Gkk v. Cruz , 251 So. 3d 967 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed July 5, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-560
Lower Tribunal No. 12-882
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GKK, etc.,
Petitioner,
vs.
Petronila Cruz,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rodney
Smith, Judge.
Mitrani, Rynor, Adamsky & Toland, P.A., and Loren H. Cohen, Steven R.
Adamsky, Eric Sage, and Adam Schlossberg (Weston), for petitioner.
Goldman & Hellman, and Gary M. Hellman (Fort Lauderdale), for
respondent.
Before SALTER, EMAS and LOGUE, JJ.
EMAS, J.
GKK, a Partnership, defendant below, seeks a writ of certiorari quashing an
order denying GKK’s motion for protective order and objections to the scope of a
subpoena deuces tecum served by Petronila Cruz, plaintiff below, upon Mitchell
Adelman (“Adelman”), an investigator hired by GKK to investigate a slip and fall
accident in which Cruz was allegedly injured.
The subpoena duces tecum enumerated seven separate categories of items
that Adelman was instructed to bring with him to his deposition.
GKK filed an objection to the subpoena duces tecum and moved for a
protective order, asserting, inter alia, that the items listed in paragraphs One, Two,
Three, Six and Seven sought items protected by the work-product or attorney-
client privilege.1 GKK did not file a privilege log for any of these listed items, as
required by Florida Rule of Civil Procedure 1.280(b)(5).2
The trial court overruled GKK’s objections and denied the motion for
protective order. This petition followed.
1 GKK did not seek a protective order for the items listed in paragraphs Four and
Five of the subpoena duces tecum and those items are not a part of this petition.
2 That rule provides:
When a party withholds information otherwise discoverable under
these rules by claiming that is it privileged or subject to protection as
trial preparation material, the party shall make the claim expressly and
shall 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.
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We grant the petition as it relates to paragraphs One, Six and Seven. While
it is true that, as a general rule, a party failing to file a privilege log may be deemed
to waive these privileges, see Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla.
3d DCA 2004), that general rule is subject to an exception: The finding of a
waiver “should not apply where assertion of the privilege is not document-specific,
but category specific and the category itself is plainly protected.” Nevin v. Palm
Beach Cty. Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA 2007). In the instant
case, the privilege raised as to paragraphs One, Six and Seven are categorical
assertions of privilege, and we conclude that the items sought in these paragraphs
are plainly protected.3 Therefore, the failure to file a privilege log did not waive
3 “Under the work product doctrine, documents prepared by or on behalf of a party
in anticipation of litigation are not discoverable.” Marshalls of MA, Inc. v. Minsal,
932 So. 2d 444, 446 (Fla. 3d DCA 2006). “If materials are prepared solely for a
purpose other than litigation, they are not protected by the work product privilege.
If they were prepared in anticipation of litigation, they will not lose their protected
status, even if they were also generated for another purpose.” Id. Documents are
prepared in “anticipation of litigation” for purposes of the work product doctrine if
they were “prepared in response to some event which foreseeably could be made
the basis of a claim in the future.” Id. at 447. See Seaboard Air Line R. Co. v.
Timmons, 61 So. 2d 426, 427-28 (Fla. 1952) (holding that “a party is not
entitled…to inspect the statements, memoranda, and other documents constituting
the ‘work product’ of the opposing party as to the matter which is the subject of the
litigation” and that examples of such work product include: “(1) written statements
of witnesses relating to the occasion on which the injury occurred; (2) statements
or reports from agents, officers or employees of the defendant company relating to
the accident; and (3) records, investigation sheets, memoranda, and photographs,
relating to the accident, including any and all information…received by the
defendant’s attorneys from investigators and adjusters.”); Federal Ins. Co. v. Hall,
708 So. 2d 976 (Fla. 3d DCA 1998) (holding that an insurance adjuster’s notes are
protected work product and compelling their production departs from the essential
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the privilege as to these categories of items sought. Nevin, 958 So. 2d at 1008;
DLJ Mortg. Capital, Inc. v. Fox, 112 So. 3d 644 (Fla. 4th DCA 2013).
However, the same cannot be said as to the items or categories of items
sought in paragraphs Two and Three. While some of the items sought may be
subject to a privilege, others are not (at least on their face) subject to any privilege,
as even petitioner’s counsel commendably conceded in oral argument. The failure
to file a privilege log waived the assertion of a privilege, and thus we deny the
petition as to the items sought in these two paragraphs.
We grant the petition in part, deny the petition in part, withhold formal
issuance of the writ, and remand to the trial court for further proceedings consistent
with this opinion.
requirements of law); Goldstein v. Great Atlantic & Pacific Tea Co., 118 So. 2d
253, 255 (Fla. 3d DCA 1960) (holding: “Communications, memoranda, and
reports passing between the client and his attorneys and his or their employed
investigators, relating to the accident, the investigation thereof, and the preparation
for the trial…are not available to the opposing party on discovery.”) See also Fla.
R. Civ. P. 1.280(b)(4), (providing that “a party may obtain discovery of documents
and tangible things otherwise discoverable . . . and prepared in anticipation of
litigation” by that party’s attorney or insurer “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.”)
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