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REFERENCE ON LEGAL
OPINION 97-10 BY THE FLORIDA DEPARTMENT OF STATE-DIVISION OF LICENSING
Guillermo D.
Jalil, M.S.,
PDF VERSION HERE
My question concerns confidentiality under Section 493.6119, Florida
Statutes, and subpoenas to testify at trial or deposition. Specifically,
what do you do, as a private investigator, if you are subpoenaed to
testify at a trial or deposition concerning confidential information you
obtained in the course of an investigation?
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RESPONSE:
If you obtain the client's consent you may comply with the subpoena.
If you do not have the client's consent, which is the more likely
occurrence, you are precluded from testifying because of the
confidentiality requirement in Section 493.6119(1),Florida Statutes,
which prohibits you from divulging or releasing to anyone other than
your client or employer the contents of an investigative file acquired
in the course of regulated activity.
Recently, a Florida circuit court judge equated the prohibition of
releasing confidential information in Section 493.6119, to a
"privilege", like the attorney-client privilege. The judge ruled that "a
subpoena is insufficient to override the privilege provided in Florida
Statute 493.6119" and refused to order the private investigator to
reveal the results of his investigation via testimony or production of
documents because of the "privilege" contained in Section 493.6119,
Florida Statutes. In that case, the wife's attorney had moved for an
emergency hearing to enforce a subpoena duces tecum served on the
husband's private investigator requiring the private investigator to
appear at a deposition and to bring with him records, tapes, and photos
of surveillance done on the wife's activities. The private investigator
also brought out at the hearing that it would be a misdemeanor under
Section 493.6120, Florida Statutes, for him to reveal confidential
information.
In order to protect your client's confidentiality, and to protect
yourself from disciplinary action by the division, when you receive a
subpoena you should file a motion with the court to quash the subpoena
based on the confidentiality requirement contained in Section 493.6119.
In the case discussed above, the private investigator communicated the
reason for his intent to not comply with the subpoena to the counsels
involved and the motion to enforce ensued. The judge in your case may or
may not rule like the circuit court judge discussed above. If the judge
orders you to testify, you may then testify without the division
pursuing disciplinary action. The judge's order may also be appealed.
You may also wish to discuss your course of action with your attorney as
there could be civil liability involved.
Whatever course of action you choose to protect your client's
confidential information is up to you. The division's concern is that
you, as a licensed professional, take the action required to protect
your client and the information in your file unless you are ordered by a
court to divulge that information.
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