Torts
— Medical malpractice — Discovery — Attorney-client privilege — Deposition
questions to plaintiff regarding lawyers she had consulted, seeking to
determine when plaintiff first comprehended a reasonable probability that her
child’s injury was caused by medical malpractice — Trial court did not err in
compelling plaintiff to answer questions regarding when she first sought legal
counsel and the names of the attorneys whom she had consulted regarding
possible legal remedies stemming from her daughter’s condition, as these
questions do not require plaintiff to disclose any communications she had with
any attorney — It was improper to compel plaintiff to answer all questions
related to why she first sought out legal counsel and any subsequent counsel,
as this would allow inquiry into confidential communications between plaintiff
and attorneys

MICHELLE COFFEY-GARCIA, et al., Petitioners, vs. SOUTH MIAMI
HOSPITAL, INC., et al., Respondents. 3rd District. Case No. 3D15-1966. L.T.
Case No. 13-37232. Opinion filed June 22, 2016. A Writ of Certiorari to the
Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge. Counsel:
Diez-Arguelles & Tejedor, and Carlos Diez-Arguelles and Maria Tejedor
(Orlando); Barbara Green, for petitioners. Spector Rubin, P.A., and Andrew
Spector and Robert M. Borak; Falk, Waas, Hernandez, Cortina, Solomon &
Bonner, P.A., and Glenn Falk, Scott E. Solomon and Jordan M. Bieber; Haliczer,
Pettis & Schwamm, P.A., and Debra Potter Klauber, for respondents.

(Before EMAS, LOGUE, and SCALES, JJ.)

(LOGUE, J.) Michelle Coffey-Garcia and Jose M. Garcia,
individually and on behalf of their daughter, Samantha Garcia (hereinafter,
“the Garcias”), petition for a writ of certiorari to review an order that
compels Ms. Coffey-Garcia to answer deposition questions regarding lawyers she
consulted relating to the medical malpractice claim at issue. We grant the writ
and quash part of the order under review.

FACTS
AND PROCEDURAL HISTORY

On July 16, 2005, Ms. Coffey-Garcia gave birth to her
daughter, Samantha. In early 2007, a neurologist diagnosed Samantha with
cerebral palsy. Prior to Samantha’s eighth birthday, on April 30, 2013, the
Garcias petitioned to extend by ninety days the statute of limitations for
filing a medical malpractice action against the hospitals, clinics, and doctors
involved in Samantha’s birth. See § 766.104(2), Fla. Stat. (2013). After
filing their notice of intent to initiate litigation for medical malpractice, see
§ 766.106(2), Florida Statutes (2013), the Garcias filed suit against those
hospitals, clinics, and doctors in November 2013.

The statute of limitations for medical malpractice is two
years “from the time the incident giving rise to the action occurred or within
2 years from the time the incident is discovered, or should have been
discovered with the exercise of due diligence.” § 95.11(4)(b), Fla. Stat.
(2013). The Florida Supreme Court has interpreted this language “to mean not
only knowledge of the injury but also knowledge that there is a reasonable
possibility that the injury was caused by medical malpractice.” Tanner v.
Hartog, 618 So. 2d 177, 181 (Fla. 1993) (footnote omitted).

To investigate when Ms. Coffey-Garcia first comprehended a
reasonable possibility that her child’s injury was caused by malpractice, the
lawyers for the hospitals, clinics, and doctors deposed her seeking to discover
what lawyers she consulted regarding Samantha’s condition, when she consulted
them, and why she consulted them. After testifying that her current counsel was
not the first attorney she consulted, she declined to answer any other
questions based on the attorney-client privilege.

The hospitals, clinics, and doctors moved to compel. The
trial court ordered Ms. Coffey-Garcia to “answer all questions related to the
following issues”: (a) “when she first sought legal counsel”; (b) “the names of
the attorneys whom she consulted with”; and (c) “the reasons why she first
sought out legal counsel and any subsequent counsel.” This petition followed.
At oral argument, the hospitals, clinics, and doctors conceded that any
information produced should be limited to consultations regarding possible
legal remedies stemming from the daughter’s condition.

ANALYSIS

I. Jurisdiction.

For a writ of certiorari to issue, the petitioner must
demonstrate that the challenged non-final order (1) departs from the essential
requirements of law, (2) results in material injury for the remainder of the
case, and (3) such injury is incapable of correction on post-judgment appeal. Citizens
Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla.
2012). The last two elements are referred to as irreparable harm, the
establishment of which is a condition precedent to invoking certiorari
jurisdiction. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles,
87 So. 3d 712, 721 (Fla. 2012); Sea Coast Fire, Inc. v. Triangle Fire, Inc.,
170 So. 3d 804, 807 (Fla. 3d DCA 2014). The disclosure of information protected
by the attorney-client privilege is well recognized as irreparable harm. See
Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450, 457 (Fla. 2012).

