LACARETTA RESTAURANT AND ZENITH INSURANCE COMPANY, PETITIONERS,
v.
ENGELDS ZEPEDA, RESPONDENT
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In a workers' compensation discovery dispute, the Florida First District Court of Appeal granted a petition for certiorari, quashing a Judge of Compensation Claims' discovery order that compelled disclosure of two internal notes. The court held that the notes were protected by attorney-client privilege because they memorialized communications between the employer/carrier and its in-house counsel regarding legal services.
The court held that both notes are protected by attorney-client privilege because they clearly constitute or memorialize communication from the attorney to the employer/carrier made in the rendition of legal services. The court granted the petition for certiorari and quashed the discovery order to the extent it compelled disclosure of these notes, without reaching the work product privilege claim.
[1] Discovery orders compelling the disclosure of privileged information may cause material injury of an irreparable nature, satisfying the irreparable harm requirement for c…
[2] A departure from the essential requirements of law, for purposes of certiorari review, requires more than mere legal error; it necessitates an inherent illegality or irre…
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Join FLexlaw to unlock all legal intelligence“The required 'departure from the essential requirements of law' means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.”
Establishes the high standard for certiorari review and what constitutes a departure from essential legal requirements
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Join FLexlaw to unlock all legal intelligenceThe employer/carrier maintained an internal paperless communication system containing two notes at issue: Note A, prepared by an adjuster to memoriali…
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In this workers’ compensation case, the Employer/Carrier (E/C) petitions for writ of certiorari from a discovery order entered by the Judge of Compensation Claims. Although the order is broad, the E/C challenges only the compelled disclosure of “Note A” and “Note B,” which are entries in the E/C’s internal paperless communication/documentation system, the first note made by the adjuster to memorialize a meeting with in-house counsel, and the second note made by in-house counsel herself. The E/C asserts that both notes are protected by the attorney-client privilege and the work product privilege. For the reasons that follow, we grant the petition, and quash the JCC’s order in part, to the extent it orders disclosure of Notes A and B.
To obtain a writ of certiorari, a petitioner must show there has been “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). The latter requirements constitute irreparable harm, and irreparable harm is a condition precedent to invoking certiorari jurisdiction that should be considered first. See Spry v. Prof'l Employer Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008). Discovery of information protected by privilege “ ‘may reasonably cause material injury of an irreparable nature.’ ” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (quoting Martin-Johnson v. Savage, 509 So.2d 1097, 1100 (Fla.1987)). Thus, it appears that if there has been a departure from the essential requirements of law re*1093garding either alleged privilege, the harm is indeed irreparable.
“Departure from the essential requirements of law” is defined the same way across all uses of certiorari review: “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Padovano, Florida Appellate Practice § 18.10, at 367 (2010 ed.) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)). As the Florida Supreme Court said,
The required “departure from the essential requirements of law” means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.
Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla.1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla.1985)).
It appears to us that there is legal error in the disclosure of both notes, because both clearly constitute or memorialize communication from the attorney to the E/C made in the rendition of legal services. Further, this error rises to the level of inherent illegality, which would result in a gross miscarriage of justice were the order to stand, because it would have a chilling effect on communications between attorneys and clients. See Hagans v. Gatorland Kubota, LLC/Sentry Ins., 45 So.3d 73, 77 (Fla. 1st DCA 2010). Because we sustain the claim of attorney-client privilege, we do not reach the claim of work product privilege.
Consequently, the petition is GRANTED, and the order QUASHED in part, to the extent it orders disclosure of Notes A and B.
PADOVANO, MARSTILLER, and MAKAR, JJ., concur.
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Safeco Ins. Co. OF Ill. v. Earle Rader, Jr., 132 So. 3d 941 (Fla. 1st DCA 2014)…ioner must show there has been ‘(1) a [*945] departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Lacaretta Restaurant v. Zepeda, 115 So. 3d 1091, 1092 (Fla. 1st DCA 2013) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla.2004)). Recently, our supreme court reiterated that “[t]he threshold question that must be reached first [when determining whether to grant certiora…
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Lender Processing Servs., Inc. v. ARCH Ins. Co., 183 So. 3d 1052 (Fla. 1st DCA 2015)…CA 2006). As we have explained, “[I]t appears that if there has been a departure from the essential requirements of law regarding either alleged privilege [attorney-client or work-product], the harm is indeed irreparable.” Lacaretta Rest. v. Zepeda, 115 So. 3d 1091, 1092-93 (Fla. 1st DCA 2013). Turning to the merits of the issue, Petitioner contends that the trial court’s overruling of its attorney-client privilege objections constituted a departure from the essential requirements of the law. Section 90.502,…
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Bjon LEE v. Condell, 208 So. 3d 253 (Fla. 3d DCA 2016)…v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). “The latter requirements constitute irreparable harm, and irreparable harm is a condition precedent to invoking certiora-ri jurisdiction that should be considered first.” Lacaretta Rest. v. Zepeda, 115 So. 3d 1091, 1092 (Fla. 1st DCA 2013) (citing Spry v. Prof'l Employer Plans, 985 So. 2d 1187, 1188 (Fla. 1st DCA 2008)); see also Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (stating that irrepar…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haines City Cmty. Dev. v. Leila Heggs, 658 So. 2d 523 (Fla. 1995)
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Combs v. State, 436 So. 2d 93 (Fla. 1983)
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- Reeves v. Fleetwood Homes OF Fla., Inc., 889 So. 2d 812 (Fla. 2004)
- Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)
- Spry v. Professional Employer Plans, 985 So. 2d 1187 (Fla. 1st DCA 2008)
- Hagans v. Gatorland Kubota, 45 So. 3d 73 (Fla. 1st DCA 2010)