Invoking "the rule" during depositions? Absolutely "maybe".

• Author: Rendzio, Bryan R.
• Position: Florida

"Your Honor, I'd like to go ahead and invoke 'the rule.'" Most litigators have uttered these words during a trial, or conversely, heard the phrase come from the direction of opposing counsel's table. There comes little astonishment when the expression is conveyed within the confines of the courthouse walls. When someone mentions invoking "the rule" during a deposition, however, quite a different reaction can occur--looks of initial amazement, followed by the inevitable face-off. "You can't do that." Can you?

What Does It Mean to Invoke "the Rule"

When someone invokes the rule, he or she is seeking to implement the rule of sequestration--i.e., the rule requiring that certain witnesses remain outside of the presence of testifying witnesses. (1) The premise behind the rule is that it prevents witnesses from hearing the testimony of other witnesses so that each person's testimony is his or her own, and is not influenced or tainted because of another witness' testimony. (2) The rule may be invoked during trial, as well as during pretrial hearings at which witnesses are called to testify. (3)

Witnesses Who Are Not Subject to the Rule

Any discussion of the scope of the rule must begin with an analysis of those individuals who are not subject to the rule. According to

the Florida Evidence Code, (4) there are four groups who may not be excluded from a trial or other proceeding. The first group includes a party who is a natural person. (5) Hence, in both civil and criminal matters, it is inappropriate to invoke the rule against a person who is a party to the lawsuit. The second group applies to civil actions, and concerns designated corporate representatives. (6) According to F.S. [section] 90.616, a corporation or governmental body, which is a party, is treated the same as a natural person under the Florida Evidence Code. (7) Thus, just as a natural person who is a party may remain and hear testimony of other witnesses, so may a representative of a corporate party remain present during the testimony of another.

The third group is comprised of those individuals whose presence is shown to be essential to the offering party's cause. (8) This may include expert witnesses, (9) and, in criminal matters, law enforcement officers. (10) The final group, which pertains to criminal matters, includes victims of crimes, parents, or guardians of minor child victims, a victim's next of kin and lawful representatives of a victim. (11) The trial judge has authority to exclude individuals within this last group if the court determines, upon motion, that their presence in the courtroom is prejudicial. (12)

Overview of the Dardashti and Smith Decisions

Two seminal cases discuss the subject of invoking the rule at deposition. In Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982), the plaintiff sued the defendant alleging breach of an oral contract. (13) In response to interrogatories, the plaintiff named as a witness his wife who was present during the alleged contractual negotiations and who would support the plaintiff's allegations. (14) The defendant sought to invoke the rule to sequester the wife from being present at the husband's deposition. (15) The trial court refused to sequester the wife from the deposition. (16) The Fourth District Court of Appeal reversed, holding that a party could invoke the rule at a deposition. It noted the nature of depositions--that is, that there is "little advance warning during a deposition of unexpected and oblique questions requiring instantaneous response[s]." (17) Moreover, the court reasoned that "[t]o permit [a person] to sit and absorb the answers of [another person] in a case such as [the one at hand] obviously facilitates the very 'coloring of a witness's testimony' frowned upon by [Florida's] Supreme Court in [Spencer v. State]...." (18) Hence, according to Dardashti, a party can invoke the rule during a deposition.

Some years after the Dardashti decision, the First District was called upon to address the rule in a deposition context. In Smith v. Southern Baptist Hospital of Florida, Inc., 564 So. 2d 1115 (Fla. 1st DCA 1990), the First District did not follow the Fourth District rule. There, the plaintiff sued a physician and a hospital, as well as the hospital's board of regents, for negligence in failing to diagnose a circulation disorder, which ultimately resulted in a leg amputation. (19) The plaintiff alleged that a resident who assisted the defendant-physician was negligent. (20) The resident, however, was not named as a defendant due to a statutory provision prohibiting officers and employees from being personally sued absent certain maliciousness or other bad faith. (21)

The...