03 December

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Insurer’s Claim File Not Categorically Privileged

A recent appeal (petition for a writ of certiorari) in a property insurance coverage dispute supports two important points regarding discovery disputes in insurance coverage cases, particularly regarding an insurer's claim file. First, “certiorari review is appropriate for discovery dispute orders requiring production of allegedly privileged documents.” Homeowners Choice Property & Casualty Ins. Co., Inc. v. Thompson, 48 Fla.L.Weekly D2218e (Fla. 1st DCA 2023). Second, there is NOT a categorical privilege on an insurer’s claims files. “Documents in claims and underwriting files are not automatically work product. The insurer did not argue or prove that the requested documents were prepared in anticipation...

17 December

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Do Yourself a Favor: Get a Court Reporter at that Impactful Hearing

Posted by David Adelstein

in Trial Perspectives

In a recent article, I discussed a trial court granting a defendant’s motion to discharge a lis pendens. The plaintiff appealed by filing a petition for a writ of certiorari since the discharge of a lis pendens would constitute irreparable harm to support certiorari relief. However, at the hearing with the trial court on the motion to discharge the lis pendens, there was no court reporter. As a result, the appellate court applied the presumption of correctness to the trial court’s ruling: "[T]he transcript is necessary for our review of the issue alleged, particularly when [the defendant] asserts that [the plaintiff's] entitlement...

10 April

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3-Step Process for Objections to Trade Secrets

Posted by David Adelstein

in Trial Perspectives

There are times a party in a litigation may seek documents from a party or non-party and there is a trade secret objection. The party or non-party does not want to produce trade secret information. What a party or non-party should do is request an in camera inspection or an evidentiary hearing. This was the situation in Bank of America, N.A. v. The Bank of New York Mellon, 47 Fla. L. Weekly D659a (Fla. 3d DCA 2022) where a non-party appealed a trial court’s ruling that required it to produce alleged trade secret information. The non-party timely moved for a petition for...

18 July

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Ruling on a Privilege Objection

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

27 March

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Appealing a Discovery Order Requiring the Production of Work Product

Posted by David Adelstein

in Appeal, Discovery

A party moves for a petition for a writ of certiorari when appealing a discovery order. “To obtain a writ of certiorari, the petitioner must establish that the discovery order was a departure from the essential requirements of law resulting in a material injury that will affect the remainder of the proceedings below and the injury cannot be corrected on appeal.” Onward Living Recovery Community, LLC v. Mormeneo, 46 Fla.L.Weekly D637a (Fla. 3d DCA 2021). One example of “material injury,” otherwise referred to as “irreparable harm” is when the trial court orders the production of work product material (protected material prepared...

16 January

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Discovery Appeal by Non-Party in Dispute

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Discovery disputes do not always go your way. You win some. You lose some. In losing a discovery dispute, it could give rise to an appeal through a petition for a writ of certiorari. Obviously, this is not an easy appeal but, certainly, there are instances where the trial court issues a discovery ruling that gives rise to irreparable harm supporting the basis for certiorari. This discovery ruling may be against a party, or in certain cases, a non-party. “To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which...

15 November

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3-Step Process to Determine Production of Document under Trade Secret Privilege

Posted by David Adelstein

in Discovery, Trial Perspectives

During the discovery phase of litigation, a party will serve a request for documents on the opposing party. The request for documents will include numerous categories of documents. The responding party will then identify whether it will produce the documents or whether it will not due to a privilege or another legal objection. A hearing will then need to be conducted to determine the merits of the privilege or objection. One such privilege a party may raise is that the requested documents fall within the trade secret privilege. Such documents would be itemized on a privilege log and would identify trade...

12 July

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Work Product Document and Withholding of Documents Based on Doctrine

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When it comes to the protection of information in litigation, there are generally two doctrines that apply. First, there is the attorney-client privilege. Makes sense. The second is what is known as the “work product” doctrine. This doctrine stands for the proposition that what a party does in anticipation of litigation is protected from disclosure during discovery. This could include a party’s legal or mental impressions, or strategic decisions and organization relative to a pending or ongoing dispute. Typically, when a document is withheld under either the attorney-client privilege or work product doctrine, it will be identified on a privilege log. ...

23 May

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Appealing a Protective Order that Precludes You from Deposing Material Witness

Posted by David Adelstein

in Appeal, Depositions

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari. I further discussed that this was not an easy appeal, and typically, it is not an easy appeal. But, what about the scenario where the trial court precludes you from taking a deposition of a material witness? For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward. Say the trial court agrees with the opposing party and grants...

10 May

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Appeal of Discovery Order — Not so Easy!

Posted by David Adelstein

in Appeal, Discovery

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers). It may not occur in every case, but it will occur. There is no such thing as discovery orders always going in your favor. Not possible. Some discovery orders entered against you are understandable. Others lead to a certain amount of frustration. And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice. The appeal of a discovery order, however, is through a petition for writ of...