Coffey-Garcia and Garcia v. South Miami Hospital, Inc.

Third District Court of Appeal

State of Florida

Opinion filed June 22, 2016.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15-1966

Lower Tribunal No. 13-37232

________________

Michelle Coffey-Garcia, et al.,

Petitioners,

vs.

South Miami Hospital, Inc., et al.,

Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lisa S.

Walsh, Judge.

Diez-Arguelles & Tejedor, and Carlos Diez-Arguelles and Maria Tejedor

(Orlando); Barbara Green, for petitioners.

Spector Rubin, P.A., and Andrew Spector and Robert M. Borak; Falk, Waas,

Hernandez, Cortina, Solomon & Bonner, P.A., and Glenn Falk, Scott E. Solomon

and Jordan M. Bieber; Haliczer, Pettis & Schwamm, P.A., and Debra Potter

Klauber, for respondents.

Before EMAS, LOGUE, and SCALES, JJ.

LOGUE, J.

Michelle Coffey-Garcia and Jose M. Garcia, individually and on behalf of

their daughter, Samantha Garcia (hereinafter, “the Garcias”), petition for a writ of

certiorari to review an order that compels Ms. Coffey-Garcia to answer deposition

questions regarding lawyers she consulted relating to the medical malpractice

claim at issue. We grant the writ and quash part of the order under review.

FACTS AND PROCEDURAL HISTORY

On July 16, 2005, Ms. Coffey-Garcia gave birth to her daughter, Samantha.

In early 2007, a neurologist diagnosed Samantha with cerebral palsy. Prior to

Samantha’s eighth birthday, on April 30, 2013, the Garcias petitioned to extend by

ninety days the statute of limitations for filing a medical malpractice action against

the hospitals, clinics, and doctors involved in Samantha’s birth. See § 766.104(2),

Fla. Stat. (2013). After filing their notice of intent to initiate litigation for medical

malpractice, see § 766.106(2), Florida Statutes (2013), the Garcias filed suit

against those hospitals, clinics, and doctors in November 2013.

The statute of limitations for medical malpractice is two years “from the

time the incident giving rise to the action occurred or within 2 years from the time

the incident is discovered, or should have been discovered with the exercise of due

diligence.” § 95.11(4)(b), Fla. Stat. (2013). The Florida Supreme Court has

interpreted this language “to mean not only knowledge of the injury but also

knowledge that there is a reasonable possibility that the injury was caused by

2

medical malpractice.” Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993) (footnote

omitted).

To investigate when Ms. Coffey-Garcia first comprehended a reasonable

possibility that her child’s injury was caused by malpractice, the lawyers for the

hospitals, clinics, and doctors deposed her seeking to discover what lawyers she

consulted regarding Samantha’s condition, when she consulted them, and why she

consulted them. After testifying that her current counsel was not the first attorney

she consulted, she declined to answer any other questions based on the attorney-

client privilege.

The hospitals, clinics, and doctors moved to compel. The trial court ordered

Ms. Coffey-Garcia to “answer all questions related to the following issues”: (a)

“when she first sought legal counsel”; (b) “the names of the attorneys whom she

consulted with”; and (c) “the reasons why she first sought out legal counsel and

any subsequent counsel.” This petition followed. At oral argument, the hospitals,

clinics, and doctors conceded that any information produced should be limited to

consultations regarding possible legal remedies stemming from the daughter’s

condition.

ANALYSIS

I. Jurisdiction.

3

For a writ of certiorari to issue, the petitioner must demonstrate that the

challenged non-final order (1) departs from the essential requirements of law, (2)

results in material injury for the remainder of the case, and (3) such injury is

incapable of correction on post-judgment appeal. Citizens Prop. Ins. Corp. v. San

Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012). The last two elements are

referred to as irreparable harm, the establishment of which is a condition precedent

to invoking certiorari jurisdiction. Nader v. Fla. Dep’t of Highway Safety & Motor

Vehicles, 87 So. 3d 712, 721 (Fla. 2012); Sea Coast Fire, Inc. v. Triangle Fire, Inc.,

170 So. 3d 804, 807 (Fla. 3d DCA 2014). The disclosure of information protected

by the attorney-client privilege is well recognized as irreparable harm. See Bd. of

Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d

450, 457 (Fla. 2012).

