Posted November 23, 2011
Civil Procedure, Discovery, Work Product Privilege
The Fourth DCA Held That The Trial Court's Determination That Defendants Waived Its Work Product Objections, Due To A Failure To File A Privilege Log With Its Responses To Production, Was Improper
Fifth Third Bank v. ACA Plus, Inc.
36 FLW D2409a (Fla 4th DCA, November 4, 2011)
ACA Plus served a second Request to Produce on Fifth Third Bank. Fifth Third timely responded, raising numerous objections, including multiple work product and attorney/client privilege objections. ACA filed a Motion to Compel and the trial court ordered Fifth Third to deliver copies of all documents responsive to the request, along with a privilege log, within thirty days of the order. The Court did not rule on Fifth Third's objections at the hearing. Fifth Third produced records as well as a privilege log within the time required by the Court's order.
During a hearing on the propriety of Fifth Third's objections to the discovery requests, the Court determined that several of the documents claimed as privilege were in fact, privileged. Despite the finding, the trial court ordered production of the privileged documents on the grounds that Fifth Third had filed its privilege log untimely and waived its privilege objections.
On appeal, the 5th DCA found the ruling erroneous, holding that the attorney- client and work product privileges are important protections and waiver of those protections can only occur if the violation is serious. The 5th DCA reversed, holding that the rules did not set forth a time by which a privilege log must be filed and that Fifth Third's failure to file a privilege log at the time it responded to the requests to produce did not constitute a serious violation of the rules.
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