Florida - CONFIDENTIALITY and PRIVILEGES
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]
In a suit against Defendants involving alleged fire sprinkler product defects, Plaintiffs sought production of 5 documents “created by, or directed to, attorneys advising [Defendants] and controlled affiliates regarding these products and the alleged problem.” Defendants objected that the documents were attorney-client privileged communications and protected opinion work product, but the court ordered production. Defendants petitioned the Third DCA for a writ of certiorari.
The appellate court granted the petition and quashed the order. Certiorari lies to quash a non-final order directing disclosure of allegedly privileged documents. “We have repeatedly described the “cat-out-of-the-bag” problem that results from the judicially-ordered disclosure of privileged attorney-client communications.” Certiorari is also the proper method to review an order compelling disclosure of protected work product. 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]
Lawyer represented Decedent in estate planning and prepared Decedent’s wills. After Decedent died, some of her children filed a probate action challenging the wills. The trial court ordered Lawyer to answer questions at a deposition in the litigation regarding Decedent’s “reasons for disinheriting” some of the children.
Lawyer petitioned for certiorari review, “asserting attorney-client privilege and confidentiality.” The Third DCA denied the petition. F.S. 90.502(4)(b) provides that there is no lawyer-client privilege when a communication “is relevant to an issue between parties who claim through the same deceased client.”
The court also rejected Lawyer’s reliance on the ethical rule of confidentiality set forth in Rule of Professional Conduct 4-1.6, pointing out that the Comment to the Rule distinguishes between privilege and confidentiality. “The attorney-client privilege [F.S. 90.502] applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality [Rule 4-1.6] applies in situations other than those where evidence is sought from the lawyer through compulsion of law.” See also Coffey-Garcia v. South Miami Hospital, Inc., 194 So.3d 533, 536 n.1 (Fla. 3d DCA 2016) (ethical rule of confidentiality broader than scope than evidentiary attorney-client privilege). 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]
A trial court ordered Petitioners to produce copies of all sworn witness statements to Respondents. Upon petition for certiorari, the Fifth DCA quashed the order. “[T]he lower court ordered production of the witness statements solely because they were sworn affidavits. No showing was made by Respondents to the trial court that any of the exceptions of [Fla.R.Civ.P.] 1.280(b) applied. The court compelled production of these witness statements without conducting an in camera inspection to determine if the statements at issue were actually work product and without finding that Respondents would be unable to secure the equivalent without undue hardship. This constitutes a departure from the essential requirements of the law.” 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]
A criminal defendant charged with murder petitioned the Fourth DCA for a writ of certiorari. Defendant asserted that “he has a right to have these subpoenas for documents issued secretly to gather information potentially relevant to his defense, without revealing his defense strategy to the State.” Specifically, Defendant “asserts that an attorney’s work product is fiercely protected and that the discovery rules should be interpreted to prevent the opposing party from benefitting from the investigation of its adversary. He recognizes that discovery cannot qualify as work product but asserts that the “selection process” of matters for discovery can reveal defense counsel’s mental impressions.”
The appellate court denied the petition. “An attorney’s mere selection of documents to subpoena does not confer the status of work product upon the documents or the selection process any more than a lawyer’s decision to depose certain witnesses would allow the questioning to be conducted in secret. The discovery rules do not preclude speculation about an opponent’s theory of the case based on the discovery that has been sought.” 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]
Parents’ child was born at Hospital. Two years later the child was diagnosed with cerebral palsy. In April 2013, shortly before the child turned eight, Parents filed a petition to extend the statute of limitations for claims involving the child’s birth against Hospital and other medical providers. Parents filed their malpractice suit in November 2013.
The applicable statute of limitations runs from the time the incident giving rise to the action “is discovered, or should have been discovered with the exercise of due diligence.” F.S. 95.11(4)(b). Defendants deposed Mother in an effort to find out when she first learned of a reasonable possibility that the child’s injury was caused by malpractice. Defendants sought to discover “what lawyers [Mother] consulted regarding [the child’s] condition, when she consulted them, and why she consulted them.” Mother testified that her current counsel was not the first lawyer she consulted, but refused to answer further questions on the basis of attorney-client privilege.
The trial court granted Defendants’ motion to compel, ordering Mother “to ‘answer all questions related to the following issues’: (a) ‘when she first sought legal counsel’; (b) ‘the names of the attorneys whom she consulted with’; and (c) ‘the reasons why she first sought out legal counsel and any subsequent counsel.’” Parents petitioned for a writ of certiorari.
The Fourth DCA quashed a portion of the order. The court began its opinion by discussing the distinctions between the ethical duty of confidentiality expressed in Rule 4-1.6 and the evidentiary attorney-client privilege codified in F.S. 90.502. Because the matter was in litigation, the relevant standard is the attorney-client privilege.
“The privilege protects only communications to and from a lawyer; it does not protect facts known by the client independent of any communication with the lawyer . . .” (Citations omitted.) Ordinarily, the attorney-client privilege does not apply to the fact of consultation with or employment of a lawyer. Accordingly, the appellate court declined to quash the first two items listed in the trial court’s order to compel. “[R]equiring [Mother] to reveal when and with whom she consulted for the general purpose of discussing possible legal remedies stemming from her daughter’s condition does not, on this record, implicate the attorney-client privilege. This is true even though she is revealing in general terms her purpose for scheduling and attending the consultation.” The “general purpose” of a representation does not necessarily divulge a confidential professional communication.
In contrast, the third part of the trial court’s order was quashed. It required Mother to “answer all questions related to . . . the reasons why she first sought out” legal counsel (emphasis by court). “This part of the order allows inquiry into confidential communications between [Mother] and attorneys. . . . While [Mother] can be required to answer factual questions about what she learned at various points in time concerning the nature and potential causes of her daughter’s condition from sources other than the attorneys that she consulted, she cannot be forced to answer questions that would require her to reveal the contents of advice or information she received from the attorneys.”
The court closed by noting that, unlike work product protection, there is no “undue hardship” exception to the attorney-client privilege. 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 sued Cannon in a dog bite case. Cannon served Tedrow with a motion for attorney’s fees under F.S. 57.105, alleging that Tedrow’s complaint had no basis in fact or law. After 21 days Cannon filed the motion with the court. Tedrow later voluntarily dismissed her complaint. Cannon moved for fees and “also asked the court to permit depositions on the issue of whether Tedrow’s counsel acted in good faith in filing the lawsuit.” The court granted Cannon’s motion to compel the requested discovery. Seeking to quash the order, Tedrow and her counsel petitioned the Second DCA for a writ of certiorari.
