ALLSTATE INSURANCE COMPANY, CHRISTINE BROGAN, GEORGE NAFTZINGER, JOHN CONNOLLY, MICHAEL SNELL, AND GARY MELLINI v. JESSE LEE RAY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DEBORAH L. VEILLEUX ( 2022 )

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ALLSTATE INSURANCE COMPANY, CHRISTINE BROGAN, GEORGE
NAFTZINGER, JOHN CONNOLLY, MICHAEL SNELL, GARY
MELLINI, and EVA MC INTEE,
Petitioners,
v.
JESSE LEE RAY, as personal representative of the Estate of
Deborah L. Veilleux, deceased,
Respondent.
No. 2D21-2912
September 30, 2022
Petition for Writ of Certiorari to the Circuit Court for Hillsborough
County; Caroline Tesche Arkin, Judge.
Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, for Petitioners.
Daniel L. Greene and Brent G. Steinberg of Swope Rodante, P.A.,
Tampa, for Respondent.
STARGEL, Judge.
This proceeding arises from a bad faith action brought by
Jesse Lee Ray, as personal representative of the Estate of Deborah
L. Veilleux (the Estate), against Allstate Insurance Company.
Allstate, along with several of its employees (the Petitioners), seek
certiorari review of an order compelling Allstate to produce
documents from the employees' personnel files and documents
pertaining to Allstate's business goals, strategies, and metrics. We
grant the petition in part.
Background
In 2006, Veilleux was at fault in an accident with Gerald Aloia
while he was on his motorcycle, rendering him a paraplegic.1 After
Aloia and Allstate, Veilleux's insurer, were unable to agree to a
settlement within Veilleux's policy limits, Aloia filed suit against the
Estate. The case went to trial on damages, and the jury returned a
verdict in favor of Aloia in excess of $44 million. The Estate moved
for a new trial or for remittitur, and the trial court allowed the
Estate to elect either to have a new trial or to accept a remitted
verdict. Allstate chose to accept the remitted verdict on behalf of
1 Veilleux died in 2007 from unrelated causes.
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the Estate, and an amended final judgment was entered against the
Estate in the amount of $21,879,414.
The Estate then sued Allstate for bad faith for failing to reach
a settlement and for breaching its duty to defend by rejecting the
opportunity to have a new trial, thereby binding the Estate to the
judgment amount. During discovery, the Estate sought various
categories of documents, including the personnel files of several
Allstate employees involved in the underlying claim as well as
documents reflecting the "goals, strategies, objectives, performance
metrics[,] or business targets" for Allstate's claims department.
Allstate objected to these requests on several grounds, including
relevance, privacy, attorney-client privilege, and work product.
After a hearing on the Estate's motion to compel, the trial
court ordered Allstate to produce the requested documents.
Regarding the personnel records, the court found that there "was at
least enough of a connection to the underlying claim that they
would be relevant." While the court ordered redaction of any "social
security numbers, telephone numbers, drug test results,
information relating to an employee's family's financial situation, or
protected health information," it did not address Allstate's attorney-
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client privilege or work product claims. The trial court further
stated that it was "troubled" by the request for information
concerning Allstate's business goals and metrics but nevertheless
ordered production of those document as well.
Analysis
"[R]eview by certiorari is appropriate when a discovery order
departs from the essential requirements of law, causing material
injury to a petitioner throughout the remainder of the proceedings
below and effectively leaving no adequate remedy on appeal."
Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (citing
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987)).
The latter two requirements are jurisdictional and must be satisfied
before an appellate court can determine whether there was a
departure from the essential requirements of the law. Parkway
Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648-49
(Fla. 2d DCA 1995).
In the instant petition, the Petitioners have raised numerous
issues regarding the trial court's order compelling production. We
conclude that two of those issues meet the requirements outlined
above and thus merit relief.
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First, we agree with the Petitioners that the portion of the trial
court's order compelling production of Allstate's employee personnel
files violates the employees' fundamental privacy rights under the
Florida Constitution. See Alterra Healthcare Corp. v. Est. of Shelley,
827 So. 2d 936, 941 (Fla. 2002) (recognizing that the constitutional
right to privacy "may, under certain circumstances, extend to
personal information contained in nonpublic employee personnel
files"); see also Walker v. Ruot, 111 So. 3d 294, 295 (Fla. 5th DCA
2013) ("Personnel files undoubtedly contain private information.").
As a preliminary matter, we note that individual employees
whose personnel files are the subject of the Estate's discovery
requests are not parties to the underlying bad faith action, and,
with the exception of Mike Snell, who objected during his
deposition, they did not have the opportunity to personally raise a
privacy objection. Under these circumstances, certiorari is an
appropriate avenue for the employees to obtain relief from the trial
court's order. See Nussbaumer v. State, 882 So. 2d 1067, 1072
(Fla. 2d DCA 2004) (explaining that certiorari is appropriate where a
nonparty to the underlying proceedings "does not have an adequate
remedy by appeal" (citing Briggs v. Salcines, 392 So. 2d 263 (Fla. 2d
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DCA 1980))); see also Walker, 111 So. 3d at 295 (entertaining
privacy argument where "Walker was named as a defendant, but he
had not been served with the complaint as his whereabouts were
unknown, so he lacked the opportunity to personally assert a
privacy objection").
