13 Fla. L. Weekly Supp. 556b

Insurance — Personal injury protection — Discovery — Claims log — Work product and attorney-client privilege — Waiver — Where medical provider made generic request for production of everything contained within insurer’s PIP file, general objection that all material in file are work product or attorney-client communication without privilege log or other precise description of items claimed to be privileged waived privilege — Relevancy — No abuse of discretion in requiring production of claims log where insurer, who objected that contents of log were irrelevant, did not show irreparable harm warranting certiorari relief and failed to carry burden of coming forward with description of contents, thereby depriving court of factual basis for resolving relevancy issues

HARTFORD INSURANCE COMPANY OF THE MIDWEST, Petitioner/Defendant, v. RHODES & ANDERSON, D.C., P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o BETTY DAVIS), Respondent/Plaintiff. Circuit Court, 12th Judicial Circuit (Appellate) in and for Sarasota County. Case No. 2004-CA-4813 CA. L.C. Case No. 2003-SC-005500. March 14, 2006. Appeal from the Sarasota County Court; Emanuel Logalbo, County Judge. Counsel: Karen A. Barnett, Tampa, for Petitioner/Defendant. Virlyn B. Moore, III, Venice, for Respondent/Plaintiff.

OPINION

(HAWORTH, CIRCUIT JUDGE.) Before the court is a petition for writ of certiorari filed by Hartford Insurance Company of the Midwest. In its appeal, Petitioner seeks to quash the trial court’s April 13, 2004 Order #2 on Plaintiff’s Motion to Compel Discovery. That order granted Respondent’s motion as it applies to the Petitioner’s claims log, requiring the insurance company to produce the file within fourteen days.

In its petition, Petitioner raises several issues regarding why the trial court erred in ordering the production: 1) the claims log is privileged and immune from discovery, and 2) the claims log is irrelevant to any issue in the underlying litigation, and Petitioner will be irreparably harmed if required to disclose its contents. For reasons set forth below, the trial court is affirmed on all issues.

Facts

The Petitioner’s insured, Betty Davis, underwent medical treatment, including services provided by Respondent, Venice Chiropractic Center, after she was involved in a motor vehicle accident on April 16, 2002. Her automobile insurance carrier, Hartford Insurance Company of the Midwest, declined to pay personal injury protection benefits.

Mrs. Davis assigned her rights under the policy to Venice Chiropractic Center (VCC) which initiated an action in Sarasota County court alleging breach of contract and violation of Section 627.736(4)(b), Florida Statutes.

In the course of discovery, on April 21, 2003, VCC filed a notice to produce which contained the following:

DEFENDANT SHALL PRODUCE THE FOLLOWING ITEMS AND MATTERS:

2. The entire Personal Injury Protection (PIP) file maintained by Defendant or anyone on Defendant’s behalf with regard to the insured, Betty Davis, cover to cover, including original jackets and everything contained within the file, including but not limited to:

a. All notations regarding notice of the accident;

b. All telephone messages to or from Defendant, or any of Defendant’s agents on Defendant’s behalf;

c. All interoffice memoranda;

d. All correspondence to or from anyone, including any insurance agencies, any doctor’s office, any employers, any agencies, companies or third party vendors hired to select doctors for “compulsory/independent medical examinations” or any examination or “early assessment” required by Defendant under the terms of its insurance policy;

e. Any and all PIP forms, employer verification forms, authorization forms and any other forms contained in said file, and,

f. All records on file concerning the time expended or the costs expended in the handling of any aspect of the insured’s claim.

On June 24, 2003, Hartford responded with:

2. a-f. Objection, vague, overbroad, irrelevant, work product, attorney/client privileged and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, the Defendant is withholding as privileged . . .

b. The Hartford’s claims log.

VCC filed a Motion to Compel which was heard by the county judge on March 1, 2004. During argument, counsel for Hartford advised the court that the claims log included the thought processes and mental impressions of the adjusters assigned to Mrs. Davis’ file. Among other things, the Respondent argued waiver of the privilege. After receiving memoranda of law, the trial court ruled:

As to number two (2) of Plaintiff’s Request to Produce, the Plaintiff’s Motion to Compel Discovery as it applies to the Defendant’s claims log is hereby GRANTED and the Defendant is hereby ordered to produce its claims log to the Plaintiff within fourteen (14) days of the date of this Order.

This appeal followed.

Standard of review

“[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of the law, causing material injury to a petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Allstate Insurance Company v. Langston, 655 So. 2d 91, 94 (Fla. 1995). In Langston, the court agreed with the Fourth District Court of Appeal that certiorari relief is appropriate when the disclosure of materials would reasonably cause material injury of an irreparable nature. Otherwise, the court noted that irrelevant discovery alone is not sufficient to grant certiorari relief. Id.

A departure from the essential requirements of the law must be more than a simple legal error; there must be a violation of a clearly established principle of law resulting in a miscarriage of justice. See Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So. 2d 578, 581 (Fla. 2d DCA 2003). “ ‘. . .[C]learly established law’ can derive from a variety of legal sources including recent controlling case law, rules of court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).

