DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AMERICAN AIRLINES, INC. and EDWIN DIAZ,
Petitioners,
v.
KIM CIMINO, individually, as Personal Representative of the Estate of
MICHAEL CIMINO, and as Natural Guardian of MICHAEL DREW
CIMINO,
Respondent.
No. 4D18-2485
[April 17, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. 15-1723
(26).
Jennifer Olmedo-Rodriguez, Jesse H. Diner, Kelly H. Kolb, and Mary
Beth Ricke, of Buchanan Ingersoll & Rooney PC, Fort Lauderdale and
Miami, for petitioners.
Robert A. Rosenberg of The Law Offices of Robert A. Rosenberg, Coral
Springs, and Chris Kleppin and Chelsea A. Lewis of Glasser & Kleppin,
P.A., Plantation, for respondent.
FORST, J.
Petitioners American Airlines, Inc. (“AA”) and Edwin Diaz seek certiorari
review of a discovery order that requires Petitioners to produce privileged
documents to Respondent Kim Cimino, individually, as personal
representative of the estate of Michael Cimino, and as natural guardian of
Michael Drew Cimino (collectively, “the Estate”). The trial court
determined that Petitioners “waived privileges” through affirmative
defenses. The trial court reached this decision without conducting an in
camera review of the privileged material at issue, and without defining the
scope of any waiver. As set forth below, we grant the petition and remand
for further proceedings.
Background
The pending litigation arises from Michael Cimino’s suicide, committed
days after he was fired by AA. Diaz, who had only recently become
Cimino’s supervisor, told Cimino he was being fired for time card fraud.
Cimino, a manager in the cargo area at the Miami airport, had worked for
AA for over thirty-four years, purportedly without incident, until Diaz
became his supervisor.
In its operative complaint, the Estate alleges claims for violation of the
Florida Civil Rights Act, negligent and intentional infliction of emotional
distress, negligent retention, and wrongful death. The Estate alleges that
the pretextual firing of Cimino, a white, non-Hispanic male, followed
Petitioner’s long pattern of alleged discrimination and hostility based on
race, national origin, and/or ethnicity. Specifically, the Estate alleges that
Diaz “hates Anglos” and led the charge to fire Cimino and other Anglo
employees before him, resulting in their replacement with Hispanic
employees. The Estate further alleges that Diaz, who had been transferred
from another location for bullying, bullied and harassed Cimino,
threatening him with criminal charges and the loss of his pension and
insurance.
According to the complaint, Diaz hired Cimino’s replacement well before
accusing Cimino of any wrongdoing and firing him. Following purported
claims that he was “piggybacking” into the employee parking lot, Cimino
was placed on administrative leave. He invoked his right to have a co-
worker, Michelle Chung, present for any discussions with Diaz. Discovery
from Chung is one of the contested issues—the Estate alleges that Diaz
scheduled his final meeting with Cimino when he knew Chung had left
work for the day.
The complaint further alleges that AA knew about the bullying and
harassment, and that Cimino was suicidal after the firing, as he
participated in AA’s mental health program which had recommended
medication and additional treatment. In short, the complaint alleges that
all of the above led to Cimino’s depression and ultimate suicide.
The discovery at issue concerns AA’s investigation, conducted by
Jeanette Gibbs (an HR representative), after receiving anonymous letters
from AA Miami cargo employees following Mr. Cimino’s suicide (the “Gibbs
Investigation”), and Gibbs’ resulting report. The letters referenced a
petition to remove Diaz and other bullying supervisors from their
positions. According to AA, the purpose of the Gibbs Investigation was to
gather information to allow AA’s legal department to assess AA’s liability
for potential claims brought by the Estate and/or other AA employees
relating to workplace conditions at AA’s Miami cargo division.
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Petitioners have denied liability and asserted various affirmative
defenses—the third, fourth and fifth of which pertain to this petition.
Briefly, the third, a “mixed-motive” defense, provides that any
discriminatory motive for the firing was mixed with a legitimate, non-
discriminatory reason, i.e., Cimino’s purported falsification of records and
dishonesty. The fourth, a “good faith” defense, is based on AA’s policies
that prohibit discrimination and harassment in the workplace and its
procedures for reporting and investigating employee claims of such
conduct. In their fifth affirmative defense, Petitioners contend that Mr.
Cimino failed to take advantage of preventative and/or corrective
opportunities established by AA’s policies and procedures by not reporting
any of the complained-of conduct.
The Estate filed three motions to compel discovery of materials and
testimony that Petitioners assert is attorney-client and work product
privileged. Specifically, the Estate moved to compel nonparties Chung and
Gibbs to answer deposition questions and to compel AA to produce
documents associated with requests 15 and 22. 1 These discovery motions
sought materials and witness testimony related to the Gibbs Investigation.
The Gibbs Investigation file exceeds 1,000 pages and involves matters
beyond those specific to Mr. Cimino.
In their omnibus response to the Estate’s motions to compel,
Petitioners explained the genesis of the Gibbs Investigation and their basis
for asserting the attorney-client and work-product privileges. Petitioners
also proposed that the trial court should review the documents in camera
if it had any questions regarding the privileged nature of the Gibbs
Investigation.