II. Attorney-Client Privilege

In Florida, a client’s right to have his or her
communications with counsel remain confidential derives from two sources which
establish somewhat different standards. The right as it pertains to disclosure
in judicial and administrative hearings, technically referred to as the
“attorney-client privilege,” is governed by the Florida Evidence Code, codified
at section 90.502, Florida Statutes (2013). The right as it pertains to
disclosure outside judicial and administrative hearings, technically referred
to as “the rule of client-lawyer confidentiality,” is governed by Rule
Regulating the Florida Bar 4-1.6. See R. Regulating Fla. Bar 4-1.6 cmt.
(“The attorney-client privilege applies in judicial and other proceedings in
which a lawyer may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer confidentiality applies
in situations other than those where evidence is sought from the lawyer though
compulsion of law.”). Because we are addressing disclosure in the context of a
lawsuit, this case is obviously governed by the attorney-client privilege
provided in the Evidence Code.1

Under the Evidence Code, “[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.” § 90.502(2), Fla. Stat. The Code further provides:

A
communication between lawyer and client is “confidential” if it is not intended
to be disclosed to third persons other than:

1.
Those to whom disclosure is in furtherance of the rendition of legal services
to the client.

2.
Those reasonably necessary for the transmission of the communication.

§ 90.502(1)(c), Fla. Stat.2

The privilege protects only communications to and from a
lawyer; it does not protect facts known by the client independent of any
communication with the lawyer, even if the client later tells the fact to the
lawyer: “the communication between the attorney and client is privileged, but
the underlying facts are discoverable.” S. Bell Tel. & Tel. Co. v.
Deason, 632 So. 2d 1377, 1387 (Fla. 1994); see also Carnival
Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA 1998) (“Although the
communications between an attorney and client are privileged, the underlying
facts are discoverable.”). In other words, “[t]he client cannot be compelled to
answer the question, ‘What did you say or write to the attorney?’ but may not
refuse to disclose any relevant fact within his knowledge merely because he
incorporated a statement of such fact into his communication to his attorney.” Upjohn
Co. v. U.S., 449 U.S. 383, 396 (1981).

The burden of establishing the existence of the attorney-client
privilege, and thus the existence of a confidential communication, rests on the
party asserting the privilege. Deason, 632 So. 2d at 1383. This burden
can be met by describing “the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing
information itself privileged[,] . . . will enable other parties to assess the
applicability of the privilege.” Fla. R. Civ. P. 1.280(b)(6). In some cases,
however, the communication will appear to be privileged on its face. First
Union Nat’l. Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001); Shell
Oil Co. v. Par Four P’ship, 638 So. 2d 1050 (Fla. 5th DCA 1994). In such
cases, the party seeking disclosure of the communication bears the burden of
proving that it is not privileged. Turney, 824 So. 2d at 183-84; Shell
Oil Co., 638 So. 2d 1050.

III. Application of Law to the Discovery Order

Applying this law to the instant case, we decline to quash
the first two parts of the order under review. Based on the concession of the
hospital, clinics, and doctors, the order to divulge the names of attorneys and
dates of consultation is limited to those attorneys Ms. Coffey-Garcia consulted
regarding possible legal remedies stemming from her daughter’s condition. On
their face, these questions do not require her to disclose any communication
she had with any attorney. They merely require her to disclose the occurrence
of a consultation with a lawyer regarding a general topic.

This court has previously held that “[t]he traditional and
still generally applicable rule denies the [attorney-client] privilege for the
fact of consultation or employment . . . .” Greenberg Traurig Hoffman Lipoff
Rosen & Quentel v. Bolton, 706 So. 2d 97, 98 (Fla. 3d DCA 1998)
(quotations and citations omitted); see also Burt v. Gov’t Emps. Ins.
Co., 603 So. 2d 125 (Fla. 2d DCA 1992) (holding, in a personal injury case,
that a question asking a plaintiff when she obtained counsel for the case did
not violate the attorney-client privilege). There are, of course, exceptions to
this general rule in which the very fact of a consultation with an attorney
constitutes a “confidential” communication under the Evidence Code. But those
exceptions do not apply here.3

