*1 Plaintiff's Motion for In-Camera Review and to Compel Production of Non-Privileged Documents and Things (Doc. 74), Defendant's Response in Opposition (Doc. 78), and Plaintiff's unauthorized Reply (Doc. 79) are before the Court, along with the parties’ Joint Motion for Leave to File Under Seal Exhibits A and B (Doc. 80) to Plaintiff's motion to compel. The Court directed the parties to submit Exhibits A and B to the undersigned for an in-camera review (Doc. 81), which Plaintiff did (see Docs. 85, 90). The Court also reviewed in-camera those documents on Defendant's Second Amended and Supplemental Privilege Log whose privilege designation Plaintiff challenges.

A. Background of Discovery Dispute

In response to Plaintiff's document production requests, Defendant produced a confidential privilege log, contending the attorney-client privilege, the work-product doctrine, and the suspicious activity report (“SAR”) exemption shielded approximately 100 documents from production.[1] Sometimes, Defendant produced redacted documents and, in other instances, withheld production. In its motion to compel, Plaintiff argues Defendant's Second Amended Privilege Log does not carry Defendant's burden of providing specific facts as to each element of the work-product doctrine and/or the attorney-client privilege, and Defendant has over-applied the SAR privilege. Plaintiff urges the Court to (1) review in-camera the roughly 80 allegedly privileged documents whose designation Plaintiff challenges and (2) compel Defendant to produce all non-privileged documents in unredacted form. Defendant stands by its designations. The Court has conducted an in-camera review of the challenged entries to the privilege log and of the underlying documents.

B. Legal Standard

The party invoking a discovery privilege bears the burden of proving the privilege exists. See United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991); Middle District Discovery (2021) at Section VI(A)(1). “[W]hen possible, privileges should be narrowly construed.” Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 144-46 (2003). If a party withholds otherwise discoverable information by asserting a privilege or other discovery exemption, it must assert the claim expressly 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); see also Universal City Dev. Partners, Ltd. v. Ride & Show Eng'g, Inc., 230 F.R.D. 688, 695-96 (M.D. Fla. 2005); Middle District Discovery (2021) at Section VI(A)(1). “The standard for testing the adequacy of a privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.” CSX Transp., Inc. v. Admiral Ins. Co., No. 93-132-CIV-J-10, 1995 WL 855421, at *3 (M.D. Fla. July 20, 1995).

C. Application of SAR Privilege

*2 Under the Bank Secrecy Act, 31 U.S.C. §§ 5313-5326, and its myriad regulations, national banks must file a SAR with the appropriate federal agency and the Department of Treasury “when they detect a known or suspected violation of Federal law or a suspicious transaction related to a money laundering activity or a violation of the Bank Secrecy Act.” 12 C.F.R. § 21.11(a). But a SAR, and “any information that would reveal the existence of a SAR, are confidential.” Id. at § 21.11(k). To that end, no national bank “shall disclose a SAR or any information that would reveal the existence of a SAR.” Id. at § 21.11(k)(1)(i). The SAR privilege is limited to a “SAR or any information that would reveal the existence of a SAR,” but does not include “the underlying facts, transactions, and documents upon which a SAR is based. Id. at § 21.11(k)(1)(ii)(A).

“[A] strong public policy leans heavily in favor of applying SAR confidentiality not only to a SAR itself, but also in appropriate circumstances to material prepared by the national bank as part of its process to detect and report suspicious activity, regardless of whether a SAR ultimately was filed or not.” Lan Li v. Walsh, No. 16-81871, 2020 WL 5887443, at *2 (S.D. Fla. Oct. 5, 2020) (citing Fed. Trade Comm'n v. Marcus, 2020 WL 1482250, at *3 (S.D. Fla. Mar. 27, 2020)). In other words, “documents which have been prepared as part of a national bank's process for complying with federal reporting requirements are covered by the SAR privilege.” Id. (citing Lesti v. Wells Fargo Bank, N.A., 2014 WL 12828854, at *1 (M.D. Fla. Mar. 4, 2014)).

After an in-camera review, the Court finds that Defendant did not over-apply the SAR privilege. These documents – listed on Defendant's privilege log and challenged by Plaintiff in its motion to compel (Doc. 74 at 6) – are protected from disclosure by the SAR privilege, because they are evaluative and Defendant prepared them specifically to comply with federal reporting requirements: PRIV00027-PRIV00030; PRIV00034; PRIV00042; PRIV00043; PRIV00046; PRIV00047; PRIV00050; PRIV00057; PRIV00059; and PRIV00082-PRIV00104.

D. Attorney-Client Privilege and Work-Product Doctrine

Regarding the documents Defendant claims are protected from disclosure by the attorney-client privilege and/or the work-product doctrine (either partially or in their entirety), after an in-camera review the Court finds Defendant's privilege log provides specific facts that, if credited, “would suffice to establish each element of the privilege or immunity that is claimed.” CSX Transp., Inc., 1995 WL 855421, at *3.

Florida law governs the application of the attorney-client privilege in a federal diversity action like this one.[2] See Fed. R. Evid. 501; Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 201 (M.D. Fla. 1990). Under Florida law, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contends of confidential communications when such other person learned of the communications because they were made in rendition of legal services to the client.” Fla. Stat. § 90.502(2). As stated by the Florida Supreme Court, attorney-client privilege applies to “confidential communications made in the rendition of legal services to the client.” S. Bell Tel & Tel. Co v. Deason, 632 So.2d 1377, 1380 (Fla. 1994) (citing Fla. Stat. § 90.502). “A communication between lawyer and client is confidential if it is not intended to be disclosed to third persons other than (1) those to whom disclosure is in furtherance of the rendition of legal services to the client[,] [and] (2) those reasonably necessary for the transmission of the communication.” Fla. Stat. § 90.502(1)(c).

*3 On the other hand, federal law governs work product issues. Auto Owners, 135 F.R.D. at 201 (“[T]he work product doctrine is a limitation on discovery in federal cases, and federal law provides the primary decisional framework.”) (citation omitted). The work-product doctrine protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). The doctrine has two elements: to be protected, the document “must be (1) produced by an attorney or her agent and (2) created in anticipation of litigation.” United States ex rel. Bibby v. Wells Fargo Bank, N.A., 165 F. Supp. 3d 1319, 1323 (N.D. Ga. 2015) (quoting Adams v. City of Montgomery, 282 F.R.D. 627, 633 (2012)).

The Court has reviewed Defendant's Second Amended Privilege Log in-camera and finds it sufficient. The descriptive portions of the log are specific enough as to each document for the Court to assess the elements of both the attorney-client privilege and the work-product doctrine. See Middle District Discovery (2021) at Section VI(A)(1). Additionally, the Court's in-camera review of the challenged documents themselves satisfies the undersigned that Defendant's designations are accurate. The attorney-client privilege and the work-product doctrine exempt these documents or portions of documents from disclosure: PRIV00022-PRIV00026; PRIV00041; PRIV00043-PRIV00045; PRIV00049-PRIV00053; PRIV00056-PRIV00060; PRIV00071-PRIV00076; and PRIV00078-PRIV00081; and Bates-numbered redactions BANA01630, BANA01636, BANA01598, BANA01581, and BANA01586.

E. Conclusion

It is ORDERED:

ORDERED in Tampa, Florida on May 3, 2023.