               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



SYBAC SOLAR, GMBH, f/k/a SYBAC        )
SOLAR, AG, a Foreign Corporation,     )
                                      )
        Petitioner,                   )
                                      )
v.                                    )               Case No. 2D16-2624
                                      )
6th STREET SOLAR ENERGY PARK          )
OF GAINESVILLE, LLC,                  )
                                      )
        Respondent.                   )
_____________________________________ )

Opinion filed April 5, 2017.

Petition for Writ of Certiorari to the
Circuit Court of Polk County, Keith P.
Spoto, Judge.

Michael M. Brownlee and J. Brock
McClane of Fisher Rushmer, P.A., Orlando,
and John H. Adams, Cecily M. Welsh, and
Alan Bookman, of Emmanuel Sheppard &
Condon, Pensacola, for Petitioner.

Daniel A. Fox and Benjamin W. Hardin, Jr.,
of Hardin & Ball, P.A., Lakeland, for
Respondent.


SILBERMAN, Judge.

              Sybac Solar, GMBH, seeks certiorari review of an order granting a motion

to compel deposition filed by 6th Street Solar Energy Park of Gainesville, LLC. 6th
Street sought to depose Christian Rautenberg as Sybac's corporate representative in

furtherance of 6th Street's counterclaim for defamation against Sybac based on

Rautenberg's alleged statements. We conclude that it was a departure from the

essential requirements of the law to require Rautenberg to testify as Sybac's corporate

representative regarding matters on which the two have adverse interests. Accordingly,

we grant the petition.

                In December 2012, Sybac filed a complaint against 6th Street to recover

approximately $6 million Sybac allegedly loaned 6th Street to develop a solar power

plant in Gainesville. In April 2015, 6th Street served a notice of deposition on Sybac

seeking to depose a corporate representative pursuant to Florida Rule of Civil

Procedure 1.310(b)(6) (2011). Sybac produced two representatives, Konstantin Sassen

and Laura Tyson, who testified for over two days. 6th Street then noticed Rautenberg

for deposition as a corporate representative. In November 2015, Rautenberg testified

as the corporate representative but on advice of counsel refused to answer any

questions pertaining to a meeting held on December 20, 2013. Statements Rautenberg

allegedly made at this meeting are the subject of a separate defamation action filed by

one of 6th Street's founding partners against Rautenberg individually and against Sybac

for vicarious liability.

                In December 2015, 6th Street filed an amended counterclaim in this case

adding a defamation count against Sybac in which it asserted that Rautenberg made

the alleged defamatory statements on December 20, 2013, as an agent of Sybac.

Sybac answered the counterclaim and filed affirmative defenses. Among other things,

Sybac asserted that it did not approve the December 20, 2013, meeting; that it did not




                                            -2-
ratify any statements Rautenberg made at the meeting; and that Rautenberg was not

acting as Sybac's agent when he allegedly made the defamatory statements.

              6th Street filed a motion to compel in which it requested, among other

things, that Rautenberg be compelled to give a deposition as corporate representative

of Sybac and answer deposition questions regarding the December 20, 2013, meeting.

After a hearing in April 2016, the trial court granted the motion to compel, ordered

Rautenberg to appear for a continued deposition as Sybac's corporate representative,

and required Rautenberg to answer "[a]ll questions in any way concerning" the

December 20, 2013, meeting. This petition for certiorari followed.

              To be entitled to certiorari relief, "[a] petitioner must establish (1) a

departure from the essential requirements of the law, (2) resulting in material injury for

the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Barker

v. Barker, 909 So. 2d 333, 336 (Fla. 2d DCA 2005) (quoting Parkway Bank v. Fort

Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). The last two

elements are jurisdictional and must be addressed before this court can reach the

merits of the petition. Id.

              Generally speaking, orders compelling depositions often result in material

injury that cannot be corrected on appeal, or irreparable harm, because once the

information is released, any damage cannot be undone. Univ. of W. Fla. Bd. of Trs. v.

Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013); Horne v. Sch. Bd. of Miami-Dade

Cty., 901 So. 2d 238, 240 (Fla. 1st DCA 2005). This case involves irreparable harm

arising from the intended use of Rautenberg's deposition testimony as Sybac's

corporate representative to bind Sybac. See Carriage Hills Condo., Inc. v. JBH Roofing




                                             -3-
& Constructors, Inc., 109 So. 3d 329, 335 (Fla. 4th DCA 2013) ("When a Rule

1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee

'is deemed to be the testimony of the corporation itself.' " (quoting State Farm Mut. Auto.

Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D. Pa. 2008))).

              On the merits, Sybac argues that the circuit court departed from the

essential requirements of the law by failing to apply "the plain and unambiguous

language" of rule 1.310(b)(6) granting a corporation the sole authority to designate its

corporate representative. Sybac claims that rule 1.310(b)(6) does not authorize the

deposing party to unilaterally name a person to testify on behalf of the corporation,

especially when that person has adverse interests to the corporation.

