Colonial Penn Ins. Co. v. Blair, 79-134
| Decision Date | 12 March 1980 |
| Docket Number | No. 79-134,79-134 |
| Citation | 380 So.2d 1305 |
| Parties | COLONIAL PENN INSURANCE COMPANY and John Larocca, Petitioners, v. Eleanor Gallaghler BLAIR, Robert Blair, her husband and Pauline Schwarzmann, Respondents. |
| Court | Florida District Court of Appeals |
Chobee Ebbets of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for petitioners.
Raymond A. Haas of Haas, Boehm & Brown, P. A., Orlando, for respondents.
The petitioners, Colonial Penn Insurance Company and John Larocca seek review by common law certiorari of an interlocutory discovery order entered by the trial judge dated August 21, 1979, which denied the petitioners' Request to Produce Transcript on the authority of McGee v. Cohen, 57 So.2d 658 (Fla. 1952). We grant the petition for certiorari, quash the discovery order, and remand for further proceedings consistent herewith.
The petitioners filed a Request to Produce the transcript of a traffic court proceeding concerning the accident involved in the present litigation. John Larocca, one of the petitioners, and a defendant in this case, gave testimony in the proceeding about the accident. He was apparently charged with a traffic offense as a result of the accident. The attorney for the plaintiff had a court reporter present at the hearing who transcribed selected portions of the proceeding, including John Larocca's testimony. The hearing was not recorded or transcribed by the traffic court or any parties. The plaintiff objected to the production of the transcript, claiming it was privileged as "work-product" of counsel.
The petitioners urge that the transcript is not within the "work-product" privilege, but even if it is, it is obtainable under Rule 1.280 of the Florida Rules of Civil Procedure. The petitioners made no attempt to meet the additional showings set forth in Rule 1.280(b)(2) to obtain the transcript, as would be necessary if it were shielded by the "work-product" privilege:
. . . a party may obtain discovery of documents and tangible things . . . only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means.
However, it is clear from the facts the respondents have the unique and sole transcript of the traffic court proceeding, which the petitioners cannot obtain in any other manner; and it is also obvious that the petitioners need the transcript to prepare their defense in the present law suit, the memories of the parties being a poor and possibly fallible substitute for statements made close in time to the accident.
This Court has jurisdiction to review the interlocutory order rendered in connection with the discovery proceedings where the order complained of does not conform to the essential requirements of law, and may cause material injury to the parties seeking discovery in the preparation and defense of the case, for which remedy by appeal would be inadequate. Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978); Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977), cert. denied 358 So.2d 135 (Fla. 1978); Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), cert. denied 354 So.2d 980 (Fla. 1977).
The transcription of portions of the traffic court proceeding does not fall within one of the "work-product" categories:
. . . personal views of any attorney as to how and when to present evidence, his evaluation of its importance, his knowledge of which witnesses will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence.
Reynolds v. Hofmann, 305 So.2d 294, 295 (Fla. 3rd DCA 1974).
To bring something within the "work-product" ambit, there must...
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