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

PAPA JOHN'S USA, INC., A FOREIGN PROFIT 

CORPORATION, and LORENA GONZALEZ, 

Petitioners, 

v.

Case No. 5D22-716

LT Case No: 2018-CA-002908-O 

PAULA MOORE, 

 Respondent. 

________________________________/

Opinion filed July 15, 2022

Petition for Certiorari Review of Order 

From the Circuit Court for Orange County,

Kevin B. Weiss, Judge.

Todd R. Ehrenreich, David L. Luck and

Michael J. Ellis of Lewis Brisbois Bisgaard & 

Smith, LLP, Coral Gables, for Petitioners. 

Brian J. Lee, of Morgan & Morgan,

Jacksonville, for Respondent.

COHEN, J.

Papa John’s USA, Inc. and Lorena Gonzalez, defendants below

(collectively, “Petitioners”), seek certiorari relief from the trial court’s order 
2

granting Paula Moore’s (“Respondent”) motion for sanctions, to compel, and 

to invoke the rule of sequestration. For the reasons discussed below, we 

grant the petition and quash the order. 

In 2015, Gonzalez, while working as a delivery driver for Papa John’s,

was involved in an automobile accident with Respondent, who was a 

passenger in the other vehicle. Thereafter, Respondent filed suit against 

Petitioners for negligence. In June 2021, Respondent took the deposition of 

Papa John’s corporate representative, Robert Duncan. Duncan testified that, 

in preparation for his deposition, he had not personally interviewed Gonzalez 

but instead reviewed her deposition testimony and other relevant materials. 

On cross-examination, defense counsel sought to elicit from Duncan another 

reason why he had not personally communicated with Gonzalez prior to his 

deposition. Duncan explained that he had asked Tai Phetsanghane, 

defense’s co-counsel, to contact Gonzalez on his behalf to gather some 

additional facts; and after speaking with Phetsanghane, he had no additional 

questions for Gonzalez. 

Plaintiff’s counsel then sought to inquire into “everything” that Duncan 

had discussed with Phetsanghane, to which defense counsel objected based 

on attorney-client privilege. The deposition was eventually terminated after 
3

the parties could not agree on the scope of any follow-up questioning 

regarding communications between Duncan and Phetsanghane. 

Respondent then filed her motion for sanctions, to compel, and to 

invoke the rule of sequestration, arguing that defense counsel’s questioning 

of Duncan regarding his communication with Phetsanghane waived the 

attorney-client privilege and that Duncan’s deposition should continue 

without any objection on that basis. She also sought sanctions for defense 

counsel’s improper instructions not to answer questions on that matter and 

for unilaterally terminating the deposition. Finally, Respondent sought to 

sequester attorney Phetsanghane to prevent his communication with 

Duncan and to depose Phetsanghane at a later date. In response, 

Petitioners argued that attorney-client privilege was not waived and that 

Respondent’s attempt to delve into the substance of the communications, as 

opposed to merely the facts learned by Duncan, was prohibited. Petitioners 

also moved for a protective order against sequestering Phetsanghane, 

asserting that doing so would be unduly burdensome and deposing him 

would further intrude on attorney-client privilege. 

The trial court granted Respondent’s motion, finding that attorneyclient privilege had been waived by defense counsel’s line of questioning. It 

ordered Duncan’s deposition to continue and permitted Respondent to ask 
4

questions regarding what was discussed between Duncan and 

Phetsanghane, along with any related questions that may follow. The trial 

court also granted Respondent’s request for sequestration, thereby 

preventing Phetsanghane from attending the continued deposition or from 

communicating with Duncan in the interim. Finally, the trial court awarded 

sanctions by ordering Petitioners to pay Respondent’s attorney’s fees in 

connection with the motion.

Petitioners timely filed this petition for writ of certiorari, contending the 

trial court departed from the essential requirements of law by finding that the 

attorney-client privilege was waived and by permitting Respondent to inquire 

into the substance of the specific communications between Duncan and 

Phetsanghane. Petitioners maintain that the proper remedy is to allow 

Respondent to question Duncan about the underlying factual information that 

was gathered from that conversation. We agree. 

