In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.
Fla. Stat. § 90.510 — Privileged communication necessary to adverse party
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Privilege as a "Sword and Shield": This unique Florida statute prevents a party in a civil case from using a privilege as both a "sword" (to make a claim) and a "shield" (to hide the evidence related to that claim).
Core Principle: If a party's claim or defense depends on a particular issue, they cannot then use a privilege to block the opposing party from discovering communications that are essential to fairly litigating that same issue.
The Remedy: If a party does this, the judge has a powerful remedy. Upon a motion from the adverse party, the judge can **dismiss the claim** or **strike the affirmative defense** that relies on the hidden information. Before making this decision, the judge may privately review the privileged information (an "in camera" review) to determine if it is truly necessary for the other side's case.
Example: A client sues their former lawyer for legal malpractice, claiming the lawyer gave them bad advice. This is the "sword." When the lawyer's new attorney tries to ask the client about the specific conversations to defend against the claim, the client asserts the attorney-client privilege. This is the "shield." Under this statute, the judge could dismiss the client's malpractice lawsuit because the privileged communications are necessary for the lawyer to mount a proper defense.
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Cite as Fla. Stat. § 90.510 (2024)
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