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, __ So.3d ___, 35 Fla.L.Weekly D260 (Fla. 5th DCA, No. 5D09-2798, 1/29/2010), 2010 WL 322177.

First DCA discusses balancing test involved in determining whether "undue hardship" exception to work product privilege applies.  [Added 1/4/10]

    Plaintiffs sued Defendant, a nursing home.  Plaintiffs sought production of several incident reports.  Defendant objected on the grounds of work product privilege.  The trial court ordered production, stating in its order:  "[Plaintiffs] have further established their need for the [incident reports], in that Bettye Jean Benekin was suffering from dementia at the time of the incident at bar, and has since died.  Thus, they have been unable to confer with her about events surrounding any of the incidents.  [Defendant] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports."

    Defendant petitioned the First DCA for a writ of certiorari, contending that the order should be quashed because the trial court misapplied Fla.R.Civ.P. 1.280(b)(3).  The rule sets out 2 prongs that a party seeking production of work product material must overcome to obtain production:  "(1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship."  There was no dispute over the first prong; the only issue was "whether the [Plaintiffs] would suffer undue hardship in obtaining the information contained in the reports."  In order to determine whether a moving party will experience the required "undue hardship," the trial court must "balance the moving party’s burden in obtaining information with the non-moving party’s burden of production.  Here the trial court determined the [Plaintiffs] had no realistic way to independently procure the information and the [Defendant] had the incident reports at their immediate disposal."

    The trial court's reference to the lack of hardship on the part of Defendant was not indicative of an misapplication of Fla.R.Civ.P. 1.280(b)(3).  "Rather, it indicates the court conducted a balancing test and determined the burden faced by the [Plaintiffs] was unduly difficult in comparison to the ease with which the defendant could produce the reports."

    One judge wrote a concurring opinion to address the Defendant's argument that the trial court misapplied the rule, and expressed his view that the court applied the appropriate test.  The third judge wrote a dissenting opinion, contending that "the trial judge’s consideration of hardship upon the party producing the records was a misapplication of the test set out in rule 1.280 (b)(3) and was thus a departure from the essential requirements of law."  Paradise Pines Health Care Associates, LLC v. Estate of Benekin, __ So.3d ___, 34 Fla.L.Weekly D2621 (Fla. 1st DCA, No. 1D09-961, 12/22/2009), 2009 WL 4912607.

Trial court misapplied "relevant circumstances test" factors in determining that inadvertent disclosure waived attorney-client privilege.  [Added 1/4/10]

    Plaintiff sued Defendant for allegedly terminating her employment in violation of the Florida Civil Rights Act (F.S. 760.01) and the Florida Whistleblower Act (F.S. sec. 448.101).  During her deposition she testified that she received a letter from Defendant's law firm addressed to officers of Defendant.  Plaintiff stated that she was at the fax machine at her place of employment receiving some papers on an insurance claim for her son when she saw and read the letter.  According to Plaintiff, the letter "stated that the [Defendant] 'did not have enough performance issues to fire me, and that it would have to be a business decision whether I was going to remain an employee.'"  Counsel for Defendant objected to Plaintiff's testimony about the letter on the grounds of attorney-client privilege, stating that the letter "'was obviously communicated accidentally.'"

    At the later depositions of two employees of Defendant, each was asked about the letter.  Again defense counsel objected on privilege grounds.  Defendant subsequently moved for a protective order, but the hearing on the motion did not occur for a number of months.  In determining whether the inadvertent disclosure constituted a waiver of the attorney-client privilege, the trial court applied the five-factor test, often called the "relevant circumstances test," outlined in General Motors Corp. v. McGee, 837 So.2d 1010, 1040 (Fla. 4th DCA 2002):  "1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosure; 4) the delay in measures taken to rectify the inadvertent disclosures; and 5) whether overriding interests of justice will be served by relieving the party of its error."  After applying the test, the court ruled that the letter was not protected by the attorney-client privilege and denied the motion for protective order.  Defendant petitioned the Fourth DCA for a writ of certiorari, seeking to quash the order.

    The Fourth DCA granted the petition.  The court noted that "[c]ertiorari lies from an order denying the return of privileged documents inadvertently disclosed.  See Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Décor, Inc., 698 So. 2d 276, 278-79 (Fla. 3d DCA 1997)."  In determining whether the inadvertent disclosure had waived the privilege, the trial court applied the correct test -- the "relevant circumstances test" -- even though that test usually is used where privileged documents have unintentionally been sent to a third party, and in this case they were directed to the lawyer's client.

