Civil Litigation
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Total Privilege Cases: 20
Continuous parental duty as ordinary, prudent persons to watch over, supervise, and protect their children includes the duty to read, or to have read to them if not English-speaking, any and all information given to them by a pharmacist to assure that the drugs received are the same drugs prescribed for their children by the physician before dispensing the drugs.
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In determining the viability of a litigation privilege challenge to a tortious interference with a business relationship claim, the Levin court held that: absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement, or other tortuous behavior...so long as the act has some relation to the proceeding. See Levin, Middle brooks, Mamie, Thomas, May, & Mitchell, P.A. v. First Ins. Co., 639 So. 2d 606 (Fla. 1994).
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The disqualification of counsel is an extraordinary remedy. In a case where an attorney has acquired access to information or records of opposing counsel falling under the attorney-client privilege and the information was not acquired through deliberate or surreptitious means, counsel will not be disqualified unless the court determines counsel has gained an unfair informational advantage.
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The general rule is that nonpublic employers do not have standing to assert a right to privacy on behalf of their employees when employee files are included in discovery requests. However, nonpublic employees may have a legitimate privacy interest in certain information in their personnel files and they may have standing as interveners in litigation to protect that interest. Courts should consider that alleged privacy interest to determine the relevancy of the information whether the employee has intervened or not. Furthermore, nonpublic employers may have standing to object that information in employee files is irrelevant. Due to the broad scope of discovery under Fla. R. Civ. Pro. 1.280, if private and confidential information that is not relevant is redacted or withheld from the documents produced, it would be appropriate to require the records custodian to provide to the requesting party details concerning the information withheld, to enable the parties to fully address the issue at the trial level and to challenge the trial court
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Braun v. Campbell
27 Fla. L. Weekly D1712 (Fla. 5th DCA August 2, 2002)
2002-08-02
PRIVILEGE
In a class action determination, the parties seeking class certification have the burden of pleading and proving each and every element required by Rule 1.220. Because the granting of class certification considerably expands the dimensions of the lawsuit, the trial court may only grant class certification after applying a rigorous analysis and determines that each element has been satisfied. The four requirements under Rule 1.220 are 1) numerosity, 2) commonality, 3) typicality, and 4) adequacy. In this case, the court found that the plaintiffs failed to establish the prerequisites to class certification.
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A statute exempting from disclosure autopsy photographs and audio and video recordings of autopsies is constitutional.
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Stamato v. Stamato
27 Fla. L. Weekly D1380 (Fla. 4th DCA June 21, 2002)
2002-06-21
PRIVILEGE
An agreement to settle a lawsuit should not be rescinded because plaintiff, through a clerical error in the judge
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Cocca v. Smith
27 Fla. L. Weekly D1334 (Fla. 2nd DCA June 14, 2002)
2002-06-14
PRIVILEGE
Where a jury is instructed by the court that a defendant is negligent and they should determine causation and the jury finds no causation, a zero verdict on damages is not inadequate as a matter of law. Furthermore, when a jury is so instructed and finds no causation, the verdict is not inconsistent with the instructions. A party that fails to raise the issue of inconsistency before the jury is discharged waives the issue for appeal.
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Cocca v. Smith
27 Fla. L. Weekly D1334 (Fla. 2nd DCA June 14, 2002)
2002-06-14
PRIVILEGE
To preserve an issue for appeal in an inconsistent verdict claim, the party claiming the inconsistency is required to raise the issue before a jury is discharged so that the trial court can re-instruct the jury prior to further deliberations. An inconsistent verdict is distinguished from an inadequate verdict which may be raised for the first time in a post-trial motion.
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The Florida Supreme Court
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The Third District Court of Appeal reversed summary judgment in favor of respondent after the Florida Supreme Court announced its decision in Owens v. Publix Supermarket, 802 So.2d 315 (Fla. 2001). The Owens opinion applies "to slip-and-fall cases in business premises involving transitory foreign substances." The court remanded for further proceedings in light of Owens.
