Summary
observing that, while counsel “should have asserted privilege at the earliest time,” the failure to do so when “no one had reviewed the tapes” ordered produced by the trial court, would not “prevent the trial court's in camera examination of the tape to determine if privilege exists”
Summary of this case from Bainter v. League of Women Voters of Fla.Opinion
No. 84-1727.
January 23, 1985.
Petition for review from the Circuit Court, Broward County, Robert C. Abel, Jr., J.
Rohan Kelley of Kelley Herb, P.A., Fort Lauderdale, for petitioners.
Daniel T. Carpenter of Bird, Carpenter Brown, P.A., Fort Lauderdale, Administrator Ad Litem for the Estate of Raymond E. Gross, deceased.
Gerald L. Knight of Gustafson, Stephens, Ferris, Forman Hall, P.A., Fort Lauderdale, for respondent-Security Trust Co.
Margaret Lynch Hopkins and J. Michael Fitzgerald of Wood, Lucksinger Epstein, Miami, for respondent-Archbishop Carroll Catholic Life Center Trust.
Gerald M. Morris of Saunders, Curtis, Ginestra Gore, Fort Lauderdale, for respondent-Holy Cross Hosp.
Joseph G. Young of Smathers Thompson, Miami, for respondent-Faith M. Williamson.
This petition for certiorari is another round in the fight for the money left behind by Raymond E. Gross upon departing this world. The form of this round is in the production of tapes ordered by the trial court. Apparently, no one had reviewed the tapes prior to the entry of the trial court's order; as petitioner's counsel thereafter reviewed them and reacted to his discoveries by an unsuccessful motion for rehearing. When that failed he sought relief in the form of the present petition.
The only objection petitioner made to production prior to the trial court's order was on the basis of work product.
There are two separate, unrelated areas of discussion. The first, that of attorney-client privilege, has merit, and requires that we grant relief, in part because violation of the privilege is outside the scope of discovery, which is expressly limited to matters not privileged. See Fla.R.Civ.P. 1.280(b). Accordingly, while petitioner's counsel obviously should have asserted privilege at the earliest time, his failure to do so will not prevent the trial court's in camera examination of the tape to determine if privilege exists. We are not the first to hold as we now do upon the question of timeliness vis-a-vis privilege. See Insurance Company of North America v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981). The judiciary of this state should protect communications which Floridians recognize as privileged, without being hobbled by less important considerations. Here, this privilege is belatedly said to exist on a tape of a meeting at which the attorneys, the decedent and his personal representative were present. The trial court can see if the privilege applies, and if so, protect the tape's confidentiality from this war over the decedent's purse.
We view the other contention raised by petitioner as a specter, a shadow on the wall that does not warrant amplification. Accordingly, we deny the balance of the petition.
LETTS and HERSEY, JJ., concur.