JOAQUIN DOMINGUEZ & CARMEN DOMINGUEZ v. CITIZENS PROPERTY INSURANCE CORPORATION

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOAQUIN DOMINGUEZ )
and CARMEN DOMINGUEZ, )
)
Petitioners, )
)
v. ) Case No. 2D18-768
)
CITIZENS PROPERTY )
INSURANCE CORPORATION, )
)
Respondent. )
)
Opinion filed April 24, 2019.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Gregory
Holder, Judge.
Steven E. Gurian and Anthony M. Lopez
of Marin Eljaiek, Lopez, & Martinez P.L.,
Coconut Grove, for Petitioners.
J. Pablo Cáceres of Butler,
Weihmuller, Katz, Craig, LLP, Tampa,
for Respondent.
ATKINSON, Judge.
Joaquin and Carmen Dominguez seek certiorari review of two nonfinal
orders partially denying their motions for protective order and objections to the
subpoenas duces tecum directed to (1) the legal assistant and (2) the records'
custodian of the law firm that they retained as counsel. Concerning the first order, the
trial court departed from the essential requirements of the law by finding that the
homeowners waived their attorney-client privilege when the legal assistant contacted
their insurer, Citizens Property Insurance Corporation, to report the claim. With respect
to the second order, the trial court departed from the essential requirements of the law
by failing to conduct an in camera inspection of the purportedly privileged documents
prior to ordering their production. As such, we must grant the writ of certiorari and
quash these portions of the orders.
Background
The homeowners filed suit against Citizens seeking money damages for
breach of an insurance contract and a declaratory judgment that the insurance policy
covered their property loss. Before contacting Citizens about water damage sustained
on a property that they lease to a third party, the homeowners retained counsel. One of
the firm's legal assistants contacted Citizens to report the loss. Citizens made a
determination that the loss was not covered under the policy. The homeowners
subsequently filed suit.
During the course of discovery, Citizens filed and served a subpoena
duces tecum with deposition on the legal assistant who had first reported the
homeowners' loss. It also filed and served a subpoena duces tecum without deposition
on the records custodian for the law firm. As a result, the homeowners filed two
motions for protective order and objections to subpoena duces tecum, in which they
claimed that the information sought by Citizens was not discoverable pursuant to the
attorney-client and/or work-product privileges.
The trial court denied these motions in part. In its written order, the court
concluded that "there was a waiver with respect to some attorney client
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communications" and permitted Citizens to depose the legal assistant concerning
limited topic areas: why she told Citizens there was water damage at the covered
premises; where she obtained the facts concerning the water damage; and the dates on
which she obtained those facts. It also denied, in whole or in part, the motion to quash
the subpoena duces tecum as to three of Citizens' requests: (1) the firm's papers or
electronic records regarding the subject property or the loss pre-lawsuit; (2) paper or
electronic records relating to communications between the legal assistant and the
homeowners regarding the September 22, 2016, loss except those regarding
compensation; and (3) paper or electronic records provided to the legal assistant and
the firm by the homeowners or any of their representatives prior to the lawsuit being
filed.
In a separate order, the trial court directed the firm's records' custodian to
produce some of the documents sought by Citizens: (1) documents relating to
communications between the firm and the homeowners regarding the September 2,
2016, loss, including the initial referral of the claim and facts regarding the claim; and (2)
documents generated or created by the firm regarding the loss or the subject property
prior to the lawsuit being filed except those regarding compensation.1 Upon denial of
their motions, the homeowners sought certiorari review of these nonfinal orders.
Certiorari review is the proper vehicle to challenge nonfinal orders
directing the disclosure of communications presumptively covered by the attorney-client
privilege. See Robichaud v. Kennedy, 711 So. 2d 186, 187 (Fla. 2d DCA 1998) (citing
1In
the written order, the trial court granted portions of the motion to quash
the subpoena duces tecum relating to requests that could be obtained directly from third
parties. These portions of the order are not the subject of this appeal.
