Certiorari Review of a Privileged Discovery Order
Plaintiff sues a hospital for negligent credentialing. During discovery, plaintiff seeks emails between the hospital's risk manager and outside counsel about a peer review investigation. The hospital asserts attorney-client privilege and work-product protection and provides a privilege log. The trial court conducts an in camera review and orders production of 12 emails, finding the privilege waived because the risk manager copied the hospital's chief medical officer, who is not an attorney. The hospital's counsel believes the order is wrong and wants immediate appellate review. The order is a nonfinal discovery order. The 30-day period from the order has run 12 days. The hospital is willing to seek a stay. The record includes the privilege log and the trial court's order. The hospital wants to avoid producing the documents while the appeal is pending.
1. What vehicle for appellate review is available, and what jurisdictional showing must the hospital make?
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The order is a nonfinal discovery order, so it is not appealable as of right under rule 9.130 unless it falls within a listed category. The hospital's vehicle is a petition for writ of certiorari under Florida Rule of Appellate Procedure 9.100. To obtain certiorari relief, the hospital must show that the trial court departed from the essential requirements of law and that the departure caused material injury that cannot be remedied on plenary appeal. A discovery order compelling production of privileged material is the classic example of irreparable harm because once the documents are produced, the privilege is lost. The petition must be filed within 30 days of the order; the hospital is at day 12, so it has time, but should not wait. The hospital should also seek a stay in the trial court and, if denied, in the appellate court to prevent production while the petition is pending.
2. How should the hospital address the trial court's waiver finding and the standard of review?
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On the merits, the hospital should argue that the trial court applied the wrong legal standard for waiver. Attorney-client privilege protects confidential communications between a client and counsel for the purpose of obtaining legal advice. Copying an internal hospital employee, the chief medical officer, does not necessarily waive the privilege if the employee is within the group reasonably necessary to facilitate the legal advice. The hospital should support that with the privilege log and, if necessary, an affidavit from counsel. Work-product protection is separate and may apply even if the privilege does not. The appellate court reviews the legal question de novo but will not disturb factual findings unless unsupported. Because certiorari is discretionary and the standard is high, the hospital must show a clear departure, not merely that the trial court's ruling was wrong. The in camera review may help, but the hospital should explain why the 12 emails are privileged.
3. What practical steps should counsel take to preserve the privilege and avoid mootness?
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Practical steps: immediately seek a stay in the trial court under rule 9.310 or the court's inherent authority; if denied, file a motion for stay in the appellate court with the petition. Ask that any produced documents be filed under seal and subject to a protective order. Preserve the privilege log and the in camera record. Do not produce the documents voluntarily while the petition is pending. If the trial court orders production before the appellate court rules, the hospital may need to seek emergency relief. Counsel should also consider whether some documents can be produced with redactions or under a clawback agreement. Finally, the hospital should evaluate whether the same issues can be raised on appeal from the final judgment if certiorari is denied; but because the harm is irreparable, the certiorari petition is the primary path.