Gosman v. Luzinski
2006 WL 2683117, 937 So. 2d 293 (2006)
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Rule of Law:
A party's obligation to file a privilege log, as required by Florida Rule of Civil Procedure 1.280(b)(5), is tolled until the trial court rules on a timely filed objection asserting that the discovery request is unduly burdensome, overbroad, or harassing.
Facts:
- Joseph J. Luzinski, as a bankruptcy trustee, initiated an action seeking to set aside transfers from a debtor to his wife, Lin Castre Gosman.
- Luzinski served a discovery request on Gosman seeking documents relating to her ownership and residence at various properties over a ten-year period.
- Gosman timely filed a response objecting to the request as overbroad and burdensome, arguing it went beyond any relevant time frame for the underlying litigation.
- Gosman stated she would produce the requested documents, except those protected by attorney-client privilege, accountant-client privilege, work-product privilege, and Fifth Amendment right against self-incrimination.
- In her response, Gosman also objected to preparing a privilege log as demanded due to its specific requirements, but requested a thirty-day extension to prepare one if the court determined it was required.
- At a later hearing, Luzinski essentially conceded the overbreadth of his original request by agreeing to limit the document production to a year-and-a-half prior to the request.
Procedural Posture:
- Joseph J. Luzinski, as trustee, initiated an action against Lin Castre Gosman to set aside transfers from the debtor.
- Gosman filed a motion to dismiss the complaint against her.
- The trial court (court of first instance) denied Gosman's motion to dismiss.
- Four days later, Luzinski moved to compel production of documents, claiming Gosman waived privilege by failing to file a privilege log.
- The trial court granted Luzinski's motion to compel, limiting the document production to a year-and-a-half prior to the request, but also ruled that Gosman had waived any privilege by failing to file a privilege log or obtain an extension.
- Gosman, as petitioner, sought certiorari review of the trial court's order from the District Court of Appeal of Florida, Fourth District.
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Issue:
Does a party waive attorney-client or work-product privilege by failing to file a privilege log when the party has timely objected to the discovery request as overbroad and burdensome, and has also requested an extension of time to file a log contingent on the court determining the proper scope of discovery?
Opinions:
Majority - Warner
No, a party does not waive attorney-client or work-product privilege by failing to file a privilege log under these circumstances. The court reasoned that certiorari review is proper for discovery orders compelling privileged materials. While Florida Rule of Civil Procedure 1.280(b)(5) mandates a privilege log for "otherwise discoverable" information, and waiver can occur for serious violations, the court emphasized that waiver of privilege is not favored. The crucial point is that a party is only required to file a privilege log if the information is "otherwise discoverable." When a party claims that a production request is burdensome and harassing, the scope of discovery is at issue, and the documents are not yet "otherwise discoverable." Until the court rules on such an objection, the responding party does not know what documents will ultimately be required. Gosman's timely objection to the request's overbreadth and burdensomeness, coupled with her request for an extension to file a log contingent on the court's scope determination, complied with Rule 1.350(b). The court held that the objection to discovery as burdensome "tolled" the obligation to file a privilege log until that objection was ruled upon. Therefore, Gosman did not waive her privileges by not filing a log before the court determined the scope of discoverable documents, as she followed the procedural rules.
Concurring - Stevenson, C.J., and Hazouri, J.
Stevenson, C.J., and Hazouri, J., concurred in the opinion.
Analysis:
This case clarifies the timing for submitting a privilege log when a discovery request's scope is disputed, preventing an automatic waiver of privilege for procedural non-compliance when a substantive objection to discoverability is pending. It reinforces the principle that important privileges, such as attorney-client and work-product, should not be implicitly waived for minor discovery violations, especially when the underlying request's validity is in question. This ruling balances the need for orderly discovery with the protection of privileged information, ensuring that parties are not unduly burdened with preparing privilege logs for documents that may ultimately be deemed outside the scope of proper discovery.
