Protective order allowing plaintiff's counsel to share confidential discovery with lawyers who have similar cases against same defendant quashed.  [Added 12/26/11]

    Plaintiffs sued Defendant over alleged negligence in filling prescriptions for one of the plaintiffs.  Plaintiffs' counsel obtained discovery of information that "was confidential and contained trade secrets" of Defendant.  In working out a confidentiality agreement, the parties disagreed over Plaintiffs' intent to include a "sharing provision" in the agreement that would permit Plaintiffs' counsel "to share [Defendant]’s confidential discovery responses with 'collateral litigants,' which would include [Plaintiffs'] counsel in similar cases or other similarly situated litigants’ attorneys."  The protective order entered by the court permitted the sharing of the discovery with "any attorneys, their staff, and any expert witnesses involved in any other past or present cases involving alleged prescription errors committed by pharmacists employed by [Defendant] . . ."   Defendant petitioned for a writ of certiorari to quash the order.

    The First DCA granted the petition and quashed the order.  "[Defendant] argues the trial court’s order allowing for the dissemination of confidential material and trade secrets to non-party litigants departs from the essential requirements of law.  We agree for two reasons.  First, if a  sharing provision is utilized, it must be specifically tailored to meet the needs of both parties while balancing the need to maintain confidentiality.  Second, any sharing provision that allows for the dissemination of trade secrets to third parties without a court considering whether the material (1) conceals a fraud or (2) works an injustice is contrary to section 90.506, Florida Statutes (2010)."

    Regarding the first reason, the court noted that only one Florida case had addressed "sharing provisions."  See Cordis Corp. v. O'Shea, 988 So.2d 1163 (Fla. 4th DCA 2008).  "Currently, Florida law requires to the extent a sharing provision is used, the provision must be narrowly tailored in scope and balanced with the need to protect the confidential nature of the documents sought to be discovered and the established need of the known collateral litigant to view the discovery."  In the instant case, however, any "collateral litigants are unknown, and the only affirmations as to their need to view confidential information are the assertions of [Plaintiffs'] counsel.  As noted in Cordis, a trial court must engage in a balancing test and that cannot be done when there is no established collateral litigant."  Consequently, the order containing the sharing provision departed from the essential requirements of law.

    As to the second reason, orders that "allow dissemination of trade secrets without considering the factors codified in [Florida Statutes] section 90.506 are per se unlawful."  Under that statute, a court must consider whether the trade secrets will conceal a fraud or work an injustice before allowing dissemination to third parties.  Wal-Mart Stores East, L.P. v. Endicott, __ So.3d ___, 36 Fla.L.Weekly D2707 (Fla. 1st DCA, No. 1D11-3568, 12/9/2011), 2011 WL 6117220.

Florida 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]

    Lawyer represented developer Meyer in connection with a “financing device” referred to as a “standby letter of credit.”  The underlying facts were complex and involved a number of parties.  Investors were solicited and apparently informed that the funds they invested would be held in Lawyer’s trust account and then returned to them along with “exceptional interest.”  At some point Lawyer prepared and signed 5 letters addressed to possible investors.  The letters inaccurately suggested, however, that the 5 recipients had already provided their funds to Lawyer.  The funds that were received were deposited in Lawyer’s trust account and later disbursed by him upon instructions from Meyer.  None of the investors were notified or gave their permission before the disbursement occurred.

    The Bar charged Lawyer with violations of Rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rule 5-1.1(b) (lawyer must hold property of others with care required of professional fiduciary).  The referee before whom the case was tried recommended that Lawyer be found guilty of violating Rule 5-1.1(b).  The referee recommended that Lawyer be found not guilty of violating Rule 4-8.4(c) because Lawyer “acted negligently and, thus, did not intend to engage in misrepresentation.”  The recommended discipline was a 90-day suspension followed by a 3-year probation.  The Bar sought Florida Supreme Court review.

    The Court approved the guilty recommendation regarding the trust accounting violations but disapproved the not-guilty recommendation regarding Rule 4-8.4(c).  The Court also suspended Lawyer for 3 years instead of 90 days.

