Florida Statutes 61.58 – Confidentiality of a collaborative law communication
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Except as provided in this section, a collaborative law communication is confidential to the extent agreed by the parties in a signed record or as otherwise provided by law.
(1) PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW COMMUNICATION; ADMISSIBILITY; DISCOVERY.–
(a) Subject to subsections (2) and (3), a collaborative law communication is privileged as provided under paragraph (b), is not subject to discovery, and is not admissible into evidence.
Terms Used In Florida Statutes 61.58
- Collaborative law communication: means an oral or written statement, including a statement made in a record, or nonverbal conduct that:(a) Is made in the conduct of or in the course of participating in, continuing, or reconvening for a collaborative law process; and(b) Occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded or terminated. See Florida Statutes 61.56
- Collaborative law participation agreement: means an agreement between persons to participate in a collaborative law process. See Florida Statutes 61.56
- Collaborative law process: means a process intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys. See Florida Statutes 61.56
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Contract: A legal written agreement that becomes binding when signed.
- Department: means the Department of Revenue. See Florida Statutes 61.046
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Nonparty participant: means a person, other than a party and the party's collaborative attorney, who participates in a collaborative law process. See Florida Statutes 61.56
- Party: means a person who signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter. See Florida Statutes 61.56
- Person: means an individual; a corporation; a business trust; an estate; a trust; a partnership; a limited liability company; an association; a joint venture; a public corporation; a government or governmental subdivision, agency, or instrumentality; or any other legal or commercial entity. See Florida Statutes 61.56
- Proceeding: means a judicial, an administrative, an arbitral, or any other adjudicative process before a tribunal, including related prehearing and posthearing motions, conferences, and discovery. See Florida Statutes 61.56
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Florida Statutes 61.56
- Rescission: The cancellation of budget authority previously provided by Congress. The Impoundment Control Act of 1974 specifies that the President may propose to Congress that funds be rescinded. If both Houses have not approved a rescission proposal (by passing legislation) within 45 days of continuous session, any funds being withheld must be made available for obligation.
- Tribunal: means a court, an arbitrator, an administrative agency, or other body acting in an adjudicative capacity which, after presentation of evidence or legal argument, has jurisdiction to render a decision affecting a party's interests in a matter. See Florida Statutes 61.56
(b) In a proceeding, the following privileges apply:1. A party may refuse to disclose, and may prevent another person from disclosing, a collaborative law communication.2. A nonparty participant may refuse to disclose, and may prevent another person from disclosing, a collaborative law communication of a nonparty participant.(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.
(2) WAIVER AND PRECLUSION OF PRIVILEGE.–
(a) A privilege under subsection (1) may be waived orally or in a record during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty participant, if it is expressly waived by the nonparty participant.
(b) A person who makes a disclosure or representation about a collaborative law communication that prejudices another person in a proceeding may not assert a privilege under subsection (1). This preclusion applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation.
(3) LIMITS OF PRIVILEGE.–
(a) A privilege under subsection (1) does not apply to a collaborative law communication that is:
1. Available to the public under chapter 119 or made during a session of a collaborative law process that is open, or is required by law to be open, to the public;
2. A threat, or statement of a plan, to inflict bodily injury or commit a crime of violence;
3. Intentionally used to plan a crime, commit or attempt to commit a crime, or conceal an ongoing crime or ongoing criminal activity; or
4. In an agreement resulting from the collaborative law process, as evidenced by a record signed by all parties to the agreement.
(b) The privilege under subsection (1) for a collaborative law communication does not apply to the extent that such collaborative law communication is:
1. Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or relating to a collaborative law process; or
2. Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or an adult unless the Department of Children and Families is a party to or otherwise participates in the process.
(c) A privilege under subsection (1) does not apply if a tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality, and the collaborative law communication is sought or offered in:
1. A proceeding involving a felony; or
2. A proceeding seeking rescission or reformation of a contract arising out of the collaborative law process or in which a defense is asserted to avoid liability on the contract.
(d) If a collaborative law communication is subject to an exception under paragraph (b) or paragraph (c), only the part of the collaborative law communication necessary for the application of the exception may be disclosed or admitted.
(e) Disclosure or admission of evidence excepted from the privilege under paragraph (b) or paragraph (c) does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
(f) The privilege under subsection (1) does not apply if the parties agree in advance in a signed record, or if a record of a proceeding reflects agreement by the parties, that all or part of a collaborative law process is not privileged. This paragraph does not apply to a collaborative law communication made by a person who did not receive actual notice of the collaborative law participation agreement before the communication was made.