Patrowicz v. Wolff

• Decision Date: 05 April 2013
• Docket Number: No. 2D12–5535.,2D12–5535.
• Citation: 110 So.3d 973
• Parties: Sarah R. PATROWICZ, as Personal Representative of the Estate of Joseph H. Winner, Petitioner, v. Cynthia WOLFF, Respondent.
• Court: Florida District Court of Appeals

110 So.3d 973

Sarah R. PATROWICZ, as Personal Representative of the Estate of Joseph H. Winner, Petitioner,

v.Cynthia WOLFF, Respondent.

No. 2D12–5535.

District Court of Appeal of Florida,

Second District.

April 5, 2013.

Matthew A. Linde of Matthew A. Linde, P.A., Fort Myers, for Petitioner.

P. Brandon Perkins of The Powell Law Firm, P.A., Fort Myers, for Respondent.

KHOUZAM, Judge.

Sarah R. Patrowicz, as Personal Representative of the Estate of Joseph H. Winner, petitions this court for a writ of certiorari quashing a discovery order compelling the production of documents allegedly subject to the attorney-client privilege. Because the trial court departed from the essential requirements of the law by ordering the production of allegedly privileged documents without first conducting an in camera inspection to determine whether the privilege applies, we grant the petition and quash the order.

In the underlying suit, plaintiff Cynthia H. Wolff filed a Notice of Intent to SubpoenaThird Party Records from Patrowicz's attorney, Matthew A. Linde, pursuant to Florida Rule of Civil Procedure 1.351(b). The proposed subpoena sought the entire estate planning file relating to the decedent's estate, including correspondence, memoranda, and notes. Patrowicz filed a timely written objection to the proposed subpoena. After a hearing on the objection, the trial court overruled it and authorized Wolff to issue the subpoena.

Wolff served the subpoena on Linde. Linde filed a written objection to the subpoena and Wolff set the matter for a hearing. At the hearing, Linde argued that under rule 1.351(c) his objection to the subpoena was self-executing and that the hearing was therefore improper because the matter should have proceeded instead to a deposition. Linde stated at the hearing that the basis for his objection was that the documents sought were protected by the attorney-client privilege. Wolff did not allege that any exception to the privilege applied. Without taking any evidence or argument as to whether the documents were actually privileged, the trial court overruled the objection and ordered Linde to produce all of the documents sought.

Patrowicz timely filed her petition, arguing that the trial court departed from the essential requirements of the law by ordering the production of allegedly privileged documents without first addressing whether they were actually protected. We agree.

An objection to a subpoena filed pursuant to rule 1.351 is self-executing. Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 744 (Fla. 5th DCA 1997). “[W]hen any objection is filed, Rule 1.351 ceases to be available” and the party seeking the documents may proceed only by taking a deposition of the records custodian. ABC Liquors, Inc. v. Berkey, 589 So.2d 457, 458 (Fla. 5th DCA 1991); see alsorule 1.351(c) (“If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be obtained pursuant to [the rule governing depositions].”). Consequently, an objection “requires that a deposition of the records custodian be taken in order to obtain the requested documents.” Russell, 690 So.2d at 744. The basis for the objection need not be specified until the deposition. Morgan, Colling & Gilbert, P.A. v. Pope, 756 So.2d 201, 201 (Fla. 2d DCA 2000).

“A trial court's order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable...