IN THE CIRCI]IT COURT OF THE

JUDICIAL CIRCUIT IN AND FOR PALM BEACH COU\TY, FLOzuDA

15TH

CASE NO.: 502009CA030403XXMB AW

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDER OF DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SEzuES 2OO7 BAR1 MORTGAGE PASS-THROUGH CERTIFICATES,

Plaintiff,
VS.

ABBY G. LOPEZ, ET AL.,

Defendant.

NFO
MO
PUR

ON AND

ARING ON
TNF

TTO

PRIVI Y.C COURT FILE

plaintiff, HSBC Bank USA, National Association, as Trustee for the Holders of Deutsche

ALT-A Securities Mortgage Loan Trust,

Series 2007-BAR1 Mortgage Pass-through certificates',

to Purge Amended (Plaintiff), herey requests a confidenltal, in camera hearing on its Motion kt support, Plaintiff states as Affidavit of Indebtedness from the Record (the Motion to Purge).'
follows:

I.
Piaintiff has filed
a

INTRODUCTION

use and Motion to Purge from the court record, and to prevent further

that was inadvertently attached to an disclosure of, an attorney-client privileged communication

that the attorney-client priviiege is affidavit of indebtedness filed with the court. The law is clear

court April 76,2012, and was originally scheduled to be heard before this of the instant undersigned terminated the hearing in favor May 24,2012. Duetfiln. prU5. nature or*re i,*ring, the
The Motion to purge was filed on
on requesting a confidential, in camera hearing'

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,,maximum protection" under Fl0rida 1aw and that the determination of challenged entitled to by the court in camera' The hearing on claims of attomey-client privilege should be conducted

plaintiffs Motion to purge in this

case

will inevitably entail discussion of the attorney-client

including possible discussion of the privileged communication between Plaintiff and its counsel,
settled Florida 1aw, such discussions should meaning and purpose of that communication. Under

portions of the hearing specifically addressing be conduct ed in camera. Ata bare minimum, any and any corresponding portion of the substance of the attorney-client privileged communication, the record of such proceedings, should be made confidential'

II.

FACTUAL BACKGROUND

l.OnoraboutSeptemberl,2}Og,Plaintifffiledtheinstantforeciosureaction
her default under the subject note and against defendant, Abby Lopez(Defendant), following
mortgage.

2.

Loan servicing' L'P' Bank of America, N.A., successor by merger to BAC Home
and

its capacity as loan servicer f/k/a Countrywide Home Loans Servicing, L'P. (BANA), in

hereinafter be referred to collectively as authorized agent for plaintiff (plaintiff and BANA shall

Plaintifl),

engaged the

law firm of Smith, Hiatt

&

Diaz, P.A. (Smith Hiatt) to prosecute this

foreclosure action.
3

Kimberly Sue Daley On or about October 10, 201 1 , Plaintiff filed the afflrdavit of

History and in support of its motion for sunmary judgment in a document entitled "Payment

for Summary Judgment and Amended Affidavit of Indebtedness Supporting Plaintiffs Motion
(the Notice withdrawing Previous Affidavit of Indebtedness"
attached as an exhibit a

AoI).

The

AoI

referenced and

default BANA business record showing, among other things, the date of

under the subject loan and amounts due thereunder'

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included an electronic intercom The AOI inadvertently and unintentionally also

(the Nicholas Leonhard and "BAc Affidavits" communication by and between BANA emproyee

not referenced or described in the AoI' Intercom Exchange). The Intercom Exchange was

5.

private intercom inbox As set forth in the Motion to Purge, BAC Affrdavits is a

Hiatt, regarding the various through which Plaintiff communicates with its counsel, Smith

plaintiff has engaged Smith Hiatt to serve as foreclosure counsel. forecrosure cases for which

for the express purpose of The intercom inbox was created and maintained by Smith Hiatt
its client, here, Plaintiff, regarding facilitating confidential and privileged communications with litigation issues that arise during the course of foreclosure proceedings'

6.

The Intercom Exchange attached to the

AoI

was a private, attomey-client

this foreclosure case; the privileged communication between Plaintiff and Smith Hiatt regarding
legal advice on issues relating Intercom Exchange itself makes clear that Plaintiff was requesting

to this foreclosure.

l. g.

ultimate disclosure The attachment of the Intercom Exchange to the AOI, and its

to the Court and to Defendant, was inadvertent and unintentional'

privileged matters Despite the express discussion of confidential, attomey-client

contact Smith Hiatt in the Intercom Exchange, opposing counsel, Peter J. Snyder, Esq', did not

to return the privileged upon receiving the communication and nor did he make any attempt
first became aware the documents. It was not until an April 3,2072, hearing that Smith Hiatt
attached to the attomey-client privileged Intercom Exchange had been inadvertently disclosed to this Court and to Defendant'

AoI

and

g.

