        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

   VALERIE A. LYONS INDIVIDUALLY AND AS CO-TRUSTEE AND
 BENEFICIARY OF THE RICHARD C. LYONS AND NORMA W. LYONS
 1998 DYNASTY TRUST; NORMA W. LYONS INDIVIDUALLY AND AS
 MANAGING PARTNER AND THE GENERAL PARTNER(S) OF LYONS
  FAMILY LIMITED PARTNERSHIP; and LYONS FAMILY LIMITED
                       PARTNERSHIP,
                         Petitioners,

                                      v.

 SANFORD D. LYONS INDIVIDUALLY AND AS CO-TRUSTEE OF THE
RICHARD C. LYONS AND NORMA W. LYONS 1998 DYNASTY TRUST;
   TIMOTHY R. LYONS INDIVIDUALLY AND AS PURPORTED CO-
TRUSTEE OF THE RICHARD C. LYONS AND NORMA W. LYONS 1998
DYNASTY TRUST; THE RICHARD C. LYONS AND NORMA W. LYONS
 1998 DYNASTY TRUST; DOROTHY A. LYONS-HEFFNER; JOHN C.
LYONS; and JOHN C. LYONS AND CAROL ANN WILLIAMS LYONS AS
  CO-TRUSTEES OF THE JOHN C. LYONS TRUST SEPTEMBER 2,
                          1988,
                       Respondents.

                               No. 4D14-3429

                            [February 11, 2015]

   Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mark A. Speiser, Judge; L.T. Case No.
12-4634.

   William M. Tuttle, II of William M. Tuttle, II, P.A., Coral Gables, for
petitioners.

   Thomas Karl Topor of The Kelley Law Firm, PL, Fort Lauderdale, for
respondents Sanford D. Lyons and Timothy R. Lyons.

WARNER, J.

   In this litigation over control of a family trust, the trial court overruled
petitioners’ privilege objection to the production of documents from the
trust accountant, a non-party, pursuant to Florida Rule of Civil Procedure
1.351. Procedurally, petitioners claimed that their objection required the
respondents to forego reliance on Rule 1.351 and set the accountant for
deposition. The trial court overruled the petitioners’ objections and
authorized the issuance of the subpoena. It did not address the issue of
privilege, even though the petitioners requested that the court conduct an
in camera inspection of the documents. As that order contained no
protections for privileged documents, this petition was filed. Later, after
the subpoena was issued, the court entered an order on the accountant’s
motion for protective order in which it provided for a method of isolating
privileged documents. We deny the petition as moot, because the trial
court has provided for protection of the documents, and we reject the
petitioners’ claim that a deposition of the accountant is required.

    Lyons Family Limited Partnership (“the partnership”) is a Florida limited
partnership which owns and rents commercial property in Broward County
and Pennsylvania. It was created by Norma Lyons and her late husband
Richard. The couple had five children. After Richard’s death, four of the
children, the individually named respondents, sought to remove their
sister, petitioner Valerie, as co-trustee of a trust which is a limited partner
in the partnership. They also sought to remove their mother, petitioner
Norma, as managing general partner of the partnership. This prompted
two declaratory judgment actions by Valerie and Norma challenging the
legality of the actions of the other siblings/children. In addition, the
partnership sued the siblings for damages in excess of three million dollars.
All three cases were consolidated for purposes of discovery and trial.

    The respondents filed a notice of intent to issue a subpoena duces tecum
to the accountant for the partnership. Petitioners objected on grounds that
the subpoena could include documents protected by attorney-client
privilege, accountant-client privilege, and work product. In addition, they
alleged that the subpoena was overbroad and requested documents
irrelevant to the issues in the case.

   The court held a hearing on the objections. Although petitioners
claimed that the fact that they objected required the respondents to now
proceed with discovery from the accountant by setting her deposition and
requesting production of the documents, the court disagreed, concluding
that the respondents could seek a ruling on the objection rather than being
compelled to take the deposition of the accountant. Petitioners maintained
that the court must make an in camera review of the documents to assess
the claims of privilege and work product. The court overruled petitioners’
objections to the defendants’ notice to serve subpoena, ordering the
production of the documents but limiting the time period for the documents
sought. It did not order an in camera review.


