CAROL MIRANDO, Magistrate Judge.
Before the Court is Plaintiffs' Motion to Compel Production of Documents Found in Privilege Log or, in the Alternative, an In Camera Inspection of Documents Found in Privilege Log (Doc. 172, "Motion to Compel"),
Plaintiffs Stacey Sue Berlinger, Brian Bruce Berlinger and Heather Anne Berlinger, beneficiaries to the Rosa B. Schweiker Trust and all of its related trusts, filed a three-count Second Amended Complaint (Doc. 93) against Wells Fargo, corporate co-trustee of the trusts. Plaintiffs bring claims for breach of trust, breach of fiduciary duty and civil theft. Id. A review of the docket reveals that this case was stayed for a period of time, and the most recent Case Management and Scheduling Order was issued on February 13, 2014. Doc. 141. The parties' discovery deadline is October 31, 2014, and the case is set for trial during the March 2, 2015 trial term.
Plaintiffs move for an order compelling production of 16 pages of documents identified on Defendant's privilege log as protected by the attorney-client privilege and work product doctrines, which was provided to the Plaintiffs on March 9, 2012 in response to Plaintiffs' request for production. Doc. 172-1. Plaintiffs claim that the need for these documents was not known until the May 15, 2014 deposition of Linda La Vay ("La Vay"), the trust advisor with Wells Fargo who administered the trusts at issue in this case (Doc. 179), and the May 16, 2014 deposition of Bernard Destafney ("Destafney"), regional managing director with Wells Fargo (Doc. 170).
Defendant's privilege log asserts both attorney-client and work product
Florida law governs the application of the attorney-client privilege in diversity actions such as this that raise no federal question. Palmer, 2006 WL 2612168, at *2. The attorney-client privilege protects communications between a client and attorney made in confidence for the purpose of securing legal advice or assistance. S.E.C. v. Dowdell, 2006 WL 3876294, at *3 (M.D. Fla. May 15, 2006) (citing Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. 1994)). The party invoking attorney-client privilege must prove, as an initial matter, that "an attorney-client relationship existed and that the particular communications were confidential." United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). For the privilege to apply, the communications must be shown to be made to an attorney confidentially, in the attorney's professional capacity, "`for the purpose of securing legal advice or assistance.'" Id. (quoting United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973)). The attorney-client privilege only extends to confidential communications whose primary or predominate purpose is to seek or provide legal advice or assistance. See, e.g., Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684 (S.D. Fla. 2009) (privilege does not extend to communications with an attorney related solely to business advice).
These documents, as stated on the privilege log, surround the purchase of and capital improvements to a one-third interest in property at 527 Banyan Blvd., Naples, Florida by the Rosa Schweiker Trust at the request of co-trustee Bruce Berlinger. On February 19, 2014, in response to Plaintiffs' interrogatories, Defendant answered that La Vay was involved in the purchase of a one-third interest in the property. Doc. 172 at ¶ 13. La Vay testified at her deposition on May 15, 2014, however, that she was not a part of the approval process for that investment decision. Doc. 179 at 72:2-7; 77:11-15. Plaintiffs argue that they need these documents to further question La Vay on the full extent of her knowledge regarding the property and for impeachment purposes. Doc. 172 at ¶ 38.c.
Based upon its review of these Committee Action Forms, the Court finds that it can adequately protect Wells Fargo from any invasion of the attorney-client privilege while also allowing Plaintiffs to obtain otherwise relevant, discoverable information by ordering production in a redacted form. Wells Fargo shall redact the last sentence of the "Supporting Information" sections on pages WF-PRIV00001 and WF-PRIV00004. Otherwise, the information in the document is not attorney-client communication.
As described by Defendant in the privilege log, this document is the minutes of the Trust Administration Committee Ad Hoc Meeting regarding a discretionary distribution of the Frederick Berlinger Martial Trust. Doc. 172-1. The Court finds that there are no attorney-client communications in the document made for the purposes of seeking legal advice that would be protected by the privilege. Therefore, Wells Fargo shall produce WF-PRIV00005.
These email chains involve a discussion of the purchase of certain property by the trusts. The Court notes that Defendant's privilege log specifically states that Alan Hilfiker, an attorney, is one of the authors/recipients on document WF-PRIV00050-00056, and the Court finds that the communication to Mr. Hilfiker contained within the document was for the purpose of obtaining legal advice. Thus, this information is not discoverable. The remainder of the document, however, does not contain attorney-client communications made for the purposes of seeking legal advice. The Court finds that it can adequately protect Wells Fargo from any invasion of the attorney-client privilege while also allowing Plaintiffs to obtain otherwise relevant, discoverable information by ordering production in a redacted form. Wells Fargo shall produce the document but redact the emails to Mr. Hilfiker on pages 00050, 00051 and 00055.
With regard to WF-PRIV00057-00060, the Court finds that this document does not contain communications between a client and attorney for the purpose of securing legal advice and must be produced in its entirety.
With regard to WF-PRIV00061-00064, the Court finds that the document contains both communications to counsel for the purpose of seeking legal advice and legal advice from Wells Fargo's Vice-President and Assistant General Counsel, Catherine McKnight, Esq. Some of the document, however, does not contain attorney-client communications made for the purposes of seeking legal advice. The Court finds that it can adequately protect Wells Fargo from any invasion of the attorney-client privilege while also allowing Plaintiffs to obtain otherwise relevant, discoverable information by ordering production in a redacted form. Wells Fargo shall produce the document but redact the email copying Ms. McKnight on pages 00061-62 and the email from Ms. McKnight on page 00061.
Finally, the Court notes that Plaintiffs have moved for an extension of the discovery deadline in part because they desire to reopen the depositions of La Vay and Destafney in the event that the Motion to Compel is granted. Doc. 201. This Order makes no findings as to the propriety of reopening the depositions, and is limited to ruling on a discovery dispute that has arisen during the course of discovery.
ACCORDINGLY, it is hereby
1. Plaintiffs' Motion to Compel Production of Documents Found in Privilege Log or, in the Alternative, an In Camera Inspection of Documents Found in Privilege Log (Doc. 172) is
2. On or before
3. The Clerk is directed to
This argument was previously rejected by the Court wherein the Court found that there was no attorney-client relationship between Plaintiffs and Amy Rubin, attorney for Wells Fargo, in the prior divorce proceeding. Doc. 58 at 7.