Gross v. American Federated Title Corp.

The defendants filed a petition for writ of certiorari review of the Circuit Court for Miami Dade County’s order denying the defendant’s renewed motion for reconsideration on the issue of waiver of attorney-client and work product privileges.  The order required the defendants to submit to forensic examination of their computer records by a third party which would locate, collect, and preserve documents responsive to the plaintiff’s request to produce.  The court’s Order Regarding Electronic Discovery did not require the production of the located records. The defendants did not respond in a timely manner to the request and failed to assert the attorney-client and work product privileges even while several orders compelling discovery were entered.  The defendants attributed this failure to his lawyer at the time and, obtaining new counsel, asserted the privileges.

The Court concluded that it was without jurisdiction to grant the writ because the trial court’s requirement that the records be maintained does not require production to the plaintiff unless and until the parties agree or the court enters a further order.  Additionally, the appellate court noted that there remains the possibility that the production of documents may never be ordered and any subsequent order requiring production could become the subject of review at that time.  The court also held that certiorari review of such orders may be premature because no irreparable harm can be demonstrated until the trial court enters a subsequent order actually requiring the production of the privileged documents.  Lastly, the Court held that while a privilege can be implicitly waived, failure to assert a privilege at the earliest opportunity, in response to a discovery motion, does not constitute a waiver of the privilege so long as the privilege is asserted by a pleading before there has been actual disclosure of the information sought to be protected.