*1 This cause is before the Special Master on Counterclaim Defendants’ Motion to Compel (the “Motion to Compel”; Doc 214) with respect to the Counterclaim Plaintiff's December 23, 2019 Privilege Log. (the “Privilege Log”; Doc. 214-1) The Counterclaim Plaintiff filed a response to the Motion to Compel (the “Response”; Doc. 226). With the Response, the Trust filed various documents (Docs. 226-1 through 226-6) including a Declaration of Dina Klempf Srochi (Doc. 226-1) and a Declaration of James H. Post. (Doc. 226-2)

This cause is also before the undersigned on the Counterclaim Defendants’ Motion to Strike Supplemental Declaration of Dina Klempf Srochi (the “Motion to Strike”; Doc. 232) and the Counterclaim Plaintiff's response thereto. (Doc. 238)

On November 7, 2019, the Court, pursuant to Federal Rule of Civil Procedure 53, appointed the undersigned as Special Master for the purpose of overseeing discovery in this matter. (Doc. 179)

The undersigned held hearings on the matters addressed in this Order on February 18 and March 13, 2020. (Docs. 224, 233) Counsel for each of the parties appeared at the hearings and argued their respective positions.

During discovery in this case, the Counterclaim Defendants (the “Foodonics Parties”) served their First Request For Production of documents on the Counterclaim Plaintiff (the “Trust”). The Trust responded to the request for production and ultimately produced 892 documents on September 30, 2018 and an additional 27 documents on or about July 2, 2019. (Doc. 214, p.2) The September 30, 2018 production was accompanied by a transmittal email from the Trust's counsel. (FP Ex. 1)[1]

On December 23, 2019, the Trust produced the Privilege Log (containing 1,911 documents) (Doc. 214-1) for the first time. At that time, the Trust's counsel did not send the log with a transmittal email or other correspondence, or otherwise alert the Foodonics Parties’ counsel that the log was forthcoming. Rather, the Trust's counsel simply included the log at the end of a production of various third-party documents. (FP Ex. 2) Consequently, the Foodonics Parties’ counsel did not become aware of the log until January 10, 2020.

At no time prior to December 23, 2019 did the Trust's counsel advise opposing counsel, the Court, or the undersigned that the Trust had withheld documents from production based on a claim of privilege. This was despite discovery status conferences before the Magistrate Judge on October 2 and 25, 2018, a status conference before the District Court on November 5, 2019, and a discovery hearing before the undersigned on December 23, 2019 (earlier in the day before the Privilege Log was sent).[2]

*2 Through the Motion to Compel, the Foodonics Parties challenge the Privilege Log on various grounds, including untimeliness, inadequacy of the document descriptions on the log, and the absence of a substantive basis for the privilege claims. (Doc. 214) During the parties’ conferral in regard to the Motion to Compel, the Foodonics Parties’ counsel gave the Trust's counsel a copy of the Privilege Log with color codes corresponding to the Foodonics Parties’ objections to the claims of privilege for documents listed on the log. (Doc. 214, n. 2) At the March 13, 2020 hearing, the undersigned designated the color-coded copy of the Privilege Log as “Special Master Exhibit 1.” (“SM Ex. 1”)

The yellow-highlighted documents on Special Master Exhibit 1 are documents dated prior to February 5, 2016, the date Counterclaim Plaintiff Dina Klempf Srochi became the Trustee of the Trust. The Foodonics Parties argue Ms. Srochi's communications with counsel or the accountant for the Trust could not be privileged prior to that date; the pink highlights indicate documents where one or more of the senders or recipients were unidentified, or are otherwise unknown to the Foodonics Parties; the blue-highlighted documents are challenged for either of two reasons: (1) each document was sent by Ms. Srochi to herself and a privilege cannot be substantiated due to lack of an adequate description; or (2) Marc Klempf, a nonparty beneficiary of the Trust, was copied. (SM Ex. 1)

The Foodonics Parties request either a finding of wholesale waiver of the claims of privilege, or an order requiring the Trust to amend its Privilege Log to include adequate information to enable them to assess the claims of privilege for each document listed on the log. (Id.)

