State Farm Mut. Auto. Ins. Co. v. Knapp

• Decision Date: 12 January 2018
• Docket Number: Case No. 5D17–447
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. David C. KNAPP and Logan Atkinson, Respondents.
• Court: Florida District Court of Appeals

234 So.3d 843

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,

v.David C. KNAPP and Logan Atkinson, Respondents.

Case No. 5D17–447

District Court of Appeal of Florida, Fifth District.

Opinion filed January 12, 2018

Rhonda B. Boggess, and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Petitioner.

Christopher V. Carlye, of The Carlyle Appellate Law Firm, The Villages, for Respondent, David C. Knapp.

No appearance for other Respondent.

EDWARDS, J.

State Farm Mutual Automobile Insurance Company petitions this Court to issue a writ of certiorari regarding discovery orders compelling production of documents that State Farm claims the work product doctrine and the attorney-client privilege protect from disclosure. Although the trial court reviewed the documents in camera , its orders did not state which documents State Farm properly designated as work product nor which documents contained privileged attorney-client communications. Furthermore, the trial court's orders failed to explain the justification for requiring State Farm to turn over its work product documents to Respondent David C. Knapp, and there is no justification here for ordering production of confidential attorney-client documents to opposing counsel. Under the circumstances, the trial court departed from the essential requirements of the law, subjecting State Farm to harm that cannot be remedied in a later plenary appeal. Accordingly, we grant the petition and quash the orders in question.

FACTUAL BACKGROUND

Respondent was involved in two automobile wrecks within six months. Respondent obtained medical treatment following these wrecks, and he sued both of the adverse drivers. He also sued his insurer, State Farm, for payment of uninsured/underinsured motorist benefits and bad faith. State Farm retained and identified Dr. Michael Zeide as an expert witness to address Respondent's alleged injuries and the medical care and treatment related to those injuries.

In turn, Respondent served discovery seeking information about how often State Farm had retained Dr. Zeide as an expert and how much money it had paid him, directly or indirectly, during the preceding three years. Our supreme court authorized this type of discovery, within certain limits, in the case of Allstate Insurance Co. v. Boecher , 733 So.2d 993 (Fla. 1999). Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) codifies this so-called Boecher discovery. Boecher discovery allows a party to gather information that can be used to provide a factual basis for proving and arguing to the jury that an expert witness, such as Dr. Zeide, may have a financial bias favoring the party retaining the expert, here State Farm. See Boecher , 733 So.2d at 997–98.¹

Initially, State Farm objected to portions of Respondent's Boecher discovery and stated that it did not maintain any database or index in the ordinary course of business that could be accessed to identify the amounts it paid to Dr. Zeide when he was engaged to perform analysis, provide testimony, and/or complete compulsory medical examinations. However, State Farm did serve unverified answers to Respondent's interrogatories, providing other information, such as the testimonial percentage and percentage of engagement of its experts, including Dr. Zeide, by plaintiffs versus defendants.

Respondent filed a motion to compel better responses, which the trial court granted. The trial court required State Farm to disclose the amount Dr. Zeide billed to State Farm, the amount State Farm paid him, and the total amount of money that State Farm or anyone acting on behalf of any State Farm entity had paid to each listed expert witness, directly or indirectly, during the preceding three years (2013–2015) for all services rendered, excluding payments or charges for medical treatment provided.

In response to the court's order, State Farm provided verified answers to interrogatories, stating that it conducted a manual review of its records. State Farm also gave information regarding Dr. Zeide, including the number of claims and amount of money paid for compulsory medical examinations or record reviews for the years in question. According to State Farm, during those three years, Dr. Zeide was retained in 601 claims and received $1,235,067.75 in compensation for providing his services. State Farm advised that, because the numbers were calculated by hand following a manual review of claims files, the information was "its best approximation of the individual payments it made to Dr. Zeide" during the three years covered by Respondent's Boecher discovery.

