Procter & Gamble Co. v. Swilley, BA-290

• Citation: 462 So.2d 1188,10 Fla. L. Weekly 183
• Decision Date: 15 January 1985
• Docket Number: No. BA-290,BA-290
• Court: Court of Appeal of Florida (US)
• Parties: 10 Fla. L. Weekly 183 PROCTER & GAMBLE COMPANY, a foreign corporation; Procter & Gamble Paper Products Company, a foreign corporation and Procter & Gamble Distributing Company, a foreign corporation licensed to do business in Florida, Petitioners, v. Victoria B. SWILLEY and Roger Swilley, Respondents.

Page 1188

462 So.2d 1188

10 Fla. L. Weekly 183

PROCTER & GAMBLE COMPANY, a foreign corporation; Procter & Gamble Paper Products Company, a foreign corporation and Procter & Gamble Distributing Company, a foreign corporation licensed to do business in Florida, Petitioners, v. Victoria B. SWILLEY and Roger Swilley, Respondents.

No. BA-290.

District Court of Appeal of Florida,

First District.

Jan. 15, 1985.

Stephen E. Day, Taylor, Day, Rio & Mercier, Jacksonville, and Thomas S. Calder, Frank C. Woodside, III, and John E. Jevicky, Dinsmore & Shohl, Cincinnati, Ohio, for petitioners.

Dominic M. Caparello, Robert Scott Cox, and Anne Longman, Messer, Rhodes & Vickers, Tallahassee, for respondents.

Bronson C. La Follette, Atty. Gen., and LeRoy L. Dalton, Asst. Atty. Gen. of Wis., Madison, Wis., for amicus curiae Merlin S. Bergdoll.

SHIVERS, Judge.

Petitioners seek review by certiorari of a non-final order of the trial court which grants respondents discovery of research and related documents in petitioners' possession. We find that the trial court's order departs from the essential requirements of law to the extent it permits respondents to discover research and related documents that are claimed by petitioners to be work product. That portion of the trial court's order therefore is quashed. We affirm that part of the trial court's order that permits respondents to discover research and related documents received by petitioners from outside researchers.

This case involves a product liability action instituted by the respondents, plaintiffs in the proceedings before the trial court, against petitioners, defendants below. The petitioners are various Procter & Gamble companies (hereinafter referred to as P & G) and respondents are Victoria Swilley and her spouse, Roger Swilley. Mrs. Swilley was hospitalized in January and August of 1980 for, allegedly, toxic shock syndrome (hereinafter referred to as TSS). Mrs. Swilley contends that she contracted TSS as a result of using Rely tampons. ¹ Rely tampons are a product that was manufactured and distributed by P & G prior to P & G's withdrawal of this product from the market in September, 1980.

According to the unrebutted affidavits and exhibits submitted to the trial court by P & G, the following events, as pertains to this case, followed P & G's decision to withdraw Rely tampons from the market. ² In October, 1980, at the direction of counsel, P & G formed a special research team drawn from P & G's in-house scientists and staff personnel called "The Toxic Shock Syndrome Research Group." This group of scientists and personnel was established subsequent, and in response, to the numerous lawsuits that had begun to be filed and continue to be filed, against P & G with respect to the alleged connection between TSS and the use of Rely tampons. The specific purpose in establishing this team of research personnel, allegedly, was, and is, to investigate the cause of TSS in order to assist defense counsel in defending against the TSS lawsuits that are being filed against P & G. This research team was put under the direction and control of defense counsel. No project allegedly is undertaken by this in-house research team without defense counsel's prior consent and approval.

In addition to establishing an in-house research team, P & G began reviewing applications for funding, and began funding, scientists at various research institutions throughout the world in connection with research into TSS. Applications for this funding are reviewed on an annual basis by P & G. Dr. Merlin Bergdoll, a prominent microbiologist at the University of Wisconsin, is one of the individuals who has received, and continues to receive, funding for his research into TSS from P & G.

The terms of Dr. Bergdoll's grant, allegedly indicative of the other grants given by P & G to outside researchers, provide that Dr. Bergdoll and P & G are to keep in close contact with each other through frequent correspondence and mutual visits at each other's investigative sites. P & G is to have full access to the records and measurements comprising the data obtained in Dr. Bergdoll's study. Dr. Bergdoll, however, maintains full rights to any publication(s) resulting from his research, although he is required to submit his proposed publication(s) to P & G for review and comment prior to publication. To date, P & G has contributed funds of more than three million dollars, at over 20 research institutions, in promulgation of this outside research into TSS.

