SHOW ME THE BILLS! – Why Your Billing Records May Now Be Discoverable in an Attorneys’ Fees Dispute

The Florida Supreme Court, in the matter of Paton v. Geico Gen. Ins. Co. recently reviewed a decision of the Fourth District Court of Appeal quashing the trial court’s orders relating to attorney’s fees discovery propounded by Petitioner, Kelly Paton, subsequent to obtaining a favorable verdict against Respondent, Geico, in a bad faith action.  Paton moved for attorney’s fees and costs against Geico, pursuant to sections 624.155 and 627.428, Florida Statutes (2010) and sought discovery related to opposing counsel’s attorneys’ time records.  The request to produce requested Geico’s counsel provide any and all timekeeping slips and records regarding time spent defending Geico in Paton’s bad faith action; any and all bills invoices and/or other correspondence from payment of attorney’s fees for defending Geico in the Paton bad faith action; and any and all retainer agreements for defending Geico in the Paton bad faith action.  Geico objected to the request to produce on the basis that the information was privileged and irrelevant and relied on Estilien v. Dyda, 93 So. 3d 1186 (Fla. 4th DCA 2012) and HCA Health Services of Florida v. Hillman, 870 So. 2d 104 (Fla. 2d DCA 2003).  The trial court overruled Geico’s objections, but allowed Geico to redact privileged information from the responsive documents.

Paton also served Lodestar/Multiplier Fee Determination Interrogatories to Geico. One interrogatory requested Geico provide specific information regarding time spent by its attorneys prosecuting or defending the bad faith action.  Geico objected, once again relying on Estilien and Hillman. The trial court overruled the objection; however, the Court’s order did not reference redaction of any privileged information.

As a result, Geico filed a petition for writ of certiorari in the Fourth District requesting that the district court quash the orders relating to the request to produce and the interrogatory.  Geico alleged that Estilien and Hillman established that a party must make a special showing prior to the discovery of the billing records of opposing counsel and that Paton failed to make such a showing. Geico also alleged that the materials were privileged and irrelevant. The Fourth District granted the petition and quashed the circuit courts orders holding that Estilien controlled.  Paton sought review of the Fourth District Court of Appeal’s decision, alleging it conflicted with State Farm & Fire Casualty Co. v. Palma, 555 So. 2d 836 (Fla. 1990), a Florida Supreme Court case where the Court considered the billing records of opposing counsel to be relevant in an attorneys’ fee dispute involving a contingency fee multiplier.

The Florida Supreme Court granted Paton’s petition for certiorari and held that the billing records of opposing counsel were relevant to the issue of reasonableness of time expended in a claim for attorney’s fees and that their discovery falls within the discretion of the trial court when the fees are contested.  It further held that, where a party files for attorney’s fees against an insurance company, pursuant to sections 624.155 and 626.428, Florida Statutes, the billing records of the defendant insurance company are relevant.

Although the Paton case involves an attorney’s fee dispute pursuant to sections 624.155 and 626.428, Florida Statutes, it is likely that this case will be relied upon in many other attorney’s fees disputes across the state involving non-insurance matters. Therefore, Florida lawyers contesting an opposing counsel’s fees and costs in a matter not involving an insurance company should be judicious in objecting to discovery similar to that served in Paton, as the trial court may eventually order the objecting party to produce its attorney’s billing records.

To read the Florida Supreme Court’s complete opinion in the Paton case, click here.