Michael Pulwer v. Asante Samuel and Makin Moves 22, LLC

• Court: District Court of Appeal of Florida
• Decided: April 2, 2025
• Docket: 3D2024-1941
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 2, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1941 Lower Tribunal No. 23-16940-CA-01 ________________

Michael Pulwer, et al., Petitioners,

vs.

Asante Samuel and Makin Moves 22, LLC, Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Beatrice Butchko Sanchez, Judge.

The Law Offices of Kent Harrison Robbins, P.A., and Kent Harrison Robbins, for petitioners.

Nardella & Nardella, PLLC, Jacob J.A. Niergarth and Juliane M. Brumbaugh (Orlando), for respondents.

Before SCALES, LOBREE, and GOODEN, JJ.

GOODEN, J. Deposing opposing counsel is an extraordinary step and fraught with

concern. It should be the exception—not the rule. We grant the petition for

writ of certiorari and quash the order allowing the deposition of counsel of

record without prejudice.

I.

Asante Samuel is the principal of Makin Moves 22, LLC, and Michael

Pulwer is the principal of Magek, LLC. The parties executed two contracts

for the transfer of all Makin Moves 22, LLC’s membership interest in another

limited liability corporation to Magek, LLC. These interests were to be held

in escrow by Pulwer’s counsel, Kent Harrison Robbins, Esq. A dispute arose

as to whether the transfer had been fully executed. Pulwer and Magek, LLC

filed suit. Robbins remained counsel of record for Pulwer and Magek, LLC.

Samuel and Makin Moves 22, LLC propounded discovery upon Pulwer

and Magek, LLC. In response, Pulwer and Magek, LLC provided 357 pages

of documents and objected to many of the requests. But none of those

objections were set for hearing or otherwise resolved, and no parties or fact

witnesses were deposed.

Instead, Samuel and Makin Moves 22, LLC served Robbins with a

subpoena duces tecum and noticed him for deposition. Notably, the

documents sought were identical to those in the objected-to requests for

2 production. Robbins moved to quash the subpoena and for a protective

order, citing Shelton v. American Motors Corporation, 805 F.2d 1323 (8th

Cir. 1986), and Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, 167 So. 3d

495 (Fla. 3d DCA 2015).

Argument was heard on a five-minute motion calendar. Robbins

maintained that the Shelton criteria had not been met because they had not

exhausted other means to obtain the information, such as deposing the

parties or other fact witnesses or seeking a hearing to resolve objections to

discovery. He further explained that any information he could provide, in

addition to being privileged, was irrelevant since the contract contained a

merger clause and contract interpretation is a legal question for the court.

Samuel and Makin Moves 22, LLC countered that the Shelton criteria were

met because Pulwer and Magek, LLC objected to the requests for

production.

Denying the motion, the trial court stressed the need to move the case

and stated Samuel and Makin Moves 22, LLC were stymied in their attempt

to obtain information. It ordered Robbins to sit for deposition and ordered

him to produce the objected-to documents.

This petition for writ of certiorari timely followed.

II.

3 To obtain a writ of certiorari, a party must demonstrate a departure

from the essential requirements of the law that results in material injury that

cannot be corrected on plenary appeal. Reeves v. Fleetwood Homes of

Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004).

III.

“Taking the deposition of opposing counsel in a pending case is an

extraordinary step which will rarely be justified.” State v. Donaldson, 763 So.

2d 1252, 1254 (Fla. 3d DCA 2000). Such depositions are 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) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.

Pandolfo, 167 So. 3d at 496 (quoting Shelton, 805 F.2d at 1327).1 See also

State v. Donaldson, 763 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (“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.”).

1 While our Court has specifically adopted the Shelton test, other Districts have not done so. Compare Pandolfo, 167 So. 3d at 496, with Alachua Today, Inc. v. DW Ashton Catery, Inc., 50 Fla. L. Weekly D288 (Fla. 1st DCA Feb. 5, 2025).

4 The Shelton test was intended to protect against the ills of deposing opposing counsel in a pending case that could potentially lead to the disclosure of the attorney’s litigation strategy. Because of a belief that the discovery process was being abused, the Shelton test was erected as a barrier to protect trial attorneys from unnecessary depositions.

Zimmerman v. State, 114 So. 3d 446, 447 (Fla. 5th DCA 2013) (citation

omitted).

Based on the record before this Court, we conclude Samuel and Makin

Moves 22, LLC failed to satisfy the Shelton criteria. See Cent. Concrete

Supermix, Inc. v. Cancino, 319 So. 3d 742, 744 (Fla. 3d DCA 2021); Iacono

v. Santa Elena Holdings, LLC, 271 So. 3d 28, 30 (Fla. 3d DCA 2018).

Other—less intrusive—means existed to obtain this information. When the

subpoena was issued, there were between three to eight other individuals

likely to have relevant information, who had not been deposed. The duces

tecum request mirrored the objected-to requests for production. No attempt

was made to compel discovery responses or set the objections for hearing.

Further, it is plain the questions to be asked about Robbins’ participation in

pre-and-post-contractual negotiations, as well as execution, were likely to

elicit testimony about his mental impressions, litigation strategy, privileged

communications, or some combination thereof.

These are the precise ills Shelton is meant to guard against. While we

are mindful of a trial court’s need to advance its docket, we take this

5 opportunity to reiterate that the compelled deposition of opposing counsel is

an extraordinary step—authorized only once the criteria set forth in Shelton

have been fully satisfied. Great care should be taken before compelling such

depositions.

Because Samuel and Makin Moves 22, LLC failed to satisfy the

Shelton criteria, the trial court departed from the essential requirements of

the law thereby causing material harm which cannot be corrected on plenary

appeal. We grant the petition for writ of certiorari and quash the lower court’s

order without prejudice. Pandolfo, 167 So. 3d at 497; Iacono, 271 So. 3d at

30.

Petition granted; order quashed.