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Florida Fifth DCA quashes trial court order compelling UIM insurer in bad faith case to produce discovery subject to claimed work product and attorney-client privileges

On January 12, 2018, in State Farm v. Knapp, Case No. 5D17-447, the Florida Fifth DCA quashed a trial court order compelling a defendant UIM insurer in a bad faith case to produce discovery subject to claimed work product and attorney-client privileges. The plaintiff had served interrogatories seeking information about how much a defense medical expert had been paid by the defendant during the preceding three years, a discovery demand authorized by Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999). Initially, State Farm objected to portions of the plaintiff’s Boecher discovery and stated that it did not maintain any database or index in the ordinary course of business that could be accessed to identify the amounts it paid to the expert when he was engaged to perform analysis, provide testimony, and/or complete compulsory medical examination. Undeterred, the plaintiff filed a motion to compel a better response, which the trial court granted. State Farm then answered that based on a manual review of its records, the “best approximation” was that the expert had been paid $1,235,067.75 over the preceding three years for his services to State Farm. Still not satisfied, the plaintiff scheduled the depositions of two State Farm employees who had been involved in answering the interrogatory. The subpoenas duces tecum to the State farm employees also sought the production of documents used or reviewed during their analysis. State Farm moved to quash the subpoenas on several bases, including that the subpoenaed documents were protected from disclosure by the work product doctrine and attorney-client privilege. Although a privilege log was prepared by State Farm and reviewed by the trial court, in denying State Farm’s motion the trial court failed to specifically address the privilege claims. The Fifth DCA quashed the subpoenas on this basis, directing the trial court on remand to determine whether the privilege claims were well-founded.