23 Fla. L. Weekly Supp. 475a
Online Reference: FLWSUPP 2305LANDInsurance — Attorney’s fees — Discovery — Billing records of opposing counsel — Prevailing medical provider’s request to produce billing records of insurer’s counsel is denied where provider has not established that records are relevant to disputed issues, that records are needed to prepare for attorney’s fee hearing or that substantially equivalent material cannot be obtained from another source — Provider’s request for report from insurer’s expert on provider’s motion for attorney’s fees and costs is granted
CARRIE LANDESS, M.D. (PA) A/S/O GILBERTO ARANGO, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2010-6518-CC-23. August 24, 2015. Caryn Canner Schwartz, Judge. Counsel: Mark J. Feldman, Mark J. Feldman, P.A., Miami, for Plaintiff. John M. Gioannetti, Roig Lawyers, Deerfield Beach, for Defendant.Order Granting Plaintiff’s request for the reportfrom Defendant’s expert on Plaintiff’s Motion ForAttorney’s Fees and Costs and Denying Plaintiff’sRequest to Produce all time records from defensecounsel who provided legal services in this case
This matter came before the Court on 8/21/15 on Plaintiff’s Motion to Compel Better Response to Discovery, specifically, the report from Defendant’s expert on the Plaintiff’s Motion For Attorney’s Fees and Costs and on Plaintiff’s Request to Produce all time records from all defense counsel who provided legal services in this cases, (excluding privileged entries) and the report from Defendant’s expert which includes the expert’s opinion on items of Plaintiff’s compensable time and hourly rate. The Court grants Plaintiff’s request for the report from Defendant’s expert on Plaintiff’s Motion For Attorney’s Fees and Costs, which includes the expert’s opinion on items of Plaintiff’s compensable time and hourly rate. The Court suggested the expert’s report be in the form of a spreadsheet which designates which entries from Plaintiff’s time sheets are being reduced, if there are numerous reductions and the reasons for the reduction, in the chronological order of the entries. A time frame was not selected for providing the report to Plaintiff and may be addressed at a subsequent hearing set closer in time to the Attorney Fee Hearing.
THE LAW UPON WHICH THIS COURT RELIES
The Court Denies Plaintiff’s Request to Produce all time records from all defense counsel who provided legal services in this case for the reasons set forth below.
In the case of HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center, Petitioner, v. Lynn HILLMAN, Mary Patricia Bosner, and Roberta James, Respondents, 870 So.2d 104 (2003) [28 Fla. L. Weekly D2758a], District Court of Appeal of Florida, Second District, December 3, 2003, provided by Defense, the Court held, in pertinent part,
The fees of a prevailing party cannot be predicated upon the fees of one’s opponent. See Stowe v. Walker Builders Supply, Inc., 431 So.2d 180 (Fla. 2d DCA 1983). There are many sound reasons for this rule. For example, two competent attorneys handling opposite sides of a case will often, if not usually, spend substantially different amounts of time on the case. A deposition that may take one attorney a few minutes to prepare and attend may require hours of work on the part of the other lawyer. A production of documents by one side may require little time by that party’s attorney because the work was performed by the client’s staff. That same production may require days for the other attorney to review and analyze. Different clients have different reporting requirements and sometimes different expectations as to the time the attorney will spend on their case. Without belaboring the point, it should be self-evident that the records of one’s opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney’s fees to be awarded in a given case.
While we suggest that the opponent’s time records are marginally relevant, a more accurate statement might be that the records may, on rare occasion, be relevant to resolve a dispute about a particular billable event. . . .
The limited relevance of the billing records of opposing counsel is reinforced by the applicable rule. Rule 4-1.5(b) of the Rules Regulating The Florida Bar sets forth the relevant factors to be considered in determining a reasonable fee. The amount of time spent by opposing counsel is not listed. Thus, the broad discovery requested in this case was not aimed at information directly relevant to any factor needed to establish fees.
Balanced against this limited relevance, one must consider the fact that billing records contain privileged, attorney-client information. . . . Typically, work product and trial preparation materials can only be obtained upon a special showing that the records are needed for the trial and substantially equivalent information is not otherwise available. Fla. R. Civ. P. 1.280(b)(3). In certiorari review, material protected by privilege or work product is the kind of information that “ ‘may reasonably cause material injury of an irreparable nature.’ ” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) [20 Fla. L. Weekly S217a] (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987)).
In Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D2106a], the Fifth District discussed some of the difficulties surrounding discovery of billing records and affirmed an order denying discovery. Judge Griffin accurately noted in that opinion that some jurisdictions bar this discovery but that Florida has not yet adopted a “hard and fast rule.” Id. at 724. “This reflects the salutary view that the discovery may be justified in some cases but not in others and that it is a matter that should rest within the sound discretion of the trial court.” Id. We agree.
In this case, we conclude that the trial court departed from the essential requirements of the law because it failed to appreciate and address whether the discovery was justified. Such records are not discoverable as a matter of course. Billing records of opposing counsel are to be treated as privileged work product. The party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source. We anticipate that such requests should be few and far between and should be carefully scrutinized by the trial courts.