Not satisfied with this additional information, Respondent scheduled the deposition of Bruce Peterson, a State Farm representative who verified the Boecher interrogatory answers in this case. Respondent also noticed the deposition of a different State Farm representative, Mike Wallace, who verified State Farm's answers to the Boecher interrogatories regarding Dr. Zeide in a case between Amanda Park and State Farm, saying that it was not feasible to provide that information and would cost hundreds of thousands of dollars to compile. Both deposition notices were duces tecum, requiring each named witness to produce all documents relied upon or generated in connection with providing the Boecher information; all written policies, manuals, memos, or other documents that set forth State Farm's policies for tracking payments made to retained experts; and all correspondence, e-mails, or other documentation relating to the issue of State Farm's payment to Dr. Zeide during the three years in question. State Farm objected, moved for a protective order, and moved to quash the duces tecum document requests on a number of grounds, including that the information sought was beyond the proper scope of discovery, that it invaded the privacy of non-parties, that it sought documents protected from disclosure by the work product doctrine and attorney-client privilege, and that compliance was unduly burdensome.

Respondent asserted that State Farm's answers to interrogatories regarding its dealing with Dr. Zeide were inconsistent in this case compared to its answers given in the Park case, which Respondent asserted were both different from the answers State Farm gave to similar interrogatories in a third case between Cynthia Parent and State Farm. In the Parent case, State Farm advised that it paid Dr. Zeide or the companies employing him a total of $1,235,077—a difference of $9.25 from the answer given in the present case. Based on the allegedly inconsistent answers, Respondent asserted that State Farm was not giving accurate answers to the interrogatories, which justified taking the depositions of Wallace and Peterson.

At the conclusion of the December 20, 2016 hearing on State Farm's motions, the trial court orally announced its rulings regarding what subject matter could be addressed in each deposition and what documents needed to be provided. The trial court suggested postponing the depositions scheduled for January 6, 2017, so that State Farm could compile the documents, prepare a privilege log, and allow time for the trial court to review privileged information if there was a dispute. Respondent postponed the depositions to January 10, 2017. The trial court also granted Respondent's request to order ExamWorks, a company employing Dr. Zeide, to provide evidence of all payments it made to Dr. Zeide for any State Farm entity for the same three years. ExamWorks filed its response, advising that it did not have any responsive documents that it maintained in the ordinary course of business.

On December 28, 2016, the trial court entered a written order regarding State Farm's objections and motions, which required the documents and privilege logs to be provided to the court and opposing counsel ten days prior to the depositions. This deadline translated to a December 30 due date, two days after the order. State Farm filed its privilege log related to the Wallace notice of deposition on the due date, identifying proprietary information that he had relied on for providing responses in the Park case, together with an affidavit from Wallace explaining his responses. State Farm filed a motion for extension of time on December 30, 2016, seeking five additional business days to prepare and file the privilege log regarding Peterson. On January 5, 2017, State Farm filed its privilege log, with an amended log filed the following day, regarding the documents described in the duces tecum portion of Peterson's deposition notice. The amended privilege log identified documents that State Farm claimed constituted work product and documents that allegedly were or contained privileged attorney-client communications. The amended privilege log identified each document by date, author, recipients, subject matter, and privilege(s) asserted.

At the January 11, 2017, hearing, the trial court announced that it had reviewed the documents attached to the privilege logs and determined what should be redacted. The trial court directed State Farm to pick up the redacted documents from the court on January 12 and provide them to Respondent's counsel on January 13. On January 13, 2017, State Farm filed a motion for extension of time and to stay so that it could have time to determine whether it would seek appellate review of the court's order once it was reduced to a written, executed order.

The court's oral rulings announced on January 11 were set forth in a written order filed January 31, 2017, and an amended order filed February 7, 2017, but dated nunc pro tunc January 13, 2017. The trial court ruled that the documents related to State Farm's internal policies and procedures were proprietary in nature and not reasonably calculated to lead to the discovery of admissible evidence; therefore, State Farm did not need to produce them in discovery. However, the trial court ordered that the information and documents relating to State Farm's use of and payments to Dr....