       Third District Court of Appeal
                                State of Florida

                         Opinion filed November 19, 2014.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D14-974
                          Lower Tribunal No. 10-38782
                              ________________


                          Racetrac Petroleum, Inc.,
                                     Petitioner,

                                         vs.

                            Elizabeth Sewell, etc.,
                                    Respondent.



     On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Daryl E. Trawick, Judge.

      Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Doreen E.
Lasch (Fort Lauderdale), for petitioner.

      Schlesinger Law Offices, P.A., and Sheldon J. Schlesinger and Crane A.
Johnstone (Fort Lauderdale); Burlington & Rockenbach, P.A., and Philip M.
Burlington and Nichole J. Segal (West Palm Beach), for respondent.


Before ROTHENBERG, LOGUE, and SCALES, JJ.

      SCALES, J.
        Petitioner, RaceTrac Petroleum, Inc. (RaceTrac), defendant below, seeks a

writ of certiorari quashing the trial court’s order denying RaceTrac’s motion for

protective order and granting plaintiff’s motion to compel. Because the standard

for certiorari relief has not been met, RaceTrac’s petition is denied.

   I.       Facts

        In 1997, RaceTrac entered into a contract to purchase real property on

Northeast 8th Street/Campbell Drive (Campbell Drive) in Homestead, Florida for

the purpose of operating a gas station/convenience store.

        The purchase and sale contract between RaceTrac (as purchaser) and the

property’s seller conditioned the sale upon the purchaser obtaining approval from

all necessary governmental agencies to construct a median cut on Campbell Drive

to align with the existing curb cut on the southern property line of the subject

property.

        The median cut would allow for direct ingress and egress between the

property and the eastbound lanes of Campbell Drive without requiring eastbound

drivers to make a U-turn to access the gas station. In 1999, RaceTrac obtained the

necessary approvals and closed on the property (the subject gas station).

        Several years later, in 2010, Respondent, Elizabeth Sewell (Sewell), as legal

guardian of her daughter Crystal Sewell (Crystal), brought suit against RaceTrac to




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recover damages suffered by Crystal in a car accident. The accident occurred in

2007, near the subject gas station.

      Sewell alleged that Crystal was traveling east in the left lane of Campbell

Drive when a vehicle rapidly exited the subject gas station, crossed the two

westbound traffic lanes of Campbell Drive, and passed through the break in the

median into Crystal’s eastbound lane. As a result, according to Sewell’s

allegations, Crystal lost control of her car, collided with a palm tree, and was

seriously injured.

      Sewell alleged that RaceTrac was negligent for a host of reasons primarily

regarding posting of signage at the subject gas station (e.g., failing to safely direct

and control the vehicles leaving the subject gas station; failing to post appropriate

stop signs at the exit to the subject gas station, or at the median; failing to post

signage at the subject gas station’s exit or on the median facing its exit, advising or

alerting vehicle operators not to cross the westbound traffic lanes on Campbell

Drive; failing to erect signage at the subject gas station’s exit or on the median

instructing motorists that they could only turn left from the subject driveway;

maintaining the driveway markings and arrows that allowed, directed, and

encouraged motorists exiting the subject gas station to cross the westbound lanes

of Campbell Drive; etc.).




                                          3
        Pursuant to Florida Rule of Civil Procedure Rule 1.310(b)(6)1, Sewell

noticed RaceTrac seeking to depose: (1) the corporate representative with the most

knowledge of selecting locations for RaceTrac gas stations; and (2) the corporate

representative with the most knowledge of selecting the location for the subject gas

