Marshalls of M.A., Inc. v. Witter

• Decision Date: 03 February 2016
• Docket Number: No. 3D15–2685.,3D15–2685.
• Parties: MARSHALLS OF M.A., INC., Petitioner, v. Mecca WITTER, Respondent.
• Court: Florida District Court of Appeals

186 So.3d 570

MARSHALLS OF M.A., INC., Petitioner,

v.Mecca WITTER, Respondent.

No. 3D15–2685.

District Court of Appeal of Florida, Third District.

Feb. 3, 2016.

Butler Weihmuller Katz Craig LLP, and Carol M. Rooney, Tampa, for petitioner.

Reifkind, Thompson & Rudzinski, P.L., and Matthew A. Rabin, Davie, for respondent.

Before WELLS, ROTHENBERG, and EMAS, JJ.

MOTION FOR REHEARING

ROTHENBERG

, J.

Marshalls of M.A., Inc. ("Marshalls") seeks rehearing of this Court's dismissal of Marshalls' petition for writ of certiorari, which was based on a finding that the petition was untimely filed. We grant rehearing and vacate this Court's December 17, 2015 order dismissing the petition. We decline to rule on the petition as it is moot due to the trial court's subsequent ruling during the pendency of this petition.

Grounds for vacating the dismissal

On August 1, 2014, Mecca Witter ("Witter") filed a lawsuit against Marshalls based on an alleged slip and fall on a transitory substance on the floor in Marshalls' department store in Miami–Dade County. During the course of discovery, Witter served a request for Marshalls to produce the following:

11. Any and all incident reports prepared and/or maintained by you in the ordinary course of business regarding either of the Plaintiff's accident [sic].

....

13. All records, writings, or other written memoranda concerning any other substantially similar accidents occurring in the area of the floor involved in the Plaintiff's accident within three (3) years prior to and two (2) years subsequent to the accident in question.

....

15. Any and all complaints made by, received by or known to the Defendant pertaining or relating to complaints regarding floor spills in the store before the time of Plaintiff's accident for a period of two (2) years.

16. Any and all documents, work orders, repairs, estimates, or other paperwork made by, received by or known to the Defendant pertaining or relating to any changes in the floor area involved in the Plaintiff's accident up to two (2) years before the time of Plaintiff's accident and two (2) years post-accident.

17. All work orders or other documentation reflecting inspections, repairs, maintenance or other work done to the floor in the area involved in the Plaintiff's accident from the date of the Plaintiff's accident until the present date.

Marshalls initially objected on the grounds that the requests were overbroad, unduly burdensome, irrelevant, and not likely to lead to the discovery of admissible evidence. On April 9, 2015, the trial court issued a written order overruling Marshalls' stated objections to requests number 13, 15, 16, and 17, but failed to rule on Marshalls' objections as to request number 11.

Marshalls produced all documents responsive to requests number 16 and 17, but filed a motion objecting to the production of the remaining documents, claiming that they are protected by the work-product privilege. In doing so, Marshalls filed a privilege log identifying the documents it was objecting to and requested an in-camera review of the documents identified in its privilege log. Although Marshalls also attempted to obtain a special set hearing on its motion, the trial court entered an order on October 29, 2015 denying Marshalls' motion and compelling the production of the documents referenced in Witter's requests number 11, 13, and 15 without first conducting an in-camera inspection.

Because Marshalls' petition for writ of certiorari was directed to the October 29, 2015 order denying Marshalls' motion for an in-camera inspection of the documents Marshalls' claims are protected by the work-product privilege, and the petition was filed on November 25, 2015, Marshalls' petition was timely filed. Accordingly, we vacate this Court's order dismissing as untimely the petition for writ of certiorari.

Marshalls' petition for writ of certiorari

When a party asserts the work-product privilege, Florida law requires that the trial court "hold an in-camera inspection of the discovery material at issue in order to rule on the applicability of the privilege." Snyder v. Value Rent–A–Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999)

. The failure to conduct an in-camera inspection of the discovery materials a party asserts are protected by the work-product privilege constitutes a departure from the essential requirements of law subject to certiorari relief. State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493, 498 (Fla. 5th DCA 2014) ; Jacob v. Barton, 877 So.2d 935, 937 (Fla. 2d DCA 2004) ; Calzon v. Capital Bank,

689 So.2d 279, 281 (Fla. 3d DCA 1995).

The work-product privilege protects documents and papers of an attorney or a party prepared in anticipation of litigation. Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege. Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713, 718 (Fla. 3d DCA 2007)

; Metric Eng'g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003) ; Fed. Express Corp. v. Cantway, 778 So.2d 1052, 1053 (Fla. 4th DCA 2001). "A lawsuit need not be filed for information gathered in an accident investigation to qualify for work-product protection." Millard Mall Servs., Inc. v. Bolda, 155 So.3d 1272, 1275 (Fla. 4th DCA 2015) ; Caribbean Cruises, 964 So.2d at 718 ; see also Dist. Bd. of Trs. of Miami–Dade Cmty. Coll. v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) (finding that even if a specific claim has not been filed, sending documents to a risk management department anticipates litigation). Even a report that is routinely prepared may qualify as work product. Millard Mall Servs., 155 So.3d at 1275 ; Sears, Roebuck & Co. v. Scott, 481 So.2d 968 (Fla. 4th DCA 1986).

As the Fourth District Court of Appeal noted in Publix Super Markets., Inc. v. Anderson, 92 So.3d 922, 923 (Fla. 4th DCA 2012)

, reports created after a slip and fall has been reported:

certainly are not prepared because of some morbid curiosity about how people fall at a market. Experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries. Experience has also shown those stores that bogus or frivolous or exaggerated claims may be made. A potential defendant's right to fully

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