Insurance — Bad faith — Discovery — Circuit court did not
depart from essential requirements of law by failing to conduct in-camera review
to address insurer’s objections to discovery requests based on scope of
discovery requested and on attorney-client privilege and work product doctrine
— General denial of insurer’s motion for protective order was equivalent to a
determination that all of the documents were “otherwise discoverable,” and at
that point, insurer’s claims of privilege and protection under work product
doctrine became mature — Insurer now has ability to file privilege log pointing
to specific documents which it claims are privileged

STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. ROBERT COBURN and MARTA
COBURN, Respondents. 2nd District. Case No. 2D13-2920. Opinion filed February
12, 2014. Petition for Writ of Certiorari to the Circuit Court for Collier
County; Frederick R. Hardt, Judge. Counsel: Lee Craig, Matthew J. Lavisky, and
Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for Respondents.

(MORRIS, Judge.) State Farm Florida Insurance Company petitions for a writ of
certiorari directed at the circuit court’s order denying State Farm’s motion for
protective order. The underlying action is a first-party bad faith action
brought by State Farm’s insureds, Robert and Marta Coburn. State Farm sought a
protective order after the Coburns served various discovery requests on State
Farm. Because we do not believe that State Farm has demonstrated irreparable
harm under the facts of this case, we deny the petition. However, as explained
below, we do so without prejudice to State Farm’s having the opportunity to file
a privilege log with the circuit court before producing the requested discovery.

State Farm objected to the Coburns’ discovery requests on the basis of
overbreadth and burdensomeness (i.e., the scope of discovery), as well as on the
basis of attorney-client privilege and the work product doctrine. State Farm
argued in its petition that the circuit court departed from the essential
requirements of law by failing to conduct an in-camera review to address its
objections, but in their response, the Coburns argue that State Farm waived this
issue by failing to file a privilege log or ask for an in-camera review below.

We do not believe that the facts of this case establish a waiver by State
Farm. “ ‘[A] party is required to file a [privilege] log only if the information
is otherwise discoverable,’ ” Morton Plant Hosp. Ass’n, Inc. v. Shahbas,
960 So. 2d 820, 826 (Fla. 2d DCA 2007) (quoting Gosman v. Luzinski, 937
So. 2d 293, 295 (Fla. 4th DCA 2006)), and until a circuit court rules on the
scope of discovery objection, “the party responding to the discovery does not
know what will fall into the category of discoverable documents,” Gosman,
937 So. 2d at 296. Thus, prior to a ruling on a scope of discovery objection,
“the obligation to file a privilege log does not arise.” Gosman, 937 So.
2d at 296.

The circuit court’s order denying State Farm’s motion for protective order
did not specifically address State Farm’s scope of discovery objections nor did
the circuit court find that State Farm had waived any of its assertions of
privilege or protection.1 We conclude that
the general denial of State Farm’s motion was equivalent to a determination that
all of the documents were “otherwise discoverable.” At that point, State Farm’s
claims of privilege and protection under the work product doctrine became
mature. See Allstate Indem. Co. v. Oser, 893 So. 2d 675, 677-78
(Fla. 1st DCA 2005). Because Florida Rule of Civil Procedure 1.280 “does not
provide a time limit for filing the [privilege] log,” Oser, 893 So. 2d at
677, State Farm now has the ability to file a privilege log pointing to specific
documents which it claims are protected by attorney-client privilege and/or the
work product doctrine. Accordingly, our denial of the petition for writ of
certiorari is without prejudice to State Farm’s right to file a privilege log
before producing the requested discovery.

Denied. (WALLACE and KHOUZAM, JJ., Concur.)

__________________

1Further, nothing has been presented to
this court indicating that the Coburns ever sought to compel production of the
requested discovery on the basis that State Farm waived its assertions of
privilege and protection.