The appellate court granted the petition. Although discovery regarding the 57.105 fee motion is appropriate, and an evidentiary hearing may be held to permit Cannon to present evidence supporting his fee claim, “he is not entitled to privileged information from Tedrow or her counsel in order to prove his claim for fees. Section 90.502, Florida Statutes (2011), protects communications between Tedrow and her counsel. “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” § 90.502(2). None of the exceptions to the privilege in section 90.502 apply in this case.” Even if the communication between Tedrow and her counsel are relevant to Cannon’s fee claim, in Genovese v. Provident Life & Accident Ins. Co., 74, So.3d 1064 (Fla. 2011), the Florida Supreme Court ruled that “there is no exception provided under section 90.502 that allows the discovery of attorney-client privileged communications where the requesting party has demonstrated need and undue hardship.” Id., at 1068. See also Tumelaire v. Naples Estates Homeowners Ass’n, Inc., 137 So.3d 596 (Fla. 2d DCA 2014); Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205 (Fla. 2d DCA 2002). 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]
After Paton was injured in an auto accident, she sued her underinsured motorist carrier, GEICO. She later added a bad faith claim. Ultimately Paton recovered a jury verdict and moved for attorney’s fees from GEICO. Paton sought discovery of opposing counsel’s billing records. The trial court ordered GEICO to provide the records, but permitted it to “redact privileged information.”
GEICO petitioned for certiorari review, and the Fourth DCA quashed the production order. GEICO General Ins. Co. v. Paton, 133 So.3d 1071 (Fla. 4th DCA 2014). Paton then sought Supreme Court review, which the Court granted based on its conflict jurisdiction “to clarify the relevance of the time expended by opposing counsel to the issue of reasonable hours for a party who is entitled to payment of his or her attorney’s fees when the fees are contested.”
The Supreme Court quashed the Fourth DCA’s decision. “We agree with the rationale of the First District in Anderson Columbia [v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005)] and conclude 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. When a party files for attorney’s fees against an insurance company pursuant to sections 624.155 and 627.428, Florida Statutes, as occurred here, the billing records of the defendant insurance company are relevant. The hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor.”
Regarding the question of privilege, the Court stated: “Moreover, the entirety of the 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. Additionally, even if the amount of time spent defending a claim was privileged, this information would be available only from the defendant insurance company, and the plaintiff has necessarily satisfied the second prong of the test delineated by [Fla.R.Civ.P.] 1.280(b)(4) for the discovery of privileged information – i.e., the information or its substantial equivalent cannot be obtained by other means without undue hardship.” 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]
A plaintiff and his related entity sued a condominium association and its officers “after years of contention.” The Plaintiff requested production of communications within the past 5 years that mentioned the plaintiffs and were made between the defendants “and either (1) the attorney who served as the association’s general counsel during this period, or (2) the attorney whom the association retained during this period to advise it concerning [plaintiff’s] repeated threats to sue.” The defendants filed privilege logs, objecting on the ground of attorney-client privilege.
The plaintiff asserted that any privilege was waived because the documents had been received by or copied to 2 individuals who were employees of the association’s community association manager. The defendants responded that under F.S. 90.502(2) there was no waiver “because the individuals were agents of the association whose contractual duties required them to communicate with the association’s counsel on the association’s behalf.”
Without reviewing the documents in camera, the trial court ordered production. The court ruled that the privilege was waived “because the two individuals were not ‘employees’ of the association within the meaning of Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377 (Fla. 1994) (adopting a subject-matter test to determine whether corporate communications with counsel are privileged).”
On petition for writ of certiorari, the Fourth DCA quashed the order compelling production and remanded for an in camera inspection of the documents, “applying the [5-part] test set forth in Deason to determine whether the attorney-client privilege was waived by disclosure to third parties.”
The appeals court also rejected the plaintiff’s argument that the defendants “waived any right to an in camera inspection by suggesting to the judge that he could uphold their privilege claims without conducting one” (emphasis by court). Further, the court rejected the argument reject that the privilege was waived by the insufficiency of the privilege log descriptions. Las Olas River House Condominium Ass’n, Inc. v. Lorh, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D15-2289, 12/9/2015), 2015 WL 8347977.
Court erred in ordering production of photos over work product objections without holding evidentiary hearing. [Added 11/20/15]
Follano sued the City after stepping into an uncovered sewer valve access pipe. She had to be extracted by the fire department. The City took photographs of the scene on the day of the incident. The City’s photos show the uncovered pipe. Follano took photos the next day, but her photos show the pipe as covered.
The City resisted production of its photos on work product grounds. Follano argued that she was entitled to the photos because they were the only available evidence of how the scene looked on the day of the incident. Without reviewing the phots, the trial court granted Follano’s motion to compel production, “simply finding that ‘the photographs cannot be obtained by any other measure’.”
Follano petitioned the Fourth DCA for a writ of certiorari. The appellate court granted the writ, quashed the production order, and remanded for further proceedings.
“[Fla.R.Civ.P.] 1.280(b)(4) provides that a party may be ordered to produce privileged 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.’ In Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999), this Court held that when a work product privilege is asserted, the trial court must conduct an in camera inspection of the material at issue in order to determine whether the privilege applies. The court can then consider whether the material is discoverable under Rule 1.280.”
Here, the trial court failed to conduct an in camera review before ruling that the photos were discoverable under rule 1.280. “Such a review is necessary to determine whether the City’s photographs provide the evidentiary value Follano claims and whether Follano could obtain substantially equivalent photographs without undue hardship.”
The fact that Follano conceded that the City’s photos were work product was irrelevant. City of Port St. Lucie v. Follano, __ So.3d __ (Fla. 4th DCA, No. 4D15-2642, 10/7/2015), 2015 WL 5828247.
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]
Over attorney-client privilege objections, Petitioners were ordered by the trial court to produce an email string. The trial court had reviewed the document in camera and concluded that the crime-fraud exception to the attorney-client privilege applied. Petitioners sought certiorari review.
The Fourth DCA quashed the production order and directed the trial court to hold an evidentiary hearing. Citing 3 of its prior cases, the appeals court stated that “the failure to afford petitioners an evidentiary hearing to address that document and argue why that exception should not apply is a departure from the essential requirements of law.” Brannon v. Palcu, __ So.3d __ (Fla. 4th DCA, No. 4D15-894, 10/28/2015), 2015 WL 6496327.
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]
Plaintiff, an employee of a stevedoring company, was seriously injured while working at a terminal at the Port of Miami operated by Seaboard Marine Ltd. Right after the accident, Seaboards attorneys and others took 91 photographs of the accident scene. Plaintiff sued Seaboard and sought discovery of the 91 photos. Seaboard refused on work product grounds and filed a privilege log. Plaintiff moved to compel production of the photos. At the hearing, Plaintiff presented no evidence indicating that he had attempted to obtain any post-accident photos taken by either the County or by his employer.
The trial court granted Plaintiff’s motion to compel production of the photos, “finding that the photographs are relevant to the issues in the lawsuit, and that [Plaintiff] has no other means of obtaining the photographs.” Seaboard petitioned for a writ of certiorari.
