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The Nemours Foundation v. Arroyo

Florida Court of Appeals, Fifth District

August 30, 2019

THE NEMOURS FOUNDATION D/B/A NEMOURS CHILDREN'S HOSPITAL, ORLANDO, Petitioner,
v.
XIOMARA MARTINEZ ARROYO, INDIVIDUALLY AND AS NATURAL GUARDIAN OF RAMON APONTE, A MINOR, AND RAMON LUIS APONTE, INDIVIDUALLY, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Petition for Certiorari Review of Order from the Circuit Court for Orange County, Heather L. Higbee, Judge.

          Francis E. Pierce, III and Susan E. Sewell, of Mateer Harbert, P.A., Orlando, for Petitioner.

          Kansas R. Gooden, of Boyd & Jenerette, PA, Jacksonville, Edward J. Carbone and Jacqueline R. A. Root, of Pennington, P.A., Tampa, Amicus Curiae for Florida Defense Lawyers Association, in support of Petitioner.

          Andrew S. Bolin, of Bolin Law Group, Tampa, Amicus Curiae, for The Florida Hospital Association, in support of Petitioner.

          Christopher V. Carlyle, of the Carlyle Appellate Law Firm, Orlando, for Respondents.

          SASSO, J.

         Petitioner, The Nemours Foundation d/b/a Nemours Children's Hospital, seeks certiorari relief from an order requiring it to produce five documents that it claims are protected by the attorney-client privilege. The order was rendered after this Court quashed, without prejudice, a prior order requiring production of the documents because that order lacked the requisite detailed findings necessary for meaningful appellate review. Nemours Found. v. Arroyo (Nemours I), 262 So.3d 208 (Fla. 5th DCA 2018). We reject without further discussion Petitioner's argument that the order under review fails to comply with this Court's mandate in Nemours I. We hold the discovery order does not depart from the essential requirements of the law; therefore, we deny the petition.

         Respondents, Xiomara Martinez Arroyo and Ramon Luis Aponte, sued Petitioner for medical negligence following injuries their minor child, Ramon Aponte, allegedly sustained while undergoing a procedure at Nemours Children's Hospital. During discovery, Respondents requested that Petitioner produce, among other things, "all Amendment 7 records."[1] Over Petitioner's objection, the trial court ordered Petitioner to produce written statements of five of its employees that had been provided to its in-house counsel.[2]

         On remand from Nemours I, the trial court conducted a second in-camera review of the five employee statements at issue. Concluding that Petitioner had failed to sustain its burden of proving the statements were protected by the attorney-client privilege, the trial court again entered an order overruling Petitioner's objection. Petitioner requests this Court to quash that order, arguing as it did below and in Nemours I, that the employee statements are protected by the attorney-client privilege and not subject to disclosure.

         Certiorari lies to review a trial court's order compelling production of documents claimed to be protected by the attorney-client privilege, due to the potential for irreparable harm. Montanez v. Publix Super Mkts., Inc., 135 So.3d 510, 512 (Fla. 5th DCA 2014). Even so, an appellate court may grant certiorari relief only where the petitioner demonstrates that the discovery order at issue constitutes a departure from the essential requirements of the law. Finn Law Grp., P.A. v. Orange Lake Country Club, Inc., 206 So.3d 169, 170 (Fla. 5th DCA 2016). Departure from the essential requirements of the law is more than mere legal error and instead occurs "when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Combs v. State, 436 So.2d 93, 95-96 (Fla. 1983). Under this framework, we consider whether the discovery order at issue so departs.

         Florida's attorney-client privilege "protects only those disclosures necessary to obtain informed legal advice." Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1067 (Fla. 2011) (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)); see also § 90.502(2), Fla. Stat. (2019) (protecting confidential communications made "in the rendition of legal services to the client"). While this privilege applies to corporations to promote full and frank conversations between corporations and their counsel, claims of the privilege in the corporate context are subjected to a heightened level of scrutiny. S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1383 (Fla. 1994) (requiring heightened level of scrutiny for claims of privilege in corporate context to minimize threat of corporations cloaking information with attorney-client privilege to avoid discovery). Thus, to establish whether a document is protected by the attorney-client privilege in the corporate context, a corporation must show:

(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her ...

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