39 Fla. L. Weekly D2487g
privilege — Trial court departed from essential requirements of law in
compelling discovery of defendant’s litigation file which plaintiff claimed was
necessary in order to properly defend defendant’s motion for attorney’s fees and
costs pursuant to offer of judgment — Discovery of litigation file was not
necessary in order to determine whether offer of judgment was made in good faith
— Work product privilege extends to motions for attorney’s fees, plaintiff
failed to prove need or undue hardship, and information from file plaintiff
sought was opinion work product, which is absolutely immune from discovery —
Trial court erroneously concluded that attorney-client privilege was waived when
counsel filed an affidavit stating that invoices attached to motion for fees
No. 1D14-1342. Opinion filed December 2, 2014. Petition for Writ of Certiorari
— Original Jurisdiction. Counsel: J. Stephen O’Hara, Jr., Jeffrey J. Humphries,
Kathryn N. Slade of O’Hara Harlvorsen Humphries, PA, Jacksonville, for
Petitioner. James T. Terrell of Terrell Hogan, Jacksonville, and Michael J. Korn
of Korn & Zehmer, P.A., Jacksonville, for Respondent.
compelling discovery of petitioner’s litigation file. We find the trial court’s
rulings that the petitioner waived attorney-client privilege by filing an
affidavit in support of a request for attorney’s fees, and that a party cannot
claim work-product privilege in connection with a claim for recovery of
attorney’s fees, constitute clear departures from the essential requirements of
law which cannot be remedied on appeal. Thus, we grant the petition for writ of
seeking damages stemming from a car accident. Petitioner made a proposal for
settlement for $20,000. The jury returned a verdict awarding respondent $2,046.
The court entered a final judgment against petitioner for $409 after setoff.
her proposal for settlement as authorized by section 768.79, Florida Statutes.
The motion included invoices itemizing the costs and fees incurred. It also
included an affidavit from one of the attorneys of record stating that the
invoices were correct and that the costs and fees were necessarily incurred.
Counsel also filed a second, nearly identical affidavit attesting to invoices
that were attached to an amended motion for fees.
petitioner’s counsel “pertaining to this case.” Petitioner objected on the basis
that portions of the file were protected by attorney client and work-product
privileges. Petitioner filed an itemized privilege log.
arguing access to the entire file was necessary in order to properly defend the
motion for fees and costs. She alleged at trial that she suffered $50,000 in
past medical expenses and had $100,000 in projected future medical expenses;
thus, she argued petitioner’s $20,000 offer of settlement was not made in good
faith. She stated, “[c]rucial in the court’s decision-making process will be
evidence of the knowledge considerations of the defense at the time the offer
was made.” She further asserted that the work-product privilege expired because
the trial was over. Finally, she argued attorney-client privilege had been
waived by virtue of the affidavit attached to petitioner’s fee motion.
showing of how the entire litigation file was relevant. She also argued
work-product privilege extended to protect the information discoverable for
post-judgment fees disputes, and the attorney-client privilege was not waived.
Finally, she argued counsel’s affidavit attesting to the bare accounting of
hours worked did not waive attorney-client privilege or work-product privilege.
Alternately, even if the affidavit did waive privilege, she argued that waiver
would only extend to the information contained in the affidavit and would
certainly not waive opinion work-product.
found it needed the litigation file in order to determine whether petitioner’s
offer was made in good faith:
The Court must look at the subjective motivations of the Defendant
at the time the offer was made and determine whether she had the basis in known
or reasonably believed facts to conclude that the offer was justifiable. In
order to determine good faith, the Court has to make credibility findings.
Credibility findings can only be made after an opportunity to cross-examine the
witness who claims good faith. In such a case, that will necessitate the use of
privileged communications, assuming proper waiver of the privilege . . .
attorney’s filing of the affidavit, which was tantamount to testifying. The
court also found a party cannot claim work-product privilege in connection with
a claim for recovery of attorney fees.
overcoming the work-product privilege in this particular case. The trial court
also did not elucidate what about this particular attorney’s fee affidavit
constituted a waiver of the attorney-client privilege.
We may review an interlocutory order that is not appealable under
Florida Rule of Appellate Procedure 9.130 by petition for certiorari only when
the petitioner establishes (1) a departure from the essential requirements of
the law, (2) resulting in material injury for the remainder of the trial (3)
that cannot be corrected on postjudgment appeal. We examine prongs two and three
first to determine our certiorari jurisdiction. “If the jurisdictional prongs .
