150 So. 3d 1247

RACETRAC PETROLEUM, INC., Petitioner, v. Elizabeth SEWELL, etc., Respondent.

No. 3D14-974.

District Court of Appeal of Florida, Third District.

Nov. 19, 2014.

*1248Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Doreen E. Lasch, Fort Lauderdale, for petitioner.

Schlesinger Law Offices, P.A., and Sheldon J. Schlesinger and Crane A. John-stone, Fort Lauderdale; Burlington & Rockenbach, P.A., and Philip M. Burlington and Nichole J. Segal, West Palm Beach, for respondent.

Before ROTHENBERG, LOGUE, and SCALES, JJ.

SCALES, J.

Petitioner, RaceTrac Petroleum, Inc. (RaceTrac), defendant below, seeks a writ of certiorari quashing the trial court’s order denying RaceTrac’s motion for protective order and granting plaintiffs motion to compel. Because the standard for cer-tiorari relief has not been met, RaceTrac’s petition is denied.

I. Facts

In 1997, RaceTrac entered into a contract to purchase real property on Northeast 8th Street/Campbell Drive (Campbell Drive) in Homestead, Florida for the purpose of operating a gas station/convenience store.

The purchase and sale contract between RaceTrac (as purchaser) and the property’s seller conditioned the sale upon the purchaser obtaining approval from all necessary governmental agencies to construct a median cut on Campbell Drive to align with the existing curb cut on the southern property line of the subject property.

The median cut would allow for direct ingress and egress between the property and the eastbound lanes of Campbell Drive without requiring eastbound drivers to make a U-turn to access the gas station. In 1999, RaceTrac obtained the necessary approvals and closed on the property (the subject gas station).

Several years later, in 2010, Respondent, Elizabeth Sewell (Sewell), as legal guardian of her daughter Crystal Sewell (Crystal), brought suit against RaceTrac to recover damages suffered by Crystal in a car accident. The accident occurred in 2007, near the subject gas station.

Sewell alleged that Crystal was traveling east in the left lane of Campbell Drive when a vehicle rapidly exited the subject gas station, crossed the two westbound traffic lanes of Campbell Drive, and passed through the break in the median into Crystal’s eastbound lane. As -a result, ac*1249cording to Sewell’s allegations, Crystal lost control of her car, collided with a palm tree, and was seriously injured.

Sewell alleged that RaceTrac was negligent for a host of reasons primarily regarding posting of signage at the subject gas station (e.g., failing to safely direct and control the vehicles leaving the subject gas station; failing to post appropriate stop signs at the exit to the subject gas station, or at the median; failing to post signage at the subject gas station’s exit or on the median facing its exit, advising or alerting vehicle operators not to cross the westbound traffic lanes on Campbell Drive; failing to erect signage at the subject gas station’s exit or on the median instructing motorists that they could only turn left from the subject driveway; maintaining the driveway markings and arrows that allowed, directed, and encouraged motorists exiting the subject gas station to cross the westbound lanes of Campbell Drive; etc.).

Pursuant to Florida Rule of Civil Procedure Rule 1.310(b)(6) 1 Sewell noticed RaceTrac seeking to depose: (1) the corporate representative with the most knowledge of selecting locations for RaceTrac gas stations; and (2) the corporate representative with the most knowledge of selecting the location for the subject gas station.2

In response to Sewell’s rule 1.310(b)(6) notice, RaceTrac identified Lesliegh Batchelor, director of real estate, as the appropriate corporate representative.3

Batchelor began working for RaceTrac in 1994 as a real estate representative. Batchelor was promoted to a vice president of real estate in approximately 1997.4 *1250Batchelor ceased employment with Race-Trac in 2000, and returned to work at RaeeTrac in 2005 as the manager of real estate.5

Sewell took Batchelor’s deposition at RaceTrac’s corporate offices in Atlanta. During her deposition, Batchelor testified that several potential sites for the subject gas station, including the subject site, were selected in 1994, prior to her employment with RaeeTrac. Batchelor testified that Mark Hunter, who was another vice president of real estate until he left the company in 1998, was the person initially tasked with selecting potential sites for the subject gas station. Batchelor also testified that Max Lenker, president of RaeeTrac, was involved in the site selection process of the subject site.

According to Batchelor’s testimony, after Hunter narrowed down potential locations for the subject gas station, Lenker would visit potential sites and evaluate the sites based on certain criteria, such as proximity to a limited access road, traffic count, and visibility.

Batchelor further testified that Carl Bolch, Jr., who was another vice president of real estate during the relevant time, was also involved in the site selection and approval process for the subject gas station.

Currently, Hunter is no longer employed by RaeeTrac; Lenker is still Race-Trac’s president, and Bolch is now Race-Trac’s CEO.

Ostensibly, because Batchelor testified that Hunter, Lenker, and Bolch were involved in the selection of the subject gas station’s location, Sewell’s counsel deemed it necessary to take the depositions of these three high-level current and former RaeeTrac officers.

RaeeTrac resisted Sewell’s attempts to take these depositions, resulting in Race-Trac filing a motion for protective order and Sewell filing a motion to compel.

RaeeTrac argued that rule 1.310(b)(6) provides the mechanism for a corporate entity to identify the person with knowledge of the relevant matters, and, because Batchelor provided the information requested (as identified in Sewell’s rule 1.810(b)(6) deposition notice), Sewell could not compel the depositions of additional corporate representatives.

