The Florida Bar
The Florida Bar Journal
November, 2008 Volume 82, No. 10
Invoking “the Rule” During Depositions? Absolutely “Maybe”

by Bryan R. Rendzio

Page 54

Your Honor, I’d like to go ahead and invoke ‘the rule.’” Most litigators have uttered these words during a trial, or conversely, heard the phrase come from the direction of opposing counsel’s table. There comes little astonishment when the expression is conveyed within the confines of the courthouse walls. When someone mentions invoking “the rule” during a deposition, however, quite a different reaction can occur — looks of initial amazement, followed by the inevitable face-off. “You can’t do that.” Can you?

What Does It Mean to Invoke “the Rule”
When someone invokes the rule, he or she is seeking to implement the rule of sequestration — i.e., the rule requiring that certain witnesses remain outside of the presence of testifying witnesses.1 The premise behind the rule is that it prevents witnesses from hearing the testimony of other witnesses so that each person’s testimony is his or her own, and is not influenced or tainted because of another witness’ testimony.2 The rule may be invoked during trial, as well as during pretrial hearings at which witnesses are called to testify.3

Witnesses Who Are Not Subject to the Rule
Any discussion of the scope of the rule must begin with an analysis of those individuals who are not subject to the rule. According to the Florida Evidence Code,4 there are four groups who may not be excluded from a trial or other proceeding. The first group includes a party who is a natural person.5 Hence, in both civil and criminal matters, it is inappropriate to invoke the rule against a person who is a party to the lawsuit. The second group applies to civil actions, and concerns designated corporate representatives.6 According to F.S. §90.616, a corporation or governmental body, which is a party, is treated the same as a natural person under the Florida Evidence Code.7 Thus, just as a natural person who is a party may remain and hear testimony of other witnesses, so may a representative of a corporate party remain present during the testimony of another.

The third group is comprised of those individuals whose presence is shown to be essential to the offering party’s cause.8 This may include expert witnesses,9 and, in criminal matters, law enforcement officers.10 The final group, which pertains to criminal matters, includes victims of crimes, parents, or guardians of minor child victims, a victim’s next of kin and lawful representatives of a victim.11 The trial judge has authority to exclude individuals within this last group if the court determines, upon motion, that their presence in the courtroom is prejudicial.12

Overview of the Dardashti and Smith Decisions
Two seminal cases discuss the subject of invoking the rule at deposition. In Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982), the plaintiff sued the defendant alleging breach of an oral contract.13 In response to interrogatories, the plaintiff named as a witness his wife who was present during the alleged contractual negotiations and who would support the plaintiff’s allegations.14 The defendant sought to invoke the rule to sequester the wife from being present at the husband’s deposition.15 The trial court refused to sequester the wife from the deposition.16 The Fourth District Court of Appeal reversed, holding that a party could invoke the rule at a deposition. It noted the nature of depositions — that is, that there is “little advance warning during a deposition of unexpected and oblique questions requiring instantaneous response[s].”17 Moreover, the court reasoned that “[t]o permit [a person] to sit and absorb the answers of [another person] in a case such as [the one at hand] obviously facilitates the very ‘coloring of a witness’s testimony’ frowned upon by [Florida’s] Supreme Court in [Spencer v. State] . . . .”18 Hence, according to Dardashti, a party can invoke the rule during a deposition.

Some years after the Dardashti decision, the First District was called upon to address the rule in a deposition context. In Smith v. Southern Baptist Hospital of Florida, Inc., 564 So. 2d 1115 (Fla. 1st DCA 1990), the First District did not follow the Fourth District rule. There, the plaintiff sued a physician and a hospital, as well as the hospital’s board of regents, for negligence in failing to diagnose a circulation disorder, which ultimately resulted in a leg amputation.19 The plaintiff alleged that a resident who assisted the defendant-physician was negligent.20 The resident, however, was not named as a defendant due to a statutory provision prohibiting officers and employees from being personally sued absent certain maliciousness or other bad faith.21

The plaintiff scheduled the defendant-physician for deposition during which plaintiff’s counsel realized that the resident physician, a nonparty, was present.22 Upon discovering who the resident physician was, plaintiff’s counsel invoked the rule and asked that the resident physician leave the deposition room.23 Defense counsel refused to exclude the resident physician.24 The court denied the subsequent motion for protective order based upon the fact that the deposition had been in progress for some time prior to any sequestration being sought.25

The First District affirmed.26 It stated that the “unwritten rule” — i.e., sequestration of witnesses — applied at trial and not during depositions.27 The court reasoned that parties seeking to preclude persons from depositions needed to employ a motion for protective order by means of Rule 1.280(c).28 Consequently, parties litigating in the First District could no longer invoke the rule during depositions, and instead, they needed to seek court intervention prior to the deposition.