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Amorello v. Tauck
27 Fla. L. Weekly D1017 (Fla. 4th DCA May 10, 2002)
2002-05-10
PRIVILEGE
The trial court abused its discretion in granting defendant
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Amorello v. Tauck
27 Fla. L. Weekly D1017 (Fla. 4th DCA May 10, 2002)
2002-05-10
PRIVILEGE
The two part rule to determine whether a case is subject to dismissal for lack of prosecution is first, that the defendant establishes that no record activity occurred for a period of over one year, and second, that the plaintiff does not have good cause for failing to meet this requirement. Here, the party filed a motion for summary judgment based upon a partial list of the claimed defenses. Within the one-year time limit, the party filed another motion for summary judgment incorporating the same issues as before but including the remained of the claimed defenses. The court found that, although similar, these two motions were separate because the later attempted to resolve the entire case whereas the first only attempted to resolve several of the issues.
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The Forth District Court of Appeals distinguished Federal Rule of Evidence 609(2)(b), which provided a bright-line bar for impeachment by use of prior convictions if occurring more than ten years ago, from section 90.610 of the Florida Statutes, which expressly avoids placing an "arbitrary number of years" in addressing remoteness. Thus, Florida courts are to make case-by-case determinations as to whether past convictions have a bearing on witnesses
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The Birdsalls filed a legal malpractice action against the law firm of Quarles & Brady and James T. Demarest individually alleging that Demarest represented them in a medical malpractice action and allowed the statute of limitations to expire.
Nancy Jarvi, a secretary of the law firm, was deposed by the Birdsalls. She stated that she had no knowledge of the legal malpractice case against Demarest and the firm until her deposition was requested. Since that time, she had not discussed the lawsuit with any from the firm except Mr. Doyle who was the supervising partner and initially represented the law firm in the case. She testified that she discussed the case with him in preparation for the deposition. In response to the follow up question , "What was discussed in that conversation?", the attorney client privilege was invoked and Jarvi did not answer that question. The Birdsalls filed a motion to compel Jarvi to answer the question in regards to what was discussed. The trial court granted the motion.
The court found that undue hardship was not an exception, nor was disclosure permitted because the opposing party claimed that the privileged information was necessary to prove their case. Thus, the appellate court granted the petition for a writ of certiorari and quashed the order on review.
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Certiorari was granted because the trial judge departed from the essential requirements of law by requiring production of attorney-client communications. Because erroneous production of these privileged documents cannot be remedied on appeal, and thus may result in a miscarriage of justice, the court granted certiorari. However, the court found that the blank statement in the privilege log pertaining to witness statements taken long before the Laniers threatened to file suit was insufficient to establish the work product privilege. Thus, there was no departure from the essential requirements of law in the trial court
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The court granted certiorari and quashed the order to produce documents that were unrelated to the controversy despite the fact that the documents may have led to evidence which would have supported a subsequent cause of action.
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In a trust beneficiary
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Hamilton v. Ramos
26 Fla. L. Weekly D2502 (Fla. 4th DCA Oct. 17, 2001)
2001-10-17
PRIVILEGE
The court found that it was error to compel answers to deposition questions without having conducted an in camera hearing to determine whether the deposition questions elicited information protected by the work product doctrine. If a trial court determines that answers to deposition questions require disclosure of work product information, there must be a showing of need and an inability to obtain substantial equivalent of information.
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The court held that Rule 1.280(b)(5), requires the submission of a privilege log which the insurance carrier failed to prepare. The appellate court noted that it was unable to determine from the record whether the trial court compelled production because it had concluded that letters between the insurer and its lawyer were not privileged, or whether it found a waiver. Because the trial court did not have the benefit of specific descriptions of the documents, i.e., a privilege log, the appellate court assumed that the trial court found a waiver. On the specific facts before the court, the appellate court concluded that the insurance carrier had not demonstrated that the trial court
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