Richard Mahoney, Margot Mahoney, Brett W. Martin and Julie Martin v. Blue Mountain Beach Master Owners Association, Inc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-93
_____________________________
RICHARD MAHONEY, MARGOT
MAHONEY, BRETT W. MARTIN
and JULIE MARTIN,
Petitioners,
v.
BLUE MOUNTAIN BEACH MASTER
OWNERS ASSOCIATION, INC.,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
August 30, 2019
JAY, J.
By their petition for writ of certiorari, Plaintiffs/Petitioners
seek review of three discovery orders entered by the trial court.
Having carefully reviewed all three, we grant certiorari only as to
a portion of one of the orders.
In its “Order Granting Defendant’s Request for Ruling on
Plaintiffs’ Discovery Objection and Defendant’s Third Motion to
Compel,” the trial court compels Plaintiffs to “produce all
documents responsive to requests 2 through 8 of Defendant’s
Second Request for Production to Plaintiffs . . . .” (Italics in
original.) Request number 3 asks for
[a]ny and all correspondence, including written
communication, emails, texts, faxed documents, or
scanned documents, between Plaintiffs and Plaintiffs’
Counsel, including interoffice communication within
Plaintiffs’ Counsel [sic] regarding efforts to notify Expert
of trial, coordinate the appearance of Expert at trial,
subpoena Expert to compel attendance at trial, or
perpetuate the testimony of Expert for use at trial.
(Emphasis added.)
“Certiorari review is the proper vehicle to challenge nonfinal
orders directing the disclosure of communications presumptively
covered by the attorney-client privilege.” Dominguez v. Citizens
Prop. Ins. Corp., 269 So. 3d 623, 626 (Fla. 2d DCA 2019). “For
certiorari to lie, a petitioner must demonstrate that the trial court
departed from the essential requirements of law resulting in
material harm of an irreparable nature.” Bennett v. Berges, 84 So.
3d 373, 374 (Fla. 4th DCA 2012). “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.” Montanez v. Publix Super Mkts., Inc., 135 So. 3d 510,
512 (Fla. 5th DCA 2014) (citing Allstate Ins., Co. v. Langston, 655
So. 2d 91, 94 (Fla. 1995)).
Here, on its face, Defendant’s third “request require[s]
disclosure of attorney-client communications. Therefore, the trial
court should not have ordered production of th[ose]
communications without first conducting an in-camera inspection
. . . .” Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240, 1243
(Fla. 5th DCA 2002) (citing Shell Oil Co. v. Par Four P’ship, 638
So. 2d 1050, 1050 (Fla. 5th DCA 1994) (holding that, “when
communications appear on their face to be privileged, the party
seeking disclosure bears the burden of proving that they are not”));
see also Dominguez, 269 So. 3d at 626 (emphasis in original) (“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
2
documents responsive to this request to determine whether the
attorney-client privilege applied.”).
The petition for writ of certiorari is GRANTED in part and
DENIED in part.
RAY, C.J., and BILBREY, J., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Daniel W. Uhlfelder of Daniel W. Uhlfelder, P.A., Santa Rosa
Beach, for Petitioners.
Benjamin J. Zimmern and Travis A. Bright of Galloway, Johnson,
Tompkins, Burr & Smith, PLC, Pensacola, for Respondent.
3