State Farm v. Knapp

• Court: District Court of Appeal of Florida
• Decided: January 8, 2018
• Docket: 5D17-447
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

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

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Petitioner,

v. Case No. 5D17-447

DAVID C. KNAPP AND LOGAN ATKINSON,

Respondents.

________________________________/

Opinion filed January 12, 2018

Petition for Certiorari Review of Order from the Circuit Court for Brevard County, Charles J. Roberts, Judge.

Rhonda B. Boggess, and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Petitioner.

Christopher V. Carlye, of The Carlyle Appellate Law Firm, The Villages, for Respondent, David C. Knapp.

No appearance for other Respondent.

EDWARDS, J.

State Farm Mutual Automobile Insurance Company petitions this Court to issue a

writ of certiorari regarding discovery orders compelling production of documents that

State Farm claims the work product doctrine and the attorney-client privilege protect from disclosure. Although the trial court reviewed the documents in camera, its orders did not

state which documents State Farm properly designated as work product nor which

documents contained privileged attorney-client communications. Furthermore, the trial

court’s orders failed to explain the justification for requiring State Farm to turn over its

work product documents to Respondent David C. Knapp, and there is no justification here

for ordering production of confidential attorney-client documents to opposing counsel.

Under the circumstances, the trial court departed from the essential requirements of the

law, subjecting State Farm to harm that cannot be remedied in a later plenary appeal.

Accordingly, we grant the petition and quash the orders in question.

FACTUAL BACKGROUND

Respondent was involved in two automobile wrecks within six months.

Respondent obtained medical treatment following these wrecks, and he sued both of the

adverse drivers. He also sued his insurer, State Farm, for payment of

uninsured/underinsured motorist benefits and bad faith. State Farm retained and

identified Dr. Michael Zeide as an expert witness to address Respondent’s alleged injuries

and the medical care and treatment related to those injuries.

In turn, Respondent served discovery seeking information about how often State

Farm had retained Dr. Zeide as an expert and how much money it had paid him, directly

or indirectly, during the preceding three years. Our supreme court authorized this type of

discovery, within certain limits, in the case of Allstate Insurance Co. v. Boecher, 733 So.

2d 993 (Fla. 1999). Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) codifies this so-

called Boecher discovery. Boecher discovery allows a party to gather information that

can be used to provide a factual basis for proving and arguing to the jury that an expert

2 witness, such as Dr. Zeide, may have a financial bias favoring the party retaining the

expert, here State Farm. See Boecher, 733 So. 2d at 997-98.1

Initially, State Farm objected to portions of Respondent’s Boecher discovery and

stated that it did not maintain any database or index in the ordinary course of business

that could be accessed to identify the amounts it paid to Dr. Zeide when he was engaged

to perform analysis, provide testimony, and/or complete compulsory medical

examinations. However, State Farm did serve unverified answers to Respondent’s

interrogatories, providing other information, such as the testimonial percentage and

percentage of engagement of its experts, including Dr. Zeide, by plaintiffs versus

defendants.

Respondent filed a motion to compel better responses, which the trial court

granted. The trial court required State Farm to disclose the amount Dr. Zeide billed to

State Farm, the amount State Farm paid him, and the total amount of money that State

Farm or anyone acting on behalf of any State Farm entity had paid to each listed expert

witness, directly or indirectly, during the preceding three years (2013-2015) for all services

rendered, excluding payments or charges for medical treatment provided.

In response to the court’s order, State Farm provided verified answers to

interrogatories, stating that it conducted a manual review of its records. State Farm also

gave information regarding Dr. Zeide, including the number of claims and amount of

money paid for compulsory medical examinations or record reviews for the years in

1 But see Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017). Worley seems, as a practical matter, to permit full Boecher discovery only when it is directed to personal injury defendants and their insurers, while shielding injured plaintiffs from having to disclose information about similar repetitious referral relationships that exist between doctors and plaintiffs’ counsel by invoking the attorney-client privilege.

3 question. According to State Farm, during those three years, Dr. Zeide was retained in

601 claims and received $1,235,067.75 in compensation for providing his services. State

Farm advised that, because the numbers were calculated by hand following a manual

review of claims files, the information was “its best approximation of the individual

payments it made to Dr. Zeide” during the three years covered by Respondent’s Boecher

discovery.

Not satisfied with this additional information, Respondent scheduled the deposition

of Bruce Peterson, a State Farm representative who verified the Boecher interrogatory

answers in this case. Respondent also noticed the deposition of a different State Farm

representative, Mike Wallace, who verified State Farm’s answers to the Boecher

interrogatories regarding Dr. Zeide in a case between Amanda Park and State Farm,

saying that it was not feasible to provide that information and would cost hundreds of

thousands of dollars to compile. Both deposition notices were duces tecum, requiring

each named witness to produce all documents relied upon or generated in connection

with providing the Boecher information; all written policies, manuals, memos, or other

documents that set forth State Farm’s policies for tracking payments made to retained

experts; and all correspondence, e-mails, or other documentation relating to the issue of

State Farm’s payment to Dr. Zeide during the three years in question. State Farm

objected, moved for a protective order, and moved to quash the duces tecum document

requests on a number of grounds, including that the information sought was beyond the

proper scope of discovery, that it invaded the privacy of non-parties, that it sought

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

privilege, and that compliance was unduly burdensome.

