Breanden Beneschott v. Toptal, LLC, Taso Duval and Denis Grosz

• Court: District Court of Appeal of Florida
• Decided: April 17, 2025
• Docket: 6D2023-3789
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case Nos. 6D2023-3769, 6D2023-3789 CONSOLIDATED Lower Tribunal No. 2023-CA-002001-0001-XX _____________________________

BREANDEN BENESCHOTT,

Appellant,

v.

TOPTAL, LLC, TASO DU VAL, and DENIS GROSZ,

Appellees. _____________________________

Appeal from the Circuit Court for Collier County. Ramiro Mañalich, Judge.

April 17, 2025

GANNAM, J.

These consolidated cases arise from an interstate discovery action to enforce

a Nevada, nonparty subpoena issued by the Clerk of the Circuit Court for Collier

County, Florida. Appellant, Breanden Beneschott, seeks our review of an order

denying his privilege claims and compelling his production of documents to

Appellees Toptal, LLC and Taso Du Val (the “Toptal Parties”). The order, enforcing

a subpoena under the Uniform Interstate Depositions and Discovery Act (“UIDDA”), § 92.251, Fla. Stat. (2020), is a final order for purposes of our appellate

jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See

Greenlight Fin. Servs., Inc. v. Union Am. Mortg., Inc., 971 So. 2d 983, 984 & n.1

(Fla. 3d DCA 2008). Florida law governs our review. Id. at 985; § 92.251(5), Fla.

Stat. Because it was error for the trial court to deny Beneschott’s privilege claims

without first conducting an in camera inspection of the disputed documents, we

reverse.

I.

Du Val is the owner and CEO of Toptal, LLC. Appellee Denis Grosz is a

former financial backer and advisor of Toptal, and Beneschott is Toptal’s former

Chief Operating Officer. Following Toptal’s founding in 2010, various business

disputes arose among the parties. These disputes intensified from 2018 to 2020,

during which time Toptal terminated Beneschott; Grosz formed a rival company,

Mechanism Ventures, and hired Beneschott as its CEO; Beneschott and the Toptal

Parties sued each other over his employment and termination; and the Toptal Parties

sued Grosz in Nevada. In 2021, the Toptal Parties joined Mechanism Ventures as a

defendant in their Nevada lawsuit against Grosz.

Also in 2021, the Toptal Parties commenced their UIDDA action in Collier

County, Florida, obtaining issuance of a nonparty subpoena to Beneschott on the

authority of the Nevada trial court. Beneschott produced approximately 10,000

2 documents but withheld 750 documents as privileged. Meanwhile, the Toptal Parties

litigated a similar production request with Grosz and Mechanism Ventures in the

Nevada litigation, challenging similar privilege claims. On March 3, 2023, the

discovery commissioner appointed by the Nevada court entered a forty-page

recommended order upholding, with detailed analysis, many of the Grosz and

Mechanism Ventures privilege claims covering the same documents or categories of

documents claimed to be privileged by Beneschott here. The Toptal Parties did not

object to the commissioner’s recommended order, and the Nevada trial judge

confirmed and adopted it. 1

Over two years after issuance of the Florida nonparty subpoena and one month

before the close of fact discovery under the Nevada court’s pretrial order, the Toptal

Parties challenged Beneschott’s privilege assertions in the Florida UIDDA

proceeding with a motion to compel production. The Toptal Parties set a hearing on

the motion for October 18, 2023—four months after fact discovery had closed and

just two weeks before the trial was scheduled to begin on November 1, 2023. On

October 26, the Florida trial court entered its written order denying Beneschott’s

privilege claims for approximately 360 documents and compelling Beneschott to

1 The Toptal Parties argued to the court below that resolution of their challenges to Beneschott’s privilege claims would be the same under either Nevada or Florida law, but also argued the court should disregard the Nevada court’s discovery order—to which they did not object—upholding similar privilege claims.

3 produce them. In anticipation of the order, Beneschott petitioned this Court for

certiorari review on October 25 (Case No. 6D2023-3769), and then appealed the

written order on October 27 (Case No. 6D2023-3789). We consolidated the cases

and ordered expedited briefing, and we administratively stayed the trial court’s order

pending our review.

II.

Beneschott claims on appeal, as he did below, that the disputed documents are

protected from disclosure by the attorney-client privilege and work product doctrine,

and that the trial court should have inspected the documents in camera before

categorically denying his privilege assertions and ordering production. “Whether a

privilege exists, as well as its parameters, is subject to de novo review.” Traffanstead

v. State, 290 So. 3d 985, 987 (Fla. 1st DCA 2019). We agree that it was error for the

trial court to categorically deny Beneschott’s privilege claims without inspecting the

disputed documents in camera.

A.

