Jeffrey P. Gale, P.A. // Protecting Privacy and Privilege Rights in Non-Party Requests for Documents

In just about every personal injury and workers’ compensation case, the defense will seek the production of records from non-parties to the suit. The typical non-party targets are medical providers and insurance companies. In most instances, the records sought were not generated in connection with the subject case. The defense is looking for records of preexisting medical conditions and prior legal claims.

Florida’s discovery rules are liberal. FRCP 1.280(b) provides as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery isas follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Albeit broad, the rules are not boundless. In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997), a wrongful death case, petitioner objected to defendant’s request for decedent’s psychiatric and psychological records, stating that the medical records were confidential and that the request was overbroad. The DCA decided that the records might be relevant to the issue of damages but disagreed with the court’s order allowing “carte blanche investigation of decedent’s entire mental health history.” Russell at 745. The court explained that “Even though the rules of civil procedure allow for broad discovery, the discovery must be confined to matters admissible or reasonably calculated to lead to admissible evidence in the case.” Russell at 745, citing East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276, 1277 (Fla. 5th DCA 1982). The trial court order allowing carte blanche discovery was quashed and the matter was remanded for an in camera review of the records.

A party desiring records from a non-party must follow the procedures outlined in FRCP 1.351(b). The timeline part of the Rule reads as follows:

A party desiring production under this rule shall serve notice as provided in Florida Rule of General Practice and Judicial Administration 2.516 on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery or e-mail and 15 days before the subpoena is issued if the service is by mail.

The reason for the delay in issuing the subpoena is to give the other parties in the case time to object. The procedure for objecting and the consequence of same are set forth in 1.351(b) as follows:

If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).

Typical grounds for objection are privacy and privilege rights. The right to the privacy of medical records is guaranteed by the Florida Constitution. See State v. Johnson, 814 So. 2d 390 (Fla. 2002) (citing art. I, 23, Fla. Const). While the most well-known privilege is the attorney-client privilege — its parameters are set forth in section 90.502, Florida Statutes — Florida law recognizes numerous other privileges:

90.5015 Journalist’s privilege.

90.5021 Fiduciary lawyer-client privilege.

90.503 Psychotherapist-patient privilege.

90.5035 Sexual assault counselor-victim privilege.

90.5036 Domestic violence advocate-victim privilege.

90.5037 Human trafficking victim advocate-victim privilege.

90.504 Husband-wife privilege.

90.505 Privilege with respect to communications to clergy.

90.5055 Accountant-client privilege.

90.506 Privilege with respect to trade secrets.

In my experience, it is more difficult to pierce privileges than it is to obtain medical records and other non-privileged material such as might be within an unrelated legal claim file. For example, to pierce a privilege more is required than merely showing that the material is admissible or reasonably calculated to lead to admissible evidence. That aside, when a 1.351(b) objection is made, the party seeking the records may proceed pursuant to Rule 1.351(d):

Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.

(Rule 1.310 authorizes the taking of depositions. The non-party subpoenas are usually issued to records custodians, meaning it will be a records custodian who will have the records and testify.)

This is where things get murky.

When the notice of intent to subpoena non-party records is served, the party receiving the notice usually does not have the records. When this is the case, it is virtually impossible for the party opposing the production to obtain, review, and prepare particularized objections to the records all within 10 days. Moreover, “there is no provision under Rule 1.351 for a privilege log.” Lyons v. Lyons, 162 So.3d 212, 215 (Fla. App. 2015).

When an objection based on privacy and privilege is made to the production of documents, whether from a party or a non-party, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable. See Stok v. Turnberry 12G, LLC, 275 So.3d 772 (Fla. 3^rd DCA 2019) (The court quashed an order allowing subpoenas seeking medical records); Lyons v. Lyons, 162 So. 3d 212 (Fla. 4^th DCA 2015); Patrowicz v. Wolff, 110 So. 3d 973, 974 (Fla. 2d DCA 2013) (citing Snyder v. Value Rent-A-Car, 736 So. 2d 780, 782 (Fla. 4th DCA 1999)); and Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997). However, since the filing of the 1.351(1) objection prevents issuance of the subpoenas until a ruling is made, the court is also unlikely to have the records before it during the 1.351(d) hearing.

