Attorney’s
fees — Insurance — Discovery — Billing records of opposing counsel — Hours
expended by counsel for defendant insurance company in a contested claim for
attorney’s fees filed pursuant to sections 624.155 and 627.428, Florida
Statutes, is relevant to issue of reasonableness of time expended by counsel
for the plaintiff, and discovery of such information, where disputed, falls
within sound discretion of trial court — Clarification of relevance of time
expended by opposing counsel to issue of reasonable hours for party who is
entitled to payment of attorney’s fees when fees are contested — Entirety of
the billing records are not privileged, and where the trial court specifically
states that any privileged information may be redacted, plaintiff should not be
required to make an additional special showing to obtain the remaining
relevant, non-privileged information — District court improperly infringed on
sound discretion of trial court and required plaintiff to meet unnecessarily
high standard when it required plaintiff to make additional special showing
prior to discovery of billing records — Appeals — Certiorari — District
court improperly employed certiorari jurisdiction when it granted petition on
an issue that did not depart from essential requirements of law and would not
cause irreparable harm to opposing party

(LEWIS, J.) Kelly Paton seeks review of the decision of the
Fourth District Court of Appeal in GEICO General Insurance Co. v. Paton (Paton II),
133 So. 3d 1071 (Fla. 4th DCA 2014), on the ground that it expressly and
directly conflicts with the decision of this Court in State Farm Fire &
Casualty Co. v. Palma, 555 So. 2d 836 (Fla. 1990), on a question of law. We
have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Paton was injured in a car accident due to the negligence of
an underinsured driver. GEICO Gen. Ins. Co. v. Paton (Paton III), 150
So. 3d 804, 805 (Fla. 4th DCA 2014). After Respondent GEICO General Insurance
Company (GEICO) failed to pay the total amount claimed by Paton under the
underinsured motorist (UM) policy maintained by her mother, she filed an action
against GEICO. See id.; see also Paton v. GEICO Gen. Ins. Co. (Paton
I), No. 09CACE013697, 2010 WL 10129165, at *1 (Fla. 17th Cir. Ct. June 24,
2010) (trial court order). The jury returned a verdict in favor of Paton for
$469,247, which the trial court reduced to $100,000, the limit of the UM
policy. Paton III, 150 So. 3d at 805.

Paton subsequently amended her complaint to add a claim of
bad faith against GEICO under section 624.155, Florida Statutes (2010). Id.
She obtained a jury verdict in her favor for $369,247, the amount of the excess
verdict in the UM trial. Id. at 806. Thereafter, she moved for
attorney’s fees and costs, and as the fees were being highly contested, she
sought discovery related to her opposition’s attorneys’ time records. Paton
II, 133 So. 3d at 1071. Specifically, Paton served on opposing counsel a
request to produce the following records:

1.
Any and all time keeping slips and records regarding time spent defending GEICO
in the bad faith action in Paton v. GEICO General, Case No.: 09-013697
(12).

2.
Any and all bills, invoices, and/or other correspondence for payment of
attorney’s fees for defending GEICO in the bad faith action in Paton v.
GEICO General, Case No.: 09-013697 (12).

3.
Any and all retainer agreements between you and/or your respective law firm for
defending GEICO in the bad faith action in Paton v. GEICO General, Case
No.: 09-013697 (12).

GEICO objected to the request to produce on the basis that
the information was privileged and irrelevant, and relied on Estilien v. Dyda, 93 So. 3d 1186 (Fla. 4th
DCA 2012), and HCA Health Services of Florida v. Hillman,
870 So. 2d 104 (Fla. 2d DCA 2003). In Estilien, the Fourth District held
that where a party seeks to discover the billing records of opposing counsel
solely to support a claim for attorney’s fees, the party seeking the discovery
must establish that the material requested (1) is actually relevant to a
disputed issue, (2) is necessary, and (3) that its substantial equivalent
cannot be obtained from another source. 93 So. 3d at 1188-89 (citing Hillman,
870 So. 2d at 107). The circuit court overruled GEICO’s objections, but
provided that GEICO “may redact privileged information.”

Paton also propounded Lodestar/Multiplier Fee Determination
Interrogatories to GEICO. GEICO objected, again on the basis of Estilien
and Hillman, to the following interrogatory:1

8.
Did you or your attorneys spend any attorney’s time in prosecuting or defending
this lawsuit? If so, list a description of each such item of attorney’s fees,
the date incurred, hourly rate and the hours incurred on each such date. (Note:
you may answer this question by stapling your time records to the answers to
interrogatories as long as those records are legible and complete or indicating
that you are relying on attached time records for your answer).

Again, the circuit court overruled GEICO’s objection. This
order did not reference redaction of any privileged information.

