Vault Reciprocal Exchange v. Luria, et al., 2024 WL 948632 (Fla. 3rd DCA 2024)

During discovery, Vault Reciprocal Exchange responded to Luria’s request for production and preemptively filed a privilege log, which objected to the production of various documents as work product. Thereafter, Luria moved to compel all documents listed on the privilege log which pre-dated the filing of the lawsuit.

The Third District Court of Appeals concluded the withheld documents were created after Lurias “tendered their claim” and, as such, may be deemed to have been prepared in anticipation of coverage litigation. See, Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905 (Fla. 3d DCA 2004); Avatar Prop. & Cas. Ins. Co. v. Mitchell, 314 So. 3d 640, 642 (Fla. 3d DCA 2021); Avatar Prop. & Cas. Ins. Co. v. Flores, 320 So. 3d 840, 843 (Fla. 2d DCA 2021). “In the insurance context, a document may be deemed to have been prepared in anticipation of coverage litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced.” See, Kaufman.

Further, since Luria failed to show they have a need for the materials in preparation of the case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means, the trial court could not compel the production of the requested documents. Fla. R. Civ. P. 1.280(b)(4).