Florida - CONFIDENTIALITY and PRIVILEGES
Communications between 2 school district employees and district’s lawyer not privileged, per Second DCA. [Added 8/10/22]
The Collier County School District (the “District”) had its general counsel investigate complaints against a charter school (“Mason”). In the course of the investigation the District’s counsel interviewed 2 District employees, Delgado and Rogers, “as part of the fact-finding process in his investigation of Mason.” The counsel subsequently issued an investigative report regarding Mason, which is public record.
Mason sued the District and others alleging tortious interference and conspiracy. Neither the District nor the two employees were parties to the action. Mason deposed Delgado and asked her what she had discussed with the District’s counsel. The District objected on grounds of attorney-client privilege. Mason moved to compel Delgado to testify, arguing that the conversations in question were not privileged. The trial court held a hearing and then ruled that the District failed to establish its claim of privilege.
The District appealed to the Second DCA, which treated the filing as a petition for writ of certiorari. The appellate court denied the petition, concluding that “the trial court did not depart from the essential requirements of the law in determining that the School District failed to establish its claim of attorney-client privilege.”
The party claiming the attorney-client privilege bears the burden of establishing it. Not all communications between an employee and the employer’s lawyer are protected by the privilege. In the corporate context, in fact, privilege claims are subject to heightened scrutiny. See S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377 (Fla. 1994). In order for a communication to be privileged, it must be made for the purpose of obtaining legal services. The appeals court summarized: “In the present case, the School District simply did not establish that either employee consulted with the attorney for the purpose of obtaining legal services. . . . [T]he School District neither asserted nor offered evidence that either employee consulted with the attorney for the purpose of obtaining legal services.” Collier County Public Schools v. Mason Classical Academy, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D21-1602, 6/29/2022), 2022 WL 2334686.
Fifth DCA denies certiorari petition by party seeking to quash order compelling production of billing records received from its lawyer. [Added 7/21/22]
Eagle Vista successfully sued Beacon Park for declaratory judgment and breach of contract. Eagle Vista then moved for an award of attorney’s fees, which the court granted. Eagle Vista filed a request for production of “any and all statements, bills, and invoices for legal services provided on . . . behalf [of Beacon Park] in this action . . . includ[ing] . . . the corresponding hours and hourly rates charged for each entry.” Beacon Park objected on the grounds of relevance and attorney-client privilege. Eagle Park filed a motion to compel. “After a hearing, the trial court orally found the requested records to be relevant but entered an unelaborated order that granted Eagle Vista’s motion and directed that Beacon Park’s counsel’s billing invoices be produced.”
Seeking to quash the production order, Beacon Park petitioned the Fifth DCA for a writ of certiorari. The appellate court denied the petition because Beacon Park failed to show that the order departed from the essential requirements of law and left to adequate remedy on plenary appeal.
The Florida Supreme Court has ruled that “the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested.” Paton v. GEICO General Ins., 190 So.3d 1047, 1052 (Fla. 2016). In Paton, the Court stated that “the entirety of the[se] billing records are not privileged, and where the trial court specifically states that any privileged information may be redacted, the plaintiff should not be required to make an additional special showing to obtain the remaining relevant, non-privileged information.” Id. The Fifth DCA rejected Beacon Park’s attempt to limit Paton to fee claims against insurance companies.
The trial court’s order did not address the possibility that some information in the billing records might be privileged and so should be redacted, “such as mental impressions or opinions of counsel.” But Beacon Park made no request for redactions, even after the court announced it would require production. Further, a billing history that Beacon Park’s counsel prepared and included with the response to the motion to compel listed the legal services performed and, the appeals court noted, had no redactions “nor, for that matter, does it appear that any redactions would be required as none of the entries shows any mental impressions or opinions of counsel.”
The court summarized: “Under these circumstances, and though the trial court did not directly address the claim of privilege in its order, we conclude that Beacon Park has not sufficiently shown that it has or will suffer irreparable harm resulting from the subject discovery order. We therefore dismiss its petition for lack of jurisdiction.”
In a footnote, the court pointed out that Eagle Vista’s response to the petition for certiorari offered that any portions of the billing records containing “truly substantive information may be redacted.” The court “commend[ed] this professionalism.” Beacon Park Phase II Homeowners Ass’n, Inc. v. Eagle Vista Equities, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D22-1077, 7/8/2022), 2022 WL 2541418.
Citing to the Rolling Stones, Third DCA quashes order requiring production for in camera inspection of party’s communications with his lawyer. [Added 7/8/22]
Arthur and his professional corporation were defendants in an architectural malpractice case brought by plaintiff Schneider. After Arthur changed lawyers, Arthur “sent a funeral flower arrangement to Schneider’s counsel, accompanied by an unsigned note that read, ‘Please be advised that I am changing counsel, and accept my belated birthday gift.’” Schneider’s counsel filed a police report and a motion for sanctions in the case. Arthur filed an affidavit denying that the floral arrangement was selected “because of any funeral overtones” and stating that he thought his name would be included with the delivery.
The trial court held on non-evidentiary hearing on plaintiff’s motion. The court ordered Arthur to show cause why he should not be held in contempt and subject to sanctions. The court also entered an order requiring Arthur to, inter alia, “produce to the trial court for in camera review ‘all communications with [Arthur’s] counsel and insurance carrier’ regarding Arthur’s ordering of the flowers.”
Arthur challenged the order by filing a petition for writ of certiorari with the Third DCA, contending that “the portion of the challenged order requiring the production of communications between Arthur and his counsel violated the attorney-client privilege.” The Third DCA agreed and quashed the challenged order.
The appellate court’s opinion included a photo of the flower arrangement and a quote from the Rolling Stones’ song “Dead Flowers,” which the court characterized as “a guide to when, how, and under what circumstances to send flowers to an adversary.” After the quote the court observed that, “[n]otably absent from these protocols is a party sending flowers to opposing counsel as a means of providing notice that the party has hired a new attorney.” The court pointe out that it “certainly [did] not condone Arthur’s odd actions,” but noted that its inquiry was “limited to whether the challenged order violates the attorney-client privilege and Arthur’s privacy rights.”
The attorney-client privilege statute, F.S. 90.502, protects confidential communications between client and lawyer that are made in the rendition of legal services to the client. The statute contains several exceptions, and Schneider argued that what is commonly called the “crime-fraud exception” (see F.S. 90.502(4)(a)) applied. The court rejected this claim. A party seeking to invoke this exception is required to “specify the crime or fraud” and to “establish a prima facie case that the party asserting the attorney-client privilege sought the attorney’s advice in order to commit, or in an attempt to commit, a crime or fraud.” Schneider, however, “failed to meet this threshold burden;” accordingly, the court stated that it was “compelled to quash that portion of the order that requires the production of communications between Arthur and his counsel.” William Hamilton Arthur Architect, Inc. v. Schneider, __ So.3d __ (Fla. 3d DCA, No. 3D22-834, 6/29/2022), 2022 WL 2334972.
Order requiring criminal defense lawyer to submit to deposition quashed because state failed to show that lawyer had waived attorney-client privilege for client. [Added 4/18/22]
Client contacted Lawyer and told him that a crime victim was dead. Client claimed he learned about the victim’s death through news reports, but the contact with Lawyer was made before news sources reported the crime. Lawyer contacted the prosecutor in the state attorney’s office and told him the victim was dead.
The state issued a subpoena deuces tecum directing Lawyer to appear for deposition and bring documents and recordings, consisting of “audio and visual recordings, billing and payment records, and telephone numbers.” The subpoena did not place any limit on the areas of inquiry at the deposition.
Lawyer filed, and Client adopted, a motion for protective order and a motion to quash based on attorney-client privilege and work product. The state argued that Lawyer “waived any applicable attorney-client privilege by divulging the conversation to the prosecutor.” The court denied the motions. Client and Lawyer sought certiorari review.
The Third DCA did not disturb the order regarding production of the requested documents and recordings, concluding that “[t]hese documents, at best, constitute fact work product, and the State has made a reasonable showing of need and inability to obtain the substantial equivalent without undue hardship” and that “nothing in the trial court’s order precludes the redaction of any mental impressions or opinions prior to disclosure.” (Citations omitted.)
The appellate court, however, quashed the portion of the order requiring Lawyer to submit to deposition. To satisfy its initial burden, “the party asserting waiver must establish that the client relinquished any right to maintain the confidentiality of the communication.” Because the attorney-client privilege belongs to the client rather than the lawyer, “the attorney may not terminate the privilege unilaterally.” The court further noted that “[i]t is equally true, however, that ordinarily ‘an attorney has the implied authority to make disclosures in the course of litigation that will result in a waiver of the attorney-client protection for the matters disclosed.’”
To harmonize these competing principles, the court stated: “[W]e conclude that the disclosure of privileged material by counsel is relevant to determining the existence of waiver. It is not, however, dispositive. Instead, further consideration of the totality of the circumstances and the resultant reasonable inferences is warranted.”
The only thing proffered by the state was that Lawyer had disclosed the privileged communication to the prosecutor. Lawyer disputed the details of that conversation, and there was no evidentiary inquiry as to the context of the disclosure. “Under these circumstances, we conclude that the proffer, without more, was insufficient to demonstrate [Client], as opposed to [Lawyer], relinquished the right to invoke confidentiality.” The court quashed the portion of the order requiring Lawyer to submit to deposition. Nelson v. State, __ So.3d __ (Fla. 3d DCA, No. 3D21-1655, 3/9/2022) (on rehearing), 2022 WL 697031.
Due to attorney-client privilege, court properly barred plaintiff’s lawyer from calling opponent’s in-house litigation counsel to testify regarding communications with corporate employees. [Added 4/5/22]
Herrera sued her former employer (Jarden Corporation) and two officers of Jarden for alleged discrimination in violation of the Florida Civil Rights Act and other claims. Herrera sought to depose Pisciotta, Jarden’s in-house senior litigation counsel, regarding a position statement that Pisciotta prepared for Jarden after discussions with corporate personnel. Jarden opposed this, arguing that “Pisciotta was not a fact witness and that communications between her and Jarden employees were privileged.” The dispute regarding Pisciotta’s deposition was resolved when Jarden agreed to withdraw its opposition to admission of the position statement and Herrera agreed not to depose Pisciotta.
Nevertheless, Herrera sought to call Pisciotta to testify at trial. The court entered an order granting Jarden’s motion to exclude Pisciotta’s trial testimony. Herrera appealed, contending that “the trial court erred in applying the attorney-client privilege to prohibit her from calling Pisciotta at trial.”
The Fourth DCA affirmed. The court noted that “[t]he attorney-client privilege ‘protects confidential communications between a lawyer and client, as well as third persons to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the communication’ and that the privilege “extends to communications between employees and in-house general counsel, whether oral, contained in documents or contained in a database.” (Citations omitted.)
Citing S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994), the court pointed out that, “[t]o determine whether a corporation’s internal communications are protected by the attorney-client privilege, courts consider the following criteria: (1) the communication would not have been made but for the contemplation of legal services; (2) the employee making the communication did so at the direction of his or her corporate superior; (3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services; (4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties; (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.”
Herrera sought to question Pisciotta about her communications with employees of Jarden that were made in order for Pisciotta to provide legal services to her corporate client. These communications were protected by the attorney-client privilege. The court observed: “There is a distinction between the employees’ discussions with the corporate attorney and the statements contained within the position paper the attorney prepared and submitted to the FCHR. The former are privileged, just like any client’s conversation with an attorney that leads to the attorney’s preparation of a complaint or other pleading.” Herrera v. Jarden Corp., __ So.3d __ (Fla. 4th DCA, No. 4D20-1545, 2/23/2022), 2022 WL 533483.
First DCA declines to quash order requiring production of insurer’s underwriting manuals in breach of contact suit. [Added 3/3/22]
Foster sued his homeowners Insurer alleging breach of contract. In discovery he sought production of some of Insurer’s underwriting manuals. Insurer objected, but the trial court ordered production. Insurer petitioned for a writ of certiorari seeking to quash the order.
The First DCA denied the petition. The court’s opinion “recognize[d] the long history of courts accepting jurisdiction on insurance-discovery disputes like this one. The Florida Supreme Court and district courts have repeatedly quashed erroneous discovery orders on certiorari, for example, where insurers erroneously have been ordered to turn over sensitive business materials that are irrelevant or prematurely sought.” Insurer contended that the lower court’s “order allowing discovery of its underwriting manual(s) is categorically prohibited in breach of contract cases, like this one, until and unless bad faith litigation commences.” (Emphasis by court.) The First DCA disagreed, however, stating that “there is no categorical legal rule prohibiting discovery of underwriting manuals in breach of contract cases, especially if they are relevant.”
Foster claimed that certain information in the manuals “may be relevant to contesting the insurer’s affirmative defense that Foster’s pipe damage predated the inception of his policy. On this record, we have no basis for rejecting the merits of Foster’s assertion that the underwriting manual(s) are relevant.” The court further observed that there was no evidence that Insurer presented an alternative trade secrets-based argument to the lower court, so there was no cause for quashing the order on that basis. People’s Trust Ins. Co. v. Foster, __ So.3d __ (Fla. 1st DCA, No. 1D21-845, 1/26/2022), 2022 WL 221254.
Fifth DCA quashes order requiring parties to auto accident case to produce handwritten notes they made in preparation for depositions. [Added 2/16/22]
Two defendants in an auto accident case were to be deposed. Each made handwritten notes and brought them to their depositions; however, each said they did not review the notes during the deposition. Plaintiff sought production of the notes, and Defendants objected on grounds of attorney-client privilege and the work product. At the hearing the trial court noted a change in one Defendant’s testimony regarding whether her notes were taken with her lawyer present and granted the motion to compel without making an in camera inspection.
Defendants petitioned for a writ of certiorari. The Fifth DCA granted the petition and quashed the production order, noting that the trial court “departed from the law’s essential requirements in three ways.”
First, the trial court did not apply the correct law when it ordered production of the notes pursuant to F.S. 90.613. That statute allows for the production of writings used by a witness “to refresh memory while testifying . . . .” The record did not show that the notes were used for this purpose.
Second, the court did not apply the correct law when it ordered production of potentially attorney-client communications contained in the notes without an in-camera inspection. One Defendant testified that her notes included or referenced conversations she had with her lawyer, and that she took some of the notes during a conference with her lawyer so she could remember the lawyer’s instructions. “If these attestations are accurate, at least portions of her notes would comprise attorney-client privileged communications ‘beyond the reach of discovery.’” (Citation omitted.)
But “[a]n in-camera inspection is, however, unnecessary because, third, the trial court applied the incorrect law in rejecting [Defendants’] work product claim.” Defendants created their notes in preparation for their depositions, which makes them work product under Fla.R.Civ.P. 1.280(b)(4). “It is irrelevant for work product purposes that [Defendants] prepared their notes at their own behest and without counsel’s direction.” Plaintiff made no showing of “undue hardship” in order to obtain production of the notes. Cowan v. Gray, __ So.3d __ (Fla. 5th DCA, No. 5D21-1557, 1/21/2022), 2022 WL 188430.
Second DCA quashes order requiring production of documents insurer contended were privileged or work product in connection with anticipated bad faith claim. [Added 2/11/22]
An insured of Allstate was in a fatal auto accident. The at-fault insured was killed. The victim sued the insured’s estate. Damages were substantial and a settlement within policy limits was not reached. Anticipating being sued for bad faith at the conclusion of the underlying case, Allstate assigned Brogan and Naftzinger as adjusters for the anticipated bad faith claim, and retained the Martinez Denbo firm as outside counsel and assigned John Connolly as in-house counsel. After a more than $44 million jury verdict, the estate sued Allstate for bad faith. The estate sought production of documents that included communications between Connolly, Brogan, Naftzinger, and Martinez Denbo as well as notes and documents pertaining to those communications. Some of the documents were created before the underlying tort case was concluded, while others were created after the verdict.
Allstate objected, contending that the documents related to the merits and defense of the bad faith case. The trial court rejected those claims “as to items that existed ‘prior to the conclusion of the underlying litigation’ reasoning that such items must relate to the handling of the underlying claim.” Allstate petitioned for a writ of certiorari.
As to work product protection, Allstate argued that the trial court departed from the essential requirements of law “when it held that any documents predating the verdict necessarily pertained to the underlying tort litigation.” The Second DCA agreed.
Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121, 1129-30 (Fla. 2005), ruled “that ‘all materials . . . contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages’ are not protected by the work product privilege.” (Emphasis added [by court].) Thus, the test is not simply when the material was created, but whether it pertains to the processing or litigation of the underlying claim. Id. at 1130-31. If it does, it is discoverable. Id. To make this determination, the trial court will have to examine the materials in camera to see if they fall into the category of work product Ruiz held was discoverable in a bad faith action.”
As to the claim of privilege, Allstate contended that Brogan and Naftzinger were not assigned to the underlying claim but “were part of a separate department assigned to handle the bad faith claim against Allstate, and they sought legal advice from Allstate’s counsel in that specific capacity. Allstate argues that the internal communications or notes to Brogan and Naftzinger from Connolly or Martinez Denbo were confidential; therefore, the attorney-client privilege applies to communications that included them.” The Second DCA concluded that “the trial court departed from the essential requirements of law by its blanket refusal to recognize that these prejudgment attorney-client communications could be protected by the attorney-client privilege without conducting an in camera inspection to determine whether the communications involved materials discoverable under Ruiz and did not involve the rendering of legal advice.” Allstate Ins. Co. v. Ray, __ So.3d __ (Fla. 2d DCA, No. 2D21-1020, 1/19/2022), 2022 WL 163708.
Order requiring production of incident report and accident scene photos upheld as to report, but quashed as to photos due to failure to satisfy requirements of Fla.R.Civ.P. 1.280(b)(4). [Added 12/23/21]
Ledford sued IMC Hospitality, LLC (“IMC”) alleging injury due to a slip and fall in an IMC restaurant. Ledford sought production of an in-house incident report and photos of the accident scene prepared right after the accident. IMC objected, asserting that the materials were work product. The parties presented competing affidavits of Ledford and IMC’s assistant manager; each claimed they authored the incident report. At the evidentiary hearing both testified, and the trial court conducted an in camera inspection of the materials.
The trial court ordered production. IMC sought certiorari review. The Third DCA denied the petition as to the incident report but granted it as to the photos.
The incident report and the photos constituted work product and, accordingly, Ledford was required to satisfy Fla.R.Civ.P. 1.280(b)(4) in order to be entitled to production. The appeals court ruled that Ledford met the requirements as to the incident report, but not the photos.
The trial court found that Ledford prepared the incident report, even though he did not sign it. This satisfied “the rule’s requirement that Ledford ‘adopted or approved it.’ Fla. R. Civ. P. 1.280(b)(4) (‘For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it . . . .’).”
Regarding the photos, the trial court “found that IMC had somehow “waived” the work-product privilege because of an inconsistency between the assistant manager’s affidavit and the assistant manager’s hearing testimony as to who took the photographs of the accident scene.” It appeared to the appellate court that production of the photos had been required as a sanction for the misstatement in the assistant manager’s affidavit. “Rule 1.280(b)(4), however, allows for the production of work-product ‘only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ (Emphasis added [by court]). Not only did Ledford fail to make the required showing, he also failed even to allege need and undue hardship in his motion to compel production of the photographs.” IMC Hospitality, LLC v. Ledford, __ So.3d __ (Fla. 3d DCA, No. 3D21-1593, 11/17/2021), 2021 WL 5348896.
Court departed from essential requirements of law in ruling that parties waived attorney-client privilege by failing to file privilege log. [Added 12/20/21]
Respondent sought communication from Petitioner. Petitioner’s counsel “repeatedly e-mailed Respondents’ counsel that he redacted attorney-client communications, explaining that Petitioners had forwarded e-mails to him that were responsive to the discovery requests and apparently included discussion about those e-mails when they forwarded them.” Respondents’ counsel contended that the redactions could not be privileged because they were from before the time when Petitioners obtained counsel. Respondent moved to compel, requesting “a privilege log for any documents redacted on privilege grounds (excluding transmittals to opposing counsel).” The trial court held a hearing but did not inspect the e-mails. The court ruled that the lack of a privilege log constituted waiver of the attorney-client privilege. Petitioners sought certiorari review.
