In Selton, et al. v. Nelson, the Florida Fifth District Court of Appeals considered a hotly contested discovery issue. The plaintiffs filed a petition seeking a writ of certiorari to quash a lower court’s order compelling the plaintiffs to produce copies of sworn witness statements to the defendants. Certiorari is a remedy of last resort that a party can use to obtain review from a higher court during the pendency of a trial. An appellate court can grant a party’s request only when certain elements have been satisfied. First, the petitioner must show that there is a departure from the key requirements of the law, that a material injury would result that would affect the remainder of the litigation, and that the error is not something that could be addressed on appeal after the trial concludes.
The Fifth Circuit first stated its reasoning for granting the plaintiff’s petition for certiorari. In situations in which one party is being compelled to produce documents or information to another party, and the party that must produce the documents asserts a claim of privilege against production, certiorari is the appropriate method for review. A claim of privilege can be based either on the attorney-client privilege doctrine or the attorney work product doctrine. The party who resists production may suffer irreversible prejudice if he or she is required to share the information over his or her objection. Essentially, the party would be letting the “cat out of the bag.”
Turning to the subject matter of the order, the appellate court stated that witness statements are something that a party’s legal counsel typically prepares in anticipation of trial. Normally, these documents are considered subject to the work product doctrine and are not immediately discoverable by the opposing party. Once something is deemed subject to work product, it cannot be compelled in discovery unless there is an exceptional circumstance.
The appellate court also cited an older case involving an insurance company’s sworn statement obtained from its insured driver as part of the investigation for the accident at issue. The other driver in the accident eventually filed suit against the insured and requested a copy of the sworn statement in discovery. The matter went to the appellate court, which concluded that the statement was work product and could not be compelled through a court order.
Turning to the present matter, the appellate court quashed the lower court’s order requiring the production of the statement, finding that the lower court failed to perform the requisite in camera inspection to determine whether the statements could be withheld on a claim of work product protection. As a result, the lower court deviated from the requirements of the law, and the resulting harm would not be subject to an adequate remedy on appeal.
If you have been injured in a car accident, the compassionate and knowledgeable lawyers at Lusk, Drasites & Tolisano are prepared to assist you. Navigating the legal system and its complex procedural rules is extremely important. Opposing counsel is going to do everything it can to gain an advantage for its client, meaning you need to protect and assert your rights at each step of the way. Serving clients throughout Southwest Florida, including in Cape Coral, Fort Myers, and Naples, we offer a free consultation to discuss your potential case. Call us now at 1-800-283-7442 or contact us online.
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