IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

FINN LAW GROUP, P.A., FINN LAW GROUP, P.C., MICHAEL D. FINN AND PATRICK A. KENNEDY ,

Petitioner s ,
v. Case No. 5D 16

- 1591 ORANGE LAKE COUNTRY CLUB, INC., WILSON RESORT FINANCE, LLC AND GLOBALACCESS EXCHANGE, LLC ,

Respondent s

.

______ __________________________/ Opinion filed December 16, 2016 Petition for Certiorari Review of Order from the Circuit Court for Orange County , Lisa T. Munyon , Judge. J. Andrew Meyer, of Le a venLaw, St. Petersburg, for Petitioners. John H. Pelzer, Richard W. Epstein and Sherine Marder, of Greenspoon Marder, P.A., Fort Lauderdale, for Respondents.

PALMER , J. Finn Law Group, P.A., Finn Law Group, P.C., Michael D. Finn , and Patrick A. Kennedy (“Petitioners”) have filed a petition seeking a writ of certiorari. Specifically, t hey seek certiorari relief from an order entered by the trial court requiring them to respond to2

discovery requests submitted in a law suit filed against them by Orange Lake Country Club, Inc., Wilson Resort Finance, L LC, and Global Access Exchange, LLC (“Respondents”). Determining that , in ordering certain portions of such discovery, the trial court departed from the essential requirements of law resultin g in material injury which cannot be remedied on direct appeal, we grant the petition , in part

.

“ An appellate court may grant a petition for certiorari only where the petitioner demonstrates (1) a departure from the essential requirements of the law (2) resulting in material injury for the remainder of the cas e (3) that cannot be remedied on p ost
- judgment appeal.” Cohen v. D.R. Horton, Inc. , 121 So. 3d 1121, 1124 (Fla. 5th DCA 2013) ( citing Reeves v. Fleetwood Homes of Fla., Inc

. , 889 So. 2d 812, 822 (Fla. 2004)). Here, Respondents sued Petitioners a lleg ing th at Petitioners tort i ously interfered with the contractual arrangement s between Respondents and certain of Petitioners’ legal clients. Respondent s also alleged that Petitioners violated the Florida Deceptive and Unfair Trade Practices A ct and otherwise ca used harm requiring injunctive relief. Essentially, Respondents' theory of the case was that Petitioners wrongly advised or encouraged their legal clients to breach their contracts with Respondents. Respondents moved to compel Petitioners to produce ten different categories of documents pursuant to an earlier

- served request to produce. Petitioners opposed that motion, arguing that each category was overbroad, harassing, not reasonably calculated to lead to admissible evidence, and protected by the work

- p roduct a nd the attorney
- client privileges. The trial court ordered Petitioners to respond to Respondents’ requests for certain categories of documents and directed that a ny documents withheld due to a claim of privilege be noted on a privilege log. This ce rtiorari petition followed.3

Petitioners challenge the trial court’s order , a sserting t hat each of the categories of documents are (1) overbroad, vague, or incapable of leading to admissible evidence, and (2) categorically barred by work

- product or attorn ey - client privilege, or both. We agree, in part.

Discovery of certain kinds of information “may reasonably cause material injury of an irreparable nature.” Martin

– Johnson [ , Inc. v. Savage] , 509 So. 2d at [1097], 1100 [ ( Fla. 1987)] . This includes “cat out of the bag” material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege , trade secrets, work product, or involving a confidential informant may cause such injury if disclosed. Id. Allstate Ins. Co. v. Langston , 655 So

. 2d 91, 94 (Fla. 1995) (citing Martin

- Johnson, Inc. v. Savage , 509 So. 2d 1097 (Fla. 1987) (emphasis added) )

. Thus, t he " entry of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law." Cruz

- Govin v. Torres , 29 So. 3d 393, 395 (Fla. 3d DCA 2010).
We realize that t he order under review d oes not expressly requ ire the production of any privileged communications since the order permits Petitioners to file a privilege log as to any such documents. However, c ertain categories of documents clearly request documents that are privileged , e ither under the attorney
- client or work

- product privilege

. Thus, the trial court's ruling requiring the production of a privilege log as to those categories constitutes a departure from the essential requirements of law resulting in material in jury to P etitioners which cannot be remedied on direct appeal. See S hell Oil Co. v. Par Four P' ship , 638 So. 2d 1050 (Fla. 5th DCA 1994) (holding that, when communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not) ; see also Coffey

- Garcia v. S. Miami Hosp., Inc. ,4

194 So. 3d 533 (Fla. 3d DCA 2016) (explaining that in cases where communication appears to be protected by attorney

- client privilege on its face, party seeking disclosure of the c ommunication bears the burden of proving that it is not privileged). Here, c ategories Five, Seven, E ight, and T en seek documents which would typically be privileged under the attorney

- client privilege and, accordingly, we grant the petition as to those cat egories without prejudice to Respondents filing more narrow requests aimed at non

- privileged documents. Similarly, c ategories Three and Four seek documents which would typically be privileged under the work

- product privilege and, accordingly, we grant t he petition as to those cat egories without prejudice to Respondent s filing more narrow requests aimed at non

- privileged documents. See Nat' l Car Rental Sys., Inc. v. Kosakowski , 659 So. 2d 455 (Fla. 4th DCA 1995) (explaining that order compelling production of privileged work

- product materials from litigant's file is type of discovery order pr operly reviewable by certiorari ). However, c ategories Six and Nine do not seek documents which would typically be privileged and, accordingly, we deny the petition as to those categories. PETITION GRANTED in part ; and DENIED in part ; Cause REMANDED

.

BERGER and EDWARDS , JJ., concur.