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FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 29

CASES FROM THE WEEK JULY 22, 2022

COMMENTS THE TRIAL JUDGE MADE BEFORE THE PARTIES INTRODUCED ANY EVIDENCE SUFFICIENT FOR DISQUALIFICATION

A.L.P. v. State, 47 Fla. L. Weekly D1531 (Fla. 5^th DCA Jul. 15, 2022):

A party may seek disqualification of a trial judge when the party reasonably fears that he or she will not receive a fair trial or hearing, because of specifically described prejudice or bias of the judge.

Here, the motion to disqualify alleged that the trial judge had made specific comments before the introduction of any evidence in the case, and that those comments that would give a reasonably prudent person in well-founded fear of not being able to receive a fair or impartial hearing.

While a trial judge may form mental impressions and opinions during the course of a hearing, he or she may not prejudge the case.

COURT MUST DISMISS A SUCCESSIVE MOTION BASED ON RULE 1.540(b) WHEN THE GROUNDS ASSERTED IN THAT MOTION WERE KNOWN TO THE MOVANT AT THE TIME THE FIRST 1.540(b) MOTION WAS FILED

Perez v. Saima Group Corp., 47 Fla. L. Weekly D1500 (Fla. 3^rd DCA Jul. 13, 2022):

A successive Rule 1.540(b) motion based on the same grounds as the first 1.540(b) motion, grounds known to the movant at the time of the filing of the first motion, is essentially a motion for rehearing that does not toll the time for the filing of a notice of appeal.

COMPELLING DISCLOSURE OF ASSERTED TRADE SECRET INFORMATION WITHOUT MAKING REQUIRED FINDINGS AS TO WHETHER THE INFORMATION WAS A TRADE SECRET AT ALL, AND, IF SO, WHETHER THE PARTY CHALLENGING THE TRADE SECRET PROTECTION HAD SHOWN REASONABLE NECESSITY FOR DISCLOSING IT, DEPARTS FROM THE ESSENTIAL REQUIREMENTS OF LAW

Fiberoptics Technology, Inc. v. Sunoptic Technologies, LLC, 47 Fla. L. Weekly D1516 (Fla. 1^st DCA Jul. 13, 2022):

There is a three-step analysis that a trial court must undergo when faced with a claim that a discovery request seeks the production of a protected trade secret. First, the trial court must determine whether the information requested includes trade secrets, which usually requires the court to conduct an in-camera review of the documents.

Second, if the request seeks information subject to the trade secret privilege, the court must then determine whether the party seeking production can show a reasonable necessity for the information, which is a fact-specific analysis that generally requires the court to decide whether the need for production outweighs the interest in maintaining confidentiality.

Third, if the court determines there is a reasonable necessity for the production of trade secret information, it must determine what safeguards should be put in place to protect the information. The trial court must support any ordered disclosure with factual findings.

When a trial court compels disclosure of asserted trade secret information without making the required findings as to whether the information in question is a trade secret and whether the requesting party has proven a reasonable necessity for its disclosure, the trial court departs from the essential requirements of law necessitating a writ of certiorari.

DEFENSE COUNSEL’S QUESTIONS OF CORPORATE REPRESENTATIVE ON CROSS-EXAMINATION DID NOT DELVE INTO THE SUBSTANCE OF PRIVILEGED COMMUNICATIONS, AND THEREFORE THERE WAS NO WAIVER OF THE ATTORNEY/CLIENT PRIVILEGE

Papa John’s v. Gonzalez, 47 Fla. L. Weekly D1519 (Fla. 5^th DCA Jul. 15, 2022):

In a case stemming from an automobile accident with a Papa John’s driver, plaintiff took the deposition of the corporate representative. The witness testified that in preparation for his deposition, he had not personally interviewed the driver, but had reviewed her deposition testimony and other relevant materials.

On cross-examination, defense counsel sought to illicit from the witness the reason why he had not personally communicated with the driver prior to his deposition. The witness explained that he had asked another defense lawyer to contact the driver on his behalf to gather additional facts, and that after speaking with the attorney, the witness had no additional questions for the driver.

Plaintiff’s counsel then sought to inquire into everything that the witness discussed with the “intermediary” defense counsel, to which defense counsel objected based on attorney-client privilege. After the deposition was terminated, the trial court granted the plaintiff’s motion to prevent any further communications between co-counsel and the witness, and ruled that the plaintiff could depose the attorney at a later date.

The appellate court reversed. It found that a review of the deposition testimony demonstrated that defense counsel had not asked questions of the witness regarding the substance of the privilege communications, nor did the witness’ answers reveal same, preserving the attorney-client privilege.

Additionally, the trial court’s order had permitted the plaintiff to inquire into far more than just factual information that the witness learned during his communication with the attorney.

The court agreed with the defendant that the plaintiff could only inquire into facts from the witness that he had gathered during that communication. Because the attorney had not voluntarily become a witness, the court quashed plaintiff’s right to take the deposition.

A SECTION 57.105 ORDER REQUIRES THE COURT TO MAKE SPECIFIC FINDINGS OF BAD FAITH CONDUCT FOR WHICH THE SANCTIONS WERE IMPOSED – ABSENCE OF FINDINGS IN A WRITTEN ORDER ALONE REQUIRES REVERSAL

Lang v. Fallang Limited Partnership, 47 Fla. L. Weekly D1531 (Fla. 2^nd DCA Jul. 15, 2022):

The Plaintiff appealed an order imposing monetary sanctions on him pursuant to section 57.105 following the dismissal of his petition for a pure bill of discovery.

The court reversed based on the trial court’s failure to make findings necessary to support the imposition of sanctions.

Additionally, although the court dismissed the underlying case for failing to state a cause of action, that in and of itself is not a basis to justify an award of attorney’s fees pursuant to section 57.105. The court dismissed the plaintiff’s case without prejudice, thereby suggesting that it did not consider the petition to have been wholly frivolous.