The Third DCA granted the petition and quashed the production order. “No doubt the photographs are relevant; they might be highly probative to the critical issues in the case. [Fla.R.Civ.P.] 1.280(b)(4), however, establishes a much higher bar than mere relevancy to obtain such privileged work-product materials developed by an adversary. A party must first diligently exhaust other means of obtaining the substantial equivalent. In this case, the record is devoid of evidence of such diligence.” Seaboard Marine Ltd. v. Clark, __ So.3d __ (Fla. 3d DCA, No. 3D14-3043, 9/16/2015), 2015 WL 5438614.
Per Fourth DCA, litigation privilege cannot be used to bar claim of malicious prosecution that is otherwise viable. [Added 7/23/15]
Appellees filed a civil suit against a number of defendants, later adding appellant as a party defendant. Appellees later dropped appellant from the suit. Appellant sued appellees for malicious prosecution. Appellees raised the litigation privilege as an affirmative defense and moved for summary judgment, “arguing that the litigation privilege afforded them immunity for their conduct of joining appellant as a defendant in the underlying lawsuit. Appellees relied upon Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013), a case holding that the litigation privilege applies to a cause of action for malicious prosecution. The trial court granted appellees’ motion for summary judgment and later entered a final judgment in their favor.”
Appellant appealed the grant of summary judgment solely based on the litigation privilege. He contended that “the tort of malicious prosecution is based upon the unfounded prior civil proceeding itself and not the acts taken in the course of that proceeding.” Appellees took the position that joining appellant as a defendant in the underlying suit was “protected by the litigation privilege because they were performing an ‘act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.’”
The appeals court 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 the malicious prosecution cause of action are satisfied. After discussing the cause of action for malicious prosecution and prior cases, the court concluded that “Wolfe went too far in its application of the litigation privilege.” The court explained: “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. Fischer v. Debrincat, __ So.3d __ (Fla. 4th DCA, No. 4D14-1855, 7/15/2015), 2015 WL 4269259.
See also Rivernider v. Meyer, __ So.3d __ (Fla. 4th DCA, No. 4D14-819, 9/9/2015), 2015 WL 5244635 (concluding that trial court erred in granting summary judgment for defendant lawyer but affirming on alternative ground that there was no material dispute that lawyer had probable cause to pursue underlying action).
Amendment 7 does not require production of external peer review reports of hospital’s adverse medical incidents that are otherwise privileged. [Added 7/17/15]
Plaintiff sued Hospital for the alleged medical negligence of one of Hospital’s surgeons. Plaintiff sought discovery of all documents relating to Hospital’s investigation or review of her care and treatment. Hospital asserted privilege regarding 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). Hospital petitioned the Second DCA for a writ of certiorari.
The appellate court granted the petition and 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.’” (Emphasis added.) 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.” Bartow HMA, LLC v. Edwards, __ So.3d __ (Fla. 2d DCA, No. 2D14-837, 7/10/2015), 2015 WL 4154180.
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]
Respondents (Husband and Wife) sued Petitioner for personal injuries allegedly suffered in an auto accident caused by Petitioner’s employee. Wife had surgery, which she claimed was a direct result of the accident. Although Respondents filed a separate medical malpractice action against the surgeon, in the personal injury case they did not allege medical malpractice or seek damages from complications arising from the surgery.
Petitioner retained an expert, Dr. Hyde, and specified that “his testimony would be limited to the causal connection, if any, between the accident and surgery.” Petitioner gave Respondents a copy of Dr. Hyde’s report, but redacted 4 paragraphs “purportedly containing his standard of care opinion, asserting work product privilege.” (Petitioner sought a standard of care opinion from Dr. Hyde to use in an equitable subrogration case against the surgeon in the event of a jury finding that the surgery was related to the collision.)
Respondents moved to compel production of an unredacted copy of the expert report. The trial court granted the motion. The First DCA quashed the production order to the extent it required disclosure of Dr. Hyde’s standard of care opinion.
“Parties are entitled to discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. See Fla.R.Civ.P. 1.280(b)(1) (emphases [by court]). . . . Discovery of opinions held by experts, otherwise discoverable under subdivision (b)(1), and acquired or developed in anticipation of litigation, may be obtained by interrogatories or deposition. Fla. R. Civ. P. 1.280(b)(5) (emphasis [by court]).”
The portion of Dr. Hyde’s report regarding causal connection between the accident and the surgery was relevant to the personal injury action. Because Petitioner intended to use that opinion, it “is not privileged and is discoverable.” In contrast, the portion of the report with Dr. Hyde’s standard of care opinion is not relevant to the personal injury case. Consequently, “the redacted paragraphs of the medical opinion report concerning the standard of care are both irrelevant and privileged” and are not discoverable under Fla.R.Civ.P. 1.280(b)(5).
The court rejected Respondents’ contention that the redacted paragraphs were discoverable so that they could explore the expert’s possible motive and bias, noting that “offering an expert’s unpresented opinions simply to attack the expert’s credibility is improper. See Jordan ex rel. Shealy v. Masters, 821 So.2d 342, 348-49 (Fla. 4th DCA 2002).” SCI Funeral Services of Florida, Inc. v. Walthour, __ So.3d __ (Fla. 1st DCA, No. 1D15-110, 6/22/2015), 2015 WL 3824205.
Statements made in affidavit filed in pending judicial proceeding were protected by absolute privilege from defamation claim. [Added 7/1/15]
In a dispute involving a town’s residents and its mayor, Zuccarelli (the mayor) “alleged that Barfield published false and defamatory statements in an affidavit filed in support of a verified motion for temporary injunction.” Barfield defended by asserting that the statement was absolutely privileged “because the affidavit was filed in a pending judicial proceeding and the statement was connected to the pending judicial proceeding.” The trial court granted Barfield’s motion for summary judgment on the relevant counts, ruling that those counts “rely on affidavits filed in a court proceeding. The affidavits were related to pending litigation and are privileged as a matter of law.” Zuccarilli appealed.
The Fourth DCA affirmed. The court relied on the Supreme Court’s decision in DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013) in determining that the doctrine of absolute immunity – rather than a qualified privilege – applied. “Unlike in DelMonico where the statements were made during an out-of-court, informal investigation, in the present case the statement at issue was made in an affidavit filed in court. . . . The harmed party could seek sanctions against the individual filing the affidavit with the objected to allegation. Further, the harmed party could move to strike the defamatory matter from the affidavit. In this case, like envisioned in DelMonico, the fact that the offending statement was filed in a manner where the harmed party had an opportunity to object was the clear distinction between statements that had sufficient safeguards, on the one hand, and those made ex parte and where the harmed party did not have an opportunity to object such as in DelMonico, on the other hand.” Zuccarelli v. Barfield, __ So.3d __ (Fla. 4th DCA, No. 4D13-3031, 6/3/2015), 2015 WL 3486661.
