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Florida Fourth DCA reverses ruling of trial court striking plaintiff’s pleadings and imposing fees and costs sanction against plaintiff’s legal counsel for alleged bad faith in failing to produce a non-party witness for deposition

On June 12, 2019, in Williams v. Prepared Insurance Company, No. 4D18-692, a breach of homeowners insurance contract lawsuit, the Florida Fourth DCA  reversed a ruling of the trial court which had struck plaintiffs’ pleadings and imposed a fees and costs sanction against the plaintiffs’ counsel for alleged bad faith in failing to produce a non-party witness for deposition. The non-party witness was initially described by the plaintiffs’ counsel as a “loss consultant” in pre-suit correspondence and the defense issued a notice of deposition to him prior to the plaintiffs’ filing of their trial witness list.  When he did not appear for the deposition, the trial court  directed the plaintiffs as a sanction to reimburse the insurance company.  The plaintiffs subsequently listed another individual as their expert witness but included the original non-party witness as a fact witness.  After he again failed to appear for deposition, the trial court directed plaintiffs’ counsel to provide a better address for a subpoena.  The plaintiffs provided an address and simultaneously amended their witness list to exclude him as a witness. The defense was able to obtain service on the non-party witness at the address provided by plaintiffs, but he again failed to appear for his scheduled deposition, resulting in the sanctions discussed above.

On appeal, the Fourth DCA noted that the trial court did not cite to any authority requiring the plaintiffs’ law firm produce the non-party witness for deposition.  The Fourth DCA stated that the witness “is not the type of witness a party is required to produce, such as an expert or corporate representative. Cf. State Farm Mut. Auto. Ins. Co. v. Swindoll, 54 So. 3d 548, 552 (Fla. 3d DCA 2011); Precision Tune Auto Care, 804 So. 2d at 1288. He is a fact witness. While sanctions can be based on a party’s failure to provide an address for its witness, see Jones v. Publix Super Markets, Inc., 114 So. 3d 998, 1004 (Fla. 5th DCA 2012), the trial court’s findings reflect that the law firm did provide a valid address—the Orlando address—and that [the witness] was served there. The trial court did not find that the Orlando address was not provided in a timely fashion.”  The Fourth DCA additionally noted that while the “inequitable conduct” doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith, see Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998), the doctrine is rarely applicable and is reserved for those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons. In the instant case, the Fourth DCA concluded that plaintiffs’ counsel had not even been under a duty to produce the witness for deposition, much less acted in bad faith in failing to do so.