4 Respondent asserted that State Farm’s answers to interrogatories regarding its

dealing with Dr. Zeide were inconsistent in this case compared to its answers given in the

Park case, which Respondent asserted were both different from the answers State Farm

gave to similar interrogatories in a third case between Cynthia Parent and State Farm. In

the Parent case, State Farm advised that it paid Dr. Zeide or the companies employing

him a total of $1,235,077—a difference of $9.25 from the answer given in the present

case. Based on the allegedly inconsistent answers, Respondent asserted that State

Farm was not giving accurate answers to the interrogatories, which justified taking the

depositions of Wallace and Peterson.

At the conclusion of the December 20, 2016 hearing on State Farm’s motions, the

trial court orally announced its rulings regarding what subject matter could be addressed

in each deposition and what documents needed to be provided. The trial court suggested

postponing the depositions scheduled for January 6, 2017, so that State Farm could

compile the documents, prepare a privilege log, and allow time for the trial court to review

privileged information if there was a dispute. Respondent postponed the depositions to

January 10, 2017. The trial court also granted Respondent’s request to order

ExamWorks, a company employing Dr. Zeide, to provide evidence of all payments it made

to Dr. Zeide for any State Farm entity for the same three years. ExamWorks filed its

response, advising that it did not have any responsive documents that it maintained in the

ordinary course of business.

On December 28, 2016, the trial court entered a written order regarding State

Farm’s objections and motions, which required the documents and privilege logs to be

provided to the court and opposing counsel ten days prior to the depositions. This

5 deadline translated to a December 30 due date, two days after the order. State Farm

filed its privilege log related to the Wallace notice of deposition on the due date, identifying

proprietary information that he had relied on for providing responses in the Park case,

together with an affidavit from Wallace explaining his responses. State Farm filed a

motion for extension of time on December 30, 2016, seeking five additional business days

to prepare and file the privilege log regarding Peterson. On January 5, 2017, State Farm

filed its privilege log, with an amended log filed the following day, regarding the documents

described in the duces tecum portion of Peterson’s deposition notice. The amended

privilege log identified documents that State Farm claimed constituted work product and

documents that allegedly were or contained privileged attorney-client communications.

The amended privilege log identified each document by date, author, recipients, subject

matter, and privilege(s) asserted.

At the January 11, 2017, hearing, the trial court announced that it had reviewed

the documents attached to the privilege logs and determined what should be redacted.

The trial court directed State Farm to pick up the redacted documents from the court on

January 12 and provide them to Respondent’s counsel on January 13. On January 13,

2017, State Farm filed a motion for extension of time and to stay so that it could have time

to determine whether it would seek appellate review of the court’s order once it was

reduced to a written, executed order.

The court’s oral rulings announced on January 11 were set forth in a written order

filed January 31, 2017, and an amended order filed February 7, 2017, but dated nunc pro

tunc January 13, 2017. The trial court ruled that the documents related to State Farm’s

internal policies and procedures were proprietary in nature and not reasonably calculated

6 to lead to the discovery of admissible evidence; therefore, State Farm did not need to

produce them in discovery. However, the trial court ordered that the information and

documents relating to State Farm’s use of and payments to Dr. Zeide were reasonably

calculated to lead to the discovery of admissible evidence; thus, they were discoverable.

The trial court stated that it made redactions “consistent with the reasoning above” to

those documents which were ordered to be produced.

These orders required State Farm to provide the redacted documents to

Respondent’s counsel no later than 5:00 p.m. on January 13, 2017. In an order dated

February 10, 2017, the trial court granted State Farm’s previously filed motion for stay;

however, the stay would expire at 5:00 p.m. on February 14, 2017. Respondent served

amended notices of depositions for Wallace and Peterson to take place on February 15,

2017. State Farm then filed its petition with this Court, and we granted State Farm’s

motion for stay.

STANDARD OF REVIEW

This Court may grant a petition for certiorari “only when the petitioner establishes

(1) a departure from the essential requirements of the law, (2) resulting in material injury

for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.”

Capital One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010). This Court first

examines prongs two and three to determine its certiorari jurisdiction. See Holden Cove,

Inc. v. 4 Mac Holdings Inc., 948 So. 2d 1041, 1041 (Fla. 5th DCA 2007); Barker v. Barker,

909 So. 2d 333, 336 (Fla. 2d DCA 2005), rev. denied, 914 So. 2d 952 (Fla. 2005). If

jurisdictional prongs two and three are not fulfilled, we are bound to dismiss the petition.

See Capital One, N.A., 34 So. 3d at 212.