Court erred in ordering party’s lawyer, who was not counsel of record, deposed. [Added 6/18/15]
Lawyer was outside counsel for a party in litigation. Lawyer was not counsel of record but was “directly involved” in the litigation, “having both directed and overseen ‘various aspects of [his client’s] investigation of the accident on which [the opposing parties] . . . premised their allegations and claims sub judice, as well as [having] prepar[ed] and receiv[ed] documentation [including attorney-client privileged communications and work product documents] related to the investigation.’” The trial court ordered Lawyer’s deposition taken. Lawyer’s client petitioned the Third DCA for a writ of certiorari.
The Third DCA quashed the order. Taking the deposition of opposing counsel in a pending case is an extraordinary step that is rarely justified. The deposition was not justified under the applicable test announced in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (such depositions 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.” Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, __ So.3d __ (Fla. 3d DCA, No. 3D14-2904, 6/17/2015) (on motion for clarification), 2015 WL 3759570.
The attorney-client privilege may not protect the client from being compelled to disclose whether her lawyer referred her to her treating doctors. [Added 5/20/15]
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 the 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. When the treating physicians were deposed, all of them testified that they were unsure who referred Client to them. After various proceedings, the trial court ultimately ordered Client to produce documents reflecting direct and indirect referral arrangements or understandings between Law Firm and the physicians. The court stated that, “[i]f the health care provider doesn’t have it, then the law firm is to produce it.” The court, however, sustained Client’s objections to requested detailed financial discovery.
Client petitioned the Fifth DCA for a writ of certiorari, seeking to quash the order for a number of reasons including that the order “requires production of information protected by attorney-client privilege.” The appellate court denied the petition.
A financial relationship between a law firm and a treating physician is not privileged and is relevant to show bias. In order to protect the privacy of the physicians and patients, however, before detailed financial bias information about a treating physician’s relationship with a law firm is discoverable, there must be some evidence of a referral relationship between them. In seeking to establish that there was a referral relationship, discovery “should first be sought from the party, the treating doctor, or other witnesses – not the party’s legal counsel.” Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200, 206 (Fla. 4th DCA 2012). Defendant took all the available steps “and has exhausted its inquiry as to how [Client] was referred to the treating physicians in this case. . . . Thus, in order to establish that a referral has occurred, [Defendant] had no choice but to ask [Client] herself.”
The appeals court recognized that the trial court’s ruling was supported by an older Second DCA case, Burt v. GEICO, 603 So.3d 125 (Fla. 2d DCA 1992). Nevertheless, the court questioned whether the Burt holding had been eroded by subsequent case law approving discovery regarding financial relationships and potential bias. The Fifth DCA concluded: “Having exhausted all other avenues without success, we find – contrary to the trial court’s preliminary ruling and to Burt – that it was appropriate for [Defendant] to ask [Client] if she was referred to the relevant treating physicians by her counsel or her counsel’s firm.”
The court certified conflict with Burt “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.” Worley v. Central Florida YMCA, __ So.3d __ (Fla. 5th DCA, No. 5D14-3895, 5/15/2015), 2015 WL 2259293.
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]
A claims management services company (“Petitioner”) faced a discovery request for parts of its case file. Petitioner objected on work product and attorney-client privilege grounds. The trial court overruled the objections and ordered production. The Fifth DCA quashed the production order, concluding that the trial court erred in 4 respects.
“First, the trial court erred by finding the work product privilege to be inapplicable on grounds that the current case between these parties involves issues different than those presented in the prior litigation for which the documents were prepared.” Work product retains its protection after the original litigation is over, regardless of whether it is related to subsequent litigation.
“Second, the trial court erred by finding the attorney-client privilege inapplicable without ever reviewing the documents at issue.”
“Third, the trial court erred by finding that the attorney-client privilege was waived by counsel’s statement at a hearing.” The privilege belongs to the client, who decides whether to waive it.
“Finally, the trial judge erred by finding that the privilege was waived by counsel’s filing of a privilege log which the judge viewed as insufficient due to its lack of detail.” The log was not produced in response to any court order and could have been amended. Sedgwick Claims Management Services, Inc. v. Feller, __ So.3d __ (Fla. 5th DCA, No. 5D15-217, 5/15/2015), 2015 WL 2259179.
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]
Petitioner, an insured under a directors’ and officers’ liability insurance policy, sued Respondent, its primary insurer, regarding coverage. Respondent filed a motion to enforce a settlement agreement allegedly entered into by the parties. Respondent argued that, despite an agreement clearly memorialized in email correspondence, Petitioner had attempted to unilaterally change material terms of the settlement. Respondent contended that “Petitioner’s in-house counsel, Robert Pinder, was involved in the settlement negotiations and that Petitioner could not in good faith unilaterally alter the terms of the agreed-upon settlement in its favor.”
Petitioner moved to strike the motion to enforce and filed a written opposition to the motion. Petitioner argued that Pinder had only limited authority and that he did not have authority to make the alleged settlement.
At the hearing on the motion to enforce, both the vice president of the entity that had purchased Petitioner and Petitioner’s in-house counsel, Pinder, testified. Petitioner objected to questions regarding its communications involving Pinder on the ground of attorney-client privilege. The trial court continued the hearing. Respondent filed a motion in support of its right to cross-examine Petitioner’s witnesses, arguing that “a party cannot inject an issue into litigation and then preclude inquiry into that issue by asserting the protection of the attorney-client privilege. It further argued that while the communications at issue may have been privileged at one point, ‘once [Petitioner] raised them as a basis to avoid settlement, any privilege as to the subject matter of those communications, as well as the communications themselves, was waived.’” Petitioner responded that the privilege had not been waived.
When the hearing resumed, the court overruled each of the privilege objections. The court then stayed the proceedings, allowing Petitioner to seek a writ of certiorari. The issued presented was “whether the privilege was waived by Petitioner given its argument that it and ‘its counsel were not authorized to release the rights of [its] directors and officers under [Respondent’s] policy’ and its reliance upon attorney Pinder’s affidavit in support of its motion to strike and in opposition to Respondent’s motion to enforce.”
The First DCA denied certiorari. The trial court did not depart from the essential requirements of law in overruling the privilege objections. “By arguing a lack of authority to settle and by relying upon attorney Pinder’s representations while at the same time arguing that any communications Mr. Pinder may have had concerning the settlement and individual insureds were privileged, Petitioner attempted to limit Respondent’s ability to advocate in favor of its motion to enforce. However, a party ‘may not use the [attorney-client] privilege to prejudice his opponent’s case or to disclose some selected communications for self-serving purposes.’ ” U.S. v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). The privilege may be ‘implicitly . . . waived when defendant asserts a claim that in fairness requires examination of protected communications.’ Id. . . . If an insurer who wants to defend against a claim of bad faith may waive privileges by attempting to show good faith on its part . . . we see no reason why a corporation that wishes to defend against allegations of a settlement agreement by claiming lack of authority to bind its officers and directors and by relying on its in-house counsel’s representations does not waive its attorney-client privilege as to the issue of authority to settle.” Lender Processing Services, Inc. v. Arch Ins. Co., __ So.3d __ (Fla. 1st DCA, No. 1D14-4161, 4/22/2015).
