METRIC ENGINEERING, INC. v. Small
| Decision Date | 16 December 2003 |
| Docket Number | No. 1D03-3261.,1D03-3261. |
| Parties | METRIC ENGINEERING, INC., Appellant, v. Ernest SMALL, individually etc., et al, Appellee. |
| Court | Florida District Court of Appeals |
Michael D. West, Jaken E. Roane; Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellant.
B. Shannon Saunders; Cochran, Cherry, Givens, Smith, Lane & Taylor, P.C., Dothan, Alabama, for Appellee.
A mother and her two young children were killed in a construction zone when the car she was driving crossed the center line into oncoming traffic. Her husband, Ernest Small, obtained an order compelling discovery of photographs and measurements of the accident scene taken by Metric Engineering shortly after the accident. Metric Engineering seeks certiorari review of that order, arguing that the photographs and measurements are protected attorney work product and not discoverable. We grant the writ and quash the order.
Factual information or materials pertaining to the client's case and prepared or gathered in connection with the client's case, may qualify as protected attorney work product. See State v. Rabin, 495 So.2d 257 (Fla. 3rd DCA 1986); see also Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689 (Fla. 1st DCA 2001). The material does not need to actually be gathered by the attorney to be work product, but must be gathered in anticipation of litigation. See Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999). Discovery of this information or material can only be permitted if "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).
After Metric Engineering objected to Small's request for production of Metric's photographs and measurements, Small filed a motion to compel. No sworn testimony or other evidence was taken at the subsequent hearing. The trial court made its ruling compelling discovery based on counsel's assertion that the photographs and measurements taken by the Florida Highway Patrol in their homicide report, and the photographs and measurements taken by another contractor, all of which were previously provided to Small, were inconsistent with each other, and that this inconsistency created a "need" for Metric's photographs and measurements. Counsel's bare assertions, unsupported by any evidence, are inadequate to show the "need" and "undue hardship" required for production of work product documents, and cannot justify compelled discovery. See Procter & Gamble Co., 462 So.2d at 1195; see also CSX Transp., Inc. v. Carpenter, 725...
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