85 So. 3d 517
Fla. Dist. Ct. App.2012Background
- Two tax cases in Leon County involve Expedia and other online travel companies challenging tourist development taxes and counties alleging nonpayment.
- Expedia produced confidential documents under a Georgia protective order; Broward County's lawyer possessed them and sought to use them in Florida cases.
- Representative Kriseman (a Florida House member) opposed a related tax bill and received the Expedia documents from Broward County's lawyer.
- Kriseman disseminated the documents to all House members and some press; Expedia sought depositions of Kriseman and his aide to learn how they obtained the documents.
- The trial court partially denied the motion to quash but limited questioning; the House sought prohibition, arguing legislative immunity; the First District Court reviews final order in an appeal-like posture.
- The court ultimately held Kriseman and Flintom may assert a legislative privilege, and the subpoenas must be quashed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida recognizes a legislative testimonial privilege. | Kriseman argues for recognition of legislative privilege under common law/separation of powers. | Expedia argues no privilege exists or is waived by disclosure. | Yes, privilege exists. |
| Whether the privilege covers testimony about how documents were obtained and what was done with them. | Privilege extends to necessary legislative information about processing documents. | Testimony on document handling is outside privilege or needed to prove waiver. | Privilege covers the testimony within scope; cannot compel deposition. |
| Whether legislative staff can invoke the privilege. | Aide Flintom participates in legislative functions and should be protected. | Privilege applies only to legislators, not staff. | Staff may also invoke the privilege. |
| Whether the order denying quash is appealable as a final order. | Order affects nonparties and is final; appeal appropriate. | Not necessary to treat as final in ongoing litigation. | Order is appealable; reversal and quash proceed. |
Key Cases Cited
- Tenney v. Brandhove, 341 U.S. 367 (U.S. 1951) (legislative immunity foundation; speech or debate rationale)
- Gravel v. United States, 408 U.S. 606 (U.S. 1972) (testimonial privilege part of legislative immunity)
- Girardeau v. State, 403 So.2d 513 (Fla. 1st DCA 1981) (premature on privilege; supports recognizing privilege)
- City of Pompano Beach v. Swerdlow Lightspeed Management Co., LLC, 942 So.2d 455 (Fla. 4th DCA 2006) (recognizes potential legislative privilege discussions)
- Kamplain v. Curry County Bd. of Comm'rs, 159 F.3d 1248 (10th Cir.1998) (functional test for privilege applicability)
- Nixon v. United States, 418 U.S. 683 (U.S. 1974) (executive privilege and limits on testimonial disclosures)
- Spalding v. Vilas, 161 U.S. 483 (U.S. 1896) (executive immunity foundations)
- Bush v. Schiavo, 885 So.2d 321 (Fla.2004) (strict separation of powers; significance to Florida)
- Transcall America, Inc. v. Butterworth, 604 So.2d 1253 (Fla. 1st DCA 1992) (discovery order reviewable by appeal; nonparty context)
- Calderbank v. Cazares, 435 So.2d 377 (Fla. 5th DCA 1983) (finality of pretrial discovery orders for nonparties)
- Office of State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So.2d 1097 (Fla.1993) (context on immunity and privilege concepts)