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Shell Oil Co. v. Par Four P'ship, 638 So. 2d 1050, 1050 (Fla. 5th DCA 1994)); see also
Montanez v. Publix Super Mkts., Inc., 135 So. 3d 510, 512 (Fla. 5th DCA 2014) ("An
order that erroneously compels a party to produce privileged information is a classic
example of a discovery order subject to certiorari review because the harm caused by
the disclosure of privileged information is irreparable." (citing Allstate Ins. Co. v.
Langston, 655 So. 2d 91, 94 (Fla. 1995))). To establish entitlement to a writ of
certiorari, "a petitioner must demonstrate that the order constitutes a departure from the
essential requirements of the law and results in material injury for the remainder of the
case that cannot be corrected on appeal." Paton v. GEICO Gen. Ins. Co., 190 So. 3d
1047, 1052 (Fla. 2016).
Here, the trial court departed from the essential requirements of the law in
two ways: (1) by ordering the production of documents responsive to requests that
appear on their face to potentially invade the attorney-client or work-product privileges
without first conducting an in camera inspection and (2) by finding that the homeowners
had waived their attorney-client privilege.
To the extent that Citizens sought documents relating to communications
between the firm and the homeowners regarding the loss, this is an attempt to invade
the attorney-client privilege on its face. The trial court erred by ordering the production
of these documents without first conducting an in camera review of the documents
responsive to this request to determine whether the attorney-client privilege applied.
See AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So. 3d 510, 511 (Fla. 2d DCA
2015); Patrowicz v. Wolff, 110 So. 3d 973, 974 (Fla. 2d DCA 2013) ("A party claiming
that documents sought by an opposing party are protected by the attorney-client
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privilege is entitled to have those documents reviewed in camera by the trial court prior
to their disclosure." (citing Bennett v. Berges, 84 So. 3d 373, 375 (Fla. 4th DCA
2012))); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240, 1243 (Fla. 5th DCA
2002) (holding that the trial court erred by failing to conduct an in camera inspection
before ordering the production of documents pursuant to a request that sought attorney-
client communications on its face).
The trial court also departed from the essential requirements of the law in
ordering the production of documents generated or created by the firm before reviewing
the documents responsive to that request to determine whether they were the firm's
work product. The phrase "generated or created by the firm" provides for the production
of documents that may disclose the mental impressions of the homeowners' counsel.
This type of "opinion work product is generally afforded absolute immunity" since
"proper representation demands that counsel be able to assemble information and plan
her strategy without undue interference." Acevedo v. Doctors Hosp., Inc., 68 So. 3d
949, 953 (Fla. 3d DCA 2011); accord State v. Rabin, 495 So. 2d 257, 263 (Fla. 3d DCA
1986) ("The protection of an attorney's mental process is essential to the proper
functioning of the adversary system.").
Unlike the order relating to the records' custodian, the order directed
toward the subpoena duces tecum to the firm's legal assistant does not actually order
the production of documents; it merely denies, in part, the motion for protective order
and objection.2 Under the circumstances of this case in its current procedural posture,
2Florida Rule of Civil Procedure 1.280(c), made applicable through rule
1.410(e), permits, but does not require, the trial court to order "any party or person
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we cannot make a determination that the trial court departed from the essential
requirements of the law by denying the homeowners' motion for protective order related
to these requests. However, the trial court must still conduct an in camera inspection of
any of the specific, responsive documents that the homeowners claim are privileged
before requiring their production. See generally Genovese v. Provident Life & Accident
Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011) ("Where a claim of privilege is asserted, the
trial court should conduct an in-camera inspection to determine whether the sought-after
materials are truly protected by the attorney-client privilege."). As to the order relating to
the firm's legal assistant, the trial court departed from the essential requirements of the
law by concluding that the homeowners had waived the attorney-client privilege merely
by having the law firm report the loss. Such a waiver can occur when a party bases its
claim on the very matters that it later claims are privileged. See, e.g., Savino v.
