Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 16, 2015 by admin

Discovery – Attorney Client Privilege is Not Defeated by an Opponent Showing Relevance and Necessity

40 Fla. L. Weekly D894b

 
Civil procedure — Discovery — Attorney-client privilege — Trial court departed from essential requirements of law in compelling production of attorney-client privileged documents on basis that documents were relevant and contained information that could not reasonably be obtained from another source — Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent’s showing of relevance and necessity
 
FLORIDA POWER & LIGHT COMPANY, Petitioner, v. MARK W. HICKS, Respondent. 4th District. Case No. 4D14-4337. April 15, 2015. Petition for writ of certiorari to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 562012CA003445. Counsel: Rebecca Mercier Vargas, Jane Kreusler-Walsh, and Stephanie L. Serafin of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Ellen S. Malasky and David D. Austin, FPL Law Department, Juno Beach, for petitioner. Peter Ticktin and Jamie Sasson of The Ticktin Law Group, P.A., Deerfield Beach, for respondent.

 

(GROSS, J.) We grant Florida Power & Light Co.’s petition for writ of certiorari and quash the circuit court order requiring production of attorney-client privileged documents based on relevance.

Respondent sued FP&L for violation of the Florida Whistle Blower Act, intentional infliction of emotional distress, and fraud. Respondent filed a request for production; FP&L responded with objections based on the attorney-client privilege and filed a privilege log. After respondent filed a motion to compel, the circuit court required an in camera inspection of those documents for which FP&L claimed a privilege.

 

Following the inspection, the court ordered production. It sustained the privilege objections, but found that for certain documents “relevance require[d] breaking of a privilege and production.” It held that such relevant documents contained information that could not reasonably be obtained from another source, so that the “privilege should be broken and the documents provided.”

Certiorari is the appropriate vehicle to obtain review of orders requiring cat-out-of-the-bag disclosure of privileged documents. See, e.g., Bd. of Trs. of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 457 (Fla. 2012) (quoting Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995)).

 

Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent’s showing of relevance and necessity. Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). As the Supreme Court has written, the attorney-client privilege

is not concerned with the litigation needs of the opposing party. Instead, the purpose of the privilege is to “encourage full and frank communication” between the attorney and the client. This significant goal of the privilege would be severely hampered if an insurer were aware that its communications with its attorney, which were not intended to be disclosed, could be revealed upon request by the insured. Moreover, we note that there is no exception provided under section 90.502[, Florida Statutes] that allows the discovery of attorney-client privileged communications where the requesting party has demonstrated need and undue hardship.
Id. at 1068 (internal citations omitted). An order compelling production of attorney-client communications based on relevance and need constitutes a departure from the essential requirements of law. See Tumelaire v. Naples Estates Homeowners Ass’n, 137 So. 3d 596, 599 (Fla. 2d DCA 2014).

 

Contrary to petitioner’s argument, the circuit court’s order was not based on the crime-fraud exception. The circuit court sustained the privilege objections and did not make a finding that the crime-fraud exception applied; to do so would have required an evidentiary hearing after the in camera review. See Merco Grp. of the Palm Beaches, Inc. v. McGregor, 39 Fla. L. Weekly D1594, 2014 WL 3729906 (Fla. 4th DCA July 30, 2014). (TAYLOR and CONNER, JJ., concur.)
* * *

Filed Under: Articles

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982