Purge on grounds Shortly thereafter, Smith Hiatt frled and served the Motion to

attorney-client privileged that the Intercom Exchange represented an inadvertently disclosed,

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Motion to memorandum in support of the The undersigned frred a supplementar communication.

Purge'
inally scheduled before this L^^-i-^ ^' fhe l\rfntit l0.ThehearingontheMotiontoPurgewasoriginallyscheouteoDer court for

May24,2ol2,AstheMotiontoPurgeinevitablyrequireddiscussionoftheattomey-client of that privileged including possibly the meaning and purpose

privileged Intercom Exchange,

in camera and tenus motion that the hearing be held communication, Plaintiff made an ore confidenttal, in camera advised that it would not conduct a closed from pubiic view. The court
in camera hearing' The and hearing on the propriety of an hearing without a separate motion requesting with an open hearing or fi1ing a motion court gave Plaintiff the option of proceeding on the undersigned requested that the hearing ral, in camerahearing. Accordingly, a confident the instant motion' that he could request such relief via the Motion to purge be continued so

ll.Duetotheprivilegednatureoftheinadvertentlydisclosed,attomey-client
plaintiff hereby requests that this from the record, priv,eged communication sought to be purged
proceed by a confidential, in camera hearing. Court allow the Motion to Purge to

IIL

LEGAL ANALYSIS

AsdiscussedmorefullyintheMotiontoPurge,thelntercomExchangeatissueinthis caseisanattorney-clientprivilegeddocument'Floridacourtsrecognizetheattorney-client

priviiegeaSoneoftheoldestandmostsacrosanctprivileges-oneentitledto''maximum 4th 2009) (Jniversity, Inc. v' Jacobson' 25 So' 3d 82' 86 (Fla' protection.' ' Nova southeastern at common law and ' ' ' is is the oldest confidential communication
(,,the attorney-client privilege

traditionallydeemedworthyofmaximumlegalprotection.'');SeealsoFla.Stat.$90.502.
to conduct an in comera hearing and examination Accordingly, Florida trial courts are required v' Young' 654 So' 2d'962' 963 (Fla' 3rd DcA of documents claimed to be privileged. state

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under the attorney-client privilege); Kusch

1995)(findingincamerahearingis"properprocedure"todetermineiftestimonyisprotected 1994) v' Ballard' 645 So' 2d lO35 (Fla' 4th DCA
court determined that the attorney-client (afier in camera review of the letter at issue, the Inc' v' walker' 583 the accidental disclosure); Allstate Ins' co''
privilege had not been waived by

privilege is asserted' the court must hold an in So. 2d 356, 358 (Fla. 4th DCA 1991) (when

Old Hotdings' Ltd' camerainspection in order to rule on privilege applicability); Howard, shaw

v'

Taplin'

(where & Miller, P.A., 584 So. 2d 1128, ll28-29 (Fla' 4th DcA 1991)

opinions of attorneys to opposing counsel' documents could reveal the mental impressions and

privilege and the work product the documents may be protected by both the attorney-client doctrine; under such circumstances, parties are entitled

to an in

camera review

of

the

So. 2d,93 (Fla. 1st DCA 1986) (deposition documents); Brevard comm. coilege v. Barber,488

in camera inspection of arlegedly privileged adjourned to alrow praintiff s counser to obtain an

documents

382 So' 2d 1376' 1318-79 (F1a' 4th DCA ); Skorman y. Hovnanian of Floridq, Inc.,

in camera inspection to determine whether 1980) (appellate court ordered trial court to perform
correspondence was privileged); Snyder

v. Value Rent-A-Car, 736 So' 2d 780' 782 (Fla' 4th

are asserted, the trial court DCA 1999) (,,when the work product and attorney-client privileges of of the material at issue in order to rule on the applicability must hold an in camera inspection (Fla. 4th DCA the privileg e."); Glenns v. Miller,692 So. 2d 303
1

997) (trial court departed from

in camera inspection of document the essential requirements of the law by not conducting an co. v. Eddings, 673 So' 2d 131 (Fla' before issuing ruling.); see also, Uniroyal Goodrich Tire
4th

DcA

1996)

of manual (trial court was required to condu ct in camera hearing and inspection

Care, Inc. v. Spunberg,722 So' 2d to determine whether manual was trade secret); Salick Health 944

of law when it (Fla.4th DCA 1998) (trial court departed from essential requirements

