Civil procedure — Discovery — Trial court erred in overruling defendant’s objection to discovery by default after counsel appeared late for hearing which was set to address a variety of matters, including discovery objections — Trial court also departed from essential requirements of law by failing to conduct in camera inspection of documents claimed to be privileged

43
Fla. L. Weekly D256a

Civil
procedure — Discovery — Trial court erred in overruling defendant’s objection
to discovery by default after counsel appeared late for hearing which was set
to address a variety of matters, including discovery objections — Trial court
also departed from essential requirements of law by failing to conduct in
camera inspection of documents claimed to be privileged

CHIPOTLE MEXICAN GRILL, INC., a
foreign profit corporation, CHIPOTLE MEXICAN GRILL OF COLORADO, LLC, a foreign
limited liability company, and CHIPOTLE SERVICES, LLC, a foreign limited
liability company, Petitioners, v. YUVITKZA QUINONES, Respondent. 4th District.
Case No. 4D17-2764. January 31, 2018. Petition for writ of certiorari to the
Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A.
Garrison, Judge; L.T. Case No. 2016CA011509XXXXMBA. Counsel: Christopher S.
Stratton and Lee A. Kantor of Hightower Stratton Novigrod Kantor, West Palm
Beach, for petitioner Chipotle Mexican Grill of Colorado, LLC. Lara S. Shiner
of Shiner Law Group, P.A., Boca Raton, for respondent.

(PER CURIAM.) Chipotle Mexican Grill
of Colorado, LLC (“Chipotle”), petitions this court for certiorari review of
the trial court’s order overruling its objections to discovery requests made by
the plaintiff, Yuvitkza Quinones (“Quinones”), in the underlying premises
liability action. We grant the petition and quash the trial court’s order
because the trial court’s ruling was entered by default, and the trial court
failed to conduct an in camera inspection of documents, which Chipotle
claimed to be privileged.

Due to a calendaring error,
Chipotle’s counsel appeared approximately fifteen minutes late for a special
set one-hour hearing, which was set to address a variety of matters including
Chipotle’s objections to Quinones’s first request for production and first set
of interrogatories. The record reflects that the trial court entered a default
ruling in favor of Quinones due to counsel’s failure to timely appear.1

In overruling Chipotle’s objections,
the trial court also failed to conduct an in camera inspection of
various documents that Chipotle claimed to be privileged. These documents were
specifically identified in a privilege log filed by Chipotle. Quinones argues
that Chipotle waived its claims of privilege by failing to timely object.
However, failure to timely raise objections based on privilege does not
automatically result in waiver. Palm Beach Primary Care Assocs., Inc. v.
Mufti, 935 So. 2d 122, 123 (Fla. 4th DCA 2006); Austin v. Barnett Bank
of S. Fla., N.A., 472 So. 2d 830, 830 (Fla. 4th DCA 1985). Even if a claim
of privilege is untimely raised, the trial court is required to conduct an in
camera inspection of the documents claimed to be privileged. Mufti,
935 So. 2d at 123. Failure to conduct the requisite in camera inspection
is a departure from the essential requirements of the law. Id.

Quinones also argues that Chipotle
failed to timely file its privilege log. However, the obligation to file a
privilege log does not arise until after a party’s written objections have been
ruled upon. Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006).

Accordingly, we grant the petition
and quash the trial court’s order to the extent that it overruled Chipotle’s
objections to Quinones’s first request for production and first set of
interrogatories. (WARNER, TAYLOR and KUNTZ, JJ., concur.)

__________________

1Quinones asserts that the trial
court afforded Chipotle’s counsel an opportunity to argue the objections after
counsel appeared. This assertion is refuted by the trial court’s order, which
states that Chipotle’s counsel failed to appear.

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