JOAQUIN DOMINGUEZ & CARMEN DOMINGUEZ v. CITIZENS PROPERTY INSURANCE CORPORATION , 269 So. 3d 623 ( 2019 )


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  •                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.
    -3-
    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.
    -6-
    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
    -7-
    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.
    -8-
    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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