In reaching its ruling, the First District analyzed the Dardashti decision, but was not persuaded to align itself with its sister court. The First District stated: “In Dardashti, the [Fourth District] did not cite any case to support its conclusion that the unwritten rule of sequestration of witnesses at trial is applicable to deposition, and we have been unable to find any such case except Dardashti.”29 This led the First District to look to federal law for guidance. Specifically, the court looked to Federal Rule of Evidence 615 (the federal sequestration rule), as well as federal decisions interpreting Rule 615.30

The First District observed that federal courts applied Rule 615 to hearings and trials — not to depositions.31 Federal courts instead required that parties implement Federal Rule of Civil Procedure 26(c) (i.e., motions for protective order) to exclude witnesses from depositions.32 This was instrumental to the First District’s Smith decision since Federal Rule 26(c) is virtually identical to Florida’s Rule of Civil Procedure 1.280(c).33 The court found the federal framework to be persuasive and chose to adopt the same logic for Florida.

Determining the Intent of F.S. §90.616
With the Smith holding, it became obvious that there was a split between the Florida District Courts of Appeal as to whether a party could invoke the rule during depositions. The Fourth District in Dardashti ruled affirmatively that parties could use the informal sequestration practice, while the more recent Smith decision held that parties could not invoke the rule in a deposition. In 1990, the Florida Legislature added another component to this conundrum when it enacted F.S. §90.616.34 The section states as follows: “At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).”35

Ambiguity remains as to whether F.S. §90.616 was enacted to address the rule in the deposition context. In fact, Florida’s Legislature has actually created further confusion for practitioners trying to navigate the already obscure discovery waters. The dilemma comes from the term “proceeding” as it is used in the evidence code.36 Section 90.616 lacks a definition to clarify whether a proceeding includes a deposition. What is more, there is no apparent case law interpreting the term. Black’s Law Dictionary defines the term “proceeding” as “[t]he business conducted by a court or other official body; a hearing.”37 This suggests at least that a proceeding is restricted to hearings and other court-conducted matters.

Section 90.616’s legislative history does provide some guidance as to what Florida’s Legislature intended when it enacted the statute. It notes that out of the 31 states to enact a code of evidence, Florida was the only state without a provision governing the exclusion of witnesses.38 With that said, the historical notes provide little direction beyond reciting this rather obvious motive. The best that one can glean from the historical notes is that the legislature may have intended for the statute to apply to depositions insomuch as Dardashti is specifically referenced: “Consistent with the language in a case decided by the Florida Supreme Court [citing to Spencer v. State] and the language in a recent District Court of Appeal opinion [citing to Dardashti], the bill provides that exclusion of witnesses is a matter of right on demand of a party.”39 There is no reference to the First District’s Smith decision in the legislative note.

Albeit inconclusive, the legislative history appears to favor and support the Dardashti view that the rule may be invoked at a deposition. There is another aspect of the mystery, however, which casts doubt as to this conclusion. The uncertainty comes when one looks to other Florida statutes to determine how Florida’s Legislature has defined and applied the term “proceeding” in the context of other Florida laws. There is at least one Florida statute to look to for assistance in defining the term “proceeding.” Section 90.801 (hearsay definitions and exceptions) uses the term “proceeding” in conjunction with the terms “trial,” “hearing,” and “deposition.”40 It provides:

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . . . [i]nconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition. . ..41

The fact that this statute, also in the evidence code, mentions a “trial, hearing, or other proceeding” suggests that a proceeding is analogous to a trial or a hearing.42 However, a deposition is treated distinctly from trials, hearings, and other proceedings. The word “deposition” is placed at the end of the sentence and is independently identified after the term “proceeding.” This provides evidence that on at least one occasion Florida’s Legislature has declined to employ the word “deposition” interchangeably with the term “proceeding.”43 This interpretation of “proceeding” falls in line with Black’s Law Dictionary insomuch as Black’s equates a proceeding to a court-conducted matter.

To summarize, legislative history indicates that F.S. §90.616 was enacted, in part, to provide parties with the right to invoke the rule during depositions. If this is the state of affairs, then the term “proceeding” would include a deposition. Another Florida statute, also in the evidence code, however, conspicuously distinguishes depositions from proceedings.

