Markivia Beaubrun v. Geico General Insurance Company

Filing 86

ORDER granting 49 Defendant's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 8/1/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-24205-Civ-COOKE/TORRES
MARKIVIA BEAUBRUN, individual and
as Personal Representative of the Estate of
GEORGE SPENCE CLAYTON, Jr. deceased
and as Assignee of the Estate of CARLOS
BERNARD BROWN, deceased,
Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY,
Defendant.
______________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL
This matter is before the Court on Geico General Insurance Company’s
(“Defendant”) Motion to Compel (“Motion”) [D.E. 49] against Markivia Beaubrun
(“Plaintiff”) (“Defendant”) a proper privilege log and documents responsive to
Defendant’s subpoena to non-party Charles Blake Dye, Esq. (“Attorney Dye”).
Plaintiff responded to Defendant’s Motion on July 11, 2017 [D.E. 68] to which
Defendant replied on July 18, 2017. [D.E. 78]. Therefore, Defendant’s Motion is
now ripe for disposition. After careful consideration of the Motion, response, reply
and relevant authority, and for the reasons discussed below, Defendant’s Motion is
GRANTED.

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I.

BACKGROUND

This action arises out of an August 8, 2015 automobile accident involving the
Defendant’s insured, Carlos Bernard Brown (“Brown”), and his passenger, George
Spence Clayton, which resulted in their deaths. [D.E. 1-1]. At the time of the
accident, Brown, the driver, was insured under a GEICO policy of insurance. See
id. ¶ 7. The Policy provided bodily injury limits of $10,000/$20,000 per occurrence.
See id.

The effective dates of coverage under the policy were from February 10,

2015 through August 10, 2015. See id. As a result of the accident, the Clayton
Estate filed a wrongful death action against the Brown Estate in the Eleventh
Judicial Circuit Court in and for Miami-Dade County on March 9, 2016. See id. ¶ 8.
Defendant was timely notified of the pendency of the lawsuit, but did not provide a
defense to the Brown Estate. See id. ¶ 9.
On May 10, 2016, the Clayton Estate and the Brown Estate (collectively, the
“Estates”) entered into a “Stipulation and Agreement for Settlement of Claim and
Covenant Not to Sue” and an “Agreement for Assignment of Claims” (the
“Agreements”).1 See id. ¶ 10. Pursuant to the terms of the Agreements, the court
entered judgment against the Brown Estate in the amount of four million dollars.
See id. ¶ 11.
On August 16, 2016, Plaintiff filed suit in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County, Case No. 2016-021339. In that

Defendant claims the Estates entered into these agreements without its
knowledge or consent. [D.E. 5 ¶ 4].
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complaint, Plaintiff requests declaratory relief pursuant to Fla. Stat. § 86.011, set
forth allegations of bad faith against Defendant, and seeks recovery of the full loss
of the damage to the vehicle, pre-judgment interest, and attorney’s fees. Defendant
removed the case to this Court on October 3, 2016 on the basis of diversity
jurisdiction.2

On November 17, 2016, the Court denied Defendant’s motion to

dismiss Count II (the bad faith claim) of Plaintiff’s complaint. Rather than dismiss
Plaintiff’s claim, the Court abated it until the Court could properly determine
Plaintiff’s rights under the applicable insurance policy.
On April 28, 2017, Defendant issued a subpoena for the production of
documents to non-party Attorney Dye. Attorney Dye was the probate attorney for
Plaintiff. Defendant requested various documents and correspondences in Attorney
Dye’s litigation file related to Plaintiff’s claim. On May 18, 2017, Plaintiff served
Defendant with documents from Attorney Dye’s file and noted that a proper
privilege log would follow.

On May 30, 2017, Defendant contacted Plaintiff to

inquire about the status of the privilege log.

Plaintiff served a supplemental

response to Defendant’s subpoena on June 2, 2017 and identified several documents
that were withheld under the attorney-client privilege. Because this supplemental
response was perceived as an inadequate privilege log, Defendant emailed
Plaintiff’s counsel on June 9, 2017 to question whether Plaintiff would be producing
a proper privilege log that comports with the Local and Federal Rules.

