Northup v. Acken

• Decision Date: 29 January 2004
• Docket Number: No. SC02-2435.,SC02-2435.
• Citation: 865 So.2d 1267
• Parties: Leonard NORTHUP, Petitioner, v. Herbert W. ACKEN, M.D., P.A., Respondent.
• Court: Florida Supreme Court

865 So.2d 1267

Leonard NORTHUP, Petitioner, v. Herbert W. ACKEN, M.D., P.A., Respondent.

No. SC02-2435.

Supreme Court of Florida.

January 29, 2004.

Scott M. Whitley of Morgan, Colling and Gilbert, P.A., Tampa, FL, for Petitioner.

Richard E. Ramsey and Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Orlando, FL, for Respondent.

PER CURIAM.

We have for review the decision in Herbert W. Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla. 2d DCA 2002), which certified conflict with the decision in Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002). We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., and quash the decision below.

Facts and Procedural History

The instant discovery dispute arose within an action for medical malpractice filed by the petitioner, Leonard Northup, alleging that the respondent, Dr. Herbert Acken, failed to diagnose a cancerous tumor which resulted in the death of petitioner's wife. See Acken, 827 So.2d at 1071. Pursuant to the trial court's pretrial case management order, the petitioner submitted a witness and exhibit list to the court, which included Dr. Michael Dillon as an expert witness, in November of 2000. See id. In the process of litigation preparation, the respondent's attorneys gathered deposition testimony Dr. Dillon had previously given in unrelated civil actions. Subsequently, the petitioner served a Request for Production upon respondent which sought copies of the deposition testimony transcripts possessed by defense counsel. See id. The respondent filed an objection to this request, asserting that the depositions requested were exempt from disclosure under the attorney work product doctrine. See id. The petitioner then moved to compel production, requesting that the trial court order the respondent to produce the entirety of the depositions and sworn statements of Dr. Dillon in the possession of defense counsel. See id.

Although not in the district court's opinion, the record reveals that during the hearing on the motion to compel, it was the specifically stated position of defense counsel that Dr. Dillon had been deposed in this case and that the defense intended to impeach him during trial with the use of the deposition transcripts defense counsel had previously secured but refused to disclose. Defense counsel asserted that he was entitled to, and intended to, use the deposition transcripts to impeach Dr. Dillon during trial but the defense was not required to disclose or produce the transcripts until during the trial when the transcripts would be actually used. It was defense counsel's position that the petitioner was not entitled to information concerning the prior depositions or copies of the transcripts until after the impeachment occurred during trial.

Following this hearing on the matter, the trial court granted the petitioner's motion and ordered the respondent to produce copies of the depositions and other documents. Thereafter, Dr. Acken filed a petition for writ of certiorari in the Second District arguing that disclosure of the deposition transcripts would reveal counsel's mental impressions regarding the relative importance of various issues at trial as well as counsel's strategy for trial, and thereby invade the work product of counsel. Counsel specifically took the position that he was not required to produce the depositions even if he used them as impeachment at trial and specifically attempted to distinguish Dodson v. Persell, 390 So.2d 704 (Fla.1980).

Dr. Acken relied on Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), for the proposition that the collected deposition transcripts were protected from disclosure as attorney work product, even though the defense intended to use them at trial for impeachment. The Second District agreed and quashed the trial court's order, but certified conflict with Gardner, 831 So.2d at 676, writing:

The facts of the case at bar may be closer to those in Gardner than those in Smith because there must be a "finite" number of depositions that Dr. Dillon has given in prior cases. However, we question whether Smith and Gardner can be reconciled. We adopt the rationale in Smith, and, applying that rationale here, conclude that the group of Dr. Dillon's prior depositions that Dr. Acken's counsel has collected to impeach Dr. Dillon is attorney work product, which is not subject to disclosure. To the extent that Gardner would dictate a contrary result, we certify conflict.

Acken, 827 So.2d at 1072. This Court granted review on March 20, 2003. See Northup v. Acken, 842 So.2d 845 (Fla. 2003) (table).

Analysis

In its 1947 opinion in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the United States Supreme Court originated what has become known as the "attorney work product privilege." With words which have not lost their poignancy, the Court concluded:

In performing his various duties, ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed ... the "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

Id. at 510-11, 67 S.Ct. 385. In accordance with this reasoning, the United States Supreme Court established the "privacy of [an attorney's] professional activities," id. at 513, 67 S.Ct. 385, and foreclosed discovery of materials created by an attorney in preparation for litigation absent "adequate reasons to justify production." Id. at 512, 67 S.Ct. 385.

This Court's decision in Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), provides the established bedrock principles applicable in considering the attorney work product privilege in Florida.¹ In Surf Drugs, this Court addressed interrogatory questions, but expressed the broad balancing considerations involved in the discovery and litigation process. This court recognized:

A primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results.

Surf Drugs, 236 So.2d at 111. In placing the work product protection within the scope of discovery, the Court stated:

What constitutes "work product" is incapable of concise definition adequate for all occasions. Generally, those documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorneys as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness 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, come within the general category of work product.

Id. at 112 (emphasis supplied). Pertinent to the instant action is the holding in Surf Drugs that the scope of the attorney work product privilege protection is specifically bounded and limited to materials which are not intended for use as evidence or as an exhibit at trial. See id. at 112.

This precept was recognized, expanded upon, and specifically enunciated in our later decision in Dodson v. Persell, 390 So.2d 704 (Fla.1980). In addressing the petitioner's contention that surveillance video recordings in the possession of the respondent were discoverable and not protected under the work product privilege, this Court made the following potent statement:

Any work product privilege that existed... ceases once the materials or testimony are intended for trial use. More simply, if the materials are only to aid counsel in trying the case, they are work product. But, if they will be used as evidence, the materials ... cease to be work product and become subject to an adversary's discovery.

Id. at 707. Thus, in accordance with Surf Drugs and Dodson, we reiterate our dedication today to the principle that in Florida, when a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the video recording, document, exhibit, or other piece of evidence is fully discoverable and is not privileged work product.

In essence, Florida litigants must make a simple and discrete decision prior to entry of a pretrial case management order by the trial court. An attorney must evaluate whether he or she intends to use evidence in his or her possession for strategy and trial preparation purposes only, which would qualify the selection of the particular items as a protected product of the thought processes...