A Florida appellate court has issued a ruling regarding whether Section 57.105 entitles a defendant to receive privileged information in litigation. In 2013, the plaintiff in the lawsuit filed an action against the defendant based on Florida’s dog bite legislation, alleging that the plaintiff’s child suffered injuries inflicted by the defendant’s dog at a party located at the defendant’s home.
According to Florida’s dog bite law, the owner of a dog that bites another individual will be held liable for the victim’s injuries and damages. The law further states that when the owner displays a sign in a prominent location that bears the words “Bad Dog,” the dog owner will only be held liable if the victim suffered injuries as the result of a negligent act or omission by the owner.
In response to the lawsuit, the defendant then filed a motion for attorney’s fees, alleging that he had displayed a sign containing the words “Bad Dog” and that he did not act negligently at the time of the bite. The defendant filed the motion 21 days later. The plaintiff then voluntarily dismissed the lawsuit, and the defendant filed another motion under 57.105. This motion sought approval from the court to conduct a deposition to determine whether the plaintiff’s lawyer had filed the action in good faith.
The lower court granted this motion and compelled the plaintiff’s lawyer to provide any photos or other evidence that served as the basis for initiating the litigation. In support of its ruling, the lower court referred to a case from the Florida Supreme Court, holding that motions under section 57.105 can survive the dismissal of the case. The plaintiff challenged the lower court’s order and sought review from a higher court, arguing that section 57.105 only grants the lower court authority to determine whether attorney’s fees are appropriate following a voluntary dismissal of the action. The plaintiff argued that precedent and the interpretation of the statute did not allow for the lower court to grant additional discovery.
According to the appellate court, a lower court can look at more than whether or not a party is entitled to attorneys’ fees following a voluntary dismissal, and the lower court can consult the record and conduct an evidentiary hearing when required. The court was careful to caution, however, that the hearing would not entitle the defendant to access any privileged information between her and her counsel that falls within the attorney-client privilege doctrine.
Applied to the present case, the plaintiff failed to raise any issues regarding the role of the attorney-client privilege or work product protection doctrines, and the lower court did not rule on whether the information requested by the defendant was subject to such protections. Accordingly, the appellate court deemed the lower court’s order a preliminary ruling allowing discovery of the information and stated that the plaintiff and her counsel could assert discovery protections prior to any deposition.
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