7 Certiorari is the appropriate vehicle to review an interlocutory discovery order

requiring the production or disclosure of information for which a privilege is asserted. See

Seminole Cty. v. Wood, 512 So. 2d 1000, 1001 (Fla. 5th DCA 1987). “The basis for

allowing certiorari review of certain discovery orders is that discovery of protected material

could result in letting the ‘cat out of the bag,’ and injury could result if such information

was disclosed.” Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336, 339 (Fla. 5th DCA

2005); see also State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493, 497 (Fla. 5th

DCA 2014); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So. 2d 277,

279 (Fla. 2d DCA 2005).

DISCUSSION AND ANALYSIS

When a party asserts privilege objections in opposition to discovery requests, the

trial court must make specific findings to support its denial of those objections. Such

findings are necessary for meaningful appellate review. This Court specifically addressed

this issue in Magical Cruise Co. v. Turk, 114 So. 3d 233 (Fla. 5th DCA 2013). In Turk,

the majority relied on Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038 (Fla. 4th DCA

2001), granted certiorari relief, and quashed an order requiring the petitioner to turn over

work product because the trial court made no findings to justify the production. 114 So.

3d at 233; see also Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla

2d DCA 2017). We remanded with instructions to the trial court to reconsider the

petitioner’s work product objections and to support any order requiring production of the

documents with appropriate findings. Turk, 114 So. 3d at 233.

In the present case, the trial court’s orders directing production of the documents

are devoid of any determination that the documents at issue were not work product or

8 protected by attorney-client privilege. Instead, the orders merely provide that the

documents are reasonably calculated to lead to the discovery of admissible evidence.

That finding only addressed the possible relevance of the documents while completely

ignoring State Farm’s claims that the documents were exempt from discovery as

privileged work product or confidential attorney-client communication. Because State

Farm filed appropriate objections, motions, and privilege logs asserting that work product

and/or attorney-client privilege protected the documents at issue, the trial court was

required to make specific detailed findings addressing each privilege claim before

ordering production. See id.; Dismas, 795 So. 2d at 1039. Accordingly, because the trial

court failed to address the privilege claims, we grant the petition, quash the trial court’s

orders, and remand for further proceedings.

During its review on remand, the trial court must determine whether State Farm’s

work product privilege claims are well-founded. Pursuant to Florida Rule of Civil

Procedure 1.280(b)(3), materials prepared in anticipation of litigation by or for a party or

its representative are protected from discovery, unless the party seeking discovery has

need of the material and is unable to obtain the substantial equivalent without undue

hardship. The rationale supporting the work product doctrine is that “one party is not

entitled to prepare his case through the investigative work product of his adversary where

the same or similar information is available through ordinary investigative techniques and

discovery procedures.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). Fact work

product traditionally protects that information which relates to the case and is gathered in

anticipation of litigation. See State v. Rabin, 495 So. 2d 257, 260 (Fla. 3d DCA 1986).

Opinion work product consists primarily of the attorney’s mental impressions,

9 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

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

Petition for Certiorari Review of Order from the Circuit Court for Brevard County, Charles J. Roberts, Judge.

Rhonda B. Boggess, and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Petitioner.

Christopher V. Carlye, of The Carlyle Appellate Law Firm, The Villages, for Respondent, David C. Knapp.

State Farm Mutual Automobile Insurance Company petitions this Court to issue a

writ of certiorari regarding discovery orders compelling production of documents that

State Farm claims the work product doctrine and the attorney-client privilege protect from Furthermore, if on remand the trial court determines that certain documents

constitute confidential attorney-client communication, they are beyond the reach of

discovery. See Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18, 24-25

(Fla. 2017). The attorney-client privilege is governed by section 90.502, Florida Statutes

(2016), which provides that a client has a “privilege to refuse to disclose and to prevent

any other person from disclosing the contents of confidential communications when such

other person learned of the communications because they were made in the rendition of

legal services to the client.” Furthermore, there are no “relevance” or “need” exceptions

to the attorney-client privilege. See Genovese v. Provident Life & Accident Ins. Co., 74

So. 3d 1064, 1068 (Fla. 2011); see also Quarles & Brady, LLP v. Birdsall, 802 So. 2d

1205, 1206 (Fla. 2d DCA 2002). The documents for which State Farm asserted attorney-

client privilege include emails from State Farm employees that are either directed to or

show copies being provided to their attorneys. Thus, because State Farm has

established a good faith basis for asserting the attorney-client privilege, the trial court

must determine on remand whether that privilege protects each objected-to document

from discovery.

Accordingly, we grant the petition, quash the orders denying State Farm’s motion

for protective order and granting Respondent’s motion to compel disclosure of documents

that State Farm asserted were protected from discovery by either the work product

doctrine or attorney-client privilege, and remand for further proceedings consistent with

this order.

PETITION GRANTED, ORDERS QUASHED.

COHEN, C.J., and BERGER, J., concur.