U.S. Sugar Corp. v. Estate of Mullins

U.S. Sugar Corp. v. Estate of Mullins, 211 So.3d 110 (Fla. 4th DCA 2017)

This decision deals with an estate's attempt to seek discovery from a non-party to the probate action.  In this instance, the non-party is the entity which owns the location on which the decedent died.  The estate served a subpoena duces tecum upon the non-party seeking documents relating to its investigation of the fatal accident which killed the decedent.  The Court held as follows:

(1) The discovery sought information not reasonably calculated to lead to the discovery of admissible evidence in the probate proceeding.  At the time of serving the discovery, the estate had not filed a wrongful death action.  Because the underlying probate petition was devoid of any allegations upon which to premise discovery upon the non-party, the Court agreed with the non-party that the subpoena was nothing more than a fishing expedition seeking information which might give rise to a potential wrongful death action, and was not willing to "open wide the probate court doors" for discovery to support an unfiled wrongful death action.

(2) The discovery sought documents which are privileged.  Documents prepared in anticipation of litigation or for trial are protected from disclosure unless the party seeking the discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  Because the estate made no such showing, it was not entitled to discovery of the privileged documents.

(3) The non-party should not be required to file a privilege log.  Finally, the Court held that the trial court erred by requiring the non-party to prepare and file a privilege log.  FRCP 1.280 and 1.351 do not require non-parties to file privilege logs.  Instead, they should have been ordered to segregate those documents which they claimed were privileged, after which the court would hold an evidentiary hearing and conduct an in camera review if necessary. 

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