Ann Hamilton v. Citizens Property Insurance Corporation

By Allison Van Fleet

No. 3D23-1934, 2024 WL 1894872, — So.3d — (Fla 3d DCA May 1, 2024).

The Insured in the underlying suit sought certiorari review of an order granting a motion for protective order in favor of the­ Insurer. After reviewing the order, the Third District Court of Appeal quashed the original order entered.

The underlying order allowed the Insured to depose the Insurer’s corporate representative, required the corporate representative to bring the entire claims file to the deposition “for the purpose of refreshing his recollection and to allow for the competent testimony at deposition [,]” and allowed Citizens to designate as privileged any portion of the file’s contents, even those relied upon during testimony. The District Court of Appeals reviewed the language of the order and determined that it departed from the requirements of Fla. Stat. § 90.613 as the statute is clear and unambiguous, “if a witness, during his or her deposition testimony, relies on a written document to refresh his or her recollection, those portions of the document that relate to the witness’s testimony must be produced to the opposing party, resulting in a waiver of an otherwise applicable privilege.”

The Third District held that certiorari jurisdiction was appropriate as: 1) there was no practical way to determine on appeal after judgment whether the withheld documents supported or contradicted the witness’s testimony, and if so, to what extent the error impeded the effectiveness of cross-examination of the witness; and 2) while § 90.613 provides an express process for trial court review of objections based on relevance the statutory process is inapplicable to objections based on privilege.

Thus, the Third District concluded that “by virtue of the statute, a party’s objections are deemed waived when a party uses documents to refresh the recollection of that party’s witness [,]” and quashed the order.