Influence of the Federal Rules on F.S. §90.616
Federal law can be persuasive when tackling and resolving the motives behind Florida law. Unfortunately, under the scenario at hand, the federal influence has failed to provide a bright-line rule. One Florida court has followed the federal groundwork (i.e., the First District), while another court has not (i.e., the Fourth District). As indicated above, the First District relied upon federal law for guidance in reaching its Smith decision. Federal courts refuse to allow parties to use the federal evidence rule (Rule 615) as a means to invoke the rule during a deposition and instead require that a protective order be sought pursuant to Rule 26(c).44

The Fourth District’s Dardashti ruling, on the other hand, did not follow the federal pattern. The Fourth District recognized Rule 615, but only to make mention of its surprise that Florida had not previously codified the rule as the federal system had done.45 The court did not cite to federal case law discussing the rule or otherwise engage in any analysis to reconcile the fact that federal courts utilized Rule 26(c) (i.e., motions for protective orders), and not Rule 615, when dealing with the rule during depositions.46 Instead, the Fourth District cited to Rule 615 for the general idea that parties could invoke the rule to exclude witnesses at trial. The court then bridged the gap between trials and depositions by explaining that the motivation for invoking the rule was similar in both circumstances.

Section 90.616’s history indicates that the Florida Legislature was seeking to follow suit with the federal government, as well as the other code states, by enacting an evidence code concerning “the rule.” Nonetheless, the legislature apparently accepted the Dardashti viewpoint. Such a decision deviates from the federal framework insomuch as a Dardashti-backed §90.616 would mean that parties could invoke the rule during a deposition. Again, parties in federal lawsuits cannot employ Rule 615 as a measure to preclude a witness from a deposition. Instead, parties in federal litigation must move for a protective order via Rule 26(c).

Practical Considerations
So where do practitioners go from here? First and foremost, it would be prudent for a well-prepared litigator to construct a general deposition folder comprised of the Smith and the Dardashti decisions, as well as §90.616 (including the legislative history, Ch. 174, 1990 Laws of Fla.). From there, the process can be described as nothing short of a truncated game of chess. While each litigator will obviously have his or her own unique approach to handling the rule at depositions, there are a few simple considerations to ensure well-reasoned arguments for either side.

As discussed above, the First District ruled in Smith that the rule does not apply in depositions in that district. Therefore, it is imperative to have the Smith case in hand if in the First District and your opponent attempts to invoke the rule during a deposition. If opposing counsel presses the issue, it may be wise to point out the position set forth in Smith, which states that parties must anticipate the need to prevent witnesses from attending a deposition and seek a preemptive protective order.

Now, if you find yourself in a situation in the First District where you believe you need to invoke the rule, another approach is needed. Although the Smith case clearly holds that the rule does not apply unless a protective order has been obtained, the prepared attorney still may argue that F.S. §90.616 applies and trumps Smith. As discussed previously, the Florida Legislature apparently aligned itself with the Fourth District’s Dardashti decision.

The reasoning set forth above will work for the most part in the Fourth District by reversing the logic. Because the Fourth District held in Dardashti that a party may invoke the rule during a deposition, there obviously is no need to seek a protective order prior to the deposition. Hence, in a perfect world, a practitioner can simply invoke the rule, much the same as at trial. Opposing counsel may try to argue that the Smith case is more on point. However, the proper response is that Dardashti controls in the district. A prudent practitioner seeking to invoke the rule would also have F.S. §90.616 in his or her back pocket as the backup to Dardashti. At this juncture, it would also be wise to have the legislative history in hand to counter opposing counsel’s inevitable argument that depositions were neither explicitly mentioned nor intended to be included under F.S. §90.616.

What about depositions in the Second, Third, or Fifth districts? The above arguments are equally effective when employed in a district other than the First or Fourth. The tools for making a case to support the rule, or alternatively to oppose the rule, are the same as above. The fundamental approach is simply to understand the case law, as well as the statute, to ensure that persuasive arguments can be made to support the chosen position.

