Florida Department of Law Enforcement v. Johnson

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2024-0549
_____________________________
F LORIDA DEPARTMENT OF LAW
E NFORCEMENT ,
Petitioner,
v.
ANGELA JOHNSON ,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
November 19, 2025
P ER C URIAM.
The Florida Department of Law Enforcement petitions for
review 	of 	the 	trial 	court’s 	order 	directing 	the 	Department 	to
produce certain emails identified on its privilege log in response to
a request for production. The Department asserts that the emails
are protected from disclosure under the attorney-client privilege
and the work-product doctrine. The trial court conducted an in
camera 	inspection. 	But 	it 	failed 	to 	consider 	each 	document
individually to determine whether the documents were privileged.
Instead, 	the 	court 	made 	a 	blanket 	ruling 	that 	because 	the
Department’s 	attorney 	who 	made 	or 	received 	the 	emails 	in
question functioned as a “de facto HR officer,” none of the emails

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should be excluded from production. We grant the petition and
quash the trial court’s order.
Angela 	Johnson 	sued 	the 	Department 	for 	disability
discrimination and retaliation. In response to Johnson’s discovery
requests, 	the 	Department 	identified 	certain 	documents 	on 	a
privilege log that it claimed were protected by attorney-client
privilege or as work product. The documents in question are all
emails 	made 	or 	received 	by 	James 	Martin, 	Deputy 	General
Counsel for the Department. After receiving the privilege log,
Johnson moved for an in camera inspection by the trial court. She
claimed 	that 	the 	emails 	related 	to 	her 	job 	performance,
attendance, leave, fitness-for-duty and performance evaluations,
and 	termination/resignation. 	She 	requested 	the 	trial 	court 	to
inspect 	the 	documents 	and 	determine 	the 	application 	of 	the
attorney-client privilege and the work-product doctrine.
The 	Department’s 	representatives 	explained 	during
deposition that the Department handles human resource issues
differently than many other state agencies. While other agencies
have a designated person within the human resources department
that handles any human resources issues, including disciplinary
issues, the Department filters human resources issues through its
general 	counsel’s 	office—specifically, 	Jim 	Martin. 	Thus, 	the
question arose whether Martin was acting in his role as Deputy
General Counsel or acting as a human resources officer when he
sent or received the emails identified on the privilege log.
The trial court granted Johnson’s motion for an in camera
inspection. It then made a blanket determination that with respect
to the emails made or received by Martin, Martin was acting as a
de facto human resources officer. The court concluded that Martin
likely advised on human resources issues related to the suit,
including 	whether 	Johnson 	should 	be 	terminated 	or 	whether
accommodations could be made, which the court determined are
issues 	usually 	handled 	by 	human 	resources.∗ The 	trial 	court
∗ In reaching this conclusion, the trial court relied on an
unelaborated 	per 	curiam 	decision 	from 	this 	Court, 	where 	we
denied certiorari relief in what the trial court considered to be a
similar context—Florida Department of Business & Professional

3
ordered the Department to produce all the emails. The trial court
ruled in the alternative that, even if Martin’s emails constituted
work product, the Department had to produce them because they
could not be gathered in some other way.
The 	Department 	asks 	this 	Court 	to 	quash 	the 	order,
petitioning for a writ of certiorari. “Certiorari is appropriate when
the petitioning party establishes that a trial court departed from
the essential requirements of law and the departure will result in
a 	material 	injury 	that 	cannot 	be 	corrected 	on 	postjudgment
appeal.” Shands Teaching Hosp. & Clinics, Inc. v. Beylotte, 357 So.
3d 307, 308 (Fla. 1st DCA 2023) (citing Emed Urgent & Primary
Care, P.A. v. Rivas, 335 So. 3d 766, 767 (Fla. 1st DCA 2022)).
“[C]ertiorari review is ‘appropriate in cases that allow discovery of
privileged information.’” Butler v. Harter, 152 So. 3d 705, 709–10
(Fla. 1st DCA 2014) (quoting Coates v. Akerman, Senterfitt &
Eidson, P.A., 940 So. 2d 504, 506 (Fla. 2d DCA 2006)). “The
attorney-client privilege exists to protect not only the giving of
professional advice, but also the giving of information to the lawyer
to enable him to render sound and informed advice.” Hagans v.
Gatorland Kubota, LLC/Sentry Ins., 45 So. 3d 73, 76 (Fla. 1st DCA
2010) (citing Upjohn Co. v. U.S., 449 U.S. 383, 390 (1981)).
Here, the trial court ordered the Department to produce all of
Martin’s emails listed on its privilege log based on the court’s
blanket finding that Martin was acting as a human resources
officer and not as the Department’s counsel when he made or
received 	the 	emails. 	In 	making 	this 	finding, 	the 	trial 	court
compelled discovery based on a broad observation of Martin’s role
and not based on individualized consideration of the documents at
issue and their context. While it is certainly possible that some of
the emails were not protected by the attorney-client privilege or as
work product, given Martin’s position as Deputy General Counsel,
some of the emails could have been related to the rendition of legal
services and advice and thus should have been shielded from
Regulation v. Blackman, 292 So. 3d 1156 (Fla. 1st DCA 2020). But
a per curiam decision “without opinion, has no precedential value.”
Maradriaga v. 7-Eleven, 35 So. 3d 109, 110 (Fla. 1st DCA 2010).
Thus, the trial court’s reliance on that decision was misplaced.

