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Invoking the rule.

I read with interest Bryan R. Rendzio's article, Invoking "The Rule" During Depositions? Absolutely "Maybe," in the November 2008 Journal. However, I disagree with his assessment of the law, and suggest a further practical consideration.

Mr. Rendzio states that Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982), holds that the rule of sequestration of nonparty witnesses "may be invoked at a deposition." By that I take it that he means that, without the involvement of a judge, one attorney at a deposition may announce that he or she is invoking the rule, and the other attorney(s) and attendees must comply. Although I don't practice in the Fourth District, my reading of the plain language of the Dardashti decision shows that it did not involve that situation and so does not explicitly authorize any such practice.

In Dardashti, the attorney had filed a motion to exclude a nonparty from the deposition, apparently prior to the deposition being held (though that is not clear from the decision). The trial judge denied the motion, and the appellate court ruled that a trial judge should "ordinarily" grant such a motion, as the court would in connection with attendance at a hearing. The decision says nothing about whether the rule can simply be "invoked" on the spot, with no judge present to rule upon it.

With no judge and no order, it is an interesting question under what authority a nonparty attendee at a deposition (who is usually not represented by any of the attorneys present) could be compelled to leave the deposition, which is a "public proceeding." Only a court order provides the proper authority for that.

For a motion to exclude nonparty witnesses from depositions to have to be filed in every single civil action would be very inconvenient, though technically, the only sure course of action. Under "Practical Considerations," I would suggest that the attorneys involved in a case amicably discuss this issue prior to any depositions being held. Most attorneys will mutually agree to exclude likely potential witnesses from depositions (and most such persons don't attempt to attend under those circumstances). To be safe, such an agreement should be in a signed writing under Fla. R. Jud. Admin. 2.505(d), but in my experience, a verbal agreement is sufficient with most attorneys.

Matthew D. EllroD

New Port Richey
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Author:Ellrod, Matthew D.
Publication:Florida Bar Journal
Article Type:Letter to the editor
Date:Dec 1, 2008
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