United States District Court, S.D. Florida
ORDER AND OPINION DENYING MOTION TO COMPEL PRODUCTION
OF DOCUMENTS FROM DEFENDANTS
M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court upon Plaintiff Denise
DeMartini's ("Plaintiff) Motion to Compel Production
of Documents from Defendants ("Motion"), filed on
February 13, 2017. (DE 101). On February 27, 2017, Defendants
Robert A. Sweetapple ("Sweetapple"), Town of Gulf
Stream ("Gulf Stream"), and Richman Greer, PA
("Richman Greer") (collectively,
"Defendants") each filed individual Responses in
opposition. (DE 109, 111, & 112). Plaintiff filed an Omnibus
Reply to the three Responses on March 1, 2017. (DE 114). For
the reasons set forth below, the Motion is denied.
December 1, 2016, Plaintiff served a Second Request for
Production of Documents on Defendants. (DE 101 at 2). The
majority of Plaintiff s requests directed Defendants to
disclose various communications between attorneys
representing Gulf Stream and/or Wantman which related to the
underlying RICO Action. (Id.). Defendants Richman
Greer and Sweetapple objected to the requests because they
allegedly implicated the work product doctrine. However,
those Defendants agreed to produce inter-office
communications - that is, communications among lawyers from
independent firms that each represented Gulf Stream and/or
Wantman. (DE 101 at 3-4). They refused, however, to produce
intra-office communications between attorneys at the same
firm. (Id.). Defendant Gulf Stream did not
specifically object to Plaintiffs requests, but its counsel
subsequently confirmed to Plaintiffs counsel that its
document production excluded internal attorney
communications. (Id. at 4-5). Plaintiff now seeks to
compel production of intra-office communications between
attorneys of the law firms that had been retained by Gulf
Stream and/or Wantman in the RICO Action. Although Plaintiff
concedes that the documents at issue would otherwise be
privileged based on the work product doctrine, she argues
that Florida's Public Records Act, Fla. Stat. §
119.01, et. seq., supersedes the privilege.
party seeking discovery may move for an order compelling . .
. production ... [if] a party fails to produce documents ...
as requested." Fed.R.Civ.P. 37. The party who resists
discovery bears the burden of showing the grounds for its
objection with specificity. Josephs v. Harris Corp.,
677 F.2d 985, 992 (3d Cir. 1982).
argue that the withheld documents are protected by the work
product doctrine and that the Florida Public Records Act (the
"Act" or "Chapter 119") does not apply
because federal common law, not Florida law, controls.
Second, all three Defendants offer reasons for why
intra-office communications among lawyers acting as outside
counsel for Gulf Stream do not constitute "public
records" within the meaning of the Act. Because I agree
with Defendants' threshold argument, I do not reach the
Federal Rules of Evidence provide that:
"[t]he common law - as interpreted by United States
courts in the light of reason and experience - governs a
claim of privilege unless any of the following provides
otherwise:  the United State Constitution;  a federal
statute; or  rules prescribed by the Supreme Court. But in
a civil case, state law governs privilege regarding a claim
or defense for which state law supplies the rule of
Fed. R. Evid. 501. The Eleventh Circuit instructs that
"where the court's jurisdiction is premised upon a
federal question, " courts should apply "the
federal law of privilege" to both the federal claims and
any pendant state law claims. Hancock v. Hobbs, 967
F.2d 462, 467 (11th Cir. 1992). In other words, state
privilege rules only govern cases based exclusively on
diversity of citizenship. Here, Plaintiffs Amended Complaint
incorporates both federal (via § 1983) and state (via
tort theories) claims and alleges that this Court's
jurisdiction arises through the existence of a federal
question. (DE 10 at 2). Accordingly, the federal law of
privilege applies across the board to all claims.
discussed above, there is no dispute that the sought-after
communications fall within the scope of the work product
doctrine, as "partially codified" in Fed.R.Civ.P.
26(b)(3). United States v. Deloitte LLP, 610 F.3d
129, 135 (D.C. Cir. 2010). And although the work product
doctrine is not a true "testimonial" privilege,
United States v. Ary, 518 F.3d 775, 782, n.4
(10th Cir. 2008), - inasmuch as it does not govern
a relationship between a litigant and a third party - it is
still regarded in federal common law as creating a
"qualified privilege or immunity" from discovery.
