Invoking the rule.

• Author: Ellrod, Matthew D.
• Position: Letter to the editor

I read with interest Bryan R. Rendzio's article, Invoking "The Rule" During Depositions? Absolutely "Maybe," in the November 2008 Journal. However, I disagree with his assessment of the law, and suggest a further practical consideration.

Mr. Rendzio states that Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982), holds that the rule of sequestration of nonparty witnesses "may be invoked at a deposition." By that I take it that he means that, without the involvement of a judge, one attorney at a deposition may announce that he or she is invoking the rule, and the other attorney(s) and attendees must comply. Although I don't practice in the Fourth District, my reading of the plain language of the Dardashti decision shows that it did not involve that situation and so does not explicitly authorize any such practice.

In Dardashti, the attorney had filed a motion to exclude a nonparty from the deposition, apparently prior to the deposition being held (though that is not clear from the decision). The trial judge denied the motion, and the appellate court ruled that a trial judge should "ordinarily" grant such a motion, as the court would in connection with attendance at a hearing. The decision says nothing about whether the rule can simply be "invoked" on the spot, with no judge present to rule upon it.

With no judge and no...