UNDER RULE 1.351, AN OBJECTION DOES NOT AUTOMATICALLY TRIGGER A DEPOSITION PURSUANT TO RULE 1.310; THE COURT HAS THE ABILITY TO RULE ON THE OBJECTION

Posted on June 7, 2015

Lyons v. Lyons, 2015 Fla. App. LEXIS 1850 (Fla. 4th DCA 2015), involved a battle for control over a family trust but the issue specifically ruled upon by the Fourth District Court of Appeal (“4th DCA”) was an objection to the production of documents from the trust accountant, a non-party, pursuant to Fla. R. Civ. P. 1.351. The Lyons Family Limited Partnership (the “Partnership”) owned and rented commercial property in Broward County and Pennsylvania. It was created by Norma Lyons and her late husband Richard, who had five children. After Richard’s death, four of the children, (“Respondents”), sought to remove their sister, Valerie, as co-trustee of a trust which is a limited partner in the partnership. They also sought to remove their mother, petitioner Norma, as managing general partner of the partnership. Valerie and Norma (“Petitioners”) challenged the legality of the actions of the other siblings/children via declaratory judgments. In addition, the partnership sued the siblings for damages in excess of three million dollars. All three cases were consolidated for purposes of discovery and trial.

Respondents filed a notice of intent to issue a subpoena duces tecum to the accountant for the partnership. Petitioners objected on grounds that the subpoena could include documents protected by attorney-client privilege, accountant-client privilege, and work product. In addition, they alleged that the subpoena was overbroad and requested documents irrelevant to the issues in the case. Although Petitioners claimed that the fact that they objected required the Respondents to now proceed with discovery from the accountant by setting her deposition and requesting production of the documents, the court disagreed, concluding that the Respondents could seek a ruling on the objection rather than being compelled to take the deposition of the accountant. Petitioners maintained that the court must make an in camera review of the documents to assess the claims of privilege and work product. The court overruled Petitioners’ objections to the Respondents’ notice to serve subpoena, ordering the production of the documents but limiting the time period for the documents sought. It did not order an in camera review.

In the petition for writ of certiorari, Petitioners claimed that the court departed from the essential requirements of law by ordering production of documents from the accountant without first determining their privileged status through an in camera review of them, and they claim that once their objection was filed the only method available to obtain production was pursuant to a deposition of the non-party. They relied on Patrowicz v. Wolff, 110 So. 3d 973 (Fla. 2d DCA 2013) in which, under similar circumstances, the Second District concluded that after a Florida Rule of Civil Procedure 1.351 (“Rule 1.351”) notice of intent to issue a subpoena is filed and an objection on the ground of privilege is made, the trial court departs from the essential requirements of law by authorizing the subpoena and production of the documents without conducting an in camera review of such documents prior to disclosure. The 4th DCA agreed with the holding of Patrowicz in the result, although they did not agree with its adherence to former case law which holds that an objection to a subpoena pursuant to Rule 1.351 is “self-executing,” compelling the production of documents only through the deposition of the non-party. The 4th DCA concluded that changes to the rule permit the court to rule on some objections, but that those changes do not remove the court’s obligation to conduct an in camera inspection of documents for claims of privilege.

Rule 1.351 was originally meant to provide a method to obtain documents from non-parties without the necessity of taking the deposition of a records custodian. The rule provided, however, that if any party objected, then Rule 1.310 must be followed, which requires a notice of production of documents at a deposition of the records custodian. Courts construed this provision as “self-executing,” meaning once an objection was made to a notice of intent to issue a subpoena for the production of documents the proponent must follow Rule 1.310. A trial court was without authority to hear the objection to the subpoena. However, practitioners were not in agreement that any objection to a Rule 1.351 subpoena should always lead to the more expensive procedure of taking a deposition pursuant to Rule 1.310. Pursuant to the 2008 amendment to Rule 1.351, an objection did not automatically trigger a deposition, but rather, the court could rule on the objection. The court would still have the obligation to treat privilege objections differently than it would if the objection had been made at a deposition of the non-party records custodian. Any claim of privilege must be ruled on and an in camera inspection conducted prior to production of such documents. See, Bennett v. Berges, 84 So. 3d 373, 374-75 (Fla. 4th DCA 2012); accord Patrowicz. In Patrowicz and an earlier case from the 5th DCA, the courts granted the petition for certiorari seeking to quash the Rule 1.351 subpoena, not because of the “self-executing” objection but because the court had not conducted an in camera review for privilege. The Fourth DCA recognized that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log, which might reduce the number of documents upon which the privilege is asserted and thus the burden on the trial court. The 4th DCA Court did not interpret the rule as leaving the Court without a method of isolating the documents upon which a privilege is claimed, nor did it conclude that a deposition of the non-party is required.  However, they observed that the trial court could require the requesting party to resort to a deposition of the non-party with production of the documents at the deposition.

The 4th DCA held that the trial court did not err by ordering the production of documents because it had discretion to fashion a process to deal with the production of the documents, and the procedure followed here was sufficient to protect the documents under Fla. R. Civ. P. 1.351. The Petitioners would be entitled thereafter to segregate the documents they claimed were privileged.  The trial court would then hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary.  As for the Petitioners claim for certiorari relief because the request for documents was overbroad and sought irrelevant materials, the petition for certiorari was dismissed based upon All About Cruises, Inc. v. Cruise Options, Inc., 889 So. 2d 905, 906 (Fla. 4th DCA 2004) (“[T]his court generally will not exercise its certiorari review where the objection is that the requested production is vague, overbroad, and irrelevant.”). Moreover, Petitioners did not show that the records were irrelevant or burdensome to produce. Therefore, the Court denied the petition as moot to the extent it sought to prevent production of privileged documents without an in camera inspection, and dismissed the remaining grounds raised in the petition.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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