MARCUS & MARCUS, P.A., A FLORIDA PROFESSIONAL ASSOCIATION, PETITIONER,
v.
DAVID C. SINCLAIR, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES H. DAVIS, DAVIS TREE FARMS, INC., A FLORIDA CORPORATION, DAVIS TREE FARMS NORTH, INC., ET AL., RESPONDENTS
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Marcus & Marcus, P.A. sought a writ of certiorari to quash a trial court order compelling redelivery of attorney-client privileged documents that the court had released to respondents. The Third District Court of Appeal granted certiorari, finding the trial court departed from the essential requirements of law by ordering disclosure of privileged documents without proper justification.
The court held that the circumstances did not support a finding of knowing or intentional waiver of privilege, that disclosure as a sanction was not commensurate with any alleged misconduct, and that assertion of a 'legal justification' defense alone does not implicate or justify disclosure of the privileged documents. The court quashed the order and remanded with instructions to return the documents to Marcus & Marcus and foreclose respondents' use of them.
[1] A trial court order compelling the redelivery of documents protected by attorney-client or work product privilege, after previously releasing them, may be quashed by writ…
[2] A knowing or intentional waiver of attorney-client or work product privilege does not occur when a party does not deliver privileged documents to an adversary and is unab…
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Join FLexlaw to unlock all legal intelligence“petitioner has demonstrated that the trial court departed from the essential requirements of law causing material injury for which there is no adequate remedy on appeal”
establishes the standard for granting certiorari and the basis for the appellate court's intervention
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Join FLexlaw to unlock all legal intelligenceMarcus & Marcus, P.A. possessed documents protected by attorney-client and work product privilege. The trial court ordered delivery of these documents…
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SHEVIN, Judge.
Marcus & Marcus, P.A., seeks a writ of certiorari to quash a trial court order compelling redelivery of documents protected by attorney-client/work product privilege that the court had previously released to respondents. We grant certiorari and quash the order as petitioner has demonstrated that the trial court departed from the essential requirements of law causing material injury for which there is no adequate remedy on appeal. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94-5 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987).
After multiple in camera reviews of the documents, the court ordered delivery of the documents to respondents. The court concluded that petitioner had waived the privileges, and had asserted affirmative defenses that injected issues regarding the documents into the litigation.
First, we hold that the circumstances in this case do not support a finding that petitioner knowingly or intentionally waived the privileges.1 Petitioner did not deliver the documents to the respondents, see Eastern Air Lines, Inc. v. Gellert, 431 So. 2d 329 (Fla. 3d DCA 1983), and was in no position to take reasonable precautions to avoid disclosure. See Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA), review denied, 704 So. 2d 520 (Fla.1997). Moreover,- the record does not support the conclusion that the privilege was waived based on the documents being jumbled or otherwise misconstrued.
Second, any alleged misconduct does not justify the order directing disclosure of privileged information; a sanction of disclosure is not commensurate with the alleged misconduct. See Eastern Air Lines, Inc. v. U.S. Aviation Underwriters, Inc., 716 So. 2d 340 (Fla. 3d DCA 1998); see also Allstate Ins. Co. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991).
Third, release of the documents is also not justified on the basis that the “legal justification” defense injected the documents into the litigation. That defense, alone, does not implicate the documents disclosed herein and is not a basis for compelling revelation of these privileged documents. See Shafnaker v. Clayton, 680 So. 2d 1109 (Fla. 1st DCA 1996); Long v. Murphy, 663 So. 2d 1370 (Fla. 5th DCA 1995). See also DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994)(work product not discoverable despite assertion of affirmative defense). Although respondents may make the requisite showing to obtain the type of information inadvertently disclosed herein in the future, the privilege is not waived simply by asserting the “legal justification” defense. See Home Ins. Co. v. Advance Machine Co., 443 So. 2d 165 (Fla. 1st DCA 1983).
Finally, “we remind counsel of the well-justified dictate that ‘[a]n attorney who receives confidential documents of an adversary as a result of an inadvertent release is ethically obligated to promptly notify the sender of the attorney’s receipt of the documents.’ ” Abamar Housing & Dev., Inc., 698 So. 2d at 279, quoting The Florida Bar Comm. on Professional Ethics, Op. 93-3 (Feb. 1, 1994). This dictate does not appear to have been followed in this case. See generally General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986).
Based on the foregoing, we grant certiorari, quash the order under review and remand with instructions to order the return of the documents to petitioner, including copies thereof, and to foreclose respondents’ use of the documents for any purpose.
Certiorari granted, order quashed, and cause remanded.
. We find no merit in the argument that pett-tioner lacks standing.
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Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148 (Fla. 3d DCA 2008)…its failed to satisfy the requirements of the September 5 order, such a correctable, and non-prejudicial, violation could not justify the invasion of attorney-client privilege and attorney opinion work product. See Marcus & Marcus, P.A. v. Sinclair, 731 So. 2d 845 (Fla. 3d DCA 1999) (stating any alleged misconduct does not justify disclosure of privileged information because the sanction is not commensurate with the misconduct; quashing order compelling production of privileged documents). III. We conclude…
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Coral Reef OF KEY Biscayne Developers, Inc. v. Lloyd's Underwriters AT London, 911 So. 2d 155 (Fla. 3d DCA 2005)…Coral Reef of Key Biscayne Developers, Inc., 873 So. 2d 339 (Fla. 3d DCA 2003). Because the trial court’s order departs from the essential requirements of the law, we grant the petition for writ of certiorari. See Marcus & Marcus, P.A. v. Sinclair, 731 So. 2d 845 (Fla. 3d DCA 1999). This case arises from an insurance dispute, which has been extensively litigated since 2000. The petitioner owns a rental apartment complex in Key Biscayne, Florida, and had obtained property insurance from Lloyd’s Underwriters…
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Atlas AIR, Inc. v. Greenberg Traurig, P.A., 997 So. 2d 1117 (Fla. 3d DCA 2008)…3d DCA 1998), rev. dismissed, 729 So. 2d 918 (Fla. 1999) (Abamar II); see Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA), rev. denied, 704 So. 2d 520 (Fla.1997) (Abamar 7); Marcus & Marcus, P.A. v. Sinclair, 731 So. 2d 845 (Fla. 3d DCA 1999); and, of particular significance, that it took an unfair, “informational” advantage of its adversary in the process. Abamar II, 724 So. 2d 572; Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1…
Authorities Cited (11 total)
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp. & Joseph J. Packal, 483 So. 2d 505 (Fla. 4th DCA 1986)
- L.B.K., Inc. v. Union Indem. Ins. Co., 431 So. 2d 329 (Fla. 3d DCA 1983)
- 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)
- Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997)
- DeBARTOLO-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994)
- Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991)
- Long v. Murphy, 663 So. 2d 1370 (Fla. 5th DCA 1995)
- E. AIR Lines, Inc. v. United States Aviation Underwriters, Inc., 716 So. 2d 340 (Fla. 3d DCA 1998)