Wednesday, November 17, 2010

Order Allowing Deposition After Withdrawn Affidavit Quashed

In Urbanek v. Urbanek (4D10-3478), the Fourth District granted a petition for certiorari and quashed the trial court's order allowing the deposition of a person after that persons affidavit had been withdrawn from the case.  The petitioner had asserted the "psychotherapist-patient  privilege  to  prevent respondent(s)  from  deposing  his  psychologist  who  had previously furnished  the  court with  an affidavit."  The court stated that:
Petitioner subsequently withdrew the affidavit.  Respondent’s position is that the any privilege was waived and the waiver cannot be revoked.
We grant the petition and quash  the order.  We hold  that any  initial waiver  of  the privilege was  revoked when petitioner withdrew the affidavit..... Petitioner submitted the affidavit in response to an affidavit submitted by Gerald Urbanek in connection with issues which were, and remain,  collateral to the underlying indemnification claim.  Also, respondent has not demonstrated that the substance of the affidavit is tied to petitioner’s answer, affirmative defenses or counterclaim.


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