5500 North Corp. v. Willis, 98-2425.

• Decision Date: 09 April 1999
• Docket Number: No. 98-2425.,98-2425.
• Citation: 729 So.2d 508
• Parties: 5500 NORTH CORPORATION d/b/a Days Inn, Oceanfront, Petitioner, v. Deborah WILLIS, Respondent.
• Court: Florida District Court of Appeals

729 So.2d 508

5500 NORTH CORPORATION d/b/a Days Inn, Oceanfront, Petitioner, v. Deborah WILLIS, Respondent.

No. 98-2425.

District Court of Appeal of Florida, Fifth District.

April 9, 1999.

Richard E. Ramsey and Michael R. D'Lugo, of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Orlando, for Petitioner.

Kevin Patrick Bailey, Orlando, for Respondent.

COBB, J.

The defendant/petitioner, 5500 North Corporation, petitions for a writ of certiorari asking this court to quash the trial judge's order which disqualified its trial counsel, the firm of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., (Wicker, Smith), from representing it because of the trial court's perception of an invasion of privileged material. This occurred when an associate from Wicker, Smith, one Kevin Mercer, deposed an investigator for the plaintiff and questioned him about matters involving the work product of plaintiffs attorney, one Kevin Bailey, and also about communications from the plaintiff herself.

The problem arose following an order by the trial court to the effect that all discovery "shall be completed prior to July 24, 1998 unless counsel have agreed to extend the time for said completion." Apparently the attorneys mutually agreed that discovery could extend through the date of July 24, which was a Friday. On the preceding Friday, July 17, 1998, Bailey served a notice by regular mail to add some twelve witnesses to the witness list, one of them being his own investigator, Pete Hildreth.¹ On Tuesday, July 21, 1998, Mercer noticed his intent to depose these additional witnesses at various times throughout the days of July 23 and July 24, 1998. On Wednesday, July 22, Bailey filed a motion for protective order stating that he was unavailable; he further stated in the motion that it was his plan "to complete discovery of late added witnesses on July 28 and 29, as per the Court's instructions at the Pre-Trial Conference (i.e., if, as has happened, Defendant refused to produce any of its late added witnesses for deposition)."²

On July 23 Mercer responded to the motion for protective order noting that the discovery cutoff date was July 24, 1998—and that it had not been extended by the trial court. The response also noted that the trial court had stated at the pretrial conference that the plaintiff should subpoena her late added witnesses for deposition and the defense need not produce those witnesses. The witnesses in question, according to the response, were independent witnesses not under the control of the defense. The response further asserted that the defense was proceeding with the depositions it had set for July 24, 1998, "as plaintiff's counsel has made no attempt to make himself available for depositions, nor has plaintiff's counsel attempted to have this Motion (for protective order) heard by the Court prior to the taking of the depositions as noticed."

Consequently, the Hildreth deposition proceeded on July 24. Bailey did not attend. Hildreth was questioned at the deposition by Mercer, who began preliminarily by stating that the deposition was scheduled on short notice because there was a discovery cutoff on July 24. Mercer further stated that Bailey had filed a protective motion regarding the deposition but did not get a court order thereon, nor did he contact Mercer's office to try to coordinate a hearing on the motion and apparently had elected not to attend the deposition.

Mercer thereafter asked Hildreth questions as to why he was named on the witness list. The investigator said he didn't know but it might have something to do "with the fellow over in Cocoa ... who signed the statement that I took over for him, a former maintenance man." When asked why he was named with regard to that person, Hildreth said he thought he should not be answering something he would only be guessing about and also questioned whether he was being asked about matters which were work product. Mercer responded that any work product privilege "has been waived because Mr. Bailey listed you on his witness list. You are correct that typically what an investigator does is work product." Mercer thereafter asked Hildreth what he knew about various witnesses and as to various aspects of Bailey's trial preparation.

On August 3, 1998 (which was the trial date), Bailey filed a motion for sanctions against Mercer. The motion stated that Hildreth was "purposely misled" by Mercer's statement that the work product privilege was waived by Hildreth being listed as a witness. Bailey characterized this conduct as "Rambo litigation" and claimed the deposition was a "bad faith invasion" of the work product privilege to try and have Bailey's mental impressions and theories of the case exposed. The motion then recited the questions asked as to what the investigator knew about the testimony of various witnesses in the case and as to what he had been told by counsel about the incident at issue.