The denied privilege claims at issue cover two categories of documents held

by Beneschott. First are the communications contained in a Slack business

messaging 2 thread between Beneschott and Grosz, which Beneschott claims are

2 What is Slack?, Slack, https://slack.com/help/articles/115004071768-What- is-Slack (last visited Apr. 15, 2025).

4 protected from disclosure by the attorney-client privilege, work product doctrine,

and common interest privilege. 3 The Slack messages occurred while Beneschott

was CEO of Grosz’s company, Mechanism Ventures, and included legal advice

given to Grosz by attorneys representing him and the company concerning potential

litigation with the Toptal Parties. The messages also occurred while Beneschott was

still in litigation with Toptal, and seven months before the Toptal Parties commenced

the current Nevada litigation against Grosz. The second category of documents at

issue comprises communications involving Beneschott and various business and

legal advisors employed by the Fifth Avenue Family Office (“FAFO”), which

Beneschott claims are protected by the attorney-client privilege and work product

doctrine. The FAFO communications include legal advice concerning Beneschott’s

separation from Toptal and the ensuing litigation and settlement of claims between

them, occurring between November 2018 and January 2020, part of which time

Beneschott was the CEO of Grosz’s company, Mechanism Ventures.

The trial court denied attorney-client privilege and work product protection

for all the Slack messages without differentiation, stating in its order only that there

was no lawyer on the message thread and that the messages occurred more than

seven months before the Toptal Parties sued Grosz, and more than eighteen months

3 The trial court did not address Beneschott’s common interest privilege claim. Beneschott raises it on appeal, but our resolution of the appeal does not require us to address it.

5 before they added Mechanism Ventures as a defendant. The court also denied

attorney-client privilege and work product protection for all the FAFO

communications, noting that the participants variously included both non-attorneys

and a FAFO in-house attorney, and that Beneschott did not indicate whose work

product is reflected in the documents or substantiate his assertions that they were

prepared in connection with pending or anticipated litigation. These denials do not

comport with the standards governing the attorney-client privilege and work product

doctrine.

B.

“The attorney-client privilege applies to confidential communications made

in the rendition of legal services to the client.” S. Bell Tel. & Tel. Co. v. Deason, 632

So. 2d 1377, 1380 (Fla. 1994) [hereinafter Southern Bell] (citing § 90.502(1)(b), Fla.

Stat. (1991)). The privilege covers communications to third parties “to whom

disclosure is in furtherance of the rendition of legal services to the client” and

“[t]hose reasonably necessary for the transmission of the communication.”

§ 90.502(1)(c), Fla. Stat. “This privilege covers communications on legal matters

between corporate counsel and corporate employees,” Shell Oil Co. v. Par Four

P’ship, 638 So. 2d 1050, 1050 (Fla. 5th DCA 1994), and dissemination of received

legal advice to other employees who need to know it because of its relevance to their

duties, see Southern Bell, 632 So. 2d at 1383.

6 The work product doctrine limits “discovery of documents . . . prepared in

anticipation of litigation . . . by or for [a] party or . . . that party’s representative,

including that party’s attorney, consultant, . . . or agent.” Fla. R. Civ. P. 1.280(c)(4). 4

Documents containing “fact work product,” Southern Bell, 632 So. 2d at 1384, are

discoverable “only on a showing that the party seeking discovery has need of the

materials in the preparation of the case and is unable without undue hardship to

obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P.

1.280(c)(4). Even when the required showing is made, however, “the court must

protect against disclosure of the mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a party concerning the litigation.”

Fla. R. Civ. P. 1.280(c)(4). Thus, “[w]hereas fact work product is subject to

discovery upon a showing of ‘need’ and ‘undue hardship,’ opinion work product

generally remains protected from disclosure.” Southern Bell, 632 So. 2d at 1384

(citations omitted).

The creation of protected work product may involve various party

representatives, “including that party’s attorney, consultant, . . . or agent,” or it may

involve the party alone without any representatives. See Snyder v. Value Rent-A-

Car, 736 So. 2d 780, 781 (Fla. 4th DCA 1999) (“There is no requirement in this rule

4 Rule 1.280(c) was previously designated Rule 1.280(b). See In re Amends. to Fla. R. Civ. P., 386 So. 3d 497, app. at 502 (Fla. 2024) (effective Jan. 1, 2025).

7 that for something to be protected as work product, it must be an item ordered to be

prepared by an attorney.”); Cowan v. Gray, 348 So. 3d 630, 633 (Fla. 5th DCA 2022)

(“It is irrelevant for work product purposes that Petitioners prepared their notes at

their own behest and without counsel’s direction.” (citing Snyder, 736 So. 2d at

781)). “Work-product protection extends to information gathered in anticipation of

litigation by corporate non-attorney employees.” Millard Mall Servs., Inc. v. Bolda,

155 So. 3d 1272, 1275 (Fla. 4th DCA 2015). The test is “whether the document was

prepared in response to some event which foreseeably could be made the basis of a

claim in the future.” Marshalls of MA, Inc. v. Minsal, 932 So. 444, 446–47 (Fla. 3d

DCA 2006). Such documents “will not lose their protected status even if they were

also generated for another purpose,” id. at 446, and disclosure in anticipation of

litigation “does not waive the work product privilege unless it is ‘inconsistent with

the maintenance of secrecy from the disclosing party’s adversary . . . [that is, that it]

substantially increases the possibility of an opposing party obtaining the

information.’” Visual Scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 442 (Fla.

