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