FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Brevard County, Charles J. Roberts, Judge.
B. Boggess, and Gina P. Grimsley, of Taylor, Day, Grimm &
Boyd, Jacksonville, for Petitioner.
Christopher V. Carlye, of The Carlyle Appellate Law Firm, The
Villages, for Respondent, David C. Knapp.
appearance for other Respondent.
Farm Mutual Automobile Insurance Company petitions this Court
to issue a writ of certiorari regarding discovery orders
compelling production of documents that State Farm claims the
work product doctrine and the attorney-client privilege
protect from disclosure. Although the trial court reviewed
the documents in camera, its orders did not state
which documents State Farm properly designated as work
product nor which documents contained privileged
attorney-client communications. Furthermore, the trial
court's orders failed to explain the justification for
requiring State Farm to turn over its work product documents
to Respondent David C. Knapp, and there is no justification
here for ordering production of confidential attorney-client
documents to opposing counsel. Under the circumstances, the
trial court departed from the essential requirements of the
law, subjecting State Farm to harm that cannot be remedied in
a later plenary appeal. Accordingly, we grant the petition
and quash the orders in question.
was involved in two automobile wrecks within six months.
Respondent obtained medical treatment following these wrecks,
and he sued both of the adverse drivers. He also sued his
insurer, State Farm, for payment of uninsured/underinsured
motorist benefits and bad faith. State Farm retained and
identified Dr. Michael Zeide as an expert witness to address
Respondent's alleged injuries and the medical care and
treatment related to those injuries.
turn, Respondent served discovery seeking information about
how often State Farm had retained Dr. Zeide as an expert and
how much money it had paid him, directly or indirectly,
during the preceding three years. Our supreme court
authorized this type of discovery, within certain limits, in
the case of Allstate Insurance Co. v. Boecher, 733
So.2d 993 (Fla. 1999). Florida Rule of Civil Procedure
1.280(b)(5)(A)(iii) codifies this so-called Boecher
discovery. Boecher discovery allows a party to
gather information that can be used to provide a factual
basis for proving and arguing to the jury that an expert
witness, such as Dr. Zeide, may have a financial bias
favoring the party retaining the expert, here State Farm.
See Boecher, 733 So.2d at 997-98.
State Farm objected to portions of Respondent's
Boecher discovery and stated that it did not
maintain any database or index in the ordinary course of
business that could be accessed to identify the amounts it
paid to Dr. Zeide when he was engaged to perform analysis,
provide testimony, and/or complete compulsory medical
examinations. However, State Farm did serve unverified
answers to Respondent's interrogatories, providing other
information, such as the testimonial percentage and
percentage of engagement of its experts, including Dr. Zeide,
by plaintiffs versus defendants.
filed a motion to compel better responses, which the trial
court granted. The trial court required State Farm to
disclose the amount Dr. Zeide billed to State Farm, the
amount State Farm paid him, and the total amount of money
that State Farm or anyone acting on behalf of any State Farm
entity had paid to each listed expert witness, directly or
indirectly, during the preceding three years (2013-2015) for
all services rendered, excluding payments or charges for
medical treatment provided.
response to the court's order, State Farm provided
verified answers to interrogatories, stating that it
conducted a manual review of its records. State Farm also
gave information regarding Dr. Zeide, including the number of
claims and amount of money paid for compulsory medical
examinations or record reviews for the years in question.
According to State Farm, during those three years, Dr. Zeide
was retained in 601 claims and received $1, 235, 067.75 in
compensation for providing his services. State Farm advised
that, because the numbers were calculated by hand following a
manual review of claims files, the information was "its
best approximation of the individual payments it made to Dr.
Zeide" during the three years covered by
Respondent's Boecher discovery.
satisfied with this additional information, Respondent
scheduled the deposition of Bruce Peterson, a State Farm
representative who verified the Boecher
interrogatory answers in this case. Respondent also noticed
the deposition of a different State Farm representative, Mike
Wallace, who verified State Farm's answers to the
Boecher interrogatories regarding Dr. Zeide in a
case between Amanda Park and State Farm, saying that it was
not feasible to provide that information and would cost
hundreds of thousands of dollars to compile. Both deposition
notices were duces tecum, requiring each named witness to
produce all documents relied upon or generated in connection
with providing the Boecher information; all written
policies, manuals, memos, or other documents that set forth
State Farm's policies for tracking payments made to
retained experts; and all correspondence, e-mails, or other
documentation relating to the issue of State Farm's
payment to Dr. Zeide during the three years in question.
State Farm objected, moved for a protective order, and moved
to quash the duces tecum document requests on a ...