IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA ANDERSON COLUMBIA and * COMMERCIAL RISK * MANAGEMENT, INC., * * Petitioners, * * Case No.: SC05-1073 v. * * JAMES BROWN, * * Respondent. * * ON PETITION FOR REVIEW OF OPINION OF THE FIRST DISTRICT COURT OF APPEAL OF FLORIDA PETITIONERS= JURISDICTIONAL BRIEF MARY L. WAKEMAN Florida Bar Number 0694703 RYAN M. BARNETT Florida Bar Number 0693707 McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Telephone: 850.222.8121 Attorneys for Petitioners

TABLE OF CONTENTS TABLE OF CONTENTS...i CITATIONS OF AUTHORITY...ii INTRODUCTION...iii STATEMENT OF THE FACTS AND OF THE CASE...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT THE FIRST DISTRICT=S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH AN OPINION FROM THE SECOND DISTRICT BY HOLDING THAT BILLING RECORDS OF DEFENSE COUNSEL ARE NOT PROTECTED BY THE WORK PRODUCT PRIVILEGE AND ARE RELEVANT TO THE ISSUE OF THE FEE AMOUNT THE COURT SHOULD AWARD TO CLAIMANT=S COUNSEL...3 A. Defense counsel=s billing records are subject to the work product privilege...3 B. Defense counsel=s billing records are not relevant to the issue of the Claimant=s attorney=s fee award...5 CONCLUSION...9 CERTIFICATE OF FONT... 10 CERTIFICATE OF SERVICE... 10 -i-

CITATIONS OF AUTHORITY Anderson Columbia v. Brown, 30 Fla. L. Weekly D949 (Fla. 1 st DCA 2005)...2 HCA v. Hillman, 870 So. 2d 104 (Fla. 2 d DCA 2003)...2,3,4,5,6,8 Spaulding v. Albertson=s, Inc., 610 So. 2d 721(Fla. 1 st DCA 1992)...7 Stowe v. Walker Builders Supply, Inc., 431 So. 2d 180 (Fla. 2 d DCA 1983)... 5,8 OTHER R. Reg. Fla. Bar 4-1.5(2003)...7 -ii-

INTRODUCTION Petitioners, Anderson Columbia and Commercial Risk Management Inc., will be referred to jointly as the AE/C@ or APetitioners.@ Respondent, James Brown, will be referred to as ABrown@ or AClaimant.@ -iii-

STATEMENT OF THE CASE AND OF THE FACTS Anderson Columbia employed James Brown on October 6, 2003, when he suffered a back injury at work. Following a course of medical treatment, Brown sought various workers= compensation benefits, including attorney=s fees and costs. The E/C agreed to provide some of the requested benefits and, in preparation for the attorney=s fee hearing, Brown=s attorney filed a Motion to Compel production of all attorney billing records related to the E/C=s defense of the Petitions for Benefits. On July 9, 2004, the E/C=s counsel filed a Motion for Protective Order. On July 30, 2004, the Judge of Compensation Claims entered a non-final order compelling the E/C to produce to Brown=s attorney the total hours the E/C=s counsel devoted to defense of the pending claims and the hourly rate the E/C paid its counsel. The E/C sought certiorari review from the First District Court of Appeal. In an opinion dated April 12, 2005, the First District denied the Petition for Writ of Certiorari. On April 27, 2005, the E/C filed a Motion for Rehearing, Rehearing En Banc, or in the alternative, Motion for Certification. The First District denied the motions without opinion on May 31, 2005. The E/C timely filed a Notice to Invoke Discretionary Jurisdiction on June 14, 2005. 1

