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IN THE CIRCUIT COURT OF THE
12™ JUDICIAL CIRCUIT IN AND FOR
SARASOTA COUNTY, FLORIDA
CASE NO.: 2008 CA 18070
TIBAR, LLC, TERESA
BASNIGHT and MICHAEL
A. BASNIGHT
Plaintiffs,
VS.
WILLIAMS, PARKER, HARRISON,
DIETZ & GETZEN, P.A., JOHN MOORE,
and TERRI COSTA,
Defendants.
iene aren re
/
WILLIAMS, PARKER, HARRISON, DIETZ
& GETZEN, P.A.
Ne
mm
el
1
Counter-Plaintiff, oo
—
Ad
“Ty
VS. ns
3
O
“7
TIBAR, LLC, TERESA
C2
and MICHAEL
ae
BASNIGHT
Cc
—_
A. BASNIGHT _—S YG
Counter-Defendants.
/
PLAINTIFF’S, TIBAR, LLC, MOTION
TO COMPEL CERTAIN DOCUMENTS OF DEFENDANT, WILLIAMS, PARKER,
HARRISON, DIETZ & GETZEN, P.A. AND FOR SANCTIONS
Plaintifff, TIBAR, LLC, (“TIBAR”) by and through its undersigned counsel and pursuant to
the Florida Rule s of Civi l Proc edur e, here by files its Mot ion to Com pel Cert ain Doc ume nts of
Defendant, WIL LIA MS, PAR KER , HAR RIS ON, DIE TZ & GET ZEN , P.A. (“th e WIL LIA MS firm ’’)
and for Sanctions, in support thereof, states as follows:
gg i u i t t i n o
TT — —---—_
Y
CASE NO.: 2008 CA 18070
l This is a lawyers professional liability action arising from a real estate transaction in
which TIBAR acquired an office building and property in Venice, Florida. The WILLIAMS firm
represented TIBAR’s interests in this transaction.
2 On October 2, 2009, TIBAR propounded its First Request for Production upon the
WILLIAMS firm, seeking, inter alia, all documents maintained by the WILLIAMS firm regarding
its legal representation of TIBAR in the subject transaction.
3 On November 2, 2009, the WILLIAMS firm provided its responses to this discovery,
stating as respects requests nos. 1, 2, 11, 12, 13, 14 and 30:
RESPONSE: Objection and limited response. This request is overbroad in time and
seeks irrelevant documents. Additionally, the request is unlimited in scope and is
therefore to broad for a reasonable response. Furthermore, the request seeks
documents that are protected from disclosure by the attorney-client privilege
and the work-product doctrine. Notwithstanding these objections and without
waiving the same, WPHDG previously produced all non-privileged responsive
documents for the relevant time period in its response to Plaintiff’s First Request for
Production, served on December 22, 2008. Additional responsive documents, if any,
will be produced at a mutually agreeable time and place. Discovery in this action is
ongoing and WPHDG reserves the right to supplement these responses if and when
appropriate.
(Emphasis added) A copy of the WILLIAMS firm’s responses is attached as Exhibit “A” for the
Court’s ease of reference.
4 TIBAR respectfully submits that Florida law is well settled that exists no
lawye r/cli ent privi lege when a comm unic atio n is relev ant to an issue of breac h of duty by the lawy er
to the client arising from the attorney/client relationship. See § 90.502(1), Florida Statutes; S & |
Investments v. Pay Less Flea Market, Inc., 10 So.3d 699 (Fla. 4" DCA 2009).
5 Following this reasoning, in Del Prado v. Robert K. Estes, P.A., 532 So.2d 1101 (Fla.
CASE NO.: 2008 CA 18070
3™ DCA 1988), the court held that no privilege existed to prevent the former client from discovering
files from his attorney for use 1n a legal malpractice against the attorney. In finding in favor of the
client, the court stated:
The defendants responded by asserting that “the request is so broad, vague and
ambiguous as to require production of work product and waiver of the attorney/client
privilege between Defendants herein and their counsel”. However, as the defendants
concede, there was absolutely no basis to claim any privilege against the former
client in respect to papers created or acquired by the Defendants regarding the former
clients’ workers compensation claim.