“We will grant certiorari only if Petitioners establish: (1) a departure 

from the essential requirements of the law; (2) resulting in material injury for 

the remainder of the trial; (3) that cannot be corrected on post-judgment 

appeal.” Cowan v. Gray, 47 Fla. L. Weekly D274, D274 (Fla. 5th DCA Jan. 

21, 2022) (citing State Farm Mut. Auto. Ins. v. Knapp, 234 So. 3d 843, 848 

(Fla. 5th DCA 2018)). The order on appeal satisfies the second and third 
5

elements, providing us with jurisdiction. Id. (“We first examine the second 

and third elements to determine our jurisdiction.” (citation omitted)); see also

Montanez v. Publix Super Mkts., Inc., 135 So. 3d 510, 512 (Fla. 5th DCA 

2014) (“An order that erroneously compels a party to produce privileged 

information is a classic example of a discovery order subject to certiorari 

review because the harm caused by the disclosure of privileged information 

is irreparable.” (citation omitted)).

The trial court departed from the essential requirements of law by 

finding that attorney-client privilege had been waived and by granting 

Respondent broad permission to question Duncan about his 

communications with Phetsanghane. “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 rendition of legal services to 

the client.” § 90.502(2), Fla. Stat. (2021). However, “A person who has a 

privilege against disclosure of a confidential matter or communication waives 

the privilege if the person . . . voluntarily discloses or makes the 

communication when he or she does not have a reasonable expectation of 

privacy, or consents to disclosure of, any significant part of the matter or 

communication.” § 90.507, Fla. Stat. (2021). Still, 
6

The client does not waive the privilege by testifying 

generally in the case or testifying as to facts that were 

the subject of the consultation with his or her 

attorney, but if the client or attorney testifies as to 

privileged communications in part, this serves as a 

waiver as to the remainder of the privileged 

consultation or consultations about the same subject.

Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 511 (Fla. 2d 

DCA 2006) (internal quotations omitted) (citation omitted). 

A review of the relevant deposition testimony demonstrates that 

defense counsel did not ask questions of Duncan regarding the substance 

of the privileged communication, nor did Duncan’s answers reveal the same. 

As such, the attorney-client privilege was not waived. Moreover, the trial 

court’s order permits Respondent to inquire into far more than just the factual 

information Duncan learned during his communication with Phetsanghane. 

See 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.”). We agree with Petitioners 

that Respondent may inquire into only the factual information Duncan

gathered during the communication. 

Finally, the trial court’s reliance on our decision in Marrero v. Rea, 312 

So. 3d 1041 (Fla. 5th DCA 2021), was misplaced. That case involved a 

scenario in which plaintiff’s counsel voluntarily became a witness by filing an 
7

affidavit concerning his authority to settle the case, which served as a waiver 

of attorney-client privilege as to that issue. Id. at 1050–51 (“[T]he trial court 

failed to apply the concept of waiver of that privilege to the extent 

Respondent and his attorney had already testified in affidavits to Attorney 

Panagakis’ lack of settlement authority.” (citing Lender Processing Servs., 

Inc. v. Arch Ins. Co., 183 So. 3d 1052, 1062–64 (Fla. 1st DCA 

2015) (explaining attorney-client privilege waived when one party challenges 

settlement by asserting that counsel had no authority to settle))). Those 

circumstances are clearly not present in the instant case. 

Accordingly, we quash the order on appeal because the trial court 

departed from the essential requirements of law in granting Respondent’s 

motion.1

PETITION GRANTED; ORDER QUASHED.

EVANDER, J., concurs.

NARDELLA, J., concurs in part and dissents in part, with opinion.

1 We also quash the remaining portions of the trial court’s order on 

sequestration and sanctions, as those rulings stemmed from its erroneous 

decision on the attorney-client privilege issue.
8

5D22-716 

LT Case No: 2018-CA-002908-O 

NARDELLA, J., concurring in part; dissenting in part. 

I join the majority in quashing the trial court’s order granting 

Respondent’s motion to compel testimony protected by the attorney-client 

privilege. Restrained by the limits of certiorari jurisdiction, I would not reach 

the remaining portions of the trial court’s order on sequestration and 

sanctions.