    The trial court did not properly apply the test, however.  For example, the court "did not make a determination regarding the first factor of the reasonable precautions to prevent inadvertent disclosure."  The court erroneously decided that Defendant unduly delayed taking measures to rectify the inadvertent disclosure.  "Where the party who inadvertently produced the documents objects or demands return of the documents as soon as the disclosure is discovered, the party has not unduly delayed seeking measures to rectify the inadvertent disclosure.  . . .  [I]t is the assertion of the privilege at the earliest time through objection or motion which is the important measure in evaluating efforts to rectify the disclosure.  It is not the delay in securing hearing time.  In failing to recognize that the timely assertion of an objection constituted an appropriate measure to rectify the inadvertent disclosure, the court departed from the essential requirements of law."  The court also missed the boat regarding application of the fifth factor, the overriding interests of justice.  Plaintiff's lawyer "clearly had to know that the letter was intended to be a confidential communication in that it provided legal analysis regarding the [Defendant/Plaintiff] employment relationship.  The Rules of Professional Responsibility [sic] require that he notify the other attorney of this inadvertent disclosure.  See Fla. R. Prof. Conduct 4-4.4(b) . . .   Instead of following the rule, this attorney held onto the letter for years.  The interests of justice require that the Rules of Professional Responsibility [sic] be honored."

    The appellate court concluded that the trial court "departed from the essential requirements of law in evaluating the relevance test factors for waiver of attorney-client privilege based upon inadvertent disclosure" and remanded the matter.  At the hearing on remand, the trial court was directed to "re-analyze" all five of the factors.  "In particular, the court must make further findings regarding the first factor, namely what measures were taken to protect against inadvertent disclosure.  The inquiry must focus on whether the client knew or should have known that the letter sent by the attorney would be viewed by third parties."  (Emphasis by court.)  The privilege belongs to the client.  See Neu v. Miami Herald Publishing Co., 462 So.2d 821, 825 (Fla. 1985).  Nova Southeastern University, Inc. v. Jacobson, __ So.3d ___ (Fla. 4th DCA, No. 4D09-683, 12/23/2009), 2009 WL 4928032.

Non-party seeking protective order for confidential information not required to file privilege log.  [Added 1/4/10]

    One Party in contentious litigation served Non-party with a subpoena duces tecum seeking, inter alia, a certain Asset Purchase Agreement.  Non-party moved for protective order.  Non-party then filed a notice of compliance and produced 100 pages of documents.  It also filed a privilege log listing documents it asserted were protected by attorney-client privilege.  The Asset Purchase Agreement, however, was not listed on the privilege log.  The trial court granted Party's motion to compel production.  Non-party petitioned the Fourth DCA for a writ of certiorari.

    The appellate court granted the writ.  "Because the trial court did not conduct a balancing of interests analysis and failed to conduct an in camera inspection of the agreement to determine whether the privilege was valid, it departed from the essential requirements of law."

    The appeals court also rejected Party's contention that Non-party had waived its right to object because the Asset Purchase Agreement was not listed on the privilege log.  "[A] privilege log is not required from a non-party producing documents.  Florida Rule of Civil Procedure 1.280(b)(5) provides that when a party makes a claim that a document is privileged the 'party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.  (Emphasis added [by court]).  In contrast, a protective order is the available remedy for non-parties.  Rule 1.280(c) provides:  'Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following:  . . . (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; . . .'  (Emphasis added [by court]).  The rules clearly differentiate between parties and other persons.  Because the rule requiring a privilege log applies to parties and not to non-parties, [Non-party] did not waive its right to assert the confidentiality of its agreement by failing to list it in the privilege log."  Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., __ So.3d ___ (Fla. 4th DCA, No. 4D09-2388, 12/30/2009), 2009 WL 5126369.

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]

    Reimer employed Turetsky in its insurance business.  Turetsky signed a non-compete agreement.  Turetsky left Reimer and went to work for Aliant.  Reimer sued Alliant, Turetsky, and Alliant's chief operating officer for tortious interference with contract and breach of the non-compete agreement.  Reimer sought production of certain documents, including all correspondence between Turetsky and "any employee, agent or representative of" Alliant.  Reimer moved to compel production, alleging that "Alliant and the other defendants waived any claim of privilege as to communications regarding the non-compete agreement because Ken Zak, Alliant’s general counsel, swore in an affidavit that he had provided legal advice to Turetsky about the non-compete agreement."  Alliant objected on grounds that included attorney-client privilege.

