13 Fla. L. Weekly Supp. 1014b
Insurance — Personal injury protection — Discovery — Documents — Privilege — Work product — Documents not prepared in contemplation of litigation are not privileged work product — Privilege log — Defects — Where insurer’s counsel could not articulate for court what specific items claimed on privilege log are, insurer must amend log to describe nature of items — Interrogatories — Insurer must provide curriculum vitae of expert witness in response to inquiry regarding witness’s qualifications — Verification — Answers to interrogatories are not verified where jurat states answers are true and correct to best of knowledge
GARRETT R. WEINSTEIN, D.C., P.A. (Francisco Chavez, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-2303 CONO 70. July 17, 2006. Steven Deluca, Judge. Counsel: Cindy A. Goldstein, George & Peduzzi, P.A., West Palm Beach. Jason Lopez, United Automobile General Counsel, Coral Gables.
ORDER ON PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO FIRST REQUEST FOR PRODUCTION AND PLAINTIFF’S MOTION TO COMPEL BETTER ANSWERS TO FIRST INTERROGATORIES AND PLAINTIFF’S MOTION FOR ATTORNEY’S FEES PURSUANT TO F.R.CIV.PRO 1.380
THIS CAUSE having come before this Honorable Court on Plaintiff’s Motion to Compel Better Responses to Request for Production, and Plaintiff’s Motion to Compel Better Answers to First Interrogatories, and Plaintiff’s Motion for Attorneys Fees Pursuant to F.R.Civ. Pro.1.380, and based upon the argument of counsel and the Court being otherwise advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. The above-styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff. In response to the Request to Produce, Defendant withheld numerous documents, asserting the objection of work product/attorney client privilege.
2. The work product privilege attaches to statements and materials prepared by a party’s investigator and insurer only if these were prepared in contemplation of litigation. Mere likelihood of litigation does not satisfy this qualification. Cotton States Mutual Insurance Company v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984).
3. Therefore, this Court finds that the following items listed on the privilege log are not work-product: National Comp Report, EUO Request Form, Claim Report, SIB Information, Stateline Info Check, Statewide MVR Report.
4. Moreover, Defendant’s privilege log is defective under the Florida Rules of Civil Procedure and interpreting case law in its description of the privileged documents. TIG Ins. Corp of Am. v. Johnson,799 So. 2d 339 (Fla. 4th DCA 2001) and The Omega Consulting Group, Inc. v. Templeton, 805 So.2d 1058, (Fla. 4th DCA 2002). Pursuant to Florida Rule of Civil Procedure 1.280(b)(5), the party claiming privilege must describe the nature the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege. Defense counsel could not articulate for this Court what the specific items are. Therefore, Defendant must amend the privilege log for the following items: AS-400 Notes, PIP Lawsuit Worksheet; PIP Unit Routing Sheet; EUO Request Form; ISO Claim Search.
5. Plaintiff’s Motion to Compel Better Answers to Interrogatories is granted. Defendant must produce the curriculum vitae of Marvin Merritt, D.C. in response to Plaintiff’s inquiry as to the qualifications of Defendant’s expert witness.
6. Pursuant to F.R.C.P. 1.340, Defendant’s answers to interrogatories must be verified. Defendant’s objections are not verified as the jurat states that the answers are true and correct to the best of his knowledge. Such a statement is qualified, not positive, and therefore, it does not constitute a sworn motion. Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982). Defendant must provide a proper jurat.
7. This Court acknowledges Florida Rule of Civil Procedure 1.380(a) and Plaintiff’s request for attorneys fees. This Court reserves jurisdiction on this issue.
8. Defendant’s Better Answers to Interrogatories and Better Responses to Request for Production with a revised privilege log are due on or before July 20, 2006.
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