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]
Criminal Defendant was represented by the Public Defender’s office. Defendant’s counsel was concerned about Defendant’s competency to stand trial. Through his counsel, Defendant privately retained a confidential expert to conduct a psychiatric evaluation. Because Defendant had elected to participate in discovery. The state sought production of the expert’s report, arguing that the reciprocal discovery provision in Fla.R.Crim.P. 3.220(d)(1)(B)(ii) applied. The trial court granted the motion, relying on the language in the rule and Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013).
The Fifth DCA quashed the order on petition for writ of certiorari. The court based its decision on Fla.R.Crim.P. 3.216(a) and F.S. 916.115(2), which it were “far more specific on the issue of whether the reports of mental health experts are protected by the attorney-client privilege.” The court distinguished Kidder on 2 grounds: (1) Kidder involved a scientific test, not a mental health evaluation; and (2) the Kidder court was not faced with the attorney-client privilege issue. Manuel v. State, __ So.3d __ (Fla. 5th DCA, No. 5D14-2319, 4/24/2015).
Court erred in compelling production of attorney-client privileged documents based on relevance and need by opponent. [Added 4/19/15]
Plaintiff sued Defendant for Florida Whistleblower Act violations, intentional infliction of emotional distress, and fraud. Plaintiff filed a request for production. Defendant objected to producing some items based on attorney-client privilege. After an in camera inspection, the trial court ordered production. The court “sustained the privilege objections, but found that for certain documents ‘relevance require[d] breaking of a privilege and production.’ It held that such relevant documents contained information that could not reasonably be obtained from another source, so that the ‘privilege should be broken and the documents provided.’”
On petition for certiorari the Fourth DCA quashed the production order. “Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent’s showing of relevance and necessity. . . . An order compelling production of attorney-client communications based on relevance and need constitutes a departure from the essential requirements of law.” (Citations omitted.) Florida Power & Light Co. v. Hicks, __ So.3d __ (Fla. 4th DCA, No. 4D14-4337, 4/15/2015).
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]
Twenty-five limited liability companies (“LLCs”) were joint defendants in a foreclosure case. The plaintiff dropped one defendant, “Adler,” and then subpoenaed it for “correspondence between Adler and the LLCs.” The LLCs objected to production of certain emails, asserting attorney-client privilege. The LLCs argued that they coordinated their defense with Adler during the time the emails were exchanged, and filed an affidavit to that effect. One of the LLC members filed an affidavit stating that she did not have an email account and used her investment advisor’s email address. The court ordered production without conducting an in camera review. The LLCs petitioned for writ of certiorari.
The Second DCA quashed the production order. Ordinarily the attorney-client privileged is waived when the holder makes a voluntary disclosure to a third party. “But an exception to the waiver rule permits litigants who share unified interests in litigation to exchange privileged information in order to adequately prepare their cases without losing the protection afforded by the privilege. . . . In this case, the LLCs and Adler did not have a written agreement for a joint defense. But we have found no case requiring a written agreement. If an in camera review were to reveal that the LLCs and Adler intended to maintain confidentiality while sharing information in pursuit of their common interests, the LLCs would be entitled to protect the communications by asserting the attorney-client privilege. Thus, review is necessary to resolve the privilege claim unless the privilege was otherwise waived.”
The appellate court also addressed the LLC member’s use of a third party’s email account. A communication involving a third party nevertheless may be considered confidential if it is made through a privileged person’s agent, such as an interpreter, who is “necessary for the transmission of the communication.” F.S. 90.502(1)(c)(2). In this case, the member’s investment advisor could be considered such an agent; in light of the member’s affidavit, “the use of the third party’s e-mail address thus presents a question for the circuit court’s determination” and does not automatically foreclose the claim of privilege. See Gerheiser v. Stephens, 712 So.2d 1252 (Fla. 4th DCA 1998). AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., __ So.3d __ (Fla. 2d DCA, No. 2D14-3817, 3/20/2015), 2015 WL 1259649.
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., __ So.3d __ (Fla. 2d DCA, No. 2D14-3817, 3/20/2015), 2015 WL 1259649.
Quarterly Safety Committee Reports prepared by mall where slip and fall occurred protected from discovery as work product. [Added 2/13/15]
Plaintiff sued Defendants who owned and operated a shopping mall for a slip and fall. Plaintiff sought discovery of documents relating to similar incidents that occurred at the mall, including Quarterly Safety Committee Reports. Defendants objected on the ground that the requested documents “included incident reports that contained photographs, discussions surrounding the incidents, and mental impressions regarding the incidents that occurred during the relevant quarter.” After reviewing the documents in camera, the trial judge “ordered the production of defendants’ Quarterly Safety Committee Reports from 2008 up to the date of the incident, but sustained the privilege objection concerning the incident report generated as a result of plaintiff’s event.” Defendants petitioned the Fourth DCA for a writ of certiorari.
The appellate court granted the writ and quashed the production order, agreeing with Defendants that the items in question were prepared in anticipation of litigation and thus constituted work product. “Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department.” Citing Publix Super Markets, Inc. v. Anderson, 92 So.3d 922 (Fla. 4th DCA 2012) and other cases, the court pointed out that “even a report that is routinely prepared may still qualify as work product.”
The court noted that Plaintiff did not show that she was unable to obtain the substantial equivalent of the requested information by other means (see Fla.R.Civ.P. 1.280(b)(4)); in fact, Plaintiff had already obtained “a list of incidents on defendants’ premises for three years predating plaintiff’s accident, including the dates, times, locations, and a detailed description of those incidents.” Consequently, the court concluded: “Because the information sought by plaintiff were documents created in the course of its investigations, and because plaintiff has not made a sufficient showing of need or undue hardship, the trial court’s order compelling disclosure was a departure from the essential requirements of law.”
One judge dissented, asserting that the Quarterly Safety Committee Reports were not protect work product because they were used to promote safety and proper maintenance, rather than made in anticipation of litigation. Millard Mall Services, Inc. v. Bolda, __ So.3d __ (Fla. 4th DCA, No. 4D14-1338, 2/11/2015).
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]
Mother and Father were litigating a paternity and child support action. Mother was a lawyer employed by a personal injury law firm. Under her employment agreement the firm pays her an annual draw of 75,000 against 30% of net fees received by the firm in cases that she handles. At issue was the question of how much in excess of $75,000 Lawyer has earned and will earn during the current fiscal year.
