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In GEICO General Insurance Company v. Feller, 40 Fla. L. Weekly D2064d (Fla. 5th DCA Sept. 4, 2015), GEICO sought a writ of certiorari challenging an order overruling its work product and attorney-client privilege objections to the production of portions of its case file.  Certiorari was granted, the trial court’s order was quashed and the case was remanded for further proceedings.

The 5th DCA did not provide a factual basis or analysis in Feller, but instead referred to Sedgwick Claims Management Services Inc. v. Feller, 163 So. 3d 1252 (Fla. 5th DCA 2015) which had the same facts and issues; therefore, the 5th DCA adopted that ruling.  In Sedgwick, the 5th DCA found that the trial court erred on four grounds.

First, the trial court erred when it found the work product privilege to be inapplicable on the basis that the current case between these parties involved different issues than those presented in the prior litigation for which the documents were prepared.  It is well established that “work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.” Alachua Gen. Hosp. Inc. v. Zimmer USA, Inc., 403 So. 2d 1087, 1088 (Fla. 1st DCA 1981).

Second, the trial court erred when it found the attorney-client privilege inapplicable without ever reviewing the documents at issue.  “The trial court should not have ordered production of these communications without first conducting an in-camera inspection thereof.”   Alliant Ins. Servs. Inc. v. Riemer Ins. Grp., 22 So. 3d 779, 781 (Fla. 4th DCA 2009).

Third, the trial court erred when it found that the attorney-client privilege was waived by counsel's statement at a hearing.  Counsel represented to the trial court that he/she had not anticipated objecting to the discovery requests; however, the 5th DCA found that this exchange was not sufficient to waive the client's objections, which were later timely asserted in counsel's written responses to the requests.

Fourth, the trial court erred when it found that the privilege had been waived by counsel's filing of a privilege log, which was not produced in response to a trial court order. The trial court stated that the log was insufficient due to its lack of detail; however, the 5th DCA ruled that the log could have been amended to cure any defects had counsel been afforded the opportunity.

 


 

This summary was prepared by Katrina Luetzow of our firm.


Katrina Luetzow

 

 


40 Fla. L. Weekly D2064d

 

Insurance -- Discovery -- Claim file -- Order overruling objections based upon claims of work product and attorney-client privilege quashed

GEICO GENERAL INSURANCE COMPANY, Petitioner, v. LORI FELLER, ETC., ET AL., Respondents. 5th District. Case No. 5D15-505. Opinion filed September 4, 2015. Petition for Certiorari Review of Order from the Circuit Court for Brevard County, John M. Harris, Judge. Counsel: B. Richard Young, Megan M. Hall, and Courtney F. Smith, of Young, Bill, Roumbos & Boles, P.A., Pensacola, for Petitioner. Andrew Pickett, of Alpizar Law, LLC, Palm Bay, for Respondents.

(PER CURIAM.) Petitioner, GEICO General Insurance Company (“GEICO”), seeks certiorari review of an order compelling production of its claim files. We grant certiorari and quash the trial court's order overruling GEICO's objections, which were based upon claims of work- product and attorney-client privilege. As the facts and issues are the same in this case as in Sedgwick Claims Management Services, Inc., v. Feller, 163 So. 3d 1252 (Fla. 5th DCA 2015), we adopt the discussion and analysis set forth in Sedgwick.

Accordingly, we grant certiorari, quash the order on review, and remand for further proceedings consistent with this opinion.

PETITION GRANTED. (BERGER, WALLIS, and EDWARDS, JJ., concur.)





 



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