United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge.
the Court are (1) the plaintiffs' motion to partially
quash a subpoena to the extent it seeks production of Shuri
Norris's statement to her property insurer, Doc.
38; (2) the plaintiffs' motion to compel the
defendants to identify a confidential informant and provide
discovery concerning the informant, Doc. 39; and (3)
the parties' oral request to extend the deadlines and
event dates in the amended case management and scheduling
order. The defendants oppose the motions. Docs. 42,
43. The Court heard argument on them on November 2,
2017. Doc. 44.
the motion to quash, the plaintiffs seek to prevent
disclosure of the statement Norris made to an adjuster for
her property insurer, Universal Property & Casualty
Insurance Company, in the presence of her counsel. Doc.
38. She contends the statement is protected by the
attorney-client privilege and the work-product doctrine.
Doc. 38 at 3-5. The defendants respond the statement
is not privileged because Norris made it in the presence of a
third party (the adjuster). Doc. 42 at 2-5. They
respond the statement is not work product because it was not
made in anticipation of litigation. Doc. 42 at 5-6.
They argue the cases the plaintiffs cite are distinguishable
because they involve statements by insureds to insurers with
a possible duty to defend the insured. Doc. 42 at
The attorney-client privilege “protects the disclosures
that a client makes to his attorney, in confidence, for the
purpose of securing legal advice or
assistance.”[*]Cox v. Adm'r U.S.
Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir.
1994). “Its purpose is 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. v. United
States, 449 U.S. 383, 389 (1981). To establish the
privilege, a party must prove:
(1) the asserted holder of the privilege is or sought to
become a client;
(2) the person to whom the communication was made (a) is [a]
member of a bar of a court or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3)
the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either
(i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the privilege
has been (a) claimed and (b) not waived by the client.
United States v. Noriega, 917 F.2d 1543, 1550 (11th
Cir. 1990) (internal block quoting omitted). The party
invoking the privilege has the burden of proving its
existence. In re Grand Jury Investigation, 842 F.2d
1223, 1225 (11th Cir. 1987). Because the privilege
“serves to obscure the truth, it should be construed as
narrowly as is consistent with its purpose.”
Noriega, 917 F.2d at 1551 (internal quotation marks
and alterations omitted). It is unavailable if a party has
disclosed privileged communications to a third party.
United States v. Suarez, 820 F.2d 1158, 1160 (11th
a party may not discover documents and tangible things that
are prepared in anticipation of litigation or for trial by or
for another party or its representative (including the other
party's attorney, consultant, surety, indemnitor,
insurer, or agent).” Fed. R. Civ. P. 26(b)(3).
A document or tangible thing was prepared in anticipation of
litigation if “the primary motivating purpose”
behind its creation was “to aid in possible future
litigation.” United States v. Davis, 636 F.2d
1028, 1040 (5th Cir. 1981). “Materials assembled in the
ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other
nonlitigation purposes” are not protected. Fed. R.
Civ. P. 26(b)(3), Advisory Comm. Notes to 1970 Amend.
The party seeking work-product protection has the burden of
establishing the doctrine applies. Republic of Ecuador v.
Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013).
attorney-client privilege does not protect Norris's
statement from disclosure because she made the statement to
an adjuster and not to her lawyer, she was not seeking legal
advice, and the adjuster's presence was unnecessary to
any communication with her lawyer. The purpose underlying the
privilege-encouraging full and frank communication between
lawyer and client-is absent. The plaintiffs have not shown
any exception applies. The cases they cite are
distinguishable because they involved an insured's
statements to an insurer with a possible duty to defend the
insured in litigation.
work-product doctrine does not protect Norris's statement
from disclosure. She did not make the statement, and the
adjuster did not record it, in anticipation litigation. Her
primary motivating purpose in providing the statement was to
obtain insurance benefits and fulfill her obligation to
provide information pertinent to the claim, and the
adjuster's primary motivating purpose in recording it was
to evaluate the claim. Neither was motivated to produce the
statement “to aid in possible future litigation.”
See Davis, 636 F.2d at 1040 (quoted).
Court denies the motion to partially quash
the subpoena to Universal, Doc. 38.
reasons stated at the hearing (primarily to avoid a
potentially unnecessary decision on a difficult issue with
consequences for the confidential informant and law
enforcement, including law enforcement's ability to use
him or her for ongoing and future investigations), the Court
defers ruling on the motion to compel,
Doc. 39, until after the parties participate in
mediation. If mediation is unsuccessful, the Court will
expeditiously decide the motion.
Court grants the parties' oral request
for a 60-day extension of the remaining deadlines and event
dates in the amended case management and scheduling order,
Doc. 36. The Court will separately ...