Review of Privileged Materials at Deposition

Posted in Legal Alerts on May 14, 2024

Please take note that the Third District recently issued an opinion that may impact how you defend corporate representative depositions in first-party property cases. In the past some of us may have asserted that documents within the claims file are privileged, while at the same time allowing our corporate representative to review those same documents during the deposition to refresh his/her recollection pursuant to a protective order. In Hamilton v. Citizens, 2024 WL 1894872 (Fla. 3d DCA May 1, 2024), the Third District held that, if this occurs, the privilege is waived as to the portions of the claims file that relate to the testimony because section 90.613, Florida Statutes, requires the deponent to produce any document he/she relies on during the deposition to refresh his or her memory. The corporate representative should not look at privileged documents in the claim file during the deposition if you want to preserve your privilege. This is true even if you have a protective order stating that the privilege is preserved. Such an order is subject to certiorari review and will be quashed on appeal.
If you would like to learn more about how this opinion may impact your litigation, please contact Hinda Klein