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    In this petition for writ of certiorari, petitioners claim that the court
departed from the essential requirements of law by ordering production of
documents from the accountant without first determining their privileged
status through in camera review of them, and they claim that once their
objection was filed, the only method available to obtain production was
pursuant to a deposition of the non-party. They rely on Patrowicz v. Wolff,
110 So. 3d 973 (Fla. 2d DCA 2013), in which, under very similar
circumstances, the Second District concluded that after a Rule 1.351
notice of intent to issue a subpoena is filed and an objection on the ground
of privilege is made, the trial court departs from the essential requirements
of law by authorizing the subpoena and production of the documents
without conducting an in camera review of such documents prior to
disclosure. Id. at 974-75. We agree with Patrowicz in its result, although
we do not agree with its adherence to former case law which holds that an
objection to a subpoena pursuant to Rule 1.351 is “self-executing,”
compelling the production of documents only through the deposition of the
non-party. Id. at 974. We conclude that changes to the rule permit the
court to rule on some objections, but that those changes do not remove the
court’s obligation to conduct an in camera inspection of documents for
claims of privilege.

   When originally adopted, Rule 1.351 was meant to provide a method to
obtain documents from non-parties without the necessity of taking the
deposition of a records custodian. See Committee Notes to Rule 1.351
(1980). The rule provided, however, that if any party objected, then Rule
1.310 must be followed, which requires a notice of production of
documents at a deposition of the records custodian. Courts construed this
provision as “self-executing.” That is, once an objection was made to a
notice of intent to issue a subpoena for the production of documents, the
proponent must follow Rule 1.310. A trial court was without authority to
hear the objection to the subpoena. Russell v. Stardust Cruisers, Inc.,
690 So. 2d 743, 744 (Fla. 5th DCA 1997); ABC Liquors, Inc. v. Berkey,
589 So. 2d 457, 458 (Fla. 5th DCA 1991).

   Apparently, practitioners were not in agreement that any objection to a
Rule 1.351 subpoena should always lead to the more expensive procedure
of taking a deposition pursuant to Rule 1.310. See Bruce J. Berman,
Florida Practice Series: Civil Procedure, 4 FLA. PRAC. § 1.351:12 (2014).
Effective in 2008, the supreme court amended section (d) of Rule 1.351 to
provide:

     If an objection is made by a party under subdivision (b),
     the party desiring production may file a motion with the court


                                     3
     seeking a ruling on the objection or may proceed pursuant to
     rule 1.310.

Thus, under the amended rule, an objection did not automatically trigger
a deposition pursuant to Rule 1.310. Instead, the court could rule on the
objection.

   This provision, however, did not remove the trial court’s obligation to
treat privilege objections differently than it would had the objection been
made at a deposition of the non-party records custodian. Any claim of
privilege must be ruled on and in camera inspection conducted prior to
production of such documents. See Bennett v. Berges, 84 So. 3d 373, 374–
75 (Fla. 4th DCA 2012); accord Patrowicz, 110 So. 3d at 974. This is also
true for other privileges.       See, e.g., Russell, 690 So. 2d at 744
(psychotherapist-patient privilege). Indeed, in both Patrowicz and Russell,
the courts granted the petition for certiorari seeking to quash the Rule
1.351 subpoena, not because of the “self-executing” objection but because
the court had not conducted an in camera review for privilege.

   We recognize that, unlike production from a party, there is no provision
under Rule 1.351 for a privilege log, which might reduce the number of
documents upon which the privilege is asserted and thus the burden on
the trial court. We do not interpret the rule, however, as leaving the court
with the obligation of reviewing all documents without a method of
isolating those documents upon which a privilege could be claimed. Nor
do we conclude that a deposition of the non-party is required, although we
also think that the trial court could require the requesting party to resort
to a deposition of the non-party with production of documents at the
deposition.

   The trial court has discretion to fashion a process to deal with the
production of the documents, and it did in this case. After the filing of this
petition, the trial court considered a motion for protective order from the
accountant and entered an order providing a procedure for the accountant
to gather the documents sought by the subpoena. Thereafter, petitioners
would be entitled to review the documents to segregate those they claimed
were privileged. The court would hold an evidentiary hearing on those
claimed to be privileged and conduct an in camera review where necessary.
This procedure is sufficient to protect privileged documents.1

1 It would have been preferable to have included this procedure in the original
order overruling the objections, or a reservation in that order to consider the
protection of privileged documents, so as to eliminate the necessity of this
petition.

                                      4
   Petitioners also seek certiorari relief because the request for documents
was overbroad and sought irrelevant materials. On this ground, the
petition is dismissed. See All About Cruises, Inc. v. Cruise Options, Inc.,
889 So. 2d 905, 906 (Fla. 4th DCA 2004) (“[T]his court generally will not
exercise its certiorari review where the objection is that the requested
production is vague, overbroad, and irrelevant.”). Moreover, petitioner has
not shown that the records are irrelevant or burdensome to produce.

   The petition is denied as moot insofar as it seeks to prevent production
of privileged documents without in camera inspection, and it is dismissed
on the remaining grounds raised in the petition.

MAY and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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