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explaining that " 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
Summary of this case from Brinkmann v. Petro Welt Trading Ges.M.B.HOpinion
Case No. 2D20-1788
02-10-2021
The HERTZ CORPORATION and Hertz Global Holdings, Inc., Petitioners, v. Scott SIDER, Respondent.
Scott A. Beatty and Scott E. Atwood of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers; and Herbert Beigel of Law Offices of Herbert Beigel, Tucson, Arizona, for Petitioners. Edward K. Cheffy, Rachael S. Loukonen, and Kimberly D. Swanson of Cheffy Passidomo, P.A., Naples; and David Dunn and David Baron of Hogan Lovells US LLP, New York, New York, for Respondent.
Scott A. Beatty and Scott E. Atwood of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers; and Herbert Beigel of Law Offices of Herbert Beigel, Tucson, Arizona, for Petitioners.
Edward K. Cheffy, Rachael S. Loukonen, and Kimberly D. Swanson of Cheffy Passidomo, P.A., Naples; and David Dunn and David Baron of Hogan Lovells US LLP, New York, New York, for Respondent.
CASANUEVA, Judge.
The Hertz Corporation and Hertz Global Holdings, Inc. (hereinafter Hertz), filed a petition for writ of certiorari asking this court to quash two trial court orders requiring them to submit for discovery certain communications and documents that they claim are protected by the attorney-client privilege and the work product doctrine. We conclude that Hertz's arguments are not ripe for review, because the trial court order specifically provides Hertz with the opportunity to prepare a privilege log identifying documents and other information that it has withheld from production on the basis of privilege.
I. Trial Court Proceedings
Hertz filed an amended complaint against Scott Sider, a former senior executive at Hertz, seeking to recover incentive-based compensation paid to Mr. Sider pursuant to Hertz's compensation recovery policies (the "ClawBack policies"). Hertz also brought a claim for damages related to Mr. Sider's alleged breaches of Hertz's standards of business conduct.
Mr. Sider moved to dismiss the case pursuant to section 90.510, Florida Statutes (2019), or in the alternative, asked the trial court to compel production of the information at issue. The trial court denied the motion to dismiss. However, it found that there were factual issues framed by the pleadings that may require the production of records and documents which Hertz claims are protected by the work product doctrine or the attorney-client privilege. The trial court noted that one of the issues framed by the pleadings was whether Hertz's compensation committee authorized the filing of the lawsuit in good faith as alleged in paragraph twenty-nine of the amended complaint and as required by the ClawBack policies attached to the complaint.
In its order, the trial court stated that it was taking an incremental approach. Accordingly, it ordered the production of only documents and information noted in category one on page sixteen of Mr. Sider's motion. This included "[a]ll counsel presentations concerning the merits of potential [ClawBack] claims against Sider and others, as well as Board and Committee meeting minutes and packages that describe or denote such presentations." The trial court's order further provided that the magistrate must conduct an in-camera review of the information to determine if it is relevant to the issues framed by the pleadings and that the parties may submit memoranda to the magistrate explaining their position. The order further provided that Hertz must prepare a privilege log identifying documents and other information that have been withheld from production on the basis of privilege.
II. Standard of Review
A petition for writ of certiorari may be the appropriate vehicle to review "a pretrial discovery order when the following three elements have been established: ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ " Shindorf v. Bell, 207 So. 3d 371, 372 (Fla. 2d DCA 2016) (quoting Plantz v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015) ). The last two prongs of this test "constitute the jurisdictional threshold for our certiorari review." Id. (first citing Plantz, 170 So. 3d at 824 ; then citing Ryan v. Landsource Holding Co., 127 So. 3d 764, 767 (Fla. 2d DCA 2013) ).
Hertz argues that the trial court's order results in a material injury for the remainder of the case that cannot be corrected on appeal, because it requires the disclosure of information protected by the attorney-client privilege or information that is protected work product. Hertz is correct that certain kinds of information, such as information protected by these two privileges, could cause material injury of an irreparable nature. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). When a discovery order requires disclosure of information that is allegedly privileged, the appellate court must determine if the order departs from the essential requirements of law. Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 506 (Fla. 2d DCA 2006). Mr. Sider argues that Hertz relies on the materials at issue exclusively to prove an element of the cause of action, and therefore, Hertz has waived any otherwise applicable attorney-client privilege as to those materials.
III. Analysis
We agree with Mr. Sider that Hertz has placed the ClawBack presentations in issue. In defending Hertz's ClawBack claim, Mr. Sider seeks to know what evidence Hertz's compensation committee relied upon when it voted on the ClawBack resolution in order to show that the committee did not act in good faith. This evidence was presented to the committee by various attorneys and law firms, but by bringing the claim, Hertz placed this information "in issue." Therefore, the information is otherwise discoverable.
Once a trial court determines that information is "otherwise discoverable," the party objecting to its disclosure based on the attorney-client privilege or the work product doctrine must file a privilege log noting which documents are privileged. See Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006). Florida Rule of Civil Procedure 1.280(b)(6) provides as follows:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
Before a trial court rules on a written objection to a discovery request, the documents and communications are not "otherwise discoverable" and the obligation to file a privilege log does not arise. Id. However, after a trial court has ruled on a written objection to a request for production of documents and determines what information is discoverable, then a party is required to file a privilege log noting which documents are privileged. Avatar Prop. & Cas. Ins. Co. v. Jones, 291 So. 3d 663, 667 (Fla. 2d DCA 2020) (citing Morton Plant Hosp. Ass'n v. Shahbas, 960 So. 2d 820, 826 (Fla. 2d DCA 2007) ).
A claim of work-product protection or attorney-client privilege is not mature for review when a privilege log has not been filed. See Dade Truss Co. Inc. v. Beaty, 271 So. 3d 59, 65 (Fla. 3d DCA 2019). In the present case, the trial court order correctly provides that Hertz must prepare a privilege log identifying documents and other information that have been withheld from production on the basis of privilege. Because that step has not yet been taken, Hertz's attorney-client privilege and work product doctrine claims are not ripe for review. Accordingly, we deny the petition without prejudice to Hertz's having the opportunity to file a privilege log with the trial court before producing the requested discovery.
Petition denied.
BLACK and LABRIT, JJ., Concur.