CASE LAW UPDATE

SECOND DCA OVERTURNS TRIAL COURT’S DISCOVERY ORDER FOR PRODUCTION OF CLAIM FILE MATERIALS DUE TO NO PRIVILEGE LOG

 Jonathan Nunn, Associate Attorney – Port St. Lucie Office

An insured propounded a discovery request for “[a]ny and all photographs taken by the Insurance Company of the Property.”  The insurer objected to the request as being overly broad and also asserted privilege objections for work product and claim file.  The insured did not seek judicial intervention to compel the photographs until two years later.  Avatar Prop. & Cas. Ins. Co. v. Jones, 291 So. 3d 663 (Fla. 2d DCA 2020).

During the hearing on the insured’s Motion to Compel, the insured agreed to limit the breadth of the requested photographs to those taken by the insurer’s investigator during the home inspection.  Thus, the insurer’s overbreadth objection was resolved, leaving only the insurer’s privilege objections remaining for the trial court’s determination.  During the hearing, the insurer’s counsel argued that the photographs were protected under work product.  The trial court noted that the record did not reflect any privilege logs being filed as the objections had been pending for over two years.  The trial court entered an order overruling the insurer’s work-product objection and ordered the insurer to produce the subject photographs.  The record indicates that the trial court’s order was based on the insurer’s failure to file a privilege log when it asserted its work-product privilege.

The insurer immediately filed a Petition for Writ of Certiorari, arguing the trial court departed from the essential requirements of law when it ordered the production of the photographs because the insurer had not filed a privilege log.  Orders granting discovery, including discovery of work product materials, are amenable to certiorari review because appeal after a final judgment in a case where discovery was improperly granted seldom provides adequate redress.

Generally, Fla. R. Civ. P. 1.280(b)(6) requires a privilege log be filed when a party withholds requested documents “otherwise discoverable” under rules of discovery by claiming that the documents are privileged or subject to protection as trial preparation material.  The Second DCA cited a Fourth DCA case (Gosman v. Lizinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006) for explaining the nuance of timing as it relates to the obligations of filing a privilege log as it relates to Rule 1.280(b)(6).  In Gosman, the Court stated that requested documents that are deemed privileged are not “otherwise discoverable” until a written objection (non-privilege objection) is ruled upon.  Thus, a privilege log is not required until the non-privilege objection is ruled upon.  Obviously, if the sole objection to discovery were that it sought privileged documents, then a privilege log would be required prior to any hearing on the privilege objection.

In this case, the issue of discoverability of the insurer’s photographs was before the trial court on the insurer’s overbreadth objection and privilege objections.  The insurer’s obligation to file a privilege log did not mature until the asserted non-privilege objection (overbreadth) was resolved.  The issue was resolved during the hearing when insured’s counsel narrowed the scope of the request.  The Second DCA ruled that the trial court should have allowed the insurer a reasonable amount of time to file its privilege log after the non-privilege objection was resolved.  Accordingly, the trial court departed from the essential requirements of the law in compelling the production of the photographs based upon the insurer’s failure to file a privilege log.

The insured in this matter was represented by Greg Saldamando, Esq., Strems Law Firm and the insurer was represented by Curt Allen, Esq., Butler Weihmuller Katz Craig LLC.  The appellate court makes note of the historic bad blood between the two parties’ trial counsel and sympathized with the trial court’s frustration in dealing with unprofessional behavior.