SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., PETITIONER,
v.
LORI FELLER, LEGAL GUARDIAN, ETC., RESPONDENT
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Sedgwick Claims Management Services sought a writ of certiorari to challenge a trial court order overruling its work product and attorney-client privilege objections to production of documents from its case file. The court held that the trial court erred in finding these privileges inapplicable and granted certiorari relief.
The trial court erred on all grounds: (1) work product privilege retains qualified immunity after original litigation terminates regardless of whether subsequent litigation is related; (2) attorney-client privilege cannot be found inapplicable without the trial court conducting an in-camera inspection of the documents; (3) counsel's statement at a hearing was insufficient to waive the client's privilege objections properly asserted in writing; and (4) an insufficient privilege log does not constitute waiver absent a serious discovery violation.
[1] Work product privilege retains its qualified immunity after the original litigation terminates, regardless of whether the subsequent litigation is related.
[2] A trial court must conduct an in-camera inspection of documents before ordering their production when the opposing party claims attorney-client privilege.
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Join FLexlaw to unlock all legal intelligence“It is well-established that 'work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.'”
Establishes that work product privilege survives termination of original litigation and applies to subsequent cases with different issues
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Join FLexlaw to unlock all legal intelligenceSedgwick filed privilege objections to discovery requests based on work product and attorney-client privilege. The documents at issue were prepared in…
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Petitioner seeks a writ of certiora-ri, challenging an order overruling its work product and attorney-client privilege objections to the production of parts of its case file. Certiorari review is generally appropriate in this context, State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493 (Fla. 5th DCA July 3, 2014) (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999)), and we find certiorari relief to be appropriate in this case.
First, the trial court .erred by finding the work product privilege to be inapplicable on grounds that the current case between these parties involves issues different than those presented in the prior litigation for which the documents were prepared. See Butler v. Harter, 152 So.3d 705, 711 (Fla. 1st DCA 2014) (“It is well-established that ‘work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.’ ” (quoting Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So.2d 1087, 1088 (Fla. 1st DCA 1981))).
Second, the trial court erred by finding the attorney-client privilege inapplicable without ever reviewing the documents at issue. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (“[T]he trial court should not have ordered production of these communications without first conducting an in-camera inspection thereof.”); Alliant Ins. *1254 Servs. Inc. v. Riemer Ins. Grp., 22 So.3d 779, 781 (Fla. 4th DCA 2009) (“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.”) (citations omitted).
Third, the trial court erred by finding that the attorney-client privilege was waived by counsel’s statement at a hearing. Although counsel stated, upon prompting by the trial judge, that he did not anticipate objecting to the discovery requests, this exchange was not sufficient to waive the client’s objections, which were later timely asserted in counsel’s written responses to the requests. See generally, Charles W. Ehrhardt, Florida Evidence § 502.8 (2014 ed.) (“The client is the holder of the privilege and is the only person who may waive it.”) (citations omitted).
Finally, the trial judge erred by finding that the privilege was waived by counsel’s filing of a privilege log which the judge viewed as insufficient due to its lack of detail. The log was not produced in response to a trial court order and could have been amended to cure any defects had counsel been given that opportunity. Although a waiver of privileges can ultimately serve as a sanction for failing to follow discovery rules, “Florida’s courts generally recognize that an implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but resorted to only when the violation is serious.” Bankers Sec. Ins. Co. v. Symons, 889 So.2d 93, 95 (Fla. 5th DCA 2004) (citations omitted).
Accordingly, we grant certiorari, quash the ordér on review, and remand for further proceedings consistent with this opinion.
LAWSON, COHEN and BERGER, JJ., concur.
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GEICO Gen. Ins. Co. v. Feller, 172 So. 3d 1013 (Fla. 5th DCA 2015)…nd quash the trial court’s order overruling GEICO’s objections, which were based upon claims of work-product and attorney-client privilege. As the facts and issues are the same in this case as in Sedgwick Claims Management Services, Inc., v. Feller, 163 So. 3d 1252 (Fla. 5th DCA 2015), we adopt the discussion and analysis set forth in Sedgwick. Accordingly, we grant certiorari, quash the order on review, and remand for further proceedings consistent with this opinion. PETITION GRANTED. BERGER, WALLIS, a…
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LAS Olas River House Condo. Ass'n, Inc. v. Lorh, LLC, 181 So. 3d 556 (Fla. 4th DCA 2015)…ing production of notes from insurer’s claim file, as privilege log descriptions such as “conversations with defense counsel” and “summary of conversation with defense counsel” were sufficient); see also Sedgwick Claims Mgmt. Servs., Inc. v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015) (determining the trial court erred in finding that insufficient detail in a privilege log waived the attorney-client privilege, where counsel could have been given opportunity to amend log to cure any defects, and noting th…
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Owners Ins. Co. v. Armour, 303 So. 3d 263 (Fla. 2d DCA 2020)…ntially, the magistrate appears to have concluded that any privilege had been waived by the March 29 letter. But it is axiomatic that an attorney cannot waive a privilege objection for a client. See Sedgwick Claims Mgmt. Servs., Inc. v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015) ("The client is the holder of the privilege and is the only person who may waive it." (quoting Charles W. Ehrhardt, Florida Evidence § 502.8 (2014 ed.))); Nova Se. Univ., Inc. v. Jacobson, 25 So. 3d 82, 86 (Fla. 4th DCA…
Previewing 3 of 8 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. Boecher, 733 So. 2d 993 (Fla. 1999)
- Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981)
- Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002)
- Bankers Sec. Ins. Co. v. Helene Symons and Chris Symons, 889 So. 2d 93 (Fla. 5th DCA 2004)
- Alliant Ins. Servs., Inc. v. Riemer Ins. Grp., 22 So. 3d 779 (Fla. 4th DCA 2009)
- Butler v. Harter, 152 So. 3d 705 (Fla. 1st DCA 2014)
- State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493 (Fla. 5th DCA 2014)