DADE COUNTY SCHOOL BOARD, PETITIONER,
v.
ROBERTO SOLER, A MINOR, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, AMERICO SOLER AND CARMEN SOLER, AND INDIVIDUALLY AND JOINTLY AND SEVERALLY, RESPONDENTS
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The Dade County School Board sought review of a trial court discovery order requiring production of witness statements and an incident report related to an accident involving student Roberto Soler. The appellate court partially granted certiorari, quashing the order for witness statements under work product privilege but upholding the order for the incident report and better interrogatory answers.
The work product privilege protects statements made by witnesses and employees in anticipation of litigation, and the party requesting production must show inability to obtain the substantial equivalent by other means. However, the incident report must be produced because the work product objection was not properly preserved at trial. Better answers to interrogatories must be provided.
[1] A work product privilege must be properly preserved for review by being raised in the trial court.
[2] Statements made by witnesses and employees in anticipation of litigation are generally protected from discovery as work product.
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Establishes the work product privilege protection for statements made in anticipation of litigation
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Join FLexlaw to unlock all legal intelligenceRoberto Soler was involved in an accident, and the Dade County School Board conducted an investigation producing statements from witnesses and employe…
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BASKIN, Judge.
Petitioner Dade County School Board [DCSB] seeks review by common law certiorari of a trial court order compelling it to produce the statements and the incident report concerning an accident involving respondent Roberto Soler and to provide better answers to interrogatories. We grant certiorari, quash the portion of the order requiring production of statements made to DCSB by witnesses and employees, but approve the portion of the order compelling production of the incident report and requiring better answers to interrogatories.
DCSB argues for the first time in its petition for certiorari that the incident report is protected from discovery by the work product privilege. In the trial court, DCSB did not object to production of the incident report on the ground of privilege; instead, it objected on the ground that the request was “overly broad, general, vague and ambiguous.” Thus, the issue of work product privilege was not properly preserved for review, Tabasky v. Dreyfuss, 350 So. 2d 520 (Fla. 3d DCA 1977), and we need not disturb the portion of the trial court’s order compelling its production.
DCSB properly asserts work product privilege grounds in its challenge to the trial court’s order requiring it to produce all statements taken from witnesses and employees concerning respondent’s accident. That objection has merit. Although a party may be ordered to provide the names and addresses of individuals who have furnished statements in anticipation of litigation, “absent rare and exceptional circumstances,” Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 113 (Fla.1970), the party may not be required to furnish the statements themselves because such statements are work product. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Miami Transit Co. v. Hurns, 46 So. 2d 390 (Fla.1950); Karch v. MacKay, 453 So. 2d 452 (Fla.4th DCA 1984).
Once the party opposing production asserts a work product privilege, the burden shifts to the party requesting production to show that he is “unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fla.R.Civ.P. 1.280(b)(2); Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla.2d DCA 1985); Winn-Dixie Stores, Inc. v. Gonyea, 455 So. 2d 1342 (Fla.2d DCA 1984).
No such showing was presented to the trial court.
Accordingly, we conclude that the trial court departed from the essential requirements of law by ordering DCSB to produce all statements regarding respondent’s accident, and we quash that portion of the trial court’s order. DCSB also takes issue with the trial court’s order requiring better answers to interrogatories. DCSB has not demonstrated that the trial court departed from the essential requirements of law; we therefore approve this portion of the order. For these reasons, we grant certiorari, quash the decision of the trial court in part, and remand the cause for further proceedings consistent with this opinion. On remand, Soler may demonstrate that he is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla.R.Civ.P. 1.280(b)(2).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA 1990)…formation as well as to indicate generally the type of information held by the person listed, [emphasis added] See Florida Power & Light Co. v. Limeburner, 390 So. 2d 133 (Fla. 4th DCA 1980). The rule is stated in Dade County School Board v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988), as follows: Although a party may be ordered to provide the names and addresses of individuals who have furnished statements in anticipation of litigation, “absent rare and exceptional circumstances,” Surf Drugs, Inc. v. Ver…
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State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995)…ates were protected by the work product privilege. See Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla.1970); Waste Management, Inc. of Florida v. Southern Bell Tel. & Tel. Co., 544 So. 2d 1133 (Fla. 4th DCA 1989); Dade County School Bd. v. Soler, 534 So. 2d 884 (Fla. 3d DCA 1988). Certiorari granted.…
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Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855 (Fla. 2d DCA 1997)…en no showing of the “rare and exceptional circumstances” necessary to authorize the trial court’s order requiring Wal-Mart to produce the statements. See Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 113 (Fla.1970); Dade County School Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988). However, the trial court correctly held that Wal-Mart may be compelled to provide the names and addresses of individuals who have furnished statements in anticipation of litigation. See Cunningham v. Anchor Hocking Corp., 55…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947)
- Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970)
- Miami Transit Co. v. Hurns, 46 So. 2d 390 (Fla. 1950)
- Tabasky v. Dreyfuss, 350 So. 2d 520 (Fla. 3d DCA 1977)
- Fla. Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985)
- Otto Julius Karch & Fla. Power & Light Co. v. MacKAY, 453 So. 2d 452 (Fla. 4th DCA 1984)
- Winn-Dixie Stores, Inc. v. Gonyea, 455 So. 2d 1342 (Fla. 2d DCA 1984)