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compelled production

of

documents alleged

to be proprietary and confidential trade

secret

information without first condu cting

in

camera hearing and inspection and failing to make

objections). specific findings offact concerning the trade secret disclosed, atlorneyHere, plaintiff alleges that the Intercom Exchange is an inadvertently

authority, this Court must conduct client privileged communication.2 Pursuant to the foregoing
a confident
ra).,

set forth in the in camera review of the Intercom Exchange and of any arguments

whether the relief requested in Motion to Purge to determine whether such privilege exists and the Motion to Purge is justified.3 are entitledto in camera courts generally acknowledge that parties to civil proceedings
See, e'g', (Jniroyal Goodrich hearings when important public policies or values are implicated' 1313 (M'D' Fla' 1999); Tire co.,673 So. 2d131; U.S. v. McCorkle,78F. Supp' 2d,1311,
l',{',S' v'

valenti,

gg7 F.zd 70g (11th

cir.

lgg3) (the court may exercise its "traditional authority" and

finds that denial is necessary to discretion to deny access to in camera materials where the court
preserve higher values). The attorney-client privilege

which is afforded "maximum protection"

under Florida law

is

just the type of interest that an in camerahearing is intended to protect'

If

that fact does not obviate the need for an in camerct disseminated on the internet by Difendants or others. However, disclosed, privileged information does not hearing. First, the acts of thld parties in disseminating inadvertently Pharmaceutical Co.,838 F'Supp' 1573 (S'D' Fla' 1993)' result in a waiver of one's privileie. See Smithv. Armour and its counsel in open court could conceivably However, discussion of the same privileged information by Plaintiff privileg.. tuto.. importantly, in addressing the attorney-client privileged be argued as supporting a waiver of the the meaning and purpose,of that communication, communication at issue there is likely to be discission concerning what has been fi1ed with the court and impiicating additional work produci and privileg" irru", tf,ut go. beyond on the internet. Such discussion should be conducted in camera'
aisseminat-ed

, t"rrrff ."*rr-

has since been that the priviieged communication inadvertently fiied with the court

3 Additional authority for the principal that this court may conduct confidential hearings can be found in plaintiff submits that this Administrative order, and the procedures Administrative order No. 2.303-g/0g. However, paragraph 10 of the Administrative order clearly provides set forth thereil, do not appiy here. Mo.e specificaly,

pursuant to statute, rule or other legal authority' As. set that the Order does not appiy'to records that are confiaentiat privilege should be resolved in forth herein, there is well-settled legal authoiity,tu, claims of attorney-client that well-settled legal right' not purport to, alter camera. This court,s Administrative order .unnoi and does

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or privileged information' the the discussion before the court is going to involve confidential
court should conduct
a

hearing in camera. valenti,987

.2d708.

to grant the instant motion and order Based on the foregoing, this Court has the authority
hearing' that the Motion to Purge be heard in a confidential, in camera

IIL

CONCLUSION

be granted and the hearing on For the reasons set forth above, the instant Motion should held in camera' the Motion to Purge should be deemed confidential and

Respectfully Submitted,

AKERMAN SENTERFITT

,--2

e.'

William P. Heller, Esq. Florida Bar No. 987263 email: william.heller@akerman.com Marc J. Gottlieb, Esq. Florida Bar No. 827819
email

marc. gottlieb@akerman.com

Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, FL 33301'2229 Phone: (954) 463-2700 Fax: (954) 463-2224 Email : marc. gottlieb@akerman. com

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CERTIFICATE OF SERVICE

HEREBY CERTIFY that a true and correct copy of the foregoing was fumished via

U.S. Mail

this fl

day of June ,2012 to:

M. Stemer, Esq. Smith, Hiatt & Draz, P A. Attorneys for Plaintiff P.O, Box 1438 Fort Lauderdale, Florida 33339-1438 Tel: 954-564-0071 Fax: 954-564-9252
Sarah
.

Peter J. Snyder, Esq.

Attorneys for Abby G. Lopez 2234|\orth Federal Hrghway, #490 Boca Raton,FL 33431

Unknown Tenant No. 1 N.K.A. David Lopez 613 Gazetta Way West Palm Beach, Florida 33413

V. Claire Wyant-Cortez, Esq. Attomey for TERRACINA HOMEOWNERS' AS S OCIATION, INC. 860 U.S. Highway One, Suite 108 North Palm Beach, Florida 33408

Marc J. Gottlieb

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