14 Fla. L. Weekly Supp. 1162a
Insurance — Personal injury protection — Discovery — Privilege — Waiver — Privilege log filed by insurer was incomplete and failed to meet minimal procedural requirements where log failed to disclose date, sender, and recipient for each document listed — When raising work product privilege, work must have been prepared when the probability of litigation was substantial and imminent — In view of fact that insurer delayed more than a year in responding to plaintiff’s request to produce, defendant should have and could have produced legally sufficient privilege log — Privilege objections raised by insurer are deemed waived
OPEN MRI & DIAGNOSTIC IMAGING, INC., a/a/o SAMUEL RODRIGUEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 05-04185 (50). August 22, 2007. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Deidrie Buchanan, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO DEEM DEFENDANT’S PRIVILEGE OBJECTIONS WAIVED
THIS CAUSE came before the Court on May 31, 2007 for hearing of Plaintiff’s Motion to Deem Defendant’s Privilege Objections Waived and For Attorney Fees and Costs; the Court having reviewed the Motion and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on 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.
2. The Plaintiff served their First Request for Production on January 13, 2006.
3. Defendant’s Response was filed on February 26, 2007, more than one year after it was due.
4. Defendant attached a purported Privilege Log, in which it withheld production of the following: “Stateline Info Check, EUO Request Form, Fax Verification Reports, Clerical Instruction Sheet, SIB Information, PIP Lawsuit Worksheet, Adjuster Notes, Appointment List, Correspondence to/from Providers.” The Defendant’s Privilege Log fails to disclose the date, sender, and recipient for each document listed, and therefore is legally insufficient.
5. Defendant’s Privilege Log is incomplete, and fails to meet the minimal procedural requirements set forth in the Florida Rule of Civil Procedure 1.280(b)(5), and interpreting case law.
6. As a result, Plaintiff filed its Motion to Deem Privilege Objections waived on March 23, 2007.
7. The Court has carefully considered the factual arguments and legal authorities set forth by each side. The Court has also considered the nature of the specific documents requested in an effort to determine if said documents are privileged per se.
Objective Purpose of Discovery:
Florida Rule of Civil Procedure 1.280(b)(1) states in relevant part:
“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.
The Florida Rules of Civil Procedure were formulated after the Federal Rules of Civil Procedure and therefore carry the same objectives and purpose behind them. TIG Insurance Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). The basis for implementing Rules of Civil Procedure pertaining to discovery was to prevent discovery abuses and aid in executing the aim of discovery. Discovery is “intended to identify at early stages of a proceeding the real issues to be resolved; to provide each party with all available sources of proof as early as possible to facilitate trial preparation; and to abolish the tactical element of surprise in our adversary process. Dodson v. Perell, 390 So. 2d 704, 706 (Fla. 1980). It is for this very reason that the rules of discovery favor disclosure if the material is not in fact privileged. It is not enough to merely assert a privilege, in order for the privilege to stand, the asserting party must take a proactive approach in establishing a foundation of facts on which the privilege is based. Therefore, the burden of proof is on the party asserting the privilege. TIG Insurance Co., at 341; Hartford Accident & Indemnity Co. v. Mcann, 402 So. 2d 1361 (Fla. 4th DCA 1981).
Furthermore, the 4th DCA has a heightened standard for instances in which the Work-Product Privilege can be properly invoked. While the standard in the First, Second, Third, and Fifth Districts merely requires 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 applies a somewhat stricter standard requiring that when the documents are prepared, the probability of litigation must be substantial and imminent.” Id.; See also Liberty Mutual Fire Ins. Co. v. Bennet, 883 So. 2d 373 (Fla. 4th DCA 2004). “The mere likelihood of litigation does not satisfy this requirement.” Cotton States Mutual Insurance Co. v. Turtle Reef Assocs. Inc., 444 So. 2d 595, 596 (Fla. 4th DCA 1984).
Conclusions of Law:
Pursuant to Florida Rule of Civil Procedure 1.280(b)(5),
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as a 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 the other parties to assess the applicability of the privilege or protection.
In the instant case, the Defendant failed to file its Privilege Log for more than a year after the Plaintiff propounded the Request to Produce. It is evident that with more than enough time allotted, the Defendant should have and could have produced a Privilege Log that met the requirements. Now after waiting over a year for said Response and Privilege Log, the Plaintiff received an incomplete, confusing and factually insufficient list of what the Defendant claims are privileged documents. Defendant’s unsuccessful attempt to produce an accurate privilege log resulted in a Wavier. Omega v. Templeton, 805 So. 2d 1058 (Fla. 4th DCA 2002).
The Court can not allow the Defendant to hide behind unsupported claims of privilege, and Defendant’s failure to abide by the procedural guidelines, which are so well established, resulted in a waiver of the attorney/client and work product privilege. TIG Insurance Co., at 340; Allstate Ins. Co. v. McClusky, 836 So.2d 1068 (Fla. 5th DCA 2002); Nationwide Mutual Fire Ins. Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002).
The above-mentioned cases establish the following requirements which the invoking party must disclose for a privilege to meet the bare minimum requirements:sender, recipient, title or type, date and subject matter. Id. at 96. The word “and” indicates that all of the above-listed information needs to 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.
This Court aligns with the majority of courts that consistently hold that there are certain requirements that must be contained in the privilege log otherwise no basis exists when trying to distinguish between valid privileges and frivolous claims to avoid discovery. See Omega v. Templeton, 805 So. 2d 1058 (Fla. 4th DCA 2002); Bankers Sec. Ins. v. Symons, 889 So. 2d 93 (Fla 5th DCA 2004); Hartford Accident & Indemnity Co. v. McGann, 402 So. 2d 1361 (Fla 4th DCA 1981).
When raising the work product privilege, a critical component is that the work must have been prepared in the face of substantial and imminent litigation. At the hearing, Defense Counsel could not raise one argument that validated their claim of work product privilege. “The mere likelihood of litigation does not satisfy this requirement”. Cotton States Mutual Insurance Co. v. Turtle Reef Assocs. Inc., 444 So. 2d 595, 596 (Fla 4th DCA 1984). Moreover, the Defendant did not even provide the Plaintiff with sufficient information as to the title/type of documents being withheld, but used acronyms and abbreviations that are meaningless without additional explanation.
Defendant’s inability to produce a sufficient Privilege Log in compliance with Florida law along with its failure to articulate a legal basis for its objective leaves this Court no choice but to deem the privilege objections raised by the Defendant waived. Discovery is to prevent surprise and avoid costly delays in litigation. If the Court allows the Defendant to withhold production without first providing a sufficient basis, then the purpose of the rules governing discovery is defeated. Dodson v. Perell, 390 So. 2d 704, 706 (Fla. 1980).
Accordingly, it is ORDERED and ADJUDGED as follows:
A. The Plaintiff’s Motion to Deem Privilege Objections Waived is hereby granted.
B. The Defendant shall produce all documents withheld from production based upon a claim of privilege within 10 days.
C. The Court hereby awards sanctions in the amount of $1,400.00. Said amount shall be paid within ten (10) days of the date of this Order.
