Kaye Scholer LLP v. Zalis
2004 WL 1621204, 2004 Fla. App. LEXIS 10825, 878 So. 2d 447 (2004)
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Rule of Law:
Failure to timely produce a privilege log, as required by Florida Rule of Civil Procedure 1.280(b)(5), results in the waiver of any attorney-client and work-product privileges for withheld documents.
Facts:
- Charles Zalis and his affiliated companies (respondents) filed a legal malpractice action against several law firms, including Kaye, Scholer, LLP, and attorney Manuel Kushner, Esq. (Scholer).
- Scholer served the respondents with its first document request in July 2003, seeking discovery related to its defenses.
- The respondents subsequently sought, and Scholer agreed to, five extensions of time to respond to the discovery request.
- During this period, the respondents neither served any responses or objections nor sought any protective order.
- Scholer specifically requested a privileged document log from the respondents pursuant to Florida Rule of Civil Procedure 1.280(b)(5), which the respondents also failed to provide.
- By November 2003, Scholer still had not received any responsive documents from the respondents.
Procedural Posture:
- Charles Zalis and his affiliated companies (respondents) filed a legal malpractice action against several law firms, including Kaye, Scholer, LLP, and attorney Manuel Kushner, Esq. (Scholer), in a trial court.
- Scholer filed a motion to compel discovery and for sanctions against the respondents after not receiving responsive documents or a privilege log.
- The trial court denied Scholer's motion to compel in January 2004.
- Scholer filed a motion for reconsideration, which the trial court also denied.
- Scholer (Petitioner) sought certiorari review from the Florida Third District Court of Appeal.
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Issue:
Does a party's failure to timely provide a privilege log, despite multiple extensions and a motion to compel, constitute a waiver of attorney-client and work-product privileges under Florida Rule of Civil Procedure 1.280(b)(5)?
Opinions:
Majority - Gersten, J.
Yes, a party's failure to timely provide a privilege log, even after multiple extensions and a motion to compel, constitutes a waiver of attorney-client and work-product privileges under Florida Rule of Civil Procedure 1.280(b)(5). The court found that Rule 1.280(b)(5) explicitly mandates that parties claiming privilege for discoverable information must expressly make the claim and describe the nature of the withheld documents in a privilege log. This requirement serves to enable other parties and the court to assess the applicability of the claimed privilege or protection. Precedent clearly establishes that non-compliance with Rule 1.280(b)(5) results in the waiver of attorney-client and work-product privileges. The respondents in this case demonstrated a 'willful refusal' to produce the log, leveraging granted extensions and later claiming 'confusion' to justify their delay. Such dilatory conduct, the court concluded, plainly leads to waiver under the rule. The court also emphasized the professional responsibility of candor owed by attorneys to the court, noting that the respondents' actions necessitated unnecessary litigation and associated costs for Scholer.
Analysis:
This case significantly reinforces the strict enforcement of discovery rules, particularly the requirement for timely production of privilege logs. It establishes a clear precedent that persistent dilatory conduct in discovery, even with the grant of extensions, will not excuse non-compliance with the procedural requirements for asserting privilege. The decision underscores the judiciary's commitment to ensuring efficient discovery and highlights the professional obligations of attorneys to act with candor and avoid creating unnecessary litigation. For future cases, attorneys must ensure meticulous adherence to privilege log requirements to avoid waiving crucial protections for their clients' confidential information.
