DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AMERICAN AIRLINES, INC. and EDWIN DIAZ,

Petitioners,

v.

KIM CIMINO, individually, as Personal Representative of the Estate of 

MICHAEL CIMINO, and as Natural Guardian of MICHAEL DREW 

CIMINO,

Respondent.

No. 4D18-2485

[June 12, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Patti Englander Henning, Judge; L.T. Case No. 15-1723

(26).

Jennifer Olmedo-Rodriguez, Jesse H. Diner, Kelly H. Kolb, and Mary 

Beth Ricke, of Buchanan Ingersoll & Rooney PC, Fort Lauderdale and 

Miami, for petitioners.

Robert A. Rosenberg of The Law Offices of Robert A. Rosenberg, Coral 

Springs, and Chris Kleppin and Chelsea A. Lewis of Glasser & Kleppin, 

P.A., Plantation, for respondent.

ON MOTION FOR REHEARING

FORST, J.

We deny Respondent’s motion for rehearing, but withdraw our 

previously issued opinion, substituting the following in its place.

Petitioners American Airlines, Inc. (“AA”) and Edwin Diaz seek certiorari 

review of a discovery order that requires Petitioners to produce allegedly 

privileged documents to Respondent Kim Cimino, individually, as personal 

representative of the estate of Michael Cimino, and as natural guardian of 

Michael Drew Cimino (collectively, “the Estate”). The trial court 

determined that Petitioners “waived privileges” through affirmative 

defenses. The trial court reached this decision without conducting an in 

camera review of the material at issue, and without defining the scope of 
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any waiver. As set forth below, we grant the petition and remand for 

further proceedings.

Background

The pending litigation arises from Michael Cimino’s suicide, committed 

days after he was fired by AA. Diaz, who had only recently become 

Cimino’s supervisor, told Cimino he was being fired for time card fraud. 

Cimino, a manager in the cargo area at the Miami airport, had worked for 

AA for over thirty-four years, purportedly without incident, until Diaz 

became his supervisor.

In its operative complaint, the Estate alleges claims for violation of the 

Florida Civil Rights Act, negligent and intentional infliction of emotional 

distress, negligent retention, and wrongful death. The Estate alleges that 

the pretextual firing of Cimino, a white, non-Hispanic male, followed 

Petitioner’s long pattern of alleged discrimination and hostility based on 

race, national origin, and/or ethnicity. Specifically, the Estate alleges that 

Diaz “hates Anglos” and led the charge to fire Cimino and other Anglo 

employees before him, resulting in their replacement with Hispanic 

employees. The Estate further alleges that Diaz, who had been transferred 

from another location for bullying, bullied and harassed Cimino, 

threatening him with criminal charges and the loss of his pension and 

insurance.

According to the complaint, Diaz hired Cimino’s replacement well before 

accusing Cimino of any wrongdoing and firing him. Following purported 

claims that he was “piggybacking” into the employee parking lot, Cimino 

was placed on administrative leave. He invoked his right to have a coworker, Michelle Chung, present for any discussions with Diaz. Discovery 

from Chung is one of the contested issues—the Estate alleges that Diaz 

scheduled his final meeting with Cimino when he knew Chung had left 

work for the day.

The complaint further alleges that AA knew about the bullying and 

harassment, and that Cimino was suicidal after the firing, as he 

participated in AA’s mental health program which had recommended 

medication and additional treatment. In short, the complaint alleges that 

all of the above led to Cimino’s depression and ultimate suicide. 

The discovery at issue concerns AA’s investigation, conducted by 

Jeanette Gibbs (an HR representative), after receiving anonymous letters 

from AA Miami cargo employees following Mr. Cimino’s suicide (the “Gibbs 

Investigation”), and Gibbs’ resulting report. The letters referenced a 
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petition to remove Diaz and other bullying supervisors from their 

positions. According to AA, the purpose of the Gibbs Investigation was to 

gather information to allow AA’s legal department to assess AA’s liability 

for potential claims brought by the Estate and/or other AA employees 

relating to workplace conditions at AA’s Miami cargo division. 

Petitioners have denied liability and asserted various affirmative 

defenses—the third, fourth and fifth of which pertain to this petition. 

Briefly, the third, a “mixed-motive” defense, provides that any 

discriminatory motive for the firing was mixed with a legitimate, nondiscriminatory reason, i.e., Cimino’s purported falsification of records and 

dishonesty. The fourth, a “good faith” defense, is based on AA’s policies 

that prohibit discrimination and harassment in the workplace and its 

procedures for reporting and investigating employee claims of such 

conduct. In their fifth affirmative defense, Petitioners contend that Mr. 

Cimino failed to take advantage of preventative and/or corrective 

opportunities established by AA’s policies and procedures by not reporting 

any of the complained-of conduct.

The Estate filed three motions to compel discovery of materials and 

testimony that Petitioners assert is attorney-client and work product 

privileged. Specifically, the Estate moved to compel nonparties Chung and 

Gibbs to answer deposition questions and to compel AA to produce 

documents associated with requests 15 and 22.1 These discovery motions 

sought materials and witness testimony related to the Gibbs Investigation.

The Gibbs Investigation file exceeds 1,000 pages and involves matters 

beyond those specific to Mr. Cimino.