In response to Father’s motion to compel, the court ordered production of all documents – including settlement agreements of the firm’s clients – that would reflect any commissions that Mother would collect at the end of the year. Mother sought clarification, balking “at providing copies of settlement agreements, many of which she represented contained confidentiality clauses between the [law] firm’s clients and third parties.” The court ordered Mother to produce “documents from her law firm, her own personal documents and any settlement agreements or judgments from which she might receive any income.”
The Third DCA quashed that order. The documents in question belong to the law firm and its clients, who have privacy and other interests in the documents. “More to the point, no showing has been made either here or below that the information [Father] seeks cannot otherwise be obtained from” Mother or the law firm that employs her. “In short, it was improper to require [Mother] to disclose information which was the property of a non-party law firm or its non-party clients, and moreover which might result in a breach of confidences.” Medina v. Haddad, __ So.3d __ (Fla. 3d DCA, No. 3D14-2702, 2/11/2015).
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]
In an auto accident case, defendant (“Petitioner”) made a proposal for settlement to plaintiff (“Respondent”). Respondent did not accept. After a favorable verdict, Petitioner moved for fees and costs pursuant to F.S. 78.79. Her motion included itemized invoices, as well as an affidavit from one of the attorneys of record stating that the invoices were correct and that the costs and fees were necessarily incurred. Respondent moved to compel discovery of Petitioner’s entire litigation file, arguing that access to the file was necessary in order for her to determine whether the offer had been made in good faith. Respondent also asserted that attorney-client privilege was waived by the filing of the supporting affidavit. The trial court granted the motion to compel, concluding that Petitioner “waived attorney-client privilege by her attorney’s filing of the affidavit, which was tantamount to testifying” and that “a party cannot claim work-product privilege in connection with a claim for recovery of attorney fees.”
Petitioner sought a writ of certiorari from the First DCA. The First DCA granted the petition, stating: “We find the trial court’s rulings that the petitioner waived attorney-client privilege by filing an affidavit in support of a request for attorney’s fees, and that a party cannot claim work-product privilege in connection with a claim for recovery of attorney’s fees, constitute clear departures from the essential requirements of law which cannot be remedied on appeal.” Whether or not an offer is made in good faith is determined by objective criteria, and does not require disclosure of privileged communications. The affidavit supporting the fee motion did not constitute a waiver of attorney-client privilege; hours expended and the hourly rate are not privileged information, and so the invoice and affidavit “did not disclose privileged communication and thus did not waive attorney-client privilege.” Finally, the trial court erred in finding that work product privilege could not be asserted in connection with an attorney’s fee claim. Butler v. Harter, __ So.3d __ (Fla. 1st DCA, No. 1D14-1342, 12/2/2014), 2014 WL 6755985.
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]
Baker was injured in a motor vehicle accident due to the alleged negligence of a person who was insured by Markel American Insurance Company (“Markel”). Markel tendered its policy limits of $10,000, which was rejected by Baker’s lawyer on the ground that Markel had acted in bad faith. Baker sued Markel’s insureds in state court, and Markel then filed a federal declaratory judgment action seeking a determination that it had not acted in bad faith or breached duties owed to its insured. Baker and Markel entered into a Cunningham agreement (Cunningham v. Standard Guaranty Ins. Co., 830 So.2d 179 (Fla. 1994) under which they agreed to try the bad faith case first.
The meaning of the Cunningham agreement was disputed. Markel’s interpretation did not prevail, and Markel pursued a claim for reformation of the agreement. Baker sought to discover all communications between Markel and its counsel, and to depose Markel’s lead counsel. Markel filed a motion for protective order asserting attorney-client privilege and work product privilege. The trial court “concluded that Markel, by filing suit to reform a contract between the parties, waived protected attorney–client communications and work-product privileges, and that Markel’s counsel also waived these privileges by voluntarily disclosing privileged information at a hearing addressing the interpretation of the contract.”
The Fifth DCA granted Markel’s petition for writ of certiorari. The filing of the reformation action, which involved the parties’ intent, “does not automatically result in a waiver of the attorney-client privilege.” Although Markel has to prove a mutual mistake or a unilateral mistake couple with inequitable conduct, Baker could mount a defense without using privileged communications. “In other words, Baker has not shown that she will be disadvantaged without the confidential information.” The appeals court further ruled that there had been no waiver of attorney-client or work product privilege under the facts of the case. Markel American Ins. Co. v. Baker, __ So.3d __ (Fla. 5th DCA, No. 5D14-295, 11/21/2014).
Third DCA upholds order requiring production of law firm’s trust account wire receipt records over attorney-client privilege objections. [Added 11/5/14]
Judgment Creditor obtained judgments against Law Firm’s client. Judgment Creditor subpoenaed Law Firm seeking wire receipts reflecting transfers by the client of money into and out of Law Firm’s trust account. Law Firm argued that the records were protected by the attorney-client privilege. After reviewing the wire receipts, the trial court ordered them produced.
Seeking to quash the order, Law Firm petitioned the Third DCA for a writ of certiorari. The Third DCA dismissed the petition for lack of jurisdiction because the records were not privileged and thus their production would not constitute irreparable harm. “The issue presented is whether the trust account wire receipts are protected by the attorney-client privilege. Because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney.” Sweetapple, Broeker & Varkas, P.L. v. Simmon, ___ So.3d __ (Fla. 3d DCA, No. 3D14-1543, 10/29/2014).
Fourth DCA quashes order allowing discovery of litigation file of insurer’s counsel in bad faith action. [Added 10/28/14]
In a bad faith action, a special master inspected documents from the litigation file of the insurer’s counsel. The special master determined that the documents were discoverable despite the fact that they were privileged, apparently reasoning that attorney-client information from the underlying suit was discoverable unless it pertained to bad faith aspects of the case.
The Fourth DCA quashed the order as contrary to Genovese v. Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011). “ Availability of the attorney-client privilege does not depend on whether this is a bad faith case or whether the information related to legal advice about bad faith. ‘[W]hen an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.’ Id. at 1068. Absent an exception, such as when the insurer places counsel’s advice at issue, attorney-client privileged information from the underlying suit is not discoverable in a bad faith case. Id. at 1068-69.” GEICO General Ins. Co. v. Moultrop, ___ So.3d __ (Fla. 4th DCA, No. 4D14-1844, 10/22/2014).
