28 Fla. L. Weekly Supp. 301a
Online Reference: FLWSUPP 2804GCAS
Insurance — Property — Discovery — Depositions — Plaintiff may take depositions of insurer’s corporate representative and desk adjuster and ask questions seeking relevant non-privileged information and information regarding any documents in claims file that insurer intends to introduce into evidence — Insurer must produce relevant non-privileged documents but is not required to produce entire claims file — Court declines to give advisory opinion on objectionable question and documents; specific objections to questions and documents must be made in accordance with rules of civil procedure
MASON DIXON CONTRACTING, INC., a/a/o Gloria Castaneda, Plaintiff, v. SECURITY FIRST INSURANCE COMPANY d/b/a SECURITY FIRST FLORIDA, Defendant. Circuit Court, 2nd Judicial Circuit in and for Liberty County. Case No. 19-58-CA. May 5, 2020. David Frank, Judge. Counsel: Roger Hatfield, Morgan & Morgan, P.A., Orlando, for Plaintiff. Joshua C. Barrows and Steven K. Richardson, Pensacola, for Defendant.
ORDER ON DEFENDANT’S OBJECTIONS AND MOTION FOR PROTECTIVE ORDER REGARDINGTHE DEPOSITION OF DEFENDANT’S CORPORATEREPRESENTATIVE AND “DESK ADJUSTER”
This cause came before the Court for hearing on April 16, 2020 on defendant’s objections and motion for protective order regarding the deposition of its corporate representative and “desk adjuster,” and the Court having reviewed the objections, motion, and responses, and all supporting and opposing materials submitted, heard argument of counsel, and being otherwise fully advised in the premises, finds
On October 10, 2018, the insured’s property was damaged in Hurricane Michael. There is no dispute that the insured notified defendant of the loss, and that defendant initiated the claims process without asserting any wholescale coverages exemptions or challenges, such as a lapse in payment or taking the position that the policy was not in effect on the day in question.
On February 9, 2019, the insured signed a post-loss assignment of benefits and rights to the plaintiff for services rendered or to be rendered to repair the damage.
On June 13, 2019 plaintiff filed an Amended Complaint alleging that defendant, “. . .has failed or refused to fully perform under the policy, fully value Insured’s losses and failed to fully pay for all of Insured’s losses. . . .”
In its answer, defendant acknowledged coverage by stating, “Admitted that Defendant extended coverage for damages under the policy; otherwise, denied.”
Defendant asserted the affirmative defenses of: a hurricane deductible; wear and tear; the insured’s faulty, inadequate, or defective maintenance or neglect; mitigation of damages; prior existing damage; and failure to provide a sworn proof of loss.
Plaintiff seeks to depose the defendant’s corporate representative and “desk adjuster.” The defendant is concerned that these witnesses will be required to produce documents or answer questions that would offend a valid protection or privilege from discovery. The primary concern appears to be claims handling information.
After filing their briefs, providing the Court case law, and arguing their points at the hearing, the parties further provided the Court a copy of a standard protective order used in another circuit and some (partially) agreed upon language for a proposed order. The Court does not believe either of these satisfactorily covers the issues at hand and, therefore, provides its own guidance.
As to the very specific issue of “claims handling” information, there is little doubt that the majority view and starting point is, “[U]ntil the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims file[ ] or to the insurer’s business policies or practices regarding handling of claims.” Homeowners Choice Property & Casualty Ins. Co. v. Mahady, 284 So.3d 582, 583 (Fla. 4th DCA 2019) [44 Fla. L. Weekly D2125b] (internal quotations and citations omitted).
But the analysis does not end there. The fact remains that there is no formal “claims file privilege” in Florida’s Evidence Code. Homeowners Choice Property & Casualty Ins. Co., Inc. v. Avila, 248 So.3d 180, 184 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D885a]. Instead, Florida’s district courts are starting to more expressly rely upon the step-by-step application of the long-established evidentiary doctrines of work product and relevancy.
“Without question, materials within an insurer’s claim file will frequently fit within the definition of work product.” Progressive American Ins. Co. v. Herzoff, 290 So.3d 153, 157 (Fla. 2d DCA 2020) [45 Fla. L. Weekly D292a] (citations omitted). “Ordinarily, materials that constitute an attorney’s work product are not discoverable,” however, “[t]he work-product privilege is not absolute, and the Florida Rules of Civil Procedure provide a mechanism for invading it. . . . Florida Rule of Civil Procedure 1.280(b)(3) provides that a party may be ordered to produce documents and tangible things prepared in anticipation of litigation ‘only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ ” Id. (citation omitted).
An excellent example of this applied to the “claims file” scenario was the situation in Avila where court noted:
Thus, a specifically-articulated document request for “photographs of the alleged property damage” may require either (a) production of such photographs, or (b) disclosure on a privilege log with a specifically-articulated basis for protection from discovery, even if those photographs have been filed with other non-discoverable, claim-related documents in the insurer’s “claims file” and coverage remains in dispute.
