GKK, ETC., PETITIONER,

v.

PETRONILA CRUZ, RESPONDENT.

Fla. 3d DCA | 2018-07-05

No. 3D18–560

Before SALTER, EMAS and LOGUE, JJ.

251 So. 3d 967 Florida District Court of Appeal, Third District (2018) Positive Treatment

Cited by 4 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 court held that a failure to file a privilege log does not waive privilege for categorical assertions of privilege where the categories are plainly protected.

Headnotes

[1] A party's failure to file a privilege log may result in a waiver of privilege, unless the assertion of privilege is category-specific and the category itself is plainly p…

[2] Documents prepared by or on behalf of a party in anticipation of litigation are protected by the work product doctrine.

Previewing 2 of 5 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

Plaintiff served a subpoena duces tecum on an investigator hired by the defendant. Defendant objected, asserting work-product and attorney-client priv…

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

Join FLexlaw to unlock all legal intelligence

Topics

Florida Rule Of Civil Procedure 1.280(B)(5) Privilege Log Motion For Protective Order Subpoena Duces Tecum

Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.280(B)(5) cases and more on FLexlaw

Opinion of the Court

EMAS, J.

GKK, a Partnership, defendant below, seeks a writ of certiorari quashing an order denying GKK's motion for protective order and objections to the scope of a subpoena deuces tecum served by Petronila Cruz, plaintiff below, upon Mitchell Adelman ("Adelman"), an investigator hired by GKK to investigate a slip and fall accident in which Cruz was allegedly injured.

The subpoena duces tecum enumerated seven separate categories of items that Adelman was instructed to bring with him to his deposition.

*969GKK filed an objection to the subpoena duces tecum and moved for a protective order, asserting, inter alia , that the items listed in paragraphs One, Two, Three, Six and Seven sought items protected by the work-product or attorney-client privilege.1 GKK did not file a privilege log for any of these listed items, as required by Florida Rule of Civil Procedure 1.280(b)(5).2

The trial court overruled GKK's objections and denied the motion for protective order. This petition followed.

We grant the petition as it relates to paragraphs One, Six and Seven. While it is true that, as a general rule, a party failing to file a privilege log may be deemed to waive these privileges, see Kaye Scholer LLP v. Zalis, 878 So.2d 447, 449 (Fla. 3d DCA 2004), that general rule is subject to an exception: The finding of a waiver "should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected." Nevin v. Palm Beach Cty. Sch. Bd., 958 So.2d 1003, 1008 (Fla. 1st DCA 2007). In the instant case, the privilege raised as to paragraphs One, Six and Seven are categorical assertions of privilege, and we conclude that the items sought in these paragraphs are plainly protected.3 Therefore, the failure to file a *970privilege log did not waive the privilege as to these categories of items sought. Nevin, 958 So.2d at 1008 ; DLJ Mortg. Capital, Inc. v. Fox, 112 So.3d 644 (Fla. 4th DCA 2013).

However, the same cannot be said as to the items or categories of items sought in paragraphs Two and Three. While some of the items sought may be subject to a privilege, others are not (at least on their face) subject to any privilege, as even petitioner's counsel commendably conceded in oral argument. The failure to file a privilege log waived the assertion of a privilege, and thus we deny the petition as to the items sought in these two paragraphs.

We grant the petition in part, deny the petition in part, withhold formal issuance of the writ, and remand to the trial court for further proceedings consistent with this opinion.

"Under the work product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable." Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 446 (Fla. 3d DCA 2006). "If materials are prepared solely for a purpose other than litigation, they are not protected by the work product privilege. If they were prepared in anticipation of litigation, they will not lose their protected status, even if they were also generated for another purpose." Id. Documents are prepared in "anticipation of litigation" for purposes of the work product doctrine if they were "prepared in response to some event which foreseeably could be made the basis of a claim in the future." Id. at 447. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426, 427-28 (Fla. 1952) (holding that "a party is not entitled...to inspect the statements, memoranda, and other documents constituting the 'work product' of the opposing party as to the matter which is the subject of the litigation" and that examples of such work product include: "(1) written statements of witnesses relating to the occasion on which the injury occurred; (2) statements or reports from agents, officers or employees of the defendant company relating to the accident; and (3) records, investigation sheets, memoranda, and photographs, relating to the accident, including any and all information...received by the defendant's attorneys from investigators and adjusters."); Federal Ins. Co. v. Hall, 708 So.2d 976 (Fla. 3d DCA 1998) (holding that an insurance adjuster's notes are protected work product and compelling their production departs from the essential requirements of law); Goldstein v. Great Atlantic & Pacific Tea Co., 118 So.2d 253, 255 (Fla. 3d DCA 1960) (holding: "Communications, memoranda, and reports passing between the client and his attorneys and his or their employed investigators, relating to the accident, the investigation thereof, and the preparation for the trial...are not available to the opposing party on discovery.") See also Fla. R. Civ. P. 1.280(b)(4), (providing that "a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation" by that party's attorney or insurer "only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.")

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Avatar Prop. & Cas. Ins. Co. v. Mitchell, 314 So. 3d 640 (Fla. 3d DCA 2021)

…ken at accident scene were work-product); State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (finding surveillance photographs “were protected by the work product privilege”) (citations omitted); see also GKK v. Cruz, 251 So. 3d 967, 969 n.3 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ . . . if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’”) (citation omitted); Liberty Mut. Fi…
TED & Stan's Towing Serv., Inc. v. Bulk Express Transp., Inc. (Fla. 3d DCA 2022)

…ther an incident report is protected by the work product doctrine, is whether the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” Minsal, 932 So. 2d at 446–47. See GKK v. Cruz, 251 So. 3d 967, 969 n.1 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ for purposes of the work product doctrine if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’” (qu…
Akerman, LLP v. Cohen (Fla. 4th DCA 2022)

…l court has discretion to find a waiver of privilege from the failure to file a privilege log.”) (citation omitted). “However, the failure to file a log should not be applied to categorical assertions of privilege.” Id.; see also GKK, etc. v. Cruz, 251 So. 3d 967, 969 (Fla. 3d DCA 2018); Nevin v. Palm Beach Cnty. Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA 2007). Almost a month prior to the March 2021 hearing on the First Akerman Subpoena, Akerman filed a privilege log. In responding to the petition, the…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Seaboard Air Line R. Co. v. Timmons, 61 So. 2d 426 (Fla. 1952)
Marshalls OF MA, Inc. v. Cira Minsal, 932 So. 2d 444 (Fla. 3d DCA 2006)
Minerva Goldstein and her husband v. Great Atl. & Pac. TEA Co., 118 So. 2d 253 (Fla. 3d DCA 1960)
Nevin v. Palm Beach Cnty. Sch. Bd. & F.A. Richard & Assocs., 958 So. 2d 1003 (Fla. 1st DCA 2007)
Kaye Scholer LLP v. Zalis, 878 So. 2d 447 (Fla. 3d DCA 2004)
DLJ Mortg. Cap., Inc. v. FOX, 112 So. 3d 644 (Fla. 4th DCA 2013)
Fed. Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA 1998)

Full citator, related cases, and AI research tools

Open in FLexlaw

GKK, ETC., PETITIONER, v. PETRONILA CRUZ, RESPONDENT.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Authorities Cited

GKK, ETC., PETITIONER,

v.

PETRONILA CRUZ, RESPONDENT.