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...

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...

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. ...