The Trust responds that its document descriptions are adequate, or are at least as good as the Foodonics Parties’ descriptions in their privilege logs, and that it has met its evidentiary burden to show that the documents listed on the log are privileged under applicable law. (Doc.226, 226-1 – 226-6) The Trust also offers various explanations[3] for first producing its Privilege Log of 1,911 documents nearly 15 months after its first document production in September 2018, and it asserts that a wholesale waiver of its privilege claims would be a “drastic” remedy. (Id.)

At the February 18, 2020 hearing, the Trust offered a Supplemental Declaration of Dina Klempf Srochi (the “Supplemental Srochi Declaration”) in support of the Trust's response to the Motion to Compel. The Trust's counsel later filed the Supplemental Srochi Declaration in the record in this case. (Doc. 227-1) The Foodonics Parties objected to the supplemental declaration and later filed the Motion to Strike the supplemental declaration from the record. (Doc. 232)

Following the February 18, 2020 hearing, the undersigned requested, and was given, access to the documents listed on the Trust's Privilege Log.

Under Florida law, information is protected from disclosure by the attorney-client privilege when it is a communication between a lawyer and client not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of legal services, or those reasonably necessary for the transmission of the communication. Tyne v. Time Warner Entert. Co., L.P., 212 F.R.D. 596, 598 (M.D. Fla. 2002); see also Fla. Stat. § 90.502 (1)(c). The privilege extends to agents and representatives of the attorney when disclosure is in furtherance of the rendition of legal services or when disclosure is reasonably necessary for the transmission of the communication. Id.

*3 A party invoking the attorney-client privilege has the burden of proving the existence of the privilege. Tyne, 212 F.R.D. at 599, citing In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir. 1987).

Federal common law presents a general rule of waiver of the attorney-client privilege and several exceptions to that rule.[4] See In re: Int'l Oil Trading Co., LLC, 548 B.R. 825, 831 (Bankr. S.D. Fla. 2016). Under the general rule, a client's disclosure of privileged information to non-attorneys constitutes waiver of the privilege. Id. One of the exceptions to this type of waiver is where the disclosure is to a third party who is an “agent” of the client. Id. at 833. Under this “agency” exception, a client or attorney may disclose privileged information to non-attorney professionals, such as accountants, with whom the communication is necessary for the rendition of legal services to the client. Id. at 834. The agency exception may also extend to disclosures to non-professional third persons, such as close friends or family members of the client, if the disclosures are reasonably necessary to transmit communications to or from the client and counsel for the rendition of legal services, and it is shown that there was a reasonable expectation of privacy for the communications. See Coulter v. State Farm Mut. Auto. Ins. Co., 2013 WL 12102888 at *3 (N.D. Fla. June 20, 2013). Cases extending the agency exception to such non-professional persons do so upon a showing of some type of incapacity on the part of the client, or other circumstance, that necessitates assistance of the third party to enable the client to communicate with counsel. Id.; see also Gerheiser v. Stephens, 712 So. 2d 1252, 1254-55 (Fla. 4th DCA 1998).

Both Florida law and Federal Rule of Civil Procedure 26(b)(3) recognize two types of work product which are protected from discovery: fact work product which protects information that relates to litigation and is prepared in anticipation of litigation by or for a party or its representative, see Tyne, 212 F.R.D. at 598, citing Southern Bell Tel. and Tel. Co. v. Deason, et al., 632 So. 2d 1377, 1384 (Fla. 1994), Fed. R. Civ. P. 26(b)(3), and opinion work product which consists primarily of an attorney's mental impressions, conclusions, opinions, and theories. Id.; see also Regency of Palm Beach, Inc. v. QBE Ins. Corp., 259 F.R.D. 645, 649 (S.D. Fla. 2009).

“[L]itigation need not necessarily be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation.” U.S. v. Consol. City of Jacksonville, 2015 WL 7076695 at *4 (M.D. Fla. Nov. 13, 2015) (citations omitted). The document must have been “created principally or exclusively to assist in anticipated or ongoing litigation.” Id. at *6 (emphasis added). Just because a document may have been used later to assist in litigation or settlement does not mean it was principally prepared for such purpose. Id.

*4 The party who asserts the work product protection bears the burden of establishing that it applies. Regency, 259 F.R.D. at 650.