Essentially, RaeeTrac argued that, unless the rule 1.310(b)(6) designee fails to give the information requested, a plaintiff may not compel the deposition of any other corporate representatives, even if such other corporate representatives were identified by the rule 1.310(b)(6) designee as having knowledge of the same subject matter. •

A general magistrate held a hearing on Sewell’s motion to compel and RaeeTrac’s motion for protective order. The magistrate issued a report and recommendation granting Sewell’s motion to compel and denying RaceTrac’s motion for protective order.

RaeeTrac filed exceptions to the general magistrate’s order, and, on April 3, 2014, the trial court overruled RaceTrac’s exceptions and adopted the general magistrate’s report and recommendations. Pursuant to Florida Rule of Civil Procedure 1.280(c)(2)6, however, the trial court limited the depositions of Hunter, Lenker, and Bolch to one hour each.

*1251RaceTrac now petitions this Court to enter a writ of certiorari quashing the trial court’s order.

II. Standard for Certiorari Review of Discovery Orders

A party petitioning for certiorari review of a discovery order must demonstrate that the contested order: (1) departs from the essential requirements of the law; (2) results in a material injury for the remainder of the case; (3) cannot be corrected on postjudgment appeal. Bd. of Trustees of the Internal Improvement Trust Fund v. Am. Educ. Enters. LLC, 99 So.Sd 450, 454 (Fla.2012).

Trial courts are accorded broad discretion in the treatment of discovery problems, and such orders reviewed pursuant to a petition for writ of certiorari will not be overturned absent departure from the essential requirements of law. See Nestor v. Posner-Gerstenhaber, 857 So.2d 958, 955 (Fla. 3d DCA 2003) (“Because the trial court has broad discretion in discovery matters ... and there has been no clear departure from the essential requirements of law which results in a miscarriage of justice, we deny certiorari review.”) (citation omitted).

III. Analysis

As framed by RaceTrac, the issue on certiorari review is whether rule 1.310(b)(6) prevents a party from deposing officers not identified by the corporation in response to a rule 1.310(b)(6) notice when the rule 1.310(b)(6) designee testifies that other officers in the company have the same or similar knowledge.7,8

RaceTrac argues that its production of witnesses who had personal knowledge of the subjects designated in Sewell’s rule 1.310(b)(6) notices fully complied with the requisites of the rule, and the trial court departed from the essential requirements of law by allowing Sewell to depose other *1252RaceTrac officers who may also have personal knowledge of those subjects. We disagree.

In 1972, rule 1.310(b)(6) was amended to conform with Federal Rule of Civil Procedure 30(b)(6) (as amended in 1970). The rule now permits the deposition of a legal entity through a representative knowledgeable as to specifically identified issues. After receiving the rule 1.310(b)(6) notice, the entity must designate the appropriate person or persons to be deposed on the issues identified in the notice. In re Florida Bar: Rules of Civil Procedure, 265 So.2d 21, 30 (Fla.1972) (Committee Note to 1972 amendment); Plantation-Simon Inc. v. Bahloul, 596 So.2d 1159, 1160 (Fla. 4th DCA 1992).

Importantly, rule 1.310(b)(6) expressly provides that the outlined procedure is not exclusive: “This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.” Fla. R. Civ. P. 1.310(b)(6). Thus, the rule appears to contemplate the ability of a party to take additional depositions of corporate representatives, albeit subject to all general discovery provisions of rule 1.280.

If a witness identified by an entity pursuant to a rule 1.310(b)(6) notice is deposed, and identifies another person associated with the entity who may also have knowledge of the same subject matter identified in the rule 1.310(b)(6) notice, the trial court is almost always in a better position than the appellate court to determine whether the deposing party is entitled to depose the identified person. Cf Plantation-Simon, 596 So.2d at 1161 (“[T]he trial judge is given discretion to determine whether either party is misusing this discovery device [simple notice to the corporate party].... [I]f the trial judge finds that seriatim depositions of corporate officers has [sic] created a burden on the corporate party, the court is empowered to alleviate that burden in a proper case by, e.g., limiting the examining party to the designation procedure.”).

In such circumstances, rule 1.280(c), governing protective orders, gives the trial court significant discretion in determining whether such potentially cumulative depositions should occur, and, if so, what restrictions should be imposed. See Waite v. Wellington Boats, Inc., 459 So.2d 425, 426 (Fla. 1st DCA 1984) (“Trial courts must be accorded broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by Rule 1.280”).

In this case, while the trial court allowed the potentially cumulative depositions, the trial court restricted each deposition to no longer than an hour to mollify the alleged disruption of RaceTrac’s corporate operations and limit the potentially redundant or irrelevant testimony.

Hence, while we are not unsympathetic to RaceTrac’s position, on this record, we cannot conclude that the trial court departed from the essential requirements of law.9

IY. Conclusion

Because RaceTrac has not established that the trial court departed from the essential requirements of law, its petition for certiorari is denied.

Petition denied.

RaceTrac Petroleum, Inc. v. Sewell
150 So. 3d 1247

Case Details

Name
RaceTrac Petroleum, Inc. v. Sewell
Decision Date
Nov 19, 2014
Citations

150 So. 3d 1247

Jurisdiction
Florida

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