ALEXANDER GARCIA
v.
YELLOW CAB COMPANY, ET AL.
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A trial court abuses its discretion by granting a protective order that bars the deposition of a corporation's attorney when the attorney may have assumed a decision-making role in the corporation's operations, the corporation's representative is devoid of knowledge, and the documents sought are corporate records not protected by attorney-client privilege.
[1] A writ of certiorari may be issued to review an order denying discovery when the order causes irreparable harm that cannot be corrected on appeal, even though certiorari…
[2] Irreparable harm exists when an order prohibits the deposition of a material witness whose testimony is essential to a party's claim and no practical alternative means of…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because of Kaufman's material role and the absence of other witnesses or officers, there is no substitute way for Garcia to obtain the information needed to collect his judgment.”
Establishes that irreparable harm exists when a material witness's deposition is prohibited and no alternative means of obtaining critical information exists.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGarcia obtained a $150,000 consent judgment against Yellow Cab in 2013 for injuries from an automobile accident, but Yellow Cab never paid. During pos…
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Third District Court of Appeal State of Florida
Opinion filed September 18, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0391 Lower Tribunal No. 13-33229 ________________
Alexander Garcia, Petitioner,
vs.
Yellow Cab Company, et al., Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Tanya Brinkley, Judge.
Kogan Law P.A., and Lyudmila (Lula) Kogan and Rachel L. Miller (Hallandale), for petitioner.
Krupnick Campbell Malone Buser Slama Hancock P.A., and Kelley B. Stewart (Fort Lauderdale); Michael S. Kaufman, for respondents.
Before LOGUE, C.J., and LINDSEY and GORDO, JJ.
LOGUE, C.J.
Alexander Garcia petitions for a writ of certiorari to quash a protective order barring the deposition of Yellow Cab Company’s attorney, Michael S.
BACKGROUND
In 2013, Garcia filed the underlying negligence action seeking to recover damages from defendants Carlos Gallardo and Edward Vitale for injuries he sustained in an automobile accident. Later, Yellow Cab was also named as a defendant. Kaufman represented all three defendants. In 2022, Yellow Cab settled with Garcia. The trial court accordingly entered a final consent judgment awarding Garcia “one hundred fifty thousand dollars ($150,000.00) together with statutory interest.” The judgment acknowledged that “a vehicle under the control of Yellow Cab” caused the accident, adjudicated Garcia would recover the settlement amount from Yellow Cab, and dismissed Gallardo and Vitale from the case. Yellow Cab never paid the consent judgment. Unable to collect the consent judgment from Yellow Cab, Garcia began post-judgment discovery. He subpoenaed Yellow Cab’s corporate representative “with the most knowledge of the business operations and assets of Yellow Cab.” The subpoena included a request to produce documents related to the company’s assets, including federal and state tax
4
A. I don't know either.
Q. Who would know?
A. I have no idea.
. . . . Q. Does Yellow Cab keep any records?
A. I have no idea.
Q. Who would know?
A. I have no idea.
Q. Does Yellow Cab have any accounts?
A. I have no idea.
Q. Who would know?
A. I have no idea.
. . . .
Q. Are you aware that Yellow Cab has to file annual
reports as a Florida corporation in order to be active in the State of Florida?
A. If they have to -- if they do I don't know about that.
Q. Who at Yellow Cab directs [its attorney] Mr. Kaufman to file the annual reports?
A. I have no idea.
Q. Who would know? MR. KAUFMAN: Of course, we object to the question. Attorney-client privilege. Q. Who would know the answer to that question? I'm not asking who, I'm asking who would know the answer?
5
A. I have no idea.
. . . .
Q. Who pays the annual filing fee for Yellow Cab
Company?
A. I have no idea.
Q. Who would know?
A. I have no idea.
. . . . Q. [W]hy doesn't Yellow Cab Company have an EIN [Internal Revenue Service Employee Information Number] or FEIN [Federal Employee Identification Number] number?
A. I have no idea what that is.
When asked about Kaufman’s involvement in Yellow Cab’s financial matters, the president, while at times instructed by Kaufman not to answer, testified he knew of no corporate officer who gave Kaufman directions.