Although Rule 26(b)(3) does not address the temporal scope of the work product protection, there is authority that it protects materials prepared for any litigation or trial so long as they were prepared by or for the party to the litigation where the materials are sought in discovery. See Universal City Dev. Partners, Ltd. v. Ride & Show Eng., Inc., 230 F.R.D. 688, 691 (M.D. Fla. 2005).

The Florida accountant-client privilege protects confidential communications between a certified public accountant, or a public accountant and the accountant's client made in the rendition of accounting services to the client. See Fla. Stat. § 90.5055.

The Florida husband-wife privilege protects confidential communications between spouses made during the course of the marriage. See Fla. Stat. § 90.504.

When a party withholds information from disclosure under a claim of privilege, the party must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A).

A privilege log should therefore “sufficiently describe the privileged documents so as to permit other parties, and the court, to assess the applicability of the privilege.” U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Cntr., 2012 WL 5415108 at *5 (M.D. Fla. Nov.6, 2012) (citation omitted); see also Regions Bank v. Kaplan, 2014 WL 12810532 at *2 (M.D. Fla. Sept. 19, 2014) (discussing specific privilege log requirements). Where a privilege log contains an email chain, each email within the chain should be separately identified. Baklid-Kunz, 2012 WL 54515108 at * 5.

Where a privilege log fails to meet the foregoing standards, one remedy is to require the party claiming the privileges to amend the log to include adequate information, rather than to impose the remedy of wholesale waiver. See AH Biscayne Inv., LLC v. First Sun Prop., LLC, 2018 WL 1182578 at *4 (S.D. Fla. March 7, 2018).

Further, although the Eleventh Circuit Court of Appeals has not determined what constitutes a timely privilege log, AH Biscayne, 2018 WL 1182578 at *3, there is authority for a waiver of all privilege claims for documents on a log that is not provided within Rule 34's 30-day time limit. See e.g., Burlington N. & Sante Fe Ry. Co. v. U.S. Dist. Ct. for the Dist. of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005); Universal City, 230 F.R.D. at 695. However, such a waiver is not automatic and the approach taken by many district courts within the Eleventh Circuit is to do a case-by-case determination, taking into account various factors including whether the court can evaluate, based on the information provided, whether each of the withheld documents is privileged. See AH Biscayne, 2018 WL 1182578 at *4.

*5 The question now is how to best assess the Trust's Privilege Log in a manner that will protect privileged material, but also give the Foodonics Parties a meaningful opportunity for discovery as to any non-privileged material listed on the log, in the limited time remaining for discovery.

The Trust's Privilege Log does not provide adequate information to satisfy the requirements of Rule 26(b)(5)(A).[5] However, the undersigned has reviewed, in camera, each of the documents listed on the Privilege Log and the documents themselves, together with the Srochi Declaration (Doc. 226-1) and the Post Declaration (Doc. 226-2) provide adequate information about the purpose and dissemination of each document to enable the undersigned to determine whether the document qualifies for the privileges claimed on the Privilege Log. Also, in almost every instance in which the Trust has claimed an “agency” exception to waiver,[6] it is necessary to examine the document itself to determine if the claimed agency exception reasonably applies. Therefore, the most efficient manner of proceeding on the Motion to Compel is for the undersigned to rule on the adequacy of the privilege claims for each document on the Privilege Log. This is particularly so because most of the Foodonics Parties’ objections can be addressed by category as discussed below in this Order. At the hearing on March 13, 2020, the Foodonics Parties’ counsel agreed with this manner of proceeding.

The undersigned also declines to find a blanket waiver of the Trust's claimed privileges due to the Trust's delay in providing the Privilege Log. This is because the documents on the log contain a substantial amount of information of the Trust that is privileged under the standards set forth in this Order. Moreover, the undersigned's rulings at this time that most of the documents on the log are privileged place the Foodonics Parties in substantially the same position they would have occupied had the log been provided sooner.[7] For the documents on the Privilege Log which are not privileged, the Foodonics Parties will be given an opportunity for follow-up discovery.

