Nelson v. State

• Decision Date: 09 March 2022
• Docket Number: 3D21-1655
• Citation: Nelson v. State, 337 So.3d 1246(Table) (Fla. App. 2022)
• Parties: Kelly NELSON, et al., Petitioners, v. The STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

337 So.3d 1246 (Table)

Kelly NELSON, et al., Petitioners,

v.The STATE of Florida, Respondent.

No. 3D21-1655

District Court of Appeal of Florida, Third District.

Opinion filed March 9, 2022.

Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Law Offices of Kawass, P.A., and Kristen A. Kawass, for petitioners.

Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for respondent.

Before MILLER, LOBREE, and BOKOR, JJ.

ON MOTION FOR REHEARING

MILLER, J.

Respondent's motion for rehearing is denied.We withdraw our prior opinion and substitute the following opinion in its stead.

Petitioners, Kelly Nelson and Alex John Saiz, seek certiorari review of a lower court order denying their motions for protective order and to quash a subpoena duces tecum.¹The subpoena requires Saiz, Nelson's former counsel, to produce certain audio and visual recordings, billing and payment records, and telephone numbers, and to further submit to a deposition.Petitioners contend compliance with the subpoena will invade the work product and attorney-client privilege.We find no departure from the essential requirements of law in compelling the production of the requested recordings and documents.Because the undeveloped record before us fails to establish waiver, however, we quash that portion of the order allowing deposition inquiry into communications protected by attorney-client privilege.

BACKGROUND

The facts relevant to the petition are largely undisputed.After Nelson was jailed for armed robbery and detained without bond, the alleged victim in the case was murdered in front of her three-year-old daughter.Before news sources reported the identity of the victim, Saiz contacted the prosecutor on the case and informed him the victim was dead.Saiz told the prosecutorhe had received the information from Nelson, who had purportedly informed Saiz he learned of the murder from a news outlet.

The State issued a subpoena duces tecum, directing Saiz to appear for deposition and produce the following documents: (1) video or audio recordings involving the victim and an individual affiliated with the underlying robbery case; (2) billing and payment details relating to his representation of Nelson; and (3) telephone numbers for the affiliate and her associates.Importantly, the subpoena did not place any limit on the areas of deposition inquiry.

Saiz filed, and Nelson later adopted, the motions under review, contending the subpoena targeted information protected by attorney-client privilege and the requested documents constituted work product.²The trial court convened a hearing on the motions.

At the hearing, the State argued it was unable, without undue hardship, to obtain the substantial equivalent of the subpoenaed documents and recordings.It further argued that although confidential conversations between Saiz and Nelson were cloaked in attorney-client privilege, voluntary disclosure to the prosecutor constituted a waiver as to those communications relating to the homicide.Saiz disputed, both orally and in writing, the details of the conversation.

At the conclusion of the hearing, the court denied the motions.Reconsideration proved futile, and the instant petition ensued.

STANDARD OF REVIEW

Although "[c]ertiorari is an extraordinary remedy that is available only in limited circumstances," it is warranted when an order results in a material injury for the remainder of the case, which cannot be corrected on plenary appeal, and departs from the essential requirements of law.Charles v. State, 193 So. 3d 31, 32(Fla. 3d DCA2016);seeFernandez-Andrew v. Fla. Peninsula Ins. Co., 208 So. 3d 835, 837(Fla. 3d DCA2017).Orders granting the discovery of privileged materials, by deposition or otherwise, are amenable to certiorari review because plenary appeal in such circumstances seldom provides adequate redress.McGarrah v. Bayfront Med. Ctr., Inc., 889 So. 2d 923, 925(Fla. 2d DCA2004).

LEGAL ANALYSIS

We discern no error in the compelled production of recordings, billing and payment records, and telephone numbers.These documents constitute, at best, fact work product, and the State has made a reasonable showing of need and inability to obtain the substantial equivalent without undue hardship.SeeState v. Rabin, 495 So. 2d 257, 262 n.6(Fla. 3d DCA1986);Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885(Fla. 3d DCA1988);see alsoE. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331(Fla. 3d DCA1983);In re Slaughter, 694 F.2d 1258, 1260(11th Cir.1982).Further, nothing in the trial court's order precludes the redaction of any mental impressions or opinions prior to disclosure.SeeFinol v. Finol, 869 So. 2d 666(Fla. 4th DCA2004).Thus, we turn our analysis to the deposition.

Codified in section 90.502, Florida Statutes(2022), "[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law."Upjohn Co. v. United States, 449 U.S. 383, 389(1981)."It is therefore not only an interest long recognized by society but also one traditionally deemed worthy of maximum legal protection."Am. Tobacco Co. v. State, 697 So. 2d 1249, 1252(Fla. 4th DCA1997)(quotingHaines v. Liggett Grp. Inc., 975 F.2d 81, 90(3d Cir.1992) ).The privilege developed to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."Upjohn Co., 449 U.S. at 389.To that end, the attorney must "know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out."Trammel v. United States, 445 U.S. 40, 51(1980).

Although waiver of attorney-client privilege is not favored under Florida law, assigning the burden of proof in such cases is an unclear exercise.SeeTIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339, 341(Fla. 4th DCA2001).In the federal courts, there is a lack of uniformity as to whether the party asserting the privilege or the party asserting waiver bears the burden.SeeJohn W. Gergacz, Attorney-Corporate Client Privilege§ 5:13 (2021 ed.).This is because assigning the burden of proof depends on how a court characterizes the waiver doctrine.Id.

Florida courts, however, generally assign to the party seeking to establish waiver the burden of producing evidence supporting such a finding.SeeFla. House of Representatives v. Expedia, Inc., 85 So. 3d 517, 525(Fla. 1st DCA2012)("Expedia claims that it is necessary to prove that it did not provide the documents independently, so that it can refute a claim that it had waived the attorney-client privilege with respect to the documents.The problem with this claim is that the burden of proving a waiver is on the counties.");Deloitte, Haskins & Sells v. S. Fin. Holding Corp., 566 So. 2d 906, 906(Fla. 4th DCA1990)("To obtain access to these [financial records], respondent must make out a prima facie case that Central ... has waived its [accountant-client] privilege.");Palm Beach Cnty. Sch. Bd. v. Morrison, 621 So. 2d 464, 469(Fla. 4th DCA1993)(placing burden on party seeking disclosure to prove patient waived psychotherapist-patient privilege);Zarzaur v. Zarzaur, 213 So. 3d 1115, 1120(Fla. 1st DCA2017)("Any disclosures beyond what Wife agreed to provide the independent psychologist may be ordered only upon a record of competent, appropriately relevant, and timely evidence showing an actual or involuntary waiver by the Wife within the meaning of the relevant authorities.");see alsoHaskell Co. v. Ga. Pac. Corp., 684 So. 2d 297, 298(Fla. 5th DCA1996)("When a privilege is facially apparent, the burden is on the party seeking disclosure to show that...