In Toomey v. Northern Trust Co., 2016 Fla. App. LEXIS 391 (Fla. 3d DCA 2016), the Third DCA held that a beneficiary of a trust was entitled to depose two witnesses, under Florida Rule of Civil Procedure 1.280, because the depositions were within the general scope of discovery relating to the allegations in an amended complaint and the depositions were to preserve the testimony of the witnesses as they were elderly and one of the witnesses was in ill health. In the subject case, Kristen Toomey (“Petitioner”), was a great-grandchild and beneficiary of James L. Knight (“Decedent”), who passed away in 1991. The Northern Trust Company (“Respondent”) was a trustee of Decedent seeking determination of distributions from the Knight Trust to be made to Petitioner and other great-grandchildren of Decedent.
Petitioner sought to depose two witnesses, Barbara Knight Toomey and Edward Olson, who had had direct conversations with Decedent regarding his intentions in executing the Trust Agreement and regarding the administration of the Trust. Mr. Olson was an attorney in his seventies. Barbara Knight Toomey was a daughter of Decedent and grandmother of Petitioner, also in her seventies. According to the undisputed affidavit of Barbara’s treating physician, she suffered from end-stage chronic obstructive pulmonary disease and emphysema, both of which were life threatening at the time. Her treating physician had also expressed the opinion that a reasonable estimate of her life expectancy was six months (as of November 6, 2015), and that if she contracted any pulmonary infection such as influenza or pneumonia, she could pass sooner. Thus, Petitioner wanted to take the depositions of Barbara and Edward as soon as possible, to preserve their testimony.
Petitioner noticed Barbara and Edward for videotaped deposition in December 2015, a time when five of the beneficiary defendants in the case had moved to dismiss the second amended complaint. Three of those five beneficiary defendants filed a motion for a protective order striking the notices of depositions and staying all discovery pending rulings on the pending motions to dismiss. The trial court granted the motion, apparently in the belief that the motions to dismiss could be heard in short order and the depositions could proceed after that (if the motions to dismiss were denied). However, Defense counsel coordination and scheduling difficulties pushed back the hearing on the motions to dismiss to January 28, 2016. Concerned by the delay along with the old age and questionable health of the deponents, Petitioner filed the petition for certiorari and a motion to expedite the proceeding on December 11, 2015.
Ordinarily, orders denying discovery are not reviewable by certiorari because the harm from such orders can generally be rectified on appeal. See Royal Caribbean Cruises, Ltd. v. Cox, 974 So. 2d 462, 465 (Fla. 3d DCA 2008). However, an exception to this general rule applies where, as in the subject case, discovery orders may cause irreparable injury to the petitioner. Id. The Third DCA has held that the denial of leave to perpetuate testimony by a terminally ill person is a matter which may be entertained by petition for writ of certiorari. See Robert v. W.R. Grace & Co., 639 So. 2d 1056, 1057 (Fla. 3d DCA 1994).
In reviewing the case on certiorari, the Court noted that the depositions at issue were plainly within the general scope of discovery relating to the allegations in the second amended complaint. See Fla. R. Civ. P. 1.280(b). Both of the witnesses consented to be deposed and the Court was not persuaded by the argument of a minority of the beneficiary defendants that the motion to dismiss might be granted, thereby mooting the deposition controversy. The Court pointed out that the attorney’s fees and court reporting costs for two videotaped depositions on a discrete set of issues paled in comparison to the prospect that the testimony of two potentially important witnesses might have been irrevocably lost. Especially in circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.
The Court further noted that the pending motions to dismiss might have been granted in a ruling allowing a further amendment and that even when a complaint is dismissed, if leave to amend is granted, the action itself is still alive. If the small group of defendants were to prevail in having the second (or later) amended complaint dismissed with prejudice, or in the improbable event that the videotaped depositions turned out to be frivolous in nature, the defendants would be able to recover their expenditures. In addition, the defendants who sought and obtained the protective order provided no evidence to oppose Barbara Knight Toomey’s poor medical prognosis. They failed to establish any of the grounds under Fla. R. Civ. P. 1.280(c) (annoyance, embarrassment, oppression, undue burden or expense) which would warrant a protective order. For these reasons, the Court found that Petitioner demonstrated a basis for granting certiorari and quashing the protective order and stay of discovery as to Barbara Knight Toomey and Edward Olson.
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