Surf Drugs, Inc. v. Vermette

Decision Date06 May 1970
Docket NumberNo. 39182,39182
Citation236 So.2d 108
CourtFlorida Supreme Court
PartiesSURF 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.

BOYD, Justice.

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

'* * * Under Rule 1.27 of the Florida Rules of Civil Procedure, F.S.A., a party may be interrogated as to 'any matters which can be inquired into under Rule 1.21(b)'; and under Rule 1.21(b) 'any persons, including a party,' may be examined 'regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * including * * * the identity and location of persons having knowledge or relevant facts.' The interrogatory here in question is well within the 'Scope of Examination' permitted by Rule 1.21(b), supra, and the petitioner's attorney could not have refused to comply with the rule, had the information been sought by proceeding under Rule 1.21 to take the deposition of petitioner's attorneys.'

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) * * *.'

Rule 1.280(b);

'Scope of Examination. Unless otherwise ordered by the court as provided herein, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

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

'Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, 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 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

'In other words, probably by properly phrased interrogatories a party can be required to state the substance of interviews with witnesses,...

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58 cases
  • Tracey v. Wells Fargo Bank, N.A.
    • United States
    • Florida District Court of Appeals
    • February 27, 2019
    ...all the rules of civil procedure, aims "to prevent the use of surprise, trickery, bluff and legal gymnastics." Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla. 1970) ; see also Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 366 So.2d 90, 93 (Fla. 1st DCA 1979) ("The trial judge aptl......
  • Dodson v. Persell
    • United States
    • Florida Supreme Court
    • November 20, 1980
    ...facilitate trial preparation; and (3) to abolish the tactical element of surprise in our adversary trial process. In Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), we stated that the primary purpose of our is to prevent the use of surprise, trickery, bluff and legal gymnastics. Rev......
  • Fla. Peninsula Ins. Co. v. Newlin
    • United States
    • Florida District Court of Appeals
    • June 12, 2019
    ...be sure, preventing "surprise, trickery, bluff, and legal gymnastics" is a laudable goal of civil discovery, see Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970), but we must take care not to confuse the stated purpose for civil discovery rules (to prevent surprises at trials) ......
  • Eastern Air Lines, Inc. v. Gellert, 82-2620
    • United States
    • Florida District Court of Appeals
    • May 17, 1983
    ...since neither of these records was prepared in anticipation of litigation or for trial. See Fla.R.Civ.P. 1.280(b); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970). Since these documents are not ab initio within the work product privilege, no showing to overcome the privilege, see Fla......
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4 books & journal articles
  • Privileges
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...of Appeals in this case as the ‘work product of the lawyer.’” Hickman v. Taylor , 329 U.S. 495 (1947); see Surf Drugs, Inc. v. Vermette , 236 So.2d 108, 112 (Fla. 1970). Therefore, a party may not be required to set up the contents of statements absent rare and exceptional circumstances, or......
  • What to Do Before and After the Defense Medical Exam
    • United States
    • James Publishing Practical Law Books Exposing Deceptive Defense Doctors - Vol. 1-2 Volume 1
    • April 1, 2018
    ...in Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999); Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000); Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970), and Gold, Vann & White v. DeBerry, 639 So. 2d 47 (Fla. 4th DCA 1994), within thirty days from the date of this motion. Concern......
  • What to Do Before and After the Defense Medical Exam
    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 2 Exposing Deceptive Defense Doctors
    • April 29, 2015
    ...Allstate v. Boecher , 733 So. 2d 993 (Fla. 1999); Springer v. West , 769 So. 2d 1068 (Fla. 5th DCA 2000); Surf Drugs, Inc. v. Vermette , 236 So. 2d 108 (Fla. 1970), and Gold, Vann & White v. DeBerry , 639 So. 2d 47 (Fla. 4th DCA 1994), within thirty days from the date of this motion. Concer......
  • Work product and the attorney's selection process: spoon feeding the opposition or preserving the adversary system?
    • United States
    • Florida Bar Journal Vol. 79 No. 1, January 2005
    • January 1, 2005
    ...at 699. The Smith court relied principally upon Hickman, but also cited the 1970 Florida Supreme Court case of Surf Drugs v. Vermette, 236 So. 2d 108 (Fla. 1970), standing for the proposition that although "[w]hat constitutes 'work product' is incapable of concise definition adequate for al......

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