Third District Court of Appeal
State of Florida
Opinion filed June 22, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1966
Lower Tribunal No. 13-37232
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Michelle Coffey-Garcia, et al.,
Petitioners,
vs.
South Miami Hospital, Inc., et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lisa S.
Walsh, Judge.
Diez-Arguelles & Tejedor, and Carlos Diez-Arguelles and Maria Tejedor
(Orlando); Barbara Green, for petitioners.
Spector Rubin, P.A., and Andrew Spector and Robert M. Borak; Falk, Waas,
Hernandez, Cortina, Solomon & Bonner, P.A., and Glenn Falk, Scott E. Solomon
and Jordan M. Bieber; Haliczer, Pettis & Schwamm, P.A., and Debra Potter
Klauber, for respondents.
Before EMAS, LOGUE, and SCALES, JJ.
LOGUE, J.
Michelle Coffey-Garcia and Jose M. Garcia, individually and on behalf of
their daughter, Samantha Garcia (hereinafter, “the Garcias”), petition for a writ of
certiorari to review an order that compels Ms. Coffey-Garcia to answer deposition
questions regarding lawyers she consulted relating to the medical malpractice
claim at issue. We grant the writ and quash part of the order under review.
FACTS AND PROCEDURAL HISTORY
On July 16, 2005, Ms. Coffey-Garcia gave birth to her daughter, Samantha.
In early 2007, a neurologist diagnosed Samantha with cerebral palsy. Prior to
Samantha’s eighth birthday, on April 30, 2013, the Garcias petitioned to extend by
ninety days the statute of limitations for filing a medical malpractice action against
the hospitals, clinics, and doctors involved in Samantha’s birth. See § 766.104(2),
Fla. Stat. (2013). After filing their notice of intent to initiate litigation for medical
malpractice, see § 766.106(2), Florida Statutes (2013), the Garcias filed suit
against those hospitals, clinics, and doctors in November 2013.
The statute of limitations for medical malpractice is two years “from the
time the incident giving rise to the action occurred or within 2 years from the time
the incident is discovered, or should have been discovered with the exercise of due
diligence.” § 95.11(4)(b), Fla. Stat. (2013). The Florida Supreme Court has
interpreted this language “to mean not only knowledge of the injury but also
knowledge that there is a reasonable possibility that the injury was caused by
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medical malpractice.” Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993) (footnote
omitted).
To investigate when Ms. Coffey-Garcia first comprehended a reasonable
possibility that her child’s injury was caused by malpractice, the lawyers for the
hospitals, clinics, and doctors deposed her seeking to discover what lawyers she
consulted regarding Samantha’s condition, when she consulted them, and why she
consulted them. After testifying that her current counsel was not the first attorney
she consulted, she declined to answer any other questions based on the attorney-
client privilege.
The hospitals, clinics, and doctors moved to compel. The trial court ordered
Ms. Coffey-Garcia to “answer all questions related to the following issues”: (a)
“when she first sought legal counsel”; (b) “the names of the attorneys whom she
consulted with”; and (c) “the reasons why she first sought out legal counsel and
any subsequent counsel.” This petition followed. At oral argument, the hospitals,
clinics, and doctors conceded that any information produced should be limited to
consultations regarding possible legal remedies stemming from the daughter’s
condition.
ANALYSIS
I. Jurisdiction.
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For a writ of certiorari to issue, the petitioner must demonstrate that the
challenged non-final order (1) departs from the essential requirements of law, (2)
results in material injury for the remainder of the case, and (3) such injury is
incapable of correction on post-judgment appeal. Citizens Prop. Ins. Corp. v. San
Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012). The last two elements are
referred to as irreparable harm, the establishment of which is a condition precedent
to invoking certiorari jurisdiction. Nader v. Fla. Dep’t of Highway Safety & Motor
Vehicles, 87 So. 3d 712, 721 (Fla. 2012); Sea Coast Fire, Inc. v. Triangle Fire, Inc.,
170 So. 3d 804, 807 (Fla. 3d DCA 2014). The disclosure of information protected
by the attorney-client privilege is well recognized as irreparable harm. See Bd. of
Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d
450, 457 (Fla. 2012).