Pursuant to the discovery process, respondents attempted to have P & G voluntarily produce the documents in P & G's possession relating to its in-house research and the TSS research documents in P & G's possession received from outside researchers. In particular, respondents requested that P & G produce the studies in its possession received from Dr. Bergdoll. P & G refused, claiming that the documents prepared by P & G's in-house research team, and in the in-house research team's notes and memoranda concerning the research received from outside researchers, are its (P & G's) work product. As to the outside research in P & G's work product, it was nevertheless protected from discovery because this research is preliminary in nature and, therefore, not reasonably calculated to lead to admissible evidence. Dr. Bergdoll filed an affidavit in support of P & G's position. Respondents filed a motion to compel.

Hearings were held on respondents' motion to compel on April 4, 1984, and June 19, 1984. At these hearings, respondents asserted through counsel that even assuming that P & G's in-house TSS research is work product, which respondents did not concede, this research was discoverable under the exception to the work product rule that work product is discoverable when a party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Respondents' counsel asserted that it was an undue hardship on respondents to obtain the substantial equivalent of P & G's in-house research because of the financial discrepancies between the parties. In particular, counsel asserted that it was ridiculous to think that respondents, who have limited financial resources, could finance the reproduction of the research performed by P & G's in-house research team. As to the research in P & G's possession furnished by outside researchers, respondents' counsel argued that this research is relevant to their case and that there is no academic privilege in Florida that would prevent the discovery of this research.

In response to respondents' arguments, P & G's counsel represented that there were numerous institutions and individuals with available research on TSS, including the Center for Disease Control in Atlanta the State of Minnesota's Health Department, and two professors from New York University. P & G's counsel noted that these latter two individuals had testified against P & G in other TSS cases. As to the outside research in P & G's possession, P & G's counsel asserted, in addition to the argument that this research is preliminary and not relevant, that the compelled disclosure of this research would have an adverse effect on independent scientific research into medical questions. P & G argued that researchers would tend to confine their work to projects unrelated to legal actions, if they knew that their preliminary research could be disclosed to parties involved in litigation.

In the order on review, the trial court compelled the production of P & G's in-house TSS research and the outside TSS research documents in P & G's possession, specifically including, as pertains to the in-house research, P & G's in-house scientists' notes and memorandum concerning the outside research, and, as pertains to the outside research, Dr. Bergdoll's research. The court found that the documents claimed by P & G to be work product were subject to the exception to the work product rule of need and the failure to obtain the substantial equivalent of these materials without undue hardship because of the magnitude of P & G's in-house research and the financial resources of P & G. As to the outside research in P & G's possession, the trial court found that the possible inconclusive nature of this research went more to admissibility, then discoverability. The trial court's order provides for in camera inspection by the trial court of any documents that petitioners believe to be privileged.

At the outset, respondents argue that this case does not meet the stringent requirements for granting a petition for writ of common law certiorari. In partial support of their position, respondents cite cases, not involving the discovery context, that stand for the proposition that common law certiorari is an extraordinary remedy that is rarely used to correct interlocutory orders. These cases are inapplicable to the instant case.

Respondents also state that the trial court's order carefully follows the requirements of the Florida discovery rules by not being overbroad or by failing to protect against the disclosure of trial counsel's thoughts and strategy. Although we agree with these statements, no contention has been raised by P & G that the trial court's order is contrary to the essential requirements of law on these grounds.

Finally, respondents admit that discovery orders may be reviewed by writ of certiorari. We agree. Non-final orders that permit discovery are a classic example of the type of interlocutory order that may be reviewed by writ of certiorari. See, e.g., Greyhound Lines, Inc. v. Jackson, 445 So.2d 1107 (Fla. 4th DCA 1984); City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983); Marine Investment Co. v. Van Voorhis, 162 So.2d 909 (Fla. 1st DCA 1964). As stated in Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957) (after noting the rule that a court will review an interlocutory order only where it clearly appears that there is no full,...