Opinion
No. 2D20-3603
07-16-2021
Edward BRINKMANN, an Individual; and Majab Development, LLC, a Florida Limited Liability Company, Petitioners, v. PETRO WELT TRADING GES.M.B.H, an Austrian limited liability company; Petro Welt Technologies AG, an Austrian stock corporation; Trading House KAToil, LLC, a Russian limited liability company ; KATKoneft LLC, a Russian Limited Liability Company ; Katobneft LLC, a Russian limited liability company ; and KAToil-drilling LLC, a Russian limited liability company, Respondents.
Gary M. Carman and Richard F. Danese of Gray|Robinson, P.A., Miami; and Kristie Hatcher-Bolin of Gray|Robinson, P.A., Lakeland, for Petitioners. Richard G. Salazar and Chance Lyman of Buchanan Ingersoll & Rooney PC, Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb LLP, Los Angeles, California, for Respondents.
Gary M. Carman and Richard F. Danese of Gray|Robinson, P.A., Miami; and Kristie Hatcher-Bolin of Gray|Robinson, P.A., Lakeland, for Petitioners.
Richard G. Salazar and Chance Lyman of Buchanan Ingersoll & Rooney PC, Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb LLP, Los Angeles, California, for Respondents.
MORRIS, Chief Judge.
Edward Brinkmann and Majab Development, LLC, seek a writ of certiorari to quash a discovery order, in part, to the extent that it overruled their assertions of attorney-client privilege and work product protection (or the common interest exception in the event the privilege and work product protection were deemed waived) and required them to produce documents and communications between their counsel and Anna Brinkmann, Edward Brinkmann's mother. We grant the petition due to the trial court's failure to conduct an in camera review of the allegedly privileged materials and the court's overruling of petitioners' privilege and work product objections without any accompanying findings or analysis. BACKGROUND
Respondent Petro Welt Trading Ges.m.b.H and other associated foreign entities (collectively, "Petro") sued Edward Brinkmann and Majab, alleging a complex international business scheme that occurred over the course of many years. Among the various claims made by Petro are claims for fraud, conversion, civil theft, and civil RICO. As part of the suit, Petro sought discovery including requests for production which included numbers seven, eight, and forty-three, seeking documents and communications as between petitioners' counsel and a third party, Anna Brinkmann (or her agents). Specifically, the requests sought:
7. All communications and documents exchanged between Gray Robinson, while acting as your counsel or agent, and Anna Brinkmann from January 1, 2014 through the present.
8. All communications and documents exchanged between Gray Robinson, while acting as your counsel or agent, and any of Anna Brinkmann's agents, employees, representatives, attorneys, and/or anyone acting on her behalf, from January 1, 2014 through the present.
....
43. All communications and documents exchanged between Gray Robinson, while acting as your counsel or agent, and any former member of PeWeTe's Management Board [of which Anna Brinkmann was a member], from January 1, 2014 through the present.
Petitioners filed objections asserting lack of relevance, overbreadth, vagueness, attorney-client privilege, work product protection, and the common interest exception should the privilege and work product protection be deemed waived. Petro filed a motion to compel arguing that petitioners improperly asserted privilege and work product objections related to documents and communications that occurred between petitioners' counsel and a third party, Mrs. Brinkmann. At the hearing on Petro's motion to compel, the trial court summarily overruled petitioners' objections by stating, "But if they've objected on some other basis[,] such as relevancy or attorney/client privilege, those objections are overruled." In the written order overruling the objections, the trial court ruled, "To the extent Defendants have asserted objections to the above-enumerated requests[,] such objections are OVERRULED." No further explanation was provided. The trial court granted Petro's motion in relevant part, requiring petitioners to produce the requested documents and communications.
In this proceeding, petitioners only challenge the overruling of their objections based on privilege, work product protection, and the common interest exception to the waiver doctrine.
