Third District Court of Appeal
State of Florida
Opinion filed March 9, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1655
Lower Tribunal No. F20-3718A
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Kelly Nelson, et al.,
Petitioners,
vs.
The State of Florida,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge.
Carlos J. Martinez, Public Defender, and John Eddy Morrison,
Assistant Public Defender, Law Offices of Kawass, P.A., and Kristen A.
Kawass, for petitioners.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant
Attorney General, for respondent.
Before MILLER, LOBREE, and BOKOR, JJ.
MILLER, J.
ON MOTION FOR REHEARING
Respondent’s motion for rehearing is denied. We withdraw our prior
opinion and substitute the following opinion in its stead.
Petitioners, Kelly Nelson and Alex John Saiz, seek certiorari review of
a lower court order denying their motions for protective order and to quash a
subpoena duces tecum. 1 The subpoena requires Saiz, Nelson’s former
counsel, to produce certain audio and visual recordings, billing and payment
records, and telephone numbers, and to further submit to a deposition.
Petitioners contend compliance with the subpoena will invade the work
product and attorney-client privilege. We find no departure from the essential
requirements of law in compelling the production of the requested recordings
and documents. Because the undeveloped record before us fails to establish
waiver, however, we quash that portion of the order allowing deposition
inquiry into communications protected by attorney-client privilege.
BACKGROUND
The facts relevant to the petition are largely undisputed. After Nelson
was jailed for armed robbery and detained without bond, the alleged victim
in the case was murdered in front of her three-year-old daughter. Before
1
At his request, we have realigned Saiz as an additional petitioner in these
proceedings.
2
news sources reported the identity of the victim, Saiz contacted the
prosecutor on the case and informed him the victim was dead. Saiz told the
prosecutor he had received the information from Nelson, who had
purportedly informed Saiz he learned of the murder from a news outlet.
The State issued a subpoena duces tecum, directing Saiz to appear
for deposition and produce the following documents: (1) video or audio
recordings involving the victim and an individual affiliated with the underlying
robbery case; (2) billing and payment details relating to his representation of
Nelson; and (3) telephone numbers for the affiliate and her associates.
Importantly, the subpoena did not place any limit on the areas of deposition
inquiry.
Saiz filed, and Nelson later adopted, the motions under review,
contending the subpoena targeted information protected by attorney-client
privilege and the requested documents constituted work product. 2 The trial
court convened a hearing on the motions.
At the hearing, the State argued it was unable, without undue hardship,
to obtain the substantial equivalent of the subpoenaed documents and
recordings. It further argued that although confidential conversations
2
We summarily reject petitioners’ further claims that certain subpoenaed
documents and recordings are shielded from disclosure by attorney-client
privilege.
3
between Saiz and Nelson were cloaked in attorney-client privilege, voluntary
disclosure to the prosecutor constituted a waiver as to those communications
relating to the homicide. Saiz disputed, both orally and in writing, the details
of the conversation.
At the conclusion of the hearing, the court denied the motions.
Reconsideration proved futile, and the instant petition ensued.
STANDARD OF REVIEW
Although “[c]ertiorari is an extraordinary remedy that is available only
in limited circumstances,” it is warranted when an order results in a material
injury for the remainder of the case, which cannot be corrected on plenary
appeal, and departs from the essential requirements of law. Charles v. State,
193 So. 3d 31, 32 (Fla. 3d DCA 2016); see Fernandez-Andrew v. Fla.
Peninsula Ins. Co., 208 So. 3d 835, 837 (Fla. 3d DCA 2017). Orders granting
the discovery of privileged materials, by deposition or otherwise, are
amenable to certiorari review because plenary appeal in such circumstances
seldom provides adequate redress. McGarrah v. Bayfront Med. Ctr., Inc.,
889 So. 2d 923, 925 (Fla. 2d DCA 2004).
LEGAL ANALYSIS
We discern no error in the compelled production of recordings, billing
and payment records, and telephone numbers. These documents
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constitute, at best, fact work product, and the State has made a reasonable
showing of need and inability to obtain the substantial equivalent without
undue hardship. See State v. Rabin, 495 So. 2d 257, 262 n.6 (Fla. 3d DCA
1986); Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA
1988); see also E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331 (Fla. 3d
DCA 1983); In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). Further,
nothing in the trial court’s order precludes the redaction of any mental
impressions or opinions prior to disclosure. See Finol v. Finol, 869 So. 2d
666 (Fla. 4th DCA 2004). Thus, we turn our analysis to the deposition.
Codified in section 90.502, Florida Statutes (2022), “[t]he attorney-
client privilege is the oldest of the privileges for confidential communications
known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). “It is therefore not only an interest long recognized by society but
also one traditionally deemed worthy of maximum legal protection.” Am.
