Opinion
No. 2D20-2901
06-11-2021
MAJAB DEVELOPMENT, LLC, a Florida Limited Liability Company, Petitioner, v. PETRO WELT TRADING GES.M.B.H, an Austrian Limited Liability Company; Petro Welt Technologies AG, an Austrian Stock Corporation; Trading House Katoil LLC, a Russian Limited Liability Company ; Katkoneft LLC, a Russian Limited Liability Company ; Katobneft LLC, a Russian Limited Liability Company ; and Katoil-Drilling LLC, a Russian Limited Liability Company, Respondents.
Petition for Writ of Certiorari to the Circuit Court for Collier County; Elizabeth V. Krier, Judge. Gary M. Carman and Richard F. Danese of GrayRobinson, P.A., Miami; and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland, for Petitioner. Richard G. Salazar and Chance Lyman of Buchanan, Ingersoll & Rooney, P.C., Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb, LLP, Los Angeles, California, for Respondents.
Petition for Writ of Certiorari to the Circuit Court for Collier County; Elizabeth V. Krier, Judge.
Gary M. Carman and Richard F. Danese of GrayRobinson, P.A., Miami; and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland, for Petitioner.
Richard G. Salazar and Chance Lyman of Buchanan, Ingersoll & Rooney, P.C., Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb, LLP, Los Angeles, California, for Respondents.
KHOUZAM, Chief Judge.
Majab Development, LLC, a defendant below, has filed a petition for writ of certiorari seeking to quash an order granting in part a motion by the plaintiffs, Petro Welt Trading Ges.m.b.H and other associated entities (collectively, "Petro"), to compel the deposition of Majab's corporate representative. We grant the petition only to the limited extent that the trial court overruled certain privilege objections raised by Majab without any accompanying findings or analysis. Otherwise, the petition is denied.
BACKGROUND
Petro has sued Majab and Edward Brinkmann, Majab's sole manager and employee, alleging a complex international scheme dating back more than a decade. Petro raises a variety of claims including fraud, conversion, civil theft, and civil RICO violations. In connection with Majab's corporate representative's deposition, various disagreements arose regarding the adequacy of its designee's preparation and certain privilege objections by Majab. Petro thereafter filed a motion to compel, asserting that Majab's representative was unprepared to testify as to a number of noticed topics and that Majab's counsel had raised inappropriate privilege objections and instructions not to answer. As relevant here, Petro's motion asked the court (I) to compel Majab to produce a corporate representative who was adequately prepared to testify as to the designated areas of inquiry and (II) to overrule certain privilege objections.
The identified privilege objections fell into two categories. First, Petro claimed Majab had improperly asserted privilege objections regarding nonprivileged factual information and documents that had been provided to the corporate representative by counsel or accountants. Second, Petro claimed Majab had improperly asserted a privilege over communications that occurred in the presence of a third party—Mr. Brinkmann's mother (Mrs. Brinkmann).
After a hearing, a magistrate judge entered a recommended order finding that Majab's corporate representative "appeared to be unprepared to testify on several topics," and "[i]n fact, ... could not answer basic questions" on some topics. The magistrate also found that Majab's counsel had "instructed [the corporate representative] not to answer a number of questions during the deposition citing privilege grounds because documents were given to [her] by [Majab]'s counsel or accountant."
The magistrate recommended granting Petro's motion. On the adequacy of preparation, she recommended ordering Majab to "produce a corporate representative adequately prepared to testify as to the designated areas of inquiry." And she made a blanket recommendation to overrule all of Majab's privilege objections identified by Petro, without differentiating between them. Majab thereafter filed exceptions to the recommended order, but after another hearing, the trial court largely denied Majab's exceptions and adopted these rulings. At no point in these hearings or orders did the magistrate or the trial court specifically address the privilege objections regarding communications allegedly disclosed to Mrs. Brinkmann.
ANALYSIS
The order on review contains two relevant rulings. First, it directs Majab to produce a corporate representative who is adequately prepared to testify about Petro's noticed areas of inquiry. Second, it overrules each of Majab's privilege objections specifically addressed in Petro's motion.
With respect to the former, we conclude that Majab has not established entitlement to certiorari relief and decline to quash that ruling without further comment. The same is true for the decision to overrule the category of Majab's privilege objections for documents or information funneled through counsel or accountants. However, because the court never specifically addressed the privilege objections for communications allegedly disclosed to Mrs. Brinkmann before making a blanket ruling overruling all of the privilege objections challenged by Petro, we quash the order to the limited extent it overrules this discrete category of privilege objections.
"[R]eview by certiorari is 'appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.' " Morgan, Colling & Gilbert, P.A. v. Pope , 798 So. 2d 1, 2 (Fla. 2d DCA 2001) (quoting Allstate Ins. Co. v. Langston , 655 So. 2d 91, 94 (Fla. 1995) ). Ordering discovery of privileged material is commonly recognized as establishing irreparable harm for the purpose of obtaining certiorari relief. E.g. , Progressive Am. Ins. Co. v. Herzoff , 290 So. 3d 153, 156 (Fla. 2d DCA 2020) (acknowledging that discovery of "cat out of the bag" material "satisfies the jurisdictional requirements for certiorari relief").
Further, "[i]t may be a departure from the essential requirements of the law when the trial court requires production of documents—without explanation—despite objections that statutory protections apply." Harborside Healthcare, LLC v. Jacobson , 222 So. 3d 612, 616 (Fla. 2d DCA 2017) (citing Bartow HMA, LLC v. Kirkland , 171 So. 3d 783, 785 (Fla. 2d DCA 2015) ); see also E. Bay NC, LLC v. Estate of Djadjich by and Through Reddish , 273 So. 3d 1141 (Fla. 2d DCA 2019) (same). "That is, where the trial court fails to specifically address whether claimed statutory privileges apply, leaving this court 'to guess at the basis for the discovery of each document' and as to whether the trial court even considered the objection, certiorari relief may be warranted." Harborside , 222 So. 3d at 616 (quoting Kirkland , 171 So. 3d at 786-87 ).
Here, unlike Majab's objections regarding information and documents received from accountants or counsel, neither the trial court's order nor the magistrate's recommendation that it adopted contains findings or analysis regarding the discrete category of privilege objections for communications allegedly disclosed to Mrs. Brinkmann. Nor did the judge or magistrate ever expressly address this request at the hearings. Consequently, the order "leave[s] this court to guess as to whether the trial court even considered the statutory objections raised by" Majab before overruling them. Estate of Djadjich , 273 So. 3d at 1145 (citing Harborside , 222 So. 3d at 616 ).
In the narrow context of this case—particularly where Majab's corporate representative deposition has yet to be completed and it is unclear whether Majab's counsel also represents Mrs. Brinkmann—overruling this category of privilege objections without any findings or analysis warrants certiorari relief. We accordingly quash the order only to the extent its blanket ruling on the privilege objections challenged by Petro includes those regarding conversations in the presence of Mrs. Brinkmann.
Whether the facts of this case establish a waiver of that statutory privilege is a question for the trial court in the first instance that is not resolved by the limited record in this certiorari proceeding.
Petition denied in part and granted in part.
MORRIS and SMITH, JJ., Concur.