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Redactions Upheld

Written by on Feb 20, 2009| Posted in: Estate Litigation

Fourth District Court of Appeals Issues Order Protecting Documents of Trustee’s Attorneys from Discovery.

Generally speaking, when any person hires an attorney, including the trustee of a trust, the written and verbal communications are privileged and confidential. However, litigation frequently tests the limits to this rule of non-disclosure. One of the most formidable weapons used by litigators to crack the seal on the confidentiality is to request documents relating to the communications in the process of discovery. Often, a party will issue a limited waiver of the attorney-client privilege and this waiver is then used (or abused depending on your perspective) to wedge in between the privilege and the forced disclosure of protected documents.

The case cited most often on this issue is Paradise Divers, Inc. v. Upmal, 943 So.2d 812, 814(Fla.3d DCA 2006). Paradise arose in the Florida Keys, where a Seaman brought an action against his employer, alleging negligence, unseaworthiness, and failure to provide maintenance and cure following a maritime accident that resulted in serious personal injury. The employer raised the affirmative “advice of counsel” maintenance and cure defense and the seaman requested production of various documents. The employer agreed to produce only those relating to their defense, pursuant to an express limited waiver. Judge Payne of the Monroe County Court issued an order compelling production of reports from employer’s legal counsel and the insurance company investigator beyond those previously submitted. The employer sought certiorari review with the Third District who authored the opinion most commonly cited on the issue:
“A party can make a limited waiver of its attorney-client or work product privileges in this state. The limited waiver made by Paradise on the subject of maintenance and cure does not constitute a waiver of the attorney-client and work product objections made to protected investigative materials, mental impressions, or communications concerning other counts of the complaint. With exceptions not pertinent here, a party is not entitled to prepare his case through the work product of another.” Id.

The scope of the limited waiver on attorney-client confidentiality was recently re-examined by the Fourth District Court of Appeals in D’Andrea v. Bresnahan, –So.2d–; 2009 WL 383622; 34 Fla.L.Weekly D387a (February 18, 2009). The case arrived in the Fourth District by virtue of a Petition for writ of certiorari to the Broward County Probate Court on an Order issued by Judge Mel Grossman.

Anthony D’Andrea was represented by Greenberg Traurig as the trustee of his father’s trust. He was sued by his siblings who sought his removal as trustee and also sought damages as a result of his breach of fiduciary duty with respect to the distribution of sale proceeds for certain property.

During the litigation, D’Andrea asserted the “advice of counsel defense” and provided a detailed affidavit from attorney Francis B. Brogan wherein he addressed the legal advice given regarding the property at issue in the trust litigation. Consequently, a subpoena was issued to Greenberg Traurig seeking a broad category of discovery related to the trust.

Greenberg Traurig produced the requested documents, however, it argued that the limited waiver of the attorney client privilege applied only to the transaction surrounding the specific property at issue in the trust litigation. Further, Greenberg redated portions of the documents it believed were protected by the privilege as being beyond the scope of the waiver.

After conducting an in camera inspection of the redacted documents, Broward County Judge Mel Grossman ordered Greenberg Traurig’s record custodian to produce all records, in unredacted form.

The Fourth District disagreed, and applied Paradise to preclude the forced disclosure of documents that was beyond the express waiver of the privilege. Specifically, the Fourth District reversed Judge Grossman’s order to the extent it required production of internal housekeeping information and billing entries and fee amounts, which the Fourth District felt should remain confidential.

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