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In US Bank v. Rivera, 38 Fla. L. Weekly D2662b (Fla. 3d DCA December 18, 2013), Rivera moved to vacate a final judgment on the grounds of improper service and fraud upon the court. Rivera sought discovery related to the claim of fraud to support the argument that the claim should be dismissed with prejudice. The trial court ordered US Bank to produce the requested materials.

On review, the 3d DCA held that the requested discovery pertained to the production of materials that were protected by the attorney-client and other privileges. Those privileges had not been waived; therefore, the materials were not discoverable.

Additionally, the discovery requested following the final judgment and pursuant to the motion to vacate related to the claim of fraud for which there was no supporting sworn affidavit of proof. Only the allegations with respect to the insufficiency of service were supported by sworn proof. Because discovery pursuant to a motion to vacate is only permitted if the motion is supported by sworn proof, the 3d DCA granted the petition for writ of certiorari and quashed the trial court's discovery order requiring the production of documents. See Rooney v. Wells Fargo Bank, N.A., 102 So. 3d 734, 736 (Fla. 4th DCA 2012).

 

 

This summary was prepared by Eric Ochotorena of our firm.


Eric Ochotorena

 

 


38 Fla. L. Weekly D2662b

 

Civil procedure -- Discovery -- Trial court departed from essential requirements of law by ordering production of materials that are protected by attorney-client and other privileges which had not been waived -- Discovery after final judgment has been entered and pursuant to motion to vacate will normally be permitted only if motion is supported by sworn proof of allegations contained therein, and this burden was not satisfied in instant case where requested discovery related to claim of fraud, but only allegations regarding insufficiency of service of process were supported by sworn proof

US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WAMU MORTGAGE PASS THROUGH CERTIFICATES FOR WMALT SERIES 2007-OA7, Petitioner, vs. GLADYS RIVERA and DENNIS RIVERA, Respondents. 3rd District. Case No. 3D13-128. L.T. Case No. 09-77359. Opinion filed December 18, 2013. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge. Counsel: GrayRobinson, P.A., and Thomas H. Loffredo, Terrance W. Anderson, Jr., and Jeffrey T. Kuntz, for petitioner. The Stabenow Law Firm, PLLC, and Tony L. Stabenow, for respondents.

(Before LAGOA, SALTER and LOGUE, JJ.)

(LOGUE, Judge.) Petitioner seeks a writ of certiorari to quash two discovery orders, entered on December 12, 2012 and January 9, 2013, respectively. Respondents had moved to vacate a final judgment on two grounds: improper service and fraud upon the court by the Petitioner's prior lawyers.1 The requested discovery related to the claim of fraud and was intended to support Respondent's argument that the case should be dismissed with prejudice. We grant the writ and quash the two orders for the following reasons.

First, the discovery orders on review pertain to the production of materials that are protected by the attorney-client and other privileges, and, contrary to Respondent's arguments, these privileges have not been waived. Prieto v. Union Am. Ins. Co., 673 So. 2d 521, 523 (Fla. 3d DCA 1996) (citing Smith v. Armour Pharm. Co., 838 F. Supp. 1573, 1576 (S.D. Fla. 1993)) (holding that the waiver of the attorney-client privilege must be intentional).

Second, discovery conducted after a final judgment has been entered and pursuant to a motion to vacate will normally be permitted only if the motion is supported by sworn proof of the allegations contained therein. Rooney v. Wells Fargo Bank, N.A., 102 So. 3d 734, 736 (Fla. 4th DCA 2012) ("We do not think that discovery can commence on a motion for relief from judgment based upon unsworn allegations."). Respondents here have failed to satisfy this burden. The requested discovery related to the claim of fraud, but only the allegations with respect to the insufficiency of the service were supported by sworn proof. We, therefore, grant the petition for writ of certiorari and quash the orders under review.

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1. Prior to Respondent's motion, Petitioner, by its new counsel, itself moved to vacate the final judgment entered in its favor.







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