No waiver as long as

you spell it out…

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 47

CASES FROM THE WEEK NOVEMBER 26, 2021

PETITIONER’S FAILURE TO FILE A PRIVILEGE LOG DID NOT CONSTITUTE WAIVER OF ATTORNEY-CLIENT PRIVILEGE IN REDACTED EMAILS – COUNSEL PROVIDED INFORMATION PURSUANT TO RULE 1.280(b)(6) THAT WAS SUFFICIENT TO PERMIT RESPONDENT’S COUNSEL TO ASSESS THE CLAIM OF PRIVILEGE, OR AT LEAST ALLOW FOR AN IN-CAMERA REVIEW

Andreatta v. Brown, 46 Fla. L. Weekly D2491 (Fla. 1^st DCA Nov. 17, 2021):

Nothing in Rule 1.280(b)(6) uses the word “log” or requires any specific form for a privilege log. Instead, a party must only make the privilege claim expressly, describing the nature of the documents, communications, or things not produced or disclosed, in a manner that will enable other parties to access the applicability of the privilege or protection. The information provided need only permit the parties and the trial court to assess and rule on the claim.

When a party fails to supply adequate information, the court may find a waiver of attorney-client privilege.  While waiver is within the court’s discretion, it is not favored.

In this case, petitioner’s counsel repeatedly emailed respondent’s counsel that it redacted an attorney-client communications, explaining that there were forwarded emails  that were responsive to the discovery requests and privileged. Even though the respondent disputed that, the petitioner’s counsel’s email explanations were sufficient to expressly claim attorney-client privilege, and to describe the nature of the redacted communications because the protection was preserved.

The trial court should have assessed the claim of attorney-client privilege or at least allowed for an in-camera review, and finding a waiver took place was too harsh a remedy, necessitating the writ.

STRIKE OF HISPANIC FEMALE JUROR WAS NOT IMPROPER – TRIAL COURT’S REFUSAL TO GRANT MOTION TO DISQUALIFY WAS ALSO PROPER

Dabbs v. State, 46 Fla. L. Weekly D2471 (Fla. 4th DCA Nov. 17, 2021):

During jury selection in this manslaughter case, the trial judge, in making a point about innocent until proven guilty, asked the entire venire what the verdict would be if he sent them to deliberate before hearing any evidence. The juror in question, an engineer, loudly and quickly responded “not guilty” because criminal defendants are presumed innocent.

The State exercised a strike against this juror and the defendant objected because the juror was female and Hispanic. When asked for a gender and race neutral reason for  the strike, the State responded that the juror seemed exceptionally very smart in terms  of technical matters, and that as a result she might be lured into looking too far into things. The prosecutor noted that there had been no pattern of striking female or Hispanic jurors. The trial judge allowed the strike.

The Fourth District, in trying to determine whether the proffered explanation was genuine, or was actually a concealed attempt to discriminate based on race, looked at all the relevant circumstances and applied the five non-exclusive factors (a failure to examine the juror or a perfunctory examination of the juror; a showing that the alleged group bias was not shown to be shared by the juror in question; singling the juror out for special questioning, designed to invoke a certain response; whether the reason for the strike was unrelated to the facts of the case; and/or whether the challenge was based on reasons equally applicable to a juror who was not challenged).

The trial court properly followed the procedures set forth in Melbourne, and the defendant failed to rebut the presumption that the State’s preemptory strike was genuine or show that the trial court’s ruling was clearly erroneous.

The court also upheld the trial judge’s refusal to grant the defendant’s motion to disqualify him. Personal bias, as the court reminded us, must come from an extra judicial source such as a bias directed at a defendant simply because of the category of their case.

In this case, while the trial judge expressed a belief that the appellate court’s rulings overturning the prior conviction were erroneous, the court noted that while it may have been better for the trial judge to refrain from saying those things to spark the emotion, the remarks themselves were not reasonably sufficient to create a well-grounded fear in the defendant that he would not receive a fair trial.

THE FAILURE TO REQUEST A TRIAL DE NOVO WITHIN TWENTY DAYS OF SERVICE OF A NON-BINDING ARBITRATION AWARD, RESULTS IN ENTRY OF JUDGMENT – EXCUSABLE NEGLECT AND RULE 1.540 DOES NOT APPLY TO §44.103

Gambrel v. Sampson, 46 Fla. L. Weekly D2449 (Fla. 2^nd DCA Nov. 17, 2021):

The parties agreed to non-binding arbitration, resulting in an arbitration award for the plaintiff, but limited only to her past medical expenses. The arbitrator’s order advised that if no one requested a trial de novo pursuant to Rule 1.820 within twenty days, a judgment would be entered. A paralegal diaried the order from the day she received it, but not from the day it was served. Consequently, the motion for trial de novo was filed one day late.

The trial court attempted to engraft an excusable neglect escape valve onto §44.103. The appellate court reversed, finding that the entry of judgment on an arbitration award is a non-discretionary, ministerial duty, and the trial judge had no discretion to refuse to enter the judgment for the defendant after the twenty days had passed.

