Judge reading opinion from the bench.

In Varela v. OLA Condominium Ass’n, Inc. (Fla. 3d DCA Aug. 21, 2019), a condominium association subpoenaed a nonparty attorney to appear for deposition in the case, and produce numerous documents related to various corporate entities. The attorney filed a motion for protective order, claiming that the subpoena requested documents protected by the attorney-client privilege. The trial court denied the motion for protective order, and ordered the attorney to appear at deposition and to produce all of the documents identified in the subpoena.

On appeal, the Third DCA reversed, holding that the trial court abused its discretion by ordering the production of the documents without conducting an in camera inspection of the documents. The trial court’s ruling was also error to the extent that the trial court relied on testimony from a prior hearing of which the attorney had no notice.

Also notable about this opinion is the Court’s recognition that the trial court’s order compelling discovery was an appealable final order under these circumstances. Because the attorney was not a party to the case, the trial court’s order ended all judicial labor as to the attorney. This case provides a useful reminder that orders regarding nonparty discovery can be challenged by a standard appeal. Thus, a nonparty challenging a discovery order does not have to meet the far stricter standards that apply to challenges to discovery orders by parties, which must be made by petition for certiorari.

Share This Page:
facebooktwitterredditlinkedinmail
Follow Scott J. Edwards:
facebooktwitterlinkedinrss