Id. Similarly, as clearly indicated in the First Request for Production, all of the materials that TIBAR
seeks, were obtained and maintained by the WILLIAMS firm as part of TIBAR’s legal
representation. The WILLIAMS firm’s baseless privilege assertions, in an effort to prevent
disclosure of these materials, is on its face without merit and TIBAR requests the production of such
materials immediately so that discovery may proceed in an orderly fashion.
6 Regarding the work product privilege that was asserted by the WILLIAMS firm, for
the reasons set forth above, TIBAR also states that such privilege cannot be applicable under these
circumstances any such documents would have been developed in the course of the WILLIAMS
firm’s representation of TIBAR, LLC. Thus, there can be no factual, much less legal, justification
to withhold the production of these documents.
7 Although it cannot be deduced from the WILLIAMS firm’s response, if the
WILLIAMS firm contends that the subject documents for which it is asserting a work product
privilege pertains to work product created in the anticipation of the instant litigation, TIBAR requests
that this honorable court determine whether TIBAR’s requests are overbroad as claimed (which
TIBAR vehemently refutes as the subject requests are limited in scope and time as to the legal
representation of TIBAR and its principals). At such time, the WILLIAMS firm would be required
CASE NO.: 2008 CA 18070
to immediately file a privilege log, detailing such documents in conformance with Florida law or this
privilege would be waived. As the court is aware, Fla..R. Civ. .P. 1.280(b) requires production of
a privilege log in order to preserve a privilege. See, T.I.G. Insurance Corporation of America V.
Johnson, 799 So.2d 339 (Fla.4th DCA 2001); Kaye Scholer, LLP v. Zalis, 878 So.2d 447, 448 (Fla.
3° DCA 2008). Additionally, although the waiver of an attorney/client privilege and work product
privileges are not favored in Florida, this rule is mandatory and a waiver can be found by failure to
produce such privilege logs. See, Gossman v. Luzinski, 937 So.2d 293, 296 (Fla. 4" DCA 2006).
8 Based upon the issues se forth herein, undersigned counsel has communicated with
the WILLIAMS firm’s counsel in a good faith effort to resolve this dispute without the need for the
instant motion.. To date, despite these efforts, the WILLIAMS firm has failed to provide the subject
documents and materials regarding such a straightforward issue. TIBAR further submits that the
WILLIAMS firm’s unexplained failure to make such documents available is impeding the orderly
progress of discovery in this matter and is clearly prejudicial towards TIBAR’s interests.
WHEREFORE, TIBAR, LLC respectfully requests this honorable Court enter an Order
granting this Motion, compelling Defendant, WILLIAMS, PARKER, HARRISON, DIETZ &
GETZEN, P.A. to make such documents immediately available for inspection and copying, ordering
Defendant, WILLIA MS, PAR KER , HAR RIS ON, DIE TZ & GET ZEN , P.A. to pay TIB AR, LLC’ s
reasonable attorney’s fees and cost s asso ciat ed with the prep arat ion and brin ging of this Mot ion , and
for such further relief as this Court deems appropriate under the circumstances.
CERTIFICATE OF SERVICE
{1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
‘
CASE NO.: 2008 CA 18070
facsimile and U.S. Mail to: Lawrence P. Ingram, Esquire, Phelps Dunbar, LLP. 100 South Ashley
Drive, Suite 1900, Tampa, Florida 33602-5311, on this (— day of OSS 2009.
SEIDEN, ALDER, MATTHEWMAN & BLOCH P.A.
