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Florida Second DCA rules that party was under no duty to prepare privilege log until after all non-privilege objections to discovery request were resolved

On March 13, 2020, in Avatar Property & Casualty Insurance Company v. Jones, No. 2D19-243, the Florida Second DCA quashed a trial court order requiring an insurance company to produce an investigator’s photos in response to a discovery request in a homeowner’s insurance coverage dispute. The trial court had compelled production of the photographs despite the insurance company’s assertion of work product privilege because the insurance company had failed to submit a privilege log. The Second DCA concluded that the trial court erred because at the time of the hearing another of the insurance company’s objections to the discovery, based on overbreadth, was still pending before the court. Although this issue was resolved by the parties at the hearing, the Second DCA concluded that the pendency of the issue prior to the hearing made the requirement of a privilege log premature. The Second DCA cited its previous decision in Morton Plant Hosp. Ass'n. v. Shahbas, 960 So. 2d 820, 826 (Fla. 2d DCA 2007), recognizing that the obligation to file a privilege log does not arise until the information is determined to be "discoverable"—which is after the trial court has ruled on the party's non-privilege discovery objections.

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