YOUNG, STERN & TANNENBAUM, P. A., A FLORIDA PROFESSIONAL ASSOCIATION, PETITIONER,
v.
GERALD SMITH, RESPONDENT
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Young, Stern & Tannenbaum sought certiorari to quash a protective order that shielded defendant's counsel from deposition based on attorney-client privilege over a settlement agreement. The Third District Court of Appeal granted certiorari and quashed the order, holding that an absolute bar to deposing counsel is overly broad and that only communications actually falling under the privilege are protected.
The court granted certiorari and quashed the protective order. The court held that an absolute protective order precluding any deposition of counsel is overly broad and departs from the essential requirements of law. Only those communications which actually fall under the attorney-client privilege are protected; a blanket deposition bar is improper.
[1] Common law certiorari may be granted to quash a protective order if there has been a departure from the essential requirements of law causing material injury that cannot…
[2] A protective order precluding the deposition of an attorney is overly broad and departs from the essential requirements of law when it is not narrowly tailored to protect…
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Join FLexlaw to unlock all legal intelligence“Common law certiorari may be granted if there has been a departure from the essential requirements of law in such a way as to cause a material injury throughout the proceedings that cannot be adequately remedied by appeal.”
Establishes the standard for granting certiorari relief.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a protective order precluding any deposition of Robert A. Geiss, the defendant's attorney, on the basis of attorney-client priv…
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PER CURIAM.
Petitioner seeks common law certiorari as authorized pursuant to Florida Rule of Appellate Procedure 9.100(c) to quash a protective order shielding the defendant’s counsel of record from deposition. The protective order was granted on the basis that there was an attorney/client privilege with respect to a written settlement agreement in the underlying law suit. We grant certiorari and quash the protective order. Common law certiorari may be granted if there has been a departure from the essential requirements of law in such a way as to cause a material injury throughout the proceedings that cannot be adequately remedied by appeal. Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981); Travelers Indemnity Gompany v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980); Allstate Insurance Company v. Shupack, 335 So. 2d 620 (Fla. 3d DCA 1976).
The order entered by the trial court precludes the taking of any deposition of Robert A. Geiss, defendant’s attorney. Such an order, under these circumstances, is overly broad and departs from the essential requirements of law. Frantz, Travelers, Allstate, supra. Only those communications which actually fall under the attorney/client privilege are protected. Seeba v. Bowden, 86 So. 2d 432, 434 (Fla.1956); Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981); Section 90.502(4)(d), Florida Statutes (1979).
We are cognizant of the conflict on this issue. The Fourth District receded from Gold Coast Raceway, Inc. v. Ehrenfeld, supra, in United States Fidelity & Guaranty Company v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981) and certified a conflict with the Fifth District’s holding in Travelers, supra. We believe that Gold Coast was correctly decided and reject the rationale of Graham, supra. We recognize that our decision today is in direct conflict with United States Fidelity & Guaranty Company v. Graham, supra.
The petition for writ of certiorari is granted; the protective order is quashed; and the cause is remanded for further proceedings.
NESBITT, Judge
(dissenting):
The circumstances surrounding the taking of the attorney’s deposition in this case so closely parallel those present in United States Fidelity and Guaranty Company v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981) that for the reasons expressed [therein], I would hold that there is a lack of showing of a material injury not remediable by way of plenary appeal. Additionally, an order protecting the attorney-client privilege, as opposed to an order denying the privilege, does not constitute a departure from the essential requirements of law. Consequently, I would deny certiorari.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Home Ins. Co. & N. River Ins. Co. as Subrogees For Athlone Indus., Inc. v. Advance Mach. Co., 443 So. 2d 165 (Fla. 1st DCA 1983)…rs have conceded in their motion for protective order that some of the information sought may fall outside the ambit of the attorney-client privilege, while other information may come within it. As stated in Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4, 5 (Fla. 3d DCA 1982): “Only those communications which actually fall under the attorney/client privilege are protected.” (e.s.) See also Section 90.502, Florida Statutes (1981). We therefore reject petitioners’ suggestion that their motion for prot…
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The Colonies Condo. Ass'n, Inc. v. Clairview Holdings, Inc., 419 So. 2d 725 (Fla. 5th DCA 1982)…Here petitioner has seen the document it needs to prove its case, and will not now obtain them. Barring discovery in this case (in my judgment) constitutes a departure from the essential requirements of law. Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4 (Fla. 3d DCA 1982); Colonial Penn Insurance Company v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980); Springer v. Greer, 341 So. 2d 212 (Fla. 4th DCA 1976); Reynolds v. Hofmann, 305 So. 2d 294 (Fla. 3d DCA 1974); Brennan v. Board of Public Instruction,…
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Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984)…hat to whom about him. For that reason, unlike the ordinary situation in which discovery is denied rather than required, see Industrial Tractor Co. v. Bartlett, 454 So. 2d 1067 (Fla. 5th DCA 1984), but as in Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4 (Fla. 3d DCA 1982), which also concerned a claim of testimonial privilege, the order below satisfies the first prong of the test for the availability of review by certiorari: that the injury caused by the particular interlocutory ruling is such that…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States Fid. & Guar. Co. v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981)
- Brevard Cnty. & the Bd. of Cnty. Comm'rs of the Cnty. of Brevard v. Kimball, 388 So. 2d 648 (Fla. 5th DCA 1980)
- Travelers Indem. Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980)
- Lach v. Lach, 335 So. 2d 620 (Fla. 3d DCA 1976)
- Schwartz v. The Babcock Co. & Dep't of Labor & Emp. Sec., 407 So. 2d 283 (Fla. 3d DCA 1981)
- Seeba v. Bowden, 86 So. 2d 432 (Fla. 1956)
- Leonard Frantz, D.D.S. v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981)
- Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981)