Patrowicz v. Wolff
2013 WL 1352488, 110 So. 3d 973, 2013 Fla. App. LEXIS 5549 (2013)
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Rule of Law:
A trial court departs from the essential requirements of the law by ordering the production of documents alleged to be protected by attorney-client privilege without first conducting an in camera inspection to determine the applicability of the privilege, especially when the subpoena on its face requests attorney-client communications.
Facts:
- Cynthia H. Wolff filed a Notice of Intent to Subpoena Third Party Records from Matthew A. Linde, who was Sarah R. Patrowicz’s attorney.
- The proposed subpoena sought the entire estate planning file relating to the decedent’s estate, including correspondence, memoranda, and notes.
- Patrowicz filed a timely written objection to the proposed subpoena.
- At a subsequent hearing on Linde's objection to the subpoena, Linde stated that the basis for his objection was that the documents sought were protected by the attorney-client privilege.
- Wolff did not allege that any exception to the attorney-client privilege applied to these documents.
Procedural Posture:
- Cynthia H. Wolff filed a Notice of Intent to Subpoena Third Party Records from Matthew A. Linde, attorney for Sarah R. Patrowicz, in the trial court.
- Patrowicz filed a timely written objection to the proposed subpoena.
- The trial court held a hearing on Patrowicz's objection, overruled it, and authorized Wolff to issue the subpoena.
- Wolff served the subpoena on Linde.
- Linde filed a written objection to the subpoena.
- Wolff set the matter for a hearing on Linde's objection.
- The trial court overruled Linde's objection and ordered Linde to produce all of the documents sought.
- Sarah R. Patrowicz, as Personal Representative of the Estate of Joseph H. Winner, petitioned the Florida Second District Court of Appeal for a writ of certiorari, seeking to quash the trial court's discovery order.
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Issue:
Does a trial court depart from the essential requirements of the law by ordering the production of documents explicitly claimed to be protected by attorney-client privilege, and which on their face request attorney-client communications, without first conducting an in camera inspection to determine if the privilege applies?
Opinions:
Majority - Khouzam, Judge
Yes, a trial court departs from the essential requirements of the law by ordering the production of allegedly privileged documents without first conducting an in camera inspection to determine whether the privilege applies. An objection to a Rule 1.351 subpoena is self-executing, meaning the party seeking documents may only proceed by deposition of the records custodian, and the specific basis for the objection (like attorney-client privilege) does not necessarily need to be specified until that deposition. When a party claims that documents are protected by the attorney-client privilege, and particularly when the subpoena on its face explicitly requests communications between an attorney and client, the trial court is required to conduct an in camera inspection of the documents to determine if the privilege actually applies before compelling disclosure. The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law, warranting certiorari review, because the erroneous disclosure of privileged information causes irreparable harm.
Concurring - Altenbernd, Judge
Concurred with the majority opinion.
Concurring - Casanueva, Judge
Concurred with the majority opinion.
Analysis:
This case reinforces the critical procedural safeguard of in camera review for documents subject to a claim of attorney-client privilege, ensuring that courts do not compel disclosure without proper evaluation of the privilege's applicability. It clarifies that even if procedural steps for discovery are mishandled (such as holding an unnecessary hearing on a self-executing objection), the fundamental requirement to protect privileged information via in camera review remains paramount. The ruling emphasizes the serious and irreparable harm caused by the erroneous disclosure of privileged information, making such orders reviewable by certiorari to prevent injustice. This serves as a strong reminder for trial courts to meticulously apply privilege rules.