The president further testified that Kaufman designated him as the corporate representative for Yellow Cab. He also testified that if he stopped serving as president, Kaufman would be involved in obtaining a new president but that he had no idea whether Kaufman had an interest in Yellow Cab. Ultimately, Garcia suspended the deposition.
Garcia then subpoenaed Kaufman. The subpoena requested his deposition and directed Kaufman to produce documents regarding: (1) his
STANDARD OF REVIEW
To grant certiorari relief, there must be: “(1) a material injury in the proceedings that cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.” Fla. Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 2019) (quoting Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012)). Because certiorari is an extraordinary remedy, it is “rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.” Publix Super Markets, Inc. v. Hernandez, 176 So. 3d 350, 351 (Fla. 3d DCA 2015) (quoting Giacalone v. Helen Ellis Mem. Hosp. Found., Inc.,8 So. 3d 1232, 1234 (Fla. 2d DCA 2009)). Nevertheless, “an order denying discovery will be reviewed by petition for writ of certiorari when the order will cause irreparable harm.” Id. at 351-52 (citations omitted).
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ANALYSIS
Irreparable harm is a jurisdictional requirement, so we address it first. Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014) (“Unless the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction.”); Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014) (“The establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.”). The testimony of Yellow Cab’s president indicated that Kaufman may have assumed a decision-making role in the operations of Yellow Cab. Because of Kaufman’s material role and the absence of other witnesses or officers, there is no substitute way for Garcia to obtain the information needed to collect his judgment. In similar circumstances, this Court has found irreparable harm. See 575 Adams, LLC v. Wells Fargo Bank, N.A., 197 So. 3d 1235, 1237 (Fla. 3d DCA 2016) (holding that “an order prohibiting the taking of a material witness’s deposition inflicts the type of harm that cannot be remedied on final appeal” (quoting Marshall v. Buttonwood Bay Condo. Ass’n, 118 So. 3d 901, 903 (Fla. 3d DCA 2013))); see also Somarriba v. Ali, 941 So. 2d 526, 527 (Fla. 3d DCA 2006); Giacalone,8 So. 3d at 1234-35 (explaining relief by writ of certiorari is appropriate “when the requested discovery is relevant or is
9 shielded by transferring them to the attorney.” Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A. v. Bolton, 706 So. 2d 97, 98 (Fla. 3d DCA 1998) (quoting Goldberg v. Ross, 421 So. 2d 669, 669 (Fla. 3d DCA 1982)). In fact, the records and testimony Garcia sought would normally have been produced at the deposition of Yellow Cab’s corporate representative. Under Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, a corporation can be required to produce a representative to testify “about matters known or reasonably available to the organization.” “This places a duty on the corporation to affirmatively prepare its representative ‘to the extent matters are reasonably available, whether from documents, past employees, or other sources.’” Bechtel Corp. v. Batchelor, 250 So. 3d 187, 194 (Fla. 3d DCA 2018) (quoting Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA 2013)). Particularly in these circumstances where the corporate representative is intentionally or unintentionally devoid of any knowledge of the corporation, the trial court should have permitted discovery of this information in the manner requested.
Petition granted, order quashed, and cause remanded.
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Authorities Cited (15 total)
- Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232 (Fla. 2d DCA 2009)
- Damsky v. Univ. OF Miami & Alan Livingstone, M.D., 152 So. 3d 789 (Fla. 3d DCA 2014)
- In re Grand Jury Subpoena of Harrison T. Slaughter, Jr., 694 F.2d 1258 (11th Cir. 1982)
- L.B.K., Inc. v. Union Indem. Ins. Co., 431 So. 2d 329 (Fla. 3d DCA 1983)
- Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013)
- Stockinger v. Ulrike A. Zeilberger, 152 So. 3d 71 (Fla. 3d DCA 2014)
- Finol v. Finol, 869 So. 2d 666 (Fla. 4th DCA 2004)
- Goldberg v. Eli Ross, 421 So. 2d 669 (Fla. 3d DCA 1982)
- Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A. v. Bolton, 706 So. 2d 97 (Fla. 3d DCA 1998)
- Somarriba v. Javed S. ALI and Isaac A. Velazquez, 941 So. 2d 526 (Fla. 3d DCA 2006)