7795 N.W. Beacon Square Blvd., Suite #201
Boca Raton, FL 33487
Telephone: (561) 416-0170
Facsimile: (561) 416-017T
By:__
Wa M. Ald
orid 0. 850616
Andrew Seiden
Florida Bar No. 373672
W:\1219.001\Pleadings\M-Compel Docs(aal).wpd
Preview
t 3 IN THE CIRCUIT COURT OF THE 12™ JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CASE NO.: 2008 CA 18070 TIBAR, LLC, TERESA BASNIGHT and MICHAEL A. BASNIGHT Plaintiffs, VS. WILLIAMS, PARKER, HARRISON, DIETZ & GETZEN, P.A., JOHN MOORE, and TERRI COSTA, Defendants. iene aren re / WILLIAMS, PARKER, HARRISON, DIETZ & GETZEN, P.A. Ne mm el 1 Counter-Plaintiff, oo — Ad “Ty VS. ns 3 O “7 TIBAR, LLC, TERESA C2 and MICHAEL ae BASNIGHT Cc —_ A. BASNIGHT _—S YG Counter-Defendants. / PLAINTIFF’S, TIBAR, LLC, MOTION TO COMPEL CERTAIN DOCUMENTS OF DEFENDANT, WILLIAMS, PARKER, HARRISON, DIETZ & GETZEN, P.A. AND FOR SANCTIONS Plaintifff, TIBAR, LLC, (“TIBAR”) by and through its undersigned counsel and pursuant to the Florida Rule s of Civi l Proc edur e, here by files its Mot ion to Com pel Cert ain Doc ume nts of Defendant, WIL LIA MS, PAR KER , HAR RIS ON, DIE TZ & GET ZEN , P.A. (“th e WIL LIA MS firm ’’) and for Sanctions, in support thereof, states as follows: gg i u i t t i n o TT — —---—_ Y CASE NO.: 2008 CA 18070 l This is a lawyers professional liability action arising from a real estate transaction in which TIBAR acquired an office building and property in Venice, Florida. The WILLIAMS firm represented TIBAR’s interests in this transaction. 2 On October 2, 2009, TIBAR propounded its First Request for Production upon the WILLIAMS firm, seeking, inter alia, all documents maintained by the WILLIAMS firm regarding its legal representation of TIBAR in the subject transaction. 3 On November 2, 2009, the WILLIAMS firm provided its responses to this discovery, stating as respects requests nos. 1, 2, 11, 12, 13, 14 and 30: RESPONSE: Objection and limited response. This request is overbroad in time and seeks irrelevant documents. Additionally, the request is unlimited in scope and is therefore to broad for a reasonable response. Furthermore, the request seeks documents that are protected from disclosure by the attorney-client privilege and the work-product doctrine. Notwithstanding these objections and without waiving the same, WPHDG previously produced all non-privileged responsive documents for the relevant time period in its response to Plaintiff’s First Request for Production, served on December 22, 2008. Additional responsive documents, if any, will be produced at a mutually agreeable time and place. Discovery in this action is ongoing and WPHDG reserves the right to supplement these responses if and when appropriate. (Emphasis added) A copy of the WILLIAMS firm’s responses is attached as Exhibit “A” for the Court’s ease of reference. 4 TIBAR respectfully submits that Florida law is well settled that exists no lawye r/cli ent privi lege when a comm unic atio n is relev ant to an issue of breac h of duty by the lawy er to the client arising from the attorney/client relationship. See § 90.502(1), Florida Statutes; S & | Investments v. Pay Less Flea Market, Inc., 10 So.3d 699 (Fla. 4" DCA 2009). 5 Following this reasoning, in Del Prado v. Robert K. Estes, P.A., 532 So.2d 1101 (Fla. CASE NO.: 2008 CA 18070 3™ DCA 1988), the court held that no privilege existed to prevent the former client from discovering files from his attorney for use 1n a legal malpractice against the attorney. In finding in favor of the client, the court stated: The defendants responded by asserting that “the request is so broad, vague and ambiguous as to require production of work product and waiver of the attorney/client privilege between Defendants herein and their counsel”. However, as the defendants concede, there was absolutely no basis to claim any privilege against the former client in respect to papers created or acquired by the Defendants regarding the former clients’ workers compensation claim. Id. Similarly, as clearly indicated in the First Request for Production, all of the materials that TIBAR seeks, were obtained and maintained by the WILLIAMS firm as part of TIBAR’s legal representation. The WILLIAMS firm’s baseless privilege assertions, in an effort to prevent disclosure of these materials, is on its face without merit and TIBAR requests the production of such materials immediately so that discovery may proceed in an orderly fashion. 