Jacobson sued Nova Southeastern University after he was fired, alleging discriminatory termination. While employed and standing at a fax machine at the school, Jacobson inadvertently obtained a fax regarding her employment and potential termination that was sent from Nova's counsel to the school officials. Jacobson read, copied and kept a copy of the letter. During the course of discovery Jacobson sought to testify about the letter and also asked others about the letter during their depositions. Nova's counsel objected to all questions regarding the letter. When Nova moved for a protective order, the Trial Court denied the motion and found that the attorney-client privilege had been waived. Nova filed a petition for writ of certiorari.

Even though the trial court applied the five-factor test outlined in General Motors Corp. v. McGee, 837 So.2d 1010, 1040 (Fla. 4th DCA 2002) , the Fourth DCA nonetheless granted certiorari finding that the Trial Court had improperly applied the five factors.

The five criteria outlined in General Motors are: 1. The reasonableness of the precautions taken to prevent inadvertent disclosure; 2. The number of inadvertent disclosures; 3. The extent of the disclosure; 4. The delay in measures taken to rectify the inadvertent disclosure; and 5. Whether overriding interests of justice will be served by relieving the party of its error.

In reversing the Trial Court's decision in this case, the Fourth DCA concluded that the trial court put too much emphasis on the delay in filing the Motion for Protective Order and the time to the actual hearing. The Fourth District noted that, in actuality, Nova's counsel had objected each time the letter was referenced in the depositions (essentially the earliest opportunity to raise the objection). Furthermore, there were other reasonable reasons for the delay in obtaining a hearing on the motion. The Fourth DCA emphasized that the most important factor for a Trial Court to consider is the first one, holding that the trial court was to pay particular attention to the first criteria and analyze what measures were taken to protect against inadvertent disclosure. After analyzing multiple state and federal cases that have addressed this issue, the court concluded that this particular case had unresolved factual questions which required further hearing. In discussing the hearing on remand, the Court stated:

The inquiry must focus on whether the client knew or should have known that the letter sent by the attorney would be viewed by third parties. Whether the use of the fax machine to send the communication negates a claim that the matter was sent in confidence requires a fact-intensive determination. Such an inquiry might include, but would not be limited to: whether the client authorized the attorney to use that fax machine to send confidential letters; the extent to which the fax machine was used generally by the staff without assistance from the secretaries; the extent to which the intended recipients knew that the fax was used by other personnel; and finally whether the letter was accompanied by an attorney-client privilege notice, a fact which Jacobson denies in her affidavit but is undermined by other documents produced in the case. (emphasis in original)

The Fourth DCA also rejected the Trial Court's conclusion that the overriding interests of justice supported the waiver of the privilege. The Court held that, contrary to the Trial Court's conclusion, plaintiff's entire case was not built around the letter and could be proven through other means. Rather, the primary use of the letter was to impeach Nova's witnesses and prove improper motive. However, they specifically held that creating a "credibility exception" to the attorney-client privilege would "swallow the entire rule." (citing Jenney v. Airdata Wiman, Inc., 846 So.2d 664 (Fla. 2d DCA 2003) and Cuillo v. Cuillo, 621 So.2d 460 (Fla. 4th DCA 1993)). They agreed with the Second District that this would be "an improper reason to waive the privilege."

The Fourth District emphasized that the attorney-client privilege was one of the oldest confidential communications at common law and was worthy of maximum legal protection. They noted that Florida's view of the privilege diverged from the federal courts and thus made it questionable to rely on federal decisions on the issue. The Fourth District also emphasized Florida Rule of Professional Conduct 4-4.4(b) where counsel should immediately notify opposing counsel if they reasonablely believed they inadvertently received a protected communication. The Fourth DCA remanded the matter back to the court to conduct another hearing in keeping with their reasoning and holdings.

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