### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

AMERICAN AIRLINES, INC. and EDWIN DIAZ
, Petitioners

,

v.

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

MICHAEL CIMINO , and as N atural Guardian of MICHAEL DREW

CIMINO

, Respondent

.

No. 4D 18

- 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

F ORST

, 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 orde r 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 sco pe of2 any waiver

. As set for th 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 com plaint, 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

- His panic 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 charg e to fire Cimino and other Anglo employees before him, resulting in their replacement with Hispanic employees. T he 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 ad ministrative leave. He invoked his right to have a co

worker , Michel l e Chung, present for any discussions with Diaz. Discovery from Chung is one of the contested issue s

— the Estate alleges that Diaz scheduled his final meeting with Cimino when he knew Chu ng 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 tr eatment. 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 a3 petition to remove Diaz and other bullying supervisors from their positions. According to AA, the purpose of t he 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 wo rkplace conditions at AA ’s Miami c argo division

.

Petitioners ha ve 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, non

discriminatory 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 in vestigating 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, t he Estate moved to compel nonparties Chung and

Gibbs to ans wer deposition questions and to compel AA to produce

do cuments associated with requests 15 and 22

. 1 These discovery motions sought materials and witness testimony related to the Gibbs Investigation.

The Gibbs Investigation file exceed s 1,000 pages and involve s 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

I nvestigation.

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

time that Pe titioners 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. 2 2 seeks “[a]l l anonymous complaints concerning various member[s] of the Miami Cargo maintenance team referred to in the deposition of Jeanette Gibbs . . . .”4 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 , t he 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 def ense(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, consist ent 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 a nd 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

- of

the

- 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 defi ne the scope of the purported waiver. We

agree with both arguments and grant the writ.

Our holding in Alliant Ins urance Services, Inc. v. Riemer Insurance Group , 22 So. 3d 779 (Fla. 4th DCA 2009)

, relied upon by P etitioners both below and on appeal, is controlling . In Alliant , the trial court similarly
grante d a motion to compel discovery

— over the petitioner’s assertions of
attorney

- client privilege

— without conduct ing 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 privilege s

. ”5 [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 en titled 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 7 81 (internal citations omitted); accord Butler v. Harter , 152 So. 3d 705, 714 (Fla. 1st DCA 2014) ; s ee also Las Olas River House Condo. Ass’n, Inc. v. Lorh, LLC , 181 So. 3d 5 56 , 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 b y 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 discove ry 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

clai ms 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 .; s ee also Butler , 152 So. 3d at 714 ( holding that “ e ven 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

- produc t 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.6 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

.

W ARNER and K LINGENSMITH

, JJ., concur

.

* * *

Not final until disposition of timely filed motion for rehearing.