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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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