station.2

1   Florida Rule of Civil Procedure 1.310(b)(6) reads as follows:

        (b) Notice; method of Taking; Production at Deposition.
               ....
        (6) In the notice a party may name as the deponent a public or private
        corporation, a partnership or association, or a governmental agency,
        and designate with reasonable particularity the matters on which
        examination is requested. The organization so named shall designate
        one or more officers, directors, or managing agents, or other persons
        who consent to do so, to testify on its behalf and may state the matters
        on which each person designated will testify. The persons so
        designated shall testify about matters known or reasonably available
        to the organization. This subdivision does not preclude taking a
        deposition by any other procedure authorized in these rules.
2 It appears from the record that Sewell served subpoenas on RaceTrac seeking to
depose corporate representatives with the “most knowledge” on the specified
topics. First, we note that “[r]ule 1.310(b)(6) does not require—or for that matter
even contemplate—that the corporation produce the witness with the ‘most
knowledge’ on the specified topic(s) . . . .” Carriage Hills Condo., Inc. v. JBH
Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA 2013). Second,
we note that although Sewell subpoenaed RaceTrac seeking to depose corporate
representatives with knowledge on the specified topics, both parties characterize
such subpoenas as notices of deposition pursuant to rule 1.310(b)(6). For ease of
reference, throughout this opinion, we will refer to such subpoenas as rule
1.310(b)(6) notices. See Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So.
2d 1033 (Fla. 3d DCA 2002) (quashing trial court’s order that required defendant
to subpoena, rather than simply notice, under rule 1.310(b)(6), corporate
representatives of plaintiff).


                                           4
      In response to Sewell’s rule 1.310(b)(6) notice, RaceTrac identified Lesliegh

Batchelor, director of real estate, as the appropriate corporate representative.3

      Batchelor began working for RaceTrac in 1994 as a real estate

representative. Batchelor was promoted to a vice president of real estate in

approximately 1997.4 Batchelor ceased employment with RaceTrac in 2000, and

returned to work at RaceTrac in 2005 as the manager of real estate.5

      Sewell took Batchelor’s deposition at RaceTrac’s corporate offices in

Atlanta. During her deposition, Batchelor testified that several potential sites for

the subject gas station, including the subject site, were selected in 1994, prior to

her employment with RaceTrac. Batchelor testified that Mark Hunter, who was

another vice president of real estate until he left the company in 1998, was the

person initially tasked with selecting potential sites for the subject gas station.

Batchelor also testified that Max Lenker, president of RaceTrac, was involved in

the site selection process of the subject site.

3 Sewell also noticed RaceTrac seeking to depose the corporate representative with
the most knowledge of designing RaceTrac gas stations. RaceTrac identified Max
McBrayer, who was vice president of engineering when RaceTrac purchased the
property, as the appropriate corporate representative. Sewell deposed McBrayer.
4 In approximately 1997, Batchelor was promoted to a vice president of real estate
to replace Mark Hunter, who was then a vice president of real estate. Hunter
ceased employment with RaceTrac in approximately 1998. Batchelor was
promoted prior to Hunter’s departure.
5In 2013, Batchelor’s job title technically changed from manager of real estate to
director of real estate, although her job duties did not change.

                                            5
      According to Batchelor’s testimony, after Hunter narrowed down potential

locations for the subject gas station, Lenker would visit potential sites and evaluate

the sites based on certain criteria, such as proximity to a limited access road, traffic

count, and visibility.

      Batchelor further testified that Carl Bolch, Jr., who was another vice

president of real estate during the relevant time, was also involved in the site

selection and approval process for the subject gas station.

      Currently, Hunter is no longer employed by RaceTrac; Lenker is still

RaceTrac’s president, and Bolch is now RaceTrac’s CEO.

      Ostensibly, because Batchelor testified that Hunter, Lenker, and Bolch were

involved in the selection of the subject gas station’s location, Sewell’s counsel

deemed it necessary to take the depositions of these three high-level current and

former RaceTrac officers.

      RaceTrac resisted Sewell’s attempts to take these depositions, resulting in

RaceTrac filing a motion for protective order and Sewell filing a motion to compel.

      RaceTrac argued that rule 1.310(b)(6) provides the mechanism for a

corporate entity to identify the person with knowledge of the relevant matters, and,

because Batchelor provided the information requested (as identified in Sewell’s

rule 1.310(b)(6) deposition notice), Sewell could not compel the depositions of

additional corporate representatives.