Until the courts clarify the scope of the rule as it applies to depositions, the ambiguous and uncertain interplay between the Dardashti and Smith decisions, as well as F.S. §90.616, permit the creative attorney to argue that the rule should or should not apply given the exigencies of the case. The most direct approach to clarifying the issue would seem to be for the Florida Legislature to amend F.S. §90.616 to include a definition of “proceeding,” which would in turn specifically include the term “deposition.” Until that occurs, practitioners will be left with Smith versus Dardashti, with a taste of F.S. §90.616 on the side. These materials are tools in the Florida lawyer’s toolbox that can be used to provide the best possible arguments for or against invoking the rule at depositions.q

1 See Fla. Stat. §90.616 (2007); see also C. Ehrhardt, Florida Evidence §616.1 (2006 ed.) (Professor Ehrhardt states that “[i]n order to avoid a witness coloring his or her testimony by hearing the testimony of another, any party may invoke the rule of sequestration of witnesses after which the trial judge will ordinarily exclude all prospective witnesses from the courtroom.”) (internal citations omitted).

2 See C. Ehrhardt, Florida Evidence §616.1 (2006 ed.) (internal citations omitted).

3 Id.

4 See Fla. Stat. §90.101 (Ch. 90 of the Florida statutes is referred to as the “Florida Evidence Code”).

5 See Fla. Stat. §90.616(2)(a) (2007); see also Ferrigno v. Yoder, 495 So. 2d 886, 888 (Fla. 2d D.C.A.

6 See Fla. Stat. § 90.616(2)(b) (2007); see also Goodman v. West Coast Brace & Limb, Inc., 580 So. 2d 193 (Fla. 2d D.C.A. 1991).

7 See C. Ehrhardt, Florida Evidence §616.1 (2006 ed.).

8 See Fla. Stat. §90.616(2)(c) (2007).

9 See C. Ehrhardt, Florida Evidence §616.1 (2006 ed.)(providing a useful example of a complex business fraud case wherein an C.P.A.-expert would be permitted to remain in the courtroom to advise counsel and to testify to an expert opinion; further noting that experts are less likely to be subject to exclusion than fact witnesses since experts testify as to opinions as opposed to factual matters).

10 See C. Ehrhardt, Florida Evidence §616.1 (2006 ed.) (internal citations omitted).

11 See Fla. Stat. §90.616(2)(d) (2007).

12 See C. Ehrhardt, Florida Evidence §616.1 (2006 ed.) (internal citations omitted).

13 Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th D.C.A. 1982).

14 Id. at 1099-1100 (noting that the plaintiff named his wife as a witness “on no less than [14] occasions” in his interrogatory responses).

15 Id.

16 Id.

17 Id.

18 Id., citing Spencer v. State, 133 So. 2d 729 (Fla. 1961).

19 Smith v. Southern Baptist Hosp. of Florida, Inc., 564 So. 2d 1115, 1116 (Fla. 1st D.C.A. 1990).

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id. at 1117.

28 Id. at 1118; citing Fla. R. Civ. P. 1.280(c)(5) (“Upon motion by a party or by 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, including . . . (5) that discovery be conducted with no one present except persons designated by the court”).

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 See Fla. Stat. §90.616 (2007); see also Michael Flynn, Invoking What Rule?, 24 Nova L. Rev. 367 (1999)(discussing the circumstances surrounding the enactment of Fla. Stat. §90.616)(internal citations omitted).

35 Fla. Stat. §90.616(1) (2007).

36 See Michael Flynn, Invoking What Rule?, 24 Nova L. Rev. 367 (1999)(discussing use of the term “proceeding” in Fla. Stat. §90.616)(internal citations omitted).

37 Black’s Law Dictionary 1241 (8th ed. 2004).

38 See 1990 Fla. Laws Ch. 174.

39 Id. (Spencer v. State is discussed supra).

40 See Fla. Stat. §90.801 (2007).

41 Fla. Stat. §90.801(2)(a) (2007).

42 Id.

43 Id.

44 See, e.g., BCI Communication Sys., Inc. v. Bell Atlanticom Sys., Inc., 112 F.R.D. 154 (N.D. Ala. 1986); see also Skidmore v. Northwest Eng’g Co., 90 F.R.D. 75 (S.D. Fla. 1981).

45 See Dardashti v. Singer, 407 So. 2d at 1100 (Fla. 4th D.C.A. 1982).

46 Id.

Bryan R. Rendzio is an attorney with the Jacksonville law firm of Tritt & Franson, P.A. He practices in the areas of construction litigation, commercial litigation, and appellate law.

This column is submitted on behalf of the Trial Lawyers Section, Bradley E. Powers, chair, and D. Matthew Allen, editor.

[Revised: 02-10-2012]