Bennett v. Berges
84 So. 3d 373
Fla. Dist. Ct. App.2012Background
- This is a Florida Fourth District Court of Appeal probate case involving Bennett and Miller petitioning for certiorari review of an order directing their former attorney to produce documents for in camera review.
- Respondents sought to compel production of communications and documents they claimed were related to a settlement agreement and related filings for probate of a 2005 will.
- The trial court ordered an in camera inspection of the claimed privileged documents rather than immediate disclosure.
- The November 17, 2010 hearing addressed whether the documents were protected by attorney‑client privilege and whether in camera inspection was appropriate.
- The court ultimately ordered in camera review as the proper mechanism to determine privilege prior to any compelled disclosure, and denied the petition as premature.
- Petitioners sought certiorari review, which this court denied, holding no irreparable harm given the in camera nature of the inspection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether certiorari review lies for an order for in camera privilege review | Bennett asserts privilege blocks disclosure | Berges argues for compelled production for review | Petition denied; order prematur e; in camera review proper before any disclosure |
Key Cases Cited
- S & I Invs. v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009) (certiorari for discovery orders protecting privilege)
- Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995) (importance of irreparable harm in certiorari review of discovery)
- Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991) (entitled to in camera review when privilege and work product at issue)
- Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002) (in camera inspection prior to disclosure when privilege asserted)
- Zanardi v. Zanardi, 647 So.2d 298 (Fla. 3d DCA 1994) (petitioner entitled to in camera review to determine privilege)
- Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005) (prematurity of certiorari when only in camera submission required)
- Gaton v. Health Care, Inc., 774 So.2d 59 (Fla. 3d DCA 2000) (prematurity of certiorari where no production ordered)
- Cebrian By & Through Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993) (in camera review possible where privilege governs)