                                           6
         Essentially, RaceTrac argued that, unless the rule 1.310(b)(6) designee fails

to give the information requested, a plaintiff may not compel the deposition of any

other corporate representatives, even if such other corporate representatives were

identified by the rule 1.310(b)(6) designee as having knowledge of the same

subject matter.

         A general magistrate held a hearing on Sewell’s motion to compel and

RaceTrac’s motion for protective order. The magistrate issued a report and

recommendation granting Sewell’s motion to compel and denying RaceTrac’s

motion for protective order.

         RaceTrac filed exceptions to the general magistrate’s order, and, on April 3,

2014, the trial court overruled RaceTrac’s exceptions and adopted the general

magistrate’s report and recommendations. Pursuant to Florida Rule of Civil

Procedure 1.280(c)(2)6, however, the trial court limited the depositions of Hunter,

Lenker, and Bolch to one hour each.

6   Florida Rule of Civil Procedure 1.280(c) reads, in its entirety, as follows:

         (c) Protective Orders. Upon motion by a party or by the person from
         whom discovery is sought, and for good cause shown, the court in
         which the action is pending may make any order to protect a party or
         person from annoyance, embarrassment, oppression, or undue burden
         or expense that justice requires, including one or more of the
         following: (1) that the discovery not be had; (2) that the discovery
         may be had only on specified terms and conditions, including a
         designation of the time or place; (3) that the discovery may be had
         only by a method of discovery other than that selected by the party
         seeking discovery; (4) that certain matters not be inquired into, or that

                                             7
         RaceTrac now petitions this Court to enter a writ of certiorari quashing the

trial court’s order.

   II.      Standard for Certiorari Review of Discovery Orders

         A party petitioning for certiorari review of a discovery order must

demonstrate that the contested order: (1) departs from the essential requirements of

the law; (2) results in a material injury for the remainder of the case; (3) cannot be

corrected on postjudgment appeal. Bd. of Trustees of the Internal Improvement

Trust Fund v. Am. Educ. Enters. LLC, 99 So. 3d 450, 454 (Fla. 2012).

         Trial courts are accorded broad discretion in the treatment of discovery

problems, and such orders reviewed pursuant to a petition for writ of certiorari will

not be overturned absent departure from the essential requirements of law. See

Nestor v. Posner-Gerstenhaber, 857 So. 2d 953, 955 (Fla. 3d DCA 2003)

(“Because the trial court has broad discretion in discovery matters . . . and there



         the scope of the discovery be limited to certain matters; (5) that
         discovery be conducted with no one present except persons designated
         by the court; (6) that a deposition after being sealed be opened only by
         order of the court; (7) that a trade secret or other confidential research,
         development, or commercial information not be disclosed or be
         disclosed only in a designated way; and (8) that the parties
         simultaneously file specified documents or information enclosed in
         sealed envelopes to be opened as directed by the court. If the motion
         for a protective order is denied in whole or in part, the court may, on
         such terms and conditions as are just, order that any party or person
         provide or permit discovery. The provisions of rule 1.380(a)(4) apply
         to the award of expenses incurred in relation to the motion.

                                             8
has been no clear departure from the essential requirements of law which results in

a miscarriage of justice, we deny certiorari review.”) (citation omitted).

    III.   Analysis

       As framed by RaceTrac, the issue on certiorari review is whether rule

1.310(b)(6) prevents a party from deposing officers not identified by the

corporation in response to a rule 1.310(b)(6) notice when the rule 1.310(b)(6)