3d DCA 1987) (alteration in original) (quoting United States v. Am. Tel. & Tel. Co.,

642 F.2d 1285, 1299 (D.C. Cir. 1980)).

Rule 1.280 requires the party asserting a claim of attorney-client privilege or

work product doctrine to “make the claim expressly and . . . describe the nature of

the . . . communications . . . not produced or disclosed in a manner that, without

8 revealing information itself privileged or protected, will enable other parties to

assess the applicability of the privilege or protection.” Fla. R. Civ. P. 1.280(c)(6).

When a party makes this facial showing that documents are protected from

disclosure, “the party seeking disclosure bears the burden of proving that they are

not,” Shell Oil Co., 638 So. 2d at 1050, and “the court must hold an in camera

inspection of the discovery material at issue in order to rule on the applicability of

the privileges,” Allstate Ins. Co. v. Walker, 583 So. 2d 356, 358 (Fla. 4th DCA 1991).

But see Cowan, 348 So. 3d at 633 (holding no in camera inspection necessary to

uphold privilege claim where challenge to claim is insufficient as matter of law).

C.

Under the foregoing standards, the availability of the attorney-client privilege

does not depend on the participation of an attorney in every communication for

which the privilege is claimed. Nor does the applicability of the work product

doctrine depend on the participation of an attorney in every communication or

document for which protection is claimed, or the commencement of anticipated

litigation within a certain period of time—or ever.

Thus, communications between a new company’s owner and CEO about legal

advice previously received by the owner may be privileged. See Southern Bell, 632

So. 2d at 1383. And when the communications concern a rival company that has a

long-running dispute with the new company’s owner, and has recently sued and

9 settled with the new company’s CEO, those communications may be protected work

product if they “respon[d] to some event which foreseeably could be made the basis

of a claim in the future,” Marshalls of MA, Inc., 932 So. at 446–47, even if made

months before any such claim ripens into litigation. These are the facts substantiating

Beneschott’s privilege and work product claims over the Slack thread between him

and Grosz, as shown to the trial court by Beneschott’s privilege log and supporting

declarations that the Toptal Parties did not refute.

Beneschott’s privilege log and unrefuted declarations similarly substantiate

his privilege and work product claims over the FAFO communications. Beneschott

explained the participation of attorney and non-attorney representatives in

communications about Beneschott’s termination by the Toptal Parties and

subsequent litigation and settlement with them. And, like the Slack thread, some of

the FAFO communications occurred after Beneschott had begun working for Grosz

as Mechanism Venture’s CEO, when, according to the Toptal Parties, “Beneschott

had a front row seat to, and participated in” the events leading to the Toptal Parties’

filing suit against Grosz and Mechanism Ventures.

Beneschott substantiated his privilege claims with a privilege log and

unrefuted declarations. “That is sufficient to warrant an in camera inspection in this

case.” RC/PB, Inc. v. Ritz-Carlton Hotel Co., L.L.C., 132 So. 3d 325, 327 (Fla. 4th

DCA 2014). Under the circumstances here, it was error for the trial court to

10 categorically deny the claims and order production without first inspecting the

documents in camera. 5

III.

We reverse the trial court’s order on the merits and remand for further

proceedings consistent with this opinion. Our decision does not foreclose the trial

court’s considering the enforceability of a UIDDA subpoena for pretrial discovery

after conclusion of the out-of-state trial or the impact of any other developments in

the parties’ ongoing litigation.

REVERSED and REMANDED.

WOZNIAK and BROWNLEE, JJ., concur.

Laura Renstrom, Michael M. Gropper and Michael B. Decembrino, Jr., of Holland & Knight LLP, Jacksonville, and Stephen P. Warren, of Holland & Knight LLP, Miami, for Appellant.

Kelly G. Price and Joshua A. Hajek, of Dentons Cohen & Grigsby, P.C., Naples, for Appellees, Toptal, LLC and Taso Du Val.

No Appearance for Appellee, Denis Grosz.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED

5 Beneschott is entitled to relief from the trial court’s production order under either the de novo appellate standard or the more stringent certiorari standard requiring departure from the essential requirements of the law. See, e.g., Allstate Ins. Co., 583 So. 2d at 358 (Fla. 4th DCA 1991) (granting certiorari review of trial court order denying privilege claims and compelling production without in camera inspection); Cowan, 348 So. 3d at 632–33 (same).