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production. See Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d
451, 458 (Fla. 5th DCA 1999) (holding that mere attendance of an
attorney at a meeting does not render everything said at the
meeting privileged, but if the communication is related to the
rendition of legal services, it may be covered by attorney-client
privilege). To determine whether the documents were privileged,
the trial court had to consider each document individually. Am.
Integrity Ins. Co. of Fla. v. Venable, 324 So. 3d 999, 1000–01 (Fla.
1st DCA 2021) (“[W]hen a party makes a claim of privilege the
party should be given the opportunity to file a privilege log, and
the trial court should conduct an in-camera inspection of any
documents for which a claim of privilege is asserted.”). The trial
court departed from the essential requirements of the law when it
failed to conduct the requisite in camera inspection of the emails
for which the Department claimed were privileged. See Chipotle
Mexican Grill, Inc. v. Quinones, 240 So. 3d 5, 6 (Fla. 4th DCA 2018)
(“Failure 	to 	conduct 	the 	requisite in 	camera inspection 	is 	a
departure from the essential requirements of the law.”).
Besides 	its 	blanket 	ruling 	that 	none 	of 	the 	emails 	were
protected by the attorney-client privilege or as work product due
to Martin’s purported role as de facto HR officer, the trial court
ruled in the alternative that the Department had to produce the
emails listed on the privilege log “because there’s no way that this
information can be replicated,” and “[i]f it is work product it’s the
type of work product that must be produced because it can’t be
gathered in some other way.” This ruling also departed from the
essential requirements of law.
Under Florida Rule of Civil Procedure 1.280(b)(4), a party may
obtain 	discovery 	of 	certain 	protected 	documents 	only 	upon 	a
showing that the party seeking discovery has need of the materials
in preparing the case and is unable without undue hardship to
obtain the substantial equivalent of the materials by other means.
But the rule maintains protection for privileged attorney-client
communications 	and 	materials: 	“In 	ordering 	discovery 	of 	the
materials 	when 	the 	required 	showing 	[of 	need 	and 	undue
hardship] 	has 	been 	made, 	the 	court 	must 	protect 	against
disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party
concerning the litigation.” Fla. R. Civ. P. 1.280(b)(4).

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The record before us fails to reveal any showing by Johnson
that 	would 	permit 	disclosure 	of 	the 	Department’s 	privileged
communications under Rule 1.280. See Metric Eng’g, Inc. v. Small,
861 	So. 	2d 	1248, 	1250 	(Fla. 	1st 	DCA 	2003) 	(“Counsel’s 	bare
assertions, unsupported by any evidence, are inadequate to show
the ‘need’ and ‘undue hardship’ required for production of work
product documents, and cannot justify compelled discovery. To
show 	‘need,’ 	a 	party 	must 	present 	testimony 	or 	evidence
demonstrating the material requested is critical to the theory of
the requestor’s case, or to some significant aspect of the case. Once
the trial court knows the requestor’s theory as to why the items
are 	needed 	and 	how 	the 	material 	could 	potentially 	help 	the
requesting party’s case, the trial court should then conduct an in
camera review. During this review, the trial court can evaluate
whether the contested materials provide the requisite evidentiary
value alleged by the requesting party, . . . .” (citations omitted)).
The petition is GRANTED and the order on review is QUASHED.
ROWE , M.K. THOMAS, and NORDBY, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
J. Craig Knox, Surama Suarez, and Riley Landy of Andrews,
Crabtree, Knox & Longfellow, LLP, Tallahassee, for Petitioner.
Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee, for
Respondent.