OLD STONE BANK, A FEDERAL SAVINGS BANK, PETITIONER,
v.
JAMES G. FARRIS, ET AL., RESPONDENTS
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Old Stone Bank sought to protect attorney communications regarding a loan transaction from discovery, claiming attorney-client and work product privileges. The appellate court granted the bank's petition for certiorari, holding that voluntary disclosure of one privileged memorandum did not waive privilege as to other similar communications, and remanded for in-camera review to determine which documents qualify for protection.
Production of the Oliver memorandum did not waive attorney-client privilege as to other similarly privileged communications. The fact that privileged communications occur during a transaction later litigated does not eliminate attorney-client privilege. Regarding work product, the bank failed to provide evidence that the documents were prepared in anticipation of litigation, so the trial court's work product ruling was not a departure from the essential requirements of law.
[1] Voluntary disclosure of a single privileged communication does not waive the attorney-client privilege as to all other similarly privileged communications.
[2] The attorney-client privilege is not eliminated simply because privileged communications occur in the course of a transaction that is later litigated.
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Join FLexlaw to unlock all legal intelligence“We conclude that production of the Oliver memorandum did not waive the attorney-client privilege as to other similarly privileged communications.”
Establishes the core holding that disclosure of one privileged document does not waive privilege for all similar communications
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Join FLexlaw to unlock all legal intelligenceAttorney Oliver sent a memorandum to Old Stone Bank regarding a loan transaction. The memorandum was voluntarily disclosed during discovery in subsequ…
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STONE, Judge.
We grant the petition for writ of certiorari and quash an order compelling production of documents purportedly protected by attorney-client and work product privileges.
An attorney representing Old Stone Bank, Oliver, sent a memorandum regarding a loan transaction to the bank. The matter ultimately resulted in this litigation and the Oliver memorandum was voluntarily disclosed during discovery.
Respondent then filed a notice of deposition and a subpoena for production of documents seeking law firm records, including correspondence between the attorney and his client and all of his notes in connection with the loan transaction. Old Stone bank moved for a protective order asserting attorney-client and work product privileges. The trial court required the production.
The parties have not clearly delineated between the attorney-client and work product privileges that are involved. Respondent asserts that work product was not involved because the subpoena sought only transactional, not litigation, files and that disclosure of the Oliver memorandum had waived any privilege. The bank argues that the documents are privileged and that the disclosure of the one document does not waive all privileges as to others. See generally § 90.502, Fla.Stat. (1989); Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1380 (Fla. 1994).
We conclude that production of the Oliver memorandum did not waive the attorney-client privilege as to other similarly privileged communications. The fact that privileged communications occur in the course of a transaction which is later litigated does not eliminate the attorney-client privilege. Cuillo v. Cuillo, 621 So. 2d 460 (Fla. 4th DCA 1993); Skorman v. Hovnanian of Florida, Inc., 382 So. 2d 1376 (Fla. 4th DCA 1980); Florida Mining & Materials Corp. v. Continental Cas. Co., 556 So. 2d 518 (Fla. 2d DCA 1990). The disclosed memorandum does not discuss all of the details surrounding the loan and letter of credit that may be found in the other correspondence and memoranda otherwise protected by an attorney-client privilege. Therefore, this case differs from Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111 (Fla. 4th DCA 1982), where waiver was based on the attorney’s voluntary disclosure of the entire settlement. With regard to the work product claim, Old Stone Bank has offered no evidence in support of its argument that the documents were prepared in anticipation of litigation. Therefore, we cannot say that the trial court’s ruling as it pertains to the assertion of the work product privilege was a departure from the essential requirements of law.
We grant the petition based on the assertion of attorney-client privilege and remand for in-camera review to determine which documents are protected by attorney-client privilege in accordance with Skorman.
DELL, C.J., and PARIENTE, J., concur.
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Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504 (Fla. 2d DCA 2006)…y’s communication regarding non-compete provision in a contract for the sale of a medical practice only served to waive communications with respect to the non-compete provision and not other aspects of the transaction). In Old Stone Bank v. Farris, 647 So. 2d 916 (Fla. 4th DCA 1994), the Fourth District quashed an order compelling disclosure of documents related to a loan trans [*512] action that were protected by the attorney-client privilege. There, the bank’s- attorney had prepared a memorandum concerning…
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Coyne v. Schwartz, 715 So. 2d 1021 (Fla. 4th DCA 1998)…nor did they even argue it at the hearing below. Therefore, we cannot conclude that the trial court’s ruling, as it pertains to the work product doctrine, constituted a departure from the essential requirements of law. See Old Stone Bank v. Farris, 647 So. 2d 916 (Fla. 4th DCA 1994), rev. denied, 659 So. 2d 271 (Fla.1995). Accordingly, we deny the petition as to the claim of work product and dismiss as to the claim of irrelevance. In sum, we grant the petition for writ of certiorari as to the claim of attor…
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AETNA Ins. Co. v. Koganovsky, 661 So. 2d 418 (Fla. 4th DCA 1995)…earing to determine if the materials being sought were protected by the attorney-client privilege. Accordingly, we quash its order and remand for in camera review to determine which documents are protected by the privilege. Old Stone Bank v. Farris, 647 So. 2d 916 (Fla. 4th DCA 1994), rev. denied, 659 So. 2d 271 (Fla.1995). Similarly, because of the absence of any hearing upon the question of work product privilege we further remand to determine same; and if privileged, to make a determination of need and i…
Authorities Cited
- S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)
- Skorman v. Hovnanian OF Fla., Inc., 382 So. 2d 1376 (Fla. 4th DCA 1980)
- Little v. State, 409 So. 2d 1111 (Fla. 3d DCA 1982)
- Fla. Mining & Materials Corp. & David L. Bracewell v. Cont'l Cas. Co., 556 So. 2d 518 (Fla. 2d DCA 1990)
- State v. Louttit, 409 So. 2d 1111 (Fla. 3d DCA 1982)
- Canty v. State, 621 So. 2d 460 (Fla. 4th DCA 1993)