Ruling on a Privilege Objection
When a party receives a discovery request, the party may assert an objection under a privilege such as the attorney-client privilege or work product doctrine. If a trial court orders the production of privileged materials, the appropriate appellate mechanism is to file a petition for a writ of certiorari. Brinkmann v. Petro Welt Trading, 46 Fla.L.Weekly D1644a (Fla. 2d DCA 2021).
Notably, a party is not “required to provide a privilege log when first responding to the requests for production and that the typical procedure was to hear the motion to compel and then to require a privilege log before the claims of privilege were ruled upon.” Brinkmann, supra, at n.5.
When the claim for privilege is ruled on and a trial court orders the production of material, the “proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable.” Brinkman, supra, (quotation omitted).
However, a trial court conducting an in camera inspection is not required in every circumstance. But, in these circumstances, the trial court must provide “detailed findings on the issue of privilege”—“where a discovery order failed to contain findings relating to privilege objections and also failed to explain why an in camera review was not required, this court granted certiorari on the basis that ‘it was error for the trial court to compel the disclosure of records maintained…without conducting an in camera inspection to determine whether the attorney-client privilege applied.” Brinkmann, supra, (quotation omitted).
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