TRUSTS: FAMILY TRUST: CIVIL PROCEDURE: DISCOVERY: NOTICE OF PRODUCTION FROM NON-PARTY: UNDER AMENDMENT TO FLA. R. CIV. P. 1.510, AN OBJECTION TO A NOTICE OF PRODUCTION FROM NONPARTY IS NOT SELF EXECUTING, BUT THE TRIAL COURT MAY BE REQUIRED TO CONDUCT AN IN CAMERA INSPECTION OF DOCUMENTS CLAIMED TO BE PRIVILEGED: PRIVILEGE LOG NOT REQUIRED UNDER RULE 1.510 BUT COURT MAY FASHION PROCEDURAL SAFEGUARDS FOR PRIVILEGED MATERIALS: APPEALS: CERTIORARI: AS A GENERAL RULE, CERTIORARI WILL NOT BE USED TO ADDRESS IRRELEVANT AND OVERLY BROAD DISCOVERY REQUESTS, AND PETITIONER FAILED TO MAKE A SHOWING THAT EITHER OBJECTION APPLIED

Lyons v. Lyons, ___ So. 3d ___, 40 Fla. L. Weekly D383 (Fla. 4th DCA February 11, 2015)

During litigation among the members of a family trust, a notice of production from nonparty was served upon the accountant for the trust. The petitioners objected to the notice based upon privilege, overbreadth, and irrelevance. Although the petitioners contended that their objection was self executing and relegated the respondents to deposing the accountant, the trial court overruled their objections and disregarded their request for an in camera inspection. The petitioners responded by filing a petition for certiorari. After the subpoena for production from non party was issued, the accountant moved for a protective order, and the trial court developed safeguards to protect privileged documents. Although an objection under Fla. R. Civ. P. 1.510 may have been self executing when the rule was originally adopted, the rule was amended in 2008 to provide, “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,” which provides for depositions upon oral examination. Nevertheless, the trial court still may be required to conduct an in camera inspection if a privilege objection is raised. Although Rule 1.510 does not require the objecting party to file a privilege log, “[t]he trial court has discretion to fashion a process to deal with the production of the documents, and it did in this case.” After the “accountant . . . gather[ed] the documents sought by the subpoena,” the “petitioners would be entitled to review the documents to segregate those they claimed were privileged. The [trial] court would hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary. This procedure [was] sufficient to protect privileged documents.” As a result, the court “denied as moot [the petition] insofar as it [sought] to prevent production of privileged documents without in camera inspection.” The court dismissed the petition insofar as it sought relief based upon overbreadth and irrelevance because the court usually will not exercise its certiorari jurisdiction to review those objections, and the petitioners in this case failed to show “that the records [were] irrelevant or burdensome to produce.”

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