STATE FARM FLORIDA INSURANCE COMPANY, PETITIONER,
v.
ROBERT COBURN AND MARTA COBURN, RESPONDENTS
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State Farm sought a writ of certiorari to overturn a circuit court's denial of its motion for a protective order against discovery requests in a first-party bad faith insurance action. The court denied the petition but permitted State Farm to file a privilege log before producing documents, finding no irreparable harm and no waiver of privilege claims.
State Farm did not waive its privilege claims because a privilege log obligation does not arise until after a circuit court rules on scope of discovery objections and determines documents are otherwise discoverable. The court denied the certiorari petition as State Farm did not demonstrate irreparable harm, but permitted State Farm to file a privilege log before producing the requested discovery.
[1] A party is required to file a privilege log only if the information sought is otherwise discoverable.
[2] The obligation to file a privilege log does not arise until the court rules on objections to the scope of discovery.
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Join FLexlaw to unlock all legal intelligence“a party is required to file a [privilege] log only if the information is otherwise discoverable”
Establishes that privilege log obligations do not arise until after scope of discovery rulings
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Join FLexlaw to unlock all legal intelligenceState Farm Florida Insurance Company's insureds, Robert and Marta Coburn, brought a first-party bad faith action against State Farm. The Coburns serve…
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State Farm Florida Insurance Company petitions for a writ of certiorari directed at the circuit court’s order denying State Farm’s motion for protective order. The underlying action is a first-party bad faith action brought by State Farm’s insureds, Robert and Marta Coburn. State Farm sought a protective order after the Co-burns served various discovery requests on State Farm. Because we do not believe that State Farm has demonstrated irreparable harm under the facts of this case, we deny the petition. However, as explained below, we do so without prejudice to State Farm’s having the opportunity to file a privilege log with the circuit court before producing the requested discovery.
State Farm objected to the Coburns’ discovery requests on the basis of over-breadth and burdensomeness (i.e., the scope of discovery), as well as on the basis of attorney-client privilege and the work product doctrine. State Farm argued in its petition that the circuit court departed from the essential requirements of law by failing to conduct an in-camera review to address its objections, but in their response, the Coburns argue that State Farm waived this issue by failing to file a privilege log or ask for an in-camera review below.
We do not believe that the facts of this case establish a waiver by State Farm. “ ‘[A] party is required to file a [privilege] log only if the information is otherwise discoverable,’ ” Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820, 826 (Fla. 2d DCA 2007) (quoting Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006)), and until a circuit court rules on the scope of discovery objection, “the party responding to the discovery does not know what will fall into the category of discoverable documents,” Gosman, 937 So.2d at 296. Thus, prior to a ruling on a scope of discovery objection, “the obligation to file a privilege log does not arise.” Gosman, 937 So.2d at 296.
The circuit court’s order denying State Farm’s motion for protective order did not specifically address State Farm’s scope of discovery objections nor did the circuit court find that State Farm had waived any *712of its assertions of privilege or protection.1 We conclude that the general denial of State Farm’s motion was equivalent to a determination that all of the documents were “otherwise discoverable.” At that point, State Farm’s claims of privilege and protection under the work product doctrine became mature. See Allstate Indem. Co. v. Oser, 893 So.2d 675, 677-78 (Fla. 1st DCA 2005). Because Florida Rule of Civil Procedure 1.280 “does not provide a time limit for filing the [privilege] log,” Oser, 893 So.2d at 677, State Farm now has the ability to file a privilege log pointing to specific documents which it claims are protected by attorney-client privilege and/or the work product doctrine. Accordingly, our denial of the petition for writ of certio-rari is without prejudice to State Farm’s right to file a privilege log before producing the requested discovery.
Denied.
WALLACE and KHOUZAM, JJ, Concur.
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Tedrow v. Cannon, 186 So. 3d 43 (Fla. 2d DCA 2016)…95 (Fla. 4th DCA 2006)). But the party claiming privilege is only required to file such a log after the trial court has made the preliminary determination that the information sought is otherwise discoverable. See State Farm Fla. Ins. Co. v. Coburn, 136 So. 3d 711, 711 (Fla. 2d DCA 2014) (citing Morton Plant Hosp. Ass’n, 960 So. 2d at 826). Tedrow filed a memorandum in opposition to Cannon’s motion for sanctions, but Tedrow did not raise the issues of attorney-client or work-product privileges. And it does n…
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Brinkmann v. Petro Welt Trading, 324 So. 3d 574 (Fla. 2d DCA 2021)…opportunity to file a privilege log in relation to this particular motion to compel, and they cannot be deemed to have waived their right to assert claims of privilege or work product protection on that basis. Cf. State Farm Fla. Ins. Co. v. Coburn, 136 So. 3d 711, 711-12 (Fla. 2d DCA 2014) (recognizing the concept of waiver of privilege where a party fails to file a privilege log but explaining that the party's obligation to file a privilege log does not arise until a court determines that the requested info…
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Publix Super Mkts., Inc. v. Colin Roth (Fla. 2d DCA 2023)…mination that all of the documents were "otherwise discoverable" under rule 1.280(b)(6). That determination triggered Publix's obligation to file a privilege log in order to raise the work product privilege. See State Farm Fla. Ins. Co. v. Coburn, 136 So. 3d 711, 711–12 (Fla. 2d DCA 2014) ("The circuit court's order denying State Farm's motion for protective order did not specifically address State Farm's scope of discovery objections nor did the circuit court find that State Farm had waived any of its asse…
Authorities Cited
- Morton Plant Hosp. Ass'n, Inc. v. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007)
- Holbrook v. State, 937 So. 2d 293 (Fla. 4th DCA 2006)
- Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006)
- Allstate Indem. Co. v. Oser, 893 So. 2d 675 (Fla. 1st DCA 2005)