Florida Statues Provides
A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.
A judge orders the defendant to provide evidence in Florida Nonbinding arbitration. The Defendant's administrative-contractor has provided Defense counsel with several emails as evidence. Defense attorneys submit pdf evidence: partially redacted email communication to the Arbiter and plaintiff. Said email starts with the partially redacted message, followed by the plaintiff's email. Evidence was published to a file sharing website for plaintiffs, to fulfill Florida procedural requirements.
Prima facie review of the redaction includes some clearly visible sentences. Stakeholders are able to deduce the sender, at least one named recipient, and the nature of the request: the Defendant's administrative contractor requested counsel from a third-attorney, seeking advice as to how to proceed with undertaking a contested action, under the guise of pretextual claims set forth by the administrative-contractor. The sender is not an employee of the defendent, however, they are contracted to execute the Defendent's decisions.
Despite the redaction failures, counsel attempted to redact the contractor's message. Plaintiff's attorney argued that based on what is visible, it is necessary to see the remainder of the message as "best evidence". Defense Counsel has vigorously asserted that the judge should not consider any of the information that is intended to be redacted under attorney-client privilege. The judge asked the defense if he should consider what is clearly already visible.
Analysis of the evidence clearly revealed the fully unredacted message. Said analysis includes: Plaintiffs were able to "cut and paste" the partially redacted email to a basic text editor to reveal the complete message, without redactions. The message is an attempt to request counsel as to how to undertake the contested action and provides false information to counsel. The message is damaging to the Defense's case as the contractor admits plaintiff's claim.
The unredacted message:
provides a pretextual basis to the third-attorney, for which counsel provide an opinion-letter regarding why the defendant is able to undertake the its disputed action. The opinion letter is the foundation which the Defendent relies upon for the Business-Judgement rule.
The unredacted message shows that Defendent's contractor admitting the absence of the defense claimed by Defendents.
I would be interested in hearing arguments for AND against admitting the plaintiff's version of the unredacted version of evidence and why you think the judge will / will not admit the unredacted version.
I would like to understand (preferably with Florida case law examples): Is the disclosure of the evidence "as-is and subject to plaintiff "cut and paste" analysis?