The First DCA granted the petition and quashed the order finding waiver as “an abuse of discretion and departure from the essential requirements of law.” Fla.R.Civ.P. 1.280(b)(6) “does not use the word ‘log’ or require any specific form for a ‘privilege log.’ . . . Instead, a party must only ‘make the [privilege] claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that . . . will enable other parties to assess the applicability of the privilege or protection.’ . . . The information provided need only permit the parties and the trial court to assess and rule on the claim.” Here, the information provided by Petitioners’ counsel was sufficient to satisfy this requirement.
The appellate court concluded: “Under these circumstances, waiver was too harsh a remedy. Petitioners’ counsel provided information pursuant to rule 1.280(b)(6) that was sufficient to permit Respondents’ counsel and the trial court to assess the claim of attorney-client privilege, or at least allow for in-camera review. Plus, Respondents’ motion to compel merely requested a privilege log, not waiver.” Andreatta v. Brown, __ So.3d __ (Fla. 1st DCA, No. 1D20-2397, 11/17/2021), 2021 WL 5353151.
Second DCA quashes order requiring production from nonparties over their privilege objections. [Added 11/1/21]
During litigation over alleged fraudulent transfer of funds, the plaintiffs (“Respondents”) sued defendants Brinkman and Majab Development LLC and served discovery requests. Respondents also served nonparties with subpoenas duces tecum. The nonparties included Gruber (the defendants’ accountant and records custodian) and F&E (a company formed and managed by Brinkmann, which provided furnishings to properties purchased by Majab).
Represented by defendants’ counsel, the nonparties turned over some documents and voluntarily filed privilege logs as to others (although the filing of privilege logs by the nonparties was “procedurally incorrect.”) Respondents moved to compel, contending that the privilege logs “were insufficient because they fail to adequately describe the documents withheld.” The magistrate recommended that the nonparties be required to furnish the documents “as they have failed to establish any basis for any of the privileges asserted in the logs.” Exceptions to this recommendation were filed, but the trial court rejected them and ordered production as it related to Gruber and F&E.
Gruber and F&E petitioned the Second DCA, seeking to quash the order. The appellate court granted the petition.
“Gruber provided a privilege log asserting the accountant-client privilege. F&E provided a privilege log, which also asserted the accountant-client privilege as well as the attorney-client privilege. The majority of the entries on these privilege logs do not indicate that any third person, whose inclusion would waive the asserted privilege, was included on the communication. Indeed, many of the communications disclosed on the Gruber log are between Brinkmann and Gruber and many of the communications on the F&E log are between Brinkmann (as manager of F&E) and either Gruber (as its CPA) or its attorneys.” The findings by the magistrate relating to the privilege assertions of these nonparties indicated that the asserted privileged were not recognized by Florida law. The Second DCA disagreed, concluding: “In this context – where the accountant-client and attorney-client privileges are expressly recognized by Florida Law, contrary to the express finding of the magistrate – the trial court's order overruling these privileges without any findings or analysis departed from the essential requirements of the law and caused irreparable harm. Accordingly, we grant the petition and quash the order insofar as it overrules the privilege objections raised by Gruber and F&E.” (Footnote omitted.) Brinkmann v. Petro Welt Trading Ges.m.b.H, __ So.3d __ (Fla. 2d DCA, No. 2D20-2903, 9/29/2021), 2021 WL 4447036.
Supreme Court clarifies scope of Worley and declines to apply it to permit discovery regarding financial relationship between defendant’s nonparty insurer and defense expert witness. [Added 10/19/21]
Answering a certified question of great public importance, the Florida Supreme Court clarified the scope of Worley v. Central Florida Young Men’s Christian Ass’n, 228 So.3d 19 (Fla. 2017), and declined to apply Worley to permit discovery regarding the financial relationship between a defendant’s nonparty insurer and a defense expert witness.
Plaintiff sought to discover information to determine whether a financial relationship existed between Defendant’s expert witnesses and his liability insurer. Defendant filed a motion for protective order, which the trial court denied. Defendant petitioned the Fourth DCA for a writ of certiorari, contending that the order “departed from the essential requirements of the law, namely Worley.” Defendant argued that Worley “must equally apply to defendants, with the result being that ‘the financial relationship between a defendant’s law firm or insurance company and expert witnesses is no longer discoverable.’” (Citation omitted.)
Although the Fourth DCA denied Defendant’s position, it did state that “the application of Worley solely to the plaintiff’s side of the case has ‘resulted in disparate and possibly unfair treatment of plaintiffs and defendants.’” (Citation omitted.) The appeals court also certified a question to the Supreme Court regarding whether Worley should be applied to keep a defendant’s nonparty insurer from having to disclose its financial relationship with defense experts.
The Supreme Court rephrased the certified question as: “Whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty insurer and an expert witness retained by the defense?” The Court answered in the negative and approved the result reached by the Fourth DCA.
The Court concluded that Worley was not applicable to the instant case. Worley held that the attorney-client privilege “precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment” and that “the attorney-client privilege protects . . . a law firm from producing documents related to a possible referral relationship between the firm and its client’s treating physicians.” (Citations omitted.) Further, Worley distinguished the relationship between a law firm and a plaintiff’s treating physician from the relationship between a party and its retained expert. The Court noted that the plaintiff-side relationship “has no mirror image on the defense side.”
The Court also pointed out that the Fourth DCA’s decision correctly relied on Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000).
The Court concluded by stating: “[W]hether Worley was wrongly decided or whether some other factor has caused the purportedly uneven playing field, is not properly before us. The holding of Worley should be reexamined only in a case in which it is actually at issue.” Dodgen v. Grijalva, __ So.3d __ (Fla., No. SC19-1118, 10/14/2021), 2021 WL 4782479.
See also Younkin v. Blackwelder, __ So.3d __ (Fla., No. SC19-385, 10/14/2021), 2021 WL 2782799 (applying Dodgen v. Grijalva).
First DCA quashes order requiring insurer to produce underwriting file in breach of contract case. [Added 8/25/21]
Insureds sued their Insurer alleging breach contract after Insurer failed to pay on a claim. Insureds sought discovery of the underwriting file. Insurer objected on grounds of overbreadth and privilege, and offered to provide the file to the court for an in camera review. The court overruled the objection and ordered production.
Insurer petitioned for a writ of certiorari. The First DCA granted the petition and quashed the production order. “Claims files and underwriting files are not subject to disclosure in a breach of contract action. . . . In addition to protection based on work product, protection for claims files and underwriting files also derives from the confidential and proprietary nature of such documents.” Further, under Fla.R.Civ.P. 1.280(b)(6), “when a party makes a claim of privilege the party should be given the opportunity to file a privilege log, and the trial court should conduct an in-camera inspection of any documents for which a claim of privilege is asserted.” The obligation to file a privilege log, however, arises only after the court has ruled on any non-privilege discovery objections. Here, the trial court departed from the essential requirements of law “by failing to allow [Insurer] reasonable time after the court had ruled on the non-privilege objections to file its privilege log addressing the subject documents.” American Integrity Ins. Co. of Florida v. Venable, __ So.3d __ (Fla. 1st DCA, No. 1D20-727, 7/19/2021), 2021 WL 3029546.
Second DCA grants certiorari petition and quashes discovery order overruling assertions of attorney-client privilege, work product, and common interest doctrine due to lack of in camera review and specific findings. [Added 8/12/21]
Brinkmann and Majab Development (“Defendants”) were sued by several entities (“Petro”). Petro sought discovery of documents that included communications between defense counsel and a third party. Defendants objected on grounds including attorney-client privilege, work product, and the common interest exception (if the privilege and work product protections were deemed waived). The trial court summarily overruled the objections without making an in camera inspection and without further explanation. Defendants petitioned for a writ of certiorari.
The Second DCA granted the petition. The trial court did not conduct an in camera review of the documents and its order failed to contain findings or analysis relating to the objections. Although “an in camera review is not required in all circumstances,” a trial court may depart from the essential requirements of law when it requires production without explanation, despite objections that statutory protections apply. Without such findings, the appellate court is “simply left ‘to guess at the basis for the discovery of each document’ and communication.” (Citation omitted.) Brinkmann v. Petro Welt Trading Ges.m.b.H, __ So.3d __ (Fla. 2d DCA, No. 2D20-3603, 7/16/2021), 2021 WL 3008205.
Insurer’s petition for writ of certiorari seeking to quash production of materials insurer claims are work product and attorney-client privileged denied by Second DCA. [Added 7/26/21]
Insureds filed a claim with their homeowners’ insurer (“AHAC”), most of which was denied. Insureds ultimately prevailed in litigation. Insureds then brought a first-party bad faith claim against AHAC. Insureds sought production of documents that AHAC asserted were protected by the work product and attorney-client privileges. The magistrate viewed the documents as constituting direct evidence on the bad faith issue and concluded that the documents “are not protected by the work product doctrine, because they are needed to determine if AHAC acted in bad faith” and that the attorney-client privilege objection “could not be resolved without an in-camera inspection.” The trial court adopted the magistrate’s recommended order. AHAC petitioned for a writ of certiorari.
The Second DCA denied the petition. Relying on the Supreme Court’s decision in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla. 2005), the appellate court ruled that “the general magistrate correctly determined that the requested documents were not shielded by the work product doctrine, because the claims materials are needed to determine whether AHAC acted in bad faith.”
The court pointed out that Ruiz addressed only the work product doctrine, not attorney-client privilege. “The attorney-client privilege differs from the work product doctrine. It is a privilege of confidentiality and is statutorily protected.” The attorney-client privilege is not concerned with the litigation needs of an opposing party. In Genovese v. Provident Life & Accident Ins., 74 So.3d 1064 (Fla. 2011), the Supreme Court “held that attorney-client privileged communications are not discoverable in a first-party bad faith action.”
Accordingly, the trial court’s order did not depart from the essential requirements of law. American Home Assurance Co. Inc. v. Sebo, __ So.3d __ (Fla. 2d DCA, No. 2D20-2202, 6/30/2021), 2021 WL 2671926.
Petition seeking to quash protective order prohibiting deposition of party’s former counsel denied because petitioner failed to meet heavy burden of justifying entitlement to take deposition. [Added 5/28/21]
After his employment was terminated, Cancio sued his former employer Supermix. An issue arose regarding admissibility of a 2-page handwritten document (“Exhibit 3”). Cancio wanted the document admitted, arguing that it supported his damage claim. Supermix responded that the document was inadmissible as part of a presuit settlement offer. Supermix subpoenaed Cancio’s former lawyer. Cancio moved to quash the subpoena and for a protective order on the ground that “the ‘intended deposition would necessarily or by implication disclose [Cancio’s] privileged communications with his counsel’ in violation of the attorney-client privilege.” Supermix claimed that it sought to depose the lawyer only about non-privileged communications that he had with Supermix. The scope of the desired testimony “at some point” was broadened to include potential questions about Exhibit 3.
The trial court, “in an unelaborated order,” quashed the subpoena and granted the motion for protective order. Supermix petitioned for a writ of certiorari, contending that the trial court departed from the essential requirements of the law in failing to make any finding of good cause for prohibiting the deposition of Cancio’s former counsel.
The Third DCA denied the petition. The appellate court did not reach the merits of petitioner’s argument “Supermix failed to meet its burden of establishing an entitlement to depose Cancio’s former counsel.” The court noted that deposing an opponent’s counsel or former counsel “is an extraordinary step which will be rarely justified.” Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, 167 So.3d 495 (Fla. 3d DCA 2015). In Pandolfo the court held that such depositions where limited “to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.” In this case, “Supermix failed to allege or establish that no other means exist to obtain the information sought, other than by deposing” Cancio’s former counsel. Accordingly, the trial court’s order was proper. Central Concrete Supermix, Inc. v. Cancio, __ So.3d __ (Fla. 3d DCA, No. 3D21-274, 5/5/2021), 2021 WL 1773514.
Insurer’s claim file materials protected by work product privilege where insurer paid on loss but amount of coverage remains in dispute. [Added 5/11/21]
Insured filed a claim with their insurer, Avatar, for property damage due to a hurricane. Avatar determined that “there is coverage” paid $24,000. Six months later Insureds sued for breach of contract, alleging that Avatar owed them additional payments under the policy. In discovery Avatar withheld some documents on the basis of work product privilege. The magistrate found that “[t]his is a dispute over scope and pricing of damages where coverage is not at issue.” Ultimately the trial court adopted the magistrate’s finding and ordered production of 4 documents. Documents #5 and #6 deal with a different, prior claim for a water leak in the Insureds’ home. Documents #3 and #10 deal with the hurricane loss at issue in the suit. Avatar petitioned for a writ of certiorari.
The Second DCA granted the petition and quashed the production order, agreeing with Avatar that “these four documents from its claims file are investigative and claims handling material that are protected from disclosure because coverage remains in dispute.”
The court pointed out that, although there is no “claims file privilege” under Florida law, “Florida courts routinely hold that materials generated during an insurer’s investigation of a claim for coverage constitute protected work product.” (Citations omitted.) In this case, the magistrate’s finding adopted by the trial court was that “coverage is not at issue.” As a result, the court ruled that the investigative and claims handling materials were not privileged. This was “contrary to Florida law, which holds that, regardless of the binary question of whether any coverage exists, the issue of coverage remains disputed for these purposes where the amount of coverage remains to be determined.”
The issue of coverage was still in dispute despite the fact that Avatar made a payment to Insureds. “The payment was made before the lawsuit was filed, and Avatar’s answer raises several affirmative defenses to coverage, including alleging that the Insureds breached their postloss obligations under the policy. Under the circumstances, the trial court departed from the essential requirements of law by ordering production of Avatar’s investigative and claims handling materials based on the express contrary conclusion that ‘coverage is not at issue.’”
Further, the work product privilege extended to the documents specifically relating to the hurricane claim as well as to the documents relating to the earlier water leak claim, which did not go to litigation. “As this court explained in [Progressive Am. Ins. Co. v.] Herzoff [290 So.2d 153 (Fla. 2d DCA 2020)], the ‘view that materials in an insurer’s claim file could not be work product if that claim was settled without litigation . . . is an overly circumscribed view of what constitutes work product.’ 290 So.3d at 157. Instead, ‘the work product doctrine protects documents created in anticipation of terminated litigation as well as anticipated litigation that never materializes.’ Id. (quoting State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493, 497 (Fla. 5th DCA 2014)). Thus, Documents #5 and #6 retain their protected status even though the prehurricane claim they addressed did not lead to litigation.” Avatar Property & Casualty Ins. Co. v. Flores, __ So.3d __ (Fla. 2d DCA, No. 2D20-2458, 4/16/2021), 2021 WL 1431118.
Order denying all discovery into asserted defense of settlement quashed by Fifth DCA because it departed from essential requirements of law as to waiver of attorney-client privilege and application of judicial estoppel. [Added 3/24/21]
Respondent was one driver in a 3-car auto accident. He, his son, and the driver of another car asserted personal injury claims against Petitioner. Respondent’s lawyer made a settlement demand. Although Petitioner’s insurer eventually issued settlement checks, they were not cashed and no releases were signed. A few years later Respondent sued Petitioner and Respondent’s uninsured motorist insurance carrier in circuit court. The case was removed to federal court on diversity grounds.
The case was later remanded to state court. Petitioner moved for summary judgment, alleging that the matter had been settled. Respondent alleged that there had been no settlement and filed its own motion for summary judgment to defeat the settlement defense.
When Petitioner sought to depose Respondent and his lawyer about the settlement issues, Respondent countered that Petitioner was judicially estopped from pursuing discovery about settlement issues because the parties had jointly stipulated in federal court that no further discovery was needed to resolve a settlement defense summary judgment motion. Respondent also asserted that attorney-client privilege barred Petitioner from deposing Respondent and his lawyer about settlement. The trial court entered an order clarifying that no party could conduct additional discovery on the settlement defense. Petitioner then filed a petition for certiorari seeking to quash the order.
The Fifth DCA granted the petition and quashed the order. Judicial estoppel did not support the order because it was inapplicable; judicial estoppel can apply only where the party’s initial position in judicial proceedings has been successfully maintained, and that did not happen in this case.
As to attorney-client privilege, the appeals court noted that the trial court failed to consider potential waiver of the privilege. “The trial court also relied upon Respondent’s argument that depositions of Respondent, his attorney, and the attorney’s case manager/assistant regarding settlement would be impermissible because of the attorney-client privilege. However, in reaching that conclusion, the trial court failed to apply the concept of waiver of that privilege to the extent Respondent and his attorney had already testified in affidavits to [Respondent’s lawyer’s] lack of settlement authority.” (Citations omitted.) Marrero v. Rea, __ So.3d __ (Fla. 5th DCA, No. 5D20-1612, 3/5/2021), 2021 WL 833534.
Court erred in ordering disclosure of insurance adjuster’s report and photos over work product objections. [Added 3/17/21]
Insurer filed a claim with her property Insurer. Insurer’s adjuster inspected the property and took photographs, noting his observations on the photos. A coverage dispute ensued and Insured filed suit. Over Insurer’s work product objections, the trial court ordered production of the adjuster’s report and the photos. Insurer petitioned for a writ of certiorari.
The Third DCA granted the petition and quashed the discovery order. The materials were generated in anticipation of litigation and so were work product. Insured “made no showing below of those exceptional circumstances [‘need’ and ‘undue hardship’] required to justify compelled disclosure.” Additionally, because coverage remained in dispute, “the report, housed within the claim file, is irrelevant, hence, not yet ‘otherwise discoverable,’ within the meaning of” Fla.R.Civ.P. 1.280(b)(4). Avatar Property & Casualty Ins. Co. v. Mitchell, __ So.3d __ (Fla. 3d DCA, No. 3D20-1515, 1/13/2021), 2021 WL 112751.
Second DCA declines to review claims of attorney-client privilege and work product raised in discovery dispute because privilege log had not yet been filed. [Added 3/8/21]
Hertz sued former executive Sider for recovery of compensation under Hertz’s “ClawBack policies” that allow recovery of compensation paid to departed employees. Sider sought production of certain materials related to the Hertz compensation committee’s decision to pursue recovery against Sider. Hertz objected on attorney-client privilege and work product grounds. Stating that it was taking an incremental approach, the trial court ordered production of only some of the material that Sider sought, specifically including “[a]ll counsel presentations concerning the merits of potential [ClawBack] claims against Sider and others, as well as Board and Committee meeting minutes and packages that describe or denote such presentations.” The court’s order directed the magistrate to conduct an in-camera review to determine relevance, allowed the parties to submit memoranda explaining their positions, and directed Hertz to prepare a privilege log identifying materials withheld from production on the basis of privilege.
Hertz sought certiorari review of the order. Although Hertz correctly observed that disclosure of privileged materials could cause irreparable injury, the Fourth DCA concluded that Hertz’s arguments “are not ripe for review, because the trial court order specifically provides Hertz with the opportunity to prepare a privilege log identifying documents and other information that it has withheld from production on the basis of privilege.”
The appellate court pointed out that, by bringing the ClawBack compensation claim against Sider, Hertz placed “at issue” the evidence presented to the compensation committee by various lawyers and law firms. Accordingly, that material was determined to be “otherwise discoverable” for purposes of Fla.R.Civ.P. 1.280(b)(6). Once a trial court determines that information is “otherwise discoverable,” the party objecting to production based on attorney-client privilege or work product doctrine must file a privilege log identifying which documents are claimed to be privileged. “A claim of work-product protection or attorney-client privilege is not mature for review when a privilege log has not been filed,” and so the appellate court denied Hertz’s petition. Hertz Corp. v. Sider, __ So.3d __ (Fla. 2d DCA, No. 2D20-1788, 2/10/2021), 2021 WL 484319.
Third DCA denies certiorari relief relating to whether assignment for benefit of creditors transferred attorney-client privilege under Florida law. [Added 2/19/21]
Four perfume companies (“Petitioners”) assigned “their right, title, and interest in all assets” to Leslie S. Osborne (“Assignee”) under F.S. Ch. 727. The assignment “expressly assigned to Assignee ‘all books, records, and electronic data pertaining to all such assets,’ and irrevocably appointed Assignee their true and lawful attorney with ‘full power and authority to do all acts and things which may be necessary to execute the assignment.’”
A law firm that previously represented Petitioners requested confirmation that Assignee was now the owner of the attorney-client privilege. Assignee filed a motion to determine ownership of the attorney-client and accountant-client privileges of Petitioners. The trial court entered an order ruling that upon execution of the assignment documents the privileges passed to the Assignee.
