A Florida federal court refused to adopt a federal common law “private investigator’s privilege” and refused to apply Florida’s state investigator privilege in a federal-question case. Ubiquiti Networks, Inc. v. Kozumi USA Corp., 2013 WL 5880606 (N.D. Fla. Feb. 13, 2013). You may access the opinion here.
A Florida state statute provides an evidentiary privilege protecting from discovery, with some exceptions, a licensed private investigator’s investigative file. Florida Stat. § 493.6119. In Ubiquiti, a case invoking federal-question jurisdiction, a party subpoenaed the investigative file of a Florida private investigator who, citing the Florida statute, refused production on privilege grounds.
The Court held that, because the case arose under federal-question jurisdiction, Federal Rule of Evidence 501 governed all privilege questions. As a result, Florida’s state-law investigator privilege was inapplicable. And unlike some other courts, the Florida federal court refused to recognize the state-law privilege on grounds of comity, stating
State privilege law is sometimes a factor in the Rule 501 analysis, but a federal court in a federal-question case cannot properly abdicate its responsibility to apply the common law, as interpreted by the court in light of reason and experience, just because state law takes a different approach.
The court also refused to recognize a federal common-law investigator privilege, noting that “the common law has never recognized a private investigator’s privilege”; “nor should it.” The court cited the “good reasons” for the common-law attorney–client privilege, psychiatric privilege, legislative privilege, and self-incrimination privilege, but found that a “private investigator’s work does not come close” to matching the bases for these evidentiary privileges.
The court agreed that a private investigator’s work may fall within the attorney–client privilege or the work-product doctrine, but rejected an investigator’s privilege as an independent basis for protection.