42
Fla. L. Weekly D1157aTop of Form

Torts
— Discovery — Attorney-client privilege — Crime-fraud exception — Compelled
testimony by attorney — Due process — Trial court denied attorney due process
when, without offering him an opportunity to be heard, it found his conduct, in
scheduling depositions in a different case for the purpose of having deponents,
now defendants, touch exhibits that would be used for clandestine DNA
collection to prepare for a hate-mail related defamation action, was a fraud
upon the court making applicable the crime-fraud exception to attorney-client
privilege — Remand for attorney to have opportunity to be heard

WILLIAM DOUBERLEY, Petitioner, v.
ISAAC PERLMUTTER, LAURA PERLMUTTER and HAROLD PEERENBOOM, Respondents. 4th
District. Case No. 4D16-2597. May 24, 2017. Petition for writ of certiorari to
the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Meenu
Sasser, Judge; L.T. Case No. 502013CA015257XXXXAI. Counsel: Daniel M. Bachi,
Jeremy D. Bertsch and Kaitlin E. Cupp of Sellars, Marion & Bachi, P.A.,
West Palm Beach, for petitioner. Joel S. Perwin, Miami, and Roy Black, Jared
Lopez and Joshua Shore of Black Srebnick, Kornspan & Stumpf, P.A., Miami,
for respondents.

(MAY, J.) An attorney petitions this
court for a writ of certiorari to review an order compelling him to answer
questions involving attorney-client privilege. He raises both a due process
argument and a substantive argument in suggesting the trial court departed from
the essential requirements of the law resulting in irreparable harm. We agree
with him regarding his due process argument and grant the petition solely on
that basis.

The order at issue arises in a
defamation case in which the attorney’s client is the plaintiff. Before he
filed the defamation action, and giving rise to it, plaintiff suspected that
the potential defendants were behind a hate mail campaign directed at him. He
also suspected that the potential defendants were funding another action in
which the plaintiff had been sued (“Kay-Dee case”).

Though they were not parties in the
Kay-Dee case, the attorney scheduled their depositions in that action. During
the deposition, the attorney arranged to show “exhibits” to the deponents (now
defendants). The paper used to create the exhibits was treated with chemicals
to facilitate DNA collection and the deponents were to touch those items. The
deponents’ discarded water bottles were also to be collected following the
deposition. Thereafter, DNA tests would be run to compare their DNA and
fingerprints to those retrieved from the hate mail sent, which formed the basis
of the instant defamation action.

Plaintiff filed the defamation
action about eight months after the depositions. The attorney and the plaintiff
admit to the above conduct, but claim the deposition had a legitimate basis as
well.

The defendants then deposed the
attorney regarding the scheduling of their deposition and the DNA collection in
the Kay-Dee case. The attorney asserted attorney-client and Fifth Amendment
privileges throughout. The defendants then moved to compel the attorney to
answer questions, arguing the crime-fraud exception applied to avoid the
attorney-client privilege.

The crime-fraud exception provides
there is no attorney-client privilege when the lawyer’s services are “sought or
obtained to enable or aid anyone to commit or plan to commit what the client knew
was a crime or fraud.” See § 90.502(4)(a), Fla. Stat. (2016)
(emphasis added). The defendants argued that the crime-fraud exception applied
because section 760.40, Florida Statutes, requires anyone doing DNA testing to
first get the person’s consent and to notify the person of the results.1

Neither the plaintiff, his attorney,
his DNA tester, nor the police appear to have been aware of this DNA statute
when the samples were collected and tested. The defendants argue that the
plaintiff and his attorney committed a fraud upon the court when they used the
court’s subpoena power to depose them in the Kay-Dee case where they were
non-parties.

The trial court agreed.
Significantly, the attorney was not present at the hearing on the motion to
compel. The trial court found the plaintiff not credible.

The twenty-two page order concluded
that the “fraud on the court” concerned the scheduling of the deposition
in the Kay-Dee case without a legitimate purpose apart from DNA collection and
the use of the court’s subpoena power to do so. Per the order, the attorney is
not shielded from testifying to events related to the “collection, testing, and
publication of the [defendants’] DNA samples, occurring between December of
2012 and April of 2013, as the crime-fraud exception applies to the instant
matter, piercing the attorney-client privilege.”

In his petition, the attorney argues
he did not receive notice of, and was not present at, the hearing leading to
the detailed order under review.2 He also argues that the deposition
was not a fraud upon the court. And, he contends that the DNA statute does not
apply to his role, which was the “collection” of DNA. We agree with the
attorney solely on his due process argument and quash the order on that basis.

Florida courts have held that due
process requires an evidentiary hearing to determine applicability of the
crime-fraud exception. See Merco Group of the Palm Beaches, Inc. v. McGregor,
162 So. 3d 49, 51 (Fla. 4th DCA 2014). Here, the attorney was denied due
process when the court found that his conduct was fraudulent without offering
him an opportunity to be heard. See Carmona v. Wal-Mart Stores, East, LP, 81
So. 3d 461 (Fla. 2d DCA 2011); Clare v. Coleman (Parent) Holdings, Inc.,
928 So. 2d 1246, 1248 (Fla. 4th DCA 2006).

We therefore quash the order and
remand the case to the trial court to conduct a hearing with notice to the
attorney and an opportunity to be heard.

Petition granted in part, order
quashed in part. (TAYLOR and GERBER, JJ., concur.)

__________________

1“A person who violates paragraph (a)
is guilty of a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.” § 760.40(2)(b), Fla. Stat. (2016).

A person
who performs DNA analysis or receives records, results, or findings of DNA
analysis must provide the person tested with notice that the analysis was
performed or that the information was received. The notice must state that,
upon the request of the person tested, the information will be made available
to his or her physician. The notice must also state whether the information was
used in any decision to grant or deny any insurance, employment, mortgage,
loan, credit, or educational opportunity. If the information was used in any decision
that resulted in a denial, the analysis must be repeated to verify the accuracy
of the first analysis, and if the first analysis is found to be inaccurate, the
denial must be reviewed.

§ 760.40(3).

2The defendants did not address the
due process argument in their response.

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