    At the hearing on the motion the motion to compel, Alliant did not assert the attorney-client privilege as to communications between Zak and Turetsky, but did assert the privilege as to communications between Zak and Alliant's managers, officers, and directors.  The trial court entered a order compelling production of the materials sought by Reimer.  The court did so without conducting an in camera review of the materials as requested by Alliant.  Furthermore, the court's order did not delineate the scope of the waiver of attorney-client privilege.  Alliant petitioned the Fourth DCA for a writ of certiorari.

    The Fourth DCA granted the writ and quashed the trial court's order.  "If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure."  (Citations omitted.)  The trial court also should have delineated the scope of any privilege waiver in its order.  "[I]f attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on the same matter.  . . .  If the parties disagree as to the scope of the privilege waiver, a trial court must delineate the scope of the waiver before it may compel discovery of information."  (Citations omitted.)  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]

    Plaintiff was injured in an auto accident and hired Lawyer to represent her.  Plaintiff was treated by Doctor.  Doctor's billing and payment for Plaintiff's treatment was handled outside of Plaintiff's insurance coverage, by Lawyer's office.  Later it was determined that Doctor may have been within Plaintiff's insurance plan.  Plaintiff sued Doctor "alleging damages stemming from [Doctor]'s failure to bill [Plaintiff] through the insurance network rather than through the independent arrangement."

    Doctor sought to depose Lawyer, alleging that he had non-privileged information about the billing arrangements.  Plaintiff sought a protective order, which the trial court orally granted.  Doctor then filed 2 motions:  a motion to compel Lawyer's deposition; and a motion to disqualify Lawyer from representing Plaintiff on the ground that Lawyer would be a necessary witness at trial.  The trial court denied both motions, "specifically stating that the two motions 'go hand in hand'."  Doctor petitioned the Second DCA for a writ of certiorari.

    The writ was granted in part and denied in part.  The court concluded that the trial court had not departed from the essential requirements of law in denying the motion to disqualify.  The record did not show that Lawyer had been listed as a witness by either party.  (The court noted that Doctor would be able to renew his motion to disqualify in the event that Lawyer was listed as a witness.)

    The trial court did err, however, in denying the motion to compel Lawyer's deposition.  The issues in the 2 motions were "distinguishable," and so the trial court should have considered the motions separately.  Under the circumstances, Lawyer appeared to be a potential material witness.  The appellate court recognized that "while deposing opposing counsel is fraught with concern," it noted that "there is no absolute prohibition to the practice."  The court further observed that, "[c]ase law specifically suggests that in certain instances the taking of a deposition of opposing counsel should be allowed in order to determine whether a motion to disqualify that counsel should ultimately be granted" (citing Quality Air Conditioning Co. v. Vrastil, 895 So.2d 1236, 1238 (Fla. 4th DCA 2005), and Singer Island Ltd. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998)).  The court concluded:  "Because the trial court departed from the essential requirements of law in failing to use the correct analysis for determining whether to deny the motion to depose [Lawyer], and because [Doctor] would have no adequate remedy on appeal, we grant the petition with regard to [Doctor]'s motion to depose."  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]

    Plaintiff sued Defendant, alleging dental malpractice.  Defendant's counsel sent some documents to Expert Witness, who had been retained by Defendant.  At his deposition Expert Witness testified that he had received the documents but had not read them.  Plaintiff sought production of the documents, contending that any applicable privileges had been waived when Defendant disclosed the documents to Expert Witness.  Defendant denied that she had any intent to waive the privileges; in fact, Defendant averred that the documents had been sent to her expert inadvertently.  (The parties apparently agreed that the documents would be protected by the attorney-client and work products privileges, if there had not been a waiver.)  The trial court entered an order ruling that "by negligently including the materials in controversy when she made the transmittal to her expert, [Defendant] had waived all applicable privileges," and ordered the documents produced.  Defendant petitioned the First DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the production order.  The court noted that "[t]he principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert," citing Fla.R.Civ.P. 1.280(b)(4)(B), and continued:  "Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence."  (Citations omitted.)  "The trial court gave no indication it did not believe [Expert Witness]'s testimony that he had not even read the privileged documents, much less find that he had relied on them in any way.  Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion . . . there has been no such showing here."  (Footnote and citations omitted.)  The trial court departed from the essential requirements of law when it ruled that Defendant "waived her attorney-client privilege or work product protection solely by virtue of the fact that she turned over — inadvertently, as far as can be told from this record — the materials in controversy to an expert witness."  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).