Allegedly defamatory statements made by lawyer during potential witness interviews are absolutely privileged, per Fourth DCA.   [Added 6/28/10]

    DelMonico filed suit against Donovan Marine and an employee, Crespo.  Lawyer represented Donovan Marine.  During the course of defending his client Lawyer "published to DelMonico’s ex-spouses and business peers the same allegation [first made by Crespo] that DelMonico hired prostitutes to get business and that DelMonico faced prosecution for prostitution."  The allegedly defamatory statements were made in the course of potential witness interviews.  They were made by Lawyer "in his role as an attorney, and were made purportedly for the purpose of defending his client during pending and active litigation."  DelMonico filed claims of action for defamation and tortious interference against Lawyer and his law firm as a result of these statements.

    The trial court granted Lawyer's motion for summary judgment, "based upon absolute immunity conferred by the litigation privilege."  Plaintiffs appealed.

    The Fourth DCA affirmed.  "Because the statements complained of were made by [Lawyer] while he was acting as defense counsel in the underlying litigation, and the statements bore 'some relation' to the proceeding, they were absolutely privileged as a matter of law.  Levin [, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co.,]  639 So.2d [606] at 608 [ Fla. 1994)] ; see also Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010) (concluding that the actions of the law firm in preparing and filing a notice of lis pendens were privileged because they occurred during the course of a judicial proceeding); Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999) (concluding that statements made by lawyer during interview of potential witness in preparation for trial were absolutely privileged).  Interviewing a witness in preparation for and connected to pending litigation is absolutely privileged.  Stucchio, 726 So. 2d at 373."  The court added that Lawyer "should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding.  The Florida Supreme Court merely requires that the 'act' have 'some relation to the proceeding.'"  (Citation omitted.)  DelMonico v. Traynor, __ So.3d ___, 35 Fla.L.Weekly D1331 (Fla. 4th DCA, No. 4D08-4035, 6/16/2010), 2010 WL 2382570.

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]

    Lawyer represented Client in a slip and fall case against Defendants.  Lawyer also represented client in a separate, unrelated auto accident case.  Defendants sought production of "'any and all non-privileged portions'" of Lawyer's file on Client in the auto accident case.  Lawyer objected on attorney-client privilege and work product privilege grounds.  Defendants sought an in camera inspection of the file.  "Without requiring [Defendants] to identify a basis for why they were entitled to invade opposing counsel’s file, the trial court ordered [Lawyer] to submit his entire file concerning the August 15, 2007, auto accident for an in camera inspection."

    Client appealed, contending that "the subpoena in question is a classic 'fishing expedition'."  Agreeing, the Fourth DCA reversed.  "[Defendants] made no attempt by way of interrogatories or requests for production to determine whether there were documents in the auto accident file relevant to the instant case; much less that they were 'unable without undue hardship to obtain the substantial equivalent of the materials by other means.'  [Fla.R.Civ.P. 1.280(b)(3).]  Curiosity about the contents of the auto accident file does not satisfy the relevancy requirement.  Having failed to make even a minimal showing of entitlement to any documents contained in the auto accident file, there is no justification under the Florida Rules of Civil Procedure to order [Lawyer] to provide the trial court with his file for an in camera inspection."  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]

    Mother and Father were opposing parties in contentious paternity litigation.  Mother came into possession of a USB flash drive belonging to Father.  The drive contained "the electronic equivalent of thousands of pages of documents and communications" that included attorney-client communications between Father and his lawyer, attorney-client work product, and confidential medical, financial, and business information relating to Father.  After "illegally obtain[ing]" the flash drive, Mother took it to Law Firm.  Law Firm spent "in excess of 100 hours reviewing its contents 'although it was apparent within moments of inspection that it belonged to the Father and contained attorney/client communications with the Father's current counsel . . ., as well as a complete history and chronology of strategy, work product, and confidential communications spanning the near decade-long period of this litigation.'"

    Father moved to disqualify Mother's Law Firm.  The trial court granted the motion, in addition to ordering other things such as return of the flash drive and any copies of the documents, removal of the information from Law Firm's and Mother's computers, and so forth.  Mother petitioned the Fifth DCA for a writ of certiorari, seeking to quash the disqualification order.  Mother contended that the remedies short of disqualification ordered by the trial court were sufficient.

    The appellate court denied the petition.  "While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel.  . . .  Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother."  (Citations omitted.)

    The court concluded with a cautionary point:  "For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission [sic] on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue.  If the client refuses to consent to disclosure, the attorney must withdraw from further representation.  Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1."  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.  Click here for the text of the new rule.

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. 1^st 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).

Lawyer who filed papers for same criminal defense client using different names for the client in 2 different cases is chastised by county judge.  [Added 8/2/07]  --  Click here for a link to the news story.

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).

Florida 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. 4^th 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. 1^st 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 (11^th Cir. 2003).