The Ins and Outs of Privilege in Florida

This article covers some of the ins and outs of asserting privilege when defending discovery directed at an attorney or law firm. If you have any questions as to asserting privileges in responding to discovery upon a lawyer or law firm, please contact Bernhard Law Firm PLLC at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.

Under Florida law, a party may object to discovery and seek a protective order where a discovery request seeks information from or about an attorney. Fla. R. Civ. P. 1.280(b) and (c); Homeowners Choice Prop. and Cas. Ins. Co., Inc. v. Avila, 2018WL1936572 at *2–5 (Fla. 3d DCA 2018) (quashing improper order to produce documents after in-camera review); Drs. Weiland, Keiser, Jones, Shufflebarger, Cooper, P.A. v. Tindall, 372 So. 2d 505, 506 (Fla. 3d DCA 1979) (rev’g order denying protective order from production of documents).

Taking discovery of opposing counsel or an opposing party’s outside counsel in a pending case is an extraordinary step that will be rarely justified. Eller-I.T.O Stevedoring Co., L.L.C. v. Pandolfo, 167 So. 3d 495, 496–97 (Fla. 3d DCA 2015) (holding party had no right to depose outside counsel of other party). The attempt to do so triggers confidentiality, privacy, attorney-client privilege, and work-product privilege concerns that should be stoutly protected. Id.; Millard Mall Servs., Inc. v. Bolda, 155 So. 3d 1272, 1274–75 (Fla. 4th DCA 2015) (discussing the rationale of privileges and that a party is not entitled to prepare his case through the investigative work product of his adversary).

In Pandolfo, the Third District Court of Appeal discussed that there is no basis to take discovery from a company’s outside counsel who assists in representation. Pandolfo at 496–97. There, the attorney, even though not counsel of record, was directly involved in the litigation, having both directed and overseen various aspects of the company’s investigation of the issues on which the opposing party premised its allegations and claims, and prepared and received documentation including attorney-client privileged communications and work product documents related to the investigation, thereby obligating the opposing party to satisfy Shelton’s requirements before being allowed to take discovery on the attorney. Id.

The work-product privilege protects documents and papers of an attorney or a party prepared in anticipation of litigation. Fla. R. Civ. P. 1.280(b)(3) (specifying that materials prepared in anticipation of litigation or for trial or for a party or its representative, including the party’s attorney, are discoverable only upon a showing of need of the materials and undue hardship in obtaining the substantial equivalent by other means); Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016); Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446 (Fla. 3d DCA 2006) (“Under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable.”); Freshwater v. Freshwater, 654 So. 2d 1271, 1272 (Fla. 3d DCA 1995) (work-product is not discoverable).

The privilege generally covers investigative materials, reports, and information gathered by attorneys or employees to be used to defend against potential litigation. Id. Documents created by, or directed to, attorneys advising party regarding their transactions is protected work-product. Tyco Fire Prods., L.P. v. 2711 Hollywood Beach Condo. Ass’n, Inc., 207 So. 3d 299, 300–01 (Fla. 3d DCA 2016) (quashing trial court order directing disclosure of party’s documents created by, or directed to, its attorneys advising on their products and documents).

The privilege also covers law firm memoranda and documents, investigation documents, documents relating to potential theories of liability, documents referencing opinions of the firm or experts, and even the law firm’s factual summaries of records and billing records. See, e.g., Whealton v. Marshall, 631 So. 2d 323, 325 (Fla. 4th DCA 1994) (quashing order compelling production of documents from law firm); Bolda, 155 So. 3d at 1274–75 (holding reports created in course of party’s investigations, and even reports routinely prepared, were protected from disclosure under the work-product doctrine); Smith v. Fla. Power & Light Co., 632 So. 2d 696, 698–99 (Fla. 3d DCA 1994) (an attorney’s selection of documents, otherwise not cloaked in work-product privilege, renders that group of documents unit immune from discovery).

Even where a lawsuit is not filed, information gathered in an investigation qualifies for work-product protection; even a report that is routinely prepared may qualify as work-product. Witter at 573. Even when a professional has been employed in preparation of litigation, but is not to be called as a witness at trial, the facts known or opinions held by the professional are deemed to be work product and may be discovered only by a showing of exceptional circumstances. Bailey v. Miami-Dade Cnty., 186 So. 3d 1044, 1046 (Fla. 3d DCA 2015) (quashing order allowing discovery on party’s non-testifying expert).

Even limited disclosure of initial reports or confidential communications is not a waiver of all work product privilege as to the facts known and opinions held by an expert or common interest party that were not disclosed, nor is it a full waiver of privileges as to other communications and information as to those persons. Id.; see also Smith v. State, 873 So. 2d 585, 588–91 (Fla. 3d DCA 2004) (disclosing certain documents to third parties does not alone waive work-product privilege); Hargroves v. R.J. Reynolds Tobacco Co., 993 So. 2d 978, 979–80 (Fla. 2d DCA 2007) (disclosure of certain privileged communications does not result in a blanket waiver of privilege on all confidential communications); Mullins v. Tompkins, 15 So. 3d 798, 801 (Fla. 1st DCA 2009) (quashing order to disclose documents on holding that even where an expert is to testify and has received work-product from party, opposing parties cannot discover privileged material provided to the expert where it is not being offered as evidence).

Even if a party can show that some portion of the requested material is not absolutely privileged as work-product, that party must show still show efforts to obtain substantially equivalent materials, or other, similar non-privileged materials, and to exhaust other means of obtaining the substantial equivalent. Seaboard Marine Ltd. v. Clark, 174 So. 3d 626, 628 (Fla. 3d DCA 2015) (quashing order to produce attorney investigation materials, and discussing that party must make showing of need for materials in preparation of its case and inability to obtain the substantial equivalent of the materials by other means).