SUMMARY OF THE ARGUMENT The First District=s opinion in Anderson Columbia v. Brown, 30 Fla. L. Weekly D949 (Fla. 1 st DCA April 12, 2005), expressly and directly conflicts with HCA v. Hillman, 870 So. 2d 104 (Fla. 2 d DCA 2003). Hillman held that: (1) billing records of opposing counsel are to be treated as privileged work product; (2) the party seeking production must establish that the requested material is actually relevant to a disputed issue; (3) the records sought must be needed to prepare for the attorney's fee hearing; and (4) that substantially equivalent material cannot be obtained from another source. In addition, Hillman established that billing records and the information contained within them are protected and rarely relevant in determining attorneys= fee awards. The First District=s opinion conflicts with Hillman by holding that the E/C=s counsel=s billing records were not protected by the work product privilege and were relevant to the issue of the fee to be awarded the Claimant=s attorney. 2

ARGUMENT THE FIRST DISTRICT=S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH AN OPINION FROM THE SECOND DISTRICT BY HOLDING THAT BILLING RECORDS OF DEFENSE COUNSEL ARE NOT PROTECTED BY THE WORK PRODUCT PRIVILEGE AND ARE RELEVANT TO THE ISSUE OF THE FEE AMOUNT THE COURT SHOULD AWARD TO CLAIMANT=S COUNSEL. A. Defense counsel=s billing records are subject to the work product privilege. The Second District, in HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d 104 (Fla. 2 nd DCA 2003), established a clearly defined analytical framework to address the discovery of attorney billing records, including hourly attorney fee rates. That court squarely held that (1) billing records of opposing counsel are to be treated as privileged work product; (2) the party seeking production must establish that the requested material is actually relevant to a disputed issue; (3) the records sought must be needed to prepare for the attorney's fee hearing; and (4) substantially equivalent material cannot be obtained from another source. Id. at 107. It is clear that, under the Hillman framework, the First District Court of Appeal erred in concluding that the E/C=s counsel should produce the amount of time he spent on the case as well as the hourly rate the E/C paid. First, Hillman established without qualification that attorney billing records are protected work product. ABilling records of opposing counsel are to be treated as privileged work product.@ HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d at 107. In the instant case, however, the First 3

District disagreed and held that the amount of time defense counsel spent and the hourly rate charged were not protected by either the work product or attorney/client privileges. Second, before disclosure of the time spent and the hourly rates charged, Hillman required that substantially equivalent material be unavailable from another source. HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d at 107. In the instant case, the Claimant=s attorney kept contemporaneous time records and has information about the amount of time he spent litigating the issues for which he is due a fee. Moreover, the amount of time the E/C=s counsel spent is immaterial and irrelevant in light of section 440.34(7), Florida Statutes (2003). That statute provides that a maximum fee of $1500 can be awarded to the Claimant=s attorney in this instance, regardless of the time actually spent. Thus, the amount of time the E/C=s attorney spent on the litigation is of no moment. Finally, Hillman requires that the billing information be necessary to prepare for an attorney fee hearing. Id. Again, the information sought is not necessary for attorney fee hearing preparation in light of the statutory cap on Claimant=s attorneys= fees in section 440.34(7), Florida Statutes (2003). Thus, the First District=s opinion does not comply with the framework outlined in HCA Health Serv. of Florida, Inc., 870 So. 2d at 104 and, therefore, expressly and directly conflicts with that opinion. B. Defense counsel=s billing records are not relevant to the issue of the Claimant=s attorney=s fee award. 4

The Second District held that the trial court departed from the essential requirements of law when it ordered production of an opposing counsel=s time sheets and billing records, without a special showing that the records were relevant to a disputed issue. HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d 104 (Fla. 2 d DCA 2003). The Second District specifically held: The fees of a prevailing party cannot be predicated upon the fees of one's opponent. See Stowe v. Walker Builders Supply, Inc., 431 So. 2d 180 (Fla. 2d DCA 1983). There are many sound reasons for this rule. For example, two competent attorneys handling opposite sides of a case will often, if not usually, spend substantially different amounts of time on the case. A deposition that may take one attorney a few minutes to prepare and attend may require hours of work on the part of the other lawyer. A production of documents by one side may require little time by that party's attorney because the work was performed by the client's staff. That same production may require days for the other attorney to review and analyze. Different clients have different reporting requirements and sometimes different expectations as to the time the attorney will spend on their case. Without belaboring the point, it should be self-evident that the records of one's opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney's fees to be awarded in a given case. HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d at 106. Id. The Court went on to explain its meaning of the term, Amarginally relevant@: While we suggest that the opponent's time records are marginally relevant, a more accurate statement might be that the records may, on rare occasion, be relevant to resolve a dispute about a particular billable event. For example, if a party were to challenge whether a mediation session lasted three hours or two days and information could not be obtained from the mediator, it might be appropriate to examine that party's own billing records as they pertain to the duration of the mediation session. 5