ANALYSIS
Because trial courts are afforded broad discretion in dealing with discovery issues, a discovery order will not be quashed on certiorari review unless the trial court has departed from the essential requirements of the law. See Racetrac Petroleum, Inc. v. Sewell , 150 So. 3d 1247, 1251 (Fla. 3d DCA 2014). "Discovery of ‘cat out of the bag’ material such as information that is protected by privilege, work product, or trade secrets may cause irreparable injury if disclosed." Allen v. State Farm Fla. Ins. Co. , 198 So. 3d 871, 873 (Fla. 2d DCA 2016) (citing Allstate Ins. Co. v. Langston , 655 So. 2d 91, 94 (Fla. 1995) ). Thus, certiorari review is the appropriate mechanism to challenge a trial court order that requires the disclosure of communications presumptively covered by attorney-client or work product privilege. See Patrowicz v. Wolff , 110 So. 3d 973, 974 (Fla. 2d DCA 2013) ; Robichaud v. Kennedy , 711 So. 2d 186, 187 (Fla. 2d DCA 1998) ; Montanez v. Publix Super Markets, Inc. , 135 So. 3d 510, 512 (Fla. 5th DCA 2014). "An order that compels discovery of privileged information departs from the essential requirements of law because once such ‘information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal.’ " E. Bay NC, LLC v. Estate of Djadjich , 273 So. 3d 1141, 1144 (Fla. 2d DCA 2019) (quoting Estate of Stephens v. Galen Health Care, Inc. , 911 So. 2d 277, 279 (Fla. 2d DCA 2005) ).
In order to obtain certiorari relief generally, a petitioner must establish that a trial court departed from the essential requirements of the law resulting in a material injury that cannot be corrected on appeal. Fassy v. Crowley , 884 So. 2d 359, 363 (Fla. 2d DCA 2004).
Multiple problems exist in this case, the first being that no in camera review was conducted. "When parties dispute that documents are protected under certain statutory provisions, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable." E. Bay NC, LLC , 273 So. 3d at 1144 (citing Tampa Med. Assocs. v. Estate of Torres , 903 So. 2d 259, 262 (Fla. 2d DCA 2005) ); see also Dominguez v. Citizens Prop. Ins. Corp. , 269 So. 3d 623, 626 (Fla. 2d DCA 2019) (concluding that trial court erred by ordering production of documents without first conducting in camera review to determine whether attorney-client privilege applied); Patrowicz , 110 So. 3d at 974 ("A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure." (citing Bennett v. Berges , 84 So. 3d 373, 375 (Fla. 4th DCA 2012) )).
Beyond the trial court's failure to conduct an in camera review, however, is the fact that the order under review fails to contain any findings or analysis related to petitioners' privilege and work product objections and assertion of the common interest exception in the event that the claims of privilege and work product protection were deemed waived. We acknowledge that an in camera review is not required in all circumstances. See, e.g. , Hett v. Barron-Lunde , 290 So. 3d 565, 573 (Fla. 2d DCA 2020) ; Bianchi & Cecchi Servs., Inc. v. Navalimpianti USA, Inc. , 159 So. 3d 980, 983 (Fla. 3d DCA 2015). However, this court has also acknowledged that a trial court "may ... depart from the essential requirements of law when it ‘requires production of documents—without explanation—despite objections that statutory protections apply.’ " E. Bay NC, LLC , 273 So. 3d at 1144 (quoting Harborside Healthcare, LLC v. Jacobson , 222 So. 3d 612, 616 (Fla. 2d DCA 2017) ). "That is, where the trial court fails to specifically address whether claimed statutory privileges apply, leaving this court ‘to guess at the basis for the discovery of each document’ and as to whether the trial court even considered the objection, certiorari relief may be warranted.’ " Id. (quoting Harborside Healthcare, LLC , 222 So. 3d at 616 ); see also Patrowicz , 110 So. 3d at 974 ("The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law."). This is because detailed findings on the issue of privilege "are necessary for meaningful appellate review." Nemours Found. v. Arroyo , 262 So. 3d 208, 211 (Fla. 5th DCA 2018) (quoting State Farm Mut. Auto. Ins. Co. v. Knapp , 234 So. 3d 843, 848 (Fla. 5th DCA 2018) ). Thus, 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 by the law firm without conducting an in camera inspection to determine whether the attorney-client privilege applied." Hett , 290 So. 3d at 573-74.
