STATE OF FLORIDA, DEPARTMENT OF INSURANCE, AND TREASURER, PETITIONERS,
v.
MARK ANTHONY SCHULER, RESPONDENT
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The Florida Department of Insurance petitioned for certiorari to review a hearing officer's order denying discovery of business records. The court held that a party cannot invoke the privilege against self-incrimination merely by conclusory assertion, and the hearing officer must conduct an in camera inspection of disputed records to determine if the privilege actually applies.
A party's mere conclusory assertion of the privilege against self-incrimination is insufficient to bar discovery. The hearing officer must conduct an in camera inspection of the remaining business records to determine whether a reasonable or realistic possibility of criminal prosecution actually exists to support the privilege claim.
[1] A party asserting a privilege against self-incrimination must demonstrate a reasonable or realistic possibility that production of requested documents will lead to crimin…
[2] A conclusory assertion of the privilege against self-incrimination is insufficient to meet the burden of establishing the privilege.
Previewing 2 of 5 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“Schuler's mere conclusory assertion that his constitutional privileges against self-incrimination are implicated is insufficient to discharge his burden of demonstrating that there exists a reasonable or realistic possibility that production of his remaining business records will lead to criminal prosecution.”
Establishes that a party cannot rely solely on conclusory statements to invoke the privilege against self-incrimination in discovery disputes.
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Join FLexlaw to unlock all legal intelligenceThe Department of Insurance issued an administrative complaint against Schuler seeking revocation of his two insurance agent licenses. Schuler request…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is a petition for certiorari filed by the State of Florida, Department of Insurance. For the reasons which follow, we grant the writ and remand with directions. The Department had issued an administrative complaint against Schuler seeking revocation of his two insurance agent licenses. Schuler requested a formal hearing and filed an amended answer raising four affirmative defenses. Schuler also made a discovery demand for production, inspection, and copying to which the Department promptly responded. The Department sought discovery of Schuler’s business records. Schuler objected to the Department’s discovery request on the grounds of both federal and Florida constitutional privileges against self-incrimination. The Department filed a motion to compel inspection, arguing that some of the business records were “required records,” and, therefore, not susceptible to a constitutional privilege. The Department also argued that it was necessary for the hearing officer to first conduct an in camera examination of the other business records in order to determine if any constitutional privilege obtained. In response to the Department’s motion to compel, Schu-ler specifically alleged that his privilege against self-incrimination applied since there was “a possibility of a criminal prosecution as the statute of limitations for first degree felonies in the State of Florida is four years.” The hearing officer granted the Department’s motion to compel production only in reference to Schuler’s business records which fell within the “required records” exception. However, the hearing officer failed to inspect Schuler’s remaining business records in camera and simply denied the Department access.
We agree with the Department that the hearing officer departed from the essential requirements of law in denying the Department’s discovery request without first inspecting the requested documents in camera. Schuler’s mere conclu-sory assertion that his constitutional privileges against self-incrimination are implicated is insufficient to discharge his burden of demonstrating that there exists a reasonable or realistic possibility that production of his remaining business records will lead to criminal prosecution. See M.S.S. v. DeMaio, 503 So. 2d 1384 (Fla. 5th DCA 1987) (mere invocation of self-incrimination privilege insufficient to support claim in absence of information showing reasonableness of fear of prosecution); Ehrhardt, Florida Evidence § 501.1 (2d ed. 1984) (“The burden is on the party asserting a privilege to establish the existence of each element of the privilege in question.”).
We quash the order of the hearing officer denying the Department’s discovery request. This cause is remanded to the hearing officer with directions to conduct an in camera inspection of the remainder of Schuler’s business records.
Petition granted; writ issued; order quashed.