Eller-I.T.O. Stevedoring Company, L.L.C. vs. Lazaro Pandolfo and Olga Alvarez a/k/a Olga Alvarez Sarria
The insured’s independent counsel executed a declaration to support work-product doctrine objections to accident reports and supporting documentation sought by the plaintiff. The Declaration detailed why certain documents were not subject to disclosure under the doctrine. The plaintiff inexplicably noticed defendant’s outside counsel for deposition arguing his Declaration evidenced that he was a witness to the accident at issue and the events that transpired thereafter. There was, however, no support for this contention-counsel was not present at the accident scene. The defendant moved to preclude the deposition because any information counsel had relevant to the action was protected by the attorney-client privilege and work-product doctrine. Based on unsupported, speculative assertions by the plaintiff’s attorneys, the trial court allowed the deposition to go forward. HM&B appealed.
The appellate court granted certiorari and quashed the trial court’s Order compelling the insured’s outside counsel’s deposition. The appellate court held that the trial court erred when it ordered the deposition with no scrutiny. The appellate court adopted the test utilized by the majority of Federal courts (the Shelton test) to determine whether an opposing counsel/in-house counsel should be deposed. It is the first case where a Florida appellate court has affirmatively acknowledged that the Shelton test applies under Florida law, and it is the first time a Florida state court has applied the test to preclude an opposing counsel’s deposition.
The appeal was handled by Jerry Hamilton and Michael Dono.