GEICO filed a petition for writ of certiorari in the Fourth
District, requesting that the district court quash the orders relating to the
request to produce and the interrogatory. GEICO alleged that Estilien
and Hillman establish that a party must make a special showing prior to
the discovery of the billing records of opposing counsel, and Paton failed to
make such a showing. GEICO also alleged that the materials were privileged and
irrelevant.

The Fourth District granted the petition and quashed the
orders of the circuit court. Paton II, 133 So. 3d at 1071. The district
court held that Estilien controlled, and noted that the court in Estilien
stated that the records of opposing counsel are, at best, only marginally
relevant to the determination of reasonable attorney’s fees. Id. (citing
Hillman, 870 So. 2d at 107). The court recognized that Estilien
required a party to establish that the billing records of opposing counsel are
actually relevant and necessary, and their substantial equivalent could not be
obtained elsewhere. Id. The district court concluded Paton failed to
make the necessary showing. Id.

Paton sought review of Paton II in this Court,
alleging it conflicted with Palma, 555 So. 2d 836, which concerned the
appropriate range for a contingency fee multiplier in the computation of a
reasonable attorney’s fee. In Palma, this Court considered the billing
records of opposing counsel to be relevant to our analysis, and explicitly
noted the number of hours expended by opposing counsel in our decision. Id.
at 837. In Palma, we explained that “the trial court found that 650 was
a reasonable amount of hours and that a reasonable hourly rate was $150.
Further, the trial court applied a multiplier of 2.6. We note that State
Farm’s counsel [(opposing counsel)] expended 731 hours on this case.”
Id. (emphasis added). The number of hours expended by counsel for both the
plaintiff and defendant in Palma demonstrated the complexity and
significance of the issue, which involved only a $600 medical bill. Id.
at 836. Our recognition that State Farm expended more hours than those the
trial court found to be reasonable for the plaintiff demonstrates that the
number of attorney hours expended by counsel for State Farm was highly relevant
to the determination of a reasonable attorney’s fee for the plaintiff. Thus,
the statement in Paton II that the billing records of counsel for GEICO
were “at best, only marginally relevant,” conflicts with our analysis in Palma.
We accept jurisdiction to clarify the relevance of the time expended by
opposing counsel to the issue of reasonable hours for a party who is entitled
to payment of his or her attorney’s fees when the fees are contested.

ANALYSIS

The scope of discovery is provided in Florida Rule of Civil
Procedure 1.280(b)(1), which states:

Parties
may obtain discovery regarding any matter, not privileged, that is relevant to
the subject matter of the pending action, whether it relates to the claim or
defense of the party seeking discovery or the claim or defense of any other
party . . . . It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.

Relevant evidence is defined by statute as evidence that
tends to prove or disprove a material fact. See § 90.401, Fla. Stat.
(2015). Additionally, we have previously explained that the definition of
relevancy is broader in the context of discovery than it is during trial. Bd.
of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enter., LLC, 99 So.
3d 450, 458 (Fla. 2012) (citing Amente v. Newman, 653 So. 2d 1030, 1032
(Fla. 1995)).

The decision below relied on Estilien, which, in
turn, was founded on the decision of the Second District Court of Appeal in Hillman.
In Hillman, the trial court granted the plaintiffs’ motion to compel a
response to a subpoena duces tecum that sought production of the following:
“timesheets, invoices, bills, reimbursements, payments, correspondence,
contract for services, fee agreement, hourly fee schedules, all computer
generated records pertaining to attorneys’ fees, costs, expenses . . . , or
other related documents.” 870 So. 2d at 106 (alterations in original). However,
the order of the trial court also provided that any material that was protected
by the attorney-client or work-product privileges should be redacted, with an
unredacted copy to be provided to the trial court. Id. The defendant
medical center petitioned the Second District for a writ of certiorari, which
was granted. Id. at 108. The district court concluded that the billing
records of opposing counsel are only sometimes relevant to an attorney’s fees
claim and, even when relevant, are protected by the attorney-client and
work-product privileges. Id. at 107. Florida Rule of Civil Procedure
1.280(b)(4)2 provides that privileged information
may be obtained:

upon
a showing that the party seeking discovery has need of the materials in the
preparation of the case and is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. In ordering discovery
of the materials when the required showing has been made, the court shall
protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party concerning the
litigation.

The Second District granted certiorari review and held that
the billing records of opposing counsel are privileged materials that can be
obtained only if the party that seeks such discovery demonstrates the material
is actually relevant to a disputed issue, is needed to prepare for the
attorney’s fees hearing, and that substantially equivalent material cannot be
obtained elsewhere. Hillman, 870 So. 2d at 107 (citing Fla. R. Civ. P.
1.280(b)(3)).