. . are not fulfilled, then the petition should be dismissed rather than
Parkway Bank v. Ft. Myers Armature Works, Inc., 989 So. 2d 646, 649 (Fla.
2d DCA 1995) (internal citations omitted)). It is well established that
“[c]ertiorari review ‘is appropriate in cases that allow discovery of privileged
information. This is because once privileged information is disclosed, there is
no remedy for the destruction of the privilege available on direct appeal.’ ”
Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 506
(Fla. 2d DCA 2006) (quoting Estate of Stephens v. Galen Health Care,
Inc., 911 So. 2d 277, 279 (Fla. 2d DCA 2005) (citations omitted)).
Therefore, this court must determine whether the trial court departed from the
essential requirements of the law. DeLoach, 989 So. 2d at 654.
II. Good Faith Determination
if she makes a proposal for settlement, and the judgment obtained by the
plaintiff is at least 25% less than that offer:
In any civil action for damages filed in the courts of this state,
if a defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable costs and
attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to
a policy of liability insurance or other contract from the date of filing of the
offer if the judgment is one of no liability or the judgment obtained by the
plaintiff is at least 25 percent less than such offer, and the court shall set
off such costs and attorney’s fees against the award. Where such costs and
attorney’s fees total more than the judgment, the court shall enter judgment for
the defendant against the plaintiff for the amount of the costs and fees, less
the amount of the plaintiff’s award. . . .
made in good faith. In such case, the court may disallow an award of costs and
attorney’s fees.” § 768.79(7)(a), Fla. Stat.
made in good faith, the court must look at the subjective motivation of the
petitioner, which will necessitate the use of privileged communication.
Respondent never explained why the use of privileged communication is necessary
in this particular case, but instead she seems to be arguing that these types of
materials are always necessary for a determination of entitlement to attorney’s
fees pursuant to section 768.79.
the pleadings and discovery are insufficient to determine whether the offer was
made in good faith. To the contrary, many courts have relied on the pleadings
and information obtained during discovery to determine whether an offer was made
in good faith. See Hall v. Lexington Ins. Co., 895 So. 2d 1161,
1166 (Fla. 4th DCA 2005) (affirming a finding that an offer was made in good
faith, despite the fact the offer was for one-tenth of the damages claimed,
because the offer was made “five years after the start of litigation and after
extensive discovery” during which the defendant received documentation that the
plaintiff misrepresented material facts); Donovan Marine, Inc. v.
Delmonico, 40 So. 3d 69, 71 (Fla. 4th DCA 2010) (“[T]he trial court
correctly found that the proposal was ‘a good faith offer based upon the
discovery [and] the posture of the case at the time the offer was extended . . .
.’ ”); Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.
3d 348, 354-55 (Fla. 4th DCA 2011) (reversing the trial court’s finding of a
lack of good faith, despite the fact the offeror had conducted little discovery,
because the unenforceability of the contract was apparent from its face). Here,
the trial court reasoned that the litigation file was necessary because
“[c]redibilty findings can only be made after an opportunity to cross-examine
the witness who claims good faith,” and “that will necessitate the use of
privileged communications, assuming proper waiver of the privilege.” However, as
discussed above, whether or not an offer was made in good faith does not require
privileged communications. That determination is made based on objective
criteria. Thus, it seems petitioner is correct that neither respondent nor the
trial court established why the privileged litigation file was necessary to
conduct a good faith review of the offer for settlement.
III. Work-Product Privilege
1.280, which states work product is discoverable only upon a showing of undue
hardship and need, although mental impressions or legal opinions are always
(4) Trial Preparation: Materials. Subject to the provisions
of subdivision (b)(5) of this rule, a party may obtain discovery of documents
and tangible things otherwise discoverable under subdivision (b)(1) of this rule
and prepared in anticipation of litigation or for trial by or for another party
or by or for that party’s representative, including that party’s attorney,
consultant, surety, indemnitor, insurer, or agent, only 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
entitled to work-product privilege here under rule 1.280 because (a)
work-product privilege extends to the attorney’s fees stage of litigation; (b)
respondent failed to establish need and undue hardship necessary to overcome
that privilege; and (c) the information respondent seeks is opinion work
product, which is always protected. We agree with all three contentions.
