The Florida Office of Judges of Compensation Claims has the authority to impose sanctions. References thereto are in sections 440.32, 440.33(1), (2), 440.45(1)(a), (4), Florida Statutes. The Process for imposing sanctions is in Rule 60Q6.125. The Rule addresses sanctions "generally," regarding "failure to comply with the provisions of these rules or any order of the judge," and provides a detailed process for initiating a motion for sanctions. That process includes a 21-day period after service during which a party might alleviate the alleged grounds for sanctions sought.
The First District Court of Appeal addressed this Rule, and a motion for sanctions under section 440.32(3), Florida Statutes, in Phillips v. Leon County Public Works, 277 So.3d 1076 (Fla. 1st DCA 2019). There, the trial judge had concluded that the party seeking sanctions had not complied with the process set forth in Rule 60Q6.125. Therefore, sanctions were denied. The Court reversed. It explained that "the sanction in 440.32(3) is a stand-alone statutory sanction." There is not any "safe harbor" in that statute (as there is in the rule, to allow the alleviation of grounds).
The Court explained that when this statute section is implicated, it may result in a judge being compelled to impose sanctions under the statute. The Rule "cannot be viewed as a procedural amendment to the statute." The provisions of Rule 60Q-6.125(4)(a) do "not apply to the extent it precludes filing a motion for sanctions under the plain language of section 440.32(3)." That analysis is consistent with our hierarchy of law generally, statutes take precedence over rules.
This decision is seen by some as a broad negation of the Rule. However, the provisions of section 440.32(3) are specific and focused. It provides:
"The signature of an attorney [on a pleading, motion, or other paper] constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion, or other paper is signed in violation of this section, the judge of compensation claims or any court having jurisdiction of proceedings, upon motion or upon its own initiative, shall impose upon the person who signed it an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." (Emphasis added).
The "shall" makes the operation of the section mandatory, rather than discretionary. However, the "shall" follows the requirement in this statute that the signer is an attorney, and is certifying that the document signed "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry" is "well grounded" and not signed for "any improper purpose." Thus to be "signed in violation of this section," the judge must make particular findings of impropriety upon which the "shall" then proceeds. If something is signed by a party or witness who is not an attorney, then this section is not implicated at all. That may, however, remain within the parameters of Rule 60Q-6.125.
Another point noted by the Court in Phillips is that in addition to allegations of "an improper and unfounded discovery objection," there was also an allegation that despite raising a "work product privilege" objection, the objecting party did not "file a privilege log disclosing any documents withheld." The assigned judge in Phillips then ordered the preparation of a privilege log, but the objecting party still did not produce one. The purpose of the privilege log is to afford a party seeking documents to understand the nature (description) of what is not being produced and why.
The Courts have held that “when a party asserts the work-product privilege, it should file a privilege log. See Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1032 (Fla. 4th DCA 2002)(“The way that a party claims privilege under [rule 1.280(b)(5)23] is to file a privilege log.”). Rule 1.280(b)(5) as addressed in these decisions is now rule 1.280(b)(6). Waiver of the work-product privilege is “not favored in Florida.” However, the Rule regarding such a log is “mandatory and a waiver can be found by failure to file a privilege log.” Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006); Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel. Shahbas, 960 So.2d 820 (Fla. 2nd DCA 2007). This is true if “the information is otherwise discoverable.” This is an important reminder for attorneys when they raise the privilege objection.
Thus, Phillips provides a worthy reminder of the requirement for a privilege log when raising such an objection. It is also worth noting that when ordered to prepare such a log, the appropriate next step is to do so. Following orders of the judge is sound practice in any case or situation, with the only good alternatives being seeking rehearing or seeking appellate relief instead.
But, the main focus of the Court's decision is on the application of Rule 60Q-6.125(4)(a) to the sanctionable actions specifically included in section 440.32(3). Despite some earlier decisional law that suggested the Rule might affect the operation of this statute, the Court clarified "This rule does not apply to the extent its provisions contradict the plain language of the statute." Statutes control over rules.
But, the main focus of the Court's decision is on the application of Rule 60Q-6.125(4)(a) to the sanctionable actions specifically included in section 440.32(3). Despite some earlier decisional law that suggested the Rule might affect the operation of this statute, the Court clarified "This rule does not apply to the extent its provisions contradict the plain language of the statute." Statutes control over rules.
The decision does not render section 440.32's application mandatory per se in every setting. Some lawyers appear to be over-reading that. It becomes mandatory if the judge or court determines that there was not good faith belief regarding what was signed, on the part of the signer; only if the judge determines that what was signed was not "well grounded in fact" and "warranted by existing law or "a good faith argument for the extension, modification, or reversal of existing law," and/or was "interposed for any improper purpose." Thus, there are arguments that the provision is not as broad as some may perceive it.