              Rule 1.310(b)(6) circumscribes the procedure for noticing the deposition of

a corporation as follows:

              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.

(Emphasis added.) The substance of this rule was taken from an amendment to

Federal Rule of Civil Procedure 30(b)(6), which is rule 1.310(b)(6)'s federal counterpart.

Carriage Hills, 109 So. 3d at 334. Under these rules, the party seeking to depose a

witness must describe the subject for examination with reasonable particularity. The

corporation must then produce a witness to testify regarding this subject matter. Id.



                                           -4-
              The corporation is not required to designate "the witness with the 'most

knowledge' " of the designated subject matter; indeed the witness is not required to

have any personal knowledge whatsoever. Id. And there may be a good reason why a

corporation does not produce the most knowledgeable witness for deposition. Id. at

335. For example, the person with the greatest knowledge of the subject matter "may

not totally embrace the corporation's position." Id. Instead, the corporation is required

to prepare the designated witness to testify regarding the designated subject matter. Id.

at 334. The rule thus "streamlines the discovery process and gives the corporation

being deposed more control by permitting it to select and prepare a witness to testify on

its behalf." Id. at 335.

              That said, the corporation does not have sole control over which of its

corporate officials may be deposed. See Racetrac Petroleum, Inc. v. Sewell, 150 So.

3d 1247, 1252 (Fla. 3d DCA 2014); Plantation-Simon, Inc. v. Bahloul, 596 So. 2d 1159,

1160-61 (Fla. 4th DCA 1992). Rule 1.310(b)(6) expressly states that the procedures

therein are not exclusive: "This subdivision does not preclude taking a deposition by

any other procedure authorized in these rules." As further explained in the committee

notes to rule 1.310(b)(6)'s federal counterpart:

              This procedure supplements the existing practice whereby
              the examining party designates the corporate official to be
              deposed. Thus, if the examining party believes that certain
              officials who have not testified pursuant to this subdivision
              have added information, he may depose them. On the other
              hand, a court's decision whether to issue a protective order
              may take account of the availability and use made of the
              procedures provided in this subdivision.

Plantation-Simon, 596 So. 2d at 1160 (quoting Fed. R. Civ. P. 30(b)(6) advisory

committee's note to 1970 amendment).



                                           -5-
              Therefore, even though a corporation has the sole responsibility for

choosing its corporate representative under rule 1.310(b)(6), the deposing party is not

necessarily limited to deposing only that witness. Racetrac Petroleum, 150 So. 3d at

1252; Plantation-Simon, 596 So. 2d at 1161. But the deposing party does not have the

unilateral authority to select the corporate representative who shall testify on behalf of

the corporation. Racetrac Petroleum, 150 So. 3d at 1252; Chiquita Int'l Ltd. v. Fresh Del

Monte Produce, N.V., 705 So. 2d 112, 113 (Fla. 3d DCA 1998); Plantation-Simon, 596

So. 2d at 1161. Instead, the deposing party's request to depose a specific corporate

representative is subject to the circuit court's discretion to issue a protective order.

Racetrac Petroleum, 150 So. 3d at 1252; Plantation-Simon, 596 So. 2d at 1161-62.

              Accordingly, the trial court was not bound by Sybac's selection of Sassen

and Tyson as Sybac's corporate representatives or 6th Street's request to depose

Rautenberg as Sybac's corporate representative. Instead, the trial court should have

considered whether, as argued by Sybac, Rautenberg's interests were so adverse to

Sybac's that he would not be an appropriate corporate spokesperson. Based on

Sybac's defense to 6th Street's defamation counterclaim, Rautenberg's interests appear

to be directly adverse to those of Sybac, and he was therefore an inappropriate

spokesperson for the corporation. See Sanders v. Circle K Corp., 137 F.R.D. 292, 294

(D. Ariz. 1991) (denying a motion to compel the deposition of a named corporate

representative because he was accused of sexual harassment and discrimination and it

was in his interest to argue that he acted in the course and scope of his employment

while it was in the employer's interest to argue he was not).




                                             -6-
              We conclude that it was a departure from the essential requirements of

the law for the circuit court to require Rautenberg to testify as Sybac's corporate

representative regarding matters on which the two have adverse interests. Accordingly,

we grant the petition for certiorari and quash that portion of the order requiring

Rautenberg to answer "[a]ll questions in any way concerning" the December 20, 2013,

meeting as a corporate representative. In so doing, we note that 6th Street is not

precluded from noticing the deposition of a different corporate representative in

furtherance of the defamation counterclaim or from noticing the deposition of

Rautenberg in his individual capacity.

              Petition granted; order quashed in part.


SLEET and BADALAMENTI, JJ., Concur.




                                            -7-
