The Fourth District Court of Appeal Grants Petition Regarding the Waiver of Privilege Objections

DLJ Mortgage Capital, Inc. v. Fox, 4D12-2264 (Fla. 4th DCA 2013):

This petition arose from a residential mortgage foreclosure action. DLJ sought review of an order finding that it waived the right to raise work product and attorney client privilege objections to a discovery request because it failed to file a privilege log.

DLJ made three arguments: (1) that the failure to file a privilege log did not justify finding a waiver because some of the objections were category-based; (2) that a privilege log was not due for several of the items, because the court had not yet ruled on other grounds for objection that were simultaneously raised along with the work product or attorney client privilege; and (3) that the court could not implicitly waive the privilege as a sanction for a serious discovery violation. Fox argued that the court properly found a waiver because the crime-fraud exception applied.

The Fourth District Court of Appeal (“4th DCA”) found DLJ’s first two arguments to have merit. A trial court has discretion to find a waiver of privilege from the failure to file a privilege log. However, the failure to file a log should not be applied to categorical assertions of privilege. Fox’s requests appeared to include items which would be categorically protected by the work product privilege. These items sought the disclosure of materials from counsel which were made in the course of litigation or that patently reflected the attorney’s mental impressions. Florida disfavors the waiver of work product protections.

Additionally, to the extent that DLJ claimed that it had no obligation to file a privilege log on claims which included non-privilege objections, the 4th DCA agreed. DLJ did not have a duty to file a privilege log for items on which other objections were raised until the court had determined that those items were otherwise discoverable. Therefore, DLJ did not waive its right to assert privilege on certain items by failing to file a privilege log because the time for filing the log was tolled until the court ruled on the other objections.

Moreover, under the facts and circumstances of this case the court could not find a waiver as a sanction for a discovery violation. Fox never moved to compel, nor did he request a privilege log. Nevertheless, the trial court did not appear to find the waiver as a sanction, but based its decision solely on the fact that DLJ did not file a privilege log.

For these reasons, the 4th DCA found that the trial court departed from the essential requirements of the law by finding that DLJ’s failure to file a privilege log constituted a waiver of privilege. The trial court should allow DLJ to file a privilege log within a reasonable time after it rules on the non-privilege objections. An in camera inspection may then be conducted.