JACQUELYN BENNETT AND BOBBI SUE MILLER, PETITIONERS,
v.
MARIE-CHRISTINE BERGES, CHRISITAN DEVOCHT AND JEAN-LUC DEVOCHT, RESPONDENTS

Fla. 4th DCA | 2012-03-14
No. 4D10-4874
WARNER, POLEN and DAMOORGIAN, JJ., concur.
84 So. 3d 373 Florida District Court of Appeal, Fourth District (2012) Positive Treatment
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The petition for certiorari review of an order compelling an in camera inspection of documents claimed to be protected by attorney-client privilege is denied as premature.


Headnotes

[1] Certiorari review is premature for an order requiring the submission of allegedly privileged documents for an in camera inspection, as no irreparable harm has been demons…

[2] A party claiming attorney-client privilege is entitled to an in camera review by the trial court of documents sought by an opposing party before disclosure is compelled.

Previewing 2 of 4 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

Facts & Procedural History

Petitioners sought certiorari review of a trial court order directing their former attorney to produce documents for an in camera review, which Petiti…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners, Jacquelyn Bennett and Bobbi Sue Miller, seek certiorari review of an order directing their former attorney to produce certain documents, for an in camera review. For reasons discussed herein, the petition is denied. This is a probate case, the details of which are discussed in depth in two prior opinions from this Court. See Bennett v. Berges, 32 So.3d 771 (Fla. 4th DCA 2010) (hereinafter “Bennett I ”); Bennett v. Berges, 50 So.3d 1154 (Fla. 4th DCA 2010) (hereinafter “Bennett II”).

Relevant to this petition, a dispute arose as to the enforceability of a settlement agreement, which determined a 2005 will would be admitted to probate. Bennett I, 32 So.3d at 771. Because it was unclear whether the settlement agreement was enforceable, this Court reversed and remanded for an evidentiary hearing on that issue. Id. at 771-72. Pursuant to Bennett I, Respondents filed a motion to determine the validity of the settlement agreement and set the motion for a three-day eviden-tiary hearing.

In connection with the hearing, Respondents subpoenaed Petitioners’ former attorney to produce:

Any and all communications and/or documentation which set forth directions, affirmations, and/or acquiesces (sic) received from Jacquelyn Bennett and/or Bobbi Sue Miller authorizing the presentation to the court of the “agreed upon” Formal Settlement Agreement, Order Requiring the Distributions, Releases and Stipulations for Dismissal, and/or any and all other documents anticipated to be part of same which had been anticipated to be signed by Respondents Jacquelyn Bennett and/or Bobbi Sue Miller on or about May 29, 2008.

In response, Petitioners objected on the grounds that the documents subject to the subpoena were protected by the attorney-client privilege. Respondents then moved for an order compelling the attorney to produce the requested documents.

On November 11, 2010, prior to any hearing, the attorney provided the parties with a letter listing the documents responsive to the subpoena: (1) an April 30, 2008 email from Jacquelyn Bennett to his assistant; (2) a copy of the formal settlement agreement with notations and writing on it; (3) a May 1, 2008 email exchange between Jacquelyn Bennett and himself; (4) a second May 1, 2008 email between Jacquelyn Bennett and himself; (5) a May 8, 2008 email between Jacquelyn Bennett and himself; and (6) a May 13, 2008 email between Jacquelyn Bennett and himself. His letter indicated that he was preserving his privilege assertion.

On November 17, 2010, the trial court heard Respondents’ motion to compel, including the parties’ arguments with respect to whether or not the documents subpoenaed were protected by the attorney-client privilege. At the conclusion of the hearing, the trial court ordered the documents in the attorney’s privilege log to be produced for an in camera inspection within ten days. Petitioners seek certiora-ri review of that order.

For certiorari to lie, a petitioner must demonstrate that the trial court departed from the essential requirements of law resulting in material harm of an irreparable nature. S & I Invs. v. Payless Flea Market, Inc., 10 So.3d 699, 701 (Fla. 4th DCA 2009); see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). A trial court’s order erroneously compelling discovery of information protected from *375discovery by the attorney-client privilege is renewable by certiorari. S & I Invs., 10 So.3d at 701; see also Langston, 655 So.2d at 94. “The basis for allowing certiorari review of certain discovery orders is that discovery of protected material could result in letting the ‘cat out of the bag,’ and injury could result if such information was disclosed.” Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336, 339 (Fla. 5th DCA 2005). When a party is required to turn over protected documents, they are beyond relief. See Langston, 655 So.2d at 94 n. 2.

If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure. See Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera review of the documents by the trial court prior to disclosure); see also Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (stating that the trial court should have conducted an in camera inspection of documents before compelling disclosure when a discovery request, on its face, required disclosure of attorney-client communications); Zanardi v. Zanardi, 647 So.2d 298, 298 (Fla. 3d DCA 1994) (stating that the petitioner is entitled to an in camera review for the trial court to determine whether the assertion of attorney-client privilege is valid).

Here, the trial court properly ordered an in camera review of the relevant documents claimed to be privileged. The order does not compel Petitioners to produce the documents to Respondents. After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners’ objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature. See Cape Canaveral, 917 So.2d at 340 (holding cer-tiorari review was premature because no irreparable harm had been demonstrated where the order under review merely required documents to be produced for an in camera inspection and no discovery had yet been ordered); Gaton v. Health Coal., Inc., 774 So.2d 59 (Fla. 3d DCA 2000) (certiorari review of an order requiring submission of documents allegedly protected by the trade secret privilege to the courts for an in camera inspection was premature because no production had been ordered to the opposing party). But see Cebrian By & Through Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993) (granting a writ of certiorari and quashing an order requiring in camera inspection of certain HRS investigation reports because the shield law found in section 415.52(2), Florida Statutes (1990), created a privilege for such reports; thus, an in camera inspection was not necessary to determine whether the material was or was not protected).

Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.

Petition Denied.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Patrowicz v. Wolff, 110 So. 3d 973 (Fla. 2d DCA 2013)
    …lling & Gilbert, P.A. v. Pope, 756 So. 2d 201, 201 (Fla. 2d DCA 2000). “A trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So. 3d 373, 374-75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375.…
  • Lyons v. Sanford D. Lyons, 162 So. 3d 212 (Fla. 4th DCA 2015)
    …ctions differently than it would had the objection been made at a deposition of the non-party records custodian. Any claim of privilege must be ruled on and in camera inspection conducted prior to production of such documents. See Bennett v. Berges, 84 So. 3d 373, 374-75 (Fla. 4th DCA 2012); accord Patrowicz, 110 So. 3d at 974. This is also true for other privileges. See, e.g., Russell, 690 So. 2d at 744 (psychotherapist-patient privilege). Indeed, in both Patrowicz and Russell, the courts granted the petiti…
  • Brinkmann v. Petro Welt Trading, 324 So. 3d 574 (Fla. 2d DCA 2021)
    …ntial requirements of the law resulting in a material injury that cannot be corrected on appeal. Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004). reviewed in camera by the trial court prior to their disclosure." (citing Bennett v. Berges, 84 So. 3d 373, 375 (Fla. 4th DCA 2012))). Beyond the trial court's failure to conduct an in camera review, however, is the fact that the order under review fails to contain any findings or analysis related to petitioners' privilege and work product objections and…

Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw