CENTURY BUSINESS CREDIT CORPORATION, A NEW YORK CORPORATION, PETITIONER,
v.
FITNESS INNOVATIONS AND TECHNOLOGIES, INC., A DELAWARE CORPORATION, RESPONDENT
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A trial court has discretion to find waiver of privilege for failure to file an adequate privilege log, and certiorari is appropriate to review for abuse of discretion.
Petitioner failed to file a privilege log for requested documents, and the trial court found a waiver of privilege. The log, when eventually filed, wa…
The full statement of facts, procedural history, and disposition for this case are member content.
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KLEIN, J.
We deny a petition for certiorari directed to an order finding a waiver of privilege in regard to the production of documents because of the failure of the petitioner to file a privilege log. TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). Petitioner contends that our decision in TIG is incorrect and should be reconsidered. Petitioner interprets TIG to mean that any failure to file a privilege log constitutes a waiver as a matter of law, an interpretation we did not intend. On the contrary, trial courts have discretion in discovery matters. Nat’l Convenience Stores, Inc. v. Embrey, 375 So. 2d 358 (Fla. 4th DCA 1979) and cases cited. It follows that a finding of waiver for failure to file a proper privilege log, which is a violation of rule 1.280(b)(5), involves the exercise of discretion.1
Petitioner relies heavily on Bankers Security Ins. Co. v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004), in which the court held that failing to submit a privilege log by the due date for production does not automatically result in a waiver. That holding, with which we do not disagree, is not inconsistent with TIG. In Symons the court quashed an order finding a waiver based solely on the late filing of the log, with no examination of the adequacy of the log which was ultimately filed. In the present case, however, the log was not only months late, but found by the court to be “completely inadequate.” Petition denied.
SHAHOOD and GROSS, JJ., concur. . Certiorari will, however, lie to review an abuse of discretion in a discovery matter where there would otherwise be irreparable injury. Am. Health Plan, Inc. v. Kostner, 367 So. 2d 276 (Fla. 3d DCA 1979).
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Bainter v. League OF Women Voters OF Fla., 150 So. 3d 1115 (Fla. 2014)…submission of a privilege log — and the non-parties did not expressly make their claim of privilege or produce a privilege log until many months after they withheld the documents. Cf. Century Bus. Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156, 1156-57 (Fla. 4th DCA 2005) (denying a petition for a writ of certiorari “directed to an order finding a waiver of privilege in regard to the production of documents because of the failure of the petitioner to file a privilege log,” where “the log…
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DLJ Mortg. Cap., Inc. v. FOX, 112 So. 3d 644 (Fla. 4th DCA 2013)…ion. We do, however, find that Petitioner’s first two arguments have merit. A trial court has discretion to find a waiver of privilege from the failure to file a privilege log. See Century Business Credit Corp. v. Fitness Innovations & Tech., Inc., 906 So. 2d 1156 (Fla. 4th DCA 2005). However, the failure to file a log should not be applied to categorical assertions of privilege. See Nevin v. Palm Beach Co. Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA 2007). Here, some of the requests appear to include items…
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Andreatta v. Brown (Fla. 1st DCA 2021)…ent privilege. See Sedgwick Claims Mgmt. Servs., Inc. v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015). Waiver is within the court’s discretion, but a waiver finding is not favored. Century Bus. Credit Corp. v. Fitness Innovations & Techs. Inc., 906 So. 2d 1156, 1156 (Fla. 4th DCA 2005); Metabolife Int’l, Inc. v. Holster, 888 So. 2d 140, 141 (Fla. 1st DCA 2004) (explaining court possesses discretion to find waiver on failure of a privilege log); TIG Ins. Corp. Am. v. Johnson, 799 So. 2d 339, 341 (Fla. 4th…
Authorities Cited
- Am. Health Plan, Inc. v. Tully Kostner, 367 So. 2d 276 (Fla. 3d DCA 1979)
- COX v. State, 799 So. 2d 339 (Fla. 1st DCA 2001)
- Bankers Sec. Ins. Co. v. Helene Symons and Chris Symons, 889 So. 2d 93 (Fla. 5th DCA 2004)
- TIG Ins. Corp. OF Am. v. Aben E. Johnson, Jr., 799 So. 2d 339 (Fla. 4th DCA 2001)
- Nat'l Convenience Stores, Inc. v. Embrey, 375 So. 2d 358 (Fla. 4th DCA 1979)