Delivery vans photographed on a roadway.

In Clarke v. Coca-Cola Refreshments USA, Inc. (Fla. 3d DCA Sept. 4, 2019), the Third District Court of Appeal held that a Plaintiff was entitled to take a witness’s deposition, even though Plaintiff’s counsel had already taken two lengthy depositions of the witness in a previous action brought by other plaintiffs.

In this case, a Coca-Cola delivery truck was involved in an accident which caused the truck to crash into a home where Plaintiff lived. Plaintiff sued Coca-Cola, seeking damages for lost personal property and displacement from the home. In a prior action, other members of Plaintiff’s family had brought similar claims arising from the same incident. The same attorney represented the plaintiffs in both actions. The plaintiffs’ attorney took two lengthy depositions of the truck driver in the prior action. The prior action was voluntarily dismissed on the eve of trial.

In the second action, Coca-Cola obtained a protective order blocking Plaintiff’s counsel from taking a third deposition of the truck driver. The Third DCA reversed, holding that the protective order violated Plaintiff’s due process rights.

The Third DCA acknowledged the trial court’s goal of judicial efficiency and its intention to prevent hardship to the truck driver, whom was being asked to sit for a third deposition before the same attorney who had questioned him twice already. However, the trial court’s ruling did not balance Plaintiff’s due process right to full discovery. Because Plaintiff was not a party to the earlier case, she had the right have her counsel conduct an independent deposition of the witness. Importantly, it was improper for the trial court to presume that Plaintiff’s counsel could not propound a new or different line of questioning in the third deposition.

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