19 Fla. L. Weekly Supp. 587a
Online Reference: FLWSUPP 1907WALDInsurance — Discovery — Privilege — Work product — After in camera inspection, trial court determines that insurer’s internal emails, computer report, and majority of activity log and correspondence were prepared in contemplation of litigation and are protected by work product privilege — Other pages of activity log and correspondence are not privileged, and mere placement in claims file does not make them so — Where it is not clear if photographs of vehicle were taken in anticipation of litigation or in ordinary course of business, evidentiary hearing will be required to resolve issue — Documents allegedly related to another lawsuit are not privileged where some documents related to instant suit and others related to other suits involving same accident
SOUTH BROWARD CHIROPRACTIC CENTER, INC. (a/a/o Maryanne Waldron), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-14954 COCE 53. January 31, 2012. Robert W. Lee, Judge. Counsel: Alan Green and Rafael Katz, Katz & Katz, P.A., Hollywood, for Plaintiff. Matt Hellman, Plantation, for Defendant.
ORDER ON IN CAMERA INSPECTION
On November 29, 2011, this Court ordered the Defendant to submit to the Court a copy of all privilege-claim documents for an in camera inspection to determine propriety of work-product and other privileges. The Defendant provided these to the Court under cover of letter dated December 1, 2011. These documents consisted of the 211 total pages, involving six (6) different categories of documents. To these documents, the Defendant has raised various objections and privileges, not all of which were raised as to each category: i.e., attorney-client privilege; work-product privilege; HIPAA; third-party privacy; unduly burdensome; and the catch-all “irrelevant and immaterial.”
As for category three (internal emails, etc., consisting of 3 pages) and category five (computer report consisting of 2 pages), the Court agrees that these are covered by the work-product privilege in that that they were clearly prepared “in contemplation of litigation.” Accordingly, the Court declines to order that these be produced.
As for category one (activity log consisting of 38 pages in reverse chronological order), the Court finds that pages 1-26, as well as all of page 27 except the last three lines on the page, and all of page 38 are covered by the work-product privilege. The Court, as hereinafter explained, finds as to the last three lines of page 27, as well as pages 28-37: they are not covered by the work-product privilege, they are not covered by the attorney-client privilege, and they clearly are not “irrelevant and immaterial.”
As for category four (correspondence consisting of 140 pages), the Court finds that all pages except pages 27 and 29-32 are covered by the work-product privilege, as explained hereinafter. As for these five pages, the Court finds they are not protected by work-product privilege, HIPAA or third-party privacy, and they are clearly not “irrelevant and immaterial.”
As for the 16 pages that the Court has found non-privileged in categories one and four, the Court notes that this case specifically involves a coverage issue in which the Defendant has raised specific defenses to coverage.
In considering whether these documents are covered by the work product privilege, the Court must consider
If these were prepared in contemplation of litigation [ . . . ]. Mere likelihood of litigation does not satisfy this qualification [ . . . ].
[A]n insurance company’s claims investigation in its early stages is conducted in the ordinary course of business [ . . . ].
Cotton States Mutual Ins. Co. v. Turtle Reef Associates, Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984). As more recently stated by the same court, “[t]here must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.” Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.3d 1180, 1184 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D766a].
The mere placement of information in a “claims” file does not magically cause a claim of privilege to attach to otherwise non-privileged information. Otherwise, an insurer could place everything in its “claims” file and then stand back and assert work-product privilege. There is simply nothing privileged about the information the Court has ordered be produced.
As for category two, the photographs of the vehicle, it is not clear to the Court after the in camera inspection whether the photographs were taken “in anticipation of litigation, in which case the privilege may be raised, or merely in the ordinary course of business, in which event there is no privilege.” Waste Management, Inc. of Florida v. Southern Bell, 544 So.2d 1133, 1134 (Fla. 4th DCA 1989). If the Plaintiff continues to desire to pursue production of these photographs, it may request the matter to be set for evidentiary hearing so the Court can make the appropriate findings. See Honey Transport, Inc. v. Ruiz, 893 So.2d 661, 662 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D467a]. As for the Defendant’s alternate ground that the photographs are “irrelevant and immaterial,” that objection is overruled in light of State Farm’s defensive posture presented in this case.
As for category six, the Court has reviewed the “documents pertaining to another lawsuit,” as designated by the Defendant. To these 21 pages of documents, the Defendant has raised attorney-client privilege, work-product privilege, irrelevant and immaterial, and unduly burdensome. These claims are particularly troublesome in light of the clear error made by Defendant in designating that these documents pertain to “another” lawsuit, when in fact, the first 11 pages clearly pertain to the instant lawsuit. The Court could perhaps overlook the Defendant’s clear error if the Defendant had not been so cavalier in its claim of four different reasons not to have to produce these: attorney-client privilege? work-product? irrelevant and immaterial? unduly burdensome? Even had these documents related to another lawsuit involving the same accident, none of these objections could stand good-faith scrutiny, in the Court’s view, with the exception of the final page of the set, consisting of a letter. The Court is particularly concerned with Defendant’s claim that production would be “unduly burdensome” when clearly this is not remotely the case.
After ten (10) days, the Court intends to release the pages to the Plaintiff which this Court has found to be non-privileged. A copy of these 36 pages is attached to the Defendant’s copy only. The remaining pages shall remain under seal.
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