Parties in a case can send each other document production requests, under the Florida Rules of Civil Procedure, Rule 1.350. Objections can be made, and the Court can rule on them. If an objection is lodged because an items is protected under a privilege, such as attorney-client privilege, if the Court overrules the non-privilege objections, the objecting party can be required to produce a privilege log to aid the litigants in adjudicating the privilege.
Rule 1.280 – GENERAL PROVISIONS GOVERNING DISCOVERY
(b)(6)Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
Florida courts have held that the obligation to prepare the privilege log only arises after all other objections have been overruled. As explained Gosman v. Luzinski, 937 So.2d 293 (4th DCA 2006):
A party is required to file a log only if the information is “otherwise discoverable.” Where a party claims that the production of documents is burdensome and harassing, such as was done here, the scope of the discovery is at issue.1 Until the court rules on the request, the party responding to the discovery does not know what will fall into the category of discoverable documents. If the party is correct in her assertion that the documents requested are burdensome to produce, why should she still go through all the requested documents to determine which ones are privileged, even though none of them may be required to be produced because the request is burdensome?
Before a written objection to a request for production of documents is ruled upon, the documents are not “otherwise discoverable” and thus the obligation to file a privilege log does not arise. Once the objection is ruled upon and the court determines what information is “otherwise discoverable,” then the party must file a privilege log reciting which documents are privileged. If it is not done in that order, then the party faced with an unduly burdensome document request still has to obtain and review all the documents to determine which are privileged, even though the court may later limit the scope of the request if it was unduly burdensome.
How Does a Non-Party Assert Privilege in Florida?
A non-party is typically asked to produce documents via a subpoena duces tecum without deposition, as well as with deposition. The rule without deposition is as follows:
Rule 1.351 – PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
(a) Request; Scope. A party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things. This rule provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents or things pursuant to rule 1.310.
(b) Procedure. A party desiring production under this rule may not cause a subpoena to be issued until 10 days after notice by delivery or e-mail service (15 days after notice by mail service) on every other party of the intent to serve a subpoena. If the notice is served with original process, the subpoena shall not issue earlier than 45 days after service on the last-served party. The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; shall include a designation of the items to be produced; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. A copy of the notice and proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service by delivery or e-mail of the notice, (15 days if service by U.S. mail), or within 45 days of service of process if the notice is served with original process, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).
(c) Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring production. Service within the state of Florida of a nonparty subpoena shall be deemed sufficient if it complies with rule 1.410(d) or if (1) service is accomplished by mail or hand delivery by a commercial delivery service, and (2) written confirmation of delivery, with the date of service and the name and signature of the person accepting the subpoena, is obtained and filed by the party seeking production. The subpoena shall be identical to the copy attached to the notice and shall specify that no testimony may be taken and shall require only production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person upon whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies. The subpoena shall require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts business. 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 rule 1.310.
(d) Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.
(e) Copies Furnished. If the subpoena is complied with by delivery or mailing of copies as provided in subdivision (c), the party receiving the copies shall furnish a legible copy of each item furnished to any other party who requests it upon the payment of the reasonable cost of preparing the copies.
(f) Independent Action. This rule does not affect the right of any party to bring an independent action for production of documents and things or permission to enter upon land.
No specific form of an objection to producing documents is required. Objections can be made in advance, via service of the objection on all parties, or the objection can be made at the deposition, on the record. In order to avoid having a deponent appear at a deposition multiple times, it can be preferable to resolve these objections in advance. That may not always be possible, for example, if an evidentiary record is required to resolve a privilege dispute. So Rule 1.351(d) allows the party seeking the documents to have the matter adjudicated before the deposition, or may conduct the deposition, develop the evidentiary record relating to the objection, and then hold a hearing.
Rule 1.310, referenced in the rule above, sets forth at 1.310(c)(1), provides:
All objections made at the time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings must be noted by the officer on the deposition. Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to must be taken subject to the objections.
Then, it is up to the party seeking the production to ask the Court to adjudicate the issue.
Does a Non Party Have to Prepare a Privilege Log?
No, a non-party is not required to produce a privilege log in connection with asserting that documents are covered by a privilege, such as the attorney-client privilege. As explained in U.S. Sugar Corp. v. Estate of Mullins, 211 So.3d 110 (4th DCA 2017):
Even if the subpoena arguably sought non-privileged documents which are reasonably calculated to lead to the discovery of admissible evidence in a probate action, the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We previously have held that the plain language of Florida Rules of Civil Procedure 1.280 and 1.351 (incorporated into the Florida Probate Rules under rule 5.080(a)(1) and (9)) do not require non-parties to file privilege logs. See Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc. , 26 So.3d 620, 623 (Fla. 4th DCA 2009) (under then-rule 1.280(b)(5) [now rule 1.280(b)(6) ], “a privilege log is not required from a non-party producing documents”); Lyons v. Lyons , 162 So.3d 212, 215 (Fla. 4th DCA 2015) (“We recognize that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log ….”). The proper procedure, as we indicated in Lyons , would have been to order the petitioner to “segregate those they claimed were privileged,” after which “[t]he court would hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary.” Id. at 215–16.
The Court in Lyons v. Lyons, 162 So.3d 212 (4th DCA 2015) explains the procedure to resolve privilege objections of non-parties in detail:
This provision, however, did not remove the trial court’s obligation to treat privilege objections differently than it would had the objection been made at a deposition of the non-party records custodian. Any claim of privilege must be ruled on and in camera inspection conducted prior to production of such documents. See Bennett v. Berges, 84 So.3d 373, 374–75 (Fla. 4th DCA 2012) ; accord Patrowicz, 110 So.3d at 974. This is also true for other privileges. See, e.g., Russell, 690 So.2d at 744 (psychotherapist-patient privilege). Indeed, in both Patrowicz and Russell, the courts granted the petition for certiorari seeking to quash the Rule 1.351 subpoena, not because of the “self-executing” objection but because the court had not conducted an in camera review for privilege.
We recognize that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log, which might reduce the number of documents upon which the privilege is asserted and thus the burden on the trial court. We do not interpret the rule, however, as leaving the court with the obligation of reviewing all documents without a method of isolating those documents upon which a privilege could be claimed. Nor do we conclude that a deposition of the non-party is required, although we also think that the trial court could require the requesting party to resort to a deposition of the non-party with production of documents at the deposition.
The trial court has discretion to fashion a process to deal with the production of the documents, and it did in this case. After the filing of this petition, the trial court considered a motion for protective order from the accountant and entered an order providing a procedure for the accountant to gather the documents sought by the subpoena. Thereafter, petitioners would be entitled to review the documents to segregate those they claimed were privileged. The court would hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary. This procedure is sufficient to protect privileged documents.
