OTIS ELEVATOR COMPANY, A CONNECTICUT FOR PROFIT CORPORATION, COASTAL ELEVATOR SERVICE CORP., A FLORIDA FOR PROFIT CORPORATION, LOUIS CARL DEVINCENTIS, INDIVIDUALLY ETC.
v.
CATHERINE CRAIG-MYERS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT MYERS
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Petitioners sought certiorari review of a trial court order directing in camera review of attorney-client privileged documents under the crime-fraud exception. The court denied the petition, finding that while petitioners presented a convincing argument that respondent failed to establish a prima facie case for the exception, certiorari relief was premature because no documents had yet been disclosed.
The petition for certiorari was denied as premature. Although petitioners' argument that respondent failed to establish a prima facie case for the crime-fraud exception was convincing, certiorari relief is not available until the trial court actually orders disclosure of privileged documents.
[1] Before a trial court may review attorney-client communications in camera to determine whether the crime-fraud exception applies, it must first determine that the party in…
[2] Certiorari relief to challenge an in camera review order of privileged documents is premature when the trial court has not yet ordered disclosure of any privileged materi…
Previewing 2 of 2 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“Because the trial court has not ordered anything to be disclosed to Respondent, nor determined if Respondent or her counsel will ever see any of the privileged documents, certiorari relief is premature.”
Court's explanation for denying the certiorari petition despite acknowledging the apparent legal error regarding the crime-fraud exception threshold.
Respondent sought to invoke the crime-fraud exception to attorney-client privilege to compel in camera review of privileged documents. The trial court…
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PER CURIAM.
DENIED.
B.L. THOMAS, C.J., and ROBERTS, J., concur; OSTERHAUS, J., concurs with opinion.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________ OSTERHAUS, J., concurring. Petitioners mount a convincing argument that Respondent provided no evidence establishing a prima facie case for the application of the crime-fraud exception. They are correct that before a trial court reviews attorney-client communications in camera to determine whether the crime-fraud exception applies, it must first determine that the party invoking the exception has presented evidence establishing such a prima facie case. See First Union Nat’l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001), reh’g denied (Jan. 17, 2002); see also Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne Developers, Inc., 873 So. 2d 339, 342 (Fla. 3d DCA 2003); First Union Nat’l Bank of Fla. v. Whitener, 715 So. 2d 979, 982 (Fla. 5th DCA 1998). Here, there was no evidence of an attorney’s advice being sought to aid the client’s crime or fraud. And so, in camera review of the privileged documents should not have been ordered. See Fla. Mining & Materials Corp. v. Cont’l Cas. Co., 556 So. 2d 518, 519 (Fla. 2d DCA 1990) (holding that a party “must allege and produce prima facie evidence that petitioners affirmatively sought the advice of counsel to procure a fraud” and declaring that a ruling that evidence of fraud itself suffices “would literally eliminate the attorney-client privilege in any suit where there was any allegation of fraud or misrepresentation”).
In spite of this apparent error, however, certiorari relief is not available right now to fix it. Because the trial court has not ordered anything to be disclosed to Respondent, nor determined if Respondent or her counsel will ever see any of the privileged documents, certiorari relief is premature. See Poston v. Wiggins, 112 So. 3d 783, 786 (Fla. 1st DCA 2013) (citing Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336, 339-40 (Fla. 5th DCA 2005) (denying as premature a certiorari petition seeking review of an order requiring the submission of documents for an in camera inspection)).
_____________________________ Kenneth B. Bell and Lauren V. Purdy of Gunster Yoakley & Stewart, P.A., Tallahassee, for Petitioners. Philip J. Padovano of Brannock & Humphries, Tallahassee, and Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L. Matthew of Sidney L. Matthew, P.A., Tallahassee, for Respondent.
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Citator
Authorities Cited
- First Union Nat'l Bank v. Turney, 824 So. 2d 172 (Fla. 1st DCA 2001)
- First Union Nat'l Bank OF Fla. v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998)
- Poston v. Wiggins, 112 So. 3d 783 (Fla. 1st DCA 2013)
- Cape Canaveral Hosp., Inc. v. Jorge J. Leal, M.D., 917 So. 2d 336 (Fla. 5th DCA 2005)
- Butler v. Coral Reef OF KEY Biscayne Developers, Inc., 873 So. 2d 339 (Fla. 3d DCA 2003)