II. Attorney-Client Privilege

In Florida, a client’s right to have his or her communications with counsel

remain confidential derives from two sources which establish somewhat different

standards. The right as it pertains to disclosure in judicial and administrative

hearings, technically referred to as the “attorney-client privilege,” is governed by

the Florida Evidence Code, codified at section 90.502, Florida Statutes (2013). The

right as it pertains to disclosure outside judicial and administrative hearings,

technically referred to as “the rule of client-lawyer confidentiality,” is governed by

4

Rule Regulating the Florida Bar 4-1.6. See R. Regulating Fla. Bar 4-1.6 cmt. (“The

attorney-client privilege applies in judicial and other proceedings in which a

lawyer may be called as a witness or otherwise required to produce evidence

concerning a client. The rule of client-lawyer confidentiality applies in situations

other than those where evidence is sought from the lawyer though compulsion of

law.”). Because we are addressing disclosure in the context of a lawsuit, this case

is obviously governed by the attorney-client privilege provided in the Evidence

Code.1

Under the Evidence Code, “[a] client has a privilege to refuse to disclose,

and to prevent any other person from disclosing, the contents of confidential

communications when such other person learned of the communications because

they were made in the rendition of legal services to the client.” § 90.502(2), Fla.

Stat. The Code further provides:

1 The distinction between the Ethics Code and Evidence Code is significant

because Florida courts have interpreted the Ethics Code’s rule of client-lawyer

confidentiality to be broader in scope than the Evidence Code’s attorney-client

privilege. See Campbell v. Am. Pioneer Sav. Bank, 565 So. 2d 417, 417 (Fla. 4th

DCA 1990) (“[T]he Ethics Code’s protection of a client’s confidences is broader

than the evidentiary attorney-client privilege protecting privileged

communications.”); Buntrock v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA

1982) (“The Code of Professional Responsibility protects more than confidential

communications, it protects confidences and secrets of a client. This protection is

broader than the evidentiary attorney-client privilege, and applies even though the

same information is discoverable from other sources.”) (internal citations omitted);

see also Abdool v. Bondi, 141 So. 3d 529, 553 (Fla. 2014) (“[Rule 4-1.6] has been

interpreted to protect the confidences and secrets of clients.”).

5

A communication between lawyer and client is “confidential” if it is

not intended to be disclosed to third persons other than:

1. Those to whom disclosure is in furtherance of the rendition of legal

services to the client.

2. Those reasonably necessary for the transmission of the

communication.

§ 90.502(1)(c), Fla. Stat.2

The privilege protects only communications to and from a lawyer; it does

not protect facts known by the client independent of any communication with the

lawyer, even if the client later tells the fact to the lawyer: “the communication

between the attorney and client is privileged, but the underlying facts are

discoverable.” S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1387 (Fla.

1994); see also Carnival Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA

1998) (“Although the communications between an attorney and client are

privileged, the underlying facts are discoverable.”). In other words, “[t]he client

cannot be compelled to answer the question, ‘What did you say or write to the

attorney?’ but may not refuse to disclose any relevant fact within his knowledge

merely because he incorporated a statement of such fact into his communication to

his attorney.” Upjohn Co. v. U.S., 449 U.S. 383, 396 (1981).

2 Section 90.502(4) provides several exceptions to the attorney-client privilege,

none of which apply here.

6

The burden of establishing the existence of the attorney-client privilege, and

thus the existence of a confidential communication, rests on the party asserting the

privilege. Deason, 632 So. 2d at 1383. This burden can be met by describing “the

nature of the documents, communications, or things not produced or disclosed in a

manner that, without revealing information itself privileged[,] . . . will enable other

parties to assess the applicability of the privilege.” Fla. R. Civ. P. 1.280(b)(6). In

some cases, however, the communication will appear to be privileged on its face.

First Union Nat’l. Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001); Shell

Oil Co. v. Par Four P’ship, 638 So. 2d 1050 (Fla. 5th DCA 1994). In such cases,

the party seeking disclosure of the communication bears the burden of proving that

it is not privileged. Turney, 824 So. 2d at 183-84; Shell Oil Co., 638 So. 2d 1050.

III. Application of Law to the Discovery Order

Applying this law to the instant case, we decline to quash the first two parts

of the order under review. Based on the concession of the hospital, clinics, and

doctors, the order to divulge the names of attorneys and dates of consultation is

limited to those attorneys Ms. Coffey-Garcia consulted regarding possible legal

remedies stemming from her daughter’s condition. On their face, these questions

do not require her to disclose any communication she had with any attorney. They

merely require her to disclose the occurrence of a consultation with a lawyer

regarding a general topic.