In the instant case, the First District affirmed the Judge of Compensation Claims= order which compelled the E/C=s counsel to disclose the rate charged by the E/C=s counsel and the hours expended in defending the claim. 1 The First District=s opinion expressly and directly conflicts with the Second District=s holding which found that discovery of such information should only be required when Amarginally relevant to the general issue of determining an appropriate amount of attorney's fees to be awarded in a given case.@ HCA Health Serv. of Florida, Inc. v. Hillman, 870 So. 2d at 106. The hourly rate paid to the E/C=s counsel is not marginally relevant to the issue to be determined at the upcoming attorney=s fee hearing because section 440.34 (7), Florida Statutes (2003), mandates that the maximum fee to be awarded in workers= compensation claims involving only medical benefits is $1500.00. Moreover, the Claimant=s attorney is not disputing the time spent on a particular billable event, but instead sought the billing records throughout the litigation of the entire case. records. The First District has previously recognized the limited use of an opponent=s billing... [W]e reject the suggestion that an award of fees to a claimant's attorney should be influenced or controlled by evidence of the hourly rate charged by defense lawyers. The practice of the defense bar, with their fixed hourly rates, repetitive employment, and virtual guaranteed payment 1 The JCC held that the E/C could redact the description of services rendered. 6

by solvent insurance companies, cannot be compared to the risk assumed by claimants' attorneys.... Spaulding v. Albertson's, Inc., 610 So. 2d 721, 724 (Fla. 1 st DCA 1992). The First District may have been persuaded to depart from its narrow approach in Spaulding by the knowledge that the Claimant=s attorney intends to seek a constitutional challenge to section 440.34 (7), Florida Statutes (2003). Impending constitutional questions, however, do not change the basic judicial framework of questions of privilege, work product, and relevancy. It is illustrative that the Rules Regulating the Florida Bar do not provide for consideration of the fees charged by an opposing party=s counsel as a factor when calculating fees to be charged to a client. R. 4-1.5, R. Reg. Fla. Bar (2003). This basic rule does not change simply because constitutional issues may be raised. Similarly, the Claimant=s purported constitutional challenge in this case does not make the defense counsel=s hourly rate or time spent germane. The Hillman court squarely recognized the marginal relevance of billing records. AThe fees of a prevailing party cannot be predicated upon the fees of one's opponent.@ HCA v. Hillman, 870 So. 2d at 106, citing Stowe v. Walker Builders Supply, Inc., 431 So. 2d 180 (Fla. 2 d DCA 1983). 7

CONCLUSION WHEREFORE, Petitioners respectfully request this Court accept jurisdiction of this case to resolve the conflict between the First and Second District Courts of Appeal. Respectfully Submitted, MCCONNAUGHHAY, DUFFY, COONROD, POPE & WEAVER, P.A. MARY L. WAKEMAN Florida Bar Number: 0694703 Post Office Drawer 229 Tallahassee, FL 32302-0229 Telephone: 850.222.8121 Facsimile: 850.222.5699 and RYAN M. BARNETT Florida Bar No.: 0693707 Post Office Box 13570 Pensacola, FL 32591-3570 Telephone: 850.434.7122 Facsimile: 850.435.0924 Attorney for Petitioners Anderson Columbia and Commercial Risk Management, Inc. 8

CERTIFICATE OF FONT I HEREBY CERTIFY that the size and style of type used in this brief is 14 point Times New Roman. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was served by U.S. Mail upon Rhett Smith, Esquire, 714 N. Spring Street, Pensacola, Florida 32501, on this 23 rd day of June, 2005. MARY L. WAKEMAN 9