Eller-I.T.O. Stevedoring Co. v. Pandolfo, 167 So. 3d 495

Eller-I.T.O. Stevedoring Co., L.L.C. (Eller-ITO) sought certiorari review of a trial-court order compelling an outside attorney, Timothy J. Armstrong (not counsel of record), to appear for deposition.
Respondents alleged Armstrong directed and oversaw Eller-ITO’s investigation of the accident underlying the litigation.
Armstrong prepared, received, and handled documentation related to the investigation, including materials described as attorney-client privileged communications and work product.
The trial court ordered Armstrong’s deposition over Eller-ITO’s objection; Eller-ITO moved for certiorari review in the appellate court.
The appellate court evaluated whether respondents satisfied the Shelton test (a three-part test limiting depositions of opposing counsel) before ordering such a deposition.
The court concluded the record did not justify compelling Armstrong’s deposition and quashed the lower-court order without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether opposing counsel may be compelled to sit for deposition	Respondents argued Armstrong’s direct involvement in investigation made his testimony necessary	Eller-ITO argued Shelton requires showing no other means, relevance/non-privilege, and necessity; respondents did not meet it	Deposition order quashed; Shelton requirements not satisfied
Applicability of Shelton test to non–counsel-of-record attorneys	Respondents implicitly contended Armstrong’s outside status made him discoverable	Eller-ITO argued extent of involvement (not title) governs application of Shelton	Court applied Shelton because Armstrong was directly involved in litigation-related work
Burden of proof to overcome privilege/work-product protections	Respondents claimed need to probe investigation materials and facts	Eller-ITO maintained privilege/work-product protections over attorney-related materials and testimony	Court required respondents to demonstrate the three Shelton factors and found they failed
Standard for granting certiorari to review discovery orders compelling opposing counsel	Respondents sought deposition discovery in trial court	Eller-ITO sought appellate relief via certiorari, citing prior precedents protecting counsel	Certiorari granted and lower order quashed without prejudice per appellate precedent

Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (establishes three-part test limiting depositions of opposing counsel)
State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000) (granted certiorari and quashed order compelling opposing counsel’s deposition)
Scottsdale Ins. Co. v. Camara de Comercio Latino-Americana de los Estados Unidos, Inc., 813 So. 2d 250 (Fla. 3d DCA 2002) (citing Donaldson and quashing order that compelled opposing counsel to appear)
Broughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) (precluded deposition of outside counsel given extent of counsel’s role)
Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002) (adopts Shelton approach focusing on counsel’s involvement rather than title)
Zimmerman v. State, 114 So. 3d 446 (Fla. 5th DCA 2013) (recognizes Shelton as a barrier to abusive discovery targeting trial attorneys)