U.S. Sugar Corp. v. Estate of Mullins, 4D16–2738

• Decision Date: 25 January 2017
• Docket Number: No. 4D16–2738,4D16–2738
• Citation: 211 So.3d 110
• Parties: UNITED STATES SUGAR CORP., Petitioner, v. ESTATE OF Jeremy Scott MULLINS, Respondent.
• Court: Florida District Court of Appeals

211 So.3d 110

UNITED STATES SUGAR CORP., Petitioner,

v.ESTATE OF Jeremy Scott MULLINS, Respondent.

No. 4D16–2738

District Court of Appeal of Florida, Fourth District.

[January 25, 2017]

Robin B. Levine, David B. Stauber, and Andrew S. Connell of Litchfield Cavo, Fort Lauderdale, for petitioner.

John J. Waskom of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for respondent.

Gerber, J.

The petitioner, a non-party to the estate's probate action, seeks a writ of certiorari to quash the probate court's order: (1) overruling the petitioner's relevance-based objections to the estate's subpoena duces tecum upon the petitioner; and (2) requiring the petitioner to file a privilege log pursuant to the petitioner's privileged-based objections to the subpoena. The petitioner argues that the order departs from the essential requirements of the law, and no adequate remedy exists on appeal because it is not a party to the probate action and thus has no ability to appeal.

We agree with the petitioner's argument, and grant the petition for three reasons: (1) the subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action; (2) the subpoena seeks documents which, according to the subpoena's plain language and the petitioner's affidavit in response to the subpoena, are privileged under the work product doctrine; and (3) the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log.

In this opinion, we first shall present the procedural history before turning to our analysis of the three reasons why we grant the petition.

Procedural History

The decedent died after an accident on the petitioner's property. The estate has not filed an adversarial action against the petitioner arising from the decedent's death.

The estate served a subpoena duces tecum upon the petitioner in the probate action. The subpoena seeks "all reports, statements, photographs, and any other documents and/or materials relating to your investigation of the ... fatal accident ... which killed [the decedent]."

The petitioner, in response to the subpoena, filed a combined objection, motion for protective order, and motion to quash (the "objection"). The objection argued that the subpoena, among other things, was not reasonably calculated to lead to the discovery of admissible evidence in the probate action, and sought privileged attorney-client and work product documentation. According to the petitioner, the underlying probate petition was devoid of any allegations upon which to premise discovery upon the petitioner regarding the petitioner's investigation of the accident. Thus, the petitioner argued, the subpoena was nothing more than a fishing expedition seeking information which might give rise to a potential wrongful death action against the petitioner, and sought investigative reports and materials which were protected under the attorney-client and work product privileges.

The estate, in response to the objection, argued that its subpoena was justified because it "is the affirmative duty of [the estate] to investigate these matters, as there may very well be grounds for a wrongful death action."

The petitioner, in reply to the estate's response, filed an affidavit from the petitioner's safety manager. In the affidavit, the safety manager supported the petitioner's privileged-based objections by stating that "[a]ll materials responsive to the ... subpoena were prepared and gathered in anticipation of litigation, and at the direction of [petitioner's] in house legal counsel, or, in some instances, at the direction of [petitioner's] outside legal counsel."

At the hearing on the petitioner's objection, the petitioner repeated its arguments stated above, and also argued that, as a non-party to the probate action, it was not required to file a privilege log.

The estate argued that it was entitled to obtain the petitioner's investigatory reports and materials, the petitioner was required to file a privilege log, and the court should conduct an in camera inspection of any items identified on the privilege log.

The probate court entered an order: (1) overruling the petitioner's relevance-based objections to the subpoena; and (2) requiring the petitioner to file a privilege log pursuant to the petitioner's privileged-based objections to the subpoena.

Analysis

This petition followed. The petitioner argues that the probate court's order departed from the essential requirements of the law, and no adequate remedy exists on appeal because it is not a party to the probate action and thus has no ability to appeal. See Allstate Ins. Co. v. Langston , 655 So.2d 91, 94 (Fla. 1995) ("[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal."); Fla. Dep't of Health and Rehab. Svcs. v. Myers , 675 So.2d 700, 701 (Fla. 4th DCA 1996) (granting petition for writ of certiorari in part because non-party lacked an adequate remedy by direct appeal after final judgment).

We agree with the petitioner's argument, and grant the petition for three reasons: (1) the subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action; (2) the subpoena seeks documents which, according to the subpoena's plain language and the petitioner's affidavit in response to the subpoena, are privileged under the work product doctrine; and (3) the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We address each reason in turn.

1. The subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action.

In R.G. Industries, Inc. v. Balsiger , 502 So.2d 1378 (Fla. 4th DCA 1987), after the decedent was killed by the accidental discharge of a handgun, a petition for the administration of his estate was filed. Before a wrongful death action was filed, the personal representative sought discovery in the estate proceeding from a potential defendant, which discovery was relevant to only a wrongful death action. The potential defendant unsuccessfully sought a protective order. The potential defendant then filed a petition for a writ of prohibition, which we treated as a petition for a writ of certiorari. We granted the petition under the following reasoning:

The simple answer to the instant question is found in Florida Rule of Civil Procedure 1.280(b)(1) :

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things .... [Emphasis added.]

Since [the potential defendant] is not a party to the estate proceeding and since the wrongful death/products liability action and its issues cannot be litigated in the estate proceeding, we hold that discovery in the wrongful death/products liability suit is not relevant and cannot be had in the estate proceeding.

We grant certiorari and remand with instructions to grant protection to [the potential defendant] from the discovery and efforts made by the personal representative in the estate proceeding.

Id. at 1379. Our reasoning in R.G. applies equally here.

The only authority which the estate cites for the proposition that a personal representative should be able to seek discovery in an estate proceeding to investigate the possible filing of a wrongful death action is a single sentence from an appeal in a wrongful death action describing the procedural history underlying that action. See Garces v. Montano , 947 So.2d 499, 501 (Fla. 3d DCA 2006) ("[The decedent] died shortly after surgery. Her husband ... sought appointment as Personal Representative of her estate to investigate possible wrongful death and malpractice claims on behalf of himself, the estate, and [the decedent's] two...