# Third District Court of Appeal

State of Florida

Opinion filed June 17, 2015

. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-2904

Lower Tribunal No. 13-4180

________________



### Eller-I.T.O. Stevedoring Company, L.L.C.

,

Petitioner,

vs.



### Lazaro Pandolfo and Olga Alvarez a/k/a Olga Alvarez Sarria

, Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lisa

Walsh

, Judge.

Hamilton, Miller & Birthisel, Jerry D. Hamilton, Robert M. Oldershaw and

Michael J. Dono

, for petitioner.

Matias R. Dorta and Gonzalo R. Dorta

, for respondents.

Before WELLS, ROTHENBERG and EMAS, JJ.

ON MOTION FOR CLARIFICATION

WELLS, Judge.We grant Appellant’s Motion to Clarify, withdraw our previous opinion filed

April 29, 2015, and substitute the following opinion in its place

.

Eller-I.T.O. Stevedoring Co., L.L.C. (“Eller-ITO”) seeks certiorari review of

an order compelling an outside-attorney for Eller-ITO, Timothy J. Armstrong,

assisting in Eller-ITO’s representation herein, to be deposed by the respondents.

Because we find no record basis for ordering this Eller-ITO attorney to appear for

deposition, we grant certiorari and quash without prejudice the order under review.

See State v. Donaldson

, 763 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (granting

certiorari and quashing order compelling opposing counsel to sit for deposition);

see also Scottsdale Ins. Co. v. Camara de Comercio Latino-Americana de los

Estados Unidos, Inc.

, 813 So. 2d 250, 252 (Fla. 3d DCA 2002) (citing Donaldson

,

granting certiorari and quashing order that denied motion for protective order and

compelled opposing counsel to appear for deposition).

In Donaldson

, this court, citing in part to Shelton v. American Motors Corp.

,

805 F. 2d 1323, 1327 (8th Cir. 1986), stated “[t]aking the deposition of opposing

counsel in a pending case is an extraordinary step which will be rarely justified.”

Donaldson

, 763 So. 2d at 1254. As Shelton (where the deposition of an in-house

attorney was at issue) confirms, such depositions “should be limited to where the

party seeking to take the deposition has shown that (1) no other means exist to

obtain the information than to depose opposing counsel; (2) the information sought

2is relevant and non-privileged; and (3) the information is crucial to the preparation

of the case.” Shelton

, 805 F. 2d at 1327 (citation omitted); see also Zimmerman v.

State

, 114 So. 3d 446, 447 (Fla. 5th DCA 2013) (“Because of a belief that the

discovery process was being abused, the Shelton test was erected as a barrier to

protect trial attorneys from unnecessary depositions.”).

The record in this case confirms that attorney Armstrong, although not

counsel of record, is directly involved in the instant litigation having both directed

and overseen “various aspects of Eller-ITO’s investigation of the accident on

which [respondents]

. . . premised their allegations and claims sub judice

, as well

as [having] prepar[ed] and receiv[ed] documentation [including attorney-client

privileged communications and work product documents] related to the

investigation,” thereby obligating respondents to satisfy Shelton’s requirements

before being allowed to take his deposition. See Broughton v. Cotter Corp.

, 65 F.

3d 823, 828-31 (10th Cir. 1995) (precluding the deposition of outside counsel

because of the extent of that attorney’s role in representing the party); Nat’l W.

Life Ins. Co. v. W. Nat’l Life Ins. Co.

, No. A-09-CA-711, 2010 WL 5174366, at

*3 (W.D. Tex. Dec. 13, 2010) (“[T]he critical factor in determining whether the

Shelton test applies is not the status of the lawyer as ‘trial counsel,’ but the extent

of the lawyer’s involvement in the pending litigation.” (quoting Murphy v.

Adelphia Recovery Trust

, No. 3-09-MC-105-B, 2009 WL 4755368, at *3 (N.D.

3Tex. Nov. 3, 2009))); Massillon Mgmt., LLC v. Americold Realty Trust

, No. 5:08-

CV-799, 2009 WL 614831, at *3-6 (N.D. Ohio Jan. 21, 2009) (holding that inhouse counsel who was working with outside counsel to assist in developing

strategy, taking discovery, and assisting in defending an action was not subject to

being deposed because the criteria set forth in Shelton had not been satisfied)

(citing Nationwide Mut. Ins. Co. v. Home Ins. Co.

, 278 F. 3d 621, 628 (6th Cir.

2002) as having adopted Shelton )). Because respondents failed to satisfy Shelton’s

requirements, we grant the petition for writ of certiorari and quash the lower

court’s order without prejudice.

Certiorari granted.

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