In their omnibus response to the Estate’s motions to compel, 

Petitioners explained the genesis of the Gibbs Investigation and their basis

for asserting the attorney-client and work-product privileges. Petitioners

also proposed that the trial court should review the documents in camera

if it had any questions regarding the privileged nature of the Gibbs 

Investigation.

At the hearing on its motions to compel, the Estate argued for the first 

time that Petitioners waived the privileges via their third (mixed-motive),

 1 Request no. 15 seeks: “Any complaint from any employee of the corporate 

Defendant that Edwin Diaz was discriminatory, harassing and/or bullying them 

at any work site of the corporate Defendant during Diaz’s employment with the 

corporate Defendant.” Request no. 22 seeks “[a]ll anonymous complaints 

concerning various member[s] of the Miami Cargo maintenance team referred to 

in the deposition of Jeanette Gibbs . . . .”
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fourth (good faith) and fifth (failure to report) affirmative defenses. In their

court-ordered supplemental memorandum, Petitioners disputed the 

claimed waiver and consistently maintained the existence of a privilege.

Without conducting an in camera review of the material claimed to be 

privileged, the trial court granted the Estate’s motions to compel. The 

court ruled solely that Petitioners had “waived privileges by virtue of their

Affirmative Defenses.” Not only did the trial court fail to identify which 

affirmative defense(s) gave rise to the waiver,2 but the court failed to define 

the scope of the purported waiver. Petitioners moved for reconsideration,

requesting that, consistent with this court’s precedent, the trial court 

conduct an in camera inspection of the Gibbs Investigation materials and 

witness testimony to determine the scope of the waiver of the asserted 

privileges and whether those purportedly privileged materials and witness 

testimony fall outside the scope of that waiver. The trial court denied the 

motion, and this petition follows.

Analysis

“Certiorari is available only when the petitioner is able to demonstrate 

both a departure from the essential requirements of law and the lack of an 

adequate remedy by direct appeal after final judgment.” Estate of 

Schleusener v. Stuart, 462 So. 2d 129, 130 (Fla. 4th DCA 1985). “Certiorari 

is the appropriate vehicle to obtain review of orders requiring cat-out-ofthe-bag disclosure of privileged documents.” Fla. Power & Light Co. v. 

Hicks, 162 So. 3d 1074, 1075 (Fla. 4th DCA 2015) (citing Bd. of Trs. of the 

Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 

457 (Fla. 2012)).

In seeking a writ, Petitioners argue that the trial court failed to conduct 

an in camera hearing before it ordered the disclosure of allegedly privileged

information, and failed to define the scope of the purported waiver. We 

agree with both arguments and grant the writ.

Our holding in Alliant Insurance Services, Inc. v. Riemer Insurance

Group, 22 So. 3d 779 (Fla. 4th DCA 2009), relied upon by Petitioners both 

below and on appeal, is controlling. In Alliant, the trial court similarly 

granted a motion to compel discovery—over the petitioner’s assertions of 

attorney-client privilege—without conducting an in camera inspection of 

the documents at issue and without defining the scope of any waiver of 

the privilege. In granting certiorari relief, we held that

 2 The trial court denied Petitioners’ motion to clarify which defense(s) “waived 

privileges.”
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[i]f a party seeks to compel the disclosure of documents that 

the opposing party claims are protected by attorney-client 

privilege, the party claiming the privilege is entitled to an in 

camera review of the documents by the trial court prior to 

disclosure. 

Similarly, if attorney-client privilege is waived regarding a 

certain matter, the waiver is limited to communications on the 

same matter. If the parties disagree as to the scope of the 

privilege waiver, a trial court must delineate the scope of the 

waiver before it may compel discovery of information.

22 So. 3d at 781 (internal citations omitted); accord Butler v. Harter, 152 

So. 3d 705, 714 (Fla. 1st DCA 2014); see also Las Olas River House Condo. 

Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding 

it was error to order production of documents regarding communications 

with the condo association and its attorneys without an in camera

inspection on the basis the privilege was waived by disclosure to the 

association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, 

Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding 

that where documents may be protected from discovery by both the 

attorney-client privilege and the work-product doctrine, the petitioners are 

entitled to an in camera review of the documents by the trial court prior to 

disclosure).3

Here, the Estate seeks to compel the discovery of material that AA 

claims is privileged. As such, Petitioners are entitled to an in camera

review of the material by the trial court before any disclosure. Alliant Ins. 

Servs., 22 So. 3d at 781. As for the trial court’s finding that Petitioners

“waived privileges by virtue of their Affirmative Defenses,” the court must 

delineate the scope of the waiver before it may compel discovery of 

information. See id.; see also Butler, 152 So. 3d at 714 (holding that “even 

if privilege had been waived here, that waiver would have been limited, and 

petitioner would have been entitled to an in camera review” and “find[ing]

the trial court departed from the essential requirements of the law in 

compelling disclosure of the entire litigation file, because that file is 

protected by work-product and attorney-client privilege”). 

Conclusion

 3 Petitioners discussed Alliant and Las Olas River House extensively in the

petition; the Estate addressed neither case in its response.
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Petitioners will suffer irreparable harm that cannot be remedied on 

appeal of a final order if they are compelled to produce privileged materials 

and witness testimony pursuant to the discovery order. Accordingly, we 

grant the petition, quash the discovery order and remand this matter to 

the trial court with instructions to conduct an in camera inspection and 

delineate the scope of any waiver.

Petition granted, order quashed, and remanded for further proceedings.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.