FLORIDA POWER & LIGHT COMPANY, PETITIONER,
v.
MARK W. HICKS, RESPONDENT
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Florida Power & Light appealed a circuit court order requiring production of attorney-client privileged documents based on relevance and necessity. The appellate court quashed the order, holding that attorney-client privilege cannot be overcome merely by showing relevance and need, unlike the work product doctrine.
Attorney-client privilege cannot be defeated by an opponent's showing of relevance and necessity. The circuit court erred in ordering production of privileged documents based solely on relevance and the inability to obtain the information from another source.
[1] Certiorari is the appropriate remedy for orders requiring the disclosure of attorney-client privileged documents.
[2] The attorney-client privilege is not defeated by a showing of relevance and necessity by the opposing party.
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Join FLexlaw to unlock all legal intelligence“Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent's showing of relevance and necessity.”
Establishes the core legal principle that privilege cannot be overcome by need or relevance
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Join FLexlaw to unlock all legal intelligenceRespondent sued FP&L for violation of the Florida Whistle Blower Act, intentional infliction of emotional distress, and fraud. FP&L claimed attorney-c…
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We grant Florida Power & Light Co.’s petition for writ of certiorari and quash the circuit court order requiring production of attorney-client privileged documents because they were relevant to the plaintiffs causes of action.
Respondent sued FP & L for violation of the Florida Whistle Blower Act, intentional infliction of emotional distress, and fraud. Respondent filed a request for production; FP & L responded with objections based on the attorney-client privilege and filed a privilege log. After respondent filed a motion to compel, the circuit court required an in camera inspection of those documents for which FP & L claimed a privilege.
Following the inspection, the court ordered production. It sustained the privilege objections, but found that for certain documents, “relevance require[d] breaking of a privilege and production.” It held that such relevant documents contained information that could not reasonably be obtained from another source, so that the “privilege should be broken and the documents provided.”
Certiorari is the appropriate vehicle to obtain review of orders requiring cat-out-of-the-bag disclosure of privileged documents. See, e.g., Bd. of Trs. of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 457 (Fla.2012) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)).
Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent’s showing of relevance and necessity. Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068 (Fla.2011). As the Supreme Court has written, the attorney-client privilege
. is not concerned with the litigation needs of the opposing party. Instead, the purpose of the privilege is to “encourage full and frank communication” between the attorney and the client. This significant goal of the privilege would be severely hampered if an insurer were aware that its communications with its attorney, which were not intended to be disclosed, could be revealed upon request by the insured. Moreover, we note that there is no exception provided under section 90.502[, Florida Statutes] that allows the discovery of attorney-client privileged communica*1076tions where the requesting party has demonstrated need and undue hardship.
Id. at 1068 (internal citations omitted). An order compelling production of attorney-client communications based on relevance and need constitutes a departure from the essential requirements of law. See Tumelaire v. Naples Estates Homeowners Ass’n, 137 So.3d 596, 599 (Fla. 2d DCA 2014).
Contrary to respondent’s argument, the circuit court’s order was not based on the crime-fraud exception. The circuit court sustained the privilege objections and did not make a finding that the crime-fraud exception applied; to do so would have required an evidentiary hearing after the in camera review. See Merco Grp. of the Palm Beaches, Inc. v. McGregor, 162 So.3d 49, 39 Fla. L. Weekly D1594, 2014 WL 3729906 (Fla. 4th DCA July 30, 2014).
TAYLOR and CONNER, JJ., concur.
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Tedrow v. Cannon, 186 So. 3d 43 (Fla. 2d DCA 2016)…, 1206 (Fla. 2d DCA 2002) (“[U]ndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case.” (citations omitted)); Fla. Power & Light Co. v. Hicks, 162 So. 3d 1074, 1075-76 (Fla. 4th DCA 2015) (granting certiorari and quashing order requiring defendant to disclose privileged documents that were relevant to plaintiffs cause of action against defendant because “attorney-client privilege is not defeated by an opp…
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Am. Airlines, Inc. v. The Est. of Michael Cimino (Fla. 4th DCA 2019)…dgment.” Estate of Schleusener v. Stuart, 462 So. 2d 129, 130 (Fla. 4th DCA 1985). “Certiorari is the appropriate vehicle to obtain review of orders requiring cat-out-ofthe-bag disclosure of privileged documents.” Fla. Power & Light Co. v. Hicks, 162 So. 3d 1074, 1075 (Fla. 4th DCA 2015) (citing Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 457 (Fla. 2012)). In seeking a writ, Petitioners argue that the trial court failed to conduct an in camera hearing before i…
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Akerman, LLP v. Cohen (Fla. 4th DCA 2022)…ee Am. Airlines, Inc. v. Cimino, 279 So. 3d 200, 203 (Fla. 4th DCA 2019) (“Certiorari is the appropriate vehicle to obtain review of orders requiring cat-out-of-the-bag disclosure of privileged documents.” (quoting Fla. Power & Light Co. v. Hicks, 162 So. 3d 1074, 1075 (Fla. 4th DCA 2015))). Upon considering the record and arguments presented, we grant the petitions, quash both orders, explain our reasoning for determining the orders depart from the essential requirements of law, and remand for further proc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- Bd. OF Trs. OF the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450 (Fla. 2012)
- Peter R. Genovese, M.D. v. Provident Life & Accident Ins. Co., 74 So. 3d 1064 (Fla. 2011)
- Merco Grp. OF THE Palm Beaches, Inc. v. McGREGOR, 162 So. 3d 49 (Fla. 4th DCA 2014)
- Louisa Tumelaire v. Naples Ests. Homeowners Ass'n, Inc., 137 So. 3d 596 (Fla. 2d DCA 2014)