There is complete diversity of citizenship between the parties, as Plaintiff is a
citizen of Florida, and Defendant is a citizen of Maryland.
3
2

Thereafter, on June 12, 2017, Plaintiff served an amended supplemental
response to Defendant’s subpoena to Attorney Dye, which Defendant found to be
inadequate again and not compliant with the Local and Federal Rules on what is
required for a privilege log. While Plaintiff’s response was still inadequate, Plaintiff
provided more specifics about the sender and recipients of the privileged
communications.

Correspondences related to the privilege log indicated that

communications between Attorney Dye and the beneficiaries to the Clayton Estate
were withheld on the basis of the attorney-client privilege.3 In light of the June 23,
2017 discovery deadline, Defendant proceeded with taking Attorney Dye’s
deposition on June 13, 2017 without having the benefit of a proper privilege log.
The next day, Defendant requested the production of certain documents that
were withheld on the basis of the attorney-client privilege, but Plaintiff disagreed
with Defendant’s position on this request.

Defendant also requested better

descriptions of certain documents on Plaintiff’s privilege log, but as of the date
Defendant filed its Motion Plaintiff has allegedly failed to confirm if or when a
revised privilege log would be provided. As such, Defendant filed its Motion to
compel Plaintiff to produce the communications in question between Attorney Dye
and the beneficiaries to the Clayton Estate and a proper privilege log.4

The beneficiaries to the Clayton Estate include Mavine Brunson, Shakevia
Walker, and Charkivia Lovett.
3

The documents Defendant seeks to compel include “letters,” “emails,” and
“handwritten notes” involving Attorney Dye or his firm, and the beneficiaries of the
Clayton Estate.
4
4

II.
Defendant’s

Motion

seeks

ANALYSIS
to

compel

Plaintiff

to

produce

several

communications in question between Attorney Dye and the beneficiaries to the
Clayton Estate and a proper privilege log.

Defendant argues that, pursuant to

Florida law, the communications between Attorney Dye and the beneficiaries are
not privileged.

Specifically, Defendant relies on a statute that the Florida

legislature passed in 2011:
(1) For the purpose of this section, a client acts as a fiduciary when
serving as a personal representative or a trustee as defined in ss.
731.201 and 736.0103, an administrator ad litem as described in s.
733.308, a curator as described in s. 733.501, a guardian or guardian
ad litem as defined in s. 744.102, a conservator as defined in s.
710.102, or an attorney in fact as described in chapter 709.
(2) A communication between a lawyer and a client acting as a
fiduciary is privileged and protected from disclosure under s. 90.502 to
the same extent as if the client were not acting as a fiduciary. In
applying s. 90.502 to a communication under this section, only the
person or entity acting as a fiduciary is considered a client of the
lawyer.
Fla. Stat. § 90.5021(2) (emphasis added).

Based on the plain language of the

statute, Defendant believes that it forecloses any argument that Plaintiff has in
refusing to produce the documents in question and that Plaintiff must produce a
proper privilege log.
As additional support, Defendant relies on a recent decision from Judge
Matthewman in Bivins v. Rogers, 207 F. Supp. 3d 1321, 1322 (S.D. Fla. 2016),
where the question presented was who, under Florida law, holds the attorney-client
privilege when a guardian of a ward hires an attorney to assist the guardian.
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The

