By: Scott J. Kennelly and Jacy C. Owens
Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony of other witnesses. Although witness sequestration during trial is routine, Florida law is less clear on whether attorneys can utilize this procedure during a deposition. Currently, there is a circuit split on this issue and thus, for the moment, the procedure may depend on where the lawsuit is filed.
In Dardashti v. Singer , Florida had not yet implemented § 90.616, but the Fourth District Court of Appeal announced that the “unwritten rule” of sequestration applied to depositions, so a judge must exclude prospective witnesses upon request. On the other hand, the First District Court of Appeal in Smith v. S. Baptist Hosp. of Florida, Inc. , declined to apply the sequestration rule to depositions. Instead, the court held that the party seeking to exclude prospective witnesses must obtain a protective order from the judge to that effect. The court based its ruling on a comparison to the federal evidence and civil procedure rules, which apply the sequestration rule only to hearings and trials.
It is worth mentioning that the legislative notes for § 90.616 specifically reference the Fourth DCA’s opinion in Dardashti , rather than the First DCA’s opinion in Smith , which may suggest that the Legislature intended that the rule of sequestration should apply to depositions. Still, practitioners handling cases within the First District may cite Smith in their attempts to “invoke the rule” of sequestration during depositions.
Finally, regardless of the application of the sequestration rule, certain categories of witnesses—a party (either an individual or a corporate party’s representative), a person whose presence is shown to be essential to the presentation of the party’s cause, or the victim or next of kin in criminal cases—may not be excluded.