Seeking to have the order quashed, Petitioners sought a writ of certiorari. The Third DCA denied the petition on the ground that Petitioners “failed to establish that the trial court departed from the essential requirements of the law.”
The issue raised was one of first impression in Florida. “The parties acknowledge that the statute does not expressly address the question, nor has any decision of Florida’s district courts or Supreme Court directly addressed the issue.” (The trial court had relied on federal bankruptcy decisions to reach its decision.) Emphasizing the “narrow scope” of its certiorari review, the appellate court concluded: “[T]he trial court’s decision, even if erroneous as claimed by petitioners, cannot reasonably be said to violate a clearly established principle of law, and therefore certiorari is not available to review it.” In re: Assignment for the Benefit of Creditors of Miami Perfume Junction, Inc. v. Osborne, __ So.3d __ (Fla. 3d DCA, No. 3D20-1317, 12/23/2020), 2020 WL 7636020.
Third DCA rules that litigation privilege bars defamation action by 2 lawyers against entity that filed bar complaint against them. [Added 1/13/21]
A homeowners association (Association of Poinciana Villages) filed a bar complaint against 2 lawyers, Gursky and Ragan. The bar complaint was disclosed when it was attached to a complaint in a separate replevin action. The lawyers sued the Association alleging defamation. The trial court granted summary judgment for the Association, ruling that the litigation privilege barred the action. The lawyers appealed. The Third DCA affirmed “on the sole basis that the alleged defamation bore some relation to the replevin action.”
Under Florida law, defamatory statements may be protected by the “litigation privilege.” A defamatory statements is absolutely privileged when it is (1) published in the course of judicial proceedings and (2) bears some relation to or connection with the subject of inquiry. See DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013). A broad standard is applied when determining whether the statement in question bears a relationship or connection with the subject inquiry. The Third DCA affirmed the grant of summary judgment “[b]ased solely on this broad standard.”
The appeals court did not address the first prong of the litigation privilege analysis (whether the statement was published in the course of legal proceedings) because the appellants limited their arguments to the second prong.
Regarding applicability of the “bar complaint privilege,” the court stated in a footnote: “We agree with Appellants that the bar complaint privilege does not apply here because the contents of the complaint were disclosed outside the grievance process. See Tobkin v. Jarboe, 710 So.2d 975, 976 (Fla. 1998) (“Bar complainants are protected by an absolute privilege in so far as the complainant makes no public announcement of the complaint outside of the grievance process, thus allowing the grievance procedure to run its natural course.”). Gursky Ragan, P.A. v. Association of Poinciana Villages, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D19-0696, 12/23/2020), 2020 WL 7635829.
Fifth DCA denies certiorari petition by defendants in medical malpractice action who were ordered to provide discovery disclosing how much money their counsel’s law firm paid to trial experts over past 3 years. [Added 12/18/20]
Defendants in a medical malpractice action sought certiorari relief from a trial court discovery order “that essentially compels their counsel and his law firm to disclose the amount of money that it has paid to its retained trial experts in this case over the last three years.” The Fifth DCA denied the petition.
The court had denied certiorari relief as to a similar discovery order in Younkin v. Blackwelder, [2019 WL 847548, 44 FLW D549] (Feb. 22, 2019). The court “observed there that while the disclosure of this type of financial information was both consistent with our earlier decision in Vazquez v. Martinez, 175 So.3d 372, 373-73 (Fla. 5th DCA 2015), and furthered the ‘truth-seeking function and fairness of the trial,’ see Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th DCA 2000), it also appeared to us that the law in this area was not being applied in an even-handed manner to all litigants. Younkin, 44 FLW at D549; see also Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So.3d 18, 23 (Fla. 2017) (holding that a law firm representing a plaintiff in personal injury litigation that refers its clients to a specific physician for treatment is not required to disclose the extent of its referral or financial relationship with the physician because ‘[f]irst, and most obviously, the law firm is not a party to the litigation’”).
As it did in Younkin, the court certified the following question to the Florida Supreme Court as one of great public importance: “Whether the analysis and decision in Worley should also apply to preclude a defense law firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation include those that perform compulsory medical examinations under [Fla.R.Civ.P.] 1.360?” Routhier v. Barnes, __ So.3d __ (Fla. 5th DCA, No. 5D20-1862, 11/6/2020), 2020 WL 6532943.
Court erred in ordering disclosure of documents in insurer’s claims file prior to determination of coverage. [Added 11/9/20]
Insureds sued Insurer alleging breach of the homeowners insurance contract. Insureds moved to compel certain claims file discovery from Insurer. Insurer objected on work product and attorney-client privilege grounds. The trial court ordered production. Insurer petitioned the Third DCA for certiorari review.
The appellate court quashed the production order. Coverage had not been determined at the time the trial court entered its order. Claims file material ordinarily is work product and not discoverable prior to a determination of coverage in a breach of contract case. Safepoint Ins. Co. v. Gonzalez, __ So.3d __ (Fla. 3d DCA, No. 3D20-1050, 10/7/2020), 2020 WL 5932521.
In insurance dispute, letter from insurer’s counsel regarding scope of planned depositions did not waive insurer’s privilege to prevent discovery of information in claims file. [Added 10/2/20]
An insurer (Owners) and its insured (Armour) were in a declaratory action over coverage. Armour alleged that it gave notice of the claim to Owners, which Owners denied. Armour sought discovery to determine if Owners received notice. In a March 29, 2018, letter to Armour’s counsel, Owners’ lawyer confirmed certain topics for the corporate representative depositions. In that letter Owners also demanded a consent protective order. Armour did not agree and the depositions were canceled. Owners moved for a protective order that would completely prevent Armour from deposing the witnesses, “arguing that the testimony was prohibited under Florida law because it would invade and seek discovery of the claims file.”
After a hearing the magistrate ordered the depositions to go forward with limited scope of inquiry, including two witnesses testifying on topics set out in the March 29 letter from Owners’ lawyer. The circuit court overruled Owners’ exceptions and ratified the recommended order. Owners petitioned the Second DCA for a writ of certiorari, arguing that the court “departed from the essential requirements of law by allowing discovery into topics prohibited by Florida law and that Owners will suffer irreparable harm if this improper information is produced.”
The appellate court granted the writ in part, noting that it is a departure from the essential requirements of the law to compel disclosure of an insurer’s claim file when the issue of coverage is still in dispute. Armour was entitled to question Owners’ representative about the notice question, since that had been placed at issue by Owners. But the Second DCA disagreed with the magistrate’s apparent conclusion that Owners waived privilege concerning other matters in the file by the March 29 letter from its counsel. “[I]t is axiomatic that an attorney cannot waive a privilege objection for a client. . . . This is true even where counsel indicates an intent to produce certain discovery but later raises a privilege objection to the production of that discovery.” (Citations omitted.) The parameters for questioning the corporate representatives that were set out in the March 29 letter were “patently overbroad because they allow for discovery of information in the claim file and documents relating to the insurer’s business policies or practices regarding the handling of claims.” Accordingly, to the extent that the circuit court held that Owners had waived its privilege objections based on the March 29 letter, we grant the petition, quash that portion of the circuit court's order, and remand for proceedings consistent with this opinion.” Owners Ins. Co. v. Armour, __ So.3d __ (Fla. 2d DCA, No. 2D18-4385, 9/9/2020), 2020 WL 5386159.
Work product protection as to corporate incident reports waived because corporate representative allowed to testify at deposition about substance of reports without objection. [Added 9/7/20]
Quest was sued because its courier was involved in an auto accident with Hall. Hall served a request to produce seeking statements of Hall or reports of the incident maintained by Quest in the ordinary course of business. Quest responded by listing 2 documents (the “incident reports”) and objecting to their production on work product privilege grounds.
Hall deposed one of Quest’s corporate representatives, Vandoren. She confirmed that the incident reports were her only source of knowledge about the accident. When asked whether she was aware of the specifics of light sequencing and what each driver saw, Vandoren replied without objection that “she ‘just [had] what was written on the accident form, that [the courier] says he had the right of way when he was making his turn.” After her deposition Hall moved to compel production of the incident reports, arguing that the work product privilege had been waived. The trial court inspected the reports in camera and granted production.
Quest petitioned for a writ of certiorari. The Fifth DCA denied the petition, concluding that the Quest “Quest has not demonstrated that the lower court departed from the essential requirements of the law and that it will suffer a material injury for the rest of the case.”
The appellate court concluded that Quest had waived work product privilege as to the incident reports, stating: “Quest cannot sit idly by at Vandoren’s deposition while the substance of the incident reports was disclosed and then later complain about production of the reports. . . . Quest’s purpose in filing a motion for a protective order, and in this certiorari action, was to avoid letting the proverbial ‘cat out of the bag.’ The information Quest now seeks to protect was long gone once Vandoren disclosed the contents of the incident reports to Hall, the opposing party.”
The court, however, remanded for reconsideration based on whether what it described as the trial court’s “misunderstanding” of the Notice for Vandoren’s deposition affected its in camera review of the documents and its production decision. Quest Diagnostics Inc. v. Hall, __ So.3d __ (Fla. 5th DCA, No. 5D20-255, 8/7/2020), 2020 WL 4577192.
Second DCA denies petition for certiorari review of attorney-client privilege ruling because petitioner failed to provide record including documents at issue. [Added 8/10/20]
Medical provider BAIRS sued insurer USAA in a bad faith action arising from PIP claims. After protracted litigation the trial court ordered USAA to produce 60 documents over USAA’s attorney-client privilege objection. The day following this order, USAA filed a motion to stay in the trial court and noted it would be filing a certiorari petition and also “retrieved all the documents from the trial court.” USAA filed its certiorari petition in the Second DCA, stating “Although USAA believes the detail and law set forth in this Petition is sufficient to quash the Discovery Order, should this Court direct, USAA is willing to file the documents at issue under seal, for an incamera review by this Court.” In response, BAIRS argued that USAA should not be permitted to supplement because it never filed the documents under seal with the trial court clerk and so the documents were not part of the original record that could be transmitted to the appellate court.
The Second DCA denied USAA’s petition. “As BARIS points out, nothing indicates that USAA ever followed a proper procedure for filing the sixty documents under seal with the trial court. . . . Rather, USAA – knowing it was going to file a petition – retrieved the documents from the trial judge's office. USAA claims that it was just following the trial court’s order; the trial court directed USAA to retrieve the documents or the court would discard them. But the trial court’s direction did not prevent USAA from submitting the documents under seal. USAA cannot now blame the trial court for its own failure. The documents are not in the trial court’s record, and they cannot be transmitted to this court for review under [Fla.R.App.P.] 9.220(a). Consequently, we deny the petition.” United States Auto. Ass’n v. Bay Area Injury Rehab Specialists Holdings, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D19-3340, 7/17/2020), 2020 WL 4030877.
Court did not abuse discretion in permitting defense counsel to introduce inference and argument suggesting referral relationship between plaintiff’s chiropractor and lawyer, where plaintiff opened door. [Added 7/30/20]
Plaintiff in an auto accident case testified at deposition that she was referred to her chiropractor by an emergency room doctor. At trial, her lawyer asked Plaintiff who referred her to her chiropractor. During cross-examination Defendant’s counsel did not ask Plaintiff directly whether she was referred to the chiropractor by her lawyer, which would have violated the attorney-client privilege under Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So.3d 18 (Fla. 2017). But “[d]uring opening statements, [Defendant’s] counsel inferred that [Plaintiff’s] former attorney referred [Plaintiff] to her chiropractor, contradicting [Plaintiff’s] former deposition testimony that she was referred by an emergency room doctor. Additionally, during [Defendant’s] case, [Defendant’s] counsel challenged [Plaintiff’s] previous testimony concerning the referral.”
After Plaintiff received a net $15,000 verdict rather than the more than $300,000 she sought, Plaintiff moved for a new trial. That motion was denied. Plaintiff appealed, contending that the trial court abused its discretion in permitting the defense “to introduce inference and argument purporting to assert a referral relationship between [Plaintiff’s] former attorney and her chiropractor, in violation of attorney-client privilege pursuant to Worley.”
The Third DCA denied the petition, concluding that Plaintiff had opened the door for Defendant to challenge her credibility regarding the referral issue. “First, [Plaintiff’s] counsel asserted, during opening statement and closing argument, that the case is a credibility determination for the jury to decide. Second, on direct examination, [Plaintiff’s] counsel specifically asked [Plaintiff] who referred her to her chiropractor. Lastly, during her case-in-chief, [Plaintiff] entered the advanced chiropractic letter of protection into evidence, which [Plaintiff] presented to her chiropractor from her attorney. On this basis, [Defendant] properly challenged [Plaintiff’s] evidence in order to challenge [Plaintiff’s] credibility as to her chiropractor referral.” The court further noted that defense counsel did not directly ask Plaintiff whether she got the referral from her lawyer. Ruchimora v. Grullon, __ So.3d __ (Fla. 3d DCA, No. 3D19-753, 7/15/2020), 2020 WL 3989341.
Court did not depart from essential requirements of law in ordering insurer to produce photos and reports in claims and underwriting files over work product objection. [Added 7/17/20]
In a breach of contract suit, Insured sought production from Insurer of photos in the claims file and the complete underwriting file. Insurer objected on work product and attorney-client privilege grounds. Insured moved to overrule the objections and to compel discovery, contending that “there is no claim file privilege and that the requested information was prepared in the routine, normal course of claims handling.” At the hearing, Insurer “asserted a categorical privilege, arguing, for example, the photographs were ‘part of the claims file, and that’s work product.’” The court ordered production of photos from the claim file and reports and photos from the underwriting file.
Insurer petitioned for certiorari relief, “arguing that the order departed from the essential requirements of law by compelling disclosure of privileged, irrelevant materials from [Insurer’s] claim and underwriting files.” The Fifth DCA denied the petition.
“It is well-settled that “under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable. . . . However, it is equally established that the party asserting privilege has the burden to prove such a privilege should apply.” (Citations omitted.) Here, despite “prodding from the trial court” and having “multiple opportunities,” Insurer “never attempted to demonstrate that the photographs at issue were prepared in anticipation of litigation.” Rather, Insurer simply raised a categorical “claims file” or “underwriting file” privilege objection. “As this court explained in [Bankers Security Ins. Co. v.] Symons [889 So.2d 93 (Fla. 5th DCA 2004)], there is no claims file privilege. And with that categorical objection serving as the only basis for its work product objection, [Insurer] has failed to demonstrate a departure from the essential requirements of the law resulting in a miscarriage of justice.” Avatar Property & Casualty Ins. Co. v. Simmons, __ So.3d __ (Fla. 5th DCA, No. 5D20-304, 6/12/2020), 2020 WL 3115957.
Party claiming work product protection for photos had no obligation to file privilege log until court ruled on its non-privilege objections to production. [Added 5/1/20]
Insureds sued Insurer for breach of contract following denial of a hurricane damage claim. Insurer’s investigator took photographs of Insureds’ home. Insureds sought production of the photos. Insurer objection on the grounds of overbreadth and work product protection, but did not file a privilege log. The trial court ordered production of the photos because Insurer had not filed a privilege log. Insurer petitioned the Second DCA for a writ of certioarari.
The appellate court granted the petition and quashed the production order. An objecting party is not obligated to file a privilege log until the material is determined to be “discoverable,” which is after there has been a ruling on party’s non-privilege objections. In this case, the issue of the discoverability of the photographs was before the trial court on Insurer’s privilege and overbreadth objections. Insurer was not obligated to file a privilege log until its asserted non-privilege objection (overbreadth) was resolved. “Accordingly, it follows that the trial court departed from the essential requirements of the law in compelling the production of the photographs based upon[Insurer’s] failure to file a privilege log.” Avatar Property & Casualty Ins. Co. v. Jones, __ So.3d __ (Fla. 2d DCA, No. 2D19-243, 3/13/2020), 2020 WL 1222732.
Work product privilege may attach to insurer’s claim file even where that claim was settled without litigation, per Second DCA. [Added 3/16/20]
In 2015 Insured filed a claim Insurer for water damage to his covered boat. Insured paid. In 2018 Insured made a similar claim for damage to the same boat. Insurer denied that claim. Insured sued, alleging breach of the 2018 policy. Insured sought discovery of Insurer’s file on the 2015 claim. Insurer objected on work product grounds. Insured moved to compel, arguing that there would be no work product protection for the contents of the 2015 file because that claim “did not give rise to litigation.” The court ordered production.
Insurer petitioned for a writ of certiorari. The Second DCA granted the petition and quashed the production order.
An insurer’s claim file materials often fit the definition of work product. In a coverage dispute (as opposed to a bad faith claim), Florida law ordinarily recognizes an insurer’s assertion of work product privilege for the claims file. Accordingly, such material is not discoverable absent the showing required by Fla.R.Civ.P. 1.280.
In this case, the trial court appeared to take the view that an insurer’s claim file could not constitute work product if the claim was settled without litigation. The appellate court disagreed, stating: “But that is an overly circumscribed view of what constitutes work product. We agree with the Fifth District's conclusion that ‘most courts addressing the issue have held (either expressly or impliedly) that the work product doctrine protects documents created in anticipation of terminated litigation as well as anticipated litigation that never materializes.’ State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493, 497 (Fla. 5th DCA 2014).” The court explained that, “no Florida court has held that materials prepared in anticipation of litigation lose their work product protection simply because a lawsuit never materialized. The protection turns on the ‘prospect’ of possible litigation, not whether actual litigation ensued.” Progressive American Ins. Co. v. Herzoff, __ So.3d __ (Fla. 2d DCA, No. 2D19-2342, 2/7/2020), 2020 WL 593764.
Defense counsel may not ask plaintiff to disclose referral relationship between lawyer and treating physician due to attorney-client privilege, but may ask physician about percentage of practice and income obtained through referrals from plaintiff’s counsel. [Added 10/22/19]
Plaintiff sued Defendant for a slip-and-fall at one of Defendant’s grocery stores. At trial Plaintiff called one of her treating physicians, Dr. Roush, to testify. On cross-examination defense counsel asked about “Dr. Roush’s relationship with [Plaintiff’s] legal counsel, to inquire whether Dr. Roush got any income from cases that the litigation firm referred to him.” The trial court permitted the questioning, noting that “the Florida Supreme Court had recently determined that counsel could inquire into Letters of Protection, whether the doctor has a financial stake in the litigation, as well as inquire into the number of plaintiffs cases the doctor has handled.” Dr. Roush did not give specific figures, but stated that “he had testified a number of times for plaintiffs and for [Plaintiff’s] litigation firm.”
Ultimately the jury found Plaintiff 50% negligent and awarded $231,435 in damages. Plaintiff appealed on several grounds, including alleging that the trial court erred in permitting defense counsel to cross-examine the treating physician regarding income from referrals from Plaintiff’s counsel.
Specifically, Plaintiff argued that Worley v. Central Florida Young Men’s Christian Assoc., Inc., 228 So.3d 18 (Fla. 2017), prohibited defense counsel from asking the non-party treating physician inquiring about the extent of his or her financial connection to Plaintiff’s law firm. The Third DCA disagreed and affirmed.
Worley held that attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her lawyer had referred the plaintiff to a particular doctor for treatment, but also “recognized that the defense is permitted to establish bias on the part of a treating physician by evidence of a Letter of Protection, whether all or a significant part of the provider’s practice is pursuant to Letters of Protection, or whether the amounts charged are higher than usual for those treatments.” Defense counsel did not ask Plaintiff to disclose a referral relationship; rather, counsel asked Plaintiff’s treating physician to testify about the percentage of his practice and income derived from referrals from Plaintiff’s law firm in order to show bias. The appeals court concluded that this line of questioning “is not precluded by Worley.” Araujo v. Winn-Dixie Stores, Inc., __ So.3d __ (Fla. 3d DCA, Nos. 3D18-2475, 3D18-204, 10/16/2019), 2019 WL 5198395.