6 Regarding the work product privilege that was asserted by the WILLIAMS firm, for the reasons set forth above, TIBAR also states that such privilege cannot be applicable under these circumstances any such documents would have been developed in the course of the WILLIAMS firm’s representation of TIBAR, LLC. Thus, there can be no factual, much less legal, justification to withhold the production of these documents. 7 Although it cannot be deduced from the WILLIAMS firm’s response, if the WILLIAMS firm contends that the subject documents for which it is asserting a work product privilege pertains to work product created in the anticipation of the instant litigation, TIBAR requests that this honorable court determine whether TIBAR’s requests are overbroad as claimed (which TIBAR vehemently refutes as the subject requests are limited in scope and time as to the legal representation of TIBAR and its principals). At such time, the WILLIAMS firm would be required CASE NO.: 2008 CA 18070 to immediately file a privilege log, detailing such documents in conformance with Florida law or this privilege would be waived. As the court is aware, Fla..R. Civ. .P. 1.280(b) requires production of a privilege log in order to preserve a privilege. See, T.I.G. Insurance Corporation of America V. Johnson, 799 So.2d 339 (Fla.4th DCA 2001); Kaye Scholer, LLP v. Zalis, 878 So.2d 447, 448 (Fla. 3° DCA 2008). Additionally, although the waiver of an attorney/client privilege and work product privileges are not favored in Florida, this rule is mandatory and a waiver can be found by failure to produce such privilege logs. See, Gossman v. Luzinski, 937 So.2d 293, 296 (Fla. 4" DCA 2006). 8 Based upon the issues se forth herein, undersigned counsel has communicated with the WILLIAMS firm’s counsel in a good faith effort to resolve this dispute without the need for the instant motion.. To date, despite these efforts, the WILLIAMS firm has failed to provide the subject documents and materials regarding such a straightforward issue. TIBAR further submits that the WILLIAMS firm’s unexplained failure to make such documents available is impeding the orderly progress of discovery in this matter and is clearly prejudicial towards TIBAR’s interests. WHEREFORE, TIBAR, LLC respectfully requests this honorable Court enter an Order granting this Motion, compelling Defendant, WILLIAMS, PARKER, HARRISON, DIETZ & GETZEN, P.A. to make such documents immediately available for inspection and copying, ordering Defendant, WILLIA MS, PAR KER , HAR RIS ON, DIE TZ & GET ZEN , P.A. to pay TIB AR, LLC’ s reasonable attorney’s fees and cost s asso ciat ed with the prep arat ion and brin ging of this Mot ion , and for such further relief as this Court deems appropriate under the circumstances. CERTIFICATE OF SERVICE {1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via ‘ CASE NO.: 2008 CA 18070 facsimile and U.S. Mail to: Lawrence P. Ingram, Esquire, Phelps Dunbar, LLP. 100 South Ashley Drive, Suite 1900, Tampa, Florida 33602-5311, on this (— day of OSS 2009. SEIDEN, ALDER, MATTHEWMAN & BLOCH P.A. 7795 N.W. Beacon Square Blvd., Suite #201 Boca Raton, FL 33487 Telephone: (561) 416-0170 Facsimile: (561) 416-017T By:__ Wa M. Ald orid 0. 850616 Andrew Seiden Florida Bar No. 373672 W:\1219.001\Pleadings\M-Compel Docs(aal).wpd