CENTRAL CONCRETE SUPERMIX, INC. v. JOSE A. "PEPE" CANCIO, SR.

• Court: District Court of Appeal of Florida
• Decided: May 5, 2021
• Docket: 21-0274
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 5, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-274 Lower Tribunal No. 14-8409 ________________

Central Concrete Supermix, Inc., Petitioner,

vs.

Jose A. "Pepe" Cancio, Sr., Respondent.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge.

Dorta Law, and Gonzalo R. Dorta, for petitioner.

Law Office of Lazaro Vazquez, P.A., and Lazaro Vazquez, for respondent.

Before EMAS, C.J., and SCALES and LOBREE, JJ.

EMAS, C.J. Central Concrete Supermix, Inc. (“Supermix”) filed a petition for writ of

certiorari, seeking to quash the trial court’s protective order, which prohibited

Supermix from deposing Lawrence J. McGuinness, former counsel for

respondent Jose A. Pepe Cancio, Sr. (“Cancio”).

The litigation below was initiated in 2014 by Cancio after he was

terminated from his employment with Supermix. Cancio alleged claims

against Supermix for, inter alia, unpaid wages, commissions, bonuses or

other benefits.

At some point in the litigation an issue arose with regard to the

admissibility of a two-page, handwritten document referred to by the parties

as “Exhibit 3.” Cancio contends Exhibit 3 supports his claim for damages,

characterizing the document as admissible evidence establishing that

Supermix made an enforceable promise to pay him a bonus. In response,

Supermix has asserted that Exhibit 3 was part of a presuit settlement offer

and, as such, cannot be used or introduced into evidence by Cancio in

support of his claims. See § 90.408, Fla. Stat. (2014) (entitled “Compromise

and offers to compromise” and providing: “Evidence of an offer to

compromise a claim which was disputed as to validity or amount, as well as

any relevant conduct or statements made in negotiations concerning a

2 compromise, is inadmissible to prove liability or absence of liability for the

claim or its value.”)

Supermix issued a subpoena to depose McGuinness, Cancio’s former

counsel. Cancio moved to quash the subpoena for McGuinness’s deposition

and sought a protective order, asserting that the “intended deposition would

necessarily or by implication disclose [Cancio’s] privileged communications

with his counsel” in violation of the attorney-client privilege. Supermix filed

a two-page response, alleging only that it sought to depose McGuinness

regarding non-privileged communications McGuinness had with Supermix,

particularly with regard to a letter, sent by McGuinness to Supermix, which

explicitly referred to a post-termination meeting between Cancio and

Supermix as “settlement discussions.” At some point, it appears Supermix

broadened its asserted need for McGuinness’s deposition to include

questions regarding Exhibit 3.

Following a short hearing, the trial court, in an unelaborated order,

quashed the subpoena and granted the motion for protective order,

prohibiting Supermix from deposing McGuinness. This petition followed.

Certiorari relief is warranted under circumstances in which a non-final

discovery order “(1) results in a material injury; (2) that cannot be remedied

on post-judgment appeal; and (3) departs from the essential requirements of

3 law.” 575 Adams, LLC v. Wells Fargo Bank, N.A., 197 So. 3d 1235, 1237

(Fla. 3d DCA 2016) (holding the first two requirements were satisfied

because the deponent was a material witness and “an order prohibiting a

deposition of a material witness inflicts the type of harm that cannot be

remedied on final appeal;” further holding the third requirement was satisfied

because court failed to make a finding of good cause to prohibit the

deposition of a material witness) (quoting Marshall v. Buttonwood Bay

Condo. Ass’n, 118 So. 3d 901, 903 (Fla. 3d DCA 2013)).

In this petition, Supermix contends that the trial court departed from

the essential requirements of the law because it failed to make any finding

of good cause for quashing the subpoena and issuing an order prohibiting

the deposition of McGuinness. However, we need not reach this issue,

because Supermix failed to meet its burden of establishing an entitlement to

depose Cancio’s former counsel.

Taking the deposition of opposing counsel in a pending case (or even,

as here, former counsel in a pending case) “is an extraordinary step which

will be rarely justified.” Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, 167

So. 3d 495, 496 (Fla. 3d DCA 2015). As we held in Pandolfo:

[S]uch depositions should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2)

4 the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.”

Id. (quotation omitted). See also State v. Donaldson, 763 So. 2d 1252, 1255

(Fla. 3d DCA 2000) (observing: “In the rare case in which the defense

believes it has a basis for taking the prosecutor's deposition, the defense

must first exhaust less intrusive discovery methods, and then make a

showing of necessity and materiality, and that the interests of justice require

this extraordinary step.”)

Supermix failed to allege or establish that no other means exist to

obtain the information sought, other than by deposing McGuinness. See

Id.; Pandolfo, 167 So. 3d at 496. See also Iacono v. Santa Elena Holdings,

LLC., 271 So. 3d 28 (Fla. 3d DCA 2018). Given this failure, the trial court

properly quashed the subpoena and issued a protective order to prohibit the

taking of McGuinness’ deposition.

Petition denied.