Federal Exp. Corp. v. Cantway, 4D00-3546.
| Citation | 778 So.2d 1052 |
| Decision Date | 21 February 2001 |
| Docket Number | No. 4D00-3546.,4D00-3546. |
| Parties | FEDERAL EXPRESS CORPORATION, Automotive Rentals, Inc. and Shannon Lotito, Petitioners, v. Josephine M. CANTWAY, as court-appointed guardian of Laura J. McGrath, an incompetent person, and as guardian, on behalf of Riley J. McGrath and Reece E. McGrath, minor children of Laura J. McGrath, Respondent. |
| Court | Court of Appeal of Florida (US) |
Kathleen M. O'Connor of Russo Parrish Appellate Firm, and Murray, Marin & Herman, P.A., Miami, for petitioners.
No appearance for respondent.
Petitioners are defendants below in a personal injury action arising out of an accident involving a delivery vehicle operated by a Federal Express employee. They seek review of an order compelling Federal Express to produce certain accident reports over their work product objections. We grant the petition.
Through discovery, the plaintiff below sought copies of two accident reports, entitled "Driver's Report of Accident or Occurrence" and "Serious Accident Report," which were prepared by Federal Express employees. Federal Express objected to their production, asserting the work product privilege. At the hearing on its work product objections, Federal Express presented the affidavit of a managing director of its legal department and the deposition testimony of a Senior Safety Specialist stating that the reports were prepared after the accident investigation had been placed under the direction and control of the corporation's legal department and pursuant to a specific directive issued by the legal department in anticipation of litigation.
Plaintiff countered that the accident reports were not prepared in anticipation of litigation but were generated in the normal course of business pursuant to Federal Express' general policy and guidelines requiring that these documents be completed in every "accident or occurrence." In overruling Federal Express' work product objections, the trial court referred to excerpts from Federal Express manuals, which indicated that the purpose of the company's accident investigation procedure was to determine what actions needed to be taken to prevent similar accidents or injuries from occurring in the future. The trial court concluded that the two reports were not prepared in anticipation of litigation and ordered their production.
Materials prepared in anticipation of litigation are not subject to discovery except on a showing that the party seeking discovery "has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fla.R.Civ.P. 1.280(b)(3). Accident reports and investigative materials of a party, when prepared in anticipation of litigation, constitute work product and are not subject to discovery without the aforementioned showing. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426, 427-28 (Fla.1952)
. Internal investigative reports are covered by the rule. See Karch v. MacKay, 453 So.2d 452 (Fla. 4th DCA 1984); New Life Acres, Inc. v. Strickland, 436 So.2d 391 (Fla. 5th DCA 1983); Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983); Fla. Power & Light Co. v. Limeburner, 390 So.2d 133 (Fla. 4th DCA 1980). Such reports need not be ordered by an attorney in order to be considered work product, see Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999), and they can constitute work product even if they are prepared before a claim is filed. See District Bd. of Trs. of Miami-Dade Cnty. Coll. v. Chao, 739 So.2d 105 (Fla. 3d DCA 1999); City of Sarasota v. Colbert, 97 So.2d 872 (Fla. 2d DCA 1957). Moreover, a report that is routinely prepared may still be work product. See Sears, Roebuck and Co. v. Scott, 481 So.2d 968 (Fla. 4th DCA 1986); Sligar v. Tucker, 267 So.2d 54 (Fla. 4th DCA 1972).
The fact that the manuals reviewed by the trial court "speak of prevention as the...
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