Thus, while the trial court has discretion to permit this discovery, this discretion is quite restricted due to the nature of the material sought. In this case, the trial court abused its discretion because it required no special showing before ordering the production. For these reasons, we granted the petition and quashed the discovery order.
In Balande ESTILIEN, Petitioner, v. Steven DYDA, Respondent, 93 So.3d 1186 (2012) [37 Fla. L. Weekly D1875a], District Court of Appeal of Florida, Fourth District, August 8, 2012, provided by Defense, the Estilien Court followed the holding in the HCA HEALTH SERVICES OF FLORIDA, INC. case and concluded,
We hold that where the billing records of opposing counsel are sought solely for the purpose of supporting a claim for attorney’s fees, “[t]he party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source. Id. at 107.
Dyda’s counsel’s failure to keep billing records reflecting the time spent on this case is an insufficient basis for ordering production of the records. Moreover, the time Estilien’s counsel’s spent defending the case has not been shown to be relevant to the amount of time counsel spent pursuing Dyda’s claims, nor has the need for such discovery been demonstrated. See Fla. R. Civ. P. 1.280(b)(1).
Accordingly, the trial court departed from the essential requirements of law where it ordered production of the billing records without a showing of relevancy, need, and undue hardship obtaining the information elsewhere. See Fla. R. Civ. P. 1.280(b)(3). The petition is granted, and the order on review is quashed.
The Estilien Court emphasized that, “the party’s need for the information and relevancy of the information must be balanced against the privacy rights of the attorney and client.”
ANALYSIS OF APPLICATION OF LAWPROVIDED BY PLAINTIFF AND DEFENDANTAND DISTINGUISHING PLAINTIFF’S CASES
In support of Plaintiff’s position, Plaintiff cited the case of Chrysler Corporation v Weinstein, 522 So.2d 894 (Fla. 3rd DCA, 1988) emphasizing that the 3rd DCA’s “review of the record shows that the trial judge found the number of hours to be reasonable in comparison to those spent by Chrysler’s attorneys”. However, this case is distinguishable from the HCA and ESTILIEN cases by virtue of the specific facts in the Chrysler case which differ substantially from the facts in the instant case, and was one in which Defense spent a substantial amount of time defending purchaser’s lemon law, breach of contract, warranty and punitive damage claims. In the instant case, applying the holding in the HCA and Estilien cases, Plaintiff did not establish that certain of or all of the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source. It is this Court’s opinion, based upon argument presented, and the Court’s review of the authority presented, that the billing records of opposing counsel are being sought by Plaintiff’s attorney solely for the purpose of supporting a claim for attorney’s fees — this is not permitted under Florida law. In addition, applying the holding in the Estilien case, the time State Farm’s counsel in the instant case spent defending the case has not been shown to be relevant to the amount of time Plaintiff’s counsel spent pursuing Plaintiff’s claims, nor has the need for such discovery been demonstrated.
Plaintiff also relied upon the case of State Farm Fire & Casualty Co. v Palma, 555 So.2d (Fla. 1990). Again, the specific facts in the State Farm case differ substantially from the facts in the instant case. The Court stated, in pertinent part,
“. . . Under the authority of section 627.428(1), Florida Statutes (1983),[2] it applied the principles set forth in our decision in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and awarded attorney’s fees to Palma in the amount of $253,500. In computing this fee, the trial court found that 650 was a reasonable amount of hours and that a reasonable hourly rate was $150. Further, the trial court applied a multiplier of 2.6. We note that State Farm’s counsel expended 731 hours on this case. On appeal, the district court affirmed and found the fee to be reasonable in light of the extraordinary circumstances presented, stating:
It appears that State Farm decided to “go to the mat” over the bill for thermographic studies, because, apparently, it is a diagnostic tool which is becoming more widely used contrary to State Farm’s view of what is “necessary medical treatment” as provided in the statute. Having chosen to stand and fight over this charge, State Farm, of course, made a business judgment for which it should have known a day of reckoning would come should it lose in the end. The court described a similar situation in McGowan v. King, Inc., 661 F.2d 48, 51 (5th Cir. 1981), in reversing what it termed a “stingy” allowance of attorney’s fees: . . .
The Palma Court found that “. . . the real issue was not an incidental medical bill. This record is clear that State Farm hoped to prove a point in this case regarding bills for this medical procedure that would avail it in other cases nationally. So, the stakes were high and the issue became complex, justifying the legal effort.”
The facts in the instant case substantially differ from the facts in the Palma case cited above. Comparing the facts of the instant case to the facts in the Palma case, Plaintiff did not establish that certain of or all of the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source. In addition, the time State Farm’s counsel in the instant case spent defending the case has not been shown to be relevant to the amount of time Plaintiff’s counsel spent pursuing Plaintiff’s claims, nor has the need for such discovery been demonstrated.