Attorney-client privilege protects confidential communications between a lawyer and client, as well as third persons to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the communication. § 90.502, Fla. Stat. (2017); Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148, 1153 (Fla. 3d DCA 2008) (quashing order for in-camera review of privileged information on holding that even in-camera review of confidential database would have destroyed privileged nature of the information); Fla. Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd’s London, 900 So. 2d 720, 721 (Fla. 3d DCA 2005) (attorney-client privilege protects communications, including documents from in-house counsel to corporate employees).

The attorney-client privilege, unlike work-product doctrine, is not concerned with the litigation needs of the opposing party. Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). Undue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case. Id. Under Florida Statutes § 90.502(3), the successor, assignee, or any similar representative of a corporation, association or other entity, whether or not in existence, can claim the privilege. § 90.502(3), Fla. Stat. (2017).

Additionally, the constitutional right of privacy undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for the Court to determine contested issues. Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003). Thus, “the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Schlesinger v. Schlesinger, 186 So. 3d 618, 618 (Fla. 3d DCA 2016) (quashing order to produce bank records and financial information, as it is private and not subject to discovery).

Further, under the common interests doctrine, also known as the pooled information doctrine or joint defense doctrine, establishes an exception to waiver of privilege upon the voluntary disclosure of the privileged information to a third party. United Servs. Automobile Ass’n v. Law Offices of Herssein and Herssein, P.A., 233 So. 3d 1224, 1231 (Fla. 3d DCA 2017) (quashing order compelling disclosure, under common interests doctrine); Visual Scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 440–43 (Fla. 3d DCA 1987) (information exchanged between two parties in common interests is still privileged under common interest exception); see also Progressive Exp. Ins. Co. v. Scoma, 975 So. 2d 461, 468–70 (Fla. 2d DCA 2007) (quashing order compelling disclosure of communications, under common interest doctrine); Asplundh Tree Expert Co. v. Barnes, 689 So. 2d 1200, 1200–01 (Fla. 4th DCA 1997) (communications between defendant’s attorney and president of codefendant were privileged as part of common interests doctrine against waiver of attorney-client privilege).

The common interests doctrine allows parties who share unified interests to exchange privileged information to adequately prepare their cases without losing the protection afforded by the attorney-client and work-product privileges. Id. Under the common interests doctrine, clients and their respective attorneys sharing common litigation interests may exchange information freely among themselves without fear that, by their exchange, they will forfeit the protection of the attorney-client privilege. Id. This should not be confused with the statutory common interest waiver of privilege, which requires the Court to examine communications involving a distinct matter to determine whether joint clients in that matter had such common interests that one client involved in communications lacked reasonable basis to preserve confidentiality of communications from the other client. Cone v. Culverhouse, 687 So. 2d 888, 891–93 (Fla. 2d DCA 1997) (rev’g order to firm to produce discovery on two joint client under statutory common interest waiver, as trial court failed to distinguish lack of waiver on communications at other times for other matters).

When aparty requests information covered by these privileges, confidentiality, and privacy, the Court should sustain objections and enter a protective order against such discovery. Fla. R. Civ. P. 1.280(b) and (c); Avila, 2018WL1936572 at *2–5; Tindall, 372 So. 2d at 506 (rev’g order denying protective order from production of documents).

Here, on its face, Defendant’s notice of intent to subpoena Mercury Hotel’s law firm is very precarious. None of the enumerated requests show, on their face, that they are related to the specific allegations and materials of this case. By its very nature, the request triggers work-product privilege, attorney-client privilege, confidentiality, privacy, and relevance concerns, and Mercury Hotel and Mr. Federico object on these grounds and request a protective order from the subpoena. Fla. R. Civ. P. 1.280; § 90.502, Fla. Stat. (2017); Pandolfo at 496–97; Genovese at 1068; Bolda at, 1274–75; Witter at 573; Minsal at 446; Freshwater at 1272; Whealton at 325; Smith v. Fla. at 698–99; Smith v. State at 588–91; Bailey at 1046; Hall-Edwards at 1153; Fla. Marlins at 721; Tyco Fire at 300–01; Hargroves at 979–80; Mullins at 801; Clark at 628; Friedman at 194; Schlesinger at 618; United Servs. at 1231; Visual Scene at 440–43; Scoma at 468–70; Barnes at 1200–01; Avila, 2018WL1936572 at *2–5; Tindall at 506.

When a party asserts the work-product privilege, Florida law requires that the Court hold an in-camera inspection of the discovery material at issue in order to rule on the applicability of the privilege. Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 572 (Fla. 3d DCA 2016). The failure to conduct an in-camera inspection of the discovery materials asserted as protected by the work-product privilege constitutes a departure from the essential requirements of law, subject to certiorari relief. Id.

However, the Court should strongly consider that even in-camera review of confidential and privileged information can destroy the privileged nature of the information, rendering the review meaningless—any review must be performed with the utmost delicacy and privacy. Hall-Edwards, 997 So. 2d at 1153–54 (Fla. 3d DCA 2008) (quashing order for in-camera review of privileged information on holding that even in-camera review of confidential database would have destroyed privileged nature of the information).

As a matter of procedure, the Court may appoint a special master or magistrate to oversee discovery issues and issue reports thereon. Fla. R. Civ. P. 1.490; Little v. Little, 325 So. 2d 424, 425 (Fla. 3d DCA 1976); Bell v. Bell, 307 So. 2d 911, 914 (Fla. 3d DCA 1975) (“it is well established that special masters may be appointed to serve in a ministerial capacity to perform a particular service to aid the court in an accurate and expeditious determination of a cause.”).

If you have any questions as to asserting privileges in responding to discovery upon a lawyer or law firm, please contact Bernhard Law Firm PLLC at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.

 

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