In reviewing the privilege status of the documents on the Privilege Log, the undersigned also disregards the Supplemental Srochi Declaration because it directly contradicts the assertion in the initial Srochi Declaration (Doc. 226-1) that the “protocol” whereby she sent documents to herself was “between myself and Smith Hulsey & Busey.” (Doc. 226-1, ¶ 7) The Supplemental Srochi Declaration also fails to provide necessary detail as to which attorney prior to Smith Hulsey & Busey established the “protocol,” or when the protocol was established, and, notably, none of the attorneys who provided services for Jean Klempf or her Trust prior to Smith Hulsey & Busey have given a supporting declaration that they established the protocol. So that the Supplemental Srochi Declaration can remain part of the record of this case for any appellate review, the undersigned will not strike it from the record.

*6 The undersigned's rulings on the Foodonics Parties’ color-coded categories of objections to the Privilege Log are as follows:

In its response to the Motion to Compel, the Trust identified most of the individuals whose names the Foodonics Parties highlighted in pink on the color-coded copy. (See Doc. 226, pp. 13-14)

In most cases, the individuals identified are either attorneys, staff members of attorneys, or the husband of Ms. Srochi. Id.

The documents identify Lauren Antonio (TRUSTPRIV01025) as an attorney.

The Trust identified other individuals as persons who provided banking, private wealth management, or financial advisor services to Jean Klempf or to the Trust. At the February 18, 2020 hearing, the Foodonics Parties withdrew their request at this time for the documents involving those individuals.

Tracey Westbrook is not identified by the Trust in its response. (Doc. 226) She is not within the Jean Klempf Privilege Group and her email to Ms. Srochi (TRUSTPRIV00543) is included on Exhibit A hereto.

At the hearing on March 13, 2020, the Trust's counsel acknowledged that document TRUSTPRIV01704 has no relevance to this case and was included on the Privilege Log by mistake.

In response to the Foodonics Parties’ yellow-coded objections, the Trust asserts that Jean Klempf required the assistance of her children Dina Klempf Srochi and Marc Klempf to communicate with her counsel and her accountant due to physical and mental limitations associated with her age. (Doc. 226, p. 7) The undersigned finds that the Trust has met its burden to establish this “agency” exception to the general waiver rule for communications that include Dina Klempf Srochi and Marc Klempf during Jean Klempf's lifetime. The Srochi Declaration states that Jean Klempf had reached the age of 76 in 2008, she did not have an email account and was therefore unable to communicate electronically, and her health issues “severely impaired her ability to effectively communicate with her lawyers and advisors.” (Doc. 226-1, ¶ 2) The Srochi Declaration further states that between 2008 and her death in July 2017, Jean Klempf requested the participation of her children Dina Klempf Srochi and Marc Klempf to facilitate communications between her and her attorneys and other advisors in regard to her ongoing legal issues and disputes of her Trust with Jacques Klempf and Foodonics. (Id., ¶ 3) These statements are not contradicted by evidence from the Foodonics Parties. Further, numerous documents listed on the Privilege Log corroborate that Jean Klempf experienced physical and mental challenges and therefore required her children's assistance to meaningfully communicate with her counsel and her accountant. In all but two documents (listed on Exhibit A hereto) Dina Klempf Srochi and Marc Klempf participated in those communications for the purpose of assisting their mother.

The documents listed on the Privilege Log also demonstrate that communications among Dina Klempf Srochi, Marc Klempf and Dan Edelman, an accounting professional, were necessary for Mr. Edelman to assist Jean Klempf in obtaining legal services from her counsel.

*7 The agency group which the Trust has identified, and which the undersigned finds the Trust has met its burden in demonstrating during Jean Klempf's lifetime, is limited to Laura Jean Klempf, Dina Klempf Srochi, Marc Klempf, attorney Dennis Blackburn, accountant Dan Edelman, attorney Steve Brust, attorney Joseph A. Frein, and the law firm of Smith Hulsey & Busey (collectively, the “Jean Klempf Privilege Group”).

Although the Trust asserted that Dan Edelman “represented” Dina Klempf Srochi and Marc Klempf in the sale of their shares in the redemption sale negotiations (Doc 226, n. 4), it presented no evidence of that.

An email communication from Ms. Srochi (using one email account) to herself (using another email account) is privileged if it transmitted a document that qualifies for one of the claimed privileges under the standards stated herein, or the email content itself qualifies for one of the claimed privileges. In other words, the undersigned treats these self-emails as, essentially, the same as moving a paper document from one personal desk drawer to another; doing so does not recharacterize a privileged document as non-privileged, or vice-versa.

