Fla. SC rules communications not discoverable

Jessica M. Karmasek Mar. 23, 2011, 4:00pm

TALLAHASSEE, Fla. (Legal Newsline) - The Florida Supreme Court said in a ruling last week that attorney-client privileged communications are not discoverable in a first-party action.

The Court filed its 13-page per curiam opinion on Thursday.

The ruling stems from a decision of Florida's Fourth District Court of Appeal in Provident Life & Acccident Insurance Co. v. Genovese.

Peter Genovese brought a first-party bad faith action against Provident after the company terminated the monthly payments under Genovese's disability income policy.

Genovese then requested production of Provident's entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident's agents regarding his claims for benefits.

A trial court issued an order compelling production of the documents. Subsequently, Provident filed a petition for writ of certiorari, asking the Fourth District to quash the trial court's order. Provident argued in part that a previous decision by the state's high court did not allow for the discovery of documents protected by the attorney-client privilege.

The Fourth District granted the petition as to the information covered by the attorney-client privilege, quashed the trial court's order compelling discovery of documents protected by the attorney-client privilege, and remanded for further proceedings.

The Fourth District also certified the following question to the Court:

"Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to Section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?"

The Court said because of the uniqueness of the attorney-client privilege, it answered the certified question in the negative.

"Although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action," the Court explained.

"Although we conclude that the attorney-client privilege applies, we recognize that cases may arise where an insurer has hired an attorney to both investigate the underlying claim and render legal advice. Thus, the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege.

"Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable."

In accordance with its decision, the Court approved the portion of the Fourth District's decision precluding the discovery of attorney-client privileged information.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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