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]

    Doctor was in the midst of divorce proceedings.  He filed financial affidavits in the family law court.  Doctor had a "lucrative practice limited to patients involved in personal injury litigation."  His fees are paid pursuant to letters of protection issued by the patients' attorneys.  After becoming aware of these documents, defense counsel in a person injury suit in which Doctor was the treating physician questioned Doctor regarding financial information obtained from the divorce case file.

    Doctor then moved to conditionally seal his financial records in the divorce case.  His spouse did not oppose the motion.  The trial court, however, denied the motion.  Doctor then petitioned the Second DCA for a writ of certiorari.

    The appellate court granted the petition, concluding thta Florida Family Law Rule of Procedure 12.400 governed and authorized the conditional sealing of the records.  Nucci v. Nucci, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-3717, 7/11/2008), 2008 WL 2697161.

Trial court erred in requiring production of privileged documents used by witness to refresh recollection prior to testifying at deposition  [Added 7/8/08]

    Former Client sued Law Firm alleging malpractice.  On of the partners in Law Firm was deposed.  During his testimony, Partner indicated that he had earlier met with Law Firm's defense counsel "and reviewed certain documents counsel had selected to prepare him for the deposition.  Counsel had highlighted and made notations on portions of the documents."  Additionally, Partner reviewed some summaries prepared by defense counsel that includes "a chronology of important dates and counsel's impressions of certain issues in the case."  Partner did not review any of these documents during his deposition.

    Former Client sought production of the documents Partner reviewed in preparation for his deposition.  The trial court granted Former Client's motion to compel production, "[b]elieving that Merlin [v. Boca Raton Community Hospital, 479 So.2d 236, 238 (Fla. 4th DCA 1985)] requires production."  Seeking to quash the order, Law Firm petitioned the Fourth DCA for a writ of certiorari.

    The appellate court granted the writ and quashed the production order.  Fla.Stat. sec. 90.613 provides in part:  "When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence."  (Emphasis added.)   The Fourth DCA recognized in Merlin that this statute applies only to documents a witness refers to "while testifying."  "Although there is no obligation under this statute to produce documents a witness uses prior to testifying, we held that the trial court may allow inspection by the opposing party unless these documents are 'otherwise privileged.'  Merlin, 479 So.2d at 239.  If material used to prepare a witness before testifying is privileged, then it is protected from discovery."

    In the instant case, copies of the original (unannotated) documents had already been produced.  The trial court's order, however, went too far because "the effect of the discovery order now challenged would be to disclose to the opponent which documents [Law Firm]’s counsel thought were most relevant, which, along with the summaries it prepared for [Partner]’s deposition, were clearly work product and privileged attorney-client communication."  Proskauer Rose LLP v. Boca Airport, Inc., ___ So.2d ___ (Fla. 4th DCA, No. 4D08-335, 7/2/2008).

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]

    Plaintiffs in a medical negligence case sought advice from Law Firm.  Law Firm wrote a letter to one of the Plaintiffs.  In the ensuing lawsuit, Defendants sought discovery of the letter for the purpose of showing that the action was barred by the statute of limitations.  The trial court reviewed the letter in camera “and concluded that it was not confidential or privileged and that, even if the correspondence had been privileged, any privilege was waived by [Plaintiffs’] assertion in their complaint that their action was timely filed.”   The trial court ordered production of the letter.  Plaintiffs petitioned the First DCA for a writ of certiorari.

    The First DCA quashed the order.  “Here, [Plaintiff] consulted the law firm of [] for legal advice.  Unlike the trial court, we find that the correspondence from [Law Firm] to [Plaintiff] was a confidential communication protected by the attorney-client privilege and that the privilege was not waived by [Plaintiffs’] allegation in their complaint that their lawsuit was timely filed.  Therefore, by compelling disclosure of a privileged document, the trial court departed from the essential requirements of law.”  Samuel v. Shands Teaching Hospital and Clinics, Inc., ___ So.2d ___ (Fla. 1^st DCA, No. 1D07-6082, 6/18/2008).

    NOTE:  See also Waffle House v. Scharmen, 981 So.2d 1266 (Fla. 1st DCA 2008) (in workers' compensation case lawyer's "communication of the applicable statute of limitation" to client was "mere recitation of statutory language" and thus not privileged).

Lawyer's advice to client regarding applicable statute of limitations not protected by attorney-client privilege  [Added 5/29/08]

    In a worker's compensation case, the Judge of Compensation Claims ("JCC") found that the Employer/Carrier ("E/C") had failed to provide the Claimant with notice of his rights under the workers' compensation law.  Accordingly, the JCC ruled that the E/C was estopped from asserting a statute of limitation defense.  The E/C appealed, arguing that the JCC abused her discretion by denying the E/C "the opportunity to depose Claimant’s counsel to determine whether counsel informed Claimant of the applicable statute of limitations, thereby providing Claimant with actual knowledge."

