INSURANCE COMPANY OF NORTH AMERICA, PETITIONER,
v.
MANUEL NOYA AND ANA NILDA NOYA, HIS WIFE, AND NESTOR DAVILA AND SONIA DAVILA, HIS WIFE, D/B/A LAS GUITARRAS RESTAURANT, RESPONDENTS
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Insurance Company of North America sought certiorari review of a trial court order requiring production of documents claimed to be protected by work-product and attorney-client privileges. The appellate court held that work-product privilege is not waived merely by failure to timely object to a subpoena, and reversed the lower court's order requiring production of work-product materials.
Work-product privilege is not waived by failure to timely object to a subpoena or move for a protective order. Work-product materials—documents prepared in anticipation of litigation or for trial—are protected from discovery unless the party seeking discovery demonstrates need for the materials and inability to obtain substantial equivalents by other means. The trial court's order requiring production of work-product materials was reversed.
[1] A party seeking discovery of "work-product" materials must demonstrate a need for the materials and an inability to obtain their substantial equivalent without undue hard…
[2] Failure to timely object to a subpoena or move for a protective order waives objections to discovery that is otherwise within the permissible scope.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action”
Establishes the foundational scope of discovery under Florida Rule of Civil Procedure 1.280(b), with the explicit limitation that discovery is limited to matters that are not privileged.
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Join FLexlaw to unlock all legal intelligenceA subpoena duces tecum was issued to Insurance Company of North America seeking various documents. The insurance company asserted both work-product pr…
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SHARP, Judge.
Petitioner, Insurance Company of North America, seeks review by certiorari1 of the trial court’s order requiring petitioner to produce, pursuant to a subpoena duces te-cum, various documents for which petitioner asserts it has a “work-product”2 privilege and an attorney-client privilege. The trial court ruled it would protect petitioner’s attorney-client privilege by conducting an “in-camera” inspection of the materials, but that petitioner had waived its “work-product” privilege for the balance of the subpoenaed documents by failing to file objections to the subpoena duces tecum or moving for a protective order prior to the deposition. We have jurisdiction,3 and we grant the petition.
The scope of permissible discovery in civil cases is set by Florida Rule of Civil Procedure 1.280(b):
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: . .. parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, .... (Emphasis supplied)
Rule 1.280(b)(2) provides that a party’s “work-product” — documents and materials “prepared in anticipation of litigation or for trial” can be reached only if the party seeking discovery makes a showing that he needs the materials to prepare his case and “that he is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.” Respondent made no such showing in this case. Absent such a showing, and an order of the court designed to “protect against disclosure . . . the mental impressions, conclusions, opinions or legal theories of any attorney or other representative of a party,” such materials are outside the scope of discovery, and not reachable by the discovery process.
Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107 (Fla. 2d DCA 1977), is not controlling because that case dealt with materials for which no privilege was asserted. The respondent in Don Mott argued the discovery sought should be limited because it was “unreasonable and oppressive” and designed to annoy, embarrass, and be unduly expensive, although otherwise it was within the permissible scope of discovery. Rule 1.140(b) and (c) expressly require a party to file timely motions to quash, or for a protective order, or written objections, in order to limit discovery of documents and materials otherwise within the scope of discovery. Failure to take such timely action waives these objections,4 but it does not bar a party from asserting a privilege or exemption for matters outside the scope of permissible discovery.
For the reasons stated in this opinion, the petition for writ of certiorari is granted, and the lower court’s order is amended to delete the requirement that petitioner produce the materials for which it asserts a “work-product” privilege.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur. . Fla.R.App.P. 9.030(b)(2)(B)
. Fla.R.Civ.P. 1.280(b)(1).
. Zuberbuhler v. Division of Administration, 344 So. 2d 1304 (Fla. 2d DCA 1977); cert. denied, 358 So. 2d 135 (Fla. 1978); Southern Millcreek Products Co., Inc. v. Delta Chemical Co., 203 So. 2d 53 (Fla. 3d DCA 1967); Winn Dixie Stores, Inc. v. Belcher, 144 So. 2d 863 (Fla. 2d DCA 1962).
. Don Mott v. Pullum, 352 So. 2d 107 (Fla. 2d DCA 1977).
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Citator
Cited By (16 total)
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Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)…CA 1983); pet. for review denied, 446 So. 2d 100 (Fla.1984); Cavalere v. Graham, 432 So. 2d 756 (Fla. 5th DCA 1983); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981); Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981); Transamerica Insurance Co. v. Maze, 318 So. 2d 200 (Fla. 2d DCA 1975). Also well established in Florida is the principle that the unsworn analysis of a party’s attorney and/or a bare assertion of need and undue hardship to obtai…
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The Colonies Condo. Ass'n, Inc. v. Clairview Holdings, Inc., 419 So. 2d 725 (Fla. 5th DCA 1982)…were originally produced, respondent failed to file any objections to the discovery, although it now claims it would violate respondent’s privacy and be inflammatory. In any event, these objections came too late. See Insurance Co. of N. Am. v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981).…
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Austin v. Barnett Bank OF S. Fla., N.A., 472 So. 2d 830 (Fla. 4th DCA 1985)…nk the omission was intentional and that the word “objectionable” in rule 1.380(d) therefore should be construed as referring only to items which are within the scope of discovery; that is, not privileged (see Insurance Co. of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981)), but to which objection is made for one of the reasons set forth in rule 1.280(c). Thus rule 1.380(d) does not require timely objection to privileged matters. See Gross v. Security Trust Co., 462 So. 2d 580 (Fla. 4th DCA 1985).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zuberbuhler v. Division OF Administration, 344 So. 2d 1304 (Fla. 2d DCA 1977)
- S. Mill Creek Prods. Co., Inc. v. DELTA Chem. Co., 203 So. 2d 53 (Fla. 3d DCA 1967)
- Winn Dixie Stores, Inc. v. Belcher, 144 So. 2d 863 (Fla. 2d DCA 1962)
- DON Mott Agency, Inc. v. Byrd Pullum, 352 So. 2d 107 (Fla. 2d DCA 1977)