A Privilege Log Is Not Required From A Non-Party Producing Documents

In United States Sugar Corp., v. Estate of Mullins, No. 4D16-2738, 2017 WL 363141 (Fla. 4th DCA 2017) the petitioner who is a non-party to the estates probate action, seeks a writ of certiorari to quash the probate court’s order. Decedent passed away after an accident on the petitioner’s property. The estate served a subpoena duces tecum on the petitioner in the probate action seeking “all reports, statements, photographs, and any other documents and/or materials relating to your investigation of the….fatal accident…which killed [the decedent].” In response to the subpoena, the petitioner filed a motion for protective order and a motion to quash. Petitioner argues that the subpoena was not reasonably probable to lead to the discovery of admissible evidence in the probate action.  “According to the petitioner, the underlying probate petition was devoid of any allegations upon which to premise discovery upon the petitioner regarding the petitioner’s investigation of the accident. Thus, the petitioner argued, the subpoena was nothing more than a fishing expedition seeking information which might give rise to a potential wrongful death action against the petitioner, and sought investigative reports and materials which were protected under the attorney-client and work product privileges.”

In response to petitioner’s objection, the estate argued that the subpoena was justified because it “is the affirmative duty of [the estate] to investigate these matters, as there may very well be grounds for a wrongful death action.”

Subsequently, the petitioner filed an affidavit in which the petitioner’s safety manager supported the petitioner’s privileged-based objections by stating that “[a]ll materials responsive to the … subpoena were prepared and gathered in anticipation of litigation, and at the direction of [petitioner’s] in house legal counsel, or, in some instances, at the direction of [petitioner’s] outside legal counsel.”

During the hearing on the petitioner’s objection, the petitioner also argued that as a non-party to the probate action, it was not required to file a privilege log. The estate counter argued that it was entitled to obtain the petitioner’s investigatory reports and materials, the petitioner was required to file a privilege log, and the court should further inspect the items on the privilege log.

The probate court ordered: (1) overruling the petitioner’s relevance-based objections to the subpoena; and (2) requiring the petitioner to file a privilege log pursuant to the petitioner’s privileged-based objections to the subpoena.

Petitioner argued that the probate court’s order departed from the essential requirements of the law because there can be no remedy on appeal since it is not a party to the probate action and therefore has no ability to appeal the issue.

The probate court agreed with the petitioner’s argument and granted the petition. The court cited the following reasons for its decision, “(1) the subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action; (2) the subpoena seeks documents which, according to the subpoena’s plain language and the petitioner’s affidavit in response to the subpoena, are privileged under the work product doctrine; and (3) the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We address each reason in turn.”

The third reason the court gives for granting the petition is the most relevant, and therefore our analysis will focus on it.  The courts have previously held that the plain language of Florida Rules of Civil Procedure 1.280 and 1.351 do not require non-parties to file privilege logs. “a privilege log is not required from a non-party producing documents” Lyons v. Lyons, 162 So.3d 212, 215 (Fla. 4th DCA 2015). The proper procedure for this would have been to order the petitioner to “segregate those they claim were privileged” after which “the court would hold an evidentiary hearing on those claimed to be privileged and conduct an in-camera review where necessary”. 

In the estates argument, they relied upon wording from Bainter v. League of Women Voters of Florida, 150 So.3d 1115 (Fla. 2014) “Regardless of whether the non-parties are considered ‘a party’ under [rule 1.280(b)(6)], its rationale applies with equal force to this case”. The court here determined this wording to be dicta in the context of the case rather than persuasive precedent. ““Regardless of whether the non-parties are considered ‘a party’ under

[rule 1.280(b)(6)]

, its rationale applies with equal force to this case—particularly once the trial court, repeatedly, determined that the disputed documents in the non-parties’ possession were relevant and ordered the submission of a privilege log—and the non-parties did not expressly make their claim of privilege or produce a privilege log until many months after they withheld the documents.”

Since probate court’s order departed from the essential requirements of the law because there can be no remedy on appeal since it is not a party to the probate action and therefore has no ability to appeal the issue, the appellate court must therefore grant the petition and quash the probate court’s order, remand for the probate court to enter an order sustaining the petitioner’s objection and further grant the petitioner’s motion for protective order and motion to quash the estate’s subpoena.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.