Order requiring production of materials presumptively covered by attorney-client privilege quashed because it was issued without in camera inspection. [Added 9/23/19]
Plaintiffs petitioned the First DCA for a writ of certiorari regarding three discovery orders. The appellate court granted the writ in part and quashed a portion of one order that required production of “all correspondence, including written communication, emails, texts, faxed documents, or scanned documents, between Plaintiffs and Plaintiffs’ Counsel . . .” (emphasis by court). The discovery request underlying this order on its face sought disclosure of attorney-client communications. The trial court should not have ordered production of those communications without first conducting an in camera inspection. Accordingly, that portion of the order was quashed by the First DCA. Mahoney v. Blue Mountain Beach Master Owners Ass’n, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D19-93, 8/30/2019), 2019 WL 4126486.
Hospital’s bid to protect employee statements under attorney-client privilege rejected under heightened level of scrutiny given to privilege claims in corporate context. [Added 9/11/19]
Plaintiffs in a medical negligence case sought Amendment 7 records from Hospital. Over Hospital’s objection, he trial court ordered production of written statements of 5 employees. Following an in camera review, the court concluded that Hospital failed to sustain its burden of proving the statements were protected by attorney-client privilege. Hospital petitioned the Fifth DCA for a writ of certiorari.
The appellate court denied the petition, ruling that Hospital had not shown that the order departed from the essential requirements of law. In the corporate context, attorney-client claims are subject to heightened scrutiny pursuant to So. Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377 (Fla. 1994). The trial court had reviewed the 5 employee statements along with an affidavit from Hospital’s counsel and determined that they were not privileged, noting that “the statements were created shortly after the procedure at issue, state nothing about attorney involvement, do not mention in-house counsel in any way, and include no legal analysis. The trial court went on to find that ‘there is nothing contained in any of the five documents in question that indicate[s] a lawyer’s involvement, that it was in furtherance of the rendition of legal services to the client, or that they were in response to an inquiry from in-house counsel.’” (Emphasis by court.)
The Fifth DCA concurred in these conclusions. “[F]our four of the five statements are written on blank paper, undated, unsigned, and, as the trial court observed, lack any indication that they were made in furtherance of legal services. The statements fail to provide any context surrounding their creation. The fifth statement also is written on blank paper, but it is signed and dated almost a year after the incident. While that statement specifically references in-house counsel, it makes no reference to counsel’s provision of legal services.” The court further commented that the “conclusory statements” in the affidavit of Hospital’s counsel did not change its determination.
Finally, the Court stated that due to its holding it declined to address “whether Amendment 7 mandates the production of documents allegedly protected by attorney-client privilege.” Nemours Foundation v. Arroyo, __ So.3d __ (Fla. 5th DCA, No. 5D19-817, 8/30/2019), 2019 WL 4122102.
Court erred in ordering non-party attorney to appear for deposition and produce documents over attorney-client privilege objection without first conducting in camera hearing to address privilege claim. [Added 9/3/19]
Lawyer, a non-party, was subpoenaed to appear for a deposition and to produce certain documents. Lawyer moved for protective order, asserting that the documents were protected by attorney-client privilege. The trial court denied the motion for protective order and directed Lawyer to appear at the deposition with the documents. Lawyer appealed.
The Third DCA reversed. “We hold that the trial court abused its discretion in ordering [Lawyer] to produce the subpoenaed documents without first conducting an in camera hearing to address [Lawyer’s] claim of attorney-client privilege.” The appeals court remanded “for the trial court to conduct an in camera hearing to determine whether the documents sought by the subpoena duces tecum are in fact protected by the attorney-client privilege, and for further proceedings thereafter.” (Footnotes omitted.) Varela v. OLA Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, Nos. 3D18-1135, 3D18-1749, 8/21/2019), 2019 WL 3938307.
Court departed from essential requirements of law in ordering production of documents in insurer’s underwriting and claims files before issues of coverage and damages were determined. [Added 8/26/19]
Insureds had a dispute with Insurer over a homeowner’s insurance claim. Insurer made payment, but Insureds sued for breach of contract alleging the payment was inadequate. Insureds sought production of documents. Insurer filed objections regarding some of the requested documents, and ultimately 6 discovery requests were at issue before the trial court. The court overruled the objections and ordered production of “all documents up until the time the subject claim was denied.”
Insurer petitioned for a writ of certiorari to quash the production order. The Fourth DCA granted the petition.
Although the trial court denied Insurer’s work product privilege objections without making supporting findings, the “discovery requests are facially improper, in their entirety.” A party is not entitled to discovery relating to an insurer’s claims filed or related practices until the coverage obligation and amount of damages has been determined. “Because the issues of the Insurer’s liability for coverage and the amount of the policy owners’ damages have not been finally determined, the discovery order in the instant case is a departure from the essential requirements of the law which will result in irreparable harm. We therefore grant the petition and quash the trial court’s order allowing discovery of the claim files and underwriting file at this time.” Homeowners Choice Property & Casualty Ins. Co. v. Mahady, __ So.3d __ (Fla. 4th DCA, No. 4D19-142, 8/21/2019), 2019 WL 3938885.
Attorney-client privileged not waived when law firm’s legal assistant contacted client’s insurance company to report client’s claim. [Added 5/13/19]
Plaintiffs suffered water damage on their property. Before contacting their Insurer, Plaintiffs retained Law Firm. A legal assistant in the Firm reported the claim. After Insurer notified Plaintiffs that the loss was not covered, they sued Insurer.
Insurer served a subpoena duces tecum to depose the legal assistant, and served a subpoena duces tecum on the Firm’s records custodian. Plaintiffs objected and moved for protective order, asserting that the information sought by Insurer was protected by attorney-client or work product privileges. The trial court denied the motion in part, finding that “there was a waiver with respect to some attorney client communications” and permitting Insurer to depose the legal assistant about limited areas (“why she told [Insurer] there was water damage at the covered premises; where she obtained the facts concerning the water damage; and the dates on which she obtained those facts”). The court also denied the motion to quash the subpoena duces tecum as to Insurer’s requests for Law Firm’s records regarding the property or the loss before suit, records provided to Law Firm by Plaintiffs pre-suit, and most communications between the legal assistant and Plaintiffs about the loss. The court did not conduct an in camera inspection of the allegedly privileged records before ordering production. In a second order, the trial court also ordered Law Firm’s records custodian to produce similar records. Insurer petitioned the Second DCA for a writ of certiorari.
The appellate court granted the petition. “[T]he trial court departed from the essential requirements of the law in two ways: (1) by ordering the production of documents responsive to requests that appear on their face to potentially invade the attorney-client or work-product privileges without first conducting an in camera inspection and (2) by finding that [Plaintiffs] had waived their attorney-client privilege.” Insurer’s seeking of records “relating to communications between the firm and [Plaintiffs] regarding the loss . . . is an attempt to invade the attorney-client privilege on its face.” (Emphasis by court.) The trial court should have conducted an in camera inspection to determine if the records were privileged. The same was true for records “generated or created by the firm” (emphasis by court) because those records may have contained opinion work product.
The trial court also erred in determining that the legal assistant’s reporting of the claim waived Plaintiffs’ attorney-client privilege. Waiver can occur when a party “bases its claim on the very matters that it later claims are privileged,” but that was not necessarily the case with all communications made and information conveyed by Plaintiffs to Law Firm.
Attorney-client privilege protects communications, not facts. “Attorney-client privilege might not apply to facts that were the basis of [Plaintiffs’] loss, but what [Plaintiffs] said to their law firm is covered, regardless of whether they might have been talking about facts that themselves could be the subject of inquiry during discovery.”
Finally, the Second DCA rejected Insurer’s argument that the privilege did not apply to the underlying communications because neither the legal assistant nor Law Firm were providing “legal services” by reporting the loss and making the claim to Insurer. “[A]ttorney-client privilege might attach to some communications made in the rendering of legal services, even though the same lawyer might have provided additional nonlegal services related to the same matter. [Citation omitted.] . . . This nuanced determination may be better made after the required in camera inspection of the specific documents that [Plaintiffs] contend are privileged.” Dominguez v. Citizens Property Ins. Corp., __ So.3d __ (Fla. 2d DCA, No. 2D18-768, 4/24/2019), 2019 WL 1781199.
Discovery order requiring production of privileged documents quashed because court did not conduct in camera review and did not delineate scope of purported privilege waiver. [Added 5/3/19
A personal representative and guardian (“Estate”) sued American Airlines (“AA”) (the decedent’s former employer) and Diaz (decedent’s former supervisor) alleging that the defendants engaged in conduct that resulted in the decedent’s suicide. Defendants denied liability and raised various affirmative defenses.
After receiving anonymous letters from employees following the suicide, AA conducted an investigation and prepared a report. Estate filed discovery requests seeking materials and witness testimony relating to the investigation. Defendants asserted attorney-client privilege and work product objections and proposed that the court review the documents in camera.
At the hearing on the motion to compel production, Estate argued that Defendants waived their privileges as a result of three of the affirmative defenses that they asserted. Without reviewing the materials in camera, the trial court granted Estate’s motions to compel. The court ruled that Defendants had “waived privileges by virtue of their Affirmative Defenses.” The court, however, did not identify which affirmative defense(s) gave rise to the waiver or define the scope of the purported waiver. After Defendant’s motion for reconsideration was denied, they petitioned the Fourth DCA for a writ of certiorari.
The appellate court granted the petition and quashed the order to compel. Estate sought discovery of materials claimed to be privileged. “As such, Petitioners [Defendants] are entitled to an in camera review of the material by the trial court before any disclosure. Alliant Ins. Servs. [v. Riemer Ins. Group], 22 So.3d [779 (Fla. 4th DCA 2009)] at 781. As for the trial court’s finding that [Defendants] ‘waived privileges by virtue of their Affirmative Defenses,’ the court must delineate the scope of the waiver before it may compel discovery of information. See id.; see also Butler [v. Harter], 152 So.3d [705 (Fla. 1st DCA 2014)] at 714 (holding that ‘even if privilege had been waived here, that waiver would have been limited, and petitioner would have been entitled to an in camera review’ and ‘find[ing] the trial court departed from the essential requirements of the law in compelling disclosure of the entire litigation file, because that file is protected by work-product and attorney-client privilege’).” American Airlines, Inc. v. Cimino, __ So.3d __ (Fla. 4th DCA, No. 4D18-2485, 6/12/2019) (on denial of rehearing), 2019 WL 2439804.
Statutory protection for psychologist-patient confidentiality prevails over common law litigation privilege, leaving court-appointed therapist who violates privilege subject to breach of fiduciary duty claim. [Added 4/29/19]
Father and Mother were engaged in a contested divorce action. They agreed to use a psychologist (“Doctor”) as a reunification therapist for their children in an effort to resolve visitation issues involving Father. Doctor met separately with Father and the children. Doctor emailed the guardian ad litem reflecting the children’s concern about visitation and relating “some information conveyed to him by [Father] during his short session with him.” Mother moved to stay Father’s scheduled visitation with the children. Father ended up not seeing the children.
Father sued Doctor for breach of fiduciary duty and negligence, arguing that Doctor disclosed to the guardian ad litem information that was protected by the psychotherapist-patient privilege (F.S. 490.0147). Father alleged that he had entered into a psychologist-patient relationship with Doctor. Father signed a confidentiality statement at his appointment stating that “[i]nformation shared with a psychologist is kept strictly confidential and is not disclosed without your written provision” and providing informed consent for Father’s “treatment.”
Doctor moved for summary judgment on the ground that “he was a court-appointed reunification therapist and, as such, protected by absolute immunity for statements made during the judicial proceeding.” The trial court granted the motion. Father appealed.
The Fourth DCA reversed and remanded. “[T]he statutory grant of confidentiality prevails over the litigation privilege, a common law doctrine.” The psychotherapist-patient privilege statute provides for limited means of waiving that privilege, but none of them permitted Doctor’s disclosure. “The assertion of a right to disclose communications pursuant to a litigation privilege would add another exception to the statutory grant of confidentiality, which would be inconsistent with the plain meaning of the statute. Therefore, the common law [litigation] privilege must give way. . . . We hold that absolute immunity for communications during judicial proceedings does not provide immunity to a psychotherapist for revealing communications regarding a patient contrary to section 490.0147.”
The court further noted that the fact question of whether Father actually was a patient of Doctor’s would be addressed on remand. Estape v. Seidman, __ So.3d __ (Fla. 4th DCA, No. 4D17-3336, 4/24/2019), 2019 WL 1781943.
There is no “accident report privilege” to prevent disclosure of statements made by persons involved in accident for purpose of completing crash report. [Added 4/24/19]
Plaintiff sued Defendant after an auto accident. During deposition of Defendant, his wife, and police officers, Defendant objected to questions about statements Defendant and his wife made to officers at the scene of the accident. Defendant argued that the statements were protected from disclosure by the “accident report privilege” as codified in F.S. 316.066(4).
The court ordered the witnesses to answer the questions. Defendant petitioned the Second DCA for a writ of certiorari.
The appellate court denied the petition, pointing out that “the accident report privilege is not a true privilege precluding the disclosure of these statements; it is a law of admissibility precluding the use of these statements at trial.” The statements at issue are subject to discovery. “[T]he current version of section 316.066(4) does not create a true privilege precluding the disclosure of statements of individuals involved in an accident for the purpose of completing a crash report. Instead, it is a law of admissibility that precludes the use of these statements at trial. Thus, the trial court did not depart from the essential requirements of the law by ruling that statements made by the [Defendant and his wife] for the purpose of completing a crash report are discoverable.” Anderson v. Mitchell, __ So.3d __ (Fla. 2d DCA, No. 2D18-2864, 4/5/2019), 2019 WL 1496258.
Non-party insured lacks standing to assert work product privilege to block production of items in insurers’ claims files. [Added 4/17/19]
Jimenez was employed by Ben Auto Service Corporation (“Ben Auto”) and driving a vehicle owned by Henry Auto Broker Finance (“Henry Auto”) when he struck a bicyclist, Martinez. Martinez sued Ben Auto and Henry Auto, but did not name Jimenez as a party to the suit. Ben Auto’s insurer, Grenada, filed a declaratory judgment action against Ben Auto and Martinez to determine whether Granada must cover the accident.
Grenada served non-party subpoenas on Jimenez’s personal insurer and on Henry Auto’s insurer seeking information contained in the insurers’ claims filed. Jimenez moved for a protective order, “arguing that no portion of the claims files should be produced because the claims files are privileged work product.” The court ordered the subpoenas modified to reflect that the documents be produced to Jimenez’s counsel, who would then provide the non-privileged documents to Granada and file a privilege log for the remainder.
Jimenez petitioned the Third DCA for a writ of certiorari. The appeals court denied the petition. A claims file belongs to the insurer, and so any work product belongs solely to the insurer. Neither of the insurers objected to the subpoena. “We therefore conclude that we lack certiorari jurisdiction because Mr. Jimenez does not have the requisite standing to assert the work product privilege on behalf of the two subpoenaed insurers; without standing, Mr. Jimenez cannot establish the requisite irreparable harm.” (The court did not address the merits of the discovery order.) Jimenez v. Granada Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D19-118, 4/10/2019), 2019 WL 1549013.
Judgment in personal injury case reversed because court erred in admitting financial records that were attorney-client privileged under Worley v. YMCA and requiring plaintiff’s counsel to testify to such matters. [Added 3/12/19]
Plaintiff was struck by a vehicle owned by a law firm and driven by one of the firm’s employees. Plaintiff sued the driver and the firm. In discovery, Defendants sought information about the financial relationship between Plaintiff’s lawyer and Plaintiff’s treating physicians. Plaintiff objected to each request, including raising the attorney-client privilege.
The trial court required Plaintiff to produce records of all payments made between his lawyer’s firm and the treating physicians, including letters of protection. The court also ordered Plaintiff’s lawyer deposed, despite Plaintiff’s objection that “inquiry into his attorney’s financial information invaded the attorney-client privilege.” Between these events and trial, the Florida Supreme Court decided Worley v. Central Florida Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017) (holding that certain information concerning treating physicians and their relationship with counsel is protected by attorney-client privilege and not discoverable). Prior to trial, Plaintiff moved in limine “to preclude the admission of his lawyer’s payments to his treating physicians based on attorney-client privilege” based on Worley. The motion was denied.
When the defense counsel announced that it intended to call Plaintiff’s lawyer as a witness at trial, the court expressed concern about the applicability of Rule 4-3.7 (lawyer as witness). Plaintiff’s lawyer then decided that she would not continue as counsel, but again called the court’s attention to Worley. The court replied that “the ‘horse has left the barn’” and declined to revisit the issue.
At trial, the court admitted testimony regarding Plaintiff’s referral to his physicians by his law firm. Plaintiff’s original counsel was required to testify regarding matters including her relationship with Plaintiff’s treating physicians and the amount of money that her firm paid them over the past 5 years. The court refused to permit testimony that defense counsel also referred clients to Plaintiff’s treating physicians.
During deliberations the jury asked: “When did the relationship between [the attorney] and plaintiff [begin]?” The jury found the defendant driver negligent, but apportioned more than 50% of the fault to Plaintiff and found damages to be $20,916.33. Plaintiff’s motion for new trial was denied. Plaintiff appealed, arguing that “ the trial court erred in two ways: (1) admitting attorney-client privileged evidence; and (2) excluding similar evidence concerning the defendant law firm.” The Fourth DCA agreed with Plaintiff on the first issue and reversed, rendering the second issue moot.
Before Worley was decided, the trial court compelled discovery of information regarding the relationship between Plaintiff’s counsel and various treating physician. “Post-Worley, that discovery is no longer permitted as it violates attorney-client privilege. While letters of protection may be admitted to establish bias, any further inquiry regarding the ‘cozy agreement’ between a law firm and a treating physician is disallowed. [Worley] at 26. If that information is not discoverable, it certainly is not admissible.” (Footnote omitted.)
Further, the trial court erred in compelling Plaintiff’s lawyer to testify at trial. “While the plaintiff’s attorney was initially identified as the person with the most knowledge of the financial records, the firm identified an alternative individual who could testify prior to the deposition. In compelling the plaintiff’s attorney’s testimony, the court forced her to testify regarding her trust account, payments made to the treating physicians, and her personal relationships with these physicians. In short, she was compelled to testify to the prejudice of her own client.”
The Fourth DCA found it unnecessary to rule on Plaintiff’s contention that the trial court erred in excluding evidence of the defense firm’s “similar referrals and . . . similar financial relationships with the treating physicians.” The appeals court, however, expressed its agreement with this contention and stated that [s]uch evidence from the defendant law firm is similarly protected by attorney-client privilege.” Bellezza v. Menendez, __ So.3d __ (Fla. 4th DCA, No. 4D17-3277, 5/8/2019) (on rehearing), 2019 WL 2019284.
NOTE: See also Dhanraj v. Garcia, __ So.3d __ (Fla. 5th DCA, No. 5D18-2330, 3/22/2019), 2019 WL 1302540 (reaching similar result and certifying question to Florida Supreme Court).
Claim that party waived work product protection by not filing privilege log was not ripe for certiorari review where trial court had not yet ruled on party’s non-privilege objections. [Added 3/6/19]
Defendants in a personal injury suit listed private investigator Boggs as a fact witness. Plaintiffs issued a subpoena duces tecum for Boggs to appear for deposition along with his entire file regarding Plaintiffs. Boggs appeared and was deposed. After the deposition Plaintiffs issued additional requests for production to each defendant seeking “documents relating to the opinions, observations, credentials, experience, and writings of Boggs.”
Defendants filed objections to the requests for production. They objected on non-privilege grounds to all items sought, and also asserted work product objections to 6 of the 20 production requests. Defendants, however, “did not file a privilege log identifying the documents they claimed to be privileged.” The trial court overruled objections and required production within 10 days.
Defendants then petitioned the Third DCA for certiorari review. Among other contentions, Plaintiffs argued that Defendants had waived work product protection by not filing a privilege log identifying the documents alleged to be privileged. The Third DCA denied the petition, ruling that the trial court “did not depart from the essential requirements of law in overruling preliminary discovery objections.”
For 3 of the 6 production requests, Defendants had objected only on work product grounds but they had not filed a privilege log. For these 3 production requests, “work-product privilege has not been properly preserved.”
