A new Second District opinion provides important guidance for Florida administrative litigation, particularly where agencies attempt to depose opposing counsel or probe privileged strategy.
In Kesler v. Progressive Select Insurance Co. (Fla. 2d DCA Apr. 1, 2026), the court quashed an order compelling the deposition of a claimant’s attorney in a first‑party bad‑faith case. The insurer sought testimony about settlement discussions, claim valuation, and the client’s willingness to accept less than policy limits, arguing that the filing of the bad‑faith claim waived privilege.
The Second DCA squarely rejected that argument.
Filing a Claim Does Not Waive Privilege
The court held that the mere filing of a claim—even one where intent or settlement conduct is disputed—does not waive attorney‑client privilege or work product protection. Settlement communications, attorney advice, and counsel’s mental impressions remain protected, regardless of relevance or alleged need.
The court emphasized that waiver occurs only where a party must necessarily rely on privileged communications to prove its own claim. That did not occur in Kesler, and an opposing party cannot manufacture waiver by asserting a defense that would benefit from privileged material.
Why This Matters in Administrative Cases
Although Kesler arose in the insurance context, its reasoning directly applies to Florida administrative litigation. Agencies may sometimes argue that counsel’s advice, strategy, or settlement posture is “relevant” to issues such as intent, compliance, or timeliness. Kesler confirms that relevance alone is never enough.
As the court made clear, litigation should focus on the government’s conduct and statutory authority, not the opposing party’s confidential communications with counsel.
Strong Support Against Attorney Depositions
The opinion also reinforces that depositions of opposing counsel are extraordinary and disfavored, particularly where privilege is implicated. Broad orders compelling attorney testimony—without narrow limits or findings—are ripe for certiorari relief.
Takeaway
For Florida administrative practitioners, Kesler offers clear appellate authority that:
- Privilege belongs to the client and cannot be waived by an agency’s litigation strategy
- Attorney settlement discussions and strategy remain protected
- Agencies bear the burden of proving their case without invading privileged communications
This decision is a valuable tool for resisting discovery tactics aimed at opposing counsel in administrative proceedings.
Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A. Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals. Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.
Read the full case opinion here.
This article is provided for general informational purposes only and does not constitute legal advice or create an attorney–client relationship. Readers should consult qualified counsel regarding the specific facts of their cases.