Failure To File A Privilege Log Does Not Waive All Privileges
Personal InjuryIn the case of GKK v. Petronila Cruz, Case Number 3D18-560 (Fla. 3rd DCA July 5, 2018), Florida’s Third DCA held that the failure of a party to file a privilege log does not waive categorical privileges (i.e. work-product and attorney-client privileges). This case arose from a slip and fall claim where the plaintiff sought information held by the defense’s investigator that had been produced in “anticipation of litigation.”
Requirement To File A Privilege Log Under Florida Law In A Personal Injury Case
A privilege log is required pursuant to Fla. R. Civ. P. 1.280(b)(5) when a party to a lawsuit asserts a privilege in response to a discovery request. In this case, the defense objected to certain discovery requests filed by the plaintiff and filed a motion for a protective order regarding such discovery items (but no privilege log was filed).
The purpose of a privilege log is to allow the non-objecting party enough information to assess whether is a valid claim of privilege or not. Ordinarily under Florida law, a party waives their right to claim privilege in response to a discovery request if the party fails to file a privilege log (see Kaye Scholer LLP v. Zalis, 878 So. 2d 449 (Fla. 3d DCA 2004). However, when the privilege asserted is not document specific (but rather is categorical), then the privilege for that category (i.e. work-product/attorney-client, etc.) is “plainly protected” (see Nevin v. Palm Beach County School Board, 958 So. 2d 1008 (Fla. 1st DCA 2007).
In this case, the information held by the defense’s investigator was considered “work-product privilege” because the investigator was hired for the purpose of preserving information for counsel in the event of a lawsuit (no one hires an investigator unless they need one). Therefore it is well established that “[u]nder the work product doctrine, documents prepared by or on behalf of a party in “anticipation of litigation are not discoverable” (see Marshalls of MA, Inc. v. Minsal, 932 So. 2d 446 (Fla. 3d DCA 2006).
This why GKK’s failure to file a privilege log did not waive the privilege.
Filing A Privilege Log Every Time You Assert A Privilege Log Is Good Practice
Regardless of whether the issue in this lawsuit could have been avoided by filing a privilege log (and also regardless of whether the privilege was waived), it is simply a good practice reminder to always file a privilege log every time there is a claim of privilege.
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