II. Attorney-Client Privilege
In Florida, a client’s right to have his or her communications with counsel
remain confidential derives from two sources which establish somewhat different
standards. The right as it pertains to disclosure in judicial and administrative
hearings, technically referred to as the “attorney-client privilege,” is governed by
the Florida Evidence Code, codified at section 90.502, Florida Statutes (2013). The
right as it pertains to disclosure outside judicial and administrative hearings,
technically referred to as “the rule of client-lawyer confidentiality,” is governed by
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Rule Regulating the Florida Bar 4-1.6. See R. Regulating Fla. Bar 4-1.6 cmt. (“The
attorney-client privilege applies in judicial and other proceedings in which a
lawyer may be called as a witness or otherwise required to produce evidence
concerning a client. The rule of client-lawyer confidentiality applies in situations
other than those where evidence is sought from the lawyer though compulsion of
law.”). Because we are addressing disclosure in the context of a lawsuit, this case
is obviously governed by the attorney-client privilege provided in the Evidence
Code.1
Under the Evidence Code, “[a] client has a privilege to refuse to disclose,
and to prevent any other person from disclosing, the contents of confidential
communications when such other person learned of the communications because
they were made in the rendition of legal services to the client.” § 90.502(2), Fla.
Stat. The Code further provides:
1 The distinction between the Ethics Code and Evidence Code is significant
because Florida courts have interpreted the Ethics Code’s rule of client-lawyer
confidentiality to be broader in scope than the Evidence Code’s attorney-client
privilege. See Campbell v. Am. Pioneer Sav. Bank, 565 So. 2d 417, 417 (Fla. 4th
DCA 1990) (“[T]he Ethics Code’s protection of a client’s confidences is broader
than the evidentiary attorney-client privilege protecting privileged
communications.”); Buntrock v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA
1982) (“The Code of Professional Responsibility protects more than confidential
communications, it protects confidences and secrets of a client. This protection is
broader than the evidentiary attorney-client privilege, and applies even though the
same information is discoverable from other sources.”) (internal citations omitted);
see also Abdool v. Bondi, 141 So. 3d 529, 553 (Fla. 2014) (“[Rule 4-1.6] has been
interpreted to protect the confidences and secrets of clients.”).
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A communication between lawyer and client is “confidential” if it is
not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal
services to the client.
2. Those reasonably necessary for the transmission of the
communication.
§ 90.502(1)(c), Fla. Stat.2
The privilege protects only communications to and from a lawyer; it does
not protect facts known by the client independent of any communication with the
lawyer, even if the client later tells the fact to the lawyer: “the communication
between the attorney and client is privileged, but the underlying facts are
discoverable.” S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1387 (Fla.
1994); see also Carnival Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA
1998) (“Although the communications between an attorney and client are
privileged, the underlying facts are discoverable.”). In other words, “[t]he client
cannot be compelled to answer the question, ‘What did you say or write to the
attorney?’ but may not refuse to disclose any relevant fact within his knowledge
merely because he incorporated a statement of such fact into his communication to
his attorney.” Upjohn Co. v. U.S., 449 U.S. 383, 396 (1981).
2 Section 90.502(4) provides several exceptions to the attorney-client privilege,
none of which apply here.
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The burden of establishing the existence of the attorney-client privilege, and
thus the existence of a confidential communication, rests on the party asserting the
privilege. Deason, 632 So. 2d at 1383. This burden can be met by describing “the
nature of the documents, communications, or things not produced or disclosed in a
manner that, without revealing information itself privileged[,] . . . will enable other
parties to assess the applicability of the privilege.” Fla. R. Civ. P. 1.280(b)(6). In
some cases, however, the communication will appear to be privileged on its face.
First Union Nat’l. Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001); Shell
Oil Co. v. Par Four P’ship, 638 So. 2d 1050 (Fla. 5th DCA 1994). In such cases,
the party seeking disclosure of the communication bears the burden of proving that
it is not privileged. Turney, 824 So. 2d at 183-84; Shell Oil Co., 638 So. 2d 1050.
III. Application of Law to the Discovery Order
Applying this law to the instant case, we decline to quash the first two parts
of the order under review. Based on the concession of the hospital, clinics, and
doctors, the order to divulge the names of attorneys and dates of consultation is
limited to those attorneys Ms. Coffey-Garcia consulted regarding possible legal
remedies stemming from her daughter’s condition. On their face, these questions
do not require her to disclose any communication she had with any attorney. They
merely require her to disclose the occurrence of a consultation with a lawyer
regarding a general topic.
