As I’ve discussed previously, Citizens (and many other insurance companies) use “corporate representatives” for the purpose of depositions who have no actual prior knowledge about the handling of the claim. None. They literally hire third-party persons to study the file and testify off of the cold file, like a student studying for an exam. They usually do a bad job and come to the depositions wholly unprepared to testify to the standard that a corporate representative is held to under rule 1.310(b)(6). A brand new case essentially recognizes this fact and held that when a Citizens “corporate representative” uses documents to “refresh his recollection” during a deposition, Citizens must produce the documents on which the witness relied. See Hamilton v. Citizens Property Ins. Corp., ___ So. 3d __, 2024 WL 1894872 (Fla. 3d DCA May 1, 2024) (Case No. 3D23-1934).

In Hamilton, the petitioner Ann Hamilton, the plaintiff below, sought certiorari review of a September 29, 2023 discovery order granting a motion for protective order filed by the defendant below, respondent Citizens Property Insurance Corporation (“Citizens”). The challenged order: (i) authorized petitioner to depose Citizens’s corporate representative; (ii) required the corporate representative to bring the entire claims file to the deposition “for the purpose of refreshing his recollection and to allow for competent testimony at deposition;” but also (iii) allowed Citizens to designate as privileged any portion of the file’s contents, even those portions of the file relied upon by the witness during his testimony.

The appellate court held that the portion of the discovery order purporting to preserve the privilege of file materials reviewed by the corporate representative during his deposition, and preventing cross-examination thereon, constituted a departure from the essential requirements of law because it violated section 90.613 of the Florida Statutes (2023). As the court noted, that statute, which applies to material reviewed by the deponent “while testifying” at discovery depositions, reads, in relevant part, as follows:

When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence.

§ 90.613, Fla. Stat. (2023).

The Third District concluded:

The statute is clear and unambiguous: if a witness, during his or her deposition testimony, relies on a written document to refresh his or her recollection, those portions of the document that relate to the witness’s testimony must be produced to the opposing party, resulting in a waiver of an otherwise applicable privilege. See Soler v. Kukula, 297 So. 2d 600, 601-02 (Fla. 3d DCA 1974) (“It is fundamental that the opposite party in both criminal and civil cases has a right to see and examine the memoranda used by a witness so as to be in a position to cross-examine the witness in regard to the testimony given on direct examination.”).

Certiorari jurisdiction lied, held the court, because, under the circumstances presented, the harm caused by such error was irreparable, because:

First, there is no practical way to determine on plenary appeal after judgment whether a withheld document — relied upon by the witness during his or her deposition — supported or contradicted the witness’s testimony; nor is there a practical way to determine, on plenary appeal, whether, or to what extent, the error impeded the effectiveness of the aggrieved party’s cross-examination of the witness. See Ruiz v. Steiner, 599 So. 2d 196, 198 (Fla. 3d DCA 1992) (“Especially in circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since `there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.’” (quoting Travelers Indem. Co. v. Hill, 388 So. 2d 648, 650 (Fla. 5th DCA 1980), receded from by Bill Kasper Constr. Co. v. Morrison, 93 So. 3d 1061, 1062 (Fla. 5th DCA 2012) (en banc))).

Second, while section 90.613 provides an express process for trial court review, and for appeal, of objections based on relevance, this statutory process appears inapplicable to objections based upon privilege. In any event, by virtue of the statute, a party’s privilege objections are deemed waived when a party uses documents to refresh the recollection of that party’s witness. § 90.613, Fla. Stat. (2023). The subject order effectively authorizes Citizens’s witness to thwart the statute without providing any mechanism for post-judgment review.

The petition was granted and the order quashed.

Citizens–and many other insurance companies–have a real problem on this issue, and it is frustrating to litigate against them. Insurance defense lawyers routinely insist on entering an agreed order that violates section 90.613–allowing the corporate representative to “refresh his recollection” by reading from documents while still asserting a privilege regarding the documents. They are used to getting their way on this issue.

I expect insurance defense lawyers to continue to show up at depositions unfamiliar with this clear law or to attempt to force agreements like they have always done and have become accustomed to. But the statute is clear. This appellate decision should not have been needed. Why would an insured waive section 90.613 of the Florida Statutes–a major part of Florida’s evidence code?

For years, Citizens and other carriers have been improperly depriving homeowners of documents used to “refresh the recollection” of third-party “representatives” who had no actual knowledge in the first place. In other words–no “recollection” was ever being refreshed. They use third parties who literally study a cold file to prepare for the “corporate representative” deposition like a college student studying for an exam. In any event, it is great that a clear appellate opinion on this issue has finally been issued. Insurance companies’ standard “protective order” on which they seek agreement in every case should not be agreed to. If insurance companies want to have third parties with no knowledge perform the duty of “corporate representative” at depositions by reading from the file, then they must produce the documents the witness reads as his “testimony.”