In Estilien, the Fourth District relied on the
analysis in Hillman to grant certiorari review of a trial court order
that allowed discovery of the billing records of opposing counsel. 93 So. 3d at
1187. In Estilien, the plaintiff prevailed during trial and subsequently
filed a motion for attorney’s fees pursuant to the offer of judgment statute. Id.
(citing § 768.79(6)(b), Fla. Stat. (2012)). In connection with that motion, the
plaintiff requested production of the billing records of the attorneys for the
defendant, who objected on the basis that such information was both irrelevant
and protected by the attorney-client and work-product privileges. Id.
The trial court ordered the discovery, but provided that any privileged
information be redacted. Id. The defendant filed a petition for writ of
certiorari in the district court, which was granted. Id. The district
court noted that it had previously held in Heinrich Gordon Batchelder
Hargrove Weihe & Gent v. Kapner, 605 So. 2d 1319, 1319 (Fla. 4th DCA
1992), that billing records of opposing counsel were not discoverable if they
contained privileged or irrelevant information, and the Second District in Hillman
held that the billing records of an attorney are generally protected as work
product. Id. at 1188. The Fourth District concluded that the trial court
order compelled the production of protected attorney-client information without
a showing of relevancy, and imposed the same standard delineated in Hillman.
Id. at 1188-89.

In contrast, the First District Court of Appeal denied a
similar petition for writ of certiorari that concerned an order of a Judge of
Compensation Claims (JCC) that compelled the disclosure of the hourly fee and
time spent by opposing counsel on the basis that the order did not depart from
the essential requirements of the law. Anderson Columbia v. Brown, 902 So. 2d 838,
840 (Fla. 1st DCA 2005). In Anderson Columbia, the plaintiff asserted
that a workers’ compensation statute that limited an award of attorney’s fees
based on prevailing in a claim for medical benefits to $1500 was
unconstitutional. Id. (citing § 440.34(7), Fla. Stat. (2003)). To
support that claim, the plaintiff sought discovery of the billing records of
the defendant’s counsel. Id. The defendant objected on the basis that
the information was protected by either the attorney-client or work-product
privilege, but the JCC rejected this claim and ordered production. Id.

The First District in Anderson Columbia denied the
petition for writ of certiorari filed by the defendant on the basis that the
order of the JCC did not mandate the disclosure of information protected by
either privilege. Id. With regard to work-product privilege, the
district court stated that the order did not require defense counsel to provide
information that contained descriptions of the services rendered, and therefore
did not require defense counsel to reveal their mental impressions,
conclusions, opinions, or legal theories. Id. (citing Fla. R. Civ. P.
1.280(b)(3)). With respect to attorney-client privilege, the district court
stated that the defendant did not demonstrate how the disclosure of fees would
have a “chilling effect” on communications related to the legal rights,
obligations, or circumstances of the client. Id. at 841. Thus, the
district court concluded that, where relevant, the discovery of the billing
records of opposing counsel is best left to the sound discretion of the trial
court. Id. at 841-42. Prior to Estilien, the Fourth District had
also denied similar petitions for writs of certiorari because the redacted
materials did not contain privileged information and the disclosure of such
materials would not result in irreparable harm. See Brown Distrib. Co. of W.
Palm Beach v. Marcel, 866 So. 2d 160, 161 (Fla. 4th DCA 2004); see also
Finol v. Finol, 869 So. 2d 666, 666 (Fla. 4th DCA 2004).

We agree with the rationale of the First District in Anderson
Columbia and conclude that the billing records of opposing counsel are
relevant to the issue of reasonableness of time expended in a claim for
attorney’s fees, and their discovery falls within the discretion of the trial
court when the fees are contested. When a party files for attorney’s fees
against an insurance company pursuant to sections 624.155 and 627.428, Florida
Statutes, as occurred here, the billing records of the defendant insurance
company are relevant. The hours expended by the attorneys for the insurance
company will demonstrate the complexity of the case along with the time
expended, and may belie a claim that the number of hours spent by the plaintiff
was unreasonable, or that the plaintiff is not entitled to a full lodestar
computation, including a multiplying factor. See Palma, 555 So. 2d at
837 (rejecting the claim that a multiplier should apply only to cases where the
plaintiff’s fee arrangement was based on the amount recovered because, although
the amount of the underlying claim was small, the case was highly litigated and
the risk of nonpayment justified the use of a multiplier).

Moreover, the entirety of the billing records are not
privileged, and where the trial court specifically states that any privileged
information may be redacted, the plaintiff should not be required to make an
additional special showing to obtain the remaining relevant, non-privileged
information. Additionally, even if the amount of time spent defending a claim
was privileged, this information would be available only from the defendant
insurance company, and the plaintiff has necessarily satisfied the second prong
of the test delineated by Florida Rule of Civil Procedure 1.280(b)(4) for the
discovery of privileged information — i.e., the information or its substantial
equivalent cannot be obtained by other means without undue hardship. Thus, we
conclude that by granting the petition for certiorari, the Fourth District
improperly infringed on the sound discretion of the trial court and required
Paton to meet an unnecessarily high standard.