7

This court has previously held that “[t]he traditional and still generally

applicable rule denies the [attorney-client] privilege for the fact of consultation or

employment . . . .” Greenberg Traurig Hoffman Lipoff Rosen & Quentel v. Bolton,

706 So. 2d 97, 98 (Fla. 3d DCA 1998) (quotations and citations omitted); see also

Burt v. Gov’t Emps. Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992) (holding, in a

personal injury case, that a question asking a plaintiff when she obtained counsel

for the case did not violate the attorney-client privilege). There are, of course,

exceptions to this general rule in which the very fact of a consultation with an

attorney constitutes a “confidential” communication under the Evidence Code. But

those exceptions do not apply here.3

We therefore conclude that requiring Ms. Coffey-Garcia to reveal when and

with whom she consulted for the general purpose of discussing possible legal

remedies stemming from her daughter’s condition does not, on this record,

implicate the attorney-client privilege. This is true even though she is revealing in

general terms her purpose for scheduling and attending the consultation. “Courts

have consistently held that the general subject matters of clients’ representations

are not privileged. Nor does the general purpose of a client’s representation

3 One example of an exception to this general rule is the “last-link” exception. See

Del Carmen Calzon v. Capital Bank, 689 So. 2d 279, 281 (Fla. 3d DCA 1995)

(“[T]he attorney-client privilege covers information that would supply links of

incriminating evidence in an existing chain of inculpatory events, or lead to the

filing of criminal charges.”). No “last-link” concerns are implicated here.

8

necessarily divulge a confidential professional communication, and therefore that

data is not generally privileged.” United States v. Legal Servs. for New York City,

249 F.3d 1077, 1081 (D.C. Cir. 2001)) (internal citation omitted); see also In re

Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (“[T]he general purpose

of the work performed [is] usually not protected from disclosure by the attorney-

client privilege because such information ordinarily reveals no confidential

professional communications between attorney and client.”) (quotations and

citations omitted); New Jersey v. Sprint Corp., 258 F.R.D. 421, 426 (D. Kan. 2009)

(“Revealing the general topic of discussion between an attorney and client does not

waive the privilege, unless the revelation also reveals the substance of a protected

communication.”). We thus decline to quash the first two parts of the order, as

modified by the concession at oral argument.4

The third part of the trial court’s directive, however, requires Ms. Coffey-

Garcia to “answer all questions related to . . . the reasons why she first sought out

legal counsel and any subsequent counsel.” (emphasis added). This part of the

order allows inquiry into confidential communications between Ms. Coffey-Garcia

and attorneys. For example, she might be asked “after consulting the first lawyer,

why did you seek out a second lawyer?” Under the trial court’s order that she

answer “all” questions, she would be required to answer even if her response was

4 We do not address whether this information is discoverable from attorneys.

9

“my first lawyer insisted I had no case so I wanted to get a second opinion” or “my

first lawyer told me I had an excellent case but needed a lawyer specializing in

neonatology.” These communications of legal advice from the lawyer to Ms.

Coffey-Garcia would be protected by the attorney-client privilege. Yet the order as

drafted would require her to divulge these privileged communications. While Ms.

Coffey-Garcia can be required to answer factual questions about what she learned

at various points in time concerning the nature and potential causes of her

daughter’s condition from sources other than the attorneys that she consulted, she

cannot be forced to answer questions that would require her to reveal the contents

of advice or information she received from the attorneys.

It is of no account that the answers to such questions might prove useful or

even necessary to determine when the Garcias discovered or should have

discovered that there was a “reasonable possibility” that medical malpractice

caused Samantha’s cerebral palsy. The hospital, clinics, and doctors’ need for this

information to prove their statute of limitations defense does not justify an invasion

of the privilege. “[T]he attorney-client privilege . . . is not concerned with the

litigation needs of the opposing party.” Genovese v. Provident Life & Accident

Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). “[U]ndue hardship is not an exception,

nor is disclosure permitted because the opposing party claims that the privileged

information is necessary to prove their case.” Id. (quotation and citation omitted).

10

CONCLUSION

For these reasons, we grant the petition and quash the order to the extent it

requires Ms. Coffey-Garcia to answer all questions related to the reasons why she

sought subsequent counsel.5

Petition granted in part; denied in part.

5 Because the issue is not before us, we do not address whether the dates and

names of the attorneys Ms. Coffey-Garcia consulted are probative and therefore

admissible regarding any issue in this case.

11