    The Court rejected the referee’s finding that Lawyer acted negligently rather than intentionally.  Citing its precedent, the Court stated that “[t]he motive behind the attorney’s action is not the determinative factor.  Rather, the issue is whether the attorney deliberately or knowingly engaged in the activity in question.”  (Citations omitted.)  The actions Lawyer took (e.g., writing and signing the letters, transferring money out of his trust account) were deliberately or knowingly engaged in, and so his conduct was intentional and violated Rule 4-8.4(c).

    The Court did not accept Lawyer’s contention that his conduct concerning the letters could not violate the rule unless it was proven that someone relied on them.  “Deceitful conduct does not have to be successful in order to be found dishonest.”

    Lawyer also asserted that Meyer was his client and so he could not provide the investors with the information that they requested regarding the status of their funds.  The Court disagreed, noting that Lawyer owed fiduciary duties to the investors.  “[L]awyers often hold funds in escrow where their client is one principal and a non-client is another principal party.  By undertaking to do so, the lawyer establishes a new legal relationship with the principal parties either by an expressed agreement or by an agreement implied in law.  The relationship that is established is one of principal and agent, in which the lawyer is an agent of, and owes a fiduciary duty to, all of the principals.  Absent a written agreement, the law implies that the attorney will know the conditions of the principals’ agreement and will exercise reasonable skill and ordinary diligence in the holding and delivering of the escrowed funds in accordance with that agreement.”

    In suspending Lawyer for 3 years, the Court stated:  “[Lawyer] misused his status as an attorney to harm members of the public.  He caused these individuals to believe that their funds would be safe in his attorney trust account, yet he intentionally disbursed their funds without their knowledge or consent.  [Lawyer]’s flagrant misuse of his position as an attorney, by which he purposefully lulled members of the public into thinking their funds would be safe in his account, merits a severe sanction.”  Florida Bar v. Watson, __ So.3d ___, 36 Fla.L.Weekly S713 (Fla., No. SC09-2022, 12/8/2011), 2011 WL 6090078.

Order finding waiver of attorney-client and work product privilege objections due to "untimely" filing of privilege log is reversed.  [Added 11/9/11]

    On May 26, 2010, Bank was served with a Second Request to Produce.  Bank timely responded and raised objections (including attorney-client privilege and work product) to some requests, but stated that it would produce other documents at an agreed-upon time and place.  Requestors' counsel "ignored [Bank]’s counsel’s attempts to arrange a mutually convenient time and place for production of documents, instead filing a Motion to Compel and to Impose Sanctions."  A hearing on the motion was held on August 4, 2010.  The trial court did not rule on the privilege or other objections, but ordered production of all requested documents by August 6.  On August 6 Bank produced the documents along with a privilege log.

    The court held a hearing on Bank's objections on December 1, 2010.  The court found that one document was work product and one document was attorney-client privileged.  The court, however, ruled that Bank's filing of its privilege log was untimely because it had not been filed within 30 days of being served with the Second Request to Produce.  The court ordered production of the documents.  The court also awarded attorney's fees against Bank as a sanction.  Bank petitioned the Fifth DCA for a writ of certiorari.

    The appellate court granted the petition and quashed both the production order and the sanction order.  The trial court erred in ordering production.  Fla.R.Civ.P. 1.280(b)(5) provides that a party withholding otherwise-discoverable materials under a claim of privilege must expressly make the claim and describe the nature of the materials in a way that does not reveal privileged information but enables others to assess the applicability of the asserted privilege.  The rule, however, "does not set forth a time by which a privilege log must be filed."  The court cited its earlier decision in Bankers Security Insurance Co. v. Symons, 889 So.2d 93 (Fla. 5th DCA 2004), which held that "failure to submit a privilege log by the due date for the response to the request to produce did not automatically constitute a waiver of the right to assert privilege or work-product immunity."  In Symons the court "observed that the attorney-client privilege and work product immunity are important protections in the adversarial legal system and that finding an implicit waiver of these protections should not be favored, but resorted to only when the violation is serious."

