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Memorandum in Opposition to Motion to Compel- Privileged Communications and Protected Work Product in Florida

Memorandum in Opposition to Motion to Compel- Privileged Communications and Protected Work Product in Florida


On or about January 18, 2018, Defendant served Plaintiff its First Set of Discovery Requests. Plaintiff responded to these requests on or about March 1, 2018.   (See Plaintiff’s Responses to Defendant’s First Set of Discovery Requests, attached hereto as Exhibit 1). Request for Production No. 7 seeks documents evidencing correspondence between Plaintiff and any third party pertaining to the instant litigation. Request for Production No. 18 seeks any “notes, timelines, calendars or agendas prepared by Plaintiff or any third parties,” pertaining to the instant lawsuit.  The defendant filed a motion to compel seeking documents alleged to be responsive to each said request.  However, the alleged responsive documents are correspondence between Plaintiff and the undersigned’s paralegal and a timeline prepared by the undersigned’s paralegal which includes the paralegal’s thoughts and opinions.  As such, each requested document is protected from disclosure under the attorney-client privilege, and/or the work product doctrine.


Florida Rules of Civil Procedure 1.285 provide this Court with broad discretion to offer relief in a motion compelling discovery upon the documents that have been requested. In the Hickman v. Taylor (329 U.S. 495, 67 S.Ct. 385) case, there is no need for compelling discovery. Every document requested by the defendant is held under strict work-product doctrine or attorney-client privilege and is protected from being disclosed. In the case, the plaintiffs requested oral and written statements by witnesses who had survived the incident. The plaintiffs also requested reports, records, and memoranda concerning the incident including the ones prepared by the defense attorneys. The District Court issued an order to produce the documents and the order was reversed by the Third Circuit Court of Appeals. The Third Circuit Court was then affirmed by the United States Supreme Court noting that even the most substantial discovery theories can provide a justification for unwarranted inquiries into the files and an attorney’s mental impression. The Court sought to prevent attempts without alleged justification or necessity to secure written statements, personal recollections, and memoranda formed or prepared by the counsel representing an adverse party in implementing his or her legal duties.

The Attorney-Client Privilege Extends to Attorney Agents, Including Paralegals.

Attorney-client privilege focuses on the free exchange of information between a client and an attorney. Attorneys are required to get the true turn of events and facts that can help in creating a sound argument that favors the client. The attorney-client privilege protects communications mainly motivated by a client’s request for legal advice regardless of any future litigation. In Florida, the law on attorney-client privilege is elaborated in Section 90.502 of the Florida Evidence Code. The law prohibits attorneys from disclosing any information provided by a client. The communication between the attorney and client includes both written and oral communication. However, privilege only applies if the communication between the attorney and client occurred when the attorney was providing legal services to the client. The attorney’s duty to maintain the privilege of the information provided by a client applies to all information provided to the attorney in Florida regardless of any preceding determinations. Paralegals are, however, barred from participating in attorney-client privilege but are required to behave in a way that protects and upholds the rights held between a client and attorney. Attorney-client privilege in Florida may be claimed by the client, the person representing a dead client, a conservator or guardian of the client, or an assignee, successor, or trustee in dissolution.

The Correspondence Between the Plaintiff and the Undersigned’s Paralegal is Protected by the Attorney-Client Privilege

Florida’s Evidence Codes offer a statutory attorney-client privilege. Section 90.502 provides that communication between an attorney and client is confidential if it is not intended to be shared with a third person such as individuals to whom disclosure is in the continuance of the rendition of legal services to the client and individuals reasonably necessary for the transmission of communication. This implies that information can be shared with paralegals involved in the case, and they too are required to uphold privilege and ensure that information is not disclosed to anyone else. A client also has the privilege to refuse to disclose information and prevent any other person from disclosing what was discussed in confidential communications when such other person learned of the communications because they were made in the rendering of legal services to the client.

The Work-Product Doctrine Extends to Attorney Agents, Including Paralegals

The main objective of the work-product doctrine is preserving the effective assistance of attorneys and other individuals employed to help in the preparation of a case for trial, maintaining the privacy of communications between the attorney, client, and other individuals employed in preparation for litigation, particularly privacy in legal theories development strategies and opinions. It only applies at specific times and is not absolute. R. Civ. P. 1.280(b)(3) provides that an individual may obtain documents’ discovery and the discovery of tangible things prepared in anticipation of litigation by another party after demonstrating need and inability to acquire the substantial equivalent of such materials without obstacles. The rule also provides that the conclusions, mental impressions, legal theories, or opinions of an attorney should be protected against disclosure. The work product in Fla. R. Civ. P. 1.280(b)(3) only refers to the tangible things and items prepared for another party or by another party rather than the client. It does not end after the case is terminated. The court may allow an attorney and his or her client to assert the work-product privilege to eliminate the possibility that the work-product presented by an attorney is revealed even in subsequent litigation that may be unrelated. The documents are not authorized by the client to be viewed by another party or be released or another party other than the representing attorney.

The Timeline Prepared by the Undersigned’s Paralegal is Protected by the Work-Product Doctrine.

Fla. R. Civ. P. 1.280(b)(4) states that ordering the discovery of the material that is not used to prepare for a case must be protected by the court against disclosure of the conclusions, mental impressions, and legal theories of an attorney or another representative within the case of litigation. Therefore, all the timelines prepared by an attorney or undersigned paralegal shall be protected under the work-product doctrine unless the opposing counsel provides strong reasoning for the documents’ request not to be used against the opposing party.


Each document requested by Defendant is protected from disclosure under the attorney-client privilege, and/or the work product doctrine.  As such, Plaintiff requests this Honorable Court deny Defendant’s Motion to Compel in its entirety.

Respectfully submitted,

/s/ ________________

Melinda DoGood

Attorney for Plaintiff



I hereby certify that on DATE, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system, which will send notification of such filing to all counsel of record.

___/s/ _______

Melinda DoGood

Attorneys for Plaintiff


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Prepare a memorandum in opposition to the motion to compel, using the attached format Template. Research the issues of privileged communication in Florida. The response should address the issue of the privileged communications between the Paralegal and the client, as well as the issue of whether the timeline prepared by the Paralegal is considered a protected work product. Response must include case law, statutes, and/or rules to support arguments.

Memorandum in Opposition to Motion to Compel- Privileged Communications and Protected Work Product in Florida

Memorandum in Opposition to Motion to Compel- Privileged Communications and Protected Work Product in Florida

Please leave the first page and last page of the template AS IS. What is required is the Statement of Law which includes case law, statutes, and/or rules to support arguments.

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