We therefore conclude that requiring Ms. Coffey-Garcia to
reveal when and with whom she consulted for the general purpose of discussing
possible legal remedies stemming from her daughter’s condition does not, on
this record, implicate the attorney-client privilege. This is true even though
she is revealing in general terms her purpose for scheduling and attending the
consultation. “Courts have consistently held that the general subject matters
of clients’ representations are not privileged. Nor does the general purpose of
a client’s representation necessarily divulge a confidential professional
communication, and therefore that data is not generally privileged.” United
States v. Legal Servs. for New York City, 249 F.3d 1077, 1081 (D.C. Cir.
2001)) (internal citation omitted); see also In re Grand Jury
Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (“[T]he general purpose of the
work performed [is] usually not protected from disclosure by the
attorney-client privilege because such information ordinarily reveals no
confidential professional communications between attorney and client.”)
(quotations and citations omitted); New Jersey v. Sprint Corp., 258
F.R.D. 421, 426 (D. Kan. 2009) (“Revealing the general topic of discussion
between an attorney and client does not waive the privilege, unless the
revelation also reveals the substance of a protected communication.”). We thus
decline to quash the first two parts of the order, as modified by the
concession at oral argument.4

The third part of the trial court’s directive, however,
requires Ms. Coffey-Garcia to “answer all questions related to . . . the
reasons why she first sought out legal counsel and any subsequent counsel.”
(emphasis added). This part of the order allows inquiry into confidential
communications between Ms. Coffey-Garcia and attorneys. For example, she might
be asked “after consulting the first lawyer, why did you seek out a second
lawyer?” Under the trial court’s order that she answer “all” questions, she
would be required to answer even if her response was “my first lawyer insisted
I had no case so I wanted to get a second opinion” or “my first lawyer told me
I had an excellent case but needed a lawyer specializing in neonatology.” These
communications of legal advice from the lawyer to Ms. Coffey-Garcia would be
protected by the attorney-client privilege. Yet the order as drafted would
require her to divulge these privileged communications. While Ms. Coffey-Garcia
can be required to answer factual questions about what she learned at various
points in time concerning the nature and potential causes of her daughter’s
condition from sources other than the attorneys that she consulted, she cannot
be forced to answer questions that would require her to reveal the contents of
advice or information she received from the attorneys.

It is of no account that the answers to such questions might
prove useful or even necessary to determine when the Garcias discovered or
should have discovered that there was a “reasonable possibility” that medical
malpractice caused Samantha’s cerebral palsy. The hospital, clinics, and
doctors’ need for this information to prove their statute of limitations
defense does not justify an invasion of the privilege. “[T]he attorney-client
privilege . . . is not concerned with the litigation needs of the opposing
party.” Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d
1064, 1068 (Fla. 2011). “[U]ndue hardship is not an exception, nor is
disclosure permitted because the opposing party claims that the privileged
information is necessary to prove their case.” Id. (quotation and
citation omitted).

CONCLUSION

For these reasons, we grant the petition and quash the order
to the extent it requires Ms. Coffey-Garcia to answer all questions related to
the reasons why she sought subsequent counsel.5

Petition granted in part; denied in part.

__________________

1The distinction between the Ethics
Code and Evidence Code is significant because Florida courts have interpreted
the Ethics Code’s rule of client-lawyer confidentiality to be broader in scope
than the Evidence Code’s attorney-client privilege. See Campbell v.
Am. Pioneer Sav. Bank, 565 So. 2d 417, 417 (Fla. 4th DCA 1990) (“[T]he
Ethics Code’s protection of a client’s confidences is broader than the
evidentiary attorney-client privilege protecting privileged communications.”); Buntrock
v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA 1982) (“The Code of
Professional Responsibility protects more than confidential communications, it
protects confidences and secrets of a client. This protection is broader than
the evidentiary attorney-client privilege, and applies even though the same
information is discoverable from other sources.”) (internal citations omitted);
see also Abdool v. Bondi, 141 So. 3d 529, 553 (Fla. 2014) (“[Rule
4-1.6] has been interpreted to protect the confidences and secrets of
clients.”).

2Section 90.502(4) provides several
exceptions to the attorney-client privilege, none of which apply here.

3One example of an exception to this
general rule is the “last-link” exception. See Del Carmen Calzon v.
Capital Bank, 689 So. 2d 279, 281 (Fla. 3d DCA 1995) (“[T]he
attorney-client privilege covers information that would supply links of incriminating
evidence in an existing chain of inculpatory events, or lead to the filing of
criminal charges.”). No “last-link” concerns are implicated here.

4We do not address whether this
information is discoverable from attorneys.

5Because the issue is not before us,
we do not address whether the dates and names of the attorneys Ms.
Coffey-Garcia consulted are probative and therefore admissible regarding any
issue in this case.

* *
*