Rogan v. Oliver
110 So. 3d 980
| Fla. Dist. Ct. App. | 2013Background
- Petitioners Rogan, Rogan, and Kay seek a writ of certiorari to quash a trial court order denying their motion to depose two former Association counsel, Lupo and Marler.
- Oliver, a former Association president, sued the Petitioners for defamation based on statements about his conduct and use of funds.
- Oliver objected to deposition of Lupo and Marler on attorney-client privilege grounds, arguing the communications were protected and that he individually had privilege.
- The trial court denied the deposition, and Petitioners sought certiorari review, arguing the court applied the wrong law for corporate privilege waiver.
- The court holds jurisdiction to review and ultimately determines the trial court erred by placing control to waive privilege with a displaced manager rather than the current Association board, and remands for further proceedings.
- On remand, the court must determine whether current Association board members have waived the privilege and whether such waiver is valid given the board’s current composition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who has authority to waive the corporate privilege | Rogan argues current Board may waive | Oliver argues waiver rests with the individual manager | Current Board, not Oliver, has authority to waive |
| Whether the trial court applied the correct law to privilege waiver | Privilege attaches to corporation; proper waiver by Board | Trial court applied incorrect standard | Trial court erred by applying the wrong law and must reconsider waiver |
| Are Lupo and Marler material witnesses for deposition | They uniquely know the board's advice | Management could testify; hearsay concerns | Lupo and Marler appear to be material witnesses; jurisdiction exists to review and remand |
| Is certiorari jurisdiction available to review denial of deposition of material witnesses | Denial of deposition cannot be remedied on postjudgment appeal | N/A | Jurisdiction exists to review the denial of deposition of material witnesses |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege applies to corporations and individuals)
- Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (U.S. 1985) (establishes framework for certiorari review in privilege matters)
- Tail of the Pup, Inc. v. Webb, 528 So.2d 506 (Fla. 2d DCA 1988) (principles on privilege waiver in corporate context)
- Nucci v. Simmons, 20 So.3d 388 (Fla. 2d DCA 2009) (certiorari review for denial of material witness deposition)
- Medero v. Fla. Power & Light Co., 658 So.2d 566 (Fla. 3d DCA 1995) (material witness/short remedy context)
- Duran v. MFM Grp., Inc., 841 So.2d 500 (Fla. 3d DCA 2003) (material witness standard for deposition)
- Wingate v. Mach, 117 Fla. 104, 157 So. 421 (Fla. 1934) (definition of material witness for deposition)