United States v. Armstrong, 517 U.S. 456, 474 (1996)
(citation omitted). The doctrine should therefore be seen as
an extension of Rule 501 into the Rules of Civil
Procedure. Construed in this light, the work product
"privilege" would appear to bar discovery of the
documents at issue.
insists that there is no conflict between the operation of
the Federal Rules of Evidence and Chapter 119. In her view,
federal law may characterize the communications in question
as "work product" but it does not prevent them from
being subjected to the requirements of the Act, which
specifically contemplates disclosure of attorney work
product. See Fla. Stat § 119.071(1)(d)
(removing protections for work product created by
"agency attorney[s]", which qualify as "public
record[s]", once litigation has ended). In fact, that is
precisely what it does. Rule 26 does not merely label certain
"documents and tangible things" as "work
product" - it explicitly prohibits their discovery,
absent a showing that they are "otherwise discoverable
under Rule 26(b)(1)" or that the moving party "has
[a] substantial need for the materials and cannot, without
undue hardship, obtain" substitutes. Fed.R.Evid.
26(b)(3). To the extent Chapter 119 would allow
Plaintiff to demand production of Defendants' mental
impressions and strategies, it has no force in this kind of
federal action. See, e.g., Ubiquiti Networks, Inc. v.
Kozumi USA Corp., 981 F.Supp.2d 1207, 1209 (N.D. Fla.
2013) ("assertion that a federal court in a case in
which federal law supplies the rule of decision should apply
state privilege law is squarely at odds with Rule 501");
Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D.
199, 201 (M.D. Fla. 1990) (". . . the work product
doctrine is a limitation on discovery in federal cases and
federal law provides the primary decisional framework.
Therefore, plaintiffs Florida state court cases on
discoverability ... are not binding.") (citations
omitted); Lozman v. City of Riviera Beach,
08-80134-CIV, 2014 WL 12619231, at *1 (S.D. Fla. Feb. 14,
2014) (Hopkins, M.J.) ("Florida's public records law
and any obligation the City may have thereunder are not
within the purview of this Court"); MCI Constr., LLC
v. Hazen & Sawyer, P.C., 213 F.R.D. 268, 272 (M.D.
N.C. 2003) (with respect to analogous North Carolina statute,
any waiver of privileges described therein "does not
control"); Tracy P. v. Sarasota Cty., No.
8:05-CV-927-T-27EAJ, 2007 WL 1364381, at *l-2 (M.D. Fla. May
9, 2007) (specifically finding that federal common law
trumped application of Chapter 119 and upholding
magistrate's order requiring return of document obtained
through public records request).
suggests that Defendants' assertion of the work product
doctrine is foreclosed by their prior disclosure of
inter-office communications - an argument I construe to raise
the issue of voluntary waiver. It is true that
"[disclosure to an adversary waives the work product
protection as to items actually disclosed." In re
Chrysler Corp. Overnight Evaluation Program Litigation,
860 F.2d 844, 846 (8th Cir. 1988); see also U.S. v.
Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 2010). But
Defendants have not, by producing particular protected items,
waived the doctrine with respect to distinct, albeit related,
items (i.e., those on the same subject matter). That is
because, in contrast to the attorney-client privilege,
"the subject-matter waiver doctrine does not extend to
materials protected by the opinion work product
privilege." Cox v. Adm 'r U.S. Steel
& Carnegie, 17 F.3d 1386, 1423 (11th Cir. 1994);
accord Pittman v. Frazer, 129 F.3d 983, 988
(8thCir. 1997); In re Martin Marietta
Corp., 856 F.2d 619, 625-26 (4th Cir. 1988); U.S. v.
Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir.
1980). As a result, it is irrelevant whether Defendants have
already produced a large quantity of inter-office
communications, and whether they have done so inadvertently
or by conscious strategy. The infra-office communications,
over which the work product doctrine has clearly been
asserted, are protected from discovery.
it is ORDERED and ADJUDGED that Plaintiff Denise
DeMartini's Motion to Compel Production of ...