On that same day, the trial judge held a hearing on the motion for sanctions. Bailey argued that his case had been hurt because "we have effectively gained defense counsel as co-counsel. He has been inside our case, he's been inside our investigator's head...." The trial judge questioned Mercer as to why he thought it was proper for him to question the investigator, and was obviously upset with Mercer's conduct. At the conclusion of the hearing the trial judge entered an order with the following findings:

A. Counsel for the Defendant, in the course of deposing Plaintiff's private investigator on July 24, 1998, made a false statement of law in telling the witness that the work product privilege had been waived and, via that misrepresentation of the law, took full advantage of questioning the witness on privileged matters to such an extent that the concept of fundamental fairness was violated. Plaintiffs counsel, having filed a Motion for Protective Order on the basis of unavailability, was not present at the deposition.

B. As a result of defense counsel's violations of the work product privilege and the attorney-client privilege, on dozens of occasions in the course of the deposition, Plaintiff incurred undue prejudice as regards a fair trial.

C. Defense counsel's conduct evinced deliberate callousness for the privileges involved, and the essential aspects of fundamental fairness, and amounted to willful misconduct.

D. Defense counsel's conduct is governed by the Rules Regulating the Florida Bar, Rules of Professional Conduct, including Rule 4-4.1, that prohibits the making of a false statement of material fact or law to a third person in the course of representing a client. This surely encompasses defense counsel's major misrepresentation of law in advising an investigator/witness that the reluctant witness may proceed to answer questions because his concerns about the work product privilege were incorrect in that the privilege had been waived, as defense counsel incorrectly advised the witness and misled him into prejudicial disclosures.

E. In the subsequent deposition of the opposing party's private investigator in this premises liability matter, defense counsel learned which witnesses Plaintiff planned to call at trial, which witnesses Plaintiff did not plan to call, which witnesses Plaintiff considered important, and which were considered unimportant. Defense counsel discerned which witnesses Plaintiff planned to use on which issues and which witnesses would be used on other issues. Further questioning established which witnesses could be used without fear of impeachment or contradictory statement by Plaintiffs counsel and even which witnesses had been subjected to criminal background checks and which ones would be free of such concern if called by Defendant. Defense counsel learned Plaintiff's summary of certain witness testimony, and even the number of witnesses located by Plaintiff and whether certain witnesses were available for live trial testimony and which ones were safe from character evidence impeachment. All this and more amounted to a tremendous advantage to the Defendant and a tremendous amount of prejudice to the Plaintiff.

F. Defense counsel's questioning included inquiries as to the ability to get witnesses to Court, the identifying of witnesses who may be unavailable or out of town, and generally going through each of the parties' witness lists. He pressed the investigator witness for the result of any background checks Plaintiff may have obtained on each of them.

G. The violations of ethics that occurred here was egregious.

H. Defense counsel also invaded the attorney-client privilege. The private investigator was asked what he had talked to the Plaintiff about; what he had learned from the Plaintiff; whether the Plaintiff gave him a statement; and more specific questions about what the Plaintiff had told him about specific liability issues.

I. Because of the misrepresentation of law by defense counsel, the witness testified to many things he should not have testified to. As a result of the violations of the work product and attorney-client privileges, a tremendous advantage was obtained by the Defendant. Manifest prejudice obtained to Plaintiffs ability to present her case.

J. In the course of argument at the hearing in this matter, defense counsel was advised of the alternate possible remedies of disqualification of defense counsel and his firm, as opposed to the striking of Defendant's pleadings on liability and proceeding to trial on damages alone. Defense counsel informed the Court that their client elected to have defense counsel disqualified rather than to incur the striking of any pleadings.

Based upon his finding that a work product violation had occurred, the judge disqualified Wicker, Smith from the case and ordered them not to communicate any information they obtained from Hildreth. The trial judge also ordered Mercer and Wicker, Smith to pay attorney's fees incurred by the plaintiff for the sanctions hearing and...