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Vol. 5, Iss. 5
April 29, 2016

I’ll Show You Mine, But You Show Me Yours

 

I’ve never seen a case addressing this issue – but I doubt that Paton v. GEICO, No. SC14-282 (Fla. Mar. 24, 2016) is the first. After all, the scenario seems like it would come up now and then -- and it’s easy to understand why.

Kelly Paton was injured in a car accident due to the negligence of an underinsured driver. GEICO failed to pay the total amount claimed under an underinsured motorist policy. Paton filed an action against GEICO and a jury returned a verdict, in her favor, for $469,247. The trial court reduced it to $100,000, being the limit of the UM policy. Paton next added a claim of bad faith against GEICO and a jury awarded her $369,247, being the amount of the excess verdict in the UM trial.

Paton next moved for attorney’s fees and costs. The fees were highly contested and Paton sought discovery related to her opposition’s attorneys’ time records. Specifically, Paton served on opposing counsel a request to produce the following records: “1. Any and all time keeping slips and records regarding time spent defending GEICO in the bad faith action… 2. Any and all bills, invoices, and/or other correspondence for payment of attorney’s fees for defending GEICO in the bad faith action… 3. Any and all retainer agreements between you and/or your respective law firm for defending GEICO in the bad faith action…”

GEICO said no way -- on the basis that the information was privileged and irrelevant. The trial court overruled GEICO’s objection. The appeals court quashed the trial court’s order, concluding that “the records of opposing counsel are, at best, only marginally relevant to the determination of reasonable attorney’s fees” and Paton failed to make the necessary showing that
the billing records of opposing counsel were actually relevant and necessary “and their substantial equivalent could not be obtained elsewhere.”

The dispute made its way to the Supreme Court of Florida. The hanging chad court reviewed a handful of Florida cases addressing the issue and concluded that “the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested. When a party files for attorney’s fees against an insurance company pursuant to sections 624.155 and 627.428, Florida Statutes, as occurred here, the billing records of the defendant insurance company are relevant. The hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor.”

Further, the Florida Supreme Court concluded that “the entirety of the billing records are not privileged.” Thus, “where the trial court specifically states that any privileged information may be redacted, the plaintiff should not be required to make an additional special showing to obtain the remaining relevant, non-privileged information.”

 

 

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