question essentially boiled down to, after the death of the ward, whether the
attorney-client privilege existed between a guardian and the guardian’s attorney or
between the personal representative of the deceased ward’s estate and the
guardian’s attorney. Judge Matthewman held that pursuant to section 90.5021, the
attorney-client privilege only extends between the guardian of the ward and the
guardian’s attorneys, rather than the personal representative.
In reaching its holding, the court relied on an unpublished decision in Bain v.
McIntosh, 597 F. App’x. 623 (11th Cir. 2015), where the Eleventh Circuit explained
that the Florida legislature has narrowed the scope of the attorney-client privilege
with respect to third parties:
The Florida Legislature has indicated an unwillingness to expand a
lawyer’s fiduciary duties to a person other than the trustee. Pursuant
to Florida Statutes § 90.5021(2) (2011), ‘only the person or entity
acting as a [trustee] is considered a client of the lawyer.’ Furthermore,
the Rules Regulating the Florida Bar, which are promulgated by
Florida Supreme Court, narrowly limit a lawyer’s duties to third
parties when serving as the personal representative of an estate. R.
Regulating Fla. Bar 4–1.7 cmt. (2014) (“In Florida, the personal
representative is the client rather than the estate or the
beneficiaries.”); see also ABA Comm. on Ethics & Prof'l Responsibility,
Formal Op. 94–380 (1994) (‘The majority of jurisdictions consider that
a lawyer who represents a fiduciary does not also represent the
beneficiaries, and we understand the Model Rules to reflect this
majority view.”) (citation omitted).
Bain, 597 F. App’x. at 623–24. Because both decisions purportedly stand for the
proposition that the personal representative of an estate is the client rather than
the beneficiaries, Defendant argues that the only attorney-client privilege that
exists is the one between Plaintiff – who is the personal representative of the estate
– and Attorney Dye.

As such, Defendant believes that the documents Plaintiff
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refuses to produce between the beneficiaries and Attorney Dye are not protected by
any privilege and must be produced accordingly.5
Plaintiff’s response is that, contrary to Defendant’s contentions, the
beneficiaries of the Clayton Estate have a valid attorney-client privilege with
respect to the communications with Attorney Dye.

Specifically, Plaintiff argues

that the beneficiaries meet the test for an attorney-client relationship under Fla.
Stat. § 90.502(a) that provides that a “client is any person . . . who consults a
lawyer with the purpose of obtaining legal services or who is rendered legal services
by a lawyer.” As such, Plaintiff suggests that Defendant’s reliance on § 90.5021 is
misplaced because it ignores the clear language of § 90.502(a).
Plaintiff also argues that the cases that Defendant relies upon are inapposite
because they all involve attempts to obtain communications between a fiduciary,
such as a guardian of a ward, and the attorney for the guardian, and do not address
attempts by third parties to obtain communications. Plaintiff suggests that section
90.5021 was merely meant to codify Florida’s common law that a fiduciary duty
exists between a fiduciary and the lawyer for the fiduciary and to address the
privileged status of communications between those individuals only.

In other

words, section 90.5021 allegedly does not undermine or address whether the
attorney-client privilege attaches to communications such as those presented here.

Defendant also notes that Attorney Dye indicated during his deposition
testimony that only the Plaintiff was his client – not the beneficiaries. [D.E. 78-1 at
20].
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5

Yet, Plaintiff’s response lacks merit. In Bain, the Eleventh Circuit made
clear that Florida law limits a lawyer’s duties solely to his or her client rather than
to an estate or its beneficiaries. The Eleventh Circuit relied principally on the
Rules Regulating the Florida Bar in reaching its decision, which are promulgated by
the Florida Supreme Court. See, e.g., R. Regulating Fla. Bar 4–1.7 cmt. (2014) (“In
Florida, the personal representative is the client rather than the estate or the
beneficiaries.”); see also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op.
94–380 (1994) (“The majority of jurisdictions consider that a lawyer who represents
a fiduciary does not also represent the beneficiaries, and we understand the Model
Rules to reflect this majority view.” (citation omitted)).

Plaintiff offers no

persuasive reason – let alone any authority – on why the Eleventh Circuit’s decision
and the authorities it relied upon do not control the question presented.
The plain language of § 90.5021(2) further supports the same conclusion. As
stated earlier, the statute provides that “[a] communication between a lawyer and a
client acting as a fiduciary is privileged and protected from disclosure under s.
90.502 to the same extent as if the client were not acting as a fiduciary” and “[i]n
applying s. 90.502 to a communication under this section, only the person or entity
acting as a fiduciary is considered a client of the lawyer.” § 90.5021(2). Thus, there
is no question that Plaintiff – acting as a fiduciary on behalf of the beneficiaries –
had communications with Attorney Dye that can be protected by the attorney-client
privilege.

