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Judge sides with FLCGA to grant deposition of state health official in COVID-19 records lawsuit

December 3, 2021 by FLCGA Programs Coordinator CD Davidson-Hiers

A Tallahassee judge granted a motion Wednesday to allow a deposition of an as yet unnamed corporate representative of the Florida Department of Health to answer questions about the state’s refusal to release daily COVID-19 records.

This is the latest movement in litigation against the Florida Department of Health, co-filed by FLCGA and Florida Rep. Carlos Smith, over the state’s refusal to release previously available COVID-19 data at the county level.

But there will be further delays in questioning the DOH official, as Leon County Circuit Court Judge John Cooper simultaneously granted an immediate stay of his ruling until an appellate court rules on the same matter. No new trial dates will be set until the matter is settled.

At issue is whether attorneys representing Smith and the FLCGA can depose former Florida Surgeon General Scott Rivkees, or a corporate representative in his place, to answer questions about public information and protocols related to COVID-19 data. The state has argued that Rivkees had no “unique information related to the existence” of the reports.

During the hearing, Attorney Rick Figlio with law firm Ausley McMullen — representing the state health department — argued that involving a corporate representative would be burdensome and was irrelevant to the case.

Cooper asked Figlio whether the attorney thought the state’s position was a “Catch-22.”

“The information is public records, you can have it, but you can’t ask anybody about it,” Cooper said.

Figlio argued against the characterization.

“I think it’s a matter of barking up the wrong tree,” he said.

Andrea Mogensen of the firm Andrea Flynn Mogensen, representing the FLCGA and Smith, argued that the broad scope of the research involved with the case made deposing the corporate representative relevant.

After Cooper sided with the FLCGA and Smith on the matter, he immediately stayed his own ruling until an appellate court can weigh in, which concluded the hearing.

To read a copy of the lawsuit filed by FLCGA, click here.