Florida's Handbook on Civil Discovery Chapter 10 Discovery of Lawyer-Client Privileged Communications
10.00 | CHAPTER 10 INTRO
Confidential lawyer-client communications are, by statute, privileged, and therefore not discoverable.1 A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of legal services to the client, and those reasonably necessary for the transmission of the communication.2 However, the privilege can be waived, intentionally or unintentionally, thus subjecting the communication to discovery. A waiver by the client of part of the privileged communications, serves as a waiver as to the remainder of the communications about the same subject.3
In Southern Bell Tel. & Tel. Co. v. Deason,4 the Florida Supreme Court set forth the following criteria to judge whether a corporation’s communications are protected by the attorney-client privilege:
(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal services being rendered, within the scope of the employee’s duties; and
(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
The U.S. District Court for the Southern District of Florida has promulgated a Local Rule for the content required in a privilege log.6 In at least one instance, that Local Rule has served as guidance for a Florida court.7 Guidance for the content required in a privilege log in the Middle District of Florida can be found in Arthrex, Inc. v. Parcus Medical, LLC, M.D., Fla. 2012 (2012 WL 3778981).
A privilege log is not required until such time as broader, preliminary objections have been addressed. “A party is required to file a [privilege] log only if the information is otherwise discoverable. Where the partyclaims that the production of documents is burdensome and harassing... the scope of discovery is at issue. Until the courtrules on the request, the party responding to discovery does not know what will fall into the category of discoverable documents...”11 Waiver does not apply where assertion of the privilege is not document-specific, but category specific, and the category itself is plainly protected.12
9Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006) (“Attorney-client privilege and work-product immunity are important protections in the adversarial legal system, and any breach of these privileges can give one party and undue advantage over the other party. Florida’s courts generally recognize that an implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but resorted to only when the violation is serious.”).
As communications technology advances (facsimile, e-mail, test, etc.), the opportunities for inadvertent disclosure of lawyer-client privileged communications increase. Inadvertent disclosure of lawyer-client privileged communications, and the resultant issues of waiver and disqualification have been addressed by Florida courts more frequently in recent years, and in 2010, Fla. R. Civ. P. 1.285 was enacted, governing the inadvertent disclosure of privilegedmaterials. It was amended effective January 1, 2011.13 The rule is self-explanatory. To preserve the privileges recognized by law, the party must serve written notice of the assertion of privilege on the party to whom the materials were disclosed, within 10 days of actually discovering the inadvertent disclosure.14 The rule sets forth the duty of the party receiving such notice;15 the right to challenge the assertion of the privilege;16 and, the effect of a determination that the privilege applies.17
Florida law has always required the recipient of inadvertently disclosed attorney-client privileged communications to act appropriately, or risk being disqualified from the case.18 An attorney who promptly notifies the sender and immediately returns the inadvertently produced materials without exercising any unfair advantage will, generally, not be subject to disqualification.19
The recipient still has the right to challenge the claimedprivilege on the basis of waiver.20 The rule does not set forth any specific test to determine whether a waiver occurred, however, the courts have addressed this issue in the past. To determine whether the privilege has been waived due to inadvertent disclosure, Florida courts will apply the “relevant circumstances” test. The test involves a factual determination, thus requiring an evidentiary hearing. The court must consider:
(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production;
(2) the number of inadvertent disclosures;
(3) the extent of disclosure;
(4) any delay and measures taken to rectify the disclosures; and
(5) whether the overriding interests of justice would be served by relieving a party of its error.21
One should note the court’s consideration of the “precautions taken to prevent inadvertent disclosure.” As communications are more commonly transmitted by facsimile/e-mail, the prudent lawyer should carefully consider the protections in place (or not in place) at the recipient’s location. For example, many facsimile terminals are used by large groups of people, and may not provide the necessary privacy for the transmission of privileged communications. Facsimile and e-mail communications should, at the very least, always include a lawyer-client privilegenotice.22
Attorneys should also remember that they have ethical duties when they send and receive electronic documents in the course of representing their clients. These ethical responsibilities are now issues in the practice of law where lawyers may be able to “mine” metadata from electronic documents. Lawyers may also receive electronic documents that reveal metadata without any effort on the part of the receiving attorney. Metadata is information about information and has been defined as information describing the history, tracking, or management of an electronic document.
Metadata can contain information about the author of a document, and can show, among other things, the changes made to a document during its drafting, including what was deleted from or added to the final version of the document, as well as comments of the various reviewers of the document. Metadata may thereby reveal confidential and privileged client information that the sender of the document or electronic communication does not wish to be revealed.
In response, The Florida BarissuedEthics Opinion 06-2 (September 15, 2006), which provides as follows:
A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata. A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information’s receipt. The opinion is not intended to address metadata in the context of discoverydocuments.
Inadvertent disclosure does not always involve disclosure to the opposing party. Privileged materials may be inadvertently disclosed to a party’s own expert. In that circumstance, a party does not automatically waive the privilege simply by furnishing protected or privilegedmaterial. The court will consider whether the expert relied upon the material in forming his or her opinion.23
The lawyer-client privilege has been held to apply to an examination under oath (“EUO”), conducted by an insurer with its insured. The statements made during the examination were not discoverable in a subsequent criminal case involving the insured, and, the presence of criminal defensecounsel at the EUO did not waive the privilege.25
Footnotes
25Reynolds v. State, 963 So. 2d 908 (Fla. 2d DCA 2007) (“The examination is part of the insurer’s fact gathering for the dual purposes of (1) defending the insured, and (2) determining whether the policy covers the incident giving rise to the claim against the insured.”).
10.05 | REVIEW OF PRIVILEGED DOCUMENTS FOR DEPOSITION
26Proskauer Rose v. Boca Airport, Inc., 987 So. 2d 116 (Fla. 4th DCA 2008).
Congratulations! You're now booked up on Chapter 10 from Florida's Handbook on Civil Discovery Practice!
You might need to reference it during your pursuit of justice.
