Collier v. McKesson
| Decision Date | 16 June 1960 |
| Docket Number | No. 59-233,59-233 |
| Citation | 121 So.2d 673 |
| Parties | Thomas Holland COLLIER, Individually, and Thomas Holland Collier and Frank B. Collier, d/b/a Picnic & Patio Shop, Petitioners, v. Gordon E. McKESSON, Respondent. |
| Court | Florida District Court of Appeals |
Reece & Murray, Miami, for petitioners.
Kelner & Lewis, and Fred Patrox, Miami, for respondent.
This petition for certiorari seeks review of an order entered as a result of a pretrial conference in a negligence action wherein the petitioner was the defendant.
We first concern ourselves with the propriety of the remedy of certiorari to review an interlocutory order at law. The rule seems well established that an appellate court will review an interlocutory order in law only under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after judgment, then the appellate court will consider granting the writ--such as where a court acts without or in excess of its jurisdiction, does not conform to the essential requirements of the law, or enters such order as may cause material and irreparable injury in the subsequent proceedings in the cause. See Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541; Atlantic Coast Line R. Company v. Allen, Fla.1949, 40 So.2d 115; Seaboard Air Line R. Company v. Timmons, Fla.1952, 61 So.2d 426; Brooks v. Owens, Fla.1957, 97 So.2d 693; Boucher v. Pure Oil Company, Fla.App.1958, 101 So.2d 408.
The respondent, prior to the pre-trial conference, became aware that certain surveillance movies had been taken by the petitioner and moved in the pre-trial conference for their production. The petitioner declined to produce the movies on the ground that they were a work product and if used at trial, would be for impeachment purposes only. The trial judge entered an order requiring production of the movies, and it is this order which is sought to be reviewed by certiorari.
The sole issue tendered by the petitioner is whether or not the trial judge, upon pre-trial conference in a negligence action, where the alleged injury was permanent in nature, may require production of surveillance movies made of the injured party.
The respondent concedes that the movies are work product and not subject to production, under the discover rules of the Florida Rules of Civil Procedure, prior to pre-trial, and further concedes that the movies would not be subject to production at any time if not intended for use at trial.
The question here arises under Rule 1.16, Florida Rules of Civil Procedure, 30 F.S.A., and concerns the authority of the trial judge to require the production of a potential evidentiary document. The respondent, notwithstanding his concessions, contends that they should be made available and therefore, the trial judge had authority to require production. He relies on the case of Burton v. Weyerhaeuser Timber Company, D.C.D.Or.1941, 1 F.R.D. 571, 572, wherein the court said:
The petitioner vigorously contends that the movies will be used only for impeachment purposes and that to require their production prior to trial would deny him his right of cross-examination. Neither the petitioner nor the respondent have cited us any controlling authorities bearing directly on this question, nor has our research discovered any. However, in Peoples City Bank v. John Hancock Mut. Life Ins. Co., 353 Pa. 123, 44 A.2d 514, 518, 161 A.L.R. 1143, the Supreme Court of Pennsylvania said:
'While the rules for pre-trial conference provide a method of simplifying issues, and control trial procedure, there is nothing to indicate that they were intended to displace the bill of discovery; they do not provide for the compulsory disclosure of evidence by the opposing party under oath--one of the essentials of discovery.'
Rule 1.16, Florida Rules of Civil Procedure, provides for pre-trial procedure as follows:
'After all issues are settled the court may of its own motion or shall on motion of either p...
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