DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FLORIDA POWER & LIGHT COMPANY,

Petitioner,

v.

MARK W. HICKS,

Respondent.

No. 4D14-4337

[April 15, 2015]

CORRECTED OPINION

Petition for writ of certiorari to the Circuit Court for the Nineteenth 

Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 

562012CA003445.

Rebecca Mercier Vargas, Jane Kreusler-Walsh, and Stephanie L. 

Serafin of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, 

and Ellen S. Malasky and David D. Austin, FPL Law Department, Juno 

Beach, for petitioner.

Peter Ticktin and Jamie Sasson of The Ticktin Law Group, P.A., 

Deerfield Beach, for respondent.

GROSS, J.

We grant Florida Power & Light Co.’s petition for writ of certiorari and 

quash the circuit court order requiring production of attorney-client 

privileged documents because they were relevant to the plaintiff’s causes 

of action.

Respondent sued FP&L for violation of the Florida Whistle Blower Act,

intentional infliction of emotional distress, and fraud. Respondent filed a 

request for production; FP&L responded with objections based on the 

attorney-client privilege and filed a privilege log. After respondent filed a 

motion to compel, the circuit court required an in camera inspection of 

those documents for which FP&L claimed a privilege.
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Following the inspection, the court ordered production. It sustained 

the privilege objections, but found that for certain documents “relevance 

require[d] breaking of a privilege and production.” It held that such 

relevant documents contained information that could not reasonably be 

obtained from another source, so that the “privilege should be broken and 

the documents provided.”

Certiorari is the appropriate vehicle to obtain review of orders requiring 

cat-out-of-the-bag disclosure of privileged documents. See, e.g., Bd. of Trs. 

of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 

3d 450, 457 (Fla. 2012) (quoting Allstate Ins. Co. v. Langston, 655 So. 2d 

91, 94 (Fla. 1995)). 

Unlike the work product doctrine, attorney-client privilege is not 

defeated by an opponent’s showing of relevance and necessity. Genovese 

v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011). As 

the Supreme Court has written, the attorney-client privilege

is not concerned with the litigation needs of the opposing 

party. Instead, the purpose of the privilege is to “encourage 

full and frank communication” between the attorney and the 

client. This significant goal of the privilege would be severely 

hampered if an insurer were aware that its communications 

with its attorney, which were not intended to be disclosed, 

could be revealed upon request by the insured. Moreover, we 

note that there is no exception provided under section 

90.502[, Florida Statutes] that allows the discovery of 

attorney-client privileged communications where the 

requesting party has demonstrated need and undue hardship.

Id. at 1068 (internal citations omitted). An order compelling production of 

attorney-client communications based on relevance and need constitutes 

a departure from the essential requirements of law. See Tumelaire v. 

Naples Estates Homeowners Ass’n, 137 So. 3d 596, 599 (Fla. 2d DCA 

2014). 

Contrary to respondent’s argument, the circuit court’s order was not 

based on the crime-fraud exception. The circuit court sustained the 

privilege objections and did not make a finding that the crime-fraud 

exception applied; to do so would have required an evidentiary hearing 

after the in camera review. See Merco Grp. of the Palm Beaches, Inc. v. 

McGregor, 39 Fla. L. Weekly D1594, 2014 WL 3729906 (Fla. 4th DCA July 

30, 2014).
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TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.