Brinkmann v. Petro Welt Trading Ges.M.B.H
| Decision Date | 16 July 2021 |
| Docket Number | No. 2D20-3603,2D20-3603 |
| Parties | Edward BRINKMANN, an Individual; and Majab Development, LLC, a Florida Limited Liability Company, Petitioners, v. PETRO WELT TRADING GES.M.B.H, an Austrian limited liability company; Petro Welt Technologies AG, an Austrian stock corporation; Trading House KAToil, LLC, a Russian limited liability company ; KATKoneft LLC, a Russian Limited Liability Company ; Katobneft LLC, a Russian limited liability company ; and KAToil-drilling LLC, a Russian limited liability company, Respondents. |
| Court | Florida District Court of Appeals |
Gary M. Carman and Richard F. Danese of Gray|Robinson, P.A., Miami; and Kristie Hatcher-Bolin of Gray|Robinson, P.A., Lakeland, for Petitioners.
Richard G. Salazar and Chance Lyman of Buchanan Ingersoll & Rooney PC, Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb LLP, Los Angeles, California, for Respondents.
Edward Brinkmann and Majab Development, LLC, seek a writ of certiorari to quash a discovery order, in part, to the extent that it overruled their assertions of attorney-client privilege and work product protection (or the common interest exception in the event the privilege and work product protection were deemed waived) and required them to produce documents and communications between their counsel and Anna Brinkmann, Edward Brinkmann's mother. We grant the petition due to the trial court's failure to conduct an in camera review of the allegedly privileged materials and the court's overruling of petitioners' privilege and work product objections without any accompanying findings or analysis.
Respondent Petro Welt Trading Ges.m.b.H and other associated foreign entities (collectively, "Petro") sued Edward Brinkmann and Majab, alleging a complex international business scheme that occurred over the course of many years. Among the various claims made by Petro are claims for fraud, conversion, civil theft, and civil RICO. As part of the suit, Petro sought discovery including requests for production which included numbers seven, eight, and forty-three, seeking documents and communications as between petitioners' counsel and a third party, Anna Brinkmann (or her agents). Specifically, the requests sought:
Petitioners filed objections asserting lack of relevance, overbreadth, vagueness, attorney-client privilege, work product protection, and the common interest exception should the privilege and work product protection be deemed waived.1 Petro filed a motion to compel arguing that petitioners improperly asserted privilege and work product objections related to documents and communications that occurred between petitioners' counsel and a third party, Mrs. Brinkmann. At the hearing on Petro's motion to compel, the trial court summarily overruled petitioners' objections by stating, "But if they've objected on some other basis[,] such as relevancy or attorney/client privilege, those objections are overruled." In the written order overruling the objections, the trial court ruled, "To the extent Defendants have asserted objections to the above-enumerated requests[,] such objections are OVERRULED." No further explanation was provided. The trial court granted Petro's motion in relevant part, requiring petitioners to produce the requested documents and communications.
Because trial courts are afforded broad discretion in dealing with discovery issues, a discovery order will not be quashed on certiorari review unless the trial court has departed from the essential requirements of the law. See Racetrac Petroleum, Inc. v. Sewell , 150 So. 3d 1247, 1251 (Fla. 3d DCA 2014). "Discovery of ‘cat out of the bag’ material such as information that is protected by privilege, work product, or trade secrets may cause irreparable injury if disclosed." Allen v. State Farm Fla. Ins. Co. , 198 So. 3d 871, 873 (Fla. 2d DCA 2016) (citing Allstate Ins. Co. v. Langston , 655 So. 2d 91, 94 (Fla. 1995) ). Thus, certiorari review is the appropriate mechanism to challenge a trial court order that requires the disclosure of communications presumptively covered by attorney-client or work product privilege. See Patrowicz v. Wolff , 110 So. 3d 973, 974 (Fla. 2d DCA 2013) ; Robichaud v. Kennedy , 711 So. 2d 186, 187 (Fla. 2d DCA 1998) ; Montanez v. Publix Super Markets, Inc. , 135 So. 3d 510, 512 (Fla. 5th DCA 2014). "An order that compels discovery of privileged information departs from the essential requirements of law because once such ‘information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal.’ " E. Bay NC, LLC v. Estate of Djadjich , 273 So. 3d 1141, 1144 (Fla. 2d DCA 2019) (quoting Estate of Stephens v. Galen Health Care, Inc. , 911 So. 2d 277, 279 (Fla. 2d DCA 2005) ).2
Multiple problems exist in this case, the first being that no in camera review was conducted. "When parties dispute that documents are protected under certain statutory provisions, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable." E. Bay NC, LLC , 273 So. 3d at 1144 (citing Tampa Med. Assocs. v. Estate of Torres , 903 So. 2d 259, 262 (Fla. 2d DCA 2005) ); see also Dominguez v. Citizens Prop. Ins. Corp. , 269 So. 3d 623, 626 (Fla. 2d DCA 2019) (); Patrowicz , 110 So. 3d at 974 .
Beyond the trial court's failure to conduct an in camera review, however, is the fact that the order under review fails to contain any findings or analysis related to petitioners' privilege and work product objections and assertion of the common interest exception in the event that the claims of privilege and work product protection were deemed waived. We acknowledge that an in camera review is not required in all circumstances. See, e.g. , Hett v. Barron-Lunde , 290 So. 3d 565, 573 (Fla. 2d DCA 2020) ; Bianchi & Cecchi Servs., Inc. v. Navalimpianti USA, Inc. , 159 So. 3d 980, 983 (Fla. 3d DCA 2015). However, this court has also acknowledged that a trial court "may ... depart from the essential requirements of law when it ‘requires production of documents—without explanation—despite objections that statutory protections apply.’ " E. Bay NC, LLC , 273 So. 3d at 1144 (quoting Harborside Healthcare, LLC v. Jacobson , 222 So. 3d 612, 616 (Fla. 2d DCA 2017) ). "That is, where the trial court fails to specifically address whether claimed statutory privileges apply, leaving this court ‘to guess at the basis for the discovery of each document’ and as to whether the trial court even considered the objection, certiorari relief may be warranted.’ " Id. (quoting Harborside Healthcare, LLC , 222 So. 3d at 616 ); see also Patrowicz , 110 So. 3d at 974 (). This is because detailed findings on the issue of privilege "are necessary for meaningful appellate review." Nemours Found. v. Arroyo , 262 So. 3d 208, 211 (Fla. 5th DCA 2018) (quoting State Farm Mut. Auto. Ins. Co. v. Knapp , 234 So. 3d 843, 848 (Fla. 5th DCA 2018) ). Thus, where a discovery order failed to contain findings relating to privilege objections and also failed to explain why an in camera review was not required, this court granted certiorari on the basis that "it was error for the trial court to compel the disclosure of records maintained by the law firm without conducting an in camera inspection to determine whether the attorney-client privilege applied." Hett , 290 So. 3d at 573-74.
Petro contends that there was no requirement for an in camera...
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...material protected by privilege such as trade secrets, can result in irreparable harm. Id. ; see also Brinkmann v. Petro Welt Trading Ges.M.B.H. , 324 So. 3d 574, 577-78 (Fla. 2d DCA 2021). Trade secrets are privileged pursuant to section 90.506, Florida Statutes (2019). "To ensure that thi......