Third District Court of Appeal
State of Florida
Opinion filed September 30, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D26-1657
Lower Tribunal No. 26-5314-CA-01
Jane Doe,
Petitioner,
vs.
John Doe,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
Link & Rockenbach, P.A., and Kara Rockenbach Link (West Palm Beach); Edwards Henderson, PLLC, and Bradley J. Edwards, Brittany N. Henderson, and Dean M. Kaire (Fort Lauderdale), for petitioner.
Reizenstein & Associates, and Philip Louis Reizenstein, for respondent.
Before LOGUE, MILLER, and GOODEN, JJ.
LOGUE, J.
In this matter, Jane Doe petitions for a writ of certiorari quashing an
order blocking her from deposing John Doe who sued her for defamation.
For the reasons set forth below, we grant the petition and quash the order
under review.
BACKGROUND
In the underlying case, on March 13, 2026, John Doe, a plastic surgeon
(“the Doctor”), sued Jane Doe, one of his patients (“the Patient”), for
defamation and intentional infliction of emotional distress, seeking damages,
injunctions, and other relief. In his complaint, the Doctor alleged he had
consensual sex with the Patient in his medical office in October of 2025. He
asserted the Patient defamed him by claiming the sexual encounter rose to
the level of a non-consensual sexual assault while she was sedated. He also
asserts she violated his rights to privacy by recording the sexual encounter
without his consent in violation of section 934.01, et seq., Florida Statutes.
He further alleged that he recorded the sexual encounter, with her written
consent, and the recording shows the encounter was consensual.
Shortly after the complaint was filed, the Patient reported the sexual
encounter to the police, who arrested the Doctor on three counts of Sexual
Battery on a Physically Helpless Victim under section 794.011(4), Florida
Statutes. According to unverified materials filed in this Court by the Doctor,
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the State Attorney is still reviewing the matter to decide whether to file
criminal charges. According to unverified materials filed in this Court by the
Patient, another patient has come forward and made similar accusations
against the Doctor.
On March 21, 2026, within days of the Doctor filing his complaint, the
Patient filed a notice of taking the Doctor’s video deposition. On April 1, 2026,
the Doctor moved for a protective order asserting he faced a dilemma
concerning choosing to either testify regarding his claim or assert his rights
against self-incrimination under the Fifth Amendment to the United States
Constitution. The trial court agreed the dilemma justified a protective order,
at least in the short term, and on May 19, 2026, it entered a 30-day protective
order, which stated that:
1. Discovery directed to the Plaintiff [the Doctor], including
his deposition, is stayed pending the filing decision of the
Dade County State Attorney’s Office as to the felony
charge or charges for which the Defendant [the Patient]
is the complaining witness (“the Pending Charges”), a
decision which was estimated to occur within thirty (30)
days of the date of Plaintiff’s arrest. If no decision has
issued within thirty (30) days of the arrest (or if leave to
extend this time for a reasonable time thereafter is
requested by the State and granted by the Criminal
Court) this Court will revisit the Motion.
2. If the State files any of the Pending Charges, the Motion
is denied, and either the Plaintiff or the Court will dismiss
this action without prejudice.
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3. If the State declines to file any of the Pending Charges,
the Motion is denied as moot.
After the first order expired, the trial court reheard the matter. In the
course of the hearing, the trial court indicated it had decided to extend the
protective order another 90 days, allowing all discovery to go forward except
for the Doctor’s deposition. The July 20, 2026 written order, however, made
no reference to an end-date to the protective order:
THIS CAUSE, having come before the Court on July
16, 2026, on the Rehearing of Plaintiff’s Corrected Motion
for Protective Order to Stay Civil Discovery and to Quash
Noticed Deposition based on the Fifth Amendment Privilege
Against Compelled Self-Incrimination, originally heard on
May 12, 2026, and the Court having read the pleadings and
heard the arguments of both parties, and being otherwise
fully advised in the premises, it is hereby . . .
ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion is Granted in Part and Denied in Part.
2. Discovery in this matter is stayed as to Plaintiff’s
deposition. All other discovery can proceed. Any written
discovery propounded on the Plaintiff will be answered or
Plaintiff may invoke any applicable privileges.
In the meantime, the Doctor has noticed the Patient for deposition. The
Patient timely filed this petition.
