112 So. 3d 644
Fla. Dist. Ct. App.2013Background
- In a residential mortgage foreclosure, Petitioner seeks certiorari after the trial court found a waiver of work product and attorney-client privilege for failing to file a privilege log.
- Petitioner argues the waiver should not apply to categorically protected items, and that some items did not require a privilege log because other grounds for objection were unresolved.
- Respondent contends the waiver was proper, invoking the crime-fraud exception, which the court rejected as the basis for its decision.
- The court acknowledges that a trial court has discretion to find waiver from failing to file a privilege log but rejects waivers for categorical work-product items.
- The court notes that for items where non-privilege objections were raised and the court deferred ruling, the privilege log obligation was tolled until resolution of those objections.
- The court grants the petition, holds the log-time tolling principle, and directs the trial court to allow a privilege log for remaining items after ruling on non-privilege objections, to permit in camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to file a privilege log creates a waiver for category-based objections | Petitioner contends waiver should not attach to category-based objections. | Respondent argues failure to log may waive privileges for all items. | Waiver not proper for category-based items; safeguards against overbroad waivers. |
| Whether a privilege log is required for items with unresolved non-privilege objections | Petitioner argues log duty tolled until court rules on other objections. | Respondent asserts the log obligation applies irrespective of other rulings. | Time to file a privilege log tolled for items with pending non-privilege objections; no waiver occurred due to pending rulings. |
| Whether the court could impose a waiver as a discovery sanction | Petitioner questions sanction-based waiver given procedural posture. | Respondent did not present waiver as a sanction basis. | Court could not rely on sanction-based waiver; decision rested on absence of a timely privilege log. |
Key Cases Cited
- Century Business Credit Corp. v. Fitness Innovations & Tech., Inc., 906 So.2d 1156 (Fla. 4th DCA 2005) (trial court has discretion to find waiver from failure to file privilege log)
- Nevin v. Palm Beach Co. Sch. Bd., 958 So.2d 1003 (Fla. 1st DCA 2007) (log may be tolled when other objections are unresolved; immunity protections heightened)
- Gosman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006) (time to file privilege log tolled until court rules on discovery objections)
- Morton Plant Hosp. Ass’n. v. Shahbas ex rel. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007) (until trial court rules on other objections, privilege log not required)
- Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So.2d 887 (Fla. 4th DCA 2006) (materials reflecting attorney's mental impressions are work product)