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Florida Third DCA rules that defendant waived work-product and attorney-client privileges by failing to file a privilege log with objections to subpoena as required by Fla. R. Civ. P. 1.280(b)(5)

On July 5, 2018, in GKK v. Cruz, No. 3D18-560, the Florida Third DCA ruled that the defendant in a premises liability slip and fall negligence case waived work-product and attorney-client privileges by failing to file a privilege log with objections to subpoena as required by Fla. R. Civ. P. 1.280(b)(5). The plaintiff had issued a records subpoena on a private investigator hired by the defendant, prompting the defendant to move for a protective order asserting that all of the items listed in various numbered categories of the subpoena were protected by the work-product and attorney-client privilege. However, the defendant did not file a privilege log specifically listing privileged documents, instead apparently relying on a blanket assertion of privilege with respect to the different categories of items sought. The trial court denied the motion for a protective order, prompting the defendant to seek a writ of certiorari from the Third DCA quashing the trial court’s order.

The Third DCA noted that Florida Rule of Civil Procedure 1.280(b)(5) requires a party asserting a privilege claim to “describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Although the defendant had not prepared any sort of itemized log for any of the categories of items sought, the Third DCA granted the certiorari petition regarding some of the listed categories after concluding that they obviously called for privileged information. Quoting from Nevin v. Palm Beach Cty. Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA 2007), the Court concluded that the finding of a waiver “should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected.” Regarding the remaining categories, the Court concluded that some of the items sought did not appear to be subject to privilege. The Third DCA consequently refused to disturb the trial court’s ruling denying the protective order as to those items.

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