BECAUSE THE INCIDENT REPORT WAS ACTUALLY PREPARED BY THE PLAINTIFF AND NOT THE DEFENDANT’S ASSISTANT MANAGER, PLAINTIFF COULD OBTAIN A COPY OF IT WITHOUT INVADING THE WORK-PRODUCT PRIVILEGE

IMC Hospitality, LLC v. Ledford, 46 Fla. L. Weekly D2460 (Fla. 3rd DCA Nov. 17, 2021):

The plaintiff slipped inside a Pollo Tropical restaurant. During litigation, plaintiff sought the production of the in-house incident report, along with photographs of the accident scene. Defendant objected because the incident report and photographs were prepared in anticipation of litigation, and thus were allegedly protected by the work-product privilege.

The parties presented competing affidavits where the affiants (the plaintiff and the restaurant’s assistant manager) both attested that they had authored the incident report. The trial court held an evidentiary hearing and conducted an in-camera inspection, ultimately ordering the production of the incident report and the photographs.

As to the incident report, the trial court found the plaintiff more credible, and also found that the plaintiff had met the requirements of Rule 1.280(b)(4), because the statement had been made by the plaintiff himself. However, the court ruled that the work-product privilege still protected production of the photographs that were taken, and issued the writ of certiorari as to the production of those photographs.

PLAINTIFF FAILED TO MAKE A SHOWING OF IRREPARABLE HARM AS A RESULT OF AN ORDER GRANTING A NON-PARTY’S MOTION FOR PROTECTIVE ORDER, WHICH HAD PRECLUDED THE DEPOSITION OF THAT NON-PARTY

 Adkins v. Sotolongo, 46 Fla. L. Weekly D2461 (Fla. 3rd DCA Nov. 17, 2021):

After a hearing, the trial court concluded that the physician witness’s relevant medical records had been turned over to the plaintiff based on her signature and request for those records, and that the non-party physician could refuse to be deposed because there was no prima facie case established for the need of the deposition.

The court noted that trial courts possess significant discretion in regulating discovery under Rule 1.280(c). Additionally, the plaintiff failed to show any irreparable harm stemming from the challenged order, when the medical file produced was produced in its entirety to the plaintiff.  The court dismissed the petition.

THE PROPOSAL FOR SETTLEMENT WAS VALID, THEREFORE THE TRIAL JUDGE SHOULD HAVE AWARDED THE DEFENDANT ITS ATTORNEY’S FEES

Inspired Products Group, LLC d/b/a Kidsembrace, LLC v. Inspired Development Group, LLC, 46 Fla. L. Weekly D2479 (Fla. 4th  DCA Nov. 17, 2021):

Shortly before the summary judgment hearing on four of the plaintiff’s five counts, the defendant served a proposal for settlement. The trial court granted the summary judgment on those counts, leaving one count remaining. Notably, the plaintiff’s thirty-day window for accepting the defendant’s proposal for settlement expired the same day on which the trial judge issued the summary judgment ruling. Plaintiff did not accept the proposal. Shortly after the trial court entered the summary judgment, though, the plaintiff voluntarily dismissed the remaining claim without prejudice.

Following the voluntary dismissal, the defendant moved for its attorney’s fees pursuant to its proposal. The plaintiff argued that the granting of the summary judgment during the thirty-day window of acceptance terminated the defendant’s rights to collect attorney’s fees. The defendant asserted that the summary judgment order had not disposed of all of the causes of action, and therefore was not a final judgment, and the proposal could have still been accepted on that day.

The appellate court agreed. Because the plaintiff failed to accept the proposal and a final judgment of no liability was ultimately entered in the defendant’s favor, the defendant was entitled to receive the fees incurred after the date of the proposal.

COUNTY COURT ERRED IN STRIKING ENTIRE AFFIDAVIT OF INSURER’S SOLE EXPERT WITNESS AS TO THE REASONABLENESS OF THE PROVIDER’S CHARGES, BASED ON ONE PARAGRAPH THE COURT FOUND TO BE AN OPINION ON A QUESTION OF LAW – SUMMARY JUDGMENT NOT APPROPRIATE WHERE REVIEW OF THE REST OF THE AFFIDAVIT SHOWED THAT THE INSURER’’S EXPERT  HAD CONSIDERED  MULTIPLE  SOURCES, AND EXPLAINED THE RELEVANCE OF THE ANALYSIS ABOUT THE REASONABLENESS OF THE CHARGES

State Farm Mut. Auto. Ins. Co.  v. Palmetto Lakes Therapy, 46 Fla. L. Weekly D2481 (Fla. 4th DCA Nov. 17, 2021):

While a court may strike an expert’s affidavit for various reasons (repudiating matters previously attested to, opining on a question of law), in this case, at most the trial court found one paragraph of the expert’s ten-page affidavit to be an opinion on a question of law. In that situation, a court should strike the insufficient portions of the affidavit, while still considering the valid portions. The trial court erred in striking the expert’s entire affidavit, necessitating reversal.