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Tuesday, July 26, 2022

As Published in the Daily Business Review: Waiver of the Attorney-Client Privilege - What Attorneys Need to Know

By: Esther E. Galicia | July 26, 2022
As published in the Daily Business Review

An attorney never wants to inadvertently waive the attorney-client privilege during the deposition of a client’s corporate representative. The Fifth District in Papa John’s USA v. Moore, Case No. 5D22-716 (Fla. 5th DCA July 15, 2022), on certiorari review, held that defense counsel did not waive the privilege during cross-examination of a corporate representative where a confidential matter or communication was not disclosed. The district court thus quashed the trial court’s order holding otherwise.

The plaintiff in Papa John’s was involved in a car accident with the defendant driver who was working as a delivery driver for the co-defendant pizza company. The plaintiff filed a negligence action and deposed the company’s corporate representative. The representative testified that, in preparation for his deposition, he had not personally interviewed the employee driver but instead reviewed the driver’s deposition testimony and other relevant materials.

During cross-examination, defense counsel sought to elicit testimony from the representative concerning another reason why he had not personally communicated with the driver prior to his deposition. The representative stated that he had asked the defense’s co-counsel to contact the driver on his behalf to gather some additional facts; and after speaking with co-counsel, he had no additional questions for the driver.

Plaintiff’s counsel in turn sought to inquire into “everything” that the representative had discussed with co-counsel and defense counsel objected based on attorney-client privilege. The representative’s deposition was terminated once the parties could not agree on the scope of any follow-up questioning regarding the communications.

The trial court thereafter granted the plaintiff’s motion to compel, for sanctions, and to invoke the sequestration rule, finding that attorney-client privilege had been waived by defense counsel’s line of questioning. The court ordered that the representative’s deposition be continued and permitted the plaintiff to ask questions regarding what was discussed between the representative and co-counsel, along with any related questions that may follow. Additionally, co-counsel was prevented from attending the continued deposition and from communicating with the representative in the interim. The defendants were also ordered to pay the plaintiff’s attorney fees.

On appeal, the defendants’ contended that the trial court erroneously concluded they waived the attorney-client privilege and the plaintiff therefore should have only been allowed to question the representative about the underlying facts gathered from co-counsel’s conversation. The Fifth District agreed, finding that defense counsel never asked the representative questions regarding the substance of the privileged communication and the representative’s answers did not reveal same. “As such, the attorney-client privilege was not waived.” Additionally, the Papa John’s court concluded the plaintiff should not have been permitted to “inquire into far more than just the factual information” the representative learned during his conversation with co-counsel.

Esther E. Galicia is a shareholder in Fowler White’s appellate practice group where she focuses her practice in civil appeals at all levels and provides litigation and trial support. She received her J.D., cum laude, from the University of Miami School of Law.


 

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