A. Work-Product Privilege and Motions for Attorney’s
after the original litigation terminates, regardless of whether or not the
subsequent litigation is related.” Alachua Gen. Hosp., Inc. v. Zimmer USA,
Inc., 403 So. 2d 1087, 1088 (Fla. 1st DCA 1981). See also HCA
Health Servs. of Fla., Inc. v. Hillman, 870 So. 2d 104, 107 (Fla. 2d DCA
2003) (finding “[b]illing records of opposing counsel are to be treated as
privileged work product” in a dispute over attorney’s fees).
attorney’s fees, the trial court cited Martin v. Paunovich, 632 So. 2d
611 (Fla. 5th DCA 1993). Martin is distinguishable. On motion for
rehearing, the Martin court held that “the work product privilege cannot
be invoked by an attorney in connection with an affirmative claim for recovery
of attorney’s fees to avoid a discovery inquiry concerning possible
apportionment of fees among compensable and noncompensable claims.” Id.
at 613. Although the majority provided no background, the dissent explained that
counsel argued entitlement to the full amount of fees because apportionment was
impossible, but the record clearly indicated that contention was “absurd.”
Id. at 612. During deposition, counsel “refused to testify about the
basis for their fee claim . . . claiming it was ‘work product.’ ” Id. at
613. When counsel was asked if he had tried to apportion time on any issues,
counsel responded “that’s work product” and refused to answer. Id. at
– an attorney cannot claim that apportionment was impossible and then try to
avoid a discovery inquiry about the possibility of apportionment by claiming
work-product privilege for the basis of the fee claim. Here, petitioner is not
refusing to disclose any information necessary to support her claim for fees.
Any information that respondent needs to meet the burden of challenging whether
the proposal was made in good faith is available from the record.
B. Need and Undue Hardship
preparation of [her] case and that [she] is unable without undue hardship to
obtain the substantial equivalent of the materials by other means,” as required
by rule 1.280(b)(4) in order to obtain work product. The respondent made no
attempt in her motion or supporting memoranda to establish need or undue
hardship. “[W]ell established in Florida is the principle that the unsworn
analysis of a party’s attorney and/or a bare assertion of need and undue
hardship to obtain the substantial equivalent [is] insufficient to satisfy this
showing.” Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1194
(Fla. 1st DCA 1985). Further, “the showing of need encompasses a showing of
diligence by the party seeking discovery of another party’s work product.”
party will experience undue hardship, courts must balance the moving party’s
burden in obtaining information with the non-moving party’s burden of
production.” Paradise Pines Health Care Assocs., LLC v. Bruce, 27 So. 3d
83, 84 (Fla. 1st DCA 2009) (finding there was need and undue hardship sufficient
to compel the discovery of incident reports because the subject of the report
had since died, and it would have been “difficult, if not impossible” to
independently obtain the information contained in the reports).
hardship. The court found its credibility determination would “necessitate the
use of privileged communications, assuming proper waiver of privilege,”
apparently referring to the attorney-client privilege. (Emphasis added).
However, the court did not find need for work product. Instead, the court found
petitioner could not assert work-product privilege in connection with attorney’s
fees. As discussed above, that finding was in error.
C. Opinion work product
information that she seeks concerning the decision-making strategy and opinions
behind petitioner’s proposal for settlement includes “opinion” work product,
which is never discoverable.
Work product can be divided into two categories: “fact” work product
(i.e., factual information which pertains to the client’s case and is
prepared or gathered in connection therewith), and “opinion” work product
(i.e., the attorney’s mental impressions, conclusions, opinions, or
theories concerning his client’s case). In re Sealed Case, 676 F.2d 793,
810-11 (D.C.Cir. 1982). A clear distinction has been drawn between these two
types of work product with respect to the degree of protection provided.
Western Fuels Association v. Burlington Northern Railroad, 102 F.R.D.
201, 204 (D.Wyo.1984). Generally, fact work product is subject to discovery upon
a showing of “need,” whereas opinion work product is absolutely, or nearly
Rabin court explained this distinction is recognized by rule 1.280, which
states that “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.” Fla. R. Civ. P.
