Surf Drugs, Inc. v. Vermette
Decision Date | 06 May 1970 |
Docket Number | No. 39182,39182 |
Citation | 236 So.2d 108 |
Court | Florida Supreme Court |
Parties | SURF DRUGS, INC., a Florida Corporation, Petitioner, v. Raymond L. VERMETTE, Respondent. |
Samuel Z. Goldman, of Green & Hastings, Miami, for petitioner.
Simons & Schlesinger, Hollywood, for respondent.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District. 1 Jurisdiction is based on conflict between the decision sought to be reviewed and the decision of this Court in Dupree v. Better Way. 2
Respondent, plaintiff below, filed a complaint for the wrongful death of his wife, alleging that the defendant drug store, by its professional pharmacist, was guilty of malpractice in continuing to sell a medication for the use of the deceased without continued physician approval and that plaintiff's wife's death was the proximate result of the use of that medication. Defendant served plaintiff with a set of interrogatories which sought to determine plaintiff's witnesses and the existence of certain evidence. Plaintiff objected to interrogatories numbered 27, 28, 29, 30, 31, 35 and 36, 3 on the ground that 'same called for information based upon the knowledge of plaintiff's attorney.' Plaintiff objected to interrogatories numbered 37, 38, 39, 40, 41, 42, and 43, 4 on the ground that 'same invades the work product of plaintiff's attorney.'
The trial court denied plaintiff's objections to all of the interrogatories except interrogatory number 36. Plaintiff then filed petition for writ of certiorari with the District Court of Appeal and defendant cross-petitioned.
The District Court reversed in part and affirmed in part, holding:
(1) Interrogatories numbered 27, 28, 29, 30, 31 and 35 'improper as to that portion of the interrogatories that required the plaintiff to respond on behalf of his agent, attorney, servant, employee, etc., as to knowledge of certain facts and conclusions.'
(2) Interrogatories 37, 38, 39, 40, 41, 42 and 43 proper and response required.
(3) Interrogatory 36, improper and objection sustained.
In the Dupree case, supra, the following interrogatory to the plaintiff was allowed:
'Please set forth the names and addresses of any other persons believed by you or known by you or your attorney to have knowledge concerning facts pertaining to the accident.'
This Court held that the matter sought was not privileged and not protected as work product, stating: 5
The District Court in the instant case held that plaintiff could not be required to respond on behalf of his attorney. This holding clearly conflicts with the decision of this Court in the Dupree case.
The relevant Florida Rules of Civil Procedure are, 30 F.S.A., in pertinent parts, as follows:
'Rule 1.340 * * * Any party may serve upon any other party written interrogatories to be answered by the party served * * * who shall furnish such information as is available to the party. * * *
'Interrogatories may relate to any matters which can be inquired into under Rule 1.280(b) * * *.'
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. Florida has recognized four exceptions to the general rule requiring complete disclosure:
(1) The subject matter of the discovery procedure must be relevant to the cause. 6
(2) Discovery procedures may not be used or conducted to harass or embarrass litigants or witnesses or for malicious purposes. 7
(3) The inquiry must not invade the ancient and necessary right of privileged communications between lawyers and clients. 8
(4) The work product of the litigant, his attorney or agent, cannot be examined, absent rare and exceptional circumstances. 9
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.
The work-product doctrine originated in the case of Hickman v. Taylor, 10 wherein it was held that statements of witnesses secured by an attorney in advance of trial were immune from discovery because such a procedure would be contrary to the public policy underlying the orderly prosecution and defense of legal claims. The United States Supreme Court stated the reason for the work product doctrine as follows: 11
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 by the Circuit Court of Appeals in this case as 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.'
The work product doctrine was recognized in Florida in Atlantic Coast Line R. Co. v. Allen. 12 Subsequent developments were outlined in the decision of this Court in Shell v. State Road Department. 13
Appellee and the District Court apparently consider that anything known to an attorney for a litigant constitutes 'work product' immune from discovery procedures. This view is clearly contrary to the Hickman case, supra, wherein the United States Supreme Court stated flatly: 14
'A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney.'
Commenting on this statement, Moore in his treatise on federal practice, noted that it was sound doctrine, stating: 15
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