COURT NEEDS A PROPER RECORD OF WHAT WAS REVIEWED IN CAMERA BEFORE IT CAN REVIEW THE RULING ORDERING PRODUCTION

USAA v. Bay Area Injury Rehab, 45 Fla. L Weekly D1714 (Fla. 2nd DCA July 17, 2020):

Plaintiff sued USAA for engaging in unfair and bad faith practices in denying its PIP claims.

When USAA objected to producing even a single record, and after several machinations in front of the special master, the trial court decided to conduct an in camera inspection of the documents in dispute. The court concluded that about one-third of them were not subject to production under the attorney-client privilege, but ordered USAA to produce the rest. USAA disagreed with the court’s ruling, finding that the attorney-client privilege precluded production.

However, USAA never filed the documents in question under seal in the record, despite its obligation to demonstrate error on the part of the trial court. USAA never demonstrated that it followed the proper procedure for filing the documents reviewed in camera.

Because the documents in this case were not in the trial court’s records, they could not be transmitted to the appellate court for review under Rule 9.220(a). Thus, that rule could not save USAA (permitting a party to cure an incomplete appendix) because the records were never made part of the record.

When challenging documents that have been submitted to the trial court in camera, it is necessary to move the trial court for an order transmitting under seal those documents to the appellate court.