9 Fla. L. Weekly Supp. 526a
Insurance — Attorney’s fees — Discovery — Oral order requiring production of documents is valid enforceable order — Privilege — Work product — Error to order counsel for medical provider to disclose entire file in matter below in attorney’s fees proceeding — Medical provider putting expert witness on stand who testified that he had been permitted to review entire file and testified to contents of file only as they related to time expenditures did not waive privilege as to attorney’s work product contained in file
FRANCISCO GOMEZ, M.D., P.A., (as assignee of Jaqueline Saccucci), Petitioner, vs. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent. Circuit Court,13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 00-7027, Division X. L.C. Case No. 99-3991-SC. Opinion filed June 6, 2002. Review of a nonfinal order of the County Ct., Hillsborough County, Florida. James D. Arnold, Judge. Counsel: Timothy A. Patrick, Tampa, for Petitioner. Janice W. Kemp, Tampa, for Respondent.
OPINION
(PER CURIAM.) Petitioner requests review of a nonfinal discovery order of the county court directing counsel for Plaintiff below to produce his file in the matter below to determine attorney’s fees due therein. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2). Because we find that no general waiver of privilege has taken place, and because the order is overbroad in that it fails to protect privileged information, we grant the writ and quash the order below.
The facts are as follows. The underlying dispute is attorney’s fees. Prior to the hearing on the issue, Respondent’s counsel filed a Request for Production, with which Petitioner’s counsel did not fully comply. Indeed, out of all the items requested, which included all billing records, Petitioner’s counsel provided only the contract for representation. Notwithstanding the failure to produce, on May 23, 2000, the trial court held a hearing on the subject of attorney’s fees. Therein, Petitioner presented the testimony of expert witness Mark Albrechta, who testified that he had been permitted to review the entire file. On motion of counsel for Respondent, the trial court judge granted a motion to continue the hearing and issued an oral ruling that required Petitioner’s counsel to produce his file within three days’ time, based upon the fact that the testimony of Petitioner’s expert resulted in a waiver of privilege. The order was never reduced to writing. Subsequently, on June 2, 2000, Respondent filed a Motion to Compel [production]. On September 1, 2000, the trial court rendered an order granting the Motion to Compel, which required Petitioner’s counsel to permit review of the entire file by Respondent by 5:00 p.m. August 29, 2000. The Order Granting Motion to Compel is the basis for this petition. The petition, filed September 8, 2000, is timely.
The standard of review on a petition for writ of certiorari is whether the trial court afforded Petitioner due process, observed the essential requirements of law, and based its ruling on competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). Petitioner contends only that the trial court departed from the essential requirements of law in its order compelling Petitioner’s counsel to produce the entire file. We agree and quash the order below.
We address first the issue of the enforceability of the initial oral order of the trial court judge that Petitioner produce his entire file. While not preferred, oral orders are valid and enforceable. See Jamason v. State, 455 So.2d 380 (Fla. 1984), and Sandstrom v. State, 309 So.2d 17 (Fla. 4th DCA 1975).
It is the substance of the order, rather than its form, that is the problem here. While it would not have been incorrect to order the production of those items reviewed by the expert which pertained to Petitioner’s time, billing, and costs, the failure to limit discovery to those items is not proper. Panzer, M.D. v. Johnson, 384 So.2d 58 (Fla. 4th DCA 1980) (discovery order which did not protect against disclosure of mental impressions, conclusions, opinions or legal theories of an attorney is overbroad). Additionally, the failure of the order to protect the attorney’s work product violates Florida Rule of Civil Procedure 1.280(b)(3). Instead, the items originally requested by Respondent in its Request to Produce should have been produced, and to the extent they were not, production enforced by the court. Petitioner’s counsel did not waive privilege of the remainder of his file merely by putting an expert on the stand who testified as to the contents of the file only as they related to time expenditures. Id. Waiver occurs only when the substance of the privileged information is revealed. Eastern Airlines v. Gellert, 452 So.2d 570 (Fla. 3d DCA 1984). Respondent has made no showing that privileged information has been revealed so as to subject Petitioner to a general waiver of privilege.
In conclusion, to the extent Petitioner’s counsel’s mental impressions and other work product are not disclosed, it is proper for defense counsel to discover and inquire into intended testimony of Mr. Albrechta. 5500 North Corp. v. Willis, 729 So.2d 508 (Fla. 5th DCA 1999). On the other hand, if the contested materials or testimony become intended for trial use, any existing work product privilege will cease. Id.
It is therefore
ORDERED and ADJUDGED that the writ is GRANTED in part to the extent the entire contents of Petitioner’s file be disclosed, and DENIED in part, in that Respondent is entitled to the specific discovery initially requested. This cause is REMANDED to the county court for proceedings consistent with this opinion. (Judges Barton and Simms, JJ., concur.)
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