State Farm v. Knapp

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Petitioner,
v. Case No. 5D17-447
DAVID C. KNAPP AND LOGAN ATKINSON,
Respondents.
________________________________/
Opinion filed January 12, 2018
Petition for Certiorari Review
of Order from the Circuit Court
for Brevard County, Charles
J. Roberts, Judge.
Rhonda B. Boggess, and Gina P. Grimsley,
of Taylor, Day, Grimm & Boyd, Jacksonville,
for Petitioner.
Christopher V. Carlye, of The Carlyle
Appellate Law Firm, The Villages, for
Respondent, David C. Knapp.
No appearance for other Respondent.
EDWARDS, J.
State Farm Mutual Automobile Insurance Company petitions this Court to issue a
writ of certiorari regarding discovery orders compelling production of documents that
State Farm claims the work product doctrine and the attorney-client privilege protect from
disclosure. Although the trial court reviewed the documents in camera, its orders did not
state which documents State Farm properly designated as work product nor which
documents contained privileged attorney-client communications. Furthermore, the trial
court’s orders failed to explain the justification for requiring State Farm to turn over its
work product documents to Respondent David C. Knapp, and there is no justification here
for ordering production of confidential attorney-client documents to opposing counsel.
Under the circumstances, the trial court departed from the essential requirements of the
law, subjecting State Farm to harm that cannot be remedied in a later plenary appeal.
Accordingly, we grant the petition and quash the orders in question.
FACTUAL BACKGROUND
Respondent was involved in two automobile wrecks within six months.
Respondent obtained medical treatment following these wrecks, and he sued both of the
adverse drivers. He also sued his insurer, State Farm, for payment of
uninsured/underinsured motorist benefits and bad faith. State Farm retained and
identified Dr. Michael Zeide as an expert witness to address Respondent’s alleged injuries
and the medical care and treatment related to those injuries.
In turn, Respondent served discovery seeking information about how often State
Farm had retained Dr. Zeide as an expert and how much money it had paid him, directly
or indirectly, during the preceding three years. Our supreme court authorized this type of
discovery, within certain limits, in the case of Allstate Insurance Co. v. Boecher, 733 So.
2d 993 (Fla. 1999). Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) codifies this so-
called Boecher discovery. Boecher discovery allows a party to gather information that
can be used to provide a factual basis for proving and arguing to the jury that an expert
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witness, such as Dr. Zeide, may have a financial bias favoring the party retaining the
expert, here State Farm. See Boecher, 733 So. 2d at 997-98.1
Initially, State Farm objected to portions of Respondent’s Boecher discovery and
stated that it did not maintain any database or index in the ordinary course of business
that could be accessed to identify the amounts it paid to Dr. Zeide when he was engaged
to perform analysis, provide testimony, and/or complete compulsory medical
examinations. However, State Farm did serve unverified answers to Respondent’s
interrogatories, providing other information, such as the testimonial percentage and
percentage of engagement of its experts, including Dr. Zeide, by plaintiffs versus
defendants.
Respondent filed a motion to compel better responses, which the trial court
granted. The trial court required State Farm to disclose the amount Dr. Zeide billed to
State Farm, the amount State Farm paid him, and the total amount of money that State
Farm or anyone acting on behalf of any State Farm entity had paid to each listed expert
witness, directly or indirectly, during the preceding three years (2013-2015) for all services
rendered, excluding payments or charges for medical treatment provided.
In response to the court’s order, State Farm provided verified answers to
interrogatories, stating that it conducted a manual review of its records. State Farm also
gave information regarding Dr. Zeide, including the number of claims and amount of
money paid for compulsory medical examinations or record reviews for the years in
1 But see Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla.
2017). Worley seems, as a practical matter, to permit full Boecher discovery only when
it is directed to personal injury defendants and their insurers, while shielding injured
plaintiffs from having to disclose information about similar repetitious referral relationships
that exist between doctors and plaintiffs’ counsel by invoking the attorney-client privilege.
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question. According to State Farm, during those three years, Dr. Zeide was retained in
601 claims and received $1,235,067.75 in compensation for providing his services. State
Farm advised that, because the numbers were calculated by hand following a manual
review of claims files, the information was “its best approximation of the individual
payments it made to Dr. Zeide” during the three years covered by Respondent’s Boecher
discovery.
Not satisfied with this additional information, Respondent scheduled the deposition
of Bruce Peterson, a State Farm representative who verified the Boecher interrogatory
answers in this case. Respondent also noticed the deposition of a different State Farm
representative, Mike Wallace, who verified State Farm’s answers to the Boecher
interrogatories regarding Dr. Zeide in a case between Amanda Park and State Farm,
saying that it was not feasible to provide that information and would cost hundreds of
thousands of dollars to compile. Both deposition notices were duces tecum, requiring
each named witness to produce all documents relied upon or generated in connection
with providing the Boecher information; all written policies, manuals, memos, or other
documents that set forth State Farm’s policies for tracking payments made to retained
experts; and all correspondence, e-mails, or other documentation relating to the issue of
State Farm’s payment to Dr. Zeide during the three years in question. State Farm
objected, moved for a protective order, and moved to quash the duces tecum document
requests on a number of grounds, including that the information sought was beyond the
proper scope of discovery, that it invaded the privacy of non-parties, that it sought
documents protected from disclosure by the work product doctrine and attorney-client
privilege, and that compliance was unduly burdensome.
