Casualty Litigation

The Seven Privileges: Protecting Confidentiality of Florida Defendants

The Seven Privileges: Protecting Confidentiality of Florida Defendants

Michael Forte, partner, represents defendants in casualty defense, products liability and premises liability.

Litigation is intrusive. By filing a lawsuit, a personal injury plaintiff makes his private life fair game. But a defendant did not ask to be sued, or for any of the scrutiny that goes along with it. Some of this scrutiny cannot be avoided. However, Florida law recognizes seven privileges that limit the extent of information a defendant must disclose.

Spousal Communications Privilege

Florida Statutes Section 90.504 gives a defendant the right to refuse to answer questions about what he or she discussed with a spouse during the marriage, even if the marriage has ended. Most often, this issue arises when the defendant is set for deposition, and the plaintiff’s attorney asks what the defendant said to the spouse regarding the subject matter of the case. The statute also gives the defendant the right to prevent the spouse from disclosing the information. In reality, the defendant cannot prevent the spouse from talking. In practice, the defendant could file a motion for protective order should the plaintiff’s attorney try to depose the spouse on the communications.

Accident Report Privilege

Florida Statutes Section 316.066 provides that in car accident cases, any statement made by the defendant to the investigating law enforcement officer is to be considered “without prejudice.” That is, the statement cannot be used against the defendant at trial. The plaintiff will learn about the statement by reading the crash report, but is prohibited from asking the defendant about it in front of the jury.

Work Product Privilege

Florida Rule of Civil Procedure 1.280 protects communications between the defendant and the defendant’s insurer when the communications pertain to the lawsuit. Plaintiff’s fairly regularly seek this type of information in discovery, and defendants should object.

Mediation Privilege

Florida Statues Section 44.405 prohibits the people in attendance at a mediation conference from disclosing what the defendant said there. As in the spousal communication context, the defendant has the right to prevent other people from disclosing this information as well.

Medical Information Privilege

Article I of the Florida Constitution makes a defendant’s medical information confidential, as does the federal Health Insurance Portability and Accountability Act. But in personal injury car accident cases, the Florida Supreme Court has approved three specific questions regarding the defendant’s medical history:

  • Were you suffering from physical infirmity, disability or sickness at the time of the incident described in the complaint? If so, what was the nature of the infirmity, disability or sickness?
  • Do you wear glasses, contact lenses or hearing aids? If so, who prescribed them, when were they prescribed, when were your eyes or ears last examined, and what is the name and address of the examiner?
  • Did you consume any alcoholic beverages or take any drugs or medications within 12 hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverages, drugs or medication which were consumed, and when and where you consumed them.

To obtain any additional medical information beyond this, the plaintiff first must show a sufficient connection between the issues in the civil case and the information sought. If the plaintiff is able to demonstrate this connection, the defendant then is entitled to request an in camera hearing, meaning the additional information would be reviewed by the judge to ensure it is relevant before the plaintiff can obtain it. Any other medical information would remain confidential and o” limits to the plaintiff.

Privilege Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution prohibits a criminal defendant from being required to testify against himself. Florida courts have extended this right against self-incrimination to the civil context. When responding to civil discovery could result in self-incrimination in a corresponding criminal case, the civil defendant has the right to refuse to answer the discovery. One common example is when a defendant is sued in civil court for causing a car accident; is asked questions in the discovery process about being intoxicated during the accident; and is subject to a pending or contemplated criminal case for driving under the influence. In that scenario, the civil defendant has the option to refuse to respond to questions about drunk driving.

Attorney-Client Privilege

Florida Statutes Section 90.502 makes communications between the defendant and his or her lawyer confidential.

Reprinted with permission from the March 17, 2021 edition of Daily Business Review © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or