15 Fla. L. Weekly Supp. 1055a
Insurance — Personal injury protection — Discovery — Privilege — Work product — Trial court departed from essential requirements of law, resulting in irreparable harm to provider, when it concluded that insurer was not required to produce adjuster’s AS400 computerized notes generated before insurer received provider’s presuit demand letter because provider did not establish a valid need for the notes to establish that treatment of insured was reasonable, related, and necessary — Trial court applied wrong evidentiary burden when analyzing insurer’s invocation of work-product privilege — Had insurer stated that it prepared AS400 notes in anticipation of litigation, burden would have shifted to provider to demonstrate that i]t had need of the materials in preparation of case and was unable without undue hardship to obtain substantial equivalent by other means — Discussion of procedural requirements and evidentiary burdens when one party invokes work-product privilege, including fact that Florida requires privilege logs when litigant claims work-product privilege and that failure to comply with this requirement results in waiver of privilege — Remand for evidentiary hearing consistent with requirements of rule 1.280(b)(3)
STAND-UP MRI OF MIAMI, INC., f/k/a STAND-UP MRI OF MIAMI, P.A., a/a/o JUAN CALVO, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County. Case No. 08-389 AP. L.C. Case No. 07-23521 SP 25. September 8, 2008. Counsel: George A. David, George A. David, P.A., Coral Gables; and Erick Martin, for Petitioner. Michael Neimand, for Respondent.
ORDER GRANTING PETITIONER’S WRIT OF CERTIORARI
(VICTORIA PLATZER, J.) This matter came before this Circuit Court’s Appellate Division as a common law Certiorari Petition from a county court non-final discovery order. This Court having reviewed the Petition, the Appendix, applicable case law, and the Florida Rules of Civil Procedure, finds and rules as follows:
STATEMENT OF FACTS
1. United Automobile Insurance Company (“United Auto”) provides insurance coverage to the insured. The insured sought medical care from Stand-Up MRI after suffering injuries from an automobile accident. The insured assigned his PIP benefits to Stand-Up MRI.
2. United Auto alleged that the insured failed to show for two examinations under oath. United Auto claims that the insured’s failure to attend the two examinations under oath negates its obligation to pay PIP benefits to Stand-Up MRI. United Auto’s refusal to pay the PIP benefits motivated Stand-Up MRI to file its civil action in the county court.
3. Stand-Up MRI served United Auto with a Notice of Deposition Duces Tecum and deposed United Auto’s litigation adjustor. United Auto did not object to the Notice of Deposition Duces Tecum and did not seek a protective order pursuant to Fla. R. Civ. P. 1.280(c).1
4. During the litigation adjustor’s deposition, Stand-Up MRI’s counsel requested the litigation adjustor show a copy of United Auto’s AS400 notes generated from the time the case began until the date when United Auto received notice that Stand-Up MRI would file a civil action against United Auto. United Auto’s adjustors utilize the AS400 program or software to document their notes on their files. United Auto’s counsel asserted work product privilege and instructed the adjustor to not produce the AS400 notes.
5. Stand-Up MRI moved the county court to order United Auto to produce the AS400 notes that were generated before United Auto received Stand-UP MRI’s pre-suit demand letter. The county court denied Stand-Up MRI’s prayer for relief. This non-final discovery order leads to the instant common-law Certiorari Petition.
Work-Product Privilege
6. Florida grants certiorari relief upon a petitioner’s demonstration that a lower tribunal’s “order does not conform to the essential requirements of law and may cause material injuries in subsequent proceedings for which remedy by appeal will be inadequate.” Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority, 593 So. 2d 1219, 1221 (Fla. 1st DCA 1992). This Court finds that because the county court’s non-final discovery order protects United Auto’s allegedly-privileged information and hinders Stand-Up MRI’s right to discover information necessary to avoid summary judgment and prepare for trial, irreparable material injury may occur prior to a plenary appeal.
7. Legal questions require de novo review. Southern Baptist Hospital of Florida, Inc. v. Welker, 908 So. 2d 317, 319 (Fla. 2005).
8. In general, an insurance “adjustor’s notes are protected by the work-product privilege.” Federal Insurance Company v. Hall, 708 So. 2d 976 (Fla. 3d DCA 1998). Florida Rule of Civil Procedure 1.280(c)2 “provides that the court may restrict or deny discovery ‘for good cause shown.’ ” Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. 3d DCA 1996).
9. When a litigant’s “motion to compel production challenges the status of the incident reports as work product, defendants must then show that the documents were prepared in anticipation of litigation.” DeBartolo-Aventura v. Hernandez, 638 So. 2d 988, 990 (Fla. 3d DCA 1994). In addition, “when determining whether an incident report is protected by the work product doctrine,” this appellate district applies the following standard: “whether the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446-447 (Fla. 3d DCA 2006).
10. The county court concluded that United Auto need not “produce the AS400 notes” because Stand-Up MRI “did not present a valid need for the notes to prove its burden on RRN.” The county court further stated “Plaintiff [Stand-Up MRI] has not showed the [AS400] notes before the demand letter were relevant.”
11. This Court concludes that the county court’s non-final discovery order violates the essential requirements of law by applying the incorrect evidentiary burden required when analyzing a litigant’s invocation of work-product privilege.
12. After Stand-Up MRI filed its Second Amended Motion to Compel, United Auto was required to demonstrate “that the documents [the AS400 notes] were prepared in anticipation of litigation.” DeBartolo, 638 So. 2d at 990. The county court made no finding that United Auto justified withholding the AS400 notes as privileged documents.
13. Had United Auto articulated that it prepared the AS400 notes while anticipating litigation, the burden would then shift to Stand-Up MRI to demonstrate that it “has need of the materials inthe preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”DeBartolo, 638 So. 2d at 989. See Fla. R Civ. P. 1.280(b)(3).3
14. The litigants and the county court should note the procedural requirements and evidentiary burdens when one party invokes the work product privilege. In particular, neither the litigants nor the county court mentioned that Florida requires privilege logs when a litigant claims work product privilege. See Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla 3d DCA 2004) (stating that Rule 1.280(b)(5) “requires the production of a privilege log in order to preserve a privilege”); Gosman v. Luzinski, 937 So. 2d 293, 295 (Fla. 4th DCA 2006) (stating that “Rule 1.280(b)(5) requires the creation of a privilege log as to materials sought to be protected from production”). The county court and litigants should also note that “failure to comply with the requirements of Rule 1.280(b)(5) results in the waiver of any attorney-client and work product privileges.” Kaye Scholer, 878 So. 2d at 449.
This Court GRANTS Stand-Up MRI’s Petition for a Writ of Certiorari, QUASHES the county court’s non-final discovery order, and REMANDS this matter to the county court for an evidentiary hearing consistent with the evidentiary requirements established by Florida Rules of Civil Procedure 1.280(b)(3), 1.280(b)(5), 1.280(c), and corresponding case law.
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1Protective Orders.
2Protective Orders.
3Trial Preparation: Materials.