At the hearing on its motions to compel, the Estate argued for the first
time that Petitioners waived the privileges via their third (mixed-motive),
fourth (good faith) and fifth (failure to report) affirmative defenses. In their
court-ordered supplemental memorandum, Petitioners disputed the
claimed waiver and consistently maintained the existence of a privilege.
Without conducting an in camera review of the material claimed to be
1 Request no. 15 seeks: “Any complaint from any employee of the corporate
Defendant that Edwin Diaz was discriminatory, harassing and/or bullying them
at any work site of the corporate Defendant during Diaz’s employment with the
corporate Defendant.” Request no. 22 seeks “[a]ll anonymous complaints
concerning various member[s] of the Miami Cargo maintenance team referred to
in the deposition of Jeanette Gibbs . . . .”
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privileged, the trial court granted the Estate’s motions to compel. The
court ruled solely that Petitioners had “waived privileges by virtue of their
Affirmative Defenses.” Not only did the trial court fail to identify which
affirmative defense(s) gave rise to the waiver, 2 but the court failed to define
the scope of the purported waiver. Petitioners moved for reconsideration,
requesting that, consistent with this court’s precedent, the trial court
conduct an in camera inspection of the Gibbs Investigation materials and
witness testimony to determine the scope of the waiver of the privileges
and whether those privileged materials and witness testimony fall outside
the scope of that waiver. The trial court denied the motion, and this
petition follows.
Analysis
“Certiorari is available only when the petitioner is able to demonstrate
both a departure from the essential requirements of law and the lack of an
adequate remedy by direct appeal after final judgment.” Estate of
Schleusener v. Stuart,
462 So. 2d 129, 130 (Fla. 4th DCA 1985). “Certiorari
is the appropriate vehicle to obtain review of orders requiring cat-out-of-
the-bag disclosure of privileged documents.” Fla. Power & Light Co. v.
Hicks,
162 So. 3d 1074, 1075 (Fla. 4th DCA 2015) (citing Bd. of Trs. of the
Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450,
457 (Fla. 2012)).
In seeking a writ, Petitioners argue that the trial court failed to conduct
an in camera hearing before it ordered the disclosure of privileged
information, and failed to define the scope of the purported waiver. We
agree with both arguments and grant the writ.
Our holding in Alliant Insurance Services, Inc. v. Riemer Insurance
Group,
22 So. 3d 779 (Fla. 4th DCA 2009), relied upon by Petitioners both
below and on appeal, is controlling. In Alliant, the trial court similarly
granted a motion to compel discovery—over the petitioner’s assertions of
attorney-client privilege—without conducting an in camera inspection of
the documents at issue and without defining the scope of any waiver of
the privilege. In granting certiorari relief, we held that
[i]f a party seeks to compel the disclosure of documents that
the opposing party claims are protected by attorney-client
privilege, the party claiming the privilege is entitled to an in
camera review of the documents by the trial court prior to
2 The trial court denied Petitioners’ motion to clarify which defense(s) “waived
privileges.”
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disclosure.
Similarly, if attorney-client privilege is waived regarding a
certain matter, the waiver is limited to communications on the
same matter. If the parties disagree as to the scope of the
privilege waiver, a trial court must delineate the scope of the
waiver before it may compel discovery of information.
22 So. 3d at 781 (internal citations omitted); accord Butler v. Harter,
152
So. 3d 705, 714 (Fla. 1st DCA 2014); see also Las Olas River House Condo.
Ass’n, Inc. v. Lorh, LLC,
181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding
it was error to order production of documents regarding communications
with the condo association and its attorneys without an in camera
inspection on the basis the privilege was waived by disclosure to the
association’s community manager); Old Holdings, Ltd. v. Taplin, Howard,
Shaw & Miller, P.A.,
584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding
that where documents may be protected from discovery by both the
attorney-client privilege and the work-product doctrine, the petitioners are
entitled to an in camera review of the documents by the trial court prior to
disclosure). 3
Here, the Estate seeks to compel the discovery of material that AA
claims is privileged. As such, Petitioners are entitled to an in camera
review of the material by the trial court before any disclosure. Alliant Ins.
Servs.,
22 So. 3d at 781. As for the trial court’s finding that Petitioners
“waived privileges by virtue of their Affirmative Defenses,” the court must
delineate the scope of the waiver before it may compel discovery of
information. See id.; see also Butler, 152 So. 3d at 714 (holding that “even
if privilege had been waived here, that waiver would have been limited, and
petitioner would have been entitled to an in camera review” and “find[ing]
the trial court departed from the essential requirements of the law in
compelling disclosure of the entire litigation file, because that file is
protected by work-product and attorney-client privilege”).
Conclusion
Petitioners will suffer irreparable harm that cannot be remedied on
appeal of a final order if they are compelled to produce privileged materials
and witness testimony pursuant to the discovery order. Accordingly, we
grant the petition, quash the discovery order and remand this matter to
the trial court with instructions to conduct an in camera inspection and
3 Petitioners discussed Alliant and Las Olas River House extensively in the
petition; the Estate addressed neither case in its response.
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delineate the scope of any waiver.
Petition granted, order quashed, and remanded for further proceedings.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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