Hayas v. Geico General Insurance Company

Filing 105

ORDER granting in part and denying in part 38 Motion to Compel. Signed by Magistrate Judge Anthony E. Porcelli on 10/21/2014. (FDM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KENNETH E. HAYAS,
Plaintiff,
v.

Case No: 8:13-cv-1432-T-33AEP

GEICO GENERAL INSURANCE
COMPANY,
Defendant.
/
ORDER
This matter comes before the Court upon GEICO’s Second Motion to Compel Materials
Withheld From Production By Plaintiff, Kenneth E. Hayas (“Motion”) (Dkt. No. 38), Plaintiff’s
response in opposition thereto (Dkt. No. 43), and Defendant’s reply (Dkt. No. 49). A hearing
was held on this matter on October 9, 2014. For the reasons stated at the hearing, as well as
those that follow, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion
(Dkt. No. 38).
I.

Background

A truncated history of this discovery dispute follows: On November 14, 2013, Defendant
served Plaintiff with its first request for production. On April 14, 2014, Plaintiff responded
with a privilege log, objecting to the production of certain documents under the attorney-client
and work product privileges. Defendant filed the instant motion on May 15, 2014, arguing that
Plaintiff waived the attorney-client privilege through voluntary disclosure to third-party Leslie
Bellao (“Bellao”), that Plaintiff failed to timely assert privilege, that privilege was waived
pursuant to the doctrine of implied waiver, and finally, that Plaintiff improperly asserted the

attorney-client privilege over materials not protected by the doctrine. Plaintiff’s opposition in
response argued, among other things, that waiver was not triggered due to a shared “common
interest” between Plaintiff and Bellao.
On October 9, 2014, an evidentiary hearing was held to assist the Court in its determination
as to whether Plaintiff and Bellao’s communications were privileged. At the hearing, Plaintiff
maintained that Plaintiff and Bellao shared a common interest, also asserting that attorney-client
privilege protected the correspondence at issue because Bellao was represented as a co-client
with Plaintiff.
II.

Analysis

In this diversity action, Florida law guides the Court’s application of the attorney-client
privilege. FED. R. EVID. 501; Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. Unit A Jan. 1981).
Attorney-client privilege is codified in Florida Statutes § 90.502. In determining whether a
lawyer-client relationship exists in the absence of a formal retainer and after a putative client
has consulted with an attorney, “Florida courts have used…a subjective [test that] hinges upon
the client's [reasonable] belief that he is consulting a lawyer in that capacity and his manifested
intention is to seek professional legal advice.” Jackson v. BellSouth Telecommunications, 372
F.3d 1250, 1281 (11th Cir. 2004) (internal quotations omitted) (citing Bartholomew v.
Bartholomew, 611 So.2d 85, 86 (Fla. 2d DCA 1992)). If established, the privilege is often
deemed waived if the holder of the privilege voluntarily discloses privileged information to
third parties. E.g., Fla. Stat. Ann. § 90.507; Savino v. Luciano, 92 So.2d 817, 819 (Fla. 1957)
(discussing waiver of privileges generally); Visual Scene, Inc. v. Pilkington Bros., 508 So. 2d
437, 440 (Fla. 3d DCA 1987); see also United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.
1987). Generally, when waiver exists, the privilege is waived for the remainder of the

