By: Ted Babbitt
Published: November 2016
In the recent Supreme Court case of Paton v GEICO Gen. Ins. Co., 190 So. 3d 1047 (2016) the Supreme Court resolves a conflict between the District Courts on whether opposing counsel’s attorney’s fee records are discoverable with respect to a motion to tax attorney’s fees.
Prior to the decision in Paton, supra, the law in the Fourth and Second District was controlled by Estilien v. Dyda, 93 So. 3rd 1186 (Fla. 4th DCA 2012) and HCA Health Services of Florida v. Hillman, 870 So. 2d 104 (Fla. 2nd DCA 2003).
In Estilien, the Fourth District held that a party seeking to discover the opposing party’s attorney’s billing records was required to show that those records were actually relevant, that discovery was necessary, and that the substantial equivalent could not be obtained from other sources. The Estilien Court found that the records of opposing counsel were, at best, only marginally relevant as to the determination of what a reasonable attorney’s fee would be for the moving party. Estilien, supra, at 1188-89.
In Hillman, supra, the Second District held that the billing records of opposing counsel were only sometimes relevant and that even when relevant they were protected by both attorney-client and work product privileges, Hillman, supra, at 107.
These cases were consistent with the Fourth District opinion in Heinrich Gordon Batchelder Hargrove Weihe & Gent v. Kapner, 605 So. 2d 1319 (Fla. 4th DCA 1992) which held that the billing records of opposing counsel were not discoverable if they contained any privileged or irrelevant information.
In Anderson Columbia v Brown, 902 So. 2d 838 (Fla. 1st DCA 2005), the First District held that because the trial court’s order did not require defense counsel to provide the descriptions of the services that they provided, there was no requirement to reveal the mental impressions, conclusion, opinions, or legal theories of defense counsel and therefore, where relevant, the billing records of opposing counsel were discoverable within the discretion of the trial court.
In Paton, in the underlying District Court opinion of GEICO Gen. Ins. Co. v Paton, 150 So. 3d 804 (Fla. 4th DCA 2014), the Fourth District relied upon Estilien and Hillman and granted a writ of certiorari striking the trial court’s order requiring production of opposing counsel’s time records.
In the Supreme Court’s review of Paton, the rational of the First District in Anderson Columbia, supra, was followed. At S117 the Supreme Court held:
We agree with the rationale of the First District
in Anderson Columbia and conclude 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.
In this opinion, the Supreme Court assumes that the trial court’s order would allow the redaction of any privileged information but with that proviso would not require the moving party to make any special showing to obtain opposing counsel’s billing records. At 117, the Court holds:
We hold that the hours expended by counsel for
the defendant insurance company in a contested
claim for attorney’s fees filed pursuant to sections
624.155 and 627.428, Florida Statutes, is
relevant to the issue of the reasonableness of
time expended by counsel for the plaintiff, and
discovery of such information, where disputed,
falls within the sound decision of the trial
This decision eliminates the conflict among the District Courts on the issue of whether opposing counsel’s billing records are relevant and discoverable in a motion for attorney’s fees. While the holding specifically refers to Fla. Stat. 624.155 and Fla. Stat. 627.428, there is no reason to assume that the reasoning would not equally apply to any other claim for attorney’s fees.