Failure to File a Privilege Log did not Waive the Work Product or Attorney-client Privilege Where the Assertion of Privilege was “Category Specific” and the Category Plainly Protected by the Privilege.
GKK v. Cruz, 43 Fla. L. Weekly D1532 (Fla. 3rd DCA July 5, 2018):
The defendant sought a writ of certiorari quashing an order denying its motion for protective order and objections to the scope of a subpoena duces tecum served on an investigator hired by the defendant to investigate a slip and fall accident in which the plaintiff was allegedly injured. The subpoena enumerated seven separate categories of items the investigator was instructed to bring with him to his deposition.
The defense counsel filed an objection to the subpoena and moved for a protective order, arguing the items listed in four of the paragraphs sought information protected by the work product or attorney-client privilege. The defendant did not file a privilege log for any of the listed items as required by Rule 1.280(b)(5).
The trial court overruled the defendant’s objections and denied a motion for protective order which led to the filing of the petition. The appellate court granted the petition as it related to three of the four paragraphs.
Acknowledging generally the rule is a party failing to file a privilege log may be deemed to waive certain privileges, that general rule is subject to an exception: i.e., the finding of a waiver “should not apply where assertion of a privilege is not document-specific but category specific and the category itself is plainly protected.”
In this case, the privilege raised as to the three of the four paragraphs were categorical assertions of privilege, and the court concluded such items sought in those paragraphs were plainly protected. In explaining privilege under the work product doctrine in a footnote, the court summarized the case law which is useful enough to cite verbatim:
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.”)
Therefore, the court held failure to file a privilege log did not waive the privilege as to those categories of items. However, the same could not be said for the items filed in the other two paragraphs. While some of those items could be subject to a privilege, on their face, others were not. The failure to file a privilege log waived the assertion of a privilege as to those items, and thus the court denied the petition as to those paragraphs.