Petro contends that there was no requirement for an in camera review because the communications at issue here are not categorically privileged because they occurred between petitioners' counsel and a third party. This is essentially an argument of waiver of any claim of attorney-client privilege or work product protection.
To avoid the waiver argument, petitioners raised the applicability of the common interest exception below. That "exception to the waiver rule permits litigants who share unified interests in litigation to exchange privileged information in order to adequately prepare their cases without losing the protection afforded by the privilege." AG Beaumont 1, LLC v. Wells Fargo Bank, N.A. , 160 So. 3d 510, 512 (Fla. 2d DCA 2015) ; see also Barnett Banks Tr. Co., N.A. v. Compson , 629 So. 2d 849, 851 (Fla. 2d DCA 1993) ; Asplundh Tree Expert Co. v. Barnes , 689 So. 2d 1200, 1200 (Fla. 4th DCA 1997) ; Visual Scene, Inc. v. Pilkington Brothers, PLC , 508 So. 2d 437, 440 (Fla. 3d DCA 1987).
We recently noted in a companion case, Majab Development, LLC v. Petro Welt Trading Ges.m.b.H , No. 2D20-2901, 322 So.3d 174, 176-77 (Fla. 2d DCA June 11, 2021), that it was unclear whether Majab's counsel also represented Anna Brinkmann, a fact that is in question in this case as well.
Unfortunately, because the trial court's order contains no findings or analysis related to the privilege and work product objections, we simply do not know whether the court determined that the attorney-client privilege and work product protection did not apply, whether they applied but had been waived, or whether the trial court deemed the common interest exception to the waiver doctrine inapplicable. We are simply left "to guess at the basis for the discovery of each document" and communication. E. Bay NC, LLC , 273 So. 3d at 1144 (quoting Harborside Healthcare, LLC , 222 So. 3d at 616 ). Consequently, certiorari relief is warranted in this case, and we quash the order in part as it relates to the seventh, eighth, and forty-third requests for production. The remainder of the order remains intact.
These issues must be decided by the trial court in the first instance; they are not resolved by the limited record in this proceeding.
We will not assume that the trial court determined that petitioners failed to meet their burden of proof by failing to file a privilege log. The transcript of the hearing reflects that the trial court itself acknowledged that petitioners were 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. However, the trial court inexplicably skipped that step and overruled petitioners' objections without any explanation. Thus petitioners were never provided with the opportunity to file a privilege log in relation to this particular motion to compel, and they cannot be deemed to have waived their right to assert claims of privilege or work product protection on that basis. Cf. State Farm Fla. Ins. Co. v. Coburn , 136 So. 3d 711, 711-12 (Fla. 2d DCA 2014) (recognizing the concept of waiver of privilege where a party fails to file a privilege log but explaining that the party's obligation to file a privilege log does not arise until a court determines that the requested information is otherwise discoverable and holding that because the trial court order in that case only contained a general denial of the motion for protective order and did not specifically address any assertion of privilege, State Farm was not required to file a privilege log before that order issued). For the same reason, certiorari relief should not be denied on the basis that the petitioners' claims are not yet ripe for review. Cf. Hertz Corp. v. Sider , 311 So. 3d 1004, 1007 (Fla. 2d DCA 2021) (explaining that "[a] claim of work-product protection or attorney-client privilege is not mature for review when a privilege log has not been filed" and holding that where the court's order directed the party to file a privilege log but the party had not yet done so, the party's claim was not ripe for this court's review (emphasis added)).
Petition granted.
SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.