacity in every law suit brought against the Sheriff's Office in both State and Federal Court. Moreover, Sheriff Wells is a busy public official conferred with the duty to enforce the laws of the State of Florida in Manatee County. It is unreasonable and unduly burdensome to command the appearance of a public official to give testimony on issues that are irrelevant or obviously based on false claims.
These conclusory grounds are not supported by the Sheriff's affidavit, which is silent on this issue of "unduly burdensome." Also, while the Sheriff makes vague assertions of harassment and undue burden in his motion, he did not argue or make any showing at the hearing that the discovery sought would cause annoyance, embarrassment, oppression, or undue burden or expense. Nor did the trial court make any findings on these grounds, and we can find no factual support in the record that would support a finding of "good cause" as required under rule 1.280(c). Instead, the Sheriff argued, and the trial court found, that the Sheriff, in his individual capacity, is not a party to the lawsuit, and thus any testimony related to his conversation with the personal representative would be either inadmissible evidence of subsequent remedial measures or simply not relevant—which, as explained above, cannot support the issuance of a protective order.
By failing to apply the "good cause" standard of rule 1.280(c) and by failing to consider whether the information sought was reasonably calculated to lead to the discovery of admissible evidence before granting the protective order, the trial court departed from the essential requirements of the law. See Dees v. Kidney Grp., LLC, 16 So. 3d 277, 279 (Fla. 2d DCA 2009) (holding the trial court departed from the essential requirements of law where the protective order made no findings related to the good cause grounds and the respondent failed to make any showing below that the discovery would cause annoyance, embarrassment, oppression, or undue burden); see also Bush, 866 So. 2d at 140 (holding the conclusory assertion of counsel that the proposed depositions lacked relevance was "insufficient to demonstrate good cause warranting the entry of a protective order"); Office of Attorney Gen., Dep't of Legal Affairs, State of Fla. v. Millennium Commc'ns & Fulfillment, Inc., 800 So. 2d 255, 257 (Fla. 3d DCA 2001) ("[T]he order under review departs from the essential requirements of law because the trial court made no finding and the grounds alleged in the motion for protective order cannot form the basis for denying petitioner the discovery requested."); cf. Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197 (Fla. 4th DCA 2000) (dismissing certiorari petition and holding that the trial court did not err in overruling the objection to the production of documents as constituting an undue burden where the objection was not supported by record evidence).
IV.
Because the trial court prematurely ruled on the admissibility of the Sheriff's yet-to-be determined testimony and failed to make any findings of good cause that would support the issuance of a protective order, we grant the petition and quash the order below.
Petition granted; order quashed.
MORRIS and BLACK, JJ., Concur.