DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MILLARD MALL SERVICES, INC., a foreign profit corporation,
and SUNRISE MILLS (MLP) LIMITED PARTNERSHIP,
a foreign profit corporation,
Petitioners,
v.
MARY BOLDA,
Respondent.
No. 4D14-1338
[February 11, 2015]
Petition for Writ of Certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
13-4043 25.
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.
PER CURIAM.
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:
1) All records, incident reports or other written memoranda
concerning any other substantially similar acts and/or
occurrences on Defendant’s premises concerning slip and
fall accidents within the last three years of March 26, 2011;
2) All documentation concerning maintenance or cleaning of
the subject premises during March 2011; and
3) All documentation concerning maintenance or cleaning of
the subject premises by any outside person/corporation/
entity during 2011.
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 work product of the litigant, his attorney or agent, cannot
be examined, absent rare and exceptional circumstances.”).
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“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)
(incident reports created by employees and filed with the risk management
department to be used to defend against potential litigation are protected
as work-product); 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) (even if a specific claim has not been filed, sending documents
to a risk management department anticipates litigation); 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.
Moreover, even a report that is routinely prepared may still qualify as
work product. See Sears, Roebuck & Co. v. Scott, 481 So. 2d 968 (Fla. 4th
DCA 1986); Sligar v. Tucker, 267 So. 2d 54, 55 (Fla. 4th DCA 1972). Such
reports, including those created after a slip and fall has been reported,
certainly are not prepared because of some morbid curiosity
about how people fall at the market. Experience has shown
all retail stores that people who fall in their stores try to be
compensated for their injuries. Experience has also shown
those stores that bogus or frivolous or exaggerated claims
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might be made. A potential defendant’s right to fully
investigate and memorialize the results of the investigation
should not be restricted any more than should a potential
plaintiff’s. Our system of advocacy and dispute settlement by
trial mandates that each side should be able to use its sources
of investigation without fear of having to disclose it all to its
opponents. This allows for free discussion and
communication during preparation for litigation. If all reports
and other communications of the litigants were available to
the opposition then those communications would certainly be
stilted, unrevealing and thus self-defeating in their purpose.
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 (“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”) (quoting
Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980)); Ruhland v. Gibeault,
495 So. 2d 1243, 1244 (Fla. 5th DCA 1986) (“Clearly, the burden is on the
party who seeks to overcome a work product objection to show a need for
the documents sought and demonstrate that they are unable, without
undue hardship, to obtain the equivalent by any other means.”);
Intercontinental Props., Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA
1997) (finding the law imposes a heavy burden on a party seeking to obtain
work product; party is required to at least attempt to obtain the
information contained in an incident report using interrogatories and
depositions before the privilege can be breached).
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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incident is not enough, without more, to show ‘undue hardship.’” Mt. Sinai
Med. Ctr. v. Schulte, 546 So. 2d 37, 38 (Fla. 3d DCA 1989); see generally
DeBartolo-Aventura, 638 So. 2d at 989-90; State Farm Fire & Cas. Co. v.
Von Hohenberg, 595 So. 2d 303, 304 (Fla. 3d DCA 1992); Dade Cnty. Pub.
Health Trust v. Zaidman, 447 So. 2d 282, 283 (Fla. 3d DCA 1983); Charles
W. Ehrhardt, Florida Evidence § 502.9 (2010 ed.).
Defendants have met their burden, while plaintiff has not demonstrated
that she is unable to obtain the substantial equivalent of the material by
other means. The assertion that plaintiff needs these materials for the
prosecution of her case, without more, is wholly insufficient to meet her
burden. See Healthtrust, Inc.-The Hosp. Co. v. Saunders, 651 So. 2d 188,
189 (Fla. 4th DCA 1995) (finding “respondents’ showing in support of
requiring production of [work-product] was nothing more than unsworn
argument of counsel or a bare assertion of need and undue hardship
which is insufficient to satisfy the required showing”); Universal City Dev.
Partners, Ltd. v. Pupillo, 54 So. 3d 612, 614 (Fla. 5th DCA 2011) (finding
petitioner’s argument that information about prior incidents was within
the scope of discovery, that such information was known to defendant but
not to him, and that he was unable to obtain substantial equivalent
material without undue hardship was insufficient to overcome the work
product privilege).
Because the information sought by plaintiff were documents created in
the course of its investigations, and because plaintiff has not made a
sufficient showing of need or undue hardship, the trial court’s order
compelling disclosure was a departure from the essential requirements of
law. See Avante Villa at Jacksonville Beach, Inc. v. Breidert, 958 So. 2d
1031, 1032 (Fla. 1st DCA 2007). We therefore quash the trial court’s
order. As a result, we find no need to address any other objections or
grounds raised by defendants against the production of these documents.
Petition Granted.
DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
I disagree with the majority opinion that the Quarterly Safety Reports
were protected work product. These reports were used to promote safety
and to determine whether proper maintenance was being done at the mall.
The reports, as opposed to individual incident reports, were not made in
anticipation of litigation. See, e.g., Liberty Mut. Fire Ins. Co. v. Bennett,
883 So. 2d 373, 374 (Fla. 4th DCA 2004) (documents are not work product
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unless they are prepared when the probability of litigation is “substantial
and imminent”), quashed on other grounds by Liberty Mut. Fire Ins. Co. v.
Bennett, 905 So. 2d 119 (Fla. 2005); Allstate Indem. Co. v. Ruiz, 780 So.
2d 239, 241 (Fla. 4th DCA 2001), quashed on other grounds, 899 So. 2d
1121 (Fla. 2005); Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc.,
444 So. 2d 595, 596 (Fla. 4th DCA 1984) (documents are work product
only if they were prepared “in contemplation of litigation,” and the “[m]ere
likelihood of litigation does not satisfy this qualification.”). Even the
reports at issue in Publix Super Markets, Inc. v. Anderson, 92 So. 3d 922,
923 (Fla. 4th DCA 2012), quoted in the majority, were incident reports
about the particular slip and fall in litigation in that case. Here, there is
no evidence that the quarterly reports meet this test.
Moreover, even if the quarterly reports could be considered work
product, the enactment of section 768.0755, Florida Statutes, concerning
premises liability for transitory foreign substances in a business
establishment, should make them discoverable. Enacted at the behest of
commercial interests, that statute requires an injured person to prove
“that the business establishment had actual or constructive knowledge of
the dangerous condition and should have taken action to remedy it.”
§ 768.0755(1), Fla. Stat. (2010). The injured person may prove
constructive knowledge with circumstantial evidence showing:
(a) The dangerous condition existed for such a length of time
that, in the exercise of ordinary care, the business
establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore
foreseeable.
Id. In this case, although the respondent requested that the mall preserve
the video of the incident, which could have shown how long the dangerous
condition had existed, the video was not available. Thus, respondents
must show that “the condition occurred with regularity and was therefore
foreseeable.” The quarterly reports could shed light on this issue, and the
other information available to the respondent would not satisfy this need.1
1 Production of such reports might show a plaintiff that there is no constructive
knowledge case to be made and may prompt settlement or dismissal of slip and
fall suits.
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The trial court conducted an in camera inspection of these reports
before ordering their production. I too have reviewed these reports. I
concur with the trial court that they are discoverable and not protected by
work product.
* * *
Not final until disposition of timely filed motion for rehearing.
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