DELAURIER V. AMERICAN

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2004 KAYE SCHOLER LLP, a New York ** limited liability partnership and MANUEL KUSHNER, ESQ., ** Petitioners, vs. ** ** CHARLES N. ZALIS, ** individually, and CHARLES N. ZALIS, in his capacity as ** General Partner of the CHARLES N. ZALIS FAMILY LIMITED ** PARTNERSHIP, a Virginia limited partnership, NORTH AMERICAN ** UNDERWRITING MANAGERS, INC., a Florida corporation, and ** NORTH AMERICAN UNDERWRITING MANAGERS AGENCY, INC., a ** Massachusetts corporation, and RICHARD BRODSKY, ESQ., ** Respondents. CASE NO. 3D04-292 LOWER TRIBUNAL NO. 03-01784 ** Opinion filed July 21, 2004. A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge. Shutts & Bowen, and Robert Fracasso, and Joey E. Schlosberg, for petitioners. Bales & Sommers, and Richard M. Bales, Jr., and Martin L. Nathan, for respondents. Before GERSTEN, GREEN, and SHEPHERD, JJ. GERSTEN, J. Petitioner law firm Kaye, Scholer, LLP, and attorney Manuel Kushner, Esq. (hereafter collectively referred to as AScholer@), seek certiorari review of a trial court order denying their motion to compel discovery. We find the trial court departed from the essential requirements of law, quash the order, and remand with instructions to grant Scholer=s motion to compel production of documents from the respondents. Respondent, Charles Zalis, and his affiliated companies (hereafter collectively referred to as Arespondents@), filed a legal malpractice action against several law firms, including Scholer. Appropriately, Scholer sought discovery relating to its defenses and served the respondents with its first document request in July of 2003. Thereafter, the respondents sought five extensions of time. Scholer agreed to all five extensions. Meanwhile, the respondents neither served any responses or objection, nor sought any protective order. In the interim, Scholer requested privileged document log pursuant to Rule 1.280(b)(5). dilatory fashion, the respondents did not provide one. a In similar By November of 2003, Scholer, having still not received any responsive documents,1 sanctions. The motion sought the production of the respondents= documents, as well filed as a a motion determination to compel that any and for claims of privilege had been waived pursuant to Florida Rule of Civil Procedure, Rule 1.280(b)(5), based upon the failure to produce a privilege log. The trial court denied the motion in January of 2004, and Scholer sought reconsideration. In its motion for reconsideration, Scholer explained that although the respondents= attorney had respondents partially themselves produced had certain completely failed documents or a privileged document log. documents, the to any produce Upon reconsideration denied, Scholer sought certiorari in this Court. On review, this Court ordered the respondents to file a response. order, the Interestingly, and only after receiving this Court=s respondents produce the documents. now acknowledge their obligation to The respondents state the trial court may have been Aconfused@ about the nature of the production. They argue that any Adelay or recalcitrance@ in their production of 1 Although no documents were produced by the respondents, the respondents= attorney was separately served with a request for production and subpoena duces tecum and did produce twenty eight boxes of discovery. 3 the essential discovery does not justify waiver and does not warrant certiorari. As finally We disagree. acknowledged by the respondents, they were required to respond to the discovery request pursuant to Florida Rule of Civil Procedure, Rule 1.350. believed certain documents were Even if the respondents privileged or protected from discovery, they were still required to file a privilege log pursuant to Rule 1.280(b)(5). Rule 1.280(b)(5) states: When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. This Rule requires the production of a privilege log in order to preserve a privilege. See TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). The purpose of this requirement is Ato identify materials which might be subject to a privilege or work product protection so that a court can rule on the >applicability trial.@ of the privilege or protection= prior to General Motors Corp. v. McGee, 837 So. 2d 1010, 1033 (Fla. 4th DCA 2002). Failure to comply with the requirements of Rule 1.280(b)(5) results in the waiver of any attorney-client and work-product privileges. 4 See General Motors Corp. v. McGee, 837 So. 2d at 1010; Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240 (Fla. 5th DCA 2002); TIG Ins. Corp. of America v. Johnson, 799 So. 2d at 339. Although enlargements Scholer of continuously time, the agreed respondents to willfully numerous refused to produce a log, and further took advantage of the trial court=s Aconfusion@ by continuing to delay production of documents. This type Rule of conduct clearly results in a waiver under 1.280(b)(5). We remind counsel that all attorneys have a professional responsibility of candor toward the court. See R. Regulating Fla. Bar 4-3.3; Hays v. Johnson, 566 So.2d 260 (Fla. 5th DCA 1990), review denied, 576 So.2d 287 (Fla.1991). Just because the respondents have now agreed to produce all responsive documents, does not mean responsibility. involves they Part forbearance concomitant are increased absolved of from costs. this from professional unnecessary Had their the professional responsibility litigation and its respondents been more attuned to their duty of candor and their proper discovery duties as litigants, Scholer would not have incurred the unnecessary expense of seeking certiorari relief in this Court. Accordingly, we grant the petition for certiorari, remand with instructions to quash the order denying the motion to compel discovery, and find the respondents have waived any claims of 5 privilege. See TIG Ins. Corp. of America v. Johnson, 799 So. 2d at 339; Criswell v. Best Western Int=l, Inc., 636 So. 2d 562 (Fla. 3d DCA 1994). produce all documents The respondents are ordered to promptly responsive to the document request. Further, on remand, the trial court shall conduct a hearing to determine a reasonable amount of attorney=s fees to be paid by the respondents to Scholer. Certiorari instructions. 6 granted; order quashed; remanded with

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