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Respondent asserted that State Farm’s answers to interrogatories regarding its
dealing with Dr. Zeide were inconsistent in this case compared to its answers given in the
Park case, which Respondent asserted were both different from the answers State Farm
gave to similar interrogatories in a third case between Cynthia Parent and State Farm. In
the Parent case, State Farm advised that it paid Dr. Zeide or the companies employing
him a total of $1,235,077—a difference of $9.25 from the answer given in the present
case. Based on the allegedly inconsistent answers, Respondent asserted that State
Farm was not giving accurate answers to the interrogatories, which justified taking the
depositions of Wallace and Peterson.
At the conclusion of the December 20, 2016 hearing on State Farm’s motions, the
trial court orally announced its rulings regarding what subject matter could be addressed
in each deposition and what documents needed to be provided. The trial court suggested
postponing the depositions scheduled for January 6, 2017, so that State Farm could
compile the documents, prepare a privilege log, and allow time for the trial court to review
privileged information if there was a dispute. Respondent postponed the depositions to
January 10, 2017. The trial court also granted Respondent’s request to order
ExamWorks, a company employing Dr. Zeide, to provide evidence of all payments it made
to Dr. Zeide for any State Farm entity for the same three years. ExamWorks filed its
response, advising that it did not have any responsive documents that it maintained in the
ordinary course of business.
On December 28, 2016, the trial court entered a written order regarding State
Farm’s objections and motions, which required the documents and privilege logs to be
provided to the court and opposing counsel ten days prior to the depositions. This
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deadline translated to a December 30 due date, two days after the order. State Farm
filed its privilege log related to the Wallace notice of deposition on the due date, identifying
proprietary information that he had relied on for providing responses in the Park case,
together with an affidavit from Wallace explaining his responses. State Farm filed a
motion for extension of time on December 30, 2016, seeking five additional business days
to prepare and file the privilege log regarding Peterson. On January 5, 2017, State Farm
filed its privilege log, with an amended log filed the following day, regarding the documents
described in the duces tecum portion of Peterson’s deposition notice. The amended
privilege log identified documents that State Farm claimed constituted work product and
documents that allegedly were or contained privileged attorney-client communications.
The amended privilege log identified each document by date, author, recipients, subject
matter, and privilege(s) asserted.
At the January 11, 2017, hearing, the trial court announced that it had reviewed
the documents attached to the privilege logs and determined what should be redacted.
The trial court directed State Farm to pick up the redacted documents from the court on
January 12 and provide them to Respondent’s counsel on January 13. On January 13,
2017, State Farm filed a motion for extension of time and to stay so that it could have time
to determine whether it would seek appellate review of the court’s order once it was
reduced to a written, executed order.
The court’s oral rulings announced on January 11 were set forth in a written order
filed January 31, 2017, and an amended order filed February 7, 2017, but dated nunc pro
tunc January 13, 2017. The trial court ruled that the documents related to State Farm’s
internal policies and procedures were proprietary in nature and not reasonably calculated
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to lead to the discovery of admissible evidence; therefore, State Farm did not need to
produce them in discovery. However, the trial court ordered that the information and
documents relating to State Farm’s use of and payments to Dr. Zeide were reasonably
calculated to lead to the discovery of admissible evidence; thus, they were discoverable.
The trial court stated that it made redactions “consistent with the reasoning above” to
those documents which were ordered to be produced.
These orders required State Farm to provide the redacted documents to
Respondent’s counsel no later than 5:00 p.m. on January 13, 2017. In an order dated
February 10, 2017, the trial court granted State Farm’s previously filed motion for stay;
however, the stay would expire at 5:00 p.m. on February 14, 2017. Respondent served
amended notices of depositions for Wallace and Peterson to take place on February 15,
2017. State Farm then filed its petition with this Court, and we granted State Farm’s
motion for stay.
STANDARD OF REVIEW
This Court may grant a petition for certiorari “only when the petitioner establishes
(1) a departure from the essential requirements of the law, (2) resulting in material injury
for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.”
Capital One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010). This Court first
examines prongs two and three to determine its certiorari jurisdiction. See Holden Cove,
Inc. v. 4 Mac Holdings Inc., 948 So. 2d 1041, 1041 (Fla. 5th DCA 2007); Barker v. Barker,
909 So. 2d 333, 336 (Fla. 2d DCA 2005), rev. denied, 914 So. 2d 952 (Fla. 2005). If
jurisdictional prongs two and three are not fulfilled, we are bound to dismiss the petition.
See Capital One, N.A., 34 So. 3d at 212.
