We all know that the deposition is perhaps the single most important tool we have as litigators to identify, and reveal, the information required to prevail in our action. Our practice, like many others around the state, spends a great deal of time litigating first-party insurance claims against Florida’s insurers. While the corporate representative (or adjuster) deposition is our best opportunity to obtain the information we need to prevail when our client’s bills are sliced and diced by the arbitrary policies of the omnibus insurer, our clients’ deposition often represents our greatest challenge.
Let’s face it, our clients are business people, not professional litigants like an adjuster. They may know all there is about an MRI, or whatever serves as their stock in trade, but they can crumble beneath the weight of a marathon deposition. We’ve all experienced that helpless feeling of watching the defense conduct a fishing expedition on our client, knowing there is little we can do. Unfortunately the Rules do not allow us to reign in an out-of-control deposition, as matters of relevance and undue burden are left for the judge. Introducing, the Motion for Protective Order (MPO).
Having sat through a gazillion of our clients’ depositions, we all know only too well what sort of things the defense counsel will endeavor to discover. Having your MPO prior to that deposition not only allows you to narrow the scope of the deposition, yielding obvious benefits, but provides an invaluable opportunity to educate the judge on your case. By using examples from prior depositions, you can illustrate just how far off course these depositions can go, and how spurious defense counsel can be. You also have the chance to give the Court a step by step primer of your case by listing the issues you intend to address, and the defenses that you anticipate. By explaining to the judge how “simple” this case truly is, (ie: our client sent a bill; the insurer didn’t pay) you can persuade them that scope of the deposition should be narrowly tailored to this premise.
It has been my experience that litigators state-wide, even talented and experienced litigators, fail to use this tool to its full capability. While many believe the MPO is merely a shield to protect their client, we have seen how it can be a rather effective sword as well. In their attempt to warrant unfettered access to the plaintiff, the defense must spin a layered yarn outlining the nefarious activities of all insurance claimants. It then becomes child’s play to convince the Court that they’re simply trying to turn this ant hill into Everest for the sole purpose to annoy, embarrass, or oppress the Plaintiff, and create an undue burden or expense to resolve such a “simple” matter. The very same prohibitions found in Rule 1.280(c), the genesis of your motion.
While the Court may not agree to all of your demands, I’ve seldom heard of a court that refused to limit the scope of a deposition somewhat. In fact, they’ll often make themselves available for a phone call during the deposition for the purpose of resolving any additional disputes. Not only have you saved your client from the annoyance of an uncontrolled interrogation, you’ve shown the Court that you’re on top of this litigation, and have the intent to push this matter toward resolution despite the defense’s best efforts to drag it along. What over-saddled judge will not appreciate that? Read over Rule 1.280(c), and its progeny of caselaw to see how you can make this device work for you.
Article Written by: Steve Battisti