    The court summarized its decision:  "T]he trial court resolved the parties’ disputes regarding copying costs and the time and location of document production at the August 4, 2010 hearing.  At such time, the trial court ordered Petitioner to produce its privilege log within two days.  [Bank] timely complied with that order.  The trial court’s subsequent finding of an implicit waiver, based on a failure to file a privilege log within thirty days of the date of service of the Second Request to Produce, constituted a departure from the essential requirements of law."  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]

    On behalf of its clients Law Firm sued Defendants in federal court based on diversity jurisdiction.  The court entered a partial summary judgment for Law Firm's clients.  When Law Firm tried to execute on the judgment, an individual defendant filed for bankruptcy.  At that time it was learned that the alleged basis of diversity jurisdiction did not exist.  After the federal court dismissed the action for lack of subject matter jurisdiction, Defendant filed suit against Law Firm alleging that its post-judgment actions (issuing subpoenas and writs of garnishment) constituted an abuse of process.  The court granted Law Firm's motion to dismiss on the basis that the firm's conduct was protected by the litigation privilege.

    Defendant appealed.  The Third DCA affirmed.

    The appeals court addressed and rejected the 3 contentions raised by Defendant, which were:  "(1) the litigation privilege does not apply to an action for abuse of process; (2) the application of the litigation privilege for a cause of action for abuse of process would abolish abuse of process as a cause of action; and (3) the litigation privilege cannot protect actions taken during a judicial proceeding where the trial court lacked subject matter jurisdiction over the proceedings."

    Relying on Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So.2d 606, 608 (Fla. 1994), and Echevarria, McCalla, Raymer, Barret & Frappier v. Cole, 950 So.2d 380, 380-81 (Fla. 2007), the court concluded:  "Because it is undisputed that the acts complained of here occurred during and were related to the judicial proceedings, we agree with the trial court that the litigation privilege applies to [Defendant]’s cause of action against [Law Firm] for abuse of process."

    Applying the litigation privilege to an abuse of process claim does not abolish the cause of action for abuse of process because "a claimant may still pursue a claim for an abuse of process when the claim is based on actions taken outside of a judicial proceeding or on actions that are taken during a judicial proceeding but which are unrelated to the judicial proceeding."  Furthermore, "[t]he Florida Supreme Court has also specifically noted that the inability to pursue a tort action due to the litigation privilege does not leave a party with no remedy.  Viable alternative remedies for a participant’s misconduct during judicial proceedings include 'the discipline of the courts, the bar association, and the state.'"  (Citations omitted.)

    Finally, citing and discussing Willy v. Coastal Corp., 503 U.S. 131 (1992), the court concluded:  "The fact that the lawyers and federal district court subsequently discovered a jurisdictional defect during the federal litigation does not preclude application of the privilege nor deny [Law Firm] its protection."  Additionally, as a policy matter, "limiting the protection afforded by the litigation privilege on a court having subject matter jurisdiction, as [Defendant] advises us to do, would severely undercut the public policy which inspired its creation.  . . .  If protection from exposure to liability hinged on a complicated legal issue, it would render the litigation privilege virtually meaningless, as the privilege’s protection would always be uncertain and, therefore, attorneys would have reason to hesitate before employing certain strategies.  If faith in the litigation privilege is to remain uncompromised, its protections should not be premised on the existence of subject matter jurisdiction."  LatAm Investments, LLC v. Holland & Knight, LLP, __ So.3d ___, 36 Fla.L.Weekly D2307 (Fla. 3d DCA, No. 3D10-3042, 10/19/2011), 2011 WL 4949997.

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]

    Bank sued a limited liability company to foreclose on a note and mortgage.  Bank also sued Frye, who gave a personal guaranty of the note.  Frye hired attorney Trupp and his law firm (the "Arnstein firm") to defend him against Bank's claims.  Frye later discharged Trupp and the Arnstein firm and sued them alleging legal malpractice "based upon their representation of him in the Bank's action as well as in other matters involving loans and personal guaranties.  Significantly, [Frye] alleged in his malpractice complaint that [Trupp] and [the Arnstein firm] firm obtained 'confidences of [Frye] during their representation, including, without limitation, information gleaned from performing estate and asset planning for [Frye] giving [Trupp and the Arnstein firm] intimate knowledge of [Frye's] financial circumstances.'"

    Shortly after the malpractice suit was filed Bank replaced its current counsel with the Henderson Franklin law firm.  Trupp and the Arnstein firm also retained Henderson Franklin to represent them in Frye's malpractice action against them.  Thus, Henderson Franklin was simultaneously representing Bank against Frye and Frye's former counsel against Frye.

