Millard Mall Servs., Inc. v. Bolda
Decision Date | 11 February 2015 |
Docket Number | No. 4D14–1338.,4D14–1338. |
Citation | 155 So.3d 1272 |
Parties | MILLARD MALL SERVICES, INC., a foreign profit corporation, and Sunrise Mills (MLP) Limited Partnership, a foreign profit corporation, Petitioners, v. Mary BOLDA, Respondent. |
Court | Florida District Court of Appeals |
Robin B. Rothman, Elaine J. LaFlamme, Andrew S. Connell, Jr., and Angela M. Swenka of Litchfield Cavo LLP, Fort Lauderdale, for petitioners.
Mark D. Dickstein of The Dickstein Law Firm, Pembroke Pines, for respondent.
Plaintiff, Mary Bolda, filed an action for negligence against defendants, Millard Mall Services, Inc. and Sunrise Mills Limited Partnership, stemming from her alleged slip and fall while shopping at the Sawgrass Mills Mall in March 2011. In prosecuting her claim, plaintiff sent a subpoena duces tecum to the corporate representative of Sunrise Mills requesting various documents, including:
Defendants objected to the production of these documents. At the hearing before the trial court, defendants filed affidavits stating that these documents, including their Quarterly Safety Committee Reports, were not discoverable because they included incident reports that contained photographs, discussions surrounding the incidents, and mental impressions regarding the incidents that occurred during the relevant quarter.
After reviewing the documents in camera, the trial court ordered the production of defendants' Quarterly Safety Committee Reports from 2008 up to the date of the incident, but sustained the privilege objection concerning the incident report generated as a result of plaintiff's event. Defendants seek certiorari review of that order, and assert that the Committee Reports were not discoverable pursuant to the work product privilege. Based on our review of these materials, we agree that such items were prepared in anticipation of litigation. We grant the writ and quash the trial court's order.
Florida Rule of Civil Procedure 1.280(b)(4) provides that a party may obtain work product, or materials “prepared in anticipation of litigation,” “only upon 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.” See generally S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994). To make that showing, plaintiff argued only that information about prior incidents was within the scope of discovery, and that she was unable to obtain substantially equivalent material without undue hardship. See DeBartolo–Aventura, Inc. v. Hernandez, 638 So.2d 988, 989 (Fla. 3d DCA 1994).
Pursuant to Florida Rule of Civil Procedure 1.280(b)(4), the sought-after documents are not discoverable unless the party can demonstrate a two-part showing of (1) particularized need, which includes the determination of whether the privileged documentation contains relevant information, and (2) the inability to obtain the substantial equivalent without undue hardship. It is only “upon 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” that the court may order the disclosure of work product. Fla. R. Civ. P. 1.280(b)(4) ; Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970) ().
“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980) ). If the moving party fails to show that the substantial equivalent of the material cannot be obtained by other means, the discovery will be denied. Id. at 1385.
Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation's risk management department. See, e.g, Metric Eng'g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003) ; Fla. E. Coast Ry. v. Jones, 847 So.2d 1118, 1118 (Fla. 1st DCA 2003) ; Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713, 718 (Fla. 3d DCA 2007) ( ); see Snyder v. Value Rent–A–Car, 736 So.2d 780, 781 (Fla. 4th DCA 1999). Internal investigative reports are also covered by the rule. See, e.g., Fed. Exp. Corp. v. Cantway, 778 So.2d 1052, 1053 (Fla. 4th DCA 2001) ; 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, 134 (Fla. 4th DCA 1980). A lawsuit need not be filed for information gathered in an accident investigation to qualify for work-product protection. See Royal Caribbean Cruises, Ltd., 964 So.2d at 718 ; Dist. Bd. of Trs. of Miami–Dade Cmty. Coll. v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) ( ); City of Sarasota v. Colbert, 97 So.2d 872, 874 (Fla. 2d DCA 1957). In Chao, the report of a student's slip and fall in a college hallway did not lose its work product character even though these reports were routed to departments other than the risk management department, such as the security department and the custodial supervisor, in order that remedial measures could be taken. 739 So.2d at 107.
Publix Super Mkts., Inc. v. Anderson, 92 So.3d 922, 923 (Fla. 4th DCA 2012).
In this case, plaintiff has been allowed to avail herself of the ordinary tools of discovery to obtain relevant information about the incident that she was involved in, as well as any similar prior incidents on the property. Even if some of these objected-to documents may be relevant to the issue of the regularity of these occurrences, plaintiff has had the ability to obtain substantially equivalent information through discovery directed to defendants. Those efforts have in fact enabled her to obtain a list of incidents on defendants' premises for three years predating plaintiff's accident, including the dates, times, locations, and a detailed description of those incidents. Therefore, the requested information (or its substantial equivalent) was obtained through means other than the production of work-product materials. See Deason, 632 So.2d at 1384 () (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980) ); Ruhland v. Gibeault, 495 So.2d 1243, 1244 (Fla. 5th DCA 1986) (); Intercontinental Props., Inc. v. Samy, 685 So.2d 1035, 1036 (Fla. 3d DCA 1997) ( ).
Even if these documents might potentially lead to the discovery of relevant, admissible evidence as claimed by plaintiff's counsel, their relevance is but one factor among several to be considered. The mere fact that these documents “might yield additional information about the...
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