United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART NON-PARTY
ATLAS AVIATION SALES & LEASING, LLC'S MOTION TO QUASH
SUBPOENA AND FOR PROTECTIVE ORDER [DE 65]
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE
THIS
CAUSE is before the Court upon Non-party, Atlas
Aviation Sales & Leasing, LLC's ("Atlas
Aviation") Motion to Quash Subpoena and for Protective
Order ("Motion") [DE 65]. Plaintiff, Freestream
Aircraft USA Ltd. ("Plaintiff), filed a response [DE
69], Atlas Aviation filed a reply [DE 75], and Plaintiff
filed a sur-reply [DE 85] as ordered by the Court.
BACKGROUND
On
November 22, 2017, the Court entered an Order summarizing all
of the parties' arguments, setting forth the law
pertaining to protective orders, and determining that there
is no issue currently before the Court regarding Atlas
Aviation's 2014 tax return as Plaintiff has already
obtained it from a different subpoena, and Atlas Aviation did
not object to that subpoena. [DE 86, pp. 1-4]. The Court also
required Atlas Aviation to submit for in camera
review all of the documents listed in its privilege log other
than the 2014 federal tax return. Id. at p. 5. Atlas
Aviation timely submitted the documents as required.
ANALYSIS
In
their filings, the parties analyze the accountant-client
privilege under both Florida law and Maryland law, as
Maryland is where the accountant resides and does business.
Florida
Accountant-Client Privilege
The
Court will first consider Florida law as the lawsuit was
filed in the Southern District of Florida and Florida state
law causes of action are alleged in the Complaint. Section
90.5055, Florida Statutes, sets forth the accountant-client
privilege. The statute states in relevant part that
A client has a privilege to refuse to disclose, and to
present any other person from disclosing, the contents of
confidential communications with an accountant when such
other person learned of the communications because they were
made in the rendition of accounting services to the client.
This privilege includes other confidential information
obtained by the accountant from the client for the purpose of
rendering accounting advice.
Fla. Stat. § 90.5055(2). Under Florida law,
"financial records and data which are not privileged in
the hands of the client cannot be shielded from discovery
deposition or subpoena by transferring them to the
client's accountant." Paper Corp. of Am. v.
Schneider, 563 So.2d 1134, 1135 (Fla. 3d DCA 1990)
(citing Goldberg v. Ross, 421 So.2d 669 (Fla. 3d DCA
1982); Ashcraft v. Harvey, 315 So.2d 530
(Fla. 4th DCA 197'5); Silverman v. Turner, 188
So.2d 354 (Fla. 3d DCA 1966)); see also PDR Grayson
Dental Lab, LLC v. Progressive Dental Reconstruction,
Inc., 203 So.3d 213, 214 (Fla. 1st DCA 2016).
Maryland
Accountant-Client Privilege
Since
Mr. Rice, the accountant, resides in and does business in
Maryland, the Court will also consider the accountant-client
privilege under Maryland law. Maryland law provides as
follows:
(b) In general. - Except as provided in subsections (c) and
(d) of this section or unless expressly permitted by a client
or the personal representative or successor in interest of
the client, a licensed certified public accountant or firm
may not disclose: (1) The contents of any communication made
to the licensed certified public accountant or firm by a
client who employs the licensed certified public accountant
or firm to audit, examine, or report on any account, book,
record, or statement of the client; (2) Any information that
the licensed certified public accountant or firm, in
rendering professional service, derives from: (i) A client
who employs the licensed certified public accountant or firm;
or (ii) The material of the client.
Md. Code Ann., Courts and Proceedings, §9-110. Courts,
however, have limited and restated the privilege to actually
cover only "any confidential communication made
to a licensed certified public accountant or firm by a client
who employs the accountant or firm to audit, examine, or
report on any account, book, record, or statement of the
client" and to protect "from disclosure any
information that the accountant or firm, in rendering
professional services, derives from the client in the
course of a confidential communication with the client,
or from material of the client given to the accountant in
the course of a confidential communication.”Vellone v. FirstUnion Brokerage ...