General Testimony Does Not Waive Privilege

In the case of Papa John’s USA, Inc. and Lorena Gonzalez v. Paula Moore, Case Number 5D22-716 (Fla. 5th DCA July 15, 2022), Florida’s Fifth DCA reiterated that general testimony does not waive the attorney-client privilege. Instead, a waiver of attorney-client privilege (sometimes referred to as by “opening the door”) requires a voluntary inquiry into the substance of a conversation with counsel.

Facts of the Case

This case began with a 2015 car accident where the plaintiff was injured by a Papa John’s delivery driver. The lawsuit was filed and the deposition of a corporate representative for Papa Johns was taken in June 2021. At such deposition, the corporate representative testified that he had not personally interviewed the delivery driver but had instead reviewed the driver’s deposition and had asked a lawyer for Papa Johns to contact the driver for some additional information. Further, the corporate representative testified that after speaking with the lawyer for Papa Johns then no he had no additional questions for the delivery driver. This was all testimony on behalf of the corporation (the same as the corporation itself speaking through a “corporate representative” – obviously an entity cannot speak except through a person).

Thereafter, plaintiff’s counsel then sought to inquire into everything that was discussed between the corporate representative and the company attorney. At that point, attorney-client privilege was asserted by Papa Johns, the deposition was terminated, and the parties had to seek guidance from the trial court on how to proceed (keep in mind that claims of privilege are entitled to interlocutory appeal due to the fact that once disclosed, then the information cannot be put back even if the privilege is later permitted to stand).

The trial court found that Papa Johns had waived attorney-privilege by voluntarily entering the line of questioning described above. The court further sanctioned Papa Johns to pay attorney fees in connection with forcing the plaintiff to bring her motion. Thereafter, this appeal ensued.

Issue On Appeal

As mentioned above, the harm caused by the disclosure of privileged information is irreparable (see Montanez v. Publix Super Mkts., Inc., 135 So. 3d 510, 512 (Fla. 5th DCA 2014)). Further, attorney-client privilege is waived when a “person who is privileged against disclosure of a confidential matter or communication waives the privilege if the person … voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication” (see section 90.507, Fla. Stat.).

However, as in Coates v. Akerman, Senterfitt & Eidson, PA, 940 So. 2d 504, 511 (Fla. 2d DCA 2006), the “client does not waive the privilege by testifying generally in the case or testifying as to facts that were the subject of the consultation with his or her attorney, but if the client or attorney testifies as to privileged communications in part, this serves as a waiver as to the remainder of the privileged consultation or consultations about the same subject.”

Therefore, a waiver of the attorney-client privilege is potentially a very big deal because “opening the door” so to speak could completely obliterate the privilege itself for all consultations with counsel about a particular subject matter. This is further why parties are generally advised to avoid topics in testimony that in any way discuss the substance of conversations with counsel.

In any event, the Fifth DCA held that the corporate representative’s testimony in this case did not involve the actual substance of any conversations with counsel and that the attorney-client privilege was not waived. The Fifth DCA quashed the order for sanctions and reversed the trial court on the subject of waiver of attorney-client privilege.

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