final until disposition of timely filed motion for rehearing.
for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Meenu Sasser, Judge;
L.T. Case No. 502013CA015257XXXXAI.
M. Bachi, Jeremy D. Bertsch and Kaitlin E. Cupp of Sellars,
Marion & Bachi, P.A., West Palm Beach, for petitioner.
S. Perwin, Miami, and Roy Black, Jared Lopez and Joshua Shore
of Black Srebnick, Kornspan & Stumpf, P.A., Miami, for
attorney petitions this court for a writ of certiorari to
review an order compelling him to answer questions involving
attorney-client privilege. He raises both a due process
argument and a substantive argument in suggesting the trial
court departed from the essential requirements of the law
resulting in irreparable harm. We agree with him regarding
his due process argument and grant the petition solely on
order at issue arises in a defamation case in which the
attorney's client is the plaintiff. Before he filed the
defamation action, and giving rise to it, plaintiff suspected
that the potential defendants were behind a hate mail
campaign directed at him. He also suspected that the
potential defendants were funding another action in which the
plaintiff had been sued ("Kay-Dee case").
they were not parties in the Kay-Dee case, the attorney
scheduled their depositions in that action. During the
deposition, the attorney arranged to show
"exhibits" to the deponents (now defendants). The
paper used to create the exhibits was treated with chemicals
to facilitate DNA collection and the deponents were to touch
those items. The deponents' discarded water bottles were
also to be collected following the deposition. Thereafter,
DNA tests would be run to compare their DNA and fingerprints
to those retrieved from the hate mail sent, which formed the
basis of the instant defamation action.
filed the defamation action about eight months after the
depositions. The attorney and the plaintiff admit to the
above conduct, but claim the deposition had a legitimate
basis as well.
defendants then deposed the attorney regarding the scheduling
of their deposition and the DNA collection in the Kay-Dee
case. The attorney asserted attorney-client and Fifth
Amendment privileges throughout. The defendants then moved to
compel the attorney to answer questions, arguing the
crime-fraud exception applied to avoid the attorney-client
crime-fraud exception provides there is no attorney-client
privilege when the lawyer's services are "sought or
obtained to enable or aid anyone to commit or plan to commit
what the client knew was a crime or fraud." See
§ 90.502(4)(a), Fla. Stat. (2016) (emphasis added). The
defendants argued that the crime-fraud exception applied
because section 760.40, Florida Statutes, requires anyone
doing DNA testing to first get the person's consent and
to notify the person of the results.
the plaintiff, his attorney, his DNA tester, nor the police
appear to have been aware of this DNA statute when the
samples were collected and tested. The defendants argue that
the plaintiff and his attorney committed a fraud upon the
court when they used the court's subpoena power to depose
them in the Kay-Dee case where they were non-parties.
trial court agreed. Significantly, the attorney was not
present at the hearing on the motion to compel. The trial
court found the plaintiff not credible.
twenty-two page order concluded that the "fraud on the
court" concerned the scheduling of the
deposition in the Kay-Dee case without a legitimate purpose
apart from DNA collection and the use of the court's
subpoena power to do so. Per the order, the attorney is not
shielded from testifying to events related to the
"collection, testing, and publication of the
[defendants'] DNA samples, occurring between December of
2012 and April of ...