HOWARD LIFSHUTZ, M.D., AND HOWARD LIFSHUTZ, M.D., P.A., PETITIONERS,
v.
THE CITIZENS AND SOUTHERN NATIONAL BANK OF FLORIDA, A NATIONAL BANKING ASSOCIATION, SUCCESSOR BY MERGER TO LANDMARK FIRST NATIONAL BANK OF FORT LAUDERDALE, FLORIDA, RESPONDENT
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The Florida Fourth District Court of Appeal granted a petition for writ of certiorari, quashing a trial court order compelling discovery of work product materials prepared by an investigator-consultant. The court held that the trial court improperly rejected work product privilege claims but correctly rejected attorney-client privilege claims, and remanded for further proceedings to determine whether work product protection applies.
Work product privilege was improperly rejected by the trial court and that portion of the order is quashed. Attorney-client privilege was properly rejected because the consultant was acting as Petitioners' agent, not counsel's agent. The case is remanded to determine whether the materials qualify for work product protection based on whether litigation was anticipated when the information was gathered.
[1] A trial court order compelling discovery that rejects a claim of work product privilege departs from the essential requirements of law and is not adequately reviewable by…
[2] Information gathered by a consultant acting as a party's agent, rather than as an agent of counsel, is not protected by attorney-client privilege.
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Join FLexlaw to unlock all legal intelligence“With respect to work product disclosure, the order departs from the essential requirements of law and there is no adequate remedy on appeal.”
Establishes that the trial court's rejection of work product privilege was reversible error warranting certiorari review rather than ordinary appeal.
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Join FLexlaw to unlock all legal intelligencePetitioners Lifshutz objected to producing notes, memos, and investigative material prepared by an investigator-consultant, as well as related testimo…
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PER CURIAM.
We grant'this petition for writ of certiorari and quash that part of the trial court order granting the Respondent-Plaintiffs motion to compel, to the extent that the order rejects Petitioners’ claim of privilege based on work product. The objections are to the production of certain notes, memos, and other investigative material, and to related testimony by Petitioners’ investigator-consultant. Alachua Gen. Hosp. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So. 2d 556 (Fla. 3d DCA 1963). See also Vann v. State, 85 So. 2d 133 (Fla.1956). With respect to work product disclosure, the order departs from the essential requirements of law and there is no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987). However, we affirm, in part, the trial court order to the extent that Petitioners’ objections were founded on an attorney-client privilege. We find no abuse of trial court discretion in determining that the consultant in question was acting as Petitioners’ agent, and not as the agent of counsel in the course of receiving and working on the information in question.
On remand, the trial court must still resolve whether claims by or against Petitioners were pending, with respect to which liti gation was anticipated, at the time the consultant gathered the information in question, and, if so, whether Petitioners have demonstrated that the information in question was gathered in anticipation of the claim. If the court so finds, the material contained in the investigator-consultant’s report is privileged, even if not prepared in anticipation of the specific claim at issue in this case. See Charles B. Pitts Real Estate, Inc. v. Hater, 602 So. 2d 961 (Fla.2d DCA 1992); Ruhland v. Giheault, 496 So. 2d 1243 (Fla. 5th DCA 1986); State v. Rabin, 495 So. 2d 257 (Fla.3d DCA 1986); Alachua Gen. Hosp., 403 So. 2d 1087. See also Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984).
Additionally, a hearing is necessary in order to resolve whether Plaintiff, in any event, is entitled to discover the factual information in question, as claimed in his response, on the basis of a demonstrated need and hardship. Proctor & Gamble Co. v. Smiley, 462 So. 2d 1188 (Fla. 1st DCA 1985); Alachua Gen. Hosp., 403 So. 2d 1087. The record reflects that those issues remain unresolved.
GUNTHER, STONE and FARMER, JJ., concur. ON MOTION FOR CLARIFICATION
PER CURIAM.
We grant Petitioner’s motion for clarification and amend our opinion of September 22, 1993, by striking the first sentence of the second paragraph of the opinion and substituting the following sentence:
[Editor’s Note: Substitution incorporated into published opinion].
In all other respects, the opinion is republished in full.
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Nat'l CAR Rental Sys., Inc. v. Kosakowski, 659 So. 2d 455 (Fla. 4th DCA 1995)…type of discovery order properly reviewable by certiorari. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987); Healtktrust, Inc. v. Saunders, 651 So. 2d 188 (Fla. 4th DCA 1995); Lifshutz v. Citizens and Southern National Bank of Florida, 626 So. 2d 252 (Fla. 4th DCA 1993). Once a litigant is compelled to produce work product, the cat is out of the bag and the harm is done. Defendant National Car rented the vehicle which was being driven by decedent Jean Bosch, whose faculties plaintiff contends w…
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ICI Explosives USA Inc. v. Venlin E. Douglas, 643 So. 2d 707 (Fla. 4th DCA 1994)…PER CURIAM. We grant certiorari and quash the trial court’s order compelling discovery of information which is work product. Lifshutz v. Citizens and Southern National Bank of Florida, 626 So. 2d 252 (Fla. 4th DCA 1993). Petitioners are defendants in an accident case. Respondent plaintiffs, while deposing defendants’ employees who investigated the accident in anticipation of litigation, asked them questions regarding what witnesses told them…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- State v. Rabin, 495 So. 2d 257 (Fla. 3d DCA 1986)
- Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984)
- Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)
- Vann v. State, 85 So. 2d 133 (Fla. 1956)
- Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981)
- Shawmut van Lines, Inc. v. Small, 148 So. 2d 556 (Fla. 3d DCA 1963)
- Charles B. Pitts Real Est., Inc. v. Hater, 602 So. 2d 961 (Fla. 2d DCA 1992)