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This court has previously held that “[t]he traditional and still generally
applicable rule denies the [attorney-client] privilege for the fact of consultation or
employment . . . .” Greenberg Traurig Hoffman Lipoff Rosen & Quentel v. Bolton,
706 So. 2d 97, 98 (Fla. 3d DCA 1998) (quotations and citations omitted); see also
Burt v. Gov’t Emps. Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992) (holding, in a
personal injury case, that a question asking a plaintiff when she obtained counsel
for the case did not violate the attorney-client privilege). There are, of course,
exceptions to this general rule in which the very fact of a consultation with an
attorney constitutes a “confidential” communication under the Evidence Code. But
those exceptions do not apply here.3
We therefore conclude that requiring Ms. Coffey-Garcia to reveal when and
with whom she consulted for the general purpose of discussing possible legal
remedies stemming from her daughter’s condition does not, on this record,
implicate the attorney-client privilege. This is true even though she is revealing in
general terms her purpose for scheduling and attending the consultation. “Courts
have consistently held that the general subject matters of clients’ representations
are not privileged. Nor does the general purpose of a client’s representation
3 One example of an exception to this general rule is the “last-link” exception. See
Del Carmen Calzon v. Capital Bank, 689 So. 2d 279, 281 (Fla. 3d DCA 1995)
(“[T]he attorney-client privilege covers information that would supply links of
incriminating evidence in an existing chain of inculpatory events, or lead to the
filing of criminal charges.”). No “last-link” concerns are implicated here.
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necessarily divulge a confidential professional communication, and therefore that
data is not generally privileged.” United States v. Legal Servs. for New York City,
249 F.3d 1077, 1081 (D.C. Cir. 2001)) (internal citation omitted); see also In re
Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (“[T]he general purpose
of the work performed [is] usually not protected from disclosure by the attorney-
client privilege because such information ordinarily reveals no confidential
professional communications between attorney and client.”) (quotations and
citations omitted); New Jersey v. Sprint Corp., 258 F.R.D. 421, 426 (D. Kan. 2009)
(“Revealing the general topic of discussion between an attorney and client does not
waive the privilege, unless the revelation also reveals the substance of a protected
communication.”). We thus decline to quash the first two parts of the order, as
modified by the concession at oral argument.4
The third part of the trial court’s directive, however, requires Ms. Coffey-
Garcia to “answer all questions related to . . . the reasons why she first sought out
legal counsel and any subsequent counsel.” (emphasis added). This part of the
order allows inquiry into confidential communications between Ms. Coffey-Garcia
and attorneys. For example, she might be asked “after consulting the first lawyer,
why did you seek out a second lawyer?” Under the trial court’s order that she
answer “all” questions, she would be required to answer even if her response was
4 We do not address whether this information is discoverable from attorneys.
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“my first lawyer insisted I had no case so I wanted to get a second opinion” or “my
first lawyer told me I had an excellent case but needed a lawyer specializing in
neonatology.” These communications of legal advice from the lawyer to Ms.
Coffey-Garcia would be protected by the attorney-client privilege. Yet the order as
drafted would require her to divulge these privileged communications. While Ms.
Coffey-Garcia can be required to answer factual questions about what she learned
at various points in time concerning the nature and potential causes of her
daughter’s condition from sources other than the attorneys that she consulted, she
cannot be forced to answer questions that would require her to reveal the contents
of advice or information she received from the attorneys.
It is of no account that the answers to such questions might prove useful or
even necessary to determine when the Garcias discovered or should have
discovered that there was a “reasonable possibility” that medical malpractice
caused Samantha’s cerebral palsy. The hospital, clinics, and doctors’ need for this
information to prove their statute of limitations defense does not justify an invasion
of the privilege. “[T]he attorney-client privilege . . . is not concerned with the
litigation needs of the opposing party.” Genovese v. Provident Life & Accident
Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). “[U]ndue hardship is not an exception,
nor is disclosure permitted because the opposing party claims that the privileged
information is necessary to prove their case.” Id. (quotation and citation omitted).
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CONCLUSION
For these reasons, we grant the petition and quash the order to the extent it
requires Ms. Coffey-Garcia to answer all questions related to the reasons why she
sought subsequent counsel.5
Petition granted in part; denied in part.
5 Because the issue is not before us, we do not address whether the dates and
names of the attorneys Ms. Coffey-Garcia consulted are probative and therefore
admissible regarding any issue in this case.
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