Law firm’s defamation suit against former partner dismissed as barred under absolute litigation privilege, notwithstanding non-disparagement agreement. [Added 10/8/14]
Lawyer sought to set aside a martial settlement agreement with his former wife. Lawyer alleged that the agreement was entered into “based on the belief that [Lawyer]’s law partner would be disciplined for misconduct, allowing [Lawyer] to maintain his income by assuming control of the firm or starting a new firm and taking his existing clients with him.” Lawyer’s partner, however, was not disciplined; instead, the charges were dismissed and Lawyer was fired from the firm. His income was substantially diminished as a result. The statements filed by Lawyer in his divorce case led to Lawyer’s former partner and the law firm suing Lawyer for defamation and breach of a non-disparagement agreement. Lawyer moved to dismiss, contending that the absolute litigation privilege protected the statements. The trial court denied the motion to dismiss “on the ground that applicability of the privilege was not clear from the face of the complaint.” Lawyer appealed.
The First DCA reversed. Courts "have not imposed a strict relevancy test in determining whether a statement made during the course of a judicial proceeding is entitled to immunity so long as the statement ‘has some relation to the proceeding.’” (Citations omitted.) That standard was met in this case. Lawyer’s statements “had some relation to petitioner’s divorce proceeding because they attempted to explain why petitioner entered into the marital settlement agreement based on the mistaken belief that petitioner’s law partner would be disciplined for misconduct, allowing petitioner to maintain his income by assuming control of the firm or starting a new firm and taking his existing clients with him.” Accordingly, the statements were absolutely privileged.
The court rejected the plaintiffs’ argument that Lawyer had waived the litigation privilege by entering into a non-disparagement agreement with the law firm. “Since the absolute litigation privilege is a firmly established right of immunity designed to protect the public by ensuring the free and full disclosure of facts in the conduct of judicial proceedings, we conclude the parties’ non-disparagement agreement could not be construed as a waiver of the privilege.” 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]
Receding from its prior decisions, the Fifth DCA concluded that the attorney-client privilege may apply in a third-party bad faith action to protect communications between the insurer and its counsel. Boozer was in an auto accident that injured Hintz. Hintz’s guardian, Stalley, sued Boozer. Boozer’s insurer hired defense counsel to defend the suit. Ultimately Stalley obtained a judgment against Boozer that was $10 million in excess of Boozer’s insurance coverage of $1.1 million. The insurer paid the policy limits.
Seeking to collect on the excess judgment, and without an assignment from Boozer of Boozer’s rights, Stalley filed a bad faith suit against the insurer. Stalley then sought to depose Boozer’s counsel and obtain his file. Asserting the attorney-client privilege on behalf of Boozer and the insurer, counsel moved for a protective order. The trial court denied the motion.
Counsel petitioned the Fifth DCA for a writ of certiorari. Counsel argued that the attorney-client privilege applies to the communications at issue. Stalley responded that “long-standing Florida precedent holds that in the context of third-party bad faith litigation, he stands in the shoes of Boozer and may obtain discovery of any materials that would be available to her, including those that would otherwise be protected by the attorney-client privilege.”
The appellate court’s opinion contained a lengthy and detailed analysis of prior cases, including the Florida Supreme Court’s decisions in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla. 2005) and Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064 (Fla. 2011), as well as Maharaj v. GEICO Casualty Co., 289 F.R.D. 666 (S.D. Fla. 2013) and Progressive Express Ins. Co. v. Scoma, 975 So.2d 461 (Fla. 2d DCA 2007).
The court concluded: “The magistrate judge’s order in Maharaj is a logical extension of the Florida Supreme Court’s determinations in Ruiz and Genovese, and the second district’s holding in Scoma. Thus, we believe that we should adopt the holdings of Scoma and Maharaj and recede from Dunn [v. National Security Fire & Casualty Co., 631 So.2d 1103 (Fla. 5th DCA 1993)] to the extent it allows the unqualified discovery of attorney-client protected material. The fact that Stalley may stand in Boozer’s shoes, or have an independent right to bring a bad faith action under section 627.155, does not mean that Boozer gave up her statutory attorney-client privilege, codified in section 90.502, Florida Statutes (2009). There is no indication that Stalley obtained an assignment from Boozer, and it is clear that their interests are adverse.” (Footnotes omitted.) Boozer v. Stalley, __ So.3d __ (Fla. 5th DCA, No. 5D13-4365, 9/5/2014).
Court erred in ordering production of privileged documents based on crime-fraud exception without first holding evidentiary hearing. [Added 8/4/14]
Seeking discovery in aid of execution on a judgment, Plaintiffs served third-party subpoenas for document production on Merco’s counsel. Merco objected on grounds that included attorney-client privilege. The court inspected the documents in camera, then held a hearing regarding relevance of the documents. The court then ordered production of the documents without a further hearing, ruling that “the record showed prima facie evidence that Merco ‘used its attorney/client relationship with [its lawyers] to promote an intended or actual fraud on the Plaintiffs and upon the Court in an effort to conceal assets’ which were otherwise discoverable.” Merco petitioned the Fourth DCA for a writ of certiorari.
The Fourth DCA granted the petition and quashed the production order, stating that “due process requires an evidentiary hearing when the crime-fraud exception is invoked.” Evaluating whether the crime-fraud exception applies “requires an adversarial proceeding that would allow both parties to present evidence and argument on the issue.” See American Tobacco Co. v. State, 697 So.2d 1249 (Fla. 4th DCA 1997). The evidentiary hearing is to take place “after the court determines that the prima facie showing of the crime-fraud exception has been established.” Here, the trial court departed from the essential requirements of law in ordering production of the documents without holding an evidentiary hearing at which Merco would have an opportunity to “explain the documents and why the fraud exception should not apply.” Merco Group of the Palm Beaches, Inc. v. McGregor, __ So.3d __ (Fla. 4th DCA, No. 4D14-696, 7/30/2014).
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]
In 2004 Insureds made a claim with their homeowner’s insurer regarding a sinkhole. Insurer paid the claim, which covered the cost of remediation through compaction grouting. Insureds, however, hired a contractor who used a different remediation method.
In 2010 Insureds made another sinkhole claim. Insurer determined that the damage was not covered under the policy because Insureds did not have the repairs completed as agreed when Insurer paid the 2004 claim. Insureds sued Insurer seeking payment. Insureds sought production of Insurer’s 2004 claim file, arguing that it was directly relevant to the issue of coverage for the 2010 claim. Insurer moved for protective order. The trial court denied the motion and ordered production of the 2004 claim file, noting: “Given the apparent resolved status of [the 2004] claim, this Court determines that case law would permit Plaintiffs’ discovery from Defendant’s claim file as to [the 2004 claim].” The court did not inspect the file before ordering production.
