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State Farm Mutual Automobile Insurance Co. v. Knapp

Florida Court of Appeals, Fifth District

January 12, 2018



         Petition for Certiorari Review of Order from the Circuit Court for Brevard County, Charles J. Roberts, Judge.

          Rhonda 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.

          No appearance for other Respondent.

          EDWARDS, J.

         State 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.


         Respondent 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.

         In 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.[1]

         Initially, 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.

         Respondent 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.

         In 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.

         Not 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 ...

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