Id. at 184-85; see also State Farm Florida Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a].
Before a party can take advantage of the rule permitting the “invasion” of work product, the party must understand the nature of the documents being withheld. “Under Florida Rule of Civil Procedure 1.280, a party withholding information that is otherwise discoverable by claiming that it is privileged must ‘make the claim expressly’ and ‘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 other parties to assess the applicability of the privilege or protection.’ Fla. R. Civ. P. 1.280(b)(6).” Bainter v. League of Women Voters of Florida, 150 So.3d 1115, 1128 (Fla. 2014) [39 Fla. L. Weekly S689a]. In other words, a privilege log.
A party is not required to file a privilege log until all non-privilege objections have been addressed. Avatar Property & Casualty Ins. Co. v. Jones, No. 2D19-243, 2020 WL 1222732, at *3 (Fla. 2d DCA 2020) [45 Fla. L. Weekly D588a]. If the sole objection to discovery were that it sought privileged documents, a party would need to file a privilege log, “. . .prior to any hearing on the objection as the information contained in the privilege log would be necessary to ‘assess the applicability of the privilege or protection.’ ” Gosman v. Luzinski, 937 So.2d 293, 296, n.1 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2402a].
A trial court has the discretion to deem a privilege waived for failure to timely file an adequate privilege log. Century Business Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So.2d 1156 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1568a], citied with approval in Bainter.
Although waiver may result from the failure to file a privilege log, one is not required if the document requested belongs to a category of documents that is undeniably privileged. Nevin v. Palm Beach County School Board, 958 So.2d 1003, 1008 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1365a] (citation omitted). For example, one would be unnecessary for a document identified as a letter from an attorney to a client, and for which there were no apparent exceptions to the attorney — client privilege. Another example is the records of a consulting expert who is not to testify at trial. Id.
And then we have relevancy. “As a rule, ‘[d]iscovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence.’ ” Saints 120, LLC v. Moore, No. 1D19-973, 2020 WL 1429326, at *2 (Fla. 1st DCA Mar. 24, 2020) [45 Fla. L. Weekly D679a], quoting Allstate Insurance Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) [20 Fla. L. Weekly S217a].
Instructive here are some of the documents sought in Langston. They were items typically associated with “a claim of bad faith or unfair claims practices” — internal procedural memos, claims manuals, and standards for proper investigation of claims. The Langston court quashed the district court decision “to the extent that it permits discovery even when it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information.” Id. at 95.
Finally, an evidentiary hearing may he required to assess the relevancy of documents, such as financial records, and an in camera inspection is required to determine whether a privilege applies. Hett v. Barron-Lunde, 290 So.3d 565, 570 (Fla. 2d DCA 2020) [45 Fla. L. Weekly D177a].
The crux of the current motion and objections is in the form of a requested advisory opinion. We really do not yet know the specific questions or the specific documents. Instead, defendant seeks a prophylactic for potential objectionable questions and document requests. The analysis described above does not contemplate advisory opinions, and this Court is uncomfortable giving one. Information protected by the classic privileges, the work product doctrine, and the concept of relevancy can be protected with proper individual objections.
Accordingly, it is ORDERED AND ADJUDGED that
Defendant’s objections are SUSTAINED IN PART and OVERRULED IN PART and its motion for protective order is GRANTED IN PART and DENIED IN PART as follows:
1. Plaintiff will be permitted to take the depositions of the defendant’s corporate representative and desk adjuster.
2. The defendant will produce non-privileged documents that are relevant to the claims and defenses in this lawsuit, regardless of whether copies are included in the “claims file.”
3. Deposition questions that seek non-privileged, relevant information, such as the location of any policy specific language upon with defendant relies for any affirmative defense, are proper.
4. Defendant’s corporate representative and desk adjuster are not required to produce the entire claims file. However, if the defendant anticipates introducing any of these documents into evidence, the defendant waives its objections and the plaintiff will be permitted to examine the deponents about the documents and the information contained in them. If this occurs, or the court otherwise orders the production of the documents, after the depositions already have been taken, the plaintiff will be allowed a supplemental deposition of the deponents.
5. Objections to specific document requests will be made in accordance with Florida Rules of Civil Procedure 1.280, 1.310, 1.350, and 1.351. Objections that cannot be resolved directly by the parties shall be brought to the Court’s attention within 10 days of service of the same. The Court will rule on non-privilege objections on the papers and, if applicable, set a hearing on privilege objections and certain relevancy objections. The party opposing disclosure will file a complete and proper privilege log at least five (5) days prior to the hearing and will bring the subject documents to the hearing for an in camera review, if necessary.
6. Objections to specific questions at a deposition will be made in accordance with Florida Rules of Civil Procedure 1.280 and 1.310. Counsel will instruct their deponents not to answer questions for which they have a good faith basis to believe that the information sought is privileged or subject to a non-disclosure order of the Court. The party asserting an objection that includes an instruction not to answer shall request a ruling from the Court on the matter within 10 days of the deposition.
