Lee v. Condell and Estache
208 So. 3d 253
| Fla. Dist. Ct. App. | 2016Background
- Petitioner Bjon Lee pleaded guilty in 2013 under a written plea agreement that required cooperation, a sworn statement, and truthful testimony; he later prepared handwritten notes while jailed.
- At deposition Lee said he wrote the Notes two or three times for his “personal use,” sometimes to keep his story straight; he also later said (inconsistently) they were to prepare trial strategy with counsel.
- Respondents (co-defendants’ counsel) moved to compel production; Lee asserted attorney-client privilege for the Notes.
- The trial court conducted an in camera review and an evidentiary hearing, found Lee’s testimony about preparing the Notes for counsel not credible, and concluded the Notes were a stream-of-consciousness personal recitation, not communications to counsel.
- Trial court ordered production; Lee sought certiorari review in the district court challenging that discovery order on attorney-client privilege grounds.
Issues
| Issue | Lee's Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether Lee’s handwritten Notes are a “communication” protected by the attorney‑client privilege under § 90.502(1)(c) | Notes were prepared in anticipation of trial to discuss strategy with counsel and thus are privileged | Notes were personal, not prepared for or transmitted to counsel, so not privileged | Notes are not a “communication” under § 90.502(1)(c); privilege does not apply; production compelled |
| Whether trial court’s factual credibility findings were reviewable | Lee argued privilege denial caused irreparable harm warranting certiorari | Respondents argued trial court’s credibility findings are supported and dispositive | Trial court’s credibility resolutions are supported by substantial competent evidence and will not be second-guessed |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects client disclosures made to obtain legal advice)
- Fisher v. United States, 425 U.S. 391 (1976) (privilege applies only where necessary to achieve its purpose)
- Merlin v. Boca Raton Cmty. Hosp., Inc., 479 So. 2d 236 (Fla. 4th DCA 1985) (client notes protected when prepared for and transmitted to attorney)
- Lacaretta Rest. v. Zepeda, 115 So. 3d 1091 (Fla. 1st DCA 2013) (discovery of privileged information can cause irreparable harm; certiorari standards)
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004) (elements required for certiorari review)
- Jenkins v. State, 978 So. 2d 116 (Fla. 2008) (appellate courts defer to trial court credibility findings)
- Porter v. State, 788 So. 2d 917 (Fla. 2001) (trial court's superior vantage on witness credibility)