DAVID LEONHARDT, PETITIONER,
v.
ZULFIKAR MASTERS, MASTERS INTERNATIONAL TRADING CORPORATION, INC., MASTERS MARKETING CO. LTD., AND MASTERS INT'L LTD., RESPONDENTS
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Petitioner sought a writ of certiorari challenging an order compelling production of documents claimed to be privileged trade secrets. The court denied the petition, holding that petitioner waived the privilege by failing to raise it at the trial court level and that raising it for the first time on appeal is procedurally improper.
A party may not raise a privilege objection for the first time on appeal. Failure to object to discovery at the earliest possible time constitutes a waiver, and raising the privilege belatedly on appeal—rather than in the trial court—is procedurally improper and does not warrant certiorari review.
[1] A party seeking a writ of certiorari to review an order compelling the production of documents must raise the privilege objection in the trial court.
[2] Failure to raise a privilege objection in the trial court ordinarily constitutes a waiver of that 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“Raising the privilege for the first time on appeal, as petitioner is doing here, is different from raising it belatedly in the trial court, as was done in Gross.”
Establishes the distinction between permissible belated objection in trial court versus impermissible first-time objection on appeal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court issued orders requiring production of documents. Petitioner objected on trade secret grounds but was given an opportunity for in-camer…
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KLEIN, Judge.
Petitioner seeks a writ of certiorari from, an order compelling production of documents, arguing that they are privileged as trade secrets. Respondent argues that there were several orders requiring production, and petitioner was given an opportunity for the court to inspect documents in camera to determine whether they were privileged, but did not avail himself of it. Petitioner responds that we can consider the issue for the first time on appeal, citing our opinion in Allstate Insurance Co. v. Langston, 627 So. 2d 1178 (Fla. 4th DCA 1993), quashed in part, 655 So. 2d 91 (Fla.1995).
In Langston the trial court ordered production of documents over a work product objection. We granted certiorari, quashed the order of production, and directed the trial court to conduct an in-camera examination to determine if the work product privilege applied. In addition, we noted that the petitioner was also raising the attorney-client privilege, which had not been raised in the trial court, in regard to the same documents. We concluded that, while failure to object on that ground would ordinarily constitute a waiver, the trial court would not be prohibited from considering that objection along with the work product objection on remand. As authority we cited Gross v. Security Trust Co., 462 So. 2d 580 (Fla. 4th DCA 1985), in which we stated that a failure to object to discovery at the earliest possible time does not prevent the trial court from subsequently considering whether an attorney-client communication is privileged. In Gross the objection to production had initially been work product, and the attorney-client privilege had not been raised until a motion for -rehearing directed to the trial court’s order of production.
Raising the privilege for the first time on appeal, as petitioner is doing here, is different from raising it belatedly in the trial court, as was done in Gross. Nor does Lang-ston support petitioner, because we granted certiorari in that case on the basis of the work product privilege, which had been properly raised in the trial court.
We therefore deny the petition for certiorari in regard to the order requiring production. We dismiss the petition as it pertains to the sanction of attorney’s fees and costs for discovery violations. Adequate review of that portion of the order can be obtained when it is reduced to a judgment.
GUNTHER, C.J., and SHAHOOD, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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First Call Ventures, LLC v. Nationwide Relocation Servs., Inc., 127 So. 3d 691 (Fla. 4th DCA 2013)…efore an in-camera inspection is not necessary, nor was an in-camera inspection requested before the trial court. Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below. See Leonhardt v. Masters, 679 So. 2d 73, 74 (Fla. 4th DCA 1996). Because production is subject to a confidentiality order, the production of documents should be delayed, as in Columbia Hospital “until the parties ha[ve] an opportunity to negotiate a confidentiality agreement. In the even…
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Holt v. Keetley, 250 So. 3d 206 (Fla. 2d DCA 2018)…First Call Ventures, LLC v. Nationwide Relocation Servs., Inc., 127 So. 3d 691, 693 (Fla. 4th DCA 2013) ("Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below." (citing Leonhardt v. Masters, 679 So. 2d 73, 74 (Fla. 4th DCA 1996))); Johnson v. State, 348 So. 2d 646, 647 (Fla. 3d DCA 1977) ("First, we note that defendant was tried jointly with a co-defendant and counsel for co-defendant objected to the above remark and requested a curative instructi…
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Natural Solutions Corp. v. Terrabind Int'l, Inc., 840 So. 2d 387 (Fla. 4th DCA 2003)…s James Stroup and Farris Martin. . We do not address petitioners' argument that only the bankruptcy trustee could waive NSC's attorney-client privilege as this issue was not raised and presented to the trial judge. See, e.g., Leonhardt v. Masters, 679 So. 2d 73, 74 (Fla. 4th DCA 1996); Sparta State Bank v. Pape, 477 So. 2d 3, 4 (Fla. 5th DCA 1985).…
Authorities Cited
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- Gross v. Sec. Tr. Co., 462 So. 2d 580 (Fla. 4th DCA 1985)
- Allstate Ins. Co. v. Langston, 627 So. 2d 1178 (Fla. 4th DCA 1993)