Tobacco Co. v. State, 697 So. 2d 1249, 1252 (Fla. 4th DCA 1997) (quoting
Haines v. Liggett Grp. Inc., 975 F.2d 81, 90 (3d Cir. 1992)). The privilege
developed to encourage “full and frank communication between attorneys
and their clients and thereby promote broader public interests in the
observance of law and administration of justice.” Upjohn Co., 449 U.S. at
389. To that end, the attorney must “know all that relates to the client’s
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reasons for seeking representation if the professional mission is to be carried
out.” Trammel v. United States, 445 U.S. 40, 51 (1980).
Although waiver of attorney-client privilege is not favored under Florida
law, assigning the burden of proof in such cases is an unclear exercise. See
TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339, 341 (Fla. 4th DCA 2001).
In the federal courts, there is a lack of uniformity as to whether the party
asserting the privilege or the party asserting waiver bears the burden. See
John W. Gergacz, Attorney-Corporate Client Privilege § 5:13 (2021 ed.).
This is because assigning the burden of proof depends on how a court
characterizes the waiver doctrine. Id.
Florida courts, however, generally assign to the party seeking to
establish waiver the burden of producing evidence supporting such a finding.
See Fla. House of Representatives v. Expedia, Inc., 85 So. 3d 517, 525 (Fla.
1st DCA 2012) (“Expedia claims that it is necessary to prove that it did not
provide the documents independently, so that it can refute a claim that it had
waived the attorney-client privilege with respect to the documents. The
problem with this claim is that the burden of proving a waiver is on the
counties.”); Deloitte, Haskins & Sells v. S. Fin. Holding Corp., 566 So. 2d
906, 906 (Fla. 4th DCA 1990) (“To obtain access to these [financial records],
respondent must make out a prima facie case that Central . . . has waived
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its [accountant-client] privilege.”); Palm Beach Cnty. Sch. Bd. v. Morrison,
621 So. 2d 464, 469 (Fla. 4th DCA 1993) (placing burden on party seeking
disclosure to prove patient waived psychotherapist-patient privilege);
Zarzaur v. Zarzaur, 213 So. 3d 1115, 1120 (Fla. 1st DCA 2017) (“Any
disclosures beyond what Wife agreed to provide the independent
psychologist may be ordered only upon a record of competent, appropriately
relevant, and timely evidence showing an actual or involuntary waiver by the
Wife within the meaning of the relevant authorities.”); see also Haskell Co. v.
Ga. Pac. Corp., 684 So. 2d 297, 298 (Fla. 5th DCA 1996) (“When a privilege
is facially apparent, the burden is on the party seeking disclosure to show
that the privilege does not apply.”); Brown v. Montanez, 90 So. 3d 982, 986
(Fla. 4th DCA 2012) (“The party seeking the privileged documents has the
burden of proving that an exception to the privilege applies.”); First Union
Nat. Bank v. Turney, 824 So. 2d 172, 183 n.9 (Fla. 1st DCA 2001) (“Just as
the proponent of the privilege has the burden of proof as to facts which give
rise to the privilege, the party seeking to abrogate the privilege has the
burden to prove facts which would make an exception to the privilege
applicable.”). This, in turn, may be refuted by the holder of the privilege.
To satisfy the initial burden, the party asserting waiver must establish
that the client relinquished any right to maintain the confidentiality of the
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communication. Section 90.507, Florida Statutes, offers guidance in this
arena, providing, in relevant part:
A person who has a privilege against the disclosure of a
confidential matter or communication waives the privilege if the
person, or the person’s predecessor while holder of the privilege,
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.
It is well-settled that the client is the holder of the privilege, not the
attorney. See Hunt v. Blackburn, 128 U.S. 464, 470 (1888); Neu v. Miami
Herald Publ’g. Co., 462 So. 2d 821, 825 (Fla. 1985). Thus, the attorney may
not terminate the privilege unilaterally. See Owners Ins. Co. v. Armour, 303
So. 3d 263, 268 (Fla. 2d DCA 2020). It is equally true, however, that
ordinarily “an attorney has the implied authority to make disclosures in the
course of litigation that will result in a waiver of the attorney-client protection
for the matters disclosed.” Charles W. Ehrhardt, Ehrhardt’s Florida Evidence
§ 502.8 (2018 ed.). There are exceptions, of course, including inadvertent
and bad faith disclosures. Id.
Harmonizing these competing principles, we conclude that the
disclosure of privileged material by counsel is relevant to determining the
existence of waiver. It is not, however, dispositive. Instead, further
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consideration of the totality of the circumstances and the resultant
reasonable inferences is warranted.
In the instant case, the State proffered only that Saiz disclosed the
privileged communication to the prosecutor. Saiz disputed the details of the
conversation. There was no evidentiary inquiry or further proffer concerning
the context of the disclosure.
Under these circumstances, we conclude that the proffer, without
more, was insufficient to support the proposition that Nelson, as opposed to
Saiz, waived the privilege. Accordingly, we quash that portion of the order
requiring Saiz to submit to deposition. 3
Petition denied in part and granted in part.
3
Our decision should not be construed as foreclosing the right of the State
to depose Saiz upon a proper showing of waiver.
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