Moreover, the district court improperly employed its
certiorari jurisdiction when it granted the petition on an issue that did not
depart from the essential requirements of the law and would not cause irreparable
harm to GEICO. Certiorari review of interlocutory orders is an extraordinary
remedy that should be granted only in very limited circumstances. See, e.g.,
Bd. of Trs. of Internal Improvement Trust Fund, 99 So. 3d at 454; Jaye
v. Royal Saxon, Inc., 720 So. 2d 214, 214-15 (Fla. 1998) (“This Court has
emphasized, however, that certiorari review in this instance ‘is an
extraordinary remedy and should not be used to circumvent the interlocutory
appeal rule which authorizes appeal from only a few types of non-final orders.’
” (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla.
1987), superseded by statute on other grounds, § 768.72, Fla. Stat.
(1989))). To be entitled to certiorari review, a petitioner must demonstrate
that the order constitutes a departure from the essential requirements of the
law and results in material injury for the remainder of the case that cannot be
corrected on appeal. Bd. of Trs. of Internal Improvement Trust Fund, 99
So. 3d at 454 (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So.
2d 812, 822 (Fla. 2004)). Simple disagreement with the decision of the trial
court is an insufficient basis for certiorari jurisdiction. E.g., Ivey v.
Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000) (citing Haines City
Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995)).

Here, the trial court correctly concluded the discovery was
relevant and provided that GEICO could redact any privileged information.
Therefore, compliance with the discovery orders did not depart from the essential
requirements of the law and would not result in any irreparable harm to GEICO,
and certiorari jurisdiction was not properly exercised by the district court.
Moreover, not only did the district court improperly grant this extraordinary
remedy based on its simple disagreement with the trial court order, the court
erroneously quashed legally correct trial court orders that allowed for the
discovery of relevant and non-privileged information.

CONCLUSION

We hold that the hours expended by counsel for the defendant
insurance company in a contested claim for attorney’s fees filed pursuant to
sections 624.155 and 627.428, Florida Statutes, is relevant to the issue of the
reasonableness of time expended by counsel for the plaintiff, and discovery of
such information, where disputed, falls within the sound decision of the trial
court. For this reason, we quash the decision of the Fourth District in Paton
II and remand for further proceedings consistent with this opinion.

It is so ordered. (LABARGA, C.J., and PARIENTE, and PERRY,
JJ., concur. QUINCE, J., dissents with an opinion, in which CANADY and POLSTON,
JJ., concur.)

__________________

1The following interrogatory was also
included:

2. As to each of the
following provisions, please provide your position on this bad faith case:

(A) the time and labor
required, the novelty, complexity, and difficulty of the questions involved,
and the skill requisite to perform the legal service properly.

GEICO responded, “[t]he time required will be provided. This
was not a novel or complex case. The questions were simple and this was a
routine bad faith case where carrier had opportunities to settle and declined
each opportunity.” It is unclear whether GEICO intended to respond that the
time would not be provided, but the circuit court ordered GEICO to
provide an answer to this interrogatory. The ruling with respect to this
interrogatory was not challenged in the petition for writ of certiorari.

2At the time Hillman was
decided, this portion of rule 1.280 fell under subdivision (b)(3).

__________________

(QUINCE, J., dissenting.) Because I conclude that the
decision of the Fourth District Court of Appeal in GEICO General Insurance
Co. v. Paton, 150 So. 3d 804 (Fla. 4th DCA 2014), does not expressly and
directly conflict with decisions of the other district courts of appeal or this
Court, I would dismiss this case for lack of jurisdiction under article V,
section 3(b)(3), of the Florida Constitution.

The majority accepted jurisdiction of this case on the basis
that Paton expressly and directly conflicts with our decision in State
Farm Fire & Casualty. Co. v. Palma, 555 So. 2d 836, 838 (Fla. 1990),
where this Court concluded “that a contingency adjustment multiplier may be
applied to those contingency fee arrangements in which the amount of the
attorney’s fee is not controlled by the amount of the recovery.” In detailing
the events that transpired below, we noted that the trial court, in awarding
attorney’s fees to the plaintiff, determined that 650 hours expended by
plaintiff’s counsel were reasonable. Id. at 837. We also observed that
opposing counsel expended 731 hours. Id. Unlike in Palma, the
district court in Paton addressed a different question of law, namely,
whether, in support of a claim for attorney’s fees, opposing counsel’s billing
records were discoverable. Paton II, 133 So. 3d at 1071.

Therefore, I conclude that this Court is without
jurisdiction to review Paton based on express and direct conflict.
Accordingly, I dissent. (CANADY and POLSTON, JJ., concur.)

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