    Frye filed a motion to disqualify Henderson Franklin as counsel for Bank in the guaranty action.  Frye alleged that Henderson Franklin had an unfair informational advantage in that matter because, due to its attorney-client representation with his former counsel, Henderson Franklin had access  to files and confidential information that Trupp and the Arnstein firm had as a result of representing Frye in the case involving the Bank.  The trial court denied the disqualification motion on the ground that there had been no attorney-client relationship between Frye and Henderson Franklin.  Seeking to quash the order, Frye petitioned for a writ of certiorai.

    The Second DCA granted the petition.  The court summarized:  "[T]he question presented is whether Henderson Franklin's access to confidential communications between Mr. Frye and his former lawyer through its representation of the lawyer in the legal malpractice action is sufficient to require the disqualification of Henderson Franklin from continued representation of the Bank in the action against Mr. Frye on the guaranty.  We conclude that the unfair informational advantage accruing to Henderson Franklin through its representation of Mr. Frye in the legal malpractice action disqualifies it from further representation of the Bank in its action against Mr. Frye on the guaranty."  The court found support for its decision in Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990).

    Frye's former lawyer, Trupp, "is irrefutably presumed to have obtained confidential information from his former client" in the context of  representing Frye in the Bank's action on the guaranty and in estate and asset planning matters.  Trupp was ethically permitted to disclose confidential information to defend himself in the malpractice action brought by Fyre.  See Rule 4-1.6, Florida Rules of Professional Conduct.  Thus, Trupp could disclose such information to his counsel, Henderson Franklin.  As a result, Henderson Franklin would possess confidential information that it could use against Frye in the Bank's guaranty action.  "It follows that Henderson Franklin must be disqualified from representing the Bank in its action against Mr. Frye because of the unfair informational advantage Henderson Franklin has gained by virtue of its representation of Mr. Trupp and the Arnstein firm in the defense of Mr. Frye's malpractice action.  See Adelman, 561 So.2d at 673; see also Castellano v. Winthrop, 27 So.3d 134, 137 (Fla. 5th DCA 2010) (noting that 'disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel'); Greig v. Macy's Ne., Inc., 1 F.Supp. 2d 397 (D.N.J. 1998) (requiring disqualification of counsel under facts similar to those in Adelman and in this case)."

    Because Frye sought disqualification based on the unfair information advantage and not a conflict of interest theory, he did not have to show that he had an attorney-client relationship with Henderson Franklin.  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]

    Witness was formerly employed by Petitioner as its risk manager.  In that capacity, Witness "apparently assembled or prepared the contents of the claims file."  Witness was going to be deposed by Petitioner's opponent ("Respondent") in litigation.  Respondent set the deposition and secured an order from the trial court directing Petitioner to produce the claim file "for the ostensible purpose of allowing [Witness] to refresh her memory prior to her deposition."  Seeking to quash the production order, Petitioner sought a writ of certiorari from the Fifth DCA.

    The appellate court granted the petition.  The court noted that Respondent conceded that, for these purposes, the claim file's content were immune from discovery as work product.  Respondent also conceded that only Witness would view the file and that no privilege waiver would result.  In quashing the order, the court stated:  "Although a theoretical case may be made for the production of work product to refresh a witness’s memory when the evidence is not otherwise available, thus far, Respondent’s showing is entirely conjectural.  See Zaban v. McCombs, 568 So.2d 87, 89  (Fla. 1st DCA 1990) (where witness could recall  facts concerning accident, improper to order production of witness’s statements);  Adventist Health Sys./Sunbelt, Inc. v. Lake, 556 So.2d 819, 819 (Fla. 5th DCA 1990) (production of work product to refresh recollection of witness erroneous where respondents could have obtained substantial equivalent of witness’s statements)."  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]

    In a medical negligence case Plaintiffs sought production of Defendant's adverse medical incident reports pursuant to "Amendment 7" (Art. X, sec. 25(a), Fla.Constit.).  The trial court ordered production of the reports but ordered that "all 'opinions, comments, recommendations or findings, no matter by whom made' be redacted from the documents."  (Emphasis by court.)  Plaintiffs petitioned the Third DCA for a writ of certiorari.  The court granted the petition and quashed that portion of the order. 

