271 So. 3d 28
Fla. Dist. Ct. App.2018Background
- April 2018 L24M board meeting: Cavagnuolo allegedly voted out as manager and Iacono voted in; attorneys Jared Lopez and Joshua Shore and paralegal Barbara Andrade attended.
- Iacono (on behalf of L24M) sued Cavagnuolo and Santa Elena Holdings alleging wrongful acts in formation/management of L24M.
- Cavagnuolo contends he remains L24M manager (vote to remove him allegedly invalid) and filed a motion to disqualify Iacono’s attorneys.
- Cavagnuolo subpoenaed Lopez, Shore, and Andrade for depositions to prepare for the disqualification hearing; trial court orally granted an immediate motion to compel at a status conference without allowing response.
- Iacono’s emergency motion for protective order was denied; Iacono sought certiorari review of the order compelling opposing counsel’s depositions.
- The court found Cavagnuolo failed to meet the Shelton factors; it granted certiorari and quashed the discovery order without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether depositions of opposing counsel/paralegal may be compelled | Iacono: depositions are protected and should be barred unless strict test met | Cavagnuolo: depositions necessary; information unavailable by other means for disqualification hearing | Court: deposition order quashed for failure to apply Shelton factors; requirements not satisfied |
| Whether party seeking deposition proved no other means to obtain info | Iacono: opposing counsel should be allowed to respond; trial court made no finding | Cavagnuolo: asserted necessity at status conference | Held: trial court did not permit response or make adequate findings; Shelton prong unmet |
| Whether requested information was relevant and nonprivileged | Cavagnuolo: testimony relates to events at board meeting and disqualification motion | Iacono: risk of disclosure of litigation strategy; privilege concerns | Held: trial court did not analyze this Shelton factor; burden unmet |
| Whether information was crucial to case preparation | Cavagnuolo: needed to prepare for disqualification hearing | Iacono: not established as crucial vs. cumulative/alternative sources | Held: Shelton third factor not shown; depositions unjustified |
Key Cases Cited
- Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (establishes three-factor test limiting depositions of opposing counsel)
- Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232 (Fla. 2d DCA 2009) (certiorari standard for pretrial discovery orders)
- Eller-I.T.O. Stevedoring Co., L.L.C. v. Pandolfo, 167 So. 3d 495 (Fla. 3d DCA 2015) (rarely justified to depose opposing counsel; reviewable on certiorari)
- Zimmerman v. State, 114 So. 3d 446 (Fla. 5th DCA 2013) (purpose of Shelton test is to protect counsel from unnecessary depositions)
- State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000) (recognizing extraordinary nature of deposing opposing counsel)