Clarke v. Coca-Cola Refreshments USA, Inc., 3D18-1289

• Decision Date: 04 September 2019
• Docket Number: No. 3D18-1289,3D18-1289
• Citation: 282 So.3d 897
• Parties: Corinna CLARKE, Appellant, v. COCA-COLA REFRESHMENTS USA, INC., et al., Appellees.
• Court: Florida District Court of Appeals

282 So.3d 897

Corinna CLARKE, Appellant,

v.COCA-COLA REFRESHMENTS USA, INC., et al., Appellees.

No. 3D18-1289

District Court of Appeal of Florida, Third District.

Opinion filed September 4, 2019.

Navarro McKown, and Luis F. Navarro, Coral Gables, for appellant.

Weinberg Wheeler Hudgins Gunn & Dial, LLC, and Lawrence E. Burkhalter, Kate D. Spinelli and Kyle R. Jackson, Sr., Miami, for appellees.

Before SALTER, SCALES and LOBREE, JJ.

SCALES, J.

In 2013, a truck belonging to appellee Coca-Cola Refreshments USA ("Coca-Cola") was involved in a two-vehicle accident that caused the truck to crash into a home where appellant Corinna Clarke ("Clarke") lived. Members of Clarke's family who also either occupied or owned the home filed a negligence lawsuit against Coca-Cola (the "First Lawsuit"). On the eve of the First Lawsuit's trial, plaintiffs voluntarily dismissed the First Lawsuit, which prompted the trial court to tax costs against the plaintiffs.¹

After the dismissal of the First Lawsuit, Clarke – who was not a party in that action, but who is represented by the same counsel who represents the First Lawsuit's plaintiffs – filed her own negligence lawsuit against Coca-Cola (the "Clarke Lawsuit"). In her amended complaint, Clarke sought damages for lost personal property and displacement from her home as a result of the accident.

During the pendency of the Clarke Lawsuit, Clarke sought to depose the Coca-Cola truck driver, Kenroy Buckle, and to obtain production of documents from him. Coca-Cola sought a protective order on the ground that, in the First Lawsuit, Mr. Buckle already had responded to multiple discovery requests, including sitting for two lengthy depositions, on the same subject matter. On February 8, 2018, the trial court granted the protective order as to Mr. Buckle's deposition only (noting a lack of objection by Coca-Cola to Clarke using the deposition transcripts from the First Lawsuit), and allowed other discovery sought by Clarke to proceed. Subsequently, Coca-Cola moved for summary judgment, and, on May 21, 2018, the trial court entered final summary judgment in favor of Coca-Cola.²

We have jurisdiction to review the protective order. Fla. App. R. Proc. 9.110(h). A trial court "for good cause shown" may enter a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fla. R. Civ. P. 1.280(c) ; Beekie v. Morgan, 751 So. 2d 694, 697 (Fla. 5th DCA 2000). In this case, the trial court recognized a hardship on Mr. Buckle to sit for another deposition, only to be questioned by the same attorney who had deposed him twice already.

While we understand the practical efficiencies the trial court sought to advance, we conclude that the trial court did not sufficiently consider and balance Clarke's due process right to full discovery. The trial court denied the protective order for all discovery except the Buckle deposition. Yet, "oral depositions are considered essential by most trial attorneys." Beekie, 751 So. 2d at 697. That Clarke had not participated in the earlier case in which Mr. Buckle was deposed was a factor too important to disregard in the granting of Coca-Cola's motion...