Yet, § 90.5021 noticeably never includes any protections for the

communications between beneficiaries and the lawyer of the fiduciary.
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And

Plaintiff does not point to any authority that suggests otherwise. In sum, we agree
with Judge Matthewman, the Rules Regulating the Florida Bar, and most
importantly the Eleventh Circuit that a lawyer’s attorney-client relationship
extends only to a personal representative and not to an estate or its beneficiaries.
As such, we hold that the documents involving Attorney Dye or his firm and the
beneficiaries are not protected by the attorney-client privilege and that Defendant’s
Motion, on this basis, is GRANTED.
As for Defendant’s Motion to compel the production of a proper privilege log,
Defendant contends that Plaintiff has continued to violate both the Federal and
Local Rules. Specifically, Defendant takes issue with the fact that Plaintiff has
failed to include proper descriptions of the documents withheld.

Plaintiff has

allegedly identified only three categories of documents withheld: (1) letters, (2)
emails, and (3) handwritten notes. And all of the withheld documents purportedly
have one of the following inadequate descriptions: “enclosing probate documents,”
discussing probate issues,” “forwarding email from CL,”, and “updating contact
information.” [D.E. 49-6]. Because Plaintiff’s privilege log fails to properly identify
the title and description of the documents withheld, the subject matter addressed in
the document, and the purposes for which the documents were prepared or
communicated, Defendant argues that Plaintiff must be compelled to promptly
produce a proper privilege log that complies with the Federal and Local Rules.
In response, Plaintiff does not substantively address Defendant’s contention
that the privilege logs produced thus far have been inadequate.
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Plaintiff only

mentions in a footnote that a proper privilege log will be produced within 10 days
from the date of Plaintiff’s response that was filed on July 11, 2017.

Defendant

argues in reply that Plaintiff has continually failed to produce a proper privilege log
and suggests that Plaintiff has not timely provided supplemental responses in the
past.

Because Plaintiff may likely continue to frustrate the Local and Federal

Rules, Defendant believes that the Court should rule upon Defendant’s Motion to
the extent that Plaintiff has failed to comply with the production of a proper
privilege log.
We agree with Defendant that the privilege logs that Plaintiff has produced
thus far have been inadequate in connection with the Local and Federal Rules.
Specifically, Local Rule 26.1(g)(3)(c) requires that a party who withholds documents
on the basis of privilege to identify “‘each document and the individuals who were
parties to the communications with sufficient detail to permit the compelling party
or court to determine if the privilege is properly claimed.”’ Anderson v. Branch
Banking & Tr. Co., 2015 WL 2339470, at *2 (S.D. Fla. May 14, 2015) (quoting
NIACCF, Inc. v. Cold Stone Creamery, Inc., 2014 WL 4545918, at *5 (S.D. Fla. Sept.
12, 2014)).
As a whole, a proper privilege log should contain the following information for
each withheld document: “(1) the name and job title or capacity of the author of the
document; (2) the name and job title or capacity of each recipient of the document;
(3) the date the document was prepared and, if different, the date(s) on which it was
sent to or shared with persons other than the author(s); (4) the title and description
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of the document; (5) the subject matter addressed in the document; (6) the
purpose(s) for which it was prepared or communicated; and (7) the specific basis for
the claim that it is privileged.” Anderson, 2015 WL 2339470, at *2 (citing NIACCF,
Inc., 2014 WL 4545918, at *5). Therefore, to the extent Plaintiff has not complied
with the aforementioned requirements and produced a proper privilege log,
Defendant’s Motion is also GRANTED in this respect.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendant’s Motion to Compel [D.E. 49] is GRANTED. Attorney Dye is compelled
to produce the documents in question between him or his firm and the beneficiaries
of the estate within fourteen (14) days from the date of this Order. And Plaintiff is
also compelled to produce a proper privilege log – to the extent Plaintiff has not
already done so – within fourteen (14) days from the date of this Order that
complies with the Local and Federal Rules.
DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of
August, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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