Les Violins, Inc. v. Alzamora

PER CURIAM. Petitioner Les Violins, defendant below, petitions for a writ of certiorari to review a protective order providing that the deposition of respondent Juan Alzamora, plaintiff below, not be taken until three days before trial. No response to the petition was submitted by respondents. The suit below is a slip-and-fall case brought by respondent Beatriz Alzamora. Her husband Juan Alzamora has joined as plaintiff seeking damages for loss of consortium. He was also a witness of his wife’s fall on petitioner’s premises. Petitioners are both residents of Venezuela. The trial court has great discretion with respect to discovery matters. Trial court orders have been sustained which require appearance of a plaintiff for his or her own deposition a relatively short time before trial. Compare Godshall v. Hessen, 227 So.2d 506, 508 (Fla. 3d DCA 1969) (citing City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955)) (nonresident plaintiff must appear for deposition within the jurisdiction “usually a short time before trial”) (dictum), cert. denied, 237 So.2d 530 (Fla.1970) with Rose v. Brouwer, 253 So.2d 279 (Fla. 1st DCA 1971) (order restricting taking of plaintiff’s deposition to 72-hour period pri- or to trial “presumptively limited the defendant’s ability to prepare for the trial”). The justification for such an order is inherently fact-specific, and must be evaluated in the circumstances of the individual case. In the instant case, respondent has failed to respond to petitioner’s contention that it will be prejudiced by the failure of respondent to appear for deposition until the eve of trial, given that respondent is both a claimant and material witness. The deposition, according to petitioner, would come too late to be useful in preparation for trial. We treat respondents’ failure to respond as a concession of the correctness of petitioner’s argument as applied to the facts of this case. We therefore grant the petition and quash the order under review insofar as it prevents petitioner from taking the deposition of Juan Alzamora in Dade County, Florida, on reasonable notice at any time.