The appellate court then discussed Fla.R.Civ.P. 1.280(b)(6), which essentially requires a party that “withholds information otherwise discoverable” to file a privilege log (emphasis by court). Defendants filed multiple objections to the other 3 production requests. “As [Defendants] raised multiple objections to party production requests 2, 5, and 10, including privilege, the materials sought in these requests were not deemed ‘otherwise discoverable’ until the lower court overruled the asserted non-privilege objections. Thus, under the plain language of rule 1.280(b)(6), the obligation to file a privilege log did not accrue until the trial court overruled the objections. . . As [Defendants] have yet to file a privilege log, the claim of work-product protection as to these three properly preserved production requests is not yet ‘mature’ for review.” Dade Truss Co. Inc. v. Beaty, __ So.3d __ (Fla. 3d DCA, No. 3D18-2253, 2/6/2019), 2019 WL 453491.
Party is unable to obtain certiorari relief from order compelling production of work product photos because it failed to preserve claim of error for appellate review. [Added 1/23/19]
Plaintiff in a premises liability suit sought production of 2 scene photos held by Defendant. Defendant asserted that the photos were work product. Plaintiff moved to compel production. At the hearing, Plaintiff stated that she had no photos taken on the day of her accident and had no way to recreate the scene depicted in Defendant’s photos. In response, Defendant “argued only that [Plaintiff] had the substantial equivalent of the photographs requested, and as such, the exception to the work product privilege did not apply.” The court ordered the photos produced.
Defendant petitioned the Fifth DCA for a writ of certiorari. The appellate court denied the petition because Defendant had failed to properly preserve its claim of error. At the hearing on the motion, Defendant did not challenge the sufficiency of Plaintiff’s evidence. Instead, in the certiorari petition Defendant “argues for the first time that certiorari relief is warranted because [Plaintiff] failed to meet her burden of presenting evidence establishing that an exception to the work product privilege exists in this case. [Defendant] asserts that the trial court’s discovery order departs from the essential requirements of the law because, during the motion hearing, [Plaintiff] ‘relied on assertions of counsel and did not present evidence sufficient to overcome [Defendant’s] work product objection.’”
Although Defendant’s statement of the law was correct, Defendant’s failure to argue the sufficiency of Plaintiff’s evidence below compelled the Fifth DCA to deny certiorari relief. FirstService Residential Florida, Inc. v. Rodriguez, __ So.3d __ (Fla. 5th DCA, No. 5D18-1980, 12/7/2018), 2018 WL 6422087.
Third DCA rejects argument that litigation privilege applies to conduct that meets statutory definition of stalking or cyberstalking. [Added 8/22/18]
Lawyer Raulerson petitioned for an injunction against another lawyer, Font, for alleged stalking. The trial court dismissed the petition. Raulerson appealed. The Third DCA affirmed, concluding that the allegations in the petition primarily involve conduct that was outside the scope of the applicable statutes and “present certain issues best addressed under the disciplinary framework established by the Rules Regulating The Florida Bar.”
The appeals court observed that more than 90% of the allegations “are related to unprofessional conduct in litigation by Mr. Font.” Raulerson’s petition itself acknowledged that much of the complained-of conduct violated Rules of Professional Conduct 4-3.1 (frivolous claims or defenses), 4-3.2 (dilatory practices), and 4-3.4(d) (frivolous discovery requests). The court noted that “[t]ypical hallmarks of stalking and cyberstalking simply are not present,” and so indicated that the issues were more properly brought to the Bar or the trial court in which the unprofessional conduct occurred. While expressing sympathy for the petitioner’s position, the court commented that many of the actions alleged in the petition would require reporting to the Bar under Rule 4-8.3 and also stated: “It is also true that an attorney relatively new to the practice of law and high-conflict litigation (though the very term, when used as a reference to conduct between counsel rather than parties, is inimical to professional practice) should develop a ‘thick skin,’ but such an attorney is also entitled to refer improper conduct by opposing counsel to the Bar and, in a particular case, to the presiding judge. The trial court was correct that these would be a forum for determination of ‘a lot of what you would like me to decide based on your pleadings.’” (Footnote omitted.)
The court, however, rejected the respondent’s argument that the relief sought in the petition was barred by the litigation privilege. “No Florida case has held, nor do we, that the litigation privilege applies to conduct otherwise meeting the definitional requirements of stalking or cyberstalking – any more than the litigation privilege bars an action for a battery committed by one attorney against another in the course of a legal proceeding. A privilege against defamation claims is not a privilege to cause substantial emotional distress for ‘no legitimate purpose’ or to threaten the safety of opposing counsel.” Raulerson v. Font, __ So.3d __ (Fla. 3d DCA, No. 3D17-2370, 8/1/2018) 2018 WL 3636525.
Failure to file a privilege log does not waive the privilege where assertion of the privilege is not document-specific, but category-specific and the category is plainly protected.” [Added 7/30/18]
Plaintiff served a subpoena duces tecum on an investigator hired by Defendant to investigate an accident in which Plaintiff was allegedly injured. Defendant filed an objection and moved for protective order. Defendant asserted that the item listed in 5 paragraphs of the subpoena were protected by work product or attorney-client privilege, but did not file a privilege log. The trial court overrule Defendant’s objection and denied the motion for protective order.
The Third DCA granted Defendant’s petition for writ of certiorari as to several of the items for which a categorical claim of privilege was raised. “While it is true that, as a general rule, a party failing to file a privilege log may be deemed to waive these privileges . . . that general rule is subject to an exception: The finding of a waiver “should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected.” [Citation omitted.] [T]he privilege raised as to paragraphs One, Six and Seven are categorical assertions of privilege, and we conclude that the items sought in these paragraphs are plainly protected.” (Footnote omitted.) GKK v. Cruz, __ So.3d __ (Fla. 3d DCA, Case No. 3D18-560, 7/5/2018), 2018 WL 3286994.
Supreme Court decides that, like retained and appointed counsel, pro bono counsel in criminal case may file motions for appointed experts and miscellaneous costs ex parte and under seal. [Added 5/23/18]
Indigent criminal defendant Andrews was represented by pro bono private counsel in a resentencing proceeding. In order to avoid disclosing privileged information or work product to the prosecution, Andrews sought to file her motions for appointed experts and miscellaneous costs ex parte and under seal, with service to the Justice Administrative Commission and notice to the State Attorney’s Office. The trial court denied the motion. Andrews petitioned for a writ of certiorari, arguing that denial “will result in the violation of her rights to due process, fundamental fairness, equal protection, and effective assistance of counsel under the United States and Florida Constitutions, as well as the attorney-client privilege and the work-product doctrine.” The First DCA denied the petition, but certified the following question to the Florida Supreme Court as one of great public importance: “Whether an indigent defendant who is represented by private counsel pro bono is entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the State Attorney’s Office, and to have any hearing on such motions ex parte, with only the defendant and the Commission present.” Andrews v. State, 218 So.3d 466 (Fla. 1st DCA 2017).
The Florida Supreme Court answered the certified question in the affirmative and quashed the First DCA’s decision, stating: “Andrews argues that ‘comparable defendants represented by private counsel would not be required to divulge details to the prosecution regarding the hiring of experts, nor would similarly-situated defendants who are represented by the Office of the Public Defender or the Office of Criminal Conflict and Civil Regional Counsel.’ We agree with Andrews.”
The Court reasoned that, in making the showing of particularized need that is required in order to obtain approval for expenditure of funds for experts, a defendant may need to disclose privileged information or attorney work product. Even disclosing the name of the expert and the expert’s area of expertise may disclose work product or otherwise provide information that the State is not entitled to know at that stage of the case. Even the State’s presence at the hearing “puts the defendant in the difficult situation of having to choose between fully supporting the motion for the appointment of an expert and not revealing information to the State that it would not otherwise be privy to.”
In conclusion, the Court stated: “[W]e hold that indigent defendants represented by private counsel pro bono are entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the State Attorney’s Office, and to have any hearing on such motion ex parte, with only the defendant and the Commission present.” Andrews v. State, __ So.2d __ (Fla., No. SC17-1034, 5/17/2018), 2018 WL 2252180.
U.S. District Court for Southern District sanctions lawyer and refers him to Florida Bar for failing to disclose relevant facts that would have eliminated need for hearing on moot issue, despite lawyer’s assertion of confidentiality rule as defense. [Added 5/14/18]
Brendel sued former business associates in a Texas court, ultimately recovering a judgment against all defendants except for Mary Meyrowitz. Two of those defendants, Scott Meyrowitz (Mary’s husband) and SSB International, LLC (“Plaintiffs”), sued Brendel and Wells Fargo Bank on a related matter in federal court in Florida. Plaintiffs were represented by lawyer Caplan. The Bank settled with Plaintiffs. Brendel petitioned to garnish the settlement to satisfy his Texas judgment. Plaintiffs stipulated to dismissal of the claim against the Bank on August 7, and the settlement funds were deposited in Caplan’s trust account. That same day Plaintiffs filed a response to Brendel’s garnishment petition. On the following day, Caplan disbursed the settlement funds to Mary Meyrowitz. Caplan did not notify the court or opposing counsel of this.
A hearing on the garnishment was set for September 26. At that hearing Caplan informed the court that he had disbursed the funds. Brendel moved for sanctions, including attorney’s fees and costs associated with preparing for the September 26 hearing – which turned out to be unnecessary because the funds that were the subject of the garnishment petition had previously been disbursed and were no longer being held by Caplan.
Plaintiffs responded to the motion for sanctions by contending that Rule 4-1.6 (confidentiality) and the terms of the settlement with the Bank prevented Caplan from informing Brendel or the court that he had disbursed the funds. Caplan argued “that his ‘preeminent obligation’ was to keep ‘any and all information related to his client in complete confidence,’ and therefore he was not obligated to inform the Court, or Defendant and defense counsel, that he had already disbursed the funds” (citations omitted). He further argued that “his duty as a zealous advocate to his clients ‘outweighed any need to apprise the Court in advance of the hearing of the settlement distributions.”
The court rejected Caplan’s defense and imposed sanctions. “Mr. Caplan’s assertion that informing the Court and defense counsel would violate his duty of confidentiality is wholly without merit. . . . The Notice of Settlement between Plaintiffs and Wells Fargo was entered onto the docket, which is public record. . . . Acknowledging that he had disbursed any settlement funds – or alternatively, that he was not in possession of any settlement funds and that the pending motion was moot – would in no way have violated Mr. Caplan’s duty to his clients, nor would it have violated the confidentiality of the settlement agreement.” Caplan’s argument “completely ignores his duty of professionalism and candor to the Court and opposing counsel.”
The court imposed sanctions for the expenses related to failure to disclose, which led to the unnecessary September 26 hearing. However, a determination as to whether the disbursement violated the Rules Regulating The Florida Bar “is best left to the Florida Bar, should Defendant or Defendant’s counsel choose to file a Bar Complaint.” Meyrowitz v. Brendel, __ F.Supp.3d __ (S.D. Fla., No. 16-81793-CV-Marra/Matthewman, 4/9/2018), 2018 WL 1718289.
While noting Florida law does not specifically recognize “claims file privilege,” Third DCA quashes order requiring production of certain claims file materials in first-party breach of contract action. Added 5/11/18]
Insured homeowners made a claim with Insurer for property damage. Insurer made some payments. Dissatisfied with the amount paid, Insureds had their public adjuster write a letter contesting adequacy of the payments. Insurer then paid more, but Insureds were not satisfied and sued for breach of contract.
In discovery Insureds broadly requested “any documents relating to the claim file” and other specified documents. Insurer objected to most of the requests on the grounds of work product privilege or “claims file privilege” and filed a privilege log. After an in camera review, the trial court ordered some of the requested documents produced, ruling that “they were not protected by either the work product privilege or a ‘claims file privilege.’”
The Third DCA granted Insurer’s petition for certiorari and quashed the production order. The court relied on Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982 (Fla. 2d DCA 2011), which concluded that it was unnecessary for a trial court to review the disputed documents in order to determine which were prepared in anticipation of litigation because “[a] court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.” Demmo at 984, quoting Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009). The instant case was a breach of contract suit, not a bad faith case.
In closing, the court commented regarding the assertion of a claims file privilege: “There is no such privilege by that designation in the cited cases or Florida’s Rules of Procedure or Evidence Code. Thus, a specifically-articulated document request for ‘photographs of the alleged property damage’ may require either (a) production of such photographs, or (b) disclosure on a privilege log with a specifically-articulated basis for protection from discovery, even if those photographs have been filed with other non-discoverable, claim-related documents in the insurer’s ‘claims file’ and coverage remains in dispute.” Homeowners Choice Property and Casualty Ins. Co., Inc. v. Avila, __ So.3d __ (Fla. 3d DCA, No. 3D17-465, 4/25/2018), 2018 WL 1936572.
First DCA rules that litigation privilege does not bar action for malicious prosecution, regardless of whether party in question was original defendant in underlying litigation or was added later. [Added 3/8/18]
Plaintiffs sued Defendants in actions for foreclosure and declaratory judgment. After the suits were dismissed, Defendants sued Plaintiffs for malicious prosecution. Plaintiffs asserted that the malicious prosecution claims were barred by the litigation privilege. The trial court agreed and dismissed the malicious prosecution suit.
The First DCA reversed. In Debrincat v. Fischer, 217 So.3d 68 (Fla. 2017), the Supreme Court held that the litigation privilege did not bar the filing of a malicious prosecution claim that was based on adding, and later dropping, a party defendant to a civil suit. In the instant suit, Plaintiffs argued that Debrincat only applied where a party was added to the litigation. The First DCA rejected this contention, stating: “We see nothing in the language in Debrincat to support this conclusion. . . . We hold that the litigation privilege is not an absolute bar to [Defendants’] claims of malicious prosecution.” Inlet Beach Capital Investments, LLC v. The Enclave at Inlet Beach Owners Ass’n, Inc., __ So.3d __ (Fla. 1st DCA, Nos. 1D16-2282, 1D16-2283, 1D16-3833, 1/17/2018). 2018 WL 444242.
In Boecher discovery dispute, court erred in ordering production of documents over privilege and work product objections without making specific findings to support denial of those objections. [Added 3/7/18]
In a uninsured motorist coverage and bad faith dispute, Insured sued insurer State Farm and sought Boecher discovery of amounts paid by State Farm over 3 years to its expert, Dr. Zeide (see Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999)). State Farm objected on grounds including attorney-client privilege and work product doctrine. The trial court reviewed the documents in camera and ultimately ruled that “the information and documents relating to State Farm’s use of and payments to Dr. Zeide were reasonably calculated to lead to the discovery of admissible evidence; thus, they were discoverable.” State Farm petitioned the Fifth DCA for a writ of certiorari.
The appellate court granted the petition and quashed the production order. “When a party asserts privilege objections in opposition to discovery requests, the trial court must make specific findings to support its denial of those objections. Such findings are necessary for meaningful appellate review.” See Magical Cruise Co. v. Turk, 114 So. 3d 233 (Fla. 5th DCA 2013). The trial court’s production order only addressed possible relevance of the documents, “while completely ignoring State Farm’s claims that the documents were exempt from discovery as privileged work product or confidential attorney-client communication.”
The court remanded for further proceedings to determine if State Farm’s privilege and work product claims were well-founded. It noted that, “[i]f If on remand the trial court agrees that State Farm’s work product claims are valid, Respondent would be entitled to the “fact” work product contained in the documents only if he can establish need and undue hardship.” Further, “if on remand the trial court determines that certain documents constitute confidential attorney-client communication, they are beyond the reach of discovery” because “there are no ‘relevance’ or ‘need’ exceptions to the attorney-client privilege.” State Farm Mutual Automobile Ins. Co. v. Knapp, __ So.3d __ (Fla. 5th DCA, No. 5D17-447, 1/12/2018), 2018 WL 387222.
“Malpractice exception” to attorney-client privilege applies only to communications between client and lawyer being sued, not to communications between client and other counsel. [Added 1/29/18]
The Law Offices of Herssein and Herssein (“Herssein”) had a contract to defend homeowners insured by liability insurer United States Automobile Association (“USAA”). USAA insured Brennan had a dispute with “Claimant,” who allegedly was injured by Brennan’s dogs. USAA accepted a pre-suit demand for policy limits and tendered a check, but Claimant declined to cash the check and instead filed suit against Brennan and others (“Claimant’s Case”). Herssein was assigned to defend Brennan.
Instead of seeking to enforce the prior settlement agreement, Herssein withdrew the policy limit tender. During the litigation, Herssein advised Brennan to reject a policy-limit proposal for settlement. Herssein served a counter-proposal, which was rejected. At trial partial summary judgment was rendered for Claimant. Brennan then hired her own counsel (Maher) who indicated that Brennan may pursue a bad faith action against USAA and a legal malpractice action against Herssein. Recognizing the conflict, Herssein withdrew.
USAA appointed Wadsworth as successor counsel to represent Brennan. Claimant’s Case was settled at mediation, where USAA was represented by2 lawyers. Not long after that, USAA terminated its contract with Herssein. Herssein sued for breach of contract, and USAA counterclaimed alleging that it suffered damages due to Herssein’s negligent handling of Claimant’s Case.
Herssein sent interrogatories to USAA, including this one: “Whose advice did USAA take to settle [Claimaint’s Case] and pay over the insured’s policy limits, if that is what occurred?” USAA raised an attorney-client privilege objection to this interrogatory. Herssein also served Wadsworth with a non-party subpoena seeking documents that included communications between Wadsworth and “any person or party” involved in Claimant’s Case. Wadsworth objected, also on attorney-client privilege grounds. The trial court ordered USAA to answer and Wadsworth to produce. Both filed a petition for certiorari review. The Third DCA quashed the orders.
The appeals court concluded that the interrogatory to USAA sought privileged communications, because it sought “the identity of the lawyer who advised USAA to settle the case at the mediation. There is no practical difference, then, between this interrogatory question and asking USAA to divulge the content of the legal advice each attorney attending the mediation provided to USAA. Plainly, then, the subject interrogatory seeks confidential communications between USAA and its lawyers and is protected by the attorney-client privilege.” (Emphasis by court.)
The documents sought from Wadsworth also were privileged. Even though Brennan had his own counsel during the mediation, “it is well settled that communications between an insurer and the lawyer hired by the insurer to protect the insured’s interests are protected by the attorney-client privilege because the insurer and insured share a common interest in the outcome of the case.”
Herssein, however, argued that the “malpractice exception” to the attorney-client privilege applied. See F.S. 90.502(4)(c) (“[t]here is no lawyer-client privilege . . . when . . . [a] communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.”). The Third DCA disagreed. Citing Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021 (Fla. 4th DCA 1998), the court held the malpractice exception to the privilege “applies only to communications between the client and the lawyer being sued.” Neither the USAA lawyers nor Wadsworth met that requirement, and so the orders requiring disclosure were quashed. United States Auto. Ass’n v. Law Offices of Herssein and Herssein, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D17-1457, 3D17-1500, 3D17-1527, 12/13/2017), 2017 WL 6346673.
Litigation privilege does not protect defendant’s “noncommunicative” conduct in accessing opponents’ password-protected computer account, and statements made during examination under oath are subject only to qualified, not absolute, privilege. [Added 12/28/17]
Lawyer and Law Firm represented insurers in defending claims that they breached homeowner’s insurance policies by not covering expensive repairs made by a plumbing company (“Plaintiff”) to the insureds’ damaged pipes. The Firm worked with a former employee of Plaintiff who still had an active password to Plaintiff’s global positioning system account. Using the password, the Firm accessed Plaintiff’s account without telling Plaintiff. Law Firm used this information in issuing subpoenas and in conducting an examination under oath of an insured.
When Plaintiff learned about the conduct of Lawyer and Law Firm, it sued them along with other defendants (including the former employee). Lawyer and Law Firm moved for summary judgment, contending that their conduct was protected by the litigation privilege. The trial court granted the motion.
Plaintiff appealed, arguing that (1) the litigation privilege did not extend to the Firm accessing its computer account and (2) that the absolute litigation privilege did not apply to the Firm’s questions at the examination under oath. The Third DCA reversed and remanded.
Accessing Plaintiff’s password-protected account. The appeals court pointed out that there is a distinction between communicative and noncommunicative acts when applying the litigation privilege. The purpose of the privilege “is to protect courtroom speech and advocacy – the communicative tools lawyers, litigants, and witnesses use to search for the truth in our adversarial justice system.” The court concluded: “Without a communicative act, [Lawyer] and his firm’s actions fall outside what the Florida Supreme Court has held as protected by the litigation privilege. We conclude that [Lawyer]’s sitting at his computer and accessing [Plaintiff’s] account was not a communication subject to the privilege.”
