Eastern Air Lines, Inc. v. Gellert, 82-2620

Citation431 So.2d 329
Decision Date17 May 1983
Docket NumberNo. 82-2620,82-2620
PartiesEASTERN AIR LINES, INC., and Frank Borman, Thomas R. Buttion and William G. Bell, and Francis A. Anania, Esquire, Petitioners, v. Daniel G. GELLERT, Respondent.
CourtCourt of Appeal of Florida (US)

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Todd A. Cowart, Thornton, David & Murray and Carolyn A. Pickard and Barry L. Davis, Miami, for petitioners.

David Popper, Miami, for respondent.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

This petition for writ of certiorari seeks review of an order denying petitioners' motion to quash a subpoena duces tecum. The subpoena commanded Francis A. Anania, a partner in the law firm of Blackwell, Walker, Gray, Powers, Flick & Hoehl, to produce at his scheduled deposition records of (1) all moneys paid to him and his law firm by its client Eastern Air Lines, Inc. in respect to any litigation between Daniel G. Gellert and Eastern; and (2) names and addresses of parties to whom long distance phone calls were made and the nature of the phone calls which correspond to telephone numbers appearing on telephone bills previously produced by the firm.

Anania's motion to quash essentially asserted that the documents requested were protected from discovery by the attorney-client and work product privileges and, at least in part, were irrelevant and not calculated to lead to the discovery of admissible evidence in the case.

The underlying controversy began as a defamation action brought by Gellert, an Eastern Air Lines pilot, against Eastern and three of its executives, Borman, Buttion and Bell. The petitioners counterclaimed in kind against Gellert. Particularly pertinent here is Count VI of the counterclaim, which accused Gellert of defaming Bell in a letter stating that Bell paid Anania $50,000 to induce Anania to make a fraudulent misrepresentation to a doctor for the purpose of getting Gellert grounded. This payment was said by Gellert to have been made in connection with a 1975 action by Gellert against Eastern which was resolved adversely to Gellert. See Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), rev. denied, 381 So.2d 766 (Fla.1980). Ostensibly, the documents which Gellert now seeks from Anania are sought for the purpose of proving that the payment and fraudulent misrepresentation were made.

Although the order under review specifically addressed only the attorney-client privilege claim, the denial of the motion to quash necessarily rejected the petitioners' other claims. We therefore address all of the petitioners' essential claims.

It is apparent that the records of payment and the names and addresses of parties to whom long distance telephone calls were made are not documents which come within the definition of work product, since neither of these records was prepared in anticipation of litigation or for trial. See Fla.R.Civ.P. 1.280(b); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970). Since these documents are not ab initio within the work product privilege, no showing to overcome the privilege, see Fla.R.Civ.P. 1.280(b)(2); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Insurance Company of North America v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981); Associated Medical Institution, Inc. v. Trube, 394 So.2d 563 (Fla. 3d DCA 1981), was needed.

It is equally apparent that the records of payments and the names and addresses of parties to whom long distance phone calls were made do not implicate the attorney-client privilege. In re Grand Jury Proceedings (Slaughter), 694 F.2d 1258 (11th Cir.1982) (records of payments made by a client to an attorney are not covered by the attorney-client privilege in the absence of extraordinary circumstances); In re Grand Jury Proceedings, 689 F.2d 1351 (11th Cir.1982) (same); In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir.1981) (same); United States v. Ponder, 475 F.2d 37 (5th Cir.1973) (same); Tillotson v. Boughner, 350 F.2d 663 (7th Cir.1965) (disclosure of identity of client not privileged, unless disclosure will amount to disclosure of the communication itself); N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir.1965) (same); Baird v. Koerner, 279 F.2d 623 (9th Cir.1960) (same). While we must, accordingly, reject the petitioners' claims of privilege as to these records, their claim that the request for the payment records is overly broad and lacking in sufficient specificity has merit. The only possible relevancy of records showing payments made by Eastern to the law firm is that such records might reveal the payment which Gellert said was made to Anania by Bell in connection with the 1975 litigation, which has long since terminated. However, the instant subpoena calls for payment records in respect to any litigation between Gellert and Eastern and thus brings within its ambit a number of other disputes between these parties that have found their way into the courts, including one which still pends in this court. See Eastern Air Lines, Inc. v. Gellert, Case No. 80-2376. Therefore, this omnibus request for payment records should not have been sanctioned by the trial court without the imposition of narrowing conditions and safeguards. See Goodyear Tire & Rubber Company v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978).

We turn now to that part of the subpoena duces tecum requesting documents concerning "the nature of the phone calls." It may very well be that some or all of such documents are arguably within either the work product or attorney-client privilege. Whether they are or not is a determination which must be made, not by the party asserting the privilege, but by the court after an examination of the documents or the equivalent. Colton v. United States, 306 F.2d 633 (2d Cir.1962); United States v. Kovel, 296 F.2d 918 (2d Cir.1961) (attorney-client); see Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854 (D.C.Cir.1980) (work product). In the present case, however, such a determination was not made, apparently because the trial court concluded that documents describing "the nature of the phone calls" could not, as a matter of law, involve work product, and that even if some of these documents were protected from discovery by the attorney-client privilege, that privilege had been waived.

The assumption that documents calling for "the nature of the phone calls" do not, in any instance, contain material prepared for litigation or, indeed, even the mental impressions or opinions of the attorney, is unwarranted. It very well may be that the document describing the nature of the phone call is as innocuous as "Talked to Mr. Jones re pending litigation between Gellert and Eastern," and thus discoverable, but, on the other hand, the document could contain material that would bring it within the work product privilege and entitle it to at least qualified, if not complete, protection from disclosure.

Similarly, the trial court erred in ruling that the attorney-client privilege had been waived. This ruling was based on the singular fact that during the course of discovery in this action Gellert filed requests for admissions, one of which asked the petitioners to

"Admit or deny that Francis A. Anania in deposing Dr. Giffen in Texas on or about May 26, 1977 for Circuit Court Case Number 75-34034 for the Eleventh Circuit of Florida, did present a co-pilot report which was given as a 1973 report when in truth and in fact [it] was a 1963 report."

The petitioners answered, "Without knowledge; therefore denied. Ask Fran Anania." It is from this answer that the trial court concluded that the attorney-client privilege had been waived.

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    ...Florida cases which used the test of prima facie evidence to establish the crime-fraud exception. In Eastern Air Lines, Inc. v. Gellert, 431 So.2d 329, 333 (Fla. 3d DCA 1983), the court determined that the party seeking disclosure must "make a showing that the communication partook of fraud......
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    ...262 n.6 (Fla. 3d DCA 1986) ; Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988) ; see also E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331 (Fla. 3d DCA 1983) ; In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). Further, nothing in the trial court's order precludes t......
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    ...257, 262 (Fla. 3d DCA 1986) ; Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988) ; see also E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331 (Fla. 3d DCA 1983) ; In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). Further, nothing in the trial court's order precludes ......
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    ...the privilege as to any other area of discussion or transaction between the attorney and the client. Eastern Air Lines, Inc. v. Gellert , 431 So.2d 329 (Fla. 3d DCA 1983). When the attorney-client privilege is raised, and there is a dispute as to a communication or document falling under th......

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