The Fifth DCA granted Insurer’s petition for writ of certiorari. An insurer’s claim file constitutes work product, but in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla. 2005), the Florida Supreme Court recognized a limited exception permitting discovery in a bad faith action after conclusion of the underlying coverage litigation. The trial court erred “by implicitly concluding that the claim file lost the qualified work product privilege when the 2004 claim was closed with no litigation having materialized.” The appellate court concluded: “Ruiz can be read as essentially concluding that the good faith exception (to the work product privilege) can always be met in a bad faith action because the coverage claim file ‘presents virtually the only source of direct evidence with regard to the essential issue of the insurance company's handling of the insured’s claim’ such that its production will always be ‘necessary to fairly evaluate the allegations of bad faith-information’ and ‘to advance [the bad faith] action . . . .’ Ruiz, 899 So.2d at 1128-29. Because [Insureds’] action below is a coverage case, not sounding in bad faith, Ruiz does not authorize discovery of the 2004 claim file.” State Farm Fla. Ins. Co. v. Marascuillo, __ So.3d __ (Fla. 5th DCA, No. 5D13-4218, 7/3/201).
Second DCA rules that client's fee arrangements with her lawyer are protected by client privilege. [Added 5/21/14]
Tumelaire was in litigation with homeowners association (“HOA”) for the mobile home park in which she lived. Tumelaire sought documents and an accounting from the HOA, but the HOA asserted that she was not entitled to the materials because she was acting as an agent for the park owner. The HOA filed a motion to compel disclosure of Tumelaire’s fee arrangements with her lawyer and her accountant. Tumelaire moved for protective order, “seeking to prevent the HOA from asking her questions about who was paying her legal and accounting fees and how she came to hire her attorney.” The trial court granted the motion to compel.
The Second DCA granted Tumelaire’s petition for writ of certiorari and quashed the order compelling disclosure of the fee arrangements between Tumelaire and her lawyer, concluding that the information was protected by the attorney-client privilege. “Pursuant to section 90.502(2), Florida Statutes (2013), ‘[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.’ ‘The identity of a client and payment of a fee appear to be within the ambit of the statutory privilege and are not expressly or impliedly excluded exceptions.’ Corry v. Meggs, 498 So.2d 508, 511 (Fla. 1st DCA 1986). Thus, ‘such matters are intended to be confidential and do constitute confidential communications.’ Id. Billing records also contain information covered by attorney-client privilege. HCA Health Servs. of Fla., Inc. v. Hillman, 870 So.2d 104, 107 (Fla. 2d DCA 2003).” Tumelaire v. Naples Estates Homeowners Ass’n, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D13-5071, 5/7/2014).
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]
Atkinson sued Pomfret for repayment of $2 million. Atkinson’s suit suggested that Pomfret defrauded him. Pomfret counterclaimed for defamation and breach of fiduciary duty. Atkinson moved for directed verdict on the defamation claim based on his conversations with a potential witness. Atkinson allegedly called Pomfret a “crook.” Atkinson explained that he called the witness to tell him to prepare for his upcoming deposition and to suggest to the witness, to whom Pomfret had loaned money, that he should seek repayment. The trial court granted the directed verdict.
The Fourth DCA affirmed per curium, citing to its decision in DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010), concerning an absolute litigation privilege. The Florida Supreme Court, however, subsequently quashed Delmonico and ruled that the absolute privilege does not extend to defamatory statements made by a lawyer “during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit.” DelMonico v. Traynor, 116 So.2d 1205, 1209 (Fla. 2013). Rather, there is a qualified privilege.
On remand, the Fourth DCA again affirmed. To overcome the qualified privilege, a plaintiff must prove that the statements were false and uttered with common law express malice – that is, that the defendant’s primary motive in making the statements was the intent to injure the plaintiff’s reputation. Pomfret failed to carry this burden. Atkinson’s statement bore a relation to or connection with the subject of inquiry in the underlying suit. “Pomfret did not show that Atkinson was motivated primarily by a desire to harm Pomfret’s reputation, as opposed to being motivated by the legitimate purpose of warning Cannavo to get his money back from Pomfret.” (Emphasis by court.) Pomfret v. Atkinson, __ So.3d __ (Fla. 4th DCA, No. 4D09-1708, 4/9/2014).
Handwritten draft answers to interrogatories provided by a client to her lawyer are attorney-client privileged communications. [Added 4/23/14]
Montanez sued Publix after a slip and fall incident. At her deposition she was asked about the answers to a particular interrogatory. She responded that she signed the answers but that the answer in question had not been provided by her. Publix then served a request for production, seeking Montanez’ original, handwritten responses to the interrogatories. The trial court ruled that Publix was entitled to see the document with the draft answers because Montanez “revealed and placed her answers at issue during her deposition.” After Montanez filed a blanket privilege log covering the entire document, the court entered an order compelling its production.
Montanez petitioned the Fifth DCA for a writ of certiorari. The appeals court granted the petition and quashed the production order. Citing F.S. 90.502(1)(c), the court agreed with Montanez that the handwritten draft answers to interrogatories she gave to her lawyer were privileged attorney-client communications. “Although signed and verified answers to interrogatories served on an opposing party are obviously intended to be disclosed to a third person, we reject Publix’s suggestion that a client’s unsigned and unverified draft answers, submitted directly to that client’s lawyer for review, are likewise intended to be disclosed to others. Indeed, an attorney’s role will often include assisting a client in the preparation of interrogatory answers, so as to best advance the client’s interest while complying with all applicable legal and ethical requirements.”
The appellate court also concluded that Montanez’s statement during the deposition did not waive the privilege. Montanez v. Publix Super Markets, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D13-3848, 3/28/2014).
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, __ So.3d __ (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]
Insurer State Farm was sued by the Coburns on a first-party bad faith claim. State Farm objected to the scope of the Coburns’ discovery requests as overbroad and burdensome, “as well as on the basis of attorney-client privilege and the work product doctrine.” The court ordered production.
State Farm petitioned the Second DCA for a writ of certiorari, arguing that the trial court should have conducted an in camera review to address its objections. The Coburns responded that State Farm had waived that issue by failing to file a privilege log or request an in camera review in the trial court.
The Second DCA denied the certiorari petition, but did so “without prejudice to State Farm's having the opportunity to file a privilege log with the circuit court before producing the requested discovery.” The appeals court ruled that there was no waiver by State Farm, noting that a party has no obligation to file a privilege log prior to a ruling on a scope-of-discovery objection. “[T]he general denial of State Farm's motion was equivalent to a determination that all of the documents were ‘otherwise discoverable.’ At that point, State Farm's claims of privilege and protection under the work product doctrine became mature. See Allstate Indem. Co. v. Oser, 893 So.2d 675, 677-78 (Fla. 1st DCA 2005). Because Florida Rule of Civil Procedure 1.280 ‘does not provide a time limit for filing the [privilege] log,’ Oser, 893 So.2d at 677, State Farm now has the ability to file a privilege log pointing to specific documents which it claims are protected by attorney-client privilege and/or the work product doctrine.” State Farm Florida Ins. Co. v. Coburn, __ So.3d __ (Fla. 2d DCA, No. 2D13-2920, 2/12/2014), 2014 WL 539874.
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).