1.280(b)(4) (emphasis added); Rabin, 495 So. 2d at n.6. See also
5500 N. Corp. v. Willis, 729 So. 2d 508, 512 (Fla. 5th DCA 1999) (“An
attorney’s mental impressions, conclusions, opinions or theories concerning the
client’s case are opinion work product and are absolutely privileged” as
recognized by rule 1.280). “[C]onsiderations of need and undue hardship . . .
are not relevant [if] . . . the protected collection of documents constitutes
opinion work product, which is ‘absolutely, or nearly absolutely, privileged.’ ”
Smith v. Fla. Power & Light Co., 632 So. 2d 696, 699 (Fla. 3d DCA
1994) (quoting Rabin, 495 So. 2d at 262).
So. 2d 1148 (Fla. 3d DCA 2008). In Ford, the Third District granted a
petition for writ of certiorari quashing the order of a trial court that
compelled Ford to grant access to a database created by its attorneys that
functioned as a “notebook” containing the attorneys’ “thoughts, opinions,
strategies, mental impressions and advice” regarding the case. Id. at
1153. The Third District found those documents “fall within the absolute
immunity protecting opinion work product.” Id. at 1154. Here, petitioner
argues that the specific information sought by respondent in her motion, and by
the trial court in its order, was opinion work product, which is protected by
absolute immunity. We agree.
law by ordering production of petitioner’s litigation file because work-product
privilege extends to motions for attorney’s fees, respondent failed to prove
need or undue hardship, and the information from the file that respondent sought
was opinion work product, which is absolutely immune from discovery.
IV. Attorney-Client Privilege
Statutes, which states, “[a] client has a privilege to refuse to disclose, and
to prevent any other person from disclosing, the contents of confidential
communications when such other person learned of the communications because they
were made in the rendition of legal services to the client.”
her counsel filed an affidavit stating the invoices attached to the motion for
fees were accurate. The court found that affidavit was tantamount to
petitioner’s counsel testifying. The court cited Official Cargo Transport
Co., Inc. v. Certain Interested Underwriters at Lloyds of London Subscribing to
Certificate of Insurance Numbers M104255.000 & M104256.000, 368 F. Supp.
2d 1314 (S.D. Fla. 2005). That case is factually distinguishable and not binding
on this court.
documents and letters of communication between the defendant’s attorney and the
defendant in order to prove a lack of good faith in making a settlement offer.
Counsel withheld that documentation, asserting attorney-client privilege.
Id. at 1317. However, at a hearing on the matter, defense counsel failed
to invoke the privilege, but instead answered questions regarding the basis for
the offer. Id. at 1318. Counsel then “stated that he wished to establish
a record regarding the basis for the offer and then proceeded to establish such
a record . . . even reveal[ing] statements communicated to him by the client.”
Id. The federal district court held that counsel waived attorney-client
privilege when he testified regarding the basis for the offer, and he clearly
waived the privilege when he established a record regarding the basis for the
offer which included privileged communication. Id.
not discuss or disclose privileged communication between counsel and the client.
Instead, counsel merely attested that the invoices itemizing the costs and fees
incurred, which were attached to the motion for fees, were accurate.
protected by either the attorney-client or work product privilege.” Anderson
Columbia v. Brown, 902 So. 2d 838, 841-42 (Fla. 1st DCA 2005). The invoice
was nothing more than a bare accounting of the hours spent and rate charged,
along with broadly worded, vague descriptions of the work. Therefore, the
invoice and affidavit did not disclose privileged communication and thus did not
waive attorney-client privilege.
privilege would be waived with respect to other unrevealed communications only
to the extent that they are relevant to the communication already disclosed.”
E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 332 (Fla. 3d DCA 1983).
Stated differently, “if attorney-client privilege is waived regarding a certain
matter, the waiver is limited to communications on the same matter.” Alliant
Ins. Servs., Inc. v. Riemer Ins. Group, 22 So. 3d 779, 781 (Fla. 4th DCA
2009). Further, “[i]f 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. . . . 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.” Id.
Therefore, even if privilege had been waived here, that waiver would have been
limited, and petitioner would have been entitled to an in camera review.
requirements of the law in compelling disclosure of the entire litigation file,
because that file is protected by work-product and attorney-client privilege.
We, therefore, GRANT the petition for writ of certiorari and quash the order
compelling discovery of the entire litigation file. (ROWE and OSTERHAUS, JJ.,
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