AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., ___ So. 3d ___, 40 Fla. L. Weekly D704 (Fla. 2d DCA March 20, 2015)
The plaintiff in a mortgage foreclosure sued twenty-five limited liability companies and an individual. The plaintiff dismissed the individual and subpoenaed his communications with the LLC’s. When the trial court overruled the LLCs’ objection to production of numerous emails based on the attorney-client privilege, the appellate court granted the LLCs’ petition for certiorari. The appellate court concluded that the trial court departed from the essential requirements of law by ruling that the joint defense privilege did not apply without conducting an in camera inspection. The absence of a written agreement between the LLCs and the former defendant did not mean that the joint defense privilege was inapplicable. “If an in camera review were to reveal that the LLCs and [the former defendant] intended to maintain confidentiality while sharing information in pursuit of their common interests, the LLCs would be entitled to protect the communications by asserting the attorney-client privilege. Thus, review [was] necessary to resolve the privilege claim unless the privilege was otherwise waived.” The privilege was not otherwise waived by communications to an investment advisor for a member of one of the LLCs because “the member submitted an affidavit stating that she did not use email and that the investment advisor acted as her agent for communications about the lawsuit.” “In light of the affidavit, the use of the third party’s email address . . . present[ed] a question for the circuit court’s determination; it d[id] not automatically foreclose the claim of privilege.”
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