Examination under oath. Law Firm argued that the absolute litigation privilege applied to the questioning at the examination under oath, just as it would if the questioning occurred during a deposition. The appellate court disagreed. “The absolute privilege, the Florida Supreme Court has explained, is part of a tradeoff. The absolute privilege was created to encourage zealous representation and the free and full discovery of facts between the parties and the court. . . . In exchange, the parties subject themselves to the consequences if they cross the line: striking from the record scurrilous accusations; sanctions; and even criminal contempt. The civil procedure deposition fits snuggly within this balance. Examinations under oath do not. . . . We conclude that an examination under oath is outside the formal discovery process, and therefore, does not support an extension of the absolute privilege.” (Citations omitted.) The court concluded that only a qualified privilege could apply, and remanded for determination of whether the statements were made with express malice. Arko Plumbing Corp. v. Rudd, __ So.3d __ (Fla. 3d DCA, No. 3D16-1689, 10/18/2017), 2017 WL 4654904.
Supreme Court broadly construes Amendment 7 to protect external peer review reports of hospital’s adverse medical incidents created by outside retained expert. [Added 11/28/17]
Plaintiff sued Hospital for alleged medical negligence by a Hospital surgeon. Plaintiff sought discovery of all documents relating to Hospital’s investigation or review of her care and treatment. Hospital asserted privilege as to certain documents, including “attorney requested external peer review” reports. The trial court found the external peer review reports to be privileged, but ordered production on the ground that the privileges were preempted by Amendment 7 (Fla.Constit. Art. X, Sec. 25).
The Second DCA quashed the production order, concluding that the reports “are not within the ambit of Amendment 7.” Amendment 7 preempts the statutory discovery protections for the peer review process “by providing patients a right of ‘access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.’” The attorney-requested external peer review reports were not created “in the course of business;” rather, they were prepared for litigation purposes. “Records created by an expert retained for purposes of litigation are not kept in the course of regularly conducted business activity. [Citation omitted.] Accordingly, the external peer review reports were not ‘made or received in the course of business’ under Amendment 7” and so were not covered by the amendment. Bartow HMA, LLC v. Edwards, 175 So.3d 820 (Fla. 2d DCA 2015).
The Supreme Court reversed, holding that Hospital’s “external peer review reports are discoverable under Amendment 7’s broad reach.”
Regarding the scope of Amendment 7, Plaintiff argued that it was intended to do away with all limitations on the discovery of adverse medical incidents; in contrast, Hospital argued that the amendment eliminated only the specific statutory limitations on discovery that were in place when Amendment 7 was passed in 2004. After discussing the “plain language” of Amendment 7, the Supreme Court sided with Plaintiff: “[W]e hold that Amendment 7’s application was not intended to be limited only to those adverse medical incident records previously protected by statute.” Rather, “Amendment 7 was aimed at eliminating all discovery restrictions on ‘any records . . . relating to any adverse medical incident.’” (Emphasis by court.)
The Court further determined that the reports in question, prepared by an external peer review committee, were subject to discovery under Amendment 7. “[T]he the mere fact that [Hospital] voluntarily outsourced its peer review needs also does not place the reports produced outside or beyond the scope of Amendment 7’s reach. Any contrary conclusion would provide hospitals with a blueprint as to the method to evade their constitutionally-mandated discovery requirements.”
Finally, the Court indicated that Amendment 7 would require production of fact work product, but stated that, based on the record before it, the Court did not find it necessary to address “the issue of opinion work product or the attorney-client privilege as they relate to Amendment 7.”
Two justices dissented, noting, among other things, that “Amendment 7’s history underscores that it was not intended to destroy the work-product doctrine or the attorney-client privilege.” Edwards v. Thomas, __ So.3d __ (Fla., No. SC15-1893, 10/26/2017), 2017 WL 4837631.
Third DCA upholds sanction order imposing waiver of party’s work product privilege as to certain emails based “serious and intentional” discovery violations by party rather than counsel. [Added 7/25/17]
As a sanction for “serious and intentional discovery violations” relating to certain emails, the trial court ordered that Defendant’s work product privilege regarding the emails be waived. The emails pertained to Defendant’s investigations and actions following an incident involving Plaintiff. The sanction was imposed based on the conduct of Defendant, not is counsel.
Defendant petitioned the Third DCA for a writ of certiorari, contending that the trial court departed from the essential requirements of law. The appellate court denied the petition, concluding: “As there is competent substantial evidence to support the trial court’s finding that the discovery violations were intentional and because the sanction imposed by the trial court was well within its discretion, we find no departure from the essential requirements of law.” Kidde Fire Trainers, Inc. v. McCrea, __ So.3d __ (Fla. 3d DCA, No. 3D17-636, 6/14/2017), 2017 WL 2562404.
First DCA concludes that indigent defendant represented by pro bono counsel has no right to file motions for appointed experts and miscellaneous costs ex parte and under seal, but certifies question to the Supreme Court. [Added 6/12/17]
Criminal Defendant was indigent and represented by pro bono private counsel in a resentencing proceeding. “In order to avoid revealing privileged information or work product to the State Attorney’s Office, [Defendant] requested permission to file all her motions for appointed experts and miscellaneous costs ex parte and under seal, with service to the Justice Administrative Commission (‘JAC’) and notice to the State Attorney’s Office, and requested that the JAC be required to file all responses that may reveal substantive content relevant to her defense without service to the State and under seal.” The trial court denied the motion.
Defendant petitioned the First DCA for a writ of certiorari, arguing that denial “will result in the violation of her rights to due process, fundamental fairness, equal protection, and effective assistance of counsel under the United States and Florida Constitutions, as well as the attorney-client privilege and the work-product doctrine.”
The First DCA denied the petition, noting its “limited standard of review.” Although the court found Defendant’s argument “persuasive,” she had “cite[d] no Florida case law, Florida statute, or Florida rule of court that requires motions for appointment of experts and costs to be conducted on an ex parte basis under the facts of this case and our independent research disclosed none.”
The court certified the following question to the Florida Supreme Court as one of great public importance: “Whether an indigent defendant who is represented by private counsel pro bono is entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the State Attorney’s Office, and to have any hearing on such motions ex parte, with only the defendant and the Commission present.” Andrews v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-733, 5/2/2017), 2017 WL 1655247.
[See also Monroe v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-4672), 2017 WL 3122203.]
Evidentiary hearing required to determine whether crime-fraud exception applies to asserted attorney-client privilege. [Added 6/3/17]
Plaintiff suspected that Defendants “were behind a hate mail campaign directed at him.” Plaintiff also suspected that Defendants were funding a suit against him (the “Kay-Dee case”). Representing Plaintiff, Lawyer set depositions for Defendants in the Kay-Dee case even though Defendants were not parties in that case. At the depositions Lawyer had Defendants touch paper that was treated to allow for easier collection of DNA. After the depositions Lawyer also collected Defendants’ discarded water bottles for DNA collection. Eight months later, Plaintiff sued Defendants for defamation.
In the defamation action, Defendants deposed Lawyer about “the scheduling of their deposition and the DNA collection in the Kay-Dee case. [Lawyer] asserted attorney-client and Fifth Amendment privileges throughout. The defendants then moved to compel the attorney to answer questions, arguing the crime-fraud exception applied to avoid the attorney-client privilege.” Defendants alleged that Lawyer’s conduct violated F.S. 760.40, generally requiring consent to do a DNA test.
Lawyer was not present at the hearing on the motion to compel. The trial court concluded that Lawyer had participated in a “fraud upon the court” in connection with scheduling Defendants’ depositions without a legitimate purpose apart from DNA collection and ruled that the crime-fraud exception to the attorney-client privilege applied.
Lawyer petitioned for writ of certiorari, arguing that “he did not receive notice of, and was not present at, the hearing leading to the detailed order under review.” The Fourth DCA agreed and quashed the order. Due process requires an evidentiary hearing to determine applicability of the crime-fraud exception, and Lawyer “was denied due process when the court found that his conduct was fraudulent without offering him an opportunity to be heard.” Douberley v. Perlmutter, __ So.3d __ (Fla. 4th DCA, No. 4D16-2597, 5/24/2017), 2017 WL 2264617.
Court erred in granting summary judgment on law firm’s claim of litigation privilege, where some of firm’s actions were taken after withdrawing from representation. [Added 5/17/17]
Law firm Business Law Group (“BLG”) represented a condominium association on matters relating to collections and enforcement of liens. The client recorded a claim of lien against a unit owner for unpaid assessments. The unit was sold to AGM Investors at auction due to unpaid taxes. That sale extinguished the client association’s lien claim. Despite this, BLG recorded 3 claims of lien against AGM. After the third claim, BLG represented its client in filing a foreclosure suit against AGM.
AGM filed counterclaims against the association and against BLG for abuse of process, malicious prosecution, and slander of title. At that point, BLG “sought to withdraw as the association's counsel, alleging that AGM's assertion of third-party claims against it created a potential conflict of interest with the association.” The court granted the motion to withdraw – but 2 months later BLG filed a 4th and 5th claim of lien against AGM.
The trial court granted summary judgment for BLG based on its defense of litigation privilege, “reasoning that the filing of each of the claims of lien was necessarily preliminary to the enforcement of the association's lien for unpaid assessments in a judicial proceeding and, as a result, that the absolute litigation privilege barred AGM's claims as a matter of law.” AGM appealed.
The Second DCA reversed. The litigation privilege exempts litigation participants from liability for their conduct in the course of judicial proceedings if that conduct is related or connected to the subject at issue. This privilege applies in litigation as well as to conduct that is “necessarily preliminary” to judicial proceedings. Here, there was a question of material facts as to whether the 4th and 5th claims of lien were “necessarily preliminary” to any lien foreclosure proceedings, in view of the fact that the foreclosure was already underway when those liens were filed. The court pointed out that it was “entirely debatable . . . that no one ever contemplated commencing litigation based on the fourth and fifth claims of lien and, as a result, that the recording of those claims of lien was not preliminary to future litigation because the association's lien interest was already fully protected by the then-ongoing litigation . . .” Although not ruled on in yet Florida, other jurisdictions have held that “tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration.” (Citations omitted.)
Further, the court noted that the 4th and 5th claims of lien were filed after BLG had withdrawn from the case. This raised a factual issue. “If the facts are disputable regarding whether [BLG] was acting on the association’s behalf when it filed the last two claims of lien, then entering summary judgment on AGM’s third-party tort claims as related to the fourth and fifth claims of lien based on the application of the litigation privilege was error. An act taken outside the scope of [BLG]’s representation cannot have been necessarily preliminary to any future lien enforcement proceedings.” AGM Investors, LLC v. Business Law Group, P.A., __ So.3d __ (Fla. 2d DCA, No. 2D14-4704, 4/19/2017), 2017 WL 1399764.
Supreme Court rules that whether personal injury client’s lawyer referred client to a doctor for treatment is protected by attorney-client privilege. [Added 4/19/17]
Client was injured in a “relatively routine trip-and-fall” in Defendant’s parking lot. She did not see a specialist immediately. A month or two later, after retaining Law Firm, she was treated by doctors from several medical facilities. Those doctors’ bills appeared to Defendant to be “unusually high,” and Client conceded that it could be argued that the bills were “unreasonable.”
Defendant sought to discover financial and referral information regarding what it termed a “cozy agreement” between Law Firm and Client’s treating physicians. All of the treating physicians testified that they were unsure who referred Client to them. The court ultimately ordered Client to produce documents reflecting direct and indirect referral arrangements or understandings between Law Firm and the physicians. “If the health care provider doesn’t have it, then the law firm is to produce it.”
Client petitioned the Fifth DCA, seeking to quash the order for reasons including that it “requires production of information protected by attorney-client privilege.” The appellate court denied the petition. The appeals court certified conflict with Burt v. GEICO, 603 So.3d 125 (Fla. 2d DCA 1992), “to the extent that it holds that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by attorney-client privilege.”
Exercising its conflict jurisdiction, the Supreme Court quashed Worley and approved Burt. Worley v. Central Florida YMCA, 163 So.3d 1240 (Fla. 5th DCA 2015).
The Supreme Court began its analysis by rejecting the underpinning of the Fifth DCA’s decision, which was the view that, under Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1993), the financial relationship between a law firm and its client’s treating physician is discoverable. Boecher dealt with discoverability of the financial relationship between a defendant insurance company and its expert witness. The Supreme Court distinguished Boecher on 2 grounds: (1) unlike the insurance company in Boecher, the law firm is not a party to the case; and (2) Boecher dealt with experts who were hired for the purposes of litigation, as opposed to treating physicians who are involved because they are acting “in the course of attempting to make [their] patient[s] well” and, when they do testify, they usually testify about their own medical performance rather than someone else’s. (Citations omitted.)
The Court also commented that there are other ways to demonstrate bias on the part of the treating physician, such as providing evidence that the physician was relying on a letter of protection or that the physician’s practice was based entirely on patients treated under letters of protection.
With that backdrop, the Court held that “the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege.” None of the exceptions to the statutory privilege were applicable. The Court also rejected the contention that the act of referring a client to a doctor was “an underlying fact” rather than a communication. “That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish ‘facts’ from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients.”
The Court also quashed the trial court’s order regarding a supplemental request to produce information, finding it “unduly burdensome” and thus could have a “chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation.”
Three justices of the 7-member Court dissented, expressing the view that “[a] lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services. Therefore, the referral itself is not protected as an attorney-client privileged communication.” Worley v. Central Florida Young Men’s Christian Ass’n, Inc., __ So.3d __ (Fla., No. SC15-1086, 4/13/2017), 2017 WL 1366126.
Court erred in overruling non-party’s relevance objections to subpoena that sought privileged documents and requirement that non-party file privilege log. [Added 3/6/17]
An individual died after an accident on Petitioner’s property. The decedent’s estate did not sue Petitioner but instead served a subpoena on it. Petitioner objected on grounds of relevance (that it was not reasonably calculated to lead to discovery of admissible evidence in the probate action), asserted that the documents sought were privileged, and argued that as a non-party to the probate action it was not required to file a privilege log. Petitioner filed an affidavit of its safety manager stating that the documents were all prepared in anticipation of litigation at the direction of counsel. Petitioner argued that the subpoena was “nothing more than a fishing expedition.”
The trial court overruled the relevance objections and ordered Petitioner to file a privilege log as a prelude to an in camera inspection. Petitioner sought a writ of certiorari from the Fourth DCA.
The appellate court granted the petition and quashed the order. The documents sought were not “relevant to the subject matter of the pending action” as required by Fla.R.Civ.P. 1.280(b)(1) because Petitioner is not a party to the probate action. Further, the subpoena sought document that are privileged under the work product doctrine.
Regarding the privilege log, the court stated: “Even if the subpoena arguably sought non-privileged documents which are reasonably calculated to lead to the discovery of admissible evidence in a probate action, the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We previously have held that the plain language of [Fla.R.Civ.P.] 1.280 and 1.351 . . . do not require non-parties to file privilege logs.” United States Sugar Corp. v. Estate of Mullins, __ So.3d __ (Fla. 4th DCA 1/25/2017), 2017 WL 363141.
Supreme Court decides that litigation privilege cannot be used to bar claim of malicious prosecution that is otherwise viable. [Added 2/21/17]
Exercising its conflict jurisdiction, the Florida Supreme Court held that “the litigation privilege does not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil suit.” The Court approved the Fourth DCA’s decision in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015) and quashed the Third DCA’s decision in Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) to the extend it is inconsistent with the Supreme Court’s decision.
Plaintiffs sued a number of defendants, later adding Fischer as a party defendant and then subsequently dropping him. Fischer sued for malicious prosecution. Plaintiffs moved for summary judgment, arguing that the litigation privilege provided them with immunity for their conduct of joining Fischer as a defendant in the underlying suit. The trial court granted Plaintiffs’ motion for summary judgment.
The Fourth DCA reversed, holding that “the litigation privilege cannot be applied to bar the filing of a claim for malicious prosecution” where all of the elements of a malicious prosecution action are satisfied. “Because the commencement or continuation of an original criminal or civil judicial proceeding is an act ‘occurring during the course of a judicial proceeding’ and having ‘some relation to the proceeding,’ malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege. If the litigation privilege could apply to bar a malicious prosecution action, this would mean that the tort of malicious prosecution would be effectively abolished in Florida – or, at the very least, eviscerated beyond recognition.” The Fourth DCA certified conflict with the Third DCA’s decision in Wolfe.
The Supreme Court approved the Fourth DCA’s decision in Fischer. “Applying the litigation privilege here would eviscerate this long-established cause of action for malicious prosecution. Specifically, the first element of a claim for malicious prosecution is that ‘an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued.’ [Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994)] (emphasis added).” Debrincat v. Fischer, __ So.3d __ (Fla., SC15-1477, 2/9/2017), 2017 WL 526508.
Supreme Court rules that Amendment 7 adverse incident reports are not privileged under Federal Patient Safety and Quality Improvement Act. [Added 2/20/17]
Charles filed a medical malpractice suit against Hospital. Under Amendment 7 (Fla. Constit. Art. X, Sec. 25) Charles sought production of documents relating to adverse medical incidents. Hospital objected that the documents were privileged under the Federal Patient Safety and Quality Improvement Act (42 U.S.C. sec. 299b-22 (2005)) (the “Federal Act”). The trial court ordered production. Hospital petitioned the First DCA for a writ of certiorari, which was granted. The appellate court ruled that the Federal Act’s “plain language” made it clear that the documents were privileged under the Act as “patient safety work product.” The court also held that under the Supremacy Clause the Federal Act preempted “any broad discovery right under Amendment 7 to documents meeting the [statutory] definition of” patient safety work product. Southern Baptist Hospital of Florida, Inc. v. Charles, 178 So.3d 102 (Fla. 1st DCA 2015).
The Florida Supreme Court reversed. The Court determined that “adverse medical incident reports are not patient safety work product because Florida statutes and administrative rules require providers to create and maintain these records and Amendment 7 provides patients with a constitutional right to access these records.” Accordingly, they fall within an exception to the Federal Act’s protection. Further, the Federal Act, which permits voluntary health care provider participation, did not preempt Amendment 7.
The Supreme Court summarized: “[W]e hold that Congress did not intend to preempt state laws or Amendment 7 through the passage of the Federal Act creating a voluntary reporting system. Rather, the clear intent of the Federal Act, as set forth in the actual language of the Federal Act, was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws. The Federal Act was intended by Congress to improve the overall health care in this system, not to act as a shield to providers, thereby dismantling an important right afforded to Florida citizens through Amendment 7. Moreover, health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases.” Charles v. Southern Baptist Hospital of Florida, Inc., __ So.3d __ (Fla., No. SC15-2180, 1/31/2017), 2017 WL 411333.
Court’s production order requiring filing of a privilege log as to categories of documents that “typically would be privileged” quashed by Fifth DCA. [Added 1/9/17]
Country Club sued Law Firm, alleging that Law Firm tortuously interfered with Country Club’s contractual relationships with some of Law Firm’s clients by wrongly advising or encouraging the clients to breach their contracts with Country Club. Country Club moved to compel production of 10 categories of documents. The court ordered Law Firm to produce the documents or file a privilege log regarding documents that were claimed to be privileged.
The Fifth DCA granted Law Firm’s certiorari petition in part. “We realize that the order under review does not expressly require the production of any privileged communications since the order permits [Law Firm] to file a privilege log as to any such documents. However, certain categories of documents clearly request documents that are privileged, either under the attorney-client or work-product privilege. Thus, the trial court’s ruling requiring the production of a privilege log as to those categories constitutes a departure from the essential requirements of law resulting in material injury to [Law Firm] which cannot be remedied on direct appeal.” Accordingly, the appeals court quashed the production order as to those documents “which would typically be privileged” under the attorney-client privilege or work product doctrine. Finn Law Group, P.A. v. Orange Lake Country Club, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D16-1591, 12/16/2016), 2016 WL 7324199.
Criminal defendant’s handwritten notes not protected by attorney-client privilege because they were not “communications” with counsel. [Added 1/6/17]
Convicted criminal defendant Lee entered a plea to reduced charges of second-degree murder and attempted felony murder in exchange for providing assistance to the State in the prosecution of his co-defendants. Counsel for the co-defendants deposed Lee. During the deposition, Lee disclosed that he had prepared written notes on 2 or 3 occasions “for his ‘personal use.’” Lee said that he did not give his lawyer a copy of the notes, but he had “discussed it with her.” In fact, his lawyer was unaware of the existence of the notes until she learned of them at Lee’s deposition.
