The Florida Court of Appeals said it was okay.
Judge Leslie B. Rothenberg of the Florida District Court of Appeal, Third District wrote the opinion in a case where the trial court ordered the deposition of a non-testifying accounting expert witness and also issued an order requiring the petitioner to show cause why he should not be sanctioned for instructing that expert witness to refuse to answer deposition questions at a prior ordered deposition.
This case involved a dispute over the interests in funds derived from a business sale. In Rocca v. Rones, Mathew Rocca had little personal knowledge as to the value of the business left to him by his father and grandfather.
The defendant sold the business for the trust. The plaintiff alleged that the defendant deprived him of the proceeds.
The plaintiff hired an accounting expert witness to review the record and the numbers, form an expert opinion regarding the amount of financial damages, and assist him in his preparation of the case.
The accounting expert was initially placed on the plaintiff’s list of testifying witnesses, but was removed when the defendant notified the plaintiff that they intended to depose the expert.
Even though the plaintiff claimed that the accounting possessed no material factual information that had not been provided to the defendant, and subsequently amended his witness list by adding another accounting expert who would testify at trial.
Defendant argued that he needed to depose plaintiff’s non-testifying accounting expert because the defendant had no other way to calculate the potential damages. Apparently persuaded by these arguments, the trial court ordered the non-testify accounting expert be deposed—but only as a non-expert fact witness.
At the deposition, however, the defendant’s attorney asked several questions that likely fell under the work product or accountant-client privilege, including the methods and calculations of the damages the expert had formulated based on the plaintiff’s information.
Plaintiff’s attorney instructed the expert not to answer these questions, and the defendants ended the deposition.
The defendant then filed motions to compel the expert’s deposition testimony and requiring plaintiff’s attorney to show cause why he shouldn’t be held in contempt for refusing to comply with the earlier order requiring the expert’s deposition.
The trial court granted both motions, and the appeal followed based on Florida Rule of Civil Procedure 1.280. It says that:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Judge Rothenberg wrote that the protection provided by Rule 1.280(b)(5)(B) applied to experts initially disclosed as testifying witnesses that were later withdrawn, as in the case of the non-testifying accounting expert.
In these circumstances, where an expert has been specially employed in preparation of litigation but is not to be called as a witness at trial, the facts known or opinions by the expert are said to be work product. This information can only be discovered, the judge wrote, by a showing of exceptional circumstances, as is required by Rule 1.280.
Judge Rothenberg explained that the plaintiff’s accounting expert was “precisely the type of expert protected by rule 1.280.”
(i) He was hired to examine the data and provide his expert opinion based only on the information that he was given by the plaintiff;
(ii) He was without any personal knowledge of the underlying facts of the case other than those provided to him by the plaintiff or his attorney; and
(iii) He was withdrawn as a testifying witness.
Based on these facts, Judge Rothenberg held that the plaintiff’s expert couldn’t properly be classified as a fact witness, and could only be deposed with a showing of exceptional circumstances where the defendant was unable to obtain similar information by alternative means. The appellate court held that the defendant had not done this.
The defendant hired his own expert witness and was given access to the plaintiff’s designated trial expert accountant.
The Court of Appeals stated that, in the event that the trial court determined: (a) The non-testifying expert had pertinent factual information unrelated to what was disclosed to him by the plaintiff or his attorneys or otherwise protected by privilege; or (b) exceptional circumstances apply because the defendant was unable to acquire relevant information by any other means, it can order his deposition for those limited purposes according to Rule 1.280(b)(5)(B).
There was no such showing here, and Judge Rothenberg quashed the orders requiring the expert’s deposition and requiring the plaintiff to show cause why he should not be held in contempt of court depart from the essential requirements of law.
Rocca v. Rones, 125 So.3d 370, 38 Fla. L. Weekly D2378 (Fla.App. 3 Dist. Nov. 13, 2013).
By: Kurt Mattson, J.D., LLM
Kurt R. Mattson is the Director of Library Services and Continuing Education at Lionel Sawyer & Collins located in Reno and Las Vegas, Nevada