Florida Office of Insurance Regulation v. Florida Department of Financial Services, 159 So. 3d 945

DFS, acting as receiver for three insurers, sued Deloitte for negligently preparing inaccurate 2005 financial statements filed with the Florida Office of Insurance Regulation (OIR), alleging the inaccuracies delayed referral to DFS for receivership until 2006 and caused harm.
The Insurance Commissioner (Kevin McCarty), as head of OIR, was statutorily the official who would refer insurers to DFS, but OIR staff prepare recommendations; McCarty submitted an affidavit saying he relied on staff and had no unique firsthand knowledge.
DFS sought to add McCarty to its witness list and Deloitte subpoenaed him for deposition; trial court ordered the deposition after finding McCarty’s testimony essential and that other discovery had been exhausted.
OIR petitioned for certiorari, arguing the trial court departed from controlling law protecting agency heads from deposition unless (1) other discovery is exhausted and (2) the head is uniquely able to provide the information.
The First District agreed with OIR: respondents met the exhaustion prong but failed to show McCarty’s testimony was necessary or unavailable from others, and compelling hypothetical opinion testimony from the agency head raised separation-of-powers concerns.
The court quashed the order compelling McCarty’s deposition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an agency head may be compelled to sit for deposition	McCarty’s testimony is essential to show OIR would have referred insurers to DFS in 2005	Agency head protected unless testimony is necessary and unavailable from others; staff or experts can supply needed info	Deposition quashed: exhaustion shown but necessity not proven; testimony available from others
Whether hypothetical opinion testimony from agency head about what he would have done is permissible	Needed to prove causation — whether McCarty would have recommended receivership under hypothetical accurate filings	Hypothetical discretionary opinions invade decision-making and raise separation-of-powers concerns	Disallowed: compelling speculative hypothetical opinions would intrude on executive discretion
Whether OIR staff depositions exhausted discovery	Respondents argued they had deposed multiple OIR staff and exhausted discovery	OIR contended staff testimony sufficed and McCarty had no unique knowledge	Court accepted exhaustion but held exhaustion alone is insufficient without uniqueness/necessity
Whether allowing deposition would create harmful precedent	Respondents suggested limiting McCarty’s testimony would unfairly hinder their case	OIR warned it would open precedent for depositions of agency heads on hypothetical decisions	Court agreed with OIR; risk of broad intrusion into executive branch weighed against permitting deposition

Dep’t of Agrie. & Consumer Servs. v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002) (agency heads should not be deposed absent exhaustion and uniqueness)
Dep’t of Health & Rehabilitative Servs. v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991) (protects agency heads from testifying when not necessary; separation-of-powers concerns)
Home v. Sch. Bd. of Miami-Dade County, 901 So.2d 238 (Fla. 1st DCA 2005) (official must show personal involvement or extraordinary circumstances to be deposed)
Univ. of W. Fla. Bd. of Trustees v. Habegger, 125 So.3d 323 (Fla. 1st DCA 2013) (compelling high-ranking officials may have widespread ramifications)
Miami-Dade County v. Dade County Police Benevolent Ass’n, 103 So.3d 236 (Fla. 3d DCA 2012) (recognizing policy reasons to protect high-ranking officials from discovery)
Whitney v. R.J. Reynolds Tobacco Co., 157 So.3d 309 (Fla. 1st DCA 2014) (plaintiff must prove causation by a more-likely-than-not standard)
Aragon v. Issa, 103 So.3d 887 (Fla. 4th DCA 2012) (discusses causation standards in tort context)