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Certiorari is the appropriate vehicle to review an interlocutory discovery order
requiring the production or disclosure of information for which a privilege is asserted. See
Seminole Cty. v. Wood, 512 So. 2d 1000, 1001 (Fla. 5th DCA 1987). “The basis for
allowing certiorari review of certain discovery orders is that discovery of protected material
could result in letting the ‘cat out of the bag,’ and injury could result if such information
was disclosed.” Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336, 339 (Fla. 5th DCA
2005); see also State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493, 497 (Fla. 5th
DCA 2014); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So. 2d 277,
279 (Fla. 2d DCA 2005).
DISCUSSION AND ANALYSIS
When a party asserts privilege objections in opposition to discovery requests, the
trial court must make specific findings to support its denial of those objections. Such
findings are necessary for meaningful appellate review. This Court specifically addressed
this issue in Magical Cruise Co. v. Turk, 114 So. 3d 233 (Fla. 5th DCA 2013). In Turk,
the majority relied on Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038 (Fla. 4th DCA
2001), granted certiorari relief, and quashed an order requiring the petitioner to turn over
work product because the trial court made no findings to justify the production. 114 So.
3d at 233; see also Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla
2d DCA 2017). We remanded with instructions to the trial court to reconsider the
petitioner’s work product objections and to support any order requiring production of the
documents with appropriate findings. Turk, 114 So. 3d at 233.
In the present case, the trial court’s orders directing production of the documents
are devoid of any determination that the documents at issue were not work product or
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protected by attorney-client privilege. Instead, the orders merely provide that the
documents are reasonably calculated to lead to the discovery of admissible evidence.
That finding only addressed the possible relevance of the documents while completely
ignoring State Farm’s claims that the documents were exempt from discovery as
privileged work product or confidential attorney-client communication. Because State
Farm filed appropriate objections, motions, and privilege logs asserting that work product
and/or attorney-client privilege protected the documents at issue, the trial court was
required to make specific detailed findings addressing each privilege claim before
ordering production. See id.; Dismas, 795 So. 2d at 1039. Accordingly, because the trial
court failed to address the privilege claims, we grant the petition, quash the trial court’s
orders, and remand for further proceedings.
During its review on remand, the trial court must determine whether State Farm’s
work product privilege claims are well-founded. Pursuant to Florida Rule of Civil
Procedure 1.280(b)(3), materials prepared in anticipation of litigation by or for a party or
its representative are protected from discovery, unless the party seeking discovery has
need of the material and is unable to obtain the substantial equivalent without undue
hardship. The rationale supporting the work product doctrine is that “one party is not
entitled to prepare his case through the investigative work product of his adversary where
the same or similar information is available through ordinary investigative techniques and
discovery procedures.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). Fact work
product traditionally protects that information which relates to the case and is gathered in
anticipation of litigation. See State v. Rabin, 495 So. 2d 257, 260 (Fla. 3d DCA 1986).
Opinion work product consists primarily of the attorney’s mental impressions,
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Petitioner,
v. Case No. 5D17-447
DAVID C. KNAPP AND LOGAN ATKINSON,
Respondents.
________________________________/
Opinion filed January 12, 2018
Petition for Certiorari Review
of Order from the Circuit Court
for Brevard County, Charles
J. Roberts, Judge.
Rhonda B. Boggess, and Gina P. Grimsley,
of Taylor, Day, Grimm & Boyd, Jacksonville,
for Petitioner.
Christopher V. Carlye, of The Carlyle
Appellate Law Firm, The Villages, for
Respondent, David C. Knapp.
No appearance for other Respondent.
EDWARDS, J.
State Farm Mutual Automobile Insurance Company petitions this Court to issue a
writ of certiorari regarding discovery orders compelling production of documents that
State Farm claims the work product doctrine and the attorney-client privilege protect from
Furthermore, if on remand the trial court determines that certain documents
constitute confidential attorney-client communication, they are beyond the reach of
discovery. See Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18, 24-25
(Fla. 2017). The attorney-client privilege is governed by section 90.502, Florida Statutes
(2016), which provides that a client has a “privilege to refuse to disclose and to prevent
any other person from disclosing the contents of confidential communications when such
other person learned of the communications because they were made in the rendition of
legal services to the client.” Furthermore, there are no “relevance” or “need” exceptions
to the attorney-client privilege. See Genovese v. Provident Life & Accident Ins. Co., 74
So. 3d 1064, 1068 (Fla. 2011); see also Quarles & Brady, LLP v. Birdsall, 802 So. 2d
1205, 1206 (Fla. 2d DCA 2002). The documents for which State Farm asserted attorney-
client privilege include emails from State Farm employees that are either directed to or
show copies being provided to their attorneys. Thus, because State Farm has
established a good faith basis for asserting the attorney-client privilege, the trial court
must determine on remand whether that privilege protects each objected-to document
from discovery.
Accordingly, we grant the petition, quash the orders denying State Farm’s motion
for protective order and granting Respondent’s motion to compel disclosure of documents
that State Farm asserted were protected from discovery by either the work product
doctrine or attorney-client privilege, and remand for further proceedings consistent with
this order.
PETITION GRANTED, ORDERS QUASHED.
COHEN, C.J., and BERGER, J., concur.
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