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Florida First DCA quashes trial court ruling that party waived attorney-client privilege as to records sought in discovery by not providing privilege log

On November 17, 2021, in Andreatta, et al, v. Brown, No. 1D20-2397, the Florida First DCA granted a petitioner’s petition for a writ of certiorari and quashed a trial court order finding that the petitioners had waived attorney-client privilege by failing to file a privilege log. The First DCA observed that Fla. R. Civ. P. 1.280(b)(6) does not actually require the filing a privilege log, but instead only requires a party to “make the [privilege] claim expressly” and “describe the nature of the documents, communications, or things not produced or disclosed in a manner that . . . will enable other parties to assess the applicability of the privilege or protection.” The First DCA noted that here petitioners repeatedly e-mailed respondents’ counsel that he redacted attorney-client communications, explaining that petitioners had forwarded e-mails to him that were responsive to the discovery requests and apparently included discussion about those e-mails when they forwarded them. The First DCA concluded that the trial court erred by not conducting an in- camera review of the allegedly privileged records rather than simply concluding that the lack of a privilege log constituted waiver of the attorney-client privilege.

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