Dardashti v. Singer, 81-2338
| Decision Date | 06 January 1982 |
| Docket Number | No. 81-2338,81-2338 |
| Parties | David DARDASHTI, Petitioner, v. Harold H. SINGER, Respondent. |
| Court | Florida District Court of Appeals |
Kenneth J. Scherer of Cohen & Scherer, P. A., North Palm Beach, for petitioner.
Lake Lytal, Jr., of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for respondent.
Before us is a petition for common law certiorari, challenging the trial court's order which denied a motion to compel sequestration of the Plaintiff's wife during the taking of his deposition by the petitioner defendant. We grant certiorari and reverse.
To the unsophisticated, it all sounds deceptively simple. One would suppose that when a party seeks the deposition of the other side's non-party witnesses, and is fearful that they will tailor their answers in support of each other, he simply "invokes the rule" 1 whereupon all but the particular witness to be deposed are excused as a matter of course. However, such a supposition would be wrong because there is no precise rule written down in Florida and whether a witness need be excused has been by no means a matter of course and has remained within the province of a trial judge's discretion. Spencer v. State, 133 So.2d 729 (Fla.1961) cert. denied 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). Needless to say, the trial judge is seldom present at pre-trial depositions and uncertainty as to how he might later rule has sometimes been used as a strategem to discomfit the proponents of the sequestration. However, based on the record before us we find that, in this instance, the trial judge abused his discretion and that prejudice will result therefrom which cannot be remedied by plenary appeal. Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1981).
We begin with an examination of the Spencer case first above cited. Therein the Supreme Court clearly stated that "ordinarily, when requested by either side, the trial judge will exclude all prospective witnesses from the courtroom" (Id. at 731, emphasis supplied). True, the Spencer court went on to hold that there was no abuse of discretion for failure to sequester witnesses in that case, but in so doing made much of the fact that the particular witnesses were police officers whose interest in the outcome was "not apt to be personal" Id. at 731. Moreover, the court explained that the reason why witnesses, other than impartial ones, are ordinarily excluded is to "avoid the coloring of a witness's testimony by that which he has heard from other witnesses" Id. at 731. Such a shading of testimony is a definite present threat under the facts presented in this petition.
The complaint below sounds largely in breach of an oral contract which the petitioner defendant vehemently denies and affirmatively avoids. In the conduct of his defense, petitioner, inter alia, filed interrogatories upon the plaintiff husband seeking information pertinent to the alleged breach and requesting the names of all those who might bear witness against him. Replying to these interrogatories the plaintiff on no less than fourteen occasions names his wife as a witness who was present during the alleged negotiations, conversations or expenditures and who will presumably support his allegations. As such, her testimony may well be vital to the success of her husband's claims and her testimony patently "apt to be personal."
It is not enough to suppose that the average husband and wife will have long since dove-tailed their versions of the facts so that no prejudice can result. This is so because they can have little advance warning during a deposition of unexpected and oblique questions requiring instantaneous response. To permit the one to sit and absorb the answers of the other in a case such as this obviously facilitates the very "coloring of a witness's testimony" frowned on by our Supreme Court...
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