Petzold v. Castro

Second DCA

Petzold v. Castro
2nd DCA
6/16/23, Judge Khouzam

Topics: Attorney-Client Privilege; Discovery; Writ of Certiorari

Mr. and Mrs. Castro moved to compel discovery from the Petzolds. The underlying litigation involved claims for breach of contract for sale of real property and fraud in the inducement. As part of the Petzold’s summary judgment motion, they included an email between Mr. Castro and the Petzold’s former attorney (Attorney Overfield) and then a follow-up between Ms. Petzold and Attorney Overfield and the attorney’s conversation with Ms. Castro and advice about the timing of mediation and related litigation strategy. The email did not address the substance of the case.

In response, the Castros sought in discovery copies of all emails between the Petzolds and Attorney Overfield or her office, all communications with the Petzold’s current attorney (Attorney Sellars), and all communications with any other attorney regarding the case. The Petzoids, of course, objected based on attorney-client privilege, but the Castros responded that the Petzoids waived all attorney-client privilege with respect to the entire case by including the emails from their former attorney as summary judgment exhibits. The Castros added that the Petzoids could not claim that the disclosure was inadvertent because they never asserted privilege under Rule 1.285(a) for inadvertently disclosed attorney-client privileged materials and they had used the email as an exhibit.

The current attorney, Attorney Sellars, took full responsibility and stated that his clients had not instructed him to use the email and that it was inadvertently included because it had nothing to do with the claims in the case and was not being relied on as evidence. He did not use the Rule 1.285 process to try to protect the inadvertently disclosed email because he said he did not care about the material that was actually disclosed. There was nothing harmful in the email, and he did not think it would open the door to an attempt to compel further non-disclosed communications.

The trial court granted the motion to compel, and the Petzoids filed a petition for a petition for writ of certiorari. The DCA recited the test of 1) harm that causes a) material injury throughout the remainder of the proceedings below that b) cannot be effectively remedied on appeal and 2) that the trial court’s order constitutes a departure from the essential requirements of law.

The DCA agreed that an order compelling disclosure of privileged material meets the test for irreparable harm. The DCA also agreed that the order to compel departed from the essential requirements of law based on the findings that the disclosure was 1) inadvertent; 2) it was only a single email; 3) and the email bore upon no substantive issues in the case. Under such circumstances, the waiver could not be seen as voluntary. Inadvertent disclosure does not constitute a waiver of attorney- client privilege.

The DCA recognized that Rule 1.285(a) provides only 10 days to assert protection over inadvertently disclosed privileged material, but the only thing forfeit here was the privilege over the single disclosed email, not other non-disclosed emails.

The “selective disclosure” doctrine forbidding parties from disclosing the privileged stuff that helps their case (a metaphorical sword) and then hiding behind privilege (a metaphorical shield) to decline to disclose privileged material that may rebut the disclosed materials or otherwise harm their case does not apply because the disclosed email “does not pertain to any substantive issue in the case, and—unsurprisingly—the Petsolds did not rely on it in any way. Under these circumstances, it cannot be said that its disclosure was self-serving or that the privilege was being used as a sword.” The petition was GRANTED, and the discovery order was QUASHED. 092253_i.pdf

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
PDF Version

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