FORT LAUDERDALE BUSINESS LITIGATION: PRIVILEGED FEE RECORDS

A litigant cannot generally obtain its adversary’s attorney’s fee records pre-trial because those records are privileged. Tumelaire v. Naples Ests. Homeowners Ass’n, Inc., 137 So. 3d 596 (Fla. 2d DCA 2014) (“As to the information on the fee arrangement between Tumelaire and her attorney, this information is indeed protected by attorney-client privilege.”). Courts have determined that the “identity of a client and payment of a fee appear to be within the ambit of the statutory privilege and are not expressly or impliedly excluded exceptions.” Corry v. Meggs, 498 So.2d 508 (Fla. 1st DCA 1986). Therefore, “such matters are intended to be confidential and do constitute confidential communications” under the attorney client privilege. Courts will likely reverse order requiring the disclosure of attorney’s fee records pre-trial. Tumelaire, 137 So. 3d 596 (We “conclude that the court in this case departed from the essential requirements of the law by ordering the information on Tumelaire’s attorney’s fees to be disclosed to the HOA.”). The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Post-trial, attorney’s fee records can be obtained in discovery if there is an attorney’s fee dispute between the parties. Courts are provided broad discretion to require the exchange of attorney’s fee records when the parties are litigating the amount of attorney’s fees to be provided to the prevailing party. Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005) (concluding that, where relevant, the discovery of the billing records of opposing counsel is best left to the sound discretion of the trial court). Courts allow this information to be exchanged during fee disputes because the information is “relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested.” Paton v. GEICO General Ins. Co., 190 So.3d 1047 (Fla. 2016). “The hours expended by the [opposing] attorneys… will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the [opposition w]as unreasonable.” However, the court does not have carte-blanche power to require all information in billing records be turned over to the opposing side. Litigants can still claim privilege over certain information disclosing mental impressions of the case and opinions of their counsel. Finol v. Finol, 869 So.2d 666 (Fla. 2d DCA 2004) (“If th[e] billing information contained descriptions of services rendered which would reveal the mental impressions and opinions of counsel, that information should be redacted as privileged.”).

A party seeking another’s billing records in conjunction with a fee dispute can overcome some privilege claims if the party opposing disclosure claims work product privilege and the requesting party has sufficient need. This is because the work-product privilege is not absolute. Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981). (“[W]ork product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.”). However, demonstrating the need required to overcome a work product privilege claim is difficult and does not usually happen. Butler v. Harter, 152 So.3d 705 (Fla. 1st DCA 2014) (“The respondent has failed to demonstrate a ‘need of the materials in the preparation of [her] case and that [she] is unable without undue hardship to obtain the substantial

equivalent of the materials by other means,’ as required by rule 1.280(b)(4) in order to obtain work product.”).

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.