Luciano, 92 So. 2d 817, 819 (Fla. 1957) (finding an express or implied waiver of
accountant-client privilege by seeking an accounting of money due under an
employment contract). However, this exception to the general rule that a party does not
waive attorney-client privilege merely by bringing or defending a suit only applies "where
the party seeking to avoid discovery has injected into the litigation issues going to the
very heart of the litigation." Home Ins. Co. v. Advance Mach. Co., 443 So. 2d 165, 168
(Fla. 1st DCA 1983). While this might be the case for some of the putatively privileged
communications and information—e.g., those that made their way into the insurance
claim that was ultimately submitted to the insurer—this may very well not have been
provide or permit discovery" if it denies the motion for protective order in whole or in
part.
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true of other communications made by, or information conveyed from, the homeowners
to their law firm.
Attorney-client privilege might not apply to facts that were the basis of the
homeowners' loss, but what the homeowners said to their law firm is covered,
regardless of whether they might have been talking about facts that themselves could
be the subject of inquiry during discovery. In other words, the prospect that some or all
of the facts discussed by the attorney and the client might ultimately have been included
in the insurance claim itself does not vitiate the privilege of what would be otherwise
protected communications that relate to those facts. Cf. Jenney v. Airdata Wiman, Inc.,
846 So. 2d 664, 668 (Fla. 2d DCA 2003) ("[T]he simple fact that Jenney raised the issue
[of intent] is not sufficient to waive his attorney-client privilege.").
Although the homeowners did not automatically waive their privilege by
retaining a law firm to report and settle a property insurance claim, this does not mean
that they can shield from discovery the underlying facts concerning the property loss.
That is, the homeowners cannot tell the law firm facts about the property loss "in
confidence," and then refuse to disclose them when Citizens takes their deposition.
See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) ("The privilege only protects
disclosure of communications; it does not protect disclosure of the underlying facts by
those who communicated with the attorney."); see also Jenney, 846 So. 2d at 668("[B]ecause Jenney's claim does not necessarily require proof through his conversations
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with his attorney, the sword and shield doctrine does not apply to waive his attorney-
client privilege.").3
By finding a waiver, the trial court implicitly concluded that the underlying
communications were, in fact, privileged. Citizens contends that no privilege attached in
the first instance because neither the legal assistant nor the firm were providing legal
services by reporting the loss and presenting the claim to Citizens.
The law does not require an all-or-nothing approach to this inquiry.
Depending on the circumstances, some functions undertaken by lawyers might
constitute the rendering of legal services for the purposes of invoking the attorney-client
privilege, even though such function could have been undertaken by a nonlawyer (e.g.,
negotiating a complex real estate transaction or a collective bargaining agreement).
And attorney-client privilege might attach to some communications made in the
rendering of legal services, even though the same lawyer might have provided
additional nonlegal services related to the same matter. See Skorman v. Hovnanian of
Fla., Inc., 382 So. 2d 1376 (Fla. 4th DCA 1980). However, given the available facts and
our certiorari standard of review, we cannot reach that question regarding the
communications at issue here. This nuanced determination may be better made after
the required in camera inspection of the specific documents that the homeowners
contend are privileged.
3Thehomeowners here have not sought to avoid discovery of the facts
underlying the property loss. In fact, at the time it served the two subpoenas on the firm
and the legal assistant, Citizens had already deposed both homeowners about the
source and extent of the water damage.
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To the extent that the order partially denying the homeowners' motion for
protective order and objection to the subpoena duces tecum directed to the firm's legal
assistant finds a waiver of the attorney-client privilege, it is hereby quashed. The other
order concerning the subpoena duces tecum directed to the firm's records custodian is
also quashed to the extent it requires the production of documents responsive to
requests that appear on their face to potentially invade the attorney-client or work-
product privileges without first conducting an in camera inspection.
Certiorari granted, trial court order quashed in part, and case remanded.
KELLY4 and KHOUZAM, J.J., Concur.
4JudgeKelly has been substituted for Judge Crenshaw, an original panel
member in this proceeding. Judge Kelly has viewed a recording of the oral argument.
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