Florida Appellate Court Reverses Lower Court Order Compelling Production of Work Product Discovery

For many plaintiffs, obtaining evidence to support their lawsuit can be difficult. Defendants often hold the documents, photographs, records, or other evidentiary support that plaintiffs need. Even after the lawsuit has been filed, a defendant may not play fairly during discovery, causing even more headaches for the plaintiff. Many defense attorneys attempt to hide evidence using the work product doctrine, which allows a party to a lawsuit to withhold any documents or items that are created in anticipation of litigation. Documents that fall within the exception often contain the lawyer’s mental impressions or professional opinions about the lawsuit.

In Seaboard Marine Ltd. v. Clark, the plaintiff was working as a stevedore when he suffered severe injuries after a top loader ran over him. The plaintiff filed a lawsuit against the county that owned the shipping bay in addition to the business that leased it from the county. According to his complaint, the plaintiff contended that congestion, noise, insufficient lighting, and disorganization created an unreasonably dangerous working environment.

Following the initiation of the lawsuit, the company’s lawyer and some of the company’s workers took a substantial number of pictures of the scene of the accident, while also taking steps to preserve video surveillance footage from a camera roughly 100 feet above the location. The footage revealed the location of the containers, how the shipping bay was arranged, the way in which the top loaders were operating, and how the accident occurred.

Although the company delivered the video surveillance tape to the plaintiff prior to the case being initiated, the company declined to deliver copies of the photographs, asserting the work product doctrine and the attorney client privilege doctrine. During the discovery phase of the lawsuit, the plaintiff propounded discovery requests seeking the photographs. In response, the company objected and provided a supporting privilege log.

The plaintiff filed a motion to compel production of the photographs, and the trial court granted it on the basis that the photos were relevant and that the plaintiff had no alternative means for obtaining copies. The plaintiff, however, had not provided any evidence indicating that he attempted to obtain copies of pictures taken by his own employer or the county. Also, the plaintiff had not taken the deposition of any witnesses. On these grounds, the defendant sought certiorari review of the trial court’s order.

According to Florida law, a party is entitled to another party’s work product documents if the requesting party cannot obtain a “substantial equivalent” through other routes without experiencing undue hardship and if the requested materials are necessary to the preparation of his or her case.

The Third District Court reversed the trial court and quashed its order requiring production of the photographs, agreeing with the defendant’s assertion that the plaintiff failed to take steps to obtain the “substantial equivalent” of the images and failed to demonstrate that he could not obtain copies without experiencing undue hardship.

If you or someone you love has suffered injuries as the result of another person’s negligence, you may be entitled to compensation. At Lusk, Drasites & Tolisano, our dedicated and experienced team of personal injury lawyers know what it takes to gather evidence and build your strongest case. Representing individuals throughout Southwest Florida, including in Fort Myers, Naples, and Cape Coral, we offer a free consultation to help you learn about the scope of your rights. Call us now at 1-800-283-7442 or contact us online to set up your appointment.

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