Depositions of Attorneys Record

Allstate Insurance Co. v Total Rehab and Medical Centers, Inc., 38 Fla. L. Weekly D619 (Fla. 4th DCA March 13, 2013) is a puzzling case on its facts. In that case, Allstate Insurance Company brought a suit seeking money damages against several medical centers. Two of the attorneys representing Allstate created what they called a master summary chart. This chart was apparently a summary of a number of personal injury protection files created by Allstate as well as a number of billing charts created by the medical centers.
A trial was had during which this attorney created chart was introduced into evidence as a summary based upon §90.956 Fla. Stat. The trial ended with a mistrial and before the case was retried, the defendants sought to take the depositions of Allstate’s attorneys who had created the chart contending that the chart was a key exhibit and that the attorney’s knowledge concerning this creation was relevant information that was discoverable.
Allstate sought protection from the trial court to prevent their attorneys’ depositions from being taken on the grounds that to do so would disclose attorney-client and work product information that was privileged. The trial court denied the motion thus allowing the depositions to be taken and certiorari was brought in an effort to overrule the trial court’s order.
The appellate court ruled that the first prong for obtaining certiorari review had been met in that if, in fact, discovery was protected by attorney-client or work product privileges, permitting that discovery to go forth constituted irreparable harm which was not correctable by a final appeal.

The Fourth District concluded:
However, Petitioners have failed to show that the
trial court’s order departed from the essential
requirements of the law. While it is true that the
attempt to depose a party’s attorney during
ongoing litigation has been rejected when irrelevant
or privileged information was sought from the
attorney, attorneys are not per se exempt from
the reach of Florida Rule of Civil Procedure 1.310(a),
which allows the taking of the deposition of any
person. Citing cases. As the trial court retains
authority under Rule 1.310(c)(d) to prohibit inquiry
of genuinely privileged materials, we cannot say
the order appealed from departs from the
essential requirements of the law, a prerequisite to
certiorari relief. (Emphasis in original.)

What does this case stand for? Does this mean that every time an attorney prepares a trial exhibit, he or she is subject to having their deposition taken? The answer is no. This is a unique set of facts and the holding is limited. The mistake that these attorneys made was offering their chart into evidence in the first place. The evidentiary exhibits should have been the underlying data from which the chart was made. The chart could have been used as a demonstrative exhibit rather than putting it into evidence. Had that been done, there is little doubt that discovery would not have been permitted. By putting the chart into evidence and apparently using it as a key exhibit in the trial the attorneys injected themselves into the case itself. Unlike a demonstrative exhibit, this chart could be taken back to the jury room and relied upon as evidence. How was it created? What was left out? These questions became relevant once the exhibit was accepted into evidence.
In addition, nothing in this opinion should be read as permitting inquiry into work product or attorney-client matters. To the contrary, the Court specifically referenced the trial judge’s authority to prevent that from happening. In addition, to make sure that the wrong message was not sent to the trial courts of this state, the Court stated:

While we recognize the potential for abuse of the
process of deposing the opposing party’s attorney
during ongoing litigation, we are confident trial
courts in this district will use their powers of
supervision over discovery to prevent privileged
information from being disclosed.

Nevertheless, this case provides a lesson for all trial attorneys. Substantive exhibits are normally not created by attorneys. Demonstrative exhibits are. Putting a demonstrative exhibit into evidence can open the door to the attorney becoming a fact witness, which not only raises the specter of discovery but causes increased work for the attorneys and trial court in order to prevent the unwitting dissemination of attorney-client or other privileged information.

Originally published July-August 2013