    The First DCA agreed and reversed.  "It is well-established that no privilege attaches to attorney-client communications consisting of non-privileged information or the attorney’s recitation of statutory language.  See Kilbourne & Sons v. Kilbourne, 677 So.2d 855 (Fla. 1st DCA 1995) (finding non-privileged attorney communication to client reciting statutory language and advising of statutory work search requirements); Watkins v. State, 516 So.2d 1043 (Fla. 1st DCA 1987) (finding non-privileged attorney’s testimony regarding advising client of trial dates)."  Because the lawyer's "communication of the applicable statute of limitation" to the client was "mere recitation of statutory language," the court concluded that it was not privileged.  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]

    Insured sued Insurer alleging a statutory bad faith claim arising out of an uninsured motorist ("UM") coverage.  Insured sought production of Insurer's claim and underwriting files over Insurer's objections.  Insurer also argued that Insured's bad faith complaint should be dismissed as premature because the issues of liability and damages had not been finally determined.  The trial court rejected both arguments and ordered production of the entire file that included "all adjuster notes, e-mails, statistical and financial data relating to [Insured]'s UM claim; and all documents sent to or received from any other insurer relating to [Insured]'s UM claim."  Seeking to quash the order, Insurer petitioned the Second DCA for a writ of certiorari.

    The Second DCA granted the petition.  Although the court observed that "[t]here is an abundance of case law that holds that a first-party bad faith claim does not accrue until there has been a final determination of both liability and damages in an underlying coverage claim," it refused to quash the order denying Insurer's motion to dismiss the complaint as premature because Insurer had an adequate remedy available on appeal.

    The court, however, did quash the order requiring production of Insurer's claim and underwriting files.  "Until liability and damages are finally determined under the UM provisions of [Insured]'s policy, [Insured] is not entitled to the discovery she now seeks, and the trial court departed from the essential requirements of the law when it compelled that discovery.  Improper production of these otherwise privileged and protected documents would cause material injury to [Insurer] that could not be corrected in a later appeal."  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]

    Plaintiff was in an auto accident that he cannot remember.  Plaintiff and his wife sued Defendants.  When answering Defendants' interrogatories Plaintiff relied on experts regarding the accident.  Plaintiff, however, answered the interrogatories in the first person.  Defendants did not know that the interrogatory answers came from the experts until Plaintiff was deposed.  Defendants then moved to dismiss the case on the basis of fraud and moved for sanctions.  Plaintiff opposed the motions, asserting work product privilege.  At a hearing the court entertained legal argument but apparently no evidence was introduced.

    The trial court denied the motion to dismiss, did not rule on the motion for sanctions, and ordered Plaintiffs "'to reveal the names and opinions and bases of those opinions of their experts which they relied upon to answer'" certain interrogatories based on a finding that Defendants had "shown exceptional circumstances warranting" the disclosure.  Plaintiffs petitioned for certiorari relief.  The First DCA granted the petition.

    The appellate court concluded that the trial court's order departed from the essential requirements of law "by finding exceptional circumstances exist without having heard any evidence from [Defendants] as to the need for the information or any undue hardship [Defendants] might face in collecting the information independently."  The court remanded the matter for further proceedings.  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]

    The "Attorney-Client Privilege Protection Act of 2007," H.R. 3013, was passed by the U.S. House of Representatives on November 12, 2007.  The legislation has been supported by a variety of groups, including the American Bar Association, the Association of Corporate Counsel, business organizations, and the Florida Bar's Attorney-Client Privilege Task Force.

    Click here for a news release issued by the National Association of Criminal Defense Lawyers.

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]  -- 

    Plaintiff sued Defendant tobacco company.  Defendant requested production of documents supporting specific allegation of Plaintiff's complaint.  Plaintiff objected on work product grounds.  After the trial court overruled Plaintiff's objection, Plaintiff produced 4 DVDs containing thousands of documents, but did not specify which documents supported which of the complaint's allegations.  The trial court then directed Plaintiff "to identify the documents responsive to each specific request in [Defendant's] third request for production."

    Plaintiff petitioned the Second DCA for a writ of certiorari, contending that the trial court's order departed from the essential requirements of law and should be quashed "because his selection of which documents are responsive to which requests will reveal his protected mental impressions, conclusions, opinions, and theories about the case."  Relying on Northup v. Acken, 856 So.2d 1267 (Fla. 2004), the appellate court quashed the order.  The court quoted the following language from Northup:  "The overriding touchstone in this area of civil discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably expected or intended to be presented to the court or before a jury at trial.  Only at such time as the attorney should reasonably ascertain in good faith that the material may be used or disclosed at trial is he or she expected to reveal it to the opposing party.  Because the Fourth District's Gardner [v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002)] decision conflicts with this principle, we must disapprove that portion of the opinion requiring counsel to evaluate the comparative relevance of documents for purposes of an opponent's discovery."

    In the instant case, the Second DCA viewed the trial court's order as requiring Plaintiff to advise Defendant which of the already-produced documents were relevant to specific allegations in the complaint.  "We see no difference between this directive and the one in Gardner disapproved of by the supreme court.  In addition, the court's directive is overbroad because it is not limited to documents that [Plaintiff] has determined he will use at trial."  Hargroves v. R.J. Reynolds Tobacco Co., ___ So.2d ___, 32 Fla.L.Weekly D2346 (Fla. 2d DCA, No. 2D07-204, 9/28/2007), 2007 WL 2808231.

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.  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).