Analysis

Issue I: The Privilege Claim

The Florida Rules of Civil Procedure address the protocol to be followed by parties seeking to maintain privileges such as work product or attorney-client communication. Rule 1.280(b)(5) says:

(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

Rule 1.280(b)(5) was adopted in 1996 and is derived from Federal Rule of Civil Procedure 26(b)(5) (1993). See In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 116 (Fla. 1996). The purpose of the rule is to allow for the identification of materials that might be subject to a privilege or work product protection so that a court can rule on the validity of the privilege. Kaye Scholer LLP v. Zalis, 878 So. 2d 447 (Fla. 3d DCA 2004), citing TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001).

Typically, compliance with the rule is accomplished by the submission of a document known as a privilege log, a device employed even before the 1996 amendment to Rule 1.280; Nationwide Mutual Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991). While privilege logs are not per se required by the rule, following the lead of the federal courts, Florida courts have found it an efficient way to review privilege objections. Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004).

Petitioner contends that where the items requested are themselves sufficiently descriptive of a type of materials patently covered by privilege, a general objection is sufficient to protect against disclosure. See, for example, Shell Oil Co. v. Par Four Partnership, 638 So. 2d 1050 (Fla. 5th DCA 1994), and Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002), where a request to produce attorney-client communications was sufficient on its face to prevent production. However, an examination of the items requested by VCC reveals they are not of this quality. Respondent requested production, cover to cover, including original jackets of everything contained within the insured’s PIP file. It then went on to describe various categories of materials. Here, a generic request was met with a generic response.

While many items in a claims log or PIP file may be privileged, others may not be. Until there is compliance with the rule, neither the court nor the requesting party has any mechanism by which to evaluate the basis for the objection. The requesting party is not required to take the opposing litigant’s word for it. Otherwise, a “claims log” could be used to conceal discoverable material without judicial oversight.¹

If Hartford had a serious issue of attorney-client or work product privilege, it was required by rule to make the claim expressly and to describe the nature of the documents or communications with sufficient precision that the opposing party and the court for that matter through in camera inspection could determine the legitimacy of the objection. A nonspecific response that all material in a “claims log” or PIP file is work product or attorney client communication does not comply with the rule.

Failure to provide a privilege log has been held to be a waiver of the privileges asserted; Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002); Kaye Scholer, LLP v. Zalis, 878 So. 2d 447 (Fla. 3d DCA 2004); General Motors Corp. v. McGee, 837 So. 2d 1010, 1033 (Fla. 4th DCA 2002); Metabolife International, Inc. v. Holster, 888 So. 2d 140 (Fla. 1st DCA 2004); TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001); not as a matter of law, but as a matter resting in the sound discretion of the trial judge; Century Bus. Credit Corp. v. Fitness Innovations & Techs. Inc., 906 So.2d 1156, (Fla. 4th DCA 2005), (clarifying its opinion in TIG).²

In sum, there is no showing that the trial judge abused his discretion in requiring production of the claims log. By his order he implicitly found a waiver.

Issue II: The Relevancy Claim

Petitioner asserts that the contents of the claims log are immaterial to the issues in the case and that its production would result in irreparable harm. However, “A mere claim of irrelevance does not rise to the level required, that of irreparable harm, for certiorari to lie.” Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021, 1023 (Fla. 4th DCA 1998).

At issue in the present litigation is whether Hartford had “reasonable proof to establish that the insurer is not responsible” for Mrs. Davis’ PIP payments. Section 627.736(4)(b), Florida Statutes. The claims log may contain computer entries or other evidence substantiating the insured’s allegations that benefits were improperly or arbitrarily denied, or the file might contain information leading to the discovery of such evidence. In a case such as this, it does not follow that because a file is labeled “claims log” that the entirety of its contents is ipso facto irrelevant to all issues in the case.

There is no consensus or set criteria determining what goes into or out of a claims log. Each insurer is free to customize or assemble the file as it sees fit. Consequently, when disclosure is attempted the burden of coming forward with a description of the log’s contents must be on the party opposing production. Without such a description, in a case where the issue is propriety of denial of benefits, the trial judge has no way of discriminating between relevant and irrelevant materials.

It cannot be said that the lower judge abused his discretion by compelling disclosure of the claims log where the objecting party through counsel argued but did not show irreparable harm, and where the insurer failed to carry its burden, thereby depriving the court of a factual basis for resolving the relevancy issues. Nationwide Mutual Fire Ins. Co. v. Harmon, 580 So.2d 192 (Fla. 4th DCA 1991); Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (Fla. 2d DCA 1997).

No departure from the essential requirements of law has been shown. Petition for Writ of Certiorari is denied.

AFFIRMED.

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¹As noted in Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93, 96 (Fla. 5th DCA 2004), “Even if the court agrees that a ‘claims file’ is work product, it is not necessarily true that every document in a claim file is work product. Putting a document in a claim file doesn’t make it immune; it is only immune if it is work product.” (Emphasis by the court.)

²Late filing of a privilege log does not result in automatic waiver; Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004) (stating that a trial judge has discretion to find a waiver where the responding party does not timely submit an adequate privilege log prior to the hearing on a motion to compel). This follows the rule adopted by some of the federal courts. See Universal City Develop. Partners, Ltd. v. Ride & Show Engineering, Inc., 230 F.R.D. 688 (Mid. Dist. Fla. 2005), (failure to file privilege log within 30 days response time should not result in per se denial of privilege claim, requiring instead a case-by-case analysis after trial court’s consideration of several factors). However, in the instant case, as was the situation in Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002), Hartford provided no privilege log.

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