Counsel for the co-defendants moved to compel production of the notes. Lee objected on attorney-client privilege grounds. The trial court ordered production, ruling that “[n]o privilege exists and the notes are subject to the discovery rules.”
The Third DCA denied Lee’s petition for certiorari. The attorney-client privilege codified in F.S. 90.502 protects confidential communications between client and lawyer made for the purpose of seeking or giving legal advice. The court framed the issue as “whether the Notes are a ‘communication’ as referenced in section 90.502(1)(c), and therefore subject to the attorney-client privilege.” The trial court had rejected Lee’s claims that he wrote the notes “as ‘trial preparations’ so that he could discuss ‘strategy’ with his lawyers.” Specifically, “the trial court found that as ‘Lee never gave the notes to his attorney (or even discussed them with her until after the deposition) – and obviously only after a plea was reached – they were not written for trial preparation or strategy purposes.’” These findings were supported by the record; “[s]ignificantly, there was no testimony or other evidence presented that Lee’s attorney requested he make the Notes, or that Lee intended the Notes to be delivered to his attorney.” Lee v. Condell, __ So.3d __ (Fla. 3d DCA, No. 3D15-2316, 12/14/2016), 2016 WL 7232266.
Third DCA grants petition for certiorari to quash non-final order compelling disclosure of attorney-client privileged documents and opinion work product. [Added 12/1/16] -- Tyco Fire Products, L.P. v. 2711 Hollywood Beach Condominium Ass’n, __ So.3d __ (Fla. 3d DCA, No. 3D16-2043, 11/16/2016), 2016 WL 6778389.
In addressing attorney-client privilege question concerning decedent’s estate planning lawyer, Third DCA highlights distinction between evidentiary privilege and ethical rule of confidentiality. [Added 10/28/16] -- Vasallo v. Bean, __ So.3d __ (Fla. 3d DCA, No. 3D16-1862, 10/26/2016), 2016 WL 624917.
Order requiring party to produce all sworn witness statements, which were work product, quashed as departure from essential requirements of law. [Added 10/22/16] -- Selton v. Nelson, __ So.3d __ (Fla. 5th DCA, No. 5D15-3960, 10/14/2016), 2016 WL 6023927.
Fourth DCA denies criminal defendant’s petition to have subpoenas duces tecum issued secretly on work product grounds. [Added 9/22/16] -- Jackson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-2357, 9/7/2016), 2016 WL 4649993.
Although client can be compelled to disclose when and with what lawyers she consulted, she cannot be required to divulge reasons why she consulted them if doing so would reveals attorney-client communications. [Added 7/6/16] -- Coffey-Garcia v. South Miami Hospital, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1966, 6/22/2016), 2016 WL 3410415.
NOTE: For a similar result, see Mobley v. Homestead Hospital, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1902, 7/20/2016), 2016 WL 3911887 ("Certainly, Mobley can be asked and required to answer factual questions about what she learned at various points in time concerning the nature and potential causes of Tavarion’s condition from sources other than the attorneys she consulted. She can also be required to respond to questions concerning her intentions, thoughts and reasons for seeking legal counsel so long as those intentions, thoughts and reasons were not informed by
communications with counsel.").
Evidentiary hearing on claim for fees under F.S. 57.105 is appropriate, but claimant is not entitled to privileged information from opposing party or counsel to prove fee claim. [Added 4/3/16] -- Tedrow v. Cannon, __ So.3d __ (Fla 2d DCA, No. 2D15-3405, 2/19/2016), 2016 WL 670348.
Supreme Court rules that opposing counsel’s time records are relevant and discoverable by party seeking to recover fees when fees are contested. [Added 3/31/16] -- Paton v. GEICO General Ins. Co., __ So.3d __ (Fla., No. SC14-282, 3/24/2016), 2016 WL 1163372.
Court erred ruling that condo association waived its attorney-client privilege by disclosing documents to association's agents, where court failed to conduct in camera inspection of documents. [Added 12/24/15] -- Las Olas River House Condominium Ass’n, Inc. v. Lorh, LLC, 181 So.3d 556 (Fla. 4th DCA 2015).
Court erred in ordering production of photos over work product objections without holding evidentiary hearing. [Added 11/20/15] -- City of Port St. Lucie v. Follano, 177 So.3d 301 (Fla. 4th DCA 2015).
Court departed from essential requirements of law by ordering production of certain documents based on crime-fraud exception without holding evidentiary hearing. [Added 11/2/15] -- Brannon v. Palcu, 177 So.3d 693 (Fla. 4th DCA 2015).
Court erred in compelling production of work product photos where there had been no showing that party seeking discovery diligently tried to get substantial equivalent through other means. [Added 10/1/15] -- Seaboard Marine Ltd. v. Clark, 174 So.3d 626 (Fla. 3d DCA 2015).
Court erred in ordering production of those portions of expert’s written opinion that were not relevant to claims at issue in that suit. [Added 7/14/15] -- SCI Funeral Services of Florida, Inc. v. Walthour, 165 So.3d 861 (Fla. 1st DCA 2015).
Statements made in affidavit filed in pending judicial proceeding were protected by absolute privilege from defamation claim. [Added 7/1/15] -- Zuccarelli v. Barfield, 165 So.3d 830 (Fla. 4th DCA 2015).
Court erred in ordering party’s lawyer, who was not counsel of record, deposed. [Added 6/18/15] -- Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, 173 So.3d 994 (Fla. 3d DCA 2015) (on motion for clarification).
Court erred in ordering production of claims management services company’s case file over work product and attorney-client privilege objections; work product retains qualified protection applies regardless of whether subsequent litigation is related. [Added 5/19/15] -- Sedgwick Claims Management Services, Inc. v. Feller, 163 So.3d 1252 (Fla. 5th DCA 2015).
Court correctly overruled attorney-client privilege objections to questions asked at hearing to enforce alleged settlement, because privilege was waived when objecting party put at issue question of its lawyer’s authority to settle. [Added 4/27/15] -- Lender Processing Services, Inc. v. Arch Ins. Co., 183 So.3d 1052 (Fla. 1st DCA 2015).
Mental health evaluation report prepared by a criminal defendant’s privately retained expert is protected by attorney-client privilege despite Fla.R.Crim.P. 3.220. [Added 4/26/15] -- Manuel v. State, 162 So.3d 1157 (Fla. 5th DCA 2015).
Court erred in compelling production of attorney-client privileged documents based on relevance and need by opponent. [Added 4/19/15] -- Florida Power & Light Co. v. Hicks, 162 So.3d 1074 (Fla. 4th DCA 2015).
Joint defense agreement does not have to be in writing in order for communication to be protected by attorney-client privilege. [Added 4/4/15] -- AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So.3d 510 (Fla. 2d DCA 2015).
Attorney-client privilege might not be waived when person within ambit of privilege uses outside person to receive emailed communication. [Added 4/4/15] -- AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So.3d 510 (Fla. 2d DCA 2015).
Quarterly Safety Committee Reports prepared by mall where slip and fall occurred protected from discovery as work product. [Added 2/13/15] -- Millard Mall Services, Inc. v. Bolda, 155 So.3d 1272 (Fla. 4th DCA 2015).
In paternity and child support action, court erred in ordering production of settlement agreements involving non-party clients of law firm employing lawyer/mother. [Added 2/12/15] -- Medina v. Haddad, 156 So.3d 1113 (Fla. 3d DCA 2015).
Whether offer of judgment was made in good faith is based on objective criteria, and claim for fees based on offer does not waive attorney-client privilege or work product protection. [Added 12/29/14] -- Butler v. Harter, 152 So.3d 705 (Fla. 1st DCA 2014).
By filing action to reform contract to accurate reflect parties intent, party seeking reformation does not automatically waive attorney-client privilege. [Added 12/9/14] -- Markel American Ins. Co. v. Baker, 152 So.3d 86 (Fla. 5th DCA 2014).
Third DCA upholds order requiring production of law firm’s trust account wire receipt records over attorney-client privilege objections. [Added 11/5/14] -- Sweetapple, Broeker & Varkas, P.L. v. Simmon, 151 So.3d 42 (Fla. 3d DCA 2014).
Fourth DCA quashes order allowing discovery of litigation file of insurer’s counsel in bad faith action. [Added 10/28/14] -- GEICO General Ins. Co. v. Moultrop, 148_ So.3d 1284 (Fla. 4th DCA 2014).
Law firm’s defamation suit against former partner dismissed as barred under absolute litigation privilege, notwithstanding non-disparagement agreement. [Added 10/8/14] -- James v. Leigh, 145 So.2d 1006 (Fla. 1st DCA 9/5/2014).
In third-party bad faith suit, attorney-client privilege may apply to protect communications between insurer and its counsel, per Fifth DCA. [Added 9/12/14] -- Boozer v. Stalley, 146 So.3d 139 (Fla. 5th DCA 2014).
Court erred in ordering production of privileged documents based on crime-fraud exception without first holding evidentiary hearing. [Added 8/4/14] -- Merco Group of the Palm Beaches, Inc. v. McGregor, 162 So.3d 49 (Fla. 4th DCA 2014).
In coverage dispute, trial court erred in ordering production of insurer's claim file from closed claim over insureds work product objection. [Added 7/18/14] -- State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493 (Fla. 5th DCA 2014).
Second DCA rules that client's fee arrangements with her lawyer are protected by client privilege. [Added 5/21/14] -- Tumelaire v. Naples Estates Homeowners Ass’n, Inc., 137 So.3d 596_ (Fla. 2d DCA 2014).
Dismissal of defamation counterclaim arising out of statements made to a potential witness due to the qualified litigation privilege is affirmed by the Fourth DCA. [Added 4/29/14] -- Pomfret v. Atkinson, 137 So.3d 1161 (Fla. 4th DCA 2014).
Handwritten draft answers to interrogatories provided by a client to her lawyer are attorney-client privileged communications. [Added 4/23/14] -- Montanez v. Publix Super Markets, Inc., 135 So.3d 510 (Fla. 5th DCA 2014).
Reversing Third DCA, Supreme Court applies “hot potato rule” in ordering disqualification of lawyers for violating conflict of interest rules -- even though lawyers were not "direct counsel" of some affiants who urged disqualification due to exposure to confidential information. [Added 4/7/14]
See discussion under "Conflicts of Interest" section. Young v. Achenbauch, 136 So.3d 575 (Fla., No. SC12-988, 3/27/2014).
Although its motion for protective order was denied, insurer may file privilege log before producing documents. [Added 2/14/14] -- State Farm Florida Ins. Co. v. Coburn, 136 So.3d 711 (Fla. 2d DCA 2014).
Statement taken by investigator for defendant’s insurer in negligence case was work product and court erred in ordering its production. [Added 11/10/13] -- International House of Pancakes (IHOP) v. Robinson, 124 So.3d 1004 (Fla. 4th DCA 11/6/2013).
Court correctly ruled that inadvertent disclosure did not waive work product privilege but was premature in disqualifying recipient. [Added 8/14/13] -- Construction Systems of America, Inc. v. Travelers Casualty & Surety Co. of America, 118 So.3d 342 (Fla. 3d DCA 8/7/2013).
Board of Governors approves ethics opinion regarding lawyers’ use of “cloud computing.” [Added 8/7/13] In July 2013 the Florida Bar Board of Governors approved Florida Ethics Opinion 12-3. The opinion concludes that it is ethically permissible for lawyers to use “cloud computing” if they take reasonable precautions to protect confidential information. The final paragraph of Opinion 12-3 summarizes: “[L]awyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained, that the service provider maintains adequate security, and that the lawyer has adequate access to the information stored remotely. The lawyer should research the service provider to be used.”
Litigation privilege applies to protect lawyers from claims for abuse of process and malicious prosecution. [Added 7/23/13] -- Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 7/17/2013).
Court erred in excluding from evidence portion of public record containing investigator’s “mental impressions.” [Added 7/19/13] -- City of Avon Park v. State, 117 So.3d 470 (Fla. 2d DCA 7/17/2013).
Per Third DCA, there is no “dependency exception” to attorney-client privilege to justify requiring minor’s attorneys ad litem to disclose his whereabouts. [Added 6/24/13] -- R.L.R. v. State, 116 So.3d 570 (Fla. 3d DCA 6/19/2013).
Criminal defendant unsuccessful in asserting that results of blood alcohol test are protected as work product. [Added 6/18/13] -- Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 6/12/2013).
Defendant in high-profile murder case is permitted to take deposition of lawyer who interviewed “potentially crucial” witness. [Added 6/12/13] -- Zimmerman v. State, 114 So.3d 446 (Fla. 5th DCA 6/7/2013).
Former client whose disqualification motion was denied cannot obtain certiorari relief where lawyer “adamantly denied receiving any confidences.” [Added 6/10/13] -- McCormack v. Russell, 114 So.3d 456 (Fla. 4th DCA 6/5/2013).
“Unfair informational advantage” standard for disqualification does not apply where lawyer represents different clients against same opposing party in unrelated matters. [Added 5/20/13] -- Miccosukee Tribe of Indians v. Lehtinen, 114 So.3d 319 (Fla. 3d DCA 5/15/2013).
Court erred in ruling that party waived work product and attorney-client privilege objections to discovery request by not filing privilege log. [Added 4/26/13] -- DLJ Mortgage Capital, Inc. v. Fox, 112 So.3d 644 (Fla. 4th DCA 4/24/2013).
Court applied wrong legal standard regarding who had authority to waive corporation’s attorney-client privilege. [Added 4/16/13] -- Rogan v. Oliver, 110 So.3d 980 (Fla. 2d DCA 4/10/2013).
Court erred in ordering production of documents over attorney-client privilege objection without first reviewing them in camera to determine if privilege applied. [Added 4/11/13] -- Patrowicz v. Wolff, 110 So.3d 973 (Fla. 2d DCA 4/5/2013).
Court’s order allowing one party to depose opposing party’s lawyers did not depart from essential requirements of law. [Added 3/20/13] -- Allstate Ins. Co. v. Total Rehab and Medical Centers, Inc., 123 So.3d 1162 (Fla. 4th DCA 3/13/2013).
Per Florida Supreme Court, only qualified litigation privilege applies to statements made by lawyer during ex parte, out-of-court questioning of potential witness. [Added 2/20/13] -- DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2/14/2013).
Order compelling production over work product objection is quashed due to absence of findings justifying production. [Added 1/17/13] -- Magical Cruise Co. Ltd. v. Turk, 114 So.3d 233 (Fla. 5th DCA 1/11/2013).
Supreme Court holds that physician-patient confidentiality law bars ex parte meetings between nonparty treating physician and lawyer hired by her insurer. [Added 12/21/12] -- Hasan v. Garvar, 108 So.3d 570 (Fla. 2012).
Court erred in disqualifying wife’s counsel in divorce case based on receipt of confidential information allegedly improperly obtained from husband’s computer regarding different suit. [Added 12/5/12] -- Strawcutter v. Strawcutter, 101 So.3d 417 (Fla. 5th DCA 2012).
Court erred in ordering alleged bad faith production of insurer’s claims file materials before coverage dispute was resolved. [Added 12/4/12] -- State Farm Florida Ins. Co. v. Aloni, 101 So.3d 412 (Fla. 4th DCA 2012).
Third DCA addresses standard for disqualification when lawyers receive inadvertently disclosed confidential information. [Added 8/23/12] -- Moriber v. Dreiling, 95 So.3d 449 (Fla. 3d DCA 2012).
Court erred in allowing discovery of opposing counsel’s billing records to support claim for fee award. [Added 8/15/12] -- Estilien v. Dyda, 93 So.3d 1186 (Fla. 4th DCA 2012).
Fourth DCA holds that grocery store’s incident reports prepared after customer’s slip and fall are protected by work product privilege. [Added 8/1/12] -- Publix Super Markets, Inc. v. Anderson, 92 So.3d 922 (Fla. 4th DCA 2012).
Finding additional violation and imposing harsher discipline than sought by Bar, Supreme Court suspends lawyer who breached client confidentiality. [Added 7/13/12] -- Florida Bar v. Knowles, 99 So.3d 918 (Fla. 2012).
Court erred in ordering production of information gathered in risk management investigation over work product objections. [Added 7/3/12] -- Heartland Express, Inc., of Iowa v. Torres, 90 So.3d 365 (Fla. 1st DCA 2012).
Court erred in ruling that all of client’s communications with her attorney were not privileged as a matter of law because non-client was present for 60-65% of them. [Added 4/7/12] -- Witte v. Witte, 126 So.3d 1076 (Fla. 4th DCA 2012).
Certiorari does not lie to prevent in camera review of documents listed on privilege log. [Added 3/16/12] -- Bennett v. Berges, 84 So.3d 373 (Fla. 4th DCA 2012).
Protective order allowing plaintiff's counsel to share confidential discovery with lawyers who have similar cases against same defendant quashed. [Added 12/26/11] -- Wal-Mart Stores East, L.P. v. Endicott, 81 So.3d 486 (Fla. 1st DCA 2011).
Supreme Court suspends lawyer for 3 years rather than 90 days; confidentiality gives way to fiduciary obligations when holding money in trust for non-client. [Added 12/13/11] -- Florida Bar v. Watson, 76 So.3d 915 (Fla. 2011).
Order finding waiver of attorney-client and work product privilege objections due to "untimely" filing of privilege log is reversed. [Added 11/9/11] -- Fifth Third Bank v. ACA Plus, Inc., 73 So.3d 850 (Fla. 5th DCA 2011).
Litigation privilege applies to cause of action for abuse of process, and lack of subject matter jurisdiction does not preclude application of privilege. [Added 10/24/11] -- LatAm Investments, LLC v. Holland & Knight, LLP, 88 So.3d 240 (Fla. 3d DCA 2011).
Law firm disqualified from representing bank against guarantor due to unfair informational advantage gained by simultaneously representing guarantor's former lawyer in related malpractice suit. [Added 9/28/11] -- Frye v. Ironstone Bank, 69 So.3d 1046 (Fla. 2d DCA 2011).
Court erred in ordering production of party's claim file prior to deposition to refresh memory of witness who was formerly employed by party. [Added 9/28/11] -- Racetrac Petroleum, Inc. v. Cooper, 69 So.3d 1077 (Fla. 5th DCA 2011). Court erred in ordering redaction of all opinions "no matter by whom made" from Amendment 7 adverse medical incident reports. [Added 8/24/11] -- Acevedo v. Doctors Hospital, Inc., 68 So.3d 949 (Fla. 3d DCA 2011).
Statements posted on internet website by party to litigation are not protected by litigation privilege. [Added 8/1/11] -- Ball v. D'Lites Enterprises, Inc., 65 So.3d 637 (Fla. 4th DCA 2011).
Court erred in ruling that crime-fraud exception to attorney-client privilege applied without first holding evidentiary hearing. [Added 7/6/11] -- Armoyan v. Armoyan, 64 So.3d 198 (Fla. 4th DCA 2011).
Florida Bar Board of Governors approves ethics opinion addressing how decedent's lawyer should respond to requests for confidential information. [Added 4/4/11] In March 2011 the Florida Bar Board of Governors approved an advisory opinion published by the Bar's Professional Ethics Committee. Florida Ethics Opinion 10-3 addresses the ethical issues faced by a lawyer who represented a decedent, but does not represent the personal representative, and is later asked for confidential client information relating to the decedent by someone such as the personal representative, a beneficiary, or an heir. The headnote to Opinion 10-3 summarizes the opinion: "A lawyer’s ethical obligations regarding a request for confidential information of a deceased client by the personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel, will vary depending on the circumstances. A lawyer may disclose confidential information to serve the deceased client’s interests, unless the deceased client previously instructed the lawyer not to disclose the information. Whether and what information may be disclosed will depend on who is making the request, the information sought, and other factors. Doubt should be resolved in favor of nondisclosure. When compelled to disclose information via subpoena, a lawyer must disclose all information sought that is not privileged, and raise privilege as to any information for which there is a good faith basis to do so."
Court erred in ordering production in bad faith case of insurer's entire claim file over privilege and work product objections. [Added 3/27/11] -- State Farm Florida Ins. Co. v. Puig, 62 So.3d 23 (Fla. 3d DCA 2011).
