Lifshutz v. Citizens and Southern Nat. Bank of Florida
| Decision Date | 22 September 1993 |
| Docket Number | No. 93-0945,93-0945 |
| Parties | 18 Fla. L. Weekly D2080, 18 Fla. L. Weekly D2437 Howard LIFSHUTZ, M.D., and Howard Lifshutz, M.D., P.A., Petitioners, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF FLORIDA, a national banking association, successor by merger to Landmark First National Bank of Fort Lauderdale, Florida, Respondent. |
| Court | Florida District Court of Appeals |
Philip M. Burlington, Caruso, Burlington, Bohn & Compiani, P.A., and Anne Desormier-Cartwright, Lewis, Vegosen & Rosenbach, P.A., West Palm Beach, for petitioners.
James W. Carpenter, Haley, Sinagra & Perez, P.A., Fort Lauderdale, for respondent.
We grant this petition for writ of certiorari and quash that part of the trial court order granting the Respondent-Plaintiff's motion to compel, to the extent that the order rejects Petitioners' claim of privilege based on work product. The objections are to the production of certain notes, memos, and other investigative material, and to related testimony by Petitioners' investigator-consultant. Alachua Gen. Hosp. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So.2d 556 (Fla. 3d DCA 1963). See also Vann v. State, 85 So.2d 133 (Fla.1956). With respect to work product disclosure, the order departs from the essential requirements of law and there is no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). However, we affirm, in part, the trial court order to the extent that Petitioners' objections were founded on an attorney-client privilege. We find no abuse of trial court discretion in determining that the consultant in question was acting as Petitioners' agent, and not as the agent of counsel in the course of receiving and working on the information in question.
On remand, the trial court must still resolve whether claims by or against Petitioners were pending, with respect to which litigation Additionally, a hearing is necessary in order to resolve whether Plaintiff, in any event, is entitled to discover the factual information in question, as claimed in his response, on the basis of a demonstrated need and hardship. Proctor & Gamble Co. v. Swilley, 462 So.2d 1188 (Fla. 1st DCA 1985); Alachua Gen. Hosp., 403 So.2d 1087. The record reflects that those issues remain unresolved.
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