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communication, although the specific scope of the waiver is unclear under Florida law.
Compare Hoyas v. State, 456 So. 2d 1225 (Fla. 3d DCA 1984), and Alliant Ins. Services, Inc.
v. Riemer Ins. Group, 22 So. 3d 779, 781 (Fla. 4th DCA 2009) (holding waiver extends to
communications on the same subject matter), with Paradise Divers, Inc. v. Upmal, 943 So. 2d
812, 814 (Fla. 3d DCA 2006) (discussing “limited waiver”), and Coates v. Akerman, Senterfitt
& Eidson, P.A., 940 So. 2d 504, 509 (Fla. 2d DCA 2006). Finally, Florida law recognizes the
common interest doctrine as an exception to the doctrine of waiver of privilege. E.g., Asplundh
Tree Expert Co. v. Barnes, 689 So. 2d 1200, 1200 (Fla. 4th DCA 1997); Visual Scene, 508 So.
2d at 440; Infinite Energy, Inc. v. Econnergy Energy Co., No. 1:06-cv-124, 2008 WL 2856719
(N.D. Fla. July 23, 2008).
Turning first to Plaintiff’s argument that Plaintiff’s communications with Bellao,
including attorney-client emails Plaintiff forwarded Bellao and handwritten notes of Bellao, are
protected by attorney-client privilege. 1 A threshold issue, therefore, is whether Bellao was
represented by Plaintiff’s retained counsel—Dale Swope, Angela Rodante, and Stephanie Miles
(“Swope Rodante”)—so as to benefit from any attached privilege. The Court concludes that,
on the record before it, 2 Plaintiff has not met his burden in showing that Bellao was represented.
Having evaluated Bellao’s sworn testimony, it is clear that Plaintiff cannot establish
privilege. When asked whether she knew she was represented by Swope Rodante in 2010,
1

The Court pauses to note that, of the documents at issue that have been reviewed in
camera by this Court, a fair number do not fall into the category of communications protected
by the attorney client privilege because they were not made incident to seeking or receiving
legal advice. See, e.g., Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148, 1153 (Fla. 3d DCA
2008); Hodgson Russ, LLP v. Trube, 867 So. 2d 1246, 1247 (Fla. 4th DCA 2004); see also In
re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992).
2
At the hearing on this matter, Plaintiff referenced other privileged documents that
purportedly would prove Bellao’s representation, but was reluctant to disclose said documents
in the course of the proceedings. The documents were not, therefore, accounted for in the
Court’s decision.

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Bellao responded: “I didn’t.” Bellao’s testimony repeatedly references that Swope Rodante
was retained unbeknownst to her, answering that she did not recall engaging their representation
but that it was later “brought to [her] attention.” Bellao also testified that she had no recollection
of retaining Swope Rodante until her second deposition in the underlying case. This testimony
is corroborated by Angela Rodante Esq. (“Rodante”)’s testimony that Bellao did not retain
Swope Rodante herself, did not sign a contract or fee agreement, and did not sign a statement
of clients rights. 3 Ultimately, Bellao admits that she had no knowledge that she was represented
by Swope Rodante, and it follows that she did not subjectively hold a reasonable belief that she
was consulting Swope Rodante with the manifested intention of seeking professional legal
advice. See Jackson, 372 F.3d at 1281 (citing Bartholomew, 611 So.2d at 86). Plaintiff’s
contention that Plaintiff retained counsel for Bellao is thus inapposite—even if Plaintiff had
done so in a contractual sense, attorney-client privilege does not attach in the absence of a
formal written agreement until the putative client’s subjective belief takes root. See id. It is
clear in this instance that Bellao merely gave Plaintiff a ride to meet with Swope Rodante and,
despite taking notes at the meeting and communicating with the firm, did not at the time at issue
believe she was represented or believe she was seeking legal advice for herself.
Plaintiff’s argument that the “common interest” exception to waiver of privilege applies
in this instance also fails. The common interest exception to waiver exists so that “clients and
their respective attorneys sharing common litigation interests may exchange information freely
among themselves without fear that by their exchange they will forfeit the protection of the
privilege.” Visual Scene, 508 So. 2d at 440 (emphasis added). Three threshold questions

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The Court finds Rodante’s testimony regarding Swope Rodante’s position and belief
as to Bellao’s representation credible, but ultimately insufficient because the Court’s analysis
in this matter is governed by a subjective standard under Florida law.