    The court distinguished fact and opinion work product, then noted that "[t]he plain language of Amendment 7 evinces intent to abrogate any fact work privilege that may have attached to adverse medical incident reports prior to its passage.  . . .  However, there is nothing in Amendment 7 to suggest the voters intended to create a chilling effect within legal profession by mandating disclosure of opinion work product.  . . .  The only question that remains, therefore, is whether the redacted portions of respondent’s reports are privileged as opinion work product.  We hold they are not."  (Citations omitted.)

    The court concluded that no cases had extended work product protection to the types of comments protected by the trial court's order.  " Even in so far as, Florida Rule of Civil Procedure 1.280(b)(3) refers to the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation, we decline to extend the privilege to the comments and findings of hospital personnel routinely contained in adverse medical incident reports.  To hold otherwise would undermine the broad scope of Amendment 7 outlined in [Florida Hospital Waterman, Inc. v.] Buster [984 So.2d 478 (Fla. 2008)] ."  (Emphasis by court.)  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 8/111]

    Plaintiffs entered into license agreements with Defendants.  There was a disagreement over the products involved.  Plaintiffs sued Defendants alleging breach of contract, fraud, and other claims.  Defendants then posted derogatory statements regarding Plaintiffs on their public website.  Plaintiffs amended their complaint to allege defamation.  The trial court, citing citing Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994), ruled that "the statements on the website were directly related to the litigation and thus were absolutely immune" and dismissed the defamation claim.

    Plaintiffs appealed.  The Fourth DCA reversed, holding that "statements made on a party’s website are not protected by the litigation privilege."

    The court analogized the publication of statements on an internet website to "calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media," which other courts – including the U.S. Supreme Court in Buckley v. Fitzsimmons, 509 U.S. 259 (1993) – have concluded are not made in connection with a judicial proceeding and thus are not entitled to litigation privilege immunity.  The court summarized:  "[T]he website publication in this case was not made in connection with the judicial proceeding.  It was not made in the proceedings itself, nor was it made to a participant connected to the proceeding such as a witness.  Like statements to the newspapers or press conferences, these statements have no part in the judicial proceedings.  . . .  These statements were not 'necessarily preliminary' to judicial proceedings, because unlike either Ange [v. State, 123 So. 916 (1929)] or Stewart [v. Sun Sentinel Co., 695 So.2d 360 (Fla. 4th DCA 1997)] the statements were not steps in the judicial process.  The judicial proceeding immunity should not be extended to such publications, because it does nothing to enhance policy behind the privilege which is to provide free and full disclosure of facts in a judicial proceeding.  It is not communication directed to participants which must remain unhindered by fear of civil lawsuits.  Instead, it most likely does just the opposite, and information relevant to lawsuits may be less likely to be shared for fear that it will be posted on the internet."  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]  -- 

    Husband petitioned the Fourth DCA for a writ of certiorari, seeking to quash a trial court order ruling that the crime-fraud exception to the attorney-client privilege applied.  The appellate court granted the petition.  "The trial court departed from the essential requirements of law when it ruled that the crime-fraud exception applied to husband’s claim of privilege without holding an evidentiary hearing at which husband was permitted to testify.  Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Ke y Biscayne Developers, Inc., 873 So.2d 339, 342 (Fla. 3d DCA 2003).  See also Walanpatrias Found. v. AMP Servs., Ltd., 964 So.2d 903, 905 (Fla. 4th DCA 2007); IDS Long Distance, Inc. v. Heiffer, 837 So.2d 1130, 1131 (Fla. 4th DCA 2003); Am. Tobacco Co. v. State, 697 So.2d 1249, 1255 (Fla. 4th DCA 1997).  This matter is remanded for the trial court to allow the husband to testify and present evidence in response to the allegations of fraud."  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]

    At its meeting in Orlando on March 25, 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).

Florida 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., __ So.3d ___, 36 Fla.L.Weekly S97 (Fla., No. SC06-2508, 3/17/2011), 2011 WL 903988.

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).

Florida 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.

    Click here for the amended version of Fed.R.Civ.P. 26.  Summaries of the changes appears in various places; click here for the summary that appears on the website of the American Institute of Certified Public Accountants.

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]

    At its December 2010 meeting 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, Florida Rules of Professional Conduct), 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).

Florida Supreme Court adopts a Rule of Civil Procedure addressing inadvertent disclosure of privileged materials.  [Added 9/10/10]

    The Florida 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).

The text of new Rule 1.285 provides:

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.  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).