The First District Court of Appeal recently issued an opinion quashing an order issued by a Judge of Compensation Claims (“JCC”) that required disclosure of attorney-client privileged materials. In its opinion in Lacaretta Restaurant and Zenith Insurance Company v. Engelds Zepeda, 38 Fla. L. Weekly D1385a (1st DCA 6/24/13), the First DCA set forth the requirements for obtaining review and reversal of such an order.
In Lacaretta, the JCC entered a discovery order that compelled the Employer/Carrier to produce various documents, including a note made by the adjuster in an internal paperless communication/documentation system that memorialized a meeting with in-house counsel and another note made in that same system by in-house counsel herself. The Employer/Carrier challenged the JCC’s ruling as it related to those two notes.
In reversing the ruling of the JCC as to those two notes, the First DCA set forth the requirements for obtaining certiorari review of a discovery order compelling production of privileged materials. Quoting from Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004), the Court noted that there must be a showing of:
(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.
The Court stated that the first prong is met, not simply by mere legal error, but where a miscarriage of justice results from a violation of a clearly established legal principal. The Court also recognized that the latter prong constitutes “irreparable harm”, which is required to invoke certiorari jurisdiction, since discovery of privileged information may be considered material and irreparable injury.
The First DCA found the two notes at issue to be protected by the attorney-client privilege since they clearly constituted or memorialized communications with counsel for the purposes of rendering legal services. The Court reversed, concluding that allowing the JCC’s Order to stand “would have a chilling effect on communications between attorneys and clients.” Lacaretta stands as an important reminder that appellate courts can and will step in to prevent disclosure of privileged materials.
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David Greene is a partner in the Litigation Department of Fox Rothschild LLP. David represents clients in a variety of commercial litigation matters in State and Federal Courts throughout Florida. You can reach David at (561) 804-4441 or dgreene@foxrothschild.com.