Many of the emails from Ms. Srochi to herself simply transmit—without any substantive comment—non-confidential material such as communications with Jacques Klempf, communications with persons outside the Jean Klempf Privilege Group, or other information that was not confidential among these parties. Thus, the content of such emails was not “created principally or exclusively to assist in anticipated or ongoing litigation” even if the content may have been used later by counsel to formulate its strategy in this case.

Also, the Post Declaration states that the Srochi emails to herself were intended to capture “what she perceived as material information and documents” (Doc. 226-2, ¶ 6)(emphasis added)—not the mental impressions, conclusions opinions or legal theories of any of her counsel.

Such emails from Ms. Srochi to herself therefore do not qualify for protection as either fact or opinion work product under the standards set forth above.[8]

There is no competent evidence as to the purpose for which Ms. Srochi sent emails to herself prior to January 2017 (when Smith Hulsey & Busey was engaged by the Trust) and such emails therefore fail to qualify for work product protection for that additional reason.

Ms. Srochi's emails to herself transmitting non-confidential material also fail to qualify for the attorney-client or accountant client privileges because they are not communications “between [a] lawyer and client,” see Fla. Stat. § 90.502(c), or “confidential communications with an accountant.” See Fla. Stat. § 90.5055(2). Although the Post Declaration states, generally, that information Ms. Srochi provided to her counsel was used to formulate legal advice (Doc. 226-2, ¶ 6), absent from the Privilege Log are the emails (or other correspondence) whereby Ms. Srochi sent these particular self-emails to her counsel or accountant. (See Doc. 214-1). Certainly, those communications would be privileged, but the communications from Ms. Srochi to herself do not satisfy the statutory elements of the privileges.

b. notation emails

*8 The second category of Ms. Srochi's emails to herself appear to be her drafts of emails and other correspondence to various persons, and notes to herself on various topics. She apparently used these self-emails as a digital notepad. In each instance, the drafts or notes are reasonably understood to have been prepared principally or exclusively in regard to anticipated litigation with the Foodonics Parties. These emails therefore qualify for the work-product protection.

Accordingly, the documents listed on Exhibit A hereto are not privileged for the reasons stated above and for the document-specific reasons given on Exhibit A. The term “not confidential” on Exhibit A means the document is not confidential among the parties to this case, although it may have been intended as confidential as to persons beyond this case. As stated above, in making these rulings, the undersigned has disregarded the Supplemental Srochi Declaration.

With the exception of the documents listed on Exhibit A hereto, each of the emails from Ms. Srochi to herself qualifies for the privileges claimed by the Trust on the Privilege Log.

Rule 37(a)(5)(A) requires an award of reasonable expenses, including attorney's fees, against a party or attorney whose conduct necessitated a discovery motion, if the motion is granted. Fed. R. Civ. P. 37(a)(5)(A). Where a motion to compel is granted in part and denied in part, expenses may be apportioned between the parties. Fed. R. Civ. P. 37(a)(5)(C).

Here, although the Trust's Privilege Log was untimely to a significant degree, the great majority of the documents listed on the log are privileged as found herein. Therefore, the appropriate apportionment of the reasonable expenses incurred with respect to the Motion to Compel is for each party to bear its own fees and expenses.

After consideration of the argument of counsel and the written submissions, it is ORDERED:

1. The Motion to Strike is GRANTED to the extent that the undersigned has disregarded the Supplemental Srochi Declaration in the resolution of the issues herein. The Motion to Strike is otherwise DENIED.

2. The Motion to Compel is GRANTED as to the documents listed on Exhibit A to this Order and the Trust shall provide such documents to the Foodonics Parties on or before April 6, 2020. At the time it provides the documents to the Foodonics Parties, the Trust shall file with the Court a notice of compliance. Document TRUSTPRIV01704 is stricken from the Privilege Log. The Motion to Compel is otherwise DENIED.

3. The Foodonics Parties shall be permitted to reopen any deposition taken by either party prior to April 6, 2020, for the purpose of reasonable additional direct or cross examination regarding the documents listed on Exhibit A hereto.

4. Pursuant to Fed. R. Civ. P. 37(a)(5)(C), each party shall bear its own fees and expenses incurred in connection with the Motion to Compel.

DONE AND ORDERED at Jacksonville, Florida, this 20th day of March, 2020.