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predominate in the Court’s analysis: (1) whether the original disclosures were necessary to
obtain informed legal advice and might not have been made absent the attorney-client privilege;
(2) whether the communication was such that disclosure to third parties was not intended, and
(3) whether the information was exchanged between the parties for the limited purpose of
assisting in their common cause. Infinite Energy, No. 1:06-cv-124, 2008 WL 2856719 (N.D.
Fla. July 23, 2008) (citing Developers Sur. & Indem. Co. v. Harding Vill., Ltd., 06-21267, 2007
WL 2021939 (S.D. Fla. July 11, 2007)). Florida courts have found that the most important
question is whether the information was exchanged for the limited purpose of assisting in the
parties' common, litigation-related cause. Id (internal quotations omitted) (citations omitted).
The situation at issue between Plaintiff and Bellao simply does not meet these criterion.
Notably, Bellao’s testimony does not establish commonality in a litigation-related cause against
a shared adversary, nor does the Court find upon review of the communications that they were
made in furtherance of assisting such a cause. See Visual Scene, 508 So. 2d at 440, 443. Bellao
testified that, at the time of her meeting with Swope Rodante in 2010, she knew she was not
liable for any claims resulting from the accident. Bellao further testified that she had no claims
against GEICO, and brought no claims at all relating to the accident. Moreover, Bellao was not
involved in the accident, did not own the vehicle at issue in the accident, and, as of February
2010, she did not believe she was exposed to any liability for the accident. It appears that the
extent of Bellao’s involvement in Plaintiff’s claim, aside from her awareness due to her personal
relationship with Plaintiff, was merely her status as a named party on the GEICO insurance
policy. This limited contractual interest does not, as matter of law, establish the type of
commonality required by the exception, and, therefore, cannot be used to defeat waiver here.
See Visual Scene, 508 So. 2d at 440 (“Quite obviously, when a member of the common interest

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group discloses this information to a non-member, a waiver of the privilege, as in the ordinary
case, occurs.”). And, even assuming a common litigation-related interest existed, it is clear to
the Court that the information was not exchanged between Plaintiff and Bellao for the purposes
of a litigious interest or otherwise for seeking legal advice, but rather the intent was to keep
Bellao, a sincere friend and caretaker, informed, and vise-versa. See, e.g., Developers, 2007
WL 2021939, at 2.
Finally, the Court is left to address Defendant’s argument that the privilege waiver in
this instance must, in turn, nullify Plaintiff’s privilege as to all withheld documents from the
privilege log pertaining to Plaintiff’s case. As noted above, Florida decisions are unclear as to
the scope of attorney-client privilege waiver. More specifically, the breadth of waiver is
sometimes narrower than all communications related to the subject matter. See, e.g., Upmal,
943 So. 2d at 814 (“A party can make a limited waiver of its attorney-client or work product
privileges in this state.”); Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 509
(Fla. 2d DCA 2006) (“When attorney-client communications are disclosed regarding a certain
matter, there exists a limited waiver with respect to communications on that same, specific
matter.”). This approach accords with federal case law that limits the scope of extended wavier
to that which is necessary to eliminate the unfair practice inherent in using the privilege as a
sword. See, e.g., FED. R. EVID. 502(a)(3) (requiring a consideration of fairness); In re Teleglobe
Commc'ns Corp., 493 F.3d 345, 361 (3d Cir. 2007), as amended (Oct. 12, 2007) (“Extending
waiver is not a punitive measure. [] [W]hen the disclosure does not create an unfair advantage,
courts typically limit the waiver to the communications actually disclosed.”).
Concerns regarding the unfair practice of selective disclosure apparent in Hoyas, where
selective testimony was given on direct-examination and privilege was invoked on cross-

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examination, do not predominate here. See 456 So. 2d at 1229. The Court does not find that
the disclosures were made for a strategic, offensive purpose, and does not foresee them creating
an unfair advantage in this litigation. The scope of waiver relating to Plaintiff’s counsel is,
therefore, limited to communications actually disclosed between Plaintiff and Bellao.
III.

Conclusion

Accordingly, for the reasons on record and stated above, it is hereby
ORDERED:
1. Defendant’s Motion (Dkt. No. 38) is GRANTED as to communications at issue sent
from Plaintiff to Bellao, as well as communications sent from Bellao to Plaintiff. Bellao’s notes
shall also be produced. Plaintiff is DIRECTED to produce those communications. The Motion
is DENIED as to all other communications in the privilege log relating to Plaintiff’s
representation.
2. Defendant’s request for attorney’s fees and costs is DENIED.

DONE AND ORDERED in Tampa, Florida, this 21st day of October, 2014.

cc: Counsel of Record

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