The Fourth District Court of Appeal Grants Petition Regarding the Waiver of Privilege Objections

DLJ Mortgage Capital, Inc. v. Fox, 4D12-2264 (Fla. 4th DCA 2013):

This petition arose from a residential mortgage foreclosure action. DLJ sought review of an order finding that it waived the right to raise work product and attorney client privilege objections to a discovery request because it failed to file a privilege log.

DLJ made three arguments: (1) that the failure to file a privilege log did not justify finding a waiver because some of the objections were category-based; (2) that a privilege log was not due for several of the items, because the court had not yet ruled on other grounds for objection that were simultaneously raised along with the work product or attorney client privilege; and (3) that the court could not implicitly waive the privilege as a sanction for a serious discovery violation. Fox argued that the court properly found a waiver because the crime-fraud exception applied.