Lyons v. Lyons, 162 So.3d 212 (Fla. App. 2015) fashioned a solution to the quandry:

We recognize that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log, which might reduce the number of documents upon which the privilege is asserted and thus the burden on the trial court. We do not interpret the rule, however, as leaving the court with the obligation of reviewing all documents without a method of isolating those documents upon which a privilege could be claimed. Nor do we conclude that a deposition of the non-party is required, although we also think that the trial court could require the requesting party to resort to a deposition of the non-party with production of documents at the deposition.

The trial court has discretion to fashion a process to deal with the production of the documents, and it did in this case. After the filing of this petition, the trial court considered a motion for protective order from the accountant and entered an order providing a procedure for the accountant to gather the documents sought by the subpoena. Thereafter, petitioners would be entitled to review the documents to segregate those they claimed were privileged. The court would hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary. This procedure is sufficient to protect privileged documents.

Lyons at 215-216.

In workers’ compensation OJCC Case No. 23-002107, JCC Daniel Lewis entered this thoughtful order in response to the Claimant’s Objections to Subpoenas Duces Tecum/Records Custodian Depositions:

In view of the claimant’s objection, the employer/carrier may schedule the depositions of the records custodians. Russell vs. Stardust Cruisers, Inc., 690 So. 2d 743, 744 (Fla. 5th DCA 1997) (holding that Rule 1.351 is self-executing and an objection requires that a deposition of the records custodian be taken in order to obtain the requested documents). Since the claimant is objecting to the employer/carrier’s Subpoenas/Notices of Production from Nonparties, claimant’s counsel can attend the depositions, review the records before they are produced to the employer/carrier, and raise objections if the claimant believes the records contain information that is protected or not within the scope of permissible discovery. Any records to which an objection is interposed shall then be sealed by the court reporter and submitted to me for in camera inspection or review, along with the deposition transcript which indicates the record, or portion thereof, to which the claimant is objecting as well as the basis for the objection. It is not the province of the undersigned to speculate as to which records, or portions thereof, the claimant may consider objectionable nor to guess as to the basis of any objection which the claimant may interpose At the time of the in camera inspection, I will determine whether the objection should be sustained or overruled.

In the alternative, counsel may agree on a different procedure whereby the employer/carrier shall afford claimant’s counsel the opportunity to review the medical records received in response to the subpoenas prior to review by the employer/carrier. Should claimant’s counsel interpose an objection to any records, those records shall be sealed and submitted to the undersigned for an in camera inspection without review by the employer/carrier. Any records so submitted shall be accompanied by a Motion which specifies the nature of the claimant’s objection as well as the basis therefor. This is merely one example of an alternative procedure. Counsel are free to agree upon a different procedure, including the scheduling of the depositions via Zoom and the production of the records to claimant’s counsel in advance of the deposition.

The above procedure will allow the employer/carrier to take its discovery and also preserve the claimant’s objections for determination prior to the actual disclosure of the objected to records. See Scully vs. Shands Teaching Hospital, 128 So. 3d 986 (Fla. 1st DCA 2014) (holding that the trial court departed from the essential requirements of the law by failing to conduct an in camera review to limit disclosure of medical records to those relevant to the litigation).

What happens when a court overrules the 1.351(b) objections without performing an in camera review or outlining detailed instructions like those in the Order above? I am facing this now in a case. I can’t figure out if the court is a step ahead of me and entered the order requiring me to make objections, if any, during the 1.310 records custodian depositions now scheduled, thereafter performing an in camera review based on those objections, or if the ruling is simply a flat-out denial with no intention of ever performing the in camera review. I am proceeding as if it is the former. Opposing counsel seems to think it’s the latter. If she is right and the documents are produced and reviewed by her and her people without a court ruling following an in camera review, this could put the lawyer in legal peril. I have provided the lawyer with the Lyons citation and a copy of Judge Lewis’s Order, and asked that I be given the opportunity before or during the depositions to review the records privately to determine if I have any objections. In the alternative, I have indicated that I have no objection to all of the records being sent to me or the court in accordance with the procedure outlined in Lyons without having to bother deposing the records custodians.

This could be handled easily. It is not my intention to keep relevant records from the defense, only non-relevant records that are not reasonably calculated to lead to admissible evidence in the case. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997). I say produce the records and let the judge be the final word on what the other side should and should not be allowed to see. Opposing counsel does not seem agreeable to any of my reasonable approaches, seemingly taking the position that she and her people are allowed to see private records without restraint.

We shall see what happens.

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