Supreme Court rules that attorney-client privileged communications are not discoverable in first-party bad faith action. [Added 3/19/11] -- Genovese v. Provident Life and Accident Ins. Co., 74 So.3d 1064 (Fla. 2011).
Although defendant's incident reports were protected by work product privilege, facts on which they were based were not. [Added 2/28/11] -- Universal City Development Partners, Ltd. v. Pupillo, 54 So.3d 612 (Fla. 5th DCA 2011).
Supreme Court declines to amend Evidence Code to address inadvertent disclosure of privileged materials. [Added 1/13/11] -- In re: Amendments to the Florida Evidence Code, 53 So.3d 1019 (Fla. 2011).
Amendments to Fed.R.Civ.P. 26 effective Dec. 1, 2010, extend work product protection for expert witness reports and communications. [Added 1/3/11] -- Amendments to Federal Rule of Civil Procedure 26 that took effect on December 1, 2010, expand work product protection available in the case of expert witnesses. Under the new version of the rule, work product protection now extends to drafts of expert reports as well as communications (written or oral) between lawyers and experts.
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. [Added 1/3/11] -- Alan B. Garfinkel, P.A. v. Mager, 57 So.3d 221 (Fla. 5th DCA 2010).
Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, cell phones, and flash drives. [Added 12/16/10] In December 2010 the Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which had been promulgated earlier in the year by the Bar's Professional Ethics Committee. Opinion 10-2 addresses the ethical obligations of a lawyer who uses electronic devices that store information. These "Devices" may include "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices." The opinion discusses ethical duties of competence (citing Rule 4-1.1), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3). Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as hotels and copy centers.
Competence. Opinion 10-2 states: "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality. The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information. The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices. The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition. Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the Device, through the Device’s life cycle, and until disposition of the Device, including after it leaves the control of the lawyer."
Confidentiality. Opinion 10-2 states: "A lawyer must ensure confidentiality by taking reasonable steps to protect all confidential information under the lawyer’s control. Those reasonable steps include identifying areas where confidential information could be potentially exposed." Duty to supervise others. Opinion 10-2 states: "A lawyer’s supervisory responsibility extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control. If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained." Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones. "A lawyer has a duty to obtain adequate assurances that the Device has been stripped of all confidential information before disposition of the Device. If a vendor or other service provider is involved in the sanitization of the Device, such as at the termination of a lease agreement or upon sale of the Device, it is not sufficient to merely obtain an agreement that the vendor will sanitize the Device upon sale or turn back of the Device. The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means. Further, a lawyer should use care when using Devices in public places such as at copy centers, hotel business centers, and outside offices where the lawyer and those under the lawyer’s supervision have little or no control. In such situations, the lawyer should inquire and determine whether use of such Devices would preserve confidentiality under these rules."
The headnote published with Opinion 10-2 summarizes the opinion this way: "A lawyer who chooses to use Devices that contain Storage Media such as printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality; (2) inventory of the Devices that contain Hard Drives or other Storage Media; (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device."
Information known to opposing party as a result of settlement in unrelated suit not protected by attorney-client privilege. [Added 12/7/10] -- Neiman v. Naseer, 47 So.3d 954 (Fla. 4th DCA 2010).
JCC's order requiring claimant to produce intake documents created by his lawyer is reversed due to attorney-client privilege. [Added 9/22/10] -- Hagans v. Gatorland Kubota, LLC / Sentry Ins., 45 So.3d 73 (Fla. 1st DCA 2010).
Supreme Court adopts a Rule of Civil Procedure addressing inadvertent disclosure of privileged materials. [Added 9/10/10] The Supreme Court, acting on the regular-cycle report of proposed amendments filed by the Florida Bar Civil Procedure Rules Committee, adopted a new rule specifically addressing inadvertent disclosure of privileged materials. The rule initially was suggested by the Bar's Attorney-Client Privilege Task Force. New Florida Rule of Civil Procedure 1.285 authorizes a party who has inadvertently disclosed privileged materials to "thereafter assert any privilege recognized by law as to those materials." The assertion must be made "within 10 days of actually discovering the inadvertent disclosure." The rule establishes the procedure for making the assertion of privilege, the duties of the party receiving notice of the allegedly advertent disclosure, the recipient's right to challenge assertion of the privilege, and the content and effect of the court's order on the issue. The Court, however, declined to adopt the part of the proposed rule setting out factors for the court to consider in resolving a dispute over whether the materials are privileged. The Court stated that this rejected portion of the proposed rule "may address an issue of substantive law that is not appropriately addressed in a rule of procedure." The Court "express[ed] no opinion on the substance of the committee's proposal in this regard." The new rule becomes effective on January 1, 2011. In re: Amendments to the Florida Rules of Civil Procedure, 52 So.3d 579 (Fla. 2010).
Security video and photos of department store accident scene not protected from disclosure as work product. [Added 7/30/10] -- Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010).
Allegedly defamatory statements made by lawyer during potential witness interviews are absolutely privileged, per Fourth DCA. [Added 6/28/10] -- DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010).
Trial court erred in ordering lawyer to produce his file on separate, unrelated case in which he was representing same client. [Added 4/1/10] -- Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010).
Law firm disqualified based on unfair informational or tactical advantage obtained through receipt of opposing party's privileged materials. [Added 2/12/10] -- Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010).
First DCA discusses balancing test involved in determining whether "undue hardship" exception to work product privilege applies. [Added 1/4/10] -- Paradise Pines Health Care Associates, LLC v. Estate of Benekin, 27 So.3d 83 (Fla. 1st DCA 2009).
Trial court misapplied "relevant circumstances test" factors in determining that inadvertent disclosure waived attorney-client privilege. [Added 1/4/10] -- Nova Southeastern University, Inc. v. Jacobson, 25 So.3d 82 (Fla. 4th DCA 2009).
Non-party seeking protective order for confidential information not required to file privilege log. [Added 1/4/10] -- Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., 26 So.3d 620 (Fla. 4th DCA 2009).
Trial court erred in ordering disclosure of documents based on alleged waiver of attorney-client privilege without conducting in camera review or delineating scope of waiver. [Added 12/2/09] -- Alliant Ins. Services, Inc. v. Riemer Ins. Group, 22 So.3d 779 (Fla. 4th DCA 2009).
Trial court erred by denying defendant's motion to compel deposition of plaintiff's counsel, who was potential material witness. [Added 9/14/09] -- Nucci v. Simmons, 20 So.3d 388 (Fla. 2d DCA 2009).
Party does not waive attorney-client and work product privileges merely by transmitting privileged documents to its own expert witness. [Added 7/25/09] -- Mullins v. Tompkins, 15 So.3d 798 (Fla. 1st DCA 2009).
Party's possession of allegedly privileged documents does not require disqualification, where those documents were voluntarily disclosed to someone else in different proceeding. [Added 6/21/09] -- Walker v. River City Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA 2009).
Former client who gives deposition in suit for unpaid fees filed by her former lawyers waives attorney-client privilege, thus making that testimony available in other litigation. [Added 6/5/09] --- S & I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009).
Adverse medical incident reports not protected from discovery as fact work product, but may be protected as opinion work product. [Added 6/5/09] -- Florida Eye Clinic, P.A. v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009).
To successfully assert work product protection corporation must show that documents were prepared in anticipation of specific litigation matter. [Added 4/20/09] -- Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.3d 1180 (Fla. 4th DCA 2009).
Insurer successfully asserts attorney-client privilege in first-party statutory bad faith action. [Added 4/5/09] -- West Bend Mutual Ins. Co. v. Higgins, 9 So.3d 655 (Fla. 5th DCA 2009).
Second DCA quashes order requiring production of items in insurer's claims file during coverage dispute. [Added 3/17/09] -- Seminole Casualty Ins. Co. v. Mastrominas, 6 So.3d 1256 (Fla. 2d DCA 2009).
Third DCA quashes two discovery orders that would have resulted in disclosure of information protected by attorney-client and work product privileges. [Added 12/11/08] -- Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. 3d DCA 2008).
Plaintiff compelled to produce work product photos of slip-and-fall site under "undue hardship" exception. [Added 12/8/08] -- Kmart Corp. v. Sundmacher, 997 So.2d 1158 (Fla. 3d DCA 2008).
Congress passed and President Bush signed into law new Federal Rule of Evidence 502, concerning inadvertent waiver of attorney-client privilege. [Added 9/25/08] -- On September 19, 2008, President Bush signed into law legislation creating Federal Rule of Evidence 502. The new rule limits the circumstances under which inadvertent disclosure of information results in waiver of the attorney-client privilege or work product protection. The new rule applies to all proceedings commenced after it was signed.
Communications with lawyers seeking political, rather than legal, advice not protected by attorney-client privilege. [Added 9/16/08] -- Valliere v. Florida Elections Commission, 989 So.2d 1242 (Fla. 4th DCA 2008).
Trial court erred in not conditionally sealing financial records of doctor whose practice is limited to treating patients involved in personal injury litigation. [Added 7/21/08] -- Nucci v. Nucci, 987 So.2d 135 (Fla. 2d DCA 2008).
Trial court erred in requiring production of privileged documents used by witness to refresh recollection prior to testifying at deposition. [Added 7/8/08] -- Proskauer Rose LLP v. Boca Airport, Inc., 987 So.2d 116 (Fla. 4th DCA 2008).
Trial court departed from essential requirements of law in ruling that attorney-client privilege did not protect letter to plaintiffs from law firm regarding statute of limitations. [Added 6/27/08] -- Samuel v. Shands Teaching Hospital and Clinics, Inc., 984 So.2d 627 (Fla. 1st DCA 2008).
Lawyer's advice to client regarding applicable statute of limitations not protected by attorney-client privilege. [Added 5/29/08] -- Waffle House v. Scharmen, 981 So.2d 1266 (Fla. 1st DCA 2008).
Trial court's order requiring production of insurer's allegedly privileged claim and underwriting files is quashed. [Added 3/11/08] -- State Farm Mutual Auto. Ins. Co. v. O'Hearn, 975 So.2d 633 (Fla. 2d DCA 2008).
Order requiring disclosure of expert names and opinions over work product objections is reversed due to lack of evidence of need or undue hardship by party seeking disclosure. [Added 3/3/08] -- Taylor v. Penske Truck Leasing Corp., 975 So.2d 588 (Fla. 1st DCA 2008).
"Attorney-Client Privilege Protection Act of 2007" passes U.S. House of Representatives. [Added 11/16/07] -- "Attorney-Client Privilege Protection Act of 2007," H.R. 3013, was passed by the U.S. House of Representatives on November 12, 2007.
Trial court must hold evidentiary hearing before compelling testimony on basis of crime-fraud exception to attorney-client privilege. [Added 11/9/07] -- BNP Paribas v. Wynne, 967 So.2d 1065 (Fla. 4th DCA 2007).
Discovery order requiring production of documents supporting specific allegations of plaintiff's complaint quashed due to work product privilege. [Added 10/7/07] -- Hargroves v. R.J. Reynolds Tobacco Co., 993 So.2d 978 (Fla. 2d DCA 2007).
Transcript of insured's examination under oath taken by insurance company is protected from third parties by attorney-client privilege. [Added 8/31/07] -- Reynolds v. State, 963 So.2d 908 (Fla. 2d DCA 2007).
Store's documents relating to its "civil theft recovery program" involving suspected shoplifters protected from discovery by work product privilege. [Added 7/18/07] -- Publix Supermarkets, Inc. v. Johnson, 959 So.2d 1274 (Fla. 4th DCA 2007).
Lawyer who breaches client confidentiality after attorney-client relationship has ended may be liable to client for malpractice, but client must allege what confidence was breached. [Added 6/25/07] -- Elkind v. Bennett, 958 So.2d 1088 (Fla. 4th DCA 2007).
Fourth DCA relaxes stance on entertaining certiorari petitions that seek review of trial court orders denying discovery. [Added 6/23/07] -- Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts Development Co., 958 So.2d 565 (Fla. 4th DCA 2007) (en banc).
JCC erred by ordering claimant to make non-testifying expert available for deposition over work product objections; no privilege log required. [Added 6/9/07] -- Nevin v. Palm Beach County School Board, 958 So.2d 1003 (Fla. 1st DCA 2007).
In bad faith case brought by third party (not the insured), trial court erred in ruling as matter of law that attorney-client privilege did not apply to communications made by insurer and insured with their counsel. [Added 5/9/07] -- Progressive Express Ins. Co. v. Scoma, 975 So.2d 461 (Fla. 2d DCA 2007).
Husband's statement to lawyer that husband intended to kill his wife was not privileged because husband did not make the statement in context of seeking legal advice from lawyer. [Added 4/4/07] -- State v. Branham, 952 So.2d 618 (Fla. 2d DCA 2007).
Trial court permits plaintiff to depose defendants' law firm in effort to prove that court has jurisdiction, despite attorney-client and work product privilege objections. [Added 2/15/07] -- Marbulk Shipping, Inc. v. Bhagat, 950 So.2d 380 (Fla. 3d DCA 2007).
Supreme Court concludes that litigation privilege applies in all causes of action, statutory as well as common law. [Added 2/5/07] -- Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007).
Lawyer who formerly represented client but moved to new firm remains subject to irrefutable presumption that confidences were acquired; Rule 4-1.9 (rather than 4-1.10) governs disqualification issue. [Added 12/20/06] -- Health Care and Retirement Corp. of America, Inc. v. Bradley, 944 So.2d 508 (Fla. 4th DCA 2006) (on rehearing).
Attorney-client privilege not waived merely due to filing of action for indemnification. [Added 11/16/06] -- irgin Records America, Inc. v. Skystream, Inc., 941 So.2d 501 (Fla. 3d DCA 2006).
Clients' suit against former lawyers over their advice in transaction was not waiver of privilege as to communications between clients and other professionals who helped in same transaction. [Added 10/27/06] -- Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504 (Fla. 2d DCA 2006).
Order requiring parties to produce either privilege log or all documents relied upon to support claim reversed as overbroad. [Added 10/18/06] -- Kranias v. Tsiogas, 941 So.2d 1173 (Fla. 2d DCA 2006).
In first-party bad faith case, court should not have required production of insurer's entire claims file over attorney-client privilege objection; question certified to Florida Supreme Court. [Added 10/9/06] -- Liberty Mutual Fire Ins. Co. v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006). NOTE: See also Provident Life & Accident Ins. Co. v. Genovese, 943 So.2d 321 (Fla. 4th DCA 2006).
Party may respond to discovery request by producing documents pursuant to express limited waiver of attorney-client and work product privileges. [Added 10/3/06] -- Paradise Divers, Inc. v. Upmal, 943 So.2d 812 (Fla. 3d DCA 2006).
Failure to file privilege log while awaiting ruling on objection to discovery request as burdensome did not result in waiver of privilege. [Added 9/25/06] -- Gosman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006).
Work product privilege protects incident reports prepared in anticipation of litigation, even if also used for other purposes. [Added 6/9/06] -- Marshalls of MA, Inc. v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006).
Trial court erred in compelling production of attorney-client privileged claim file documents in first-party bad faith case. [Added 5/2/06] -- XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006).
Insurer's claim filed protected by work product privilege in suite by insured against insurer for breach of contract and "negligent legal representation." [Added 4/21/06] -- GEICO General Ins. Co. v. Hoy, 927 So.2d 122 (Fla. 2d DCA 2006).
Fourth DCA recedes from prior decision concerning work product and discovery request seeking production of documents "supporting" party's affirmative defenses. [Added 3/28/06] -- Grinnell Corp. v. The Palms 2100 Ocean Boulevard, Ltd., 924 So.2d 887 (Fla. 4th DCA 2006).
Order barring lawyer provided by insurer from showing client/insured case file of insurer in lawyer's possession quashed. [Added 3/7/06] -- Allied Asphalt Paving, Inc. v. Auto-Owners Ins. Co., 927 So.2d 11 (Fla. 2d DCA 2006).
Second DCA expresses confidentiality concern but approves Circuit's plan to electronically record all judicial proceedings. [Added 2/20/06] -- Holt. v. Chief Judge of the Thirteenth Judicial Circuit, 920 So.2d 814 (Fla. 2d DCA 2006).
When ward dies, personal representative may not hold privilege as to all communications between guardian and guardian's lawyer. [Added 2/10/06] -- Tripp v. Salkovitz, 919 So.2d 716 (Fla. 2d DCA 2006). Coblentz settlement agreement indicating substance of counsel's advice waives attorney-client privilege as to that advice. [Added 1/18/06] -- Chomat v. Northern Ins. Co. of New York, 919 So.2d 535 (Fla. 3d DCA 2006).
Taped phone conversations between lawyer and incarcerated client not protected by attorney-client privilege. [Added 1/13/06] -- Black v. State, 920 So.2d 668 (Fla. 5th DCA 2006).
"Observations" of private investigators not listed as trial witnesses are work product and not discoverable absent showing of exceptional circumstances. Huet v. Tromp, 912 So.2d 336 (Fla. 5th DCA 2005).
Bad faith case plaintiff did not waive attorney-client privilege by bringing suit or by testifying at deposition about counsel's settlement authority. Lee v. Progressive Express Ins. Co., 909 So.2d 475 (Fla. 4th DCA 2005).
Receipt of privileged documents pursuant to subsequently vacated court order does not disqualify recipient lawyers, where no harm to movant shown. Coral Reef of Key Biscayne Developers, Inc. v. Lloyd's Underwriters at London, 911 So.2d 155 (Fla. 3d DCA 2005).
Out-of-state lawyer serving as in-house counsel is "lawyer" for purposes of attorney-client privilege. Florida Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd's London Subscribing to Policy No. 893/HC/97/9096, 900 So.2d 720 (Fla. 3d DCA 2005).
For purposes of work product privilege and insurer's file materials, no distinction between first- and third-part bad faith claims; work product privilege not applicable to claims file. Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla. 2005).
Work product privilege only applies to documents prepared "in contemplation" of litigation, not for "mere likelihood" of litigation. Liberty Mutual Life Ins. Co. v. Bennett, 883 So.2d 373 (Fla. 4th DCA 2004).
Where insurer-insured relationship not adversarial from outset, attorney-client privilege does not protect claim file from discovery in later insured-insurer dispute. Liberty Mutual Fire Ins. Co. v. Kaufman, 885 So.2d 905 (Fla. 3d DCA 2004).
In trust litigation, attorney-client privilege and work product production belong to lawyers' "real client." Jacob v. Barton, 877 So.2d 935 (Fla. 2d DCA 2004).
Fired in-house counsel may disclose client confidences to her lawyer in pursuit of wrongful discharge claim under whistleblower law; lawyer not disqualified. Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607 (Fla. 4th DCA 2004).
Lawyer who heard client threaten to kill client's sister could not rely on attorney-client privilege to prevent compelled disclosure of information about the threat. Hodgson Russ, LLP v. Trube, 867 So.2d 1246 (Fla. 4th DCA 2004).
Interrogatory seeking all exhibits that opposing counsel "might conceivably offer as evidence at trial" is overbroad and improperly seeks information protected by work product privilege. Bishop v. Polles, 872 So.2d 272 (Fla. 2d DCA 2004).
Work product privilege ordinarily protects specific group of documents assembled by litigation counsel unless documents will be used for impeachment or other purposes at trial. Northup v. Herbert W. Acken, M.D., P.A., 865 So.2d 1267 (Fla. 2004). Billing records of opposing counsel are work product and requests for their production in post-trial fee award litigation should be carefully scrutinized. HCA Health Services of Florida, Inc. v. Hillman, 870 So.2d 104 (Fla. 2d DCA 2003).
Party seeking seeking production of attorney work product material must present testimony or evidence demonstrating "need" pursuant to Fla.R.Civ.P. 1.280(b)(3). Metric Engineering, Inc. v. Small, 861 So.2d 1248 (Fla. 1st DCA 2003).
Personal email messages not considered public records by virtue of placement on government-owned computer system. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003).
When each party to joint defense agreement is independently represented, one co-defendant's decision to testify against the other waives privilege regarding statements to other's lawyer. United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003).
Attorney-client privilege protects from insurer communications between insured and lawyer retained to defend insured that do not pertain to the common interest (i.e., defense of underlying case). Springer v. United States Automobile Ass’n, 846 So.2d 1234 (Fla. 5th DCA 2003).