BROWN DISTRIBUTING COMPANY OF WEST PALM BEACH, PETITIONER,
v.
GALE MARCEL, RESPONDENT
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A defendant in an age discrimination case challenges a trial court's discovery order requiring production of defense counsel's billing records to support the plaintiff's claim for statutory attorney's fees. The Fourth District Court of Appeal dismisses the certiorari petition, holding that non-privileged time records are discoverable and relevant to establishing reasonable attorney's fees.
The court held that non-privileged information regarding the amount of time spent by defense counsel is discoverable and relevant to establishing reasonable attorney's fees. The court rejected defendant's argument that disclosure would cause irreparable injury, finding the information sought is narrower and more limited than materials protected by work product and attorney-client privileges.
[1] Discovery orders compelling production of opposing counsel's billing records are generally not reviewable by certiorari unless irreparable harm is demonstrated.
[2] Information regarding the amount of time spent by opposing counsel, as distinct from the amount charged or privileged content, may be relevant to the reasonableness of a…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Descriptions of services rendered which reveal the mental impressions and opinions of counsel could be privileged, Old Holdings v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991), but are not at issue here.”
Establishes that while certain descriptions of legal services may be protected, mere time records are not privileged material.
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Join FLexlaw to unlock all legal intelligencePlaintiff Brown Distributing Company prevailed in a jury trial of an age discrimination case under the Florida Civil Rights Act. Following trial, plai…
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KLEIN, J.
After prevailing in a jury trial of an age discrimination case brought under the Florida Civil Rights Act, plaintiff request ed production of defense counsel’s billing records, on the ground that they were relevant to plaintiffs claim for statutory attorney’s fees. The trial court ordered production, and defendant seeks certiorari review contending that they are protected by the work product and attorney/client privilege.
At the hearing on the objection to the request for production, plaintiff explained to the court that her expert wanted to review the amount of time spent by defense counsel in order to arrive at an opinion as to whether the amount of time expended by plaintiffs counsel was reasonable. Plaintiff emphasized that she was only concerned with the amount of time, not the amount charged or any privileged information. The trial court concluded that information as to the amount of time and how it was spent, if not privileged, would be relevant and discoverable. Any information as to the activities performed by counsel, if protected by the work product or attorney/client privilege, was to be redacted.
Defendant argues that we should grant certiorari because the information which is the subject of the order of production is “cat out of the bag” material which will cause irreparable injury. Allstate v. Langston, 655 So. 2d 91, 94 (Fla.1995).
Defendant relies on HCA Health Services of Florida, Inc. v. Hillman, 28 Florida Law Weekly D2758, — So. 2d -, 2003 WL 22849390 (Fla. 2d DCA Dec.3, - 2003); however, the information sought in the present case is narrower than the information regarding the opponent’s attorney’s fees in Hillman. The Hillman court expressed concerns about the discovery of an opponent’s billing records because they could contain attorney/client information, work product, or be irrelevant. Descriptions of services rendered which reveal the mental impressions and opinions of counsel could be privileged, Old Holdings v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128 (Fla. 4th DCA 1991), but are not at issue here.
Defendant also cites Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999); however, in that case the court recognized that a number of courts have allowed discovery of an opponent’s fee information. Mangel involved an appeal from final order, not a petition for certiorari, and the court affirmed, finding no abuse of discretion in the trial court’s refusal to require production of defendant’s attorney’s time records.
Defendant has cited no authority holding that the limited information sought in this case is privileged. It is accordingly not “cat out of the bag” information contemplated by Langston which would give us certiorari jurisdiction.
Although a discussion of whether opposing counsel’s time records are relevant is unnecessary, because this court does not review discovery orders requiring production by certiorari where the only argument is relevancy, we briefly address that for the benefit of the-trial bench and bar. We agree entirely with the trial court’s decision in this case that this information was relevant. State Dept. of Transp. v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998) (approving hours spent by counsel for property owner in condemnation case and noting that it was not inconsistent with hours spent by the DOT’s counsel); Shudlick v. Shudlick, 618 So. 2d 740, 741 (Fla. 4th DCA 1993) (affirming fee award to wife, noting it was not “out of line” with husband’s legal fees); Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988) (affirming a finding that counsel’s hours were not excessive when compared to opponent’s counsel’s hours). Because the defendant has failed to demonstrate that production of this information will cause irreparable injury, we dismiss the petition for certiorari for lack of jurisdiction.
SHAHOOD and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Anderson Columbia & Commercial Risk Mgmt., Inc. v. Brown, 902 So. 2d 838 (Fla. 1st DCA 2005)…tions.” We agree with our sister courts in holding that the discovery of an opposing party’s legal costs is a matter best left to the sound discretion of the trial court. See Final, 869 So. 2d at 666; Brown Dis-trib. Co. of W. Palm Beach v. Marcel, 866 So. 2d 160 (Fla. 4th DCA 2004); Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720, 724 (Fla. 5th DCA 1999). As the Fifth District Court noted in Mangel: Florida has not yet adopted a hard and fast rule regarding the discovery and admission of. opposing counsel’…
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Finol v. Finol, 869 So. 2d 666 (Fla. 4th DCA 2004)…ileged and therefore discoverable. This court has recently allowed discovery of defense counsel’s billing records because they were relevant to plaintiffs claim for prevailing party attorney’s fees. Brown Distrib. Co. of West Palm Beach v. Marcel, 866 So. 2d 160 (Fla. 4th DCA 2004). In this case it is relevant to the issue of alimony, child support, equitable distribution, and attorney’s fees. The petition for certiorari is therefore dismissed for lack of jurisdiction. GUNTHER and WARNER, JJ., concur.…
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Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047 (Fla. 2016)…lso denied similar petitions for writs of certiorari because the redacted materials did not.contain privileged information and th.e disclosure of such materials would not result in irreparable harm. See Brown Distrib. Co. of W. Palm Beach v. Marcel, 866 So. 2d 160, 161 (Fla. 4th [*1052] DCA 2004); see also Finol v. Finol, 869 So. 2d 666, 666 (Fla. 4th DCA 2004). We agree with the rationale of the First District in Anderson Columbia and conclude that the billing records of opposing counsel are relevant to the…
Authorities Cited
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- State v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998)
- Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988)
- Mangel v. BOB Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999)
- OLD Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128 (Fla. 4th DCA 1991)
- King v. State, 618 So. 2d 740 (Fla. 1st DCA 1993)