Nemours Found. v. Arroyo

262 So. 3d 208
CourtDistrict Court of Appeal of Florida
DecidedDecember 14, 2018
DocketCase No. 5D18-1969
StatusPublished

This text of 262 So. 3d 208 (Nemours Found. v. Arroyo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nemours Found. v. Arroyo, 262 So. 3d 208 (Fla. Ct. App. 2018).

Opinion

LAMBERT, J.

The Nemours Foundation ("Nemours") petitions for certiorari relief, requesting that this court quash the trial court's order that required it to produce certain documents that Nemours claims are protected from disclosure under the attorney-client privilege. Concluding that the order under review lacks the requisite detailed findings addressing this specific privilege claim, we grant the petition, quash the order without prejudice, and remand for further proceedings.

Respondents, Xiomara Martinez Arroyo and Ramon Luis Aponte, are the *210parents of the minor child, Ramon Aponte. Arroyo, in both her individual capacity and as a natural guardian for her son, and Aponte, in his individual capacity, sued Nemours for damages resulting from a medical procedure they allege was performed negligently on their child at the Nemours Children's Hospital. During discovery, Respondents requested that, among other things, Nemours produce to them copies of all adverse medical incident records including what they referred to as "Amendment 7 records."1 Following the filing of objections, motions, and privilege logs by the respective parties, the trial court conducted an in camera review and thereafter entered the subject order overruling Nemours's objections and directing it to produce what amounted to written statements provided by five separate Nemours employees to its in-house counsel.2 The court found these documents to be discoverable "fact work product"3 that did not "fall under attorney-client privilege." Nemours argues that disclosure of these records is unwarranted and will cause it immediate irreparable harm because the documents are protected by the attorney-client privilege, which Nemours contends was not affected by the passage of Amendment 7. Nemours separately argues that the trial court's order lacks detailed factual findings required prior to disclosure of privileged attorney-client communication.

The issue framed for our consideration is whether written communications that may fall within the ambit of the attorney-client privilege are nevertheless discoverable under Amendment 7 if they contain information relating to an adverse medical incident. In Advisory Opinion to the Attorney General Regarding Patients' Right to Know About Adverse Medical Incidents , 880 So.2d 617 (Fla. 2004), in which the Florida Supreme Court reviewed and ultimately approved Amendment 7 and its ballot title and summary for placement on the November 2004 ballot, the court observed that "the amendment does not expressly affect ... the attorney-client privilege, and there is no evidence of any intent to do so." Id. at 621. Recently, the Florida Supreme Court held that based upon its plain language, "Amendment 7 was aimed at eliminating all discovery restrictions on 'any records ... relating to any adverse medical incident.' " Edwards v. Thomas , 229 So.3d 277, 287 (Fla. 2017) (emphasis in original) (quoting Art. X, § 25, Fla. Const.). In that case, however, while emphasizing the breadth, scope, and intent of Amendment 7 to allow patients to obtain all adverse medical incident reports, the court nevertheless determined that based upon the records before it, there was no need to address the applicability of the attorney-client privilege as it relates to Amendment 7. Id. at 293. While Florida district courts have suggested that Amendment 7 does not abrogate the attorney-client privilege, see, e.g. , *211Morton Plant Hosp. Ass'n v. Shahbas ex rel. Shahbas , 960 So.2d 820, 825 (Fla. 2d DCA 2007), neither they nor the Florida Supreme Court have squarely addressed the issue.4

Florida's attorney-client privilege, codified at section 90.502, Florida Statutes (2017), extends to communications between employees of a corporate client and in-house general counsel, whether oral or contained in documents. Ford Motor Co. v. Hall-Edwards , 997 So.2d 1148, 1153 (Fla. 3d DCA 2008). The burden of establishing the existence of the attorney-client privilege is on the party asserting it. Coffey-Garcia v. S. Miami Hosp., Inc. , 194 So.3d 533, 537 (Fla. 3d DCA 2016). Nemours argues that the five documents in question were prepared by its respective employees at the specific behest of its in-house counsel to assist counsel in providing his legal analysis of the issues involved in Respondents' claims. Nemours contends that the amended affidavit filed by its in-house counsel, received and considered by the trial court without objection, shows that the documents now ordered to be disclosed fall within the following five-prong criteria established by the Florida Supreme Court in Southern Bell Telephone & Telegraph Co. v. Deason , 632 So.2d 1377 (Fla. 1994), for use by courts when analyzing whether a communication by employees of a corporation to corporate counsel is protected by the attorney-client privilege:

(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation's effort to secure legal advice or services;
(4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee's duties;
(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Id. at 1383. Nemours argues that through its in-house counsel's amended affidavit, which tracks the five factors in Southern Bell , it has met its burden to show that the documents are protected by this privilege and is therefore entitled to certiorari relief. See Seminole Cty. v. Wood ,

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Related

Southern Bell Tel. & Tel. Co. v. Deason
632 So. 2d 1377 (Supreme Court of Florida, 1994)
Seminole County v. Wood
512 So. 2d 1000 (District Court of Appeal of Florida, 1987)
McGauley v. Goldstein
653 So. 2d 1108 (District Court of Appeal of Florida, 1995)
Ray v. Mortham
742 So. 2d 1276 (Supreme Court of Florida, 1999)
Ford Motor Co. v. Hall-Edwards
997 So. 2d 1148 (District Court of Appeal of Florida, 2008)
Morton Plant Hosp. Ass'n, Inc. v. Shahbas
960 So. 2d 820 (District Court of Appeal of Florida, 2007)
State v. Rabin
495 So. 2d 257 (District Court of Appeal of Florida, 1986)
Coffey-Garcia and Garcia v. South Miami Hospital, Inc.
194 So. 3d 533 (District Court of Appeal of Florida, 2016)
Amber Edwards v. Larry D. Thomas, M.D.
229 So. 3d 277 (Supreme Court of Florida, 2017)
Dismas Charities, Inc. v. Dabbs
795 So. 2d 1038 (District Court of Appeal of Florida, 2001)

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Bluebook (online)
262 So. 3d 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nemours-found-v-arroyo-fladistctapp-2018.