Hamilton v. Citizens Property Insurance Corporation, Fla. 3rd DCA, 3D23-1934, May 1, 2024

The petitioner in this matter (the plaintiff below) sought certiorari review of a discovery order granting a motion for protective order filed below by the defendant. The order allowed the respondent (the defendant below) to designate as privileged any portion of the claim file’s contents, even those portions of the file relied upon by the witness during the corporate representative’s testimony.

The Third DCA quashed the Protective Order and ordered production of any documents relied upon by the corporate representative. The court reasoned the aforementioned portion of the order violated section 90.613 of the Florida Statutes (2023). The statute states: “[w]hen a witness uses a writing or other item to refresh memory when testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence.” Based on the statute, the Third District Court of Appeal concluded the party’s privilege objections are deemed waived when a party used documents to refresh the recollection of that party’s witness.