ANALYSIS
The requirements for issuance of certiorari are well known. “Properly
stated in its modern form, which puts the jurisdictional element first, a party
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seeking a writ of certiorari must establish ‘(1) a material injury in the
proceedings that cannot be corrected on appeal (sometimes referred to as
irreparable harm); and (2) a departure from the essential requirements of the
law.’” Schaeffer v. Medic, 394 So. 3d 128, 130–31 (Fla. 3d DCA 2024)
(footnote omitted) (quoting Nader v. Fla. Dep’t of Highway Safety & Motor
Vehicles, 87 So. 3d 712, 721 (Fla. 2012)).
The Patient argues, and we agree, that this case is controlled by Perez
v. Gallego, 354 So. 3d 614, 616 (Fla. 3d DCA 2023), which apparently was
not cited to the trial judge. In that case, Gallego sued two police officers
based upon an investigation they conducted. When criminal charges were
filed against Gallego (based on the investigation), she moved to stay the
lawsuit she filed against the officers citing her Fifth Amendment right against
self-incrimination. Id. The trial court stayed the case and the officers
petitioned for certiorari quashing the stay. Id. We found the stay caused the
officers irreparable harm and departed from the essential requirement of law
and accordingly issued the writ and quashed the order. Id.
The core rationale for our decision in Perez was that plaintiffs and
defendants stand in different postures when they are asserting a Fifth
Amendment privilege in a civil lawsuit. “Importantly,” we reasoned, “Gallego
presented no case to the trial court, and similarly provides no authority in
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opposition to the petition, in which a court grants a stay at the invitation of a
plaintiff seeking to invoke her Fifth Amendment protection against selfincrimination.” Id. at 617. “To the contrary,” we noted, “well-settled law
explains that the Fifth Amendment can't be used as a sword and a shield,
which is exactly what Gallego attempts to do by asserting Fifth Amendment
protections as a basis to stay her lawsuit as a plaintiff.” Id.
In the instant case, the Doctor similarly provides no case which held a
plaintiff could continue to prosecute its claim and depose the defendants
while being protected from being deposed for the purpose of protecting his
options whether to assert a potential Fifth Amendment claim. This
arrangement gives a plaintiff an unusual advantage, which may be justified
in some circumstances or for short periods of time, but is not justified by the
facts in this record.
The Doctor attempts to distinguish Perez on several grounds. He notes
that in Perez the order that was quashed stayed the entire case while here
all discovery was allowed to proceed except for his deposition. We do not
think this difference adequately distinguishes Perez. “It has long been
recognized that oral depositions offer a better opportunity to determine the
true nature of past events in contrast to written interrogatories.” Fla. Keys
Boys Club, Inc. v. Pelekis, 265 So. 2d 58, 59 (Fla. 3d DCA 1972). Deposing
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a party is a more effective and powerful method of discovery than simple
interrogatories for obvious reasons. Beekie v. Morgan, 751 So. 2d 694, 697
(Fla. 5th DCA 2000) (“Oral depositions are live—questioning and receiving
responses from a witness. They permit a wider expanse of questions and
cross-examination on a broad range of issues, and provide a good test for
witnesses and potential theories that might be used at trial. They are used
by attorneys to assess the character and personality of a witness, to learn
what his or her answers will be at trial, and to explore areas of previously
unknown relevant inquiry which are follow-ups from the witness’ answers.
They also enable an attorney to estimate how the jury will perceive the
witness, how prepared a witness is to explain matters, and the extent of his
knowledge.”). Indeed, in some sense, the facts in the instant case are more
favorable to the issuance of a writ because the order under review allows the
plaintiff Doctor to depose the defendant Patient while protecting the Doctor
from being deposed.
The Doctor also notes that the stay at issue in this case is limited
because the trial court’s oral remarks suggested he intended to limit the stay
to no more than 90 days. The problem with this argument is that the 90-day
limitation was not included in the order under review, which appears to have
been drafted by the Doctor’s attorneys. As written, the order establishes an
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indefinite stay.
Our ruling leaves the Doctor with substantial options. The Doctor could
dismiss his case and refile when he is prepared to either testify or assert the
privilege, an option referenced in the trial court’s first order. Or, as we noted
in Perez, he “would have the right, where appropriate, to assert the Fifth
Amendment privilege against self-incrimination with respect to specific
questions or discovery and the court would have the right to make the
appropriate inference, or strike pleadings to the extent such an assertion
goes to the heart of the relief sought.” Perez, 354 So. 3d at 618.
Petition granted; order quashed.
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