§ 90.510, Fla. Stat. — Privileged Communication Necessary to an Adverse Party
Plain English
This is the “you can’t use privilege as both a sword and a shield” rule. In a civil case, if a party claims privilege over a communication that an adverse party actually needs to fight a claim or defense, the court may dismiss that claim for relief or that affirmative defense — the very one the privileged evidence relates to. You don’t get to put an issue in play and then hide the evidence the other side requires to meet it. The court can review the material in camera to decide.
From the Courtroom
Privilege is a shield, not a sword. A plaintiff who builds a claim on advice they got — then refuses to disclose that advice — can be forced to choose under 90.510: open the door, or lose the claim. Putting privileged communications “at issue” is one of the fastest ways to waive them.
Key Points & Authority
- § 90.510, Fla. Stat. — If a party claims privilege over a communication necessary to an adverse party, the court may dismiss the related claim or affirmative defense (after in camera inquiry, if appropriate).
- Codifies the sword-and-shield / at-issue waiver principle in civil cases.
- Federal note: no numbered FRE counterpart — federal courts apply at-issue/sword-shield waiver as a matter of common law under Fed. R. Evid. 501.
Federal Parallel
There is no numbered federal counterpart. Federal courts reach the same place through the common-law “at issue” or sword-and-shield waiver doctrine under Fed. R. Evid. 501; Florida codifies the remedy (dismissal of the related claim/defense) in § 90.510.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
Free consultation: (904) 444-4444 · About John Phillips
Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.510 lets a court, in a civil case, dismiss a claim or affirmative defense when a party claims privilege over a communication necessary to an adverse party — codifying the sword-and-shield/at-issue waiver principle.