designee testifies that other officers in the company have the same or similar

knowledge.7,8

       RaceTrac argues that its production of witnesses who had personal

knowledge of the subjects designated in Sewell’s rule 1.310(b)(6) notices fully

complied with the requisites of the rule, and the trial court departed from the




7 Sewell disputes RaceTrac’s characterization of Hunter, Lenker, and Bolch as
having the “same or similar” knowledge as Batchelor. According to Sewell,
Hunter, Lenker, and Bolch have knowledge that is “unique” from Batchelor’s
knowledge.
8  The parties stipulate that Florida has not adopted the “apex doctrine,” which
effectively shields upper level executives and corporate officers from depositions
absent a showing that such top executives and officers have unique or special
knowledge of the events in question and that the party seeking the deposition is
unable to obtain the information from using a less intrusive means. See Gen. Star
Idem. Co. v. Atl. Hospitality of Fla., LLC, 57 So. 3d 238, 239 n.3 (Fla. 3d DCA
2011) (noting that this Court “has not expressly adopted the ‘apex doctrine.’”);
Citigroup Inc. v. Holtsberg, 915 So. 2d 1265, 1269 (Fla. 4th DCA 2005) (“[N]o
reported Florida appellate court opinion has expressly adopted the [apex] doctrine .
. . .”).

                                          9
essential requirements of law by allowing Sewell to depose other RaceTrac officers

who may also have personal knowledge of those subjects. We disagree.

         In 1972, rule 1.310(b)(6) was amended to conform with Federal Rule of

Civil Procedure 30(b)(6) (as amended in 1970). The rule now permits the

deposition of a legal entity through a representative knowledgeable as to

specifically identified issues. After receiving the rule 1.310(b)(6) notice, the entity

must designate the appropriate person or persons to be deposed on the issues

identified in the notice. In re Florida Bar: Rules of Civil Procedure, 265 So. 2d 21,

30 (Fla. 1972) (Committee Note to 1972 amendment); Plantation-Simon Inc. v.

Bahloul, 596 So. 2d 1159, 1160 (Fla. 4th DCA 1992).

         Importantly, rule 1.310(b)(6) expressly provides that the outlined procedure

is not exclusive: “This subdivision does not preclude taking a deposition by any

other procedure authorized in these rules.” Fla. R. Civ. P. 1.310(b)(6). Thus, the

rule appears to contemplate the ability of a party to take additional depositions of

corporate representatives, albeit subject to all general discovery provisions of rule

1.280.

         If a witness identified by an entity pursuant to a rule 1.310(b)(6) notice is

deposed, and identifies another person associated with the entity who may also

have knowledge of the same subject matter identified in the rule 1.310(b)(6)

notice, the trial court is almost always in a better position than the appellate court



                                           10
to determine whether the deposing party is entitled to depose the identified person.

Cf. Plantation-Simon, 596 So. 2d at 1161 (“[T]he trial judge is given discretion to

determine whether either party is misusing this discovery device [simple notice to

the corporate party] . . . . [I]f the trial judge finds that seriatim depositions of

corporate officers has [sic] created a burden on the corporate party, the court is

empowered to alleviate that burden in a proper case by, e.g., limiting the

examining party to the designation procedure.”).

      In such circumstances, rule 1.280(c), governing protective orders, gives the

trial court significant discretion in determining whether such potentially

cumulative depositions should occur, and, if so, what restrictions should be

imposed. See Waite v. Wellington Boats, Inc., 459 So. 2d 425, 426 (Fla. 1st DCA

1984) (“Trial courts must be accorded broad discretion in the treatment of

discovery problems through the employment of the protective provisions

contemplated by Rule 1.280.”).

      In this case, while the trial court allowed the potentially cumulative

depositions, the trial court restricted each deposition to no longer than an hour to

mollify the alleged disruption of RaceTrac’s corporate operations and limit the

potentially redundant or irrelevant testimony.




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      Hence, while we are not unsympathetic to RaceTrac’s position, on this

record, we cannot conclude that the trial court departed from the essential

requirements of law.9

    IV.   Conclusion

      Because RaceTrac has not established that the trial court departed from the

essential requirements of law, its petition for certiorari is denied.

      Petition denied.




9 Our conclusion is based exclusively on the elements we are required to consider
in reviewing whether to grant a petition seeking a writ of certiorari challenging a
discovery order. We offer no opinion as to the relevance of the testimony of the
three corporate officers involved in the purchase of the property almost a decade
before a car accident occurred off of the property; that issue is not before us.

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