14 Fla. L. Weekly Supp. 669a
Insurance — Personal injury protection — Discovery — Privilege — Work product — Privilege log filed by insurer was not legally sufficient, and court could find waiver of privilege based solely on this fact — However, after in camera review, court determines that ISO Claim Summary Search is work product and need not be disclosed — Documents which were not produced at time that litigation was substantial and imminent or which do not contain information meeting the definition of work product must be disclosed — Plaintiff entitled to attorney’s fees and costs incurred in seeking this order
DAMADIAN MRI IN POMPANO BEACH, P.A., d/b/a STAND UP MRI OF FORT LAUDERDALE, a/a/o Ortilus Jasmin, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 05-4924 (70). March 29, 2007. Louis H. Schiff, Judge. Counsel: Andrew J. Weinstein, Weinstein & Assosiciates, P.A., Coral Springs, for Plaintiff. Wendy Brewster Maroun, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO DEEM PRIVILEGE OBJECTIONS WAIVED AND MOTION FOR ATTORNEYS FEES AND COSTS PURSUANT TO FLA. R. CIV. P. 1.380
THIS CAUSE came before the Court on February 21, 2007 for hearing on the Plaintiff’s Motion to Deem Defendant’s Privilege Objections Waived and Motion for Attorney’s Fees and Costs Pursuant to Fla. R. Civ. P. 1.380; the Court having reviewed the Motion and entire court file; heard arguments; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on November 23, 2005.
2. Plaintiff propounded its Request to Produce on Defendant on February 6, 2006. The Defendant failed to respond timely, and the Plaintiff filed an Ex Parte Motion to Compel Discovery which was granted by this Court on June 26, 2006. Defendant ultimately filed their response to Plaintiff’s Request to Produce on July 27, 2006, nearly a month later than the time limit ordered by this Court. In addition to failing to comply with the Florida Rules of Civil Procedure and the order of this Court, Defendant’s privilege log was insufficient. Plaintiff put the Defendant on notice that it would be filing a Motion to Compel and seeking sanctions based upon the insufficient privilege log. Defendant provided the Plaintiff with an amended privilege log which was also insufficient and acts as the basis for this Court’s ruling.
Conclusions of Law:
3. Pursuant to Florida Rule of Civil Procedure 1.280(b)(1):
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”
4. Defendant set forth a list of items they claim are protected from disclosure by the Work Product and/or Attorney/Client Privileges without giving a proper description of the request the privilege refers to, or the grounds that the privilege is being raised under.
5. In TIG Insurance Corp. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001), the court outlined the minimum requirements for a privilege log under Florida law. A legally sufficient privilege log must contain the following information: sender, recipient, title or type, date and subject matter. Id. at 96. The word “and” indicates that all of the above-listed information must be included in the privilege log. The Defendant does not reserve the right to choose which of the mandated information it would like to disclose. Clearly a party cannot properly proceed without knowing whether or not the privilege claims were appropriately raised.
6. Moreover, the Fourth District Court of Appeal has a heightened standard for instances in which the Work-Product Privilege can be properly invoked. Unlike the First, Second, Third and Fifth District Courts, which merely require that the document be prepared in response to some event which could be made the basis of some claim in the future, Marshalls of Ma, Inc. v. Minsal, No. 3D05-2415 (Fla. 3rd DCA May 24, 2006) [31 Fla. L. Weekly D1425a]. The Fourth District Court of Appeal requires that litigation be a substantial and imminent probability.
7. In Cotton States Mutual Insurance Co. v. Turtle Reef Assocs. Inc., the Fourth District Court of Appeal, held that simply because the documents requested were prepared by a party’s investigator does not alone qualify them for protection under the work product privilege. Id. at 444 So. 2d 595, 596 (Fla. 4th DCA 1984). Many of these documents are not work product, but are documents prepared in the ordinary course of business. Id. “The mere likelihood of litigation does not satisfy this requirement.” Id.
8. Furthermore, in Liberty Mutual Fire Ins. Co. v. Bennet, the Court found that even after the insured threatened that if the claim was not properly handled a bad faith litigation would follow, the work product privilege did not attach until the insurer’s counsel was forwarded the file to defend the action. 883 So. 2d 373 (Fla. 4th DCA 2004). Both Cotton and Liberty Mutual illustrate that speculation is not sufficient to raise work product, and that the Fourth District Court of Appeal requires a more concrete and definite demonstration that litigation is more probable than not in order to invoke the work product privilege.
9. Though this Court could find a waiver of the privilege claims based solely on the Defendant’s failure to observe the requirements of TIG and rule 1.280, in order to fairly and accurately determine whether the Defendant’s privileges were properly raised, this Court conducted an in camera inspection of all of the documents claimed to be work product on the Defendant’s privilege log. “When work product and attorney-client privileges are asserted, the trial court must hold an in camera inspection of the discovery material at issue in order to rule on the applicability of the privileges.” Allstate Ins. Co. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991).
10. This Court reviewed the following documents: Claim Report, EUO Preliminary Report, PIP Unit Routing Sheet, AS400 Notes, No-Fault Worksheet, EUO Request Form, Fax Verification Reports, Clerical Instruction Sheet, SIB information, ISO Claim Summary Search, and IME Request.
11. “Florida Rules of Civil Procedure 1.280(b)(2), provides that in ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” Orange County v. Florida Land Co., 450 So. 2d 341 (Fla. 5th DCA 1984).
12. Upon detailed review and after hearing argument from defense counsel, this Court finds that the following documents are not work product and therefore must be provided to the Plaintiff within 10 days: Claim Report, EUO Preliminary Report, AS400 Notes, EUO Request Form, Fax Verification Reports, Clerical Instruction Sheet, SIB Information, IME Request. None of the aforementioned documents were produced at a time that litigation was substantial and imminent, or contain information which meets the definition of work product. Cotton States Mutual Insurance Co. v. Turtle Reef Assocs. Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984).
13. This Court finds that the ISO Claim Summary Search is work product and does not need to be disclosed.
14. At the hearing the following documents were unavailable for in camera inspection: PIP Unit Routing Sheet and No Fault Worksheet. These documents shall be reviewed by the Court in camera, at a later date.
15. Pursuant to Fla. R. Civ. P. 1.380(a)(4), the Plaintiff is entitled to its attorney’s fees and costs incurred in seeking this order, the amount to be determined at a later date. Id.
Accordingly, it is ORDERED AND ADJUDGED, that Defendant’s Privilege Objections as set forth herein are deemed overruled, with the exception of the PIP Unit Routing Sheet and No Fault Worksheet to be reviewed in camera at a later date.