Turning to the merits of the privacy issue, we conclude that
the trial court departed from the essential requirements of the law
by compelling production of documents from the personnel files
without conducting an in-camera review. See Walker, 111 So. 3d at
294-96 (holding that trial court departed from the essential
requirements of law by ordering Walker's employer to disclose his
personnel file without first conducting an in-camera inspection, as
the file likely contained information "which would not be relevant to
th[e] lawsuit, but would be highly intrusive to Walker's privacy
interests if disclosed"); see also Muller v. Wal-Mart Stores, Inc., 164
So. 3d 748, 750 (Fla. 2d DCA 2015) (quashing discovery order
compelling production of servicemember's military personnel file
without in-camera review); James v. Veneziano, 98 So. 3d 697, 698-
99 (Fla. 4th DCA 2012) (holding that in-camera review of private
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medical records was necessary to determine the extent to which the
records were relevant).
While the Estate's discovery requests in this case stop short of
seeking wholesale production of the personnel files, they still
encompass numerous categories of potentially irrelevant
information which, if disclosed, could jeopardize the employees'
privacy interests. Although the trial court made a commendable
effort to protect the employees' privacy by requiring the redaction of
personal information such as social security numbers, telephone
numbers, and protected health information, the Estate's sweeping
discovery requests still pose a significant risk to the employees'
privacy rights. Therefore, in this situation, an in-camera review of
the personnel files is necessary "in order to segregate the relevant
documents which [are] discoverable from the irrelevant documents
which [are] not." Walker, 111 So. 3d at 296.
The second issue that merits relief involves Allstate's claims
that certain documents from the personnel files of John Connolly
and Christine Brogan are privileged. See Harborside Healthcare,
LLC v. Jacobson, 222 So. 3d 612, 615 (Fla. 2d DCA 2017)
("Certiorari relief is . . . appropriate in cases which allow discovery
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of privileged information because once such information is
disclosed, there is 'no remedy for the destruction of the privilege
available on direct appeal.' " (quoting Coates v. Akerman, Senterfitt
& Eidson, P.A., 940 So. 2d 504, 506 (Fla. 2d DCA 2006))). Allstate
points out that because Connolly works as Allstate's in-house
counsel, any documents in his personnel file containing legal advice
or analysis are covered by attorney-client privilege.2 Allstate further
avers that both Connolly and Brogan—the adjuster who handled
the bad faith claim—prepared documents containing their mental
impressions regarding the bad faith claim that constitute protected
work product.3
The trial court departed from the essential requirements of the
law by entering the order compelling production without conducting
an in-camera review of the documents at issue or even addressing
2Attorney-client privilege "extends to communications between
employees and in-house general counsel, whether oral, contained in
documents or contained in a database." Ford Motor Co. v. Hall-
Edwards, 997 So. 2d 1148, 1153 (Fla. 3d DCA 2008).
3 We reject the Estate's contention that Allstate's attorney-
client privilege and work product arguments are unpreserved.
Allstate lodged objections on these grounds in its response to the
Estate's production requests and reiterated those objections during
the hearing on the motion to compel.
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Allstate's privilege claims. See East Bay NC, LLC v. Est. of Djadjich
ex rel. Reddish, 273 So. 3d 1141, 1144 (Fla. 2d DCA 2019) ("When
parties dispute that documents are protected under certain
statutory provisions, the proper course is for the trial court to
conduct an in-camera inspection to determine if the requested
documents are discoverable." (citing Tampa Med. Assocs. v. Est. of
Torres, 903 So. 2d 259, 262 (Fla. 2d DCA 2005))); Harborside
Healthcare, 222 So. 3d at 616 ("[I]t may be a departure from the
essential requirements of the law when the trial court requires
production of documents—without explanation—despite objections
that statutory protections apply." (citing Bartow HMA, LLC v.
Kirkland, 171 So. 3d 783, 785 (Fla. 2d DCA 2015))); Patrowicz v.
Wolff, 110 So. 3d 973, 974 (Fla. 2d DCA 2013) ("The failure to
address whether a claimed privilege applies prior to ordering the
disclosure of documents is a departure from the essential
requirements of the law.").
While the Estate contends that relief is not warranted because
Allstate did not submit a privilege log, we note that the obligation to
file a privilege log does not arise until the trial court has determined
that the information sought is otherwise discoverable, i.e., after the
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trial court has ruled on any non-privilege objections. Avatar Prop.
& Cas. Ins. Co. v. Jones, 291 So. 3d 663, 667 (Fla. 2d DCA 2020)
(citing Morton Plant Hosp. Ass'n v. Shahbas, 960 So. 2d 820, 826
(Fla. 2d DCA 2007)). Therefore, because Allstate's non-privilege
objections to the requested discovery were not resolved until the
rendition of the order currently under review, we cannot agree that
Allstate's privilege claims have been waived at this juncture. See id.Conclusion
Accordingly, we grant the petition in part and quash the order
compelling production to the extent that it requires Allstate to
immediately produce the employee personnel files or any material
over which Allstate has asserted attorney-client privilege or work
product protection without the trial court first performing an in-
camera review consistent with this opinion.
Petition granted in part and denied in part; order quashed in
part.
NORTHCUTT and LaROSE, JJ., Concur.
Opinion subject to revision prior to official publication.
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