neWfloridaCaSeholdingmayimpaCThoWWeprepforCrdepo
Trial & litigation Section
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examine the documents used by a witness so that they may be able to cross examine regarding the testimony provided . See Soler v . Kukula , 297 So . 2d 600 , 601-02 ( Fla . 2d DCA 1974 ). As a result , this order violates Section 90.613 of the Florida Statutes ( 2023 ) which addresses material reviewed by a deponent while testifying at a discovery deposition . The statute provides that : “ When a witness uses a writing or other item to refresh memory while testifying , an adverse party is entitled to have such writing or other item produced at the hearing , to inspect it , to crossexamine the witness thereon , and to introduce it , or , in the
case of a writing , to introduce those portions which relate to the testimony of the witness , in evidence .” § 90.613 , Fla . Stat . ( 2023 ). The Third District noted that the statute was clear and unambiguous and held that if a witness relies on a written document during a deposition to refresh their recollection , then those portions of the document that relate to the witness ’ s testimony must be produced to the opposing party — resulting in a waiver of the privilege . In summary , if a witness looks at a document to refresh their recollection while testifying , any privileged asserted is waived and opposing counsel will be allowed to see the document and ask questions .
The Third District continued by affirming that the Order in the
instant case allowed Citizen ’ s Corporate Representative to bypass the statute without “ any mechanism for post-judgment review .”
Take aways : Corporate Representatives should not look at privileged documents during the deposition — even if you have a protective order allowing so — to ensure your privilege is not waived . n
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Hamilton v . Citizens Property Insurance Company , 49 Fla . Weekly . D931 ( Fla 3rd DCA May 1 , 2024 ).
Author : Amy Currotto – Banker Lopez Gassler
Appellate Law Section & Trial and Litigation Section Hold Joint CLE
TheappellatelawandTrialandlitigationSectionsheldajointCleonoctober3 , tolearntheinsandoutsonfilingamicusbriefings . Theesteemed paneliststhatspokeonthesubjectincludedJudgematthewC . lucaswithSeconddistrictCourtofappeal ; formerJudgeSamuelJ . Salario , Jr ., whoserved asajudgeattheSeconddistrictCourtofappeal , andisnowashareholderatlawsonhuckgonzalezpllC ; andJohnmills , afloridabarboard-certified appellatespecialistatbishop , page & mills , whoiscurrentlytheamicusChairforthefloridaJusticeassociation . ThepanelwasmoderatedbyJudge Thomasn . palermowiththeThirteenthJudicialCircuit . Wethankthepanelistsforsharingtheirexpertisewiththeattendees .
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