47 Fla. L. Weekly D1387a
COLLIER COUNTY PUBLIC SCHOOLS a/k/a THE SCHOOL DISTRICT OF COLLIER COUNTY; JUDITH DELGADO; and SHERYL ROGERS, Petitioners, v. MASON CLASSICAL ACADEMY, INC., Respondent. 2nd District. Case No. 2D21-1602. June 29, 2022. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Caroline Tesche Arkin, Judge. Counsel: Christopher D. Donovan, Sara F. Hall, and Benjamin J. Bogos of Roetzel & Andress, LPA, Naples, for Petitioners. Steven L. Brannock and Sarah C. Pellenbarg of Brannock, Humphries & Berman, Tampa; and Robert L. Rocke, Raul Valles, and Ian A. Parry of Rock, McLean & Sbar, P.A., Tampa, for Respondent.
(CASANUEVA, Judge.) The School District of Collier County and two of its former employees, Judith Delgado and Sheryl Rogers, seek review of a trial court order ruling that communications between the School District’s attorney and the two employees were not protected by the attorney-client privilege. We conclude that the trial court did not depart from the essential requirements of the law in determining that the School District failed to establish its claim of attorney-client privilege, and we deny the petition.1PROCEDURAL HISTORY
Mason Classical Academy is a charter school in Collier County, and it has a charter school contract with the School District. After receiving multiple complaints about Mason, the School District’s general counsel was asked to investigate the allegations. After his investigation, the attorney issued an investigative report pertaining to Mason, which has been made public.
In the underlying action, Mason filed suit against Joseph M. Baird, Matt Mathias, Erika Donalds, Phoenix Education Network, Inc., The Optima Foundation, Inc., and Hillsdale College, Inc., alleging claims of tortious interference and conspiracy. Mason sought to take the depositions of Ms. Delgado and Ms. Rogers in that proceeding. Neither the School District nor the two employees are parties to the underlying action.
Ms. Delgado’s deposition was scheduled in the underlying action, and during the deposition, the attorney for Mason asked the witness what she had discussed with the School District’s general counsel about Mason. The School District objected to the question and instructed the witness not to answer the question based on the attorney-client privilege. Thereafter, Mason filed a motion to compel Ms. Delgado’s testimony, arguing that her conversations with the attorney were not privileged. The School District filed a competing motion, arguing that the attorney’s conversations with both employees were protected by the attorney-client privilege. After a hearing on the motions, the trial court ruled that the School District failed to establish its claim of attorney-client privilege.DISCUSSION
Because we proceed in certiorari, the School District is required to “demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’ ” Hett v. Barron-Lunde, 290 So. 3d 565, 569 (Fla. 2d DCA 2020) (alteration in original) (quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012)).
The attorney-client privilege is a privilege of confidentiality, and it is statutorily protected. Am. Home Assurance Co. v. Sebo, 324 So. 3d 977, 981 (Fla. 2d DCA 2021) (citing § 90.502, Fla. Stat. (2005)). Section 90.502(2), Florida Statutes (2021), states that a client may “refuse to disclose, and . . . 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.” A client may be a person, a public officer, a public or private entity or organization, a corporation, or an association, “who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer.” § 90.502(1)(b).
“The burden of establishing the attorney-client privilege rests on the party claiming it.” S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994) (citing Fisher v. United States, 425 U.S. 391 (1976)). In the present case, the School District simply did not establish that either employee consulted with the attorney for the purpose of obtaining legal services. In the School District’s motion and at the hearing on the motion, the School District neither asserted nor offered evidence that either employee consulted with the attorney for the purpose of obtaining legal services.2
An organization cannot claim that all conversations between an employee and its attorney are protected by the attorney-client privilege. “[T]o minimize the threat of corporations cloaking information with the attorney-client privilege in order to avoid discovery, claims of the privilege in the corporate context will be subjected to a heightened level of scrutiny.” Id. In Deason, the Florida Supreme Court set forth five factors that should be examined when determining whether an organization’s communications are protected by the attorney-client privilege:
(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
Here, it appears that the School District’s general counsel interviewed Ms. Delgado and Ms. Rogers as a part of the fact-finding process in his investigation of Mason. The School District did not assert that either employee consulted with the attorney for the purpose of obtaining legal advice or services. Because the School District did not meet its burden of establishing the attorney-client privilege, the trial court did not depart from the essential requirements of the law in determining that communications between the School District’s attorney and the two employees were not protected by the privilege.
We note that much of the parties’ arguments in the trial court focused on Florida’s Sunshine Law, § 286.011, Fla. Stat. (2021), and Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985). In Neu, 462 So. 2d at 823, the plaintiffs requested a declaratory judgment stating that a meeting between the North Miami City Council and its attorney to discuss pending litigation was subject to the Sunshine Law’s open meeting provisions. The Florida Supreme Court held that “[t]he Sunshine Law explicitly provides for public meetings; communications at such public meetings are not confidential and no attorney/client privilege can arise therefrom.” Id. at 824.3
Section 286.011(1) provides as follows:
All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.
In the present case, discussions between the employees and the School District’s attorney clearly were not meetings pursuant to section 286.011(1) because neither employee was a school board member or part of a decision-making committee. See Molina v. City of Miami, 837 So. 2d 462, 463 (Fla. 3d DCA 2002) (concluding that the Sunshine Law did not apply to staff members who serve in a fact-finding, advisory capacity); Knox v. Dist. Sch. Bd. of Brevard, 821 So. 2d 311, 314 (Fla. 5th DCA 2002) (holding that where a “school board delegates a portion of its decision-making authority to an advisory group, those meetings must be open to the public,” but a school board’s staff is typically not subject to the Sunshine Law (citing Blackford v. Sch. Bd. of Orange Cnty., 375 So. 2d 578 (Fla. 5th DCA 1979))). Therefore, their meetings were not public meetings pursuant to the Sunshine Law.
However, we do not find merit in Mason’s argument that employees of the School District can never claim the attorney-client privilege because the School District itself cannot assert the privilege. This argument ignores section 90.502(6), which provides that “[a] discussion or activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011.” Therefore, a school district’s employees may claim the attorney-client privilege if they can establish that their conversations are protected by the privilege.CONCLUSION
Because the School District failed to establish that the attorney-client privilege applied to the discussions at issue in this case, the trial court did not depart from the essential requirements of the law. The petition for writ of certiorari is denied.
Denied. (KHOUZAM and BLACK, JJ., Concur.)
1Initially, this case was filed as a direct appeal. Later, this court determined that it should proceed by certiorari, and it is in that posture that the circuit court order will be reviewed.
2The motion asserted that “there are no other unprivileged matters relevant to the Instant Case to be explored.”
3Section 286.011 was amended in 1993, ch. 93-232, § 1, Laws of Fla., and it now provides that certain governing boards and executives of state and local governmental entities “may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party” if certain conditions are met. § 286.011(8). The School District does not contend that Ms. Delgado and Ms. Rogers met with attorney to discuss pending litigation to which either the School District or the employees were a party at the time of the conversations.* * *