Florida Power & Light Company v. Mark W. Hicks , 2015 Fla. App. LEXIS 5508 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FLORIDA POWER & LIGHT COMPANY,
Petitioner,
v.
MARK W. HICKS,
Respondent.
No. 4D14-4337
[April 15, 2015]
CORRECTED OPINION
Petition for writ of certiorari to the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No.
562012CA003445.
Rebecca Mercier Vargas, Jane Kreusler-Walsh, and Stephanie L.
Serafin of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach,
and Ellen S. Malasky and David D. Austin, FPL Law Department, Juno
Beach, for petitioner.
Peter Ticktin and Jamie Sasson of The Ticktin Law Group, P.A.,
Deerfield Beach, for respondent.
GROSS, J.
We grant Florida Power & Light Co.’s petition for writ of certiorari and
quash the circuit court order requiring production of attorney-client
privileged documents because they were relevant to the plaintiff’s causes
of action.
Respondent sued FP&L for violation of the Florida Whistle Blower Act,
intentional infliction of emotional distress, and fraud. Respondent filed a
request for production; FP&L responded with objections based on the
attorney-client privilege and filed a privilege log. After respondent filed a
motion to compel, the circuit court required an in camera inspection of
those documents for which FP&L claimed a privilege.
Following the inspection, the court ordered production. It sustained
the privilege objections, but found that for certain documents “relevance
require[d] breaking of a privilege and production.” It held that such
relevant documents contained information that could not reasonably be
obtained from another source, so that the “privilege should be broken and
the documents provided.”
Certiorari is the appropriate vehicle to obtain review of orders requiring
cat-out-of-the-bag disclosure of privileged documents. See, e.g., Bd. of Trs.
of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.
3d 450, 457 (Fla. 2012) (quoting Allstate Ins. Co. v. Langston, 655 So. 2d
91, 94 (Fla. 1995)).
Unlike the work product doctrine, attorney-client privilege is not
defeated by an opponent’s showing of relevance and necessity. Genovese
v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). As
the Supreme Court has written, the attorney-client privilege
is not concerned with the litigation needs of the opposing
party. Instead, the purpose of the privilege is to “encourage
full and frank communication” between the attorney and the
client. This significant goal of the privilege would be severely
hampered if an insurer were aware that its communications
with its attorney, which were not intended to be disclosed,
could be revealed upon request by the insured. Moreover, we
note that there is no exception provided under section
90.502[, Florida Statutes] that allows the discovery of
attorney-client privileged communications where the
requesting party has demonstrated need and undue hardship.
Id. at 1068 (internal citations omitted). An order compelling production of
attorney-client communications based on relevance and need constitutes
a departure from the essential requirements of law. See Tumelaire v.
Naples Estates Homeowners Ass’n, 137 So. 3d 596, 599 (Fla. 2d DCA
2014).
Contrary to respondent’s argument, the circuit court’s order was not
based on the crime-fraud exception. The circuit court sustained the
privilege objections and did not make a finding that the crime-fraud
exception applied; to do so would have required an evidentiary hearing
after the in camera review. See Merco Grp. of the Palm Beaches, Inc. v.
McGregor, 39 Fla. L. Weekly D1594, 2014 WL 3729906 (Fla. 4th DCA July
30, 2014).
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TAYLOR and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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