WASTE MANAGEMENT, INC. OF FLORIDA AND NICHOLS SANITATION, INC., PETITIONERS,
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, RESPONDENT
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Waste Management and Nichols Sanitation sought certiorari to review a trial court order compelling production of photographs, witness statements, and correspondence related to property damage. The Fourth District Court of Appeal reversed, holding that the trial court failed to make required findings on whether the materials constituted protected work product and that serving a matching discovery request does not waive work product objections.
The court held that the trial court erred in compelling production without making findings as to whether the materials were prepared in anticipation of litigation (privileged) or in the ordinary course of business (not privileged), and that serving a matching discovery request does not preclude work product objections.
[1] A trial court must make findings regarding whether discoverable material was prepared in anticipation of litigation or in the ordinary course of business before ruling on…
[2] A party's reciprocal discovery request does not waive their right to object to the production of discoverable material.
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Join FLexlaw to unlock all legal intelligence“much of the requested material does appear to include work product”
The court's preliminary assessment that the materials likely qualified for work product protection based on existing case law
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Join FLexlaw to unlock all legal intelligenceIn a negligence action, defendants' investigator took photographs and agents obtained witness statements and correspondence concerning damage to the d…
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STONE, Judge.
The defendants in a negligence action seek a writ of certiorari for the review of an order compelling the production of photographs taken by the defendants’ investigator, statements of witnesses taken by defendants’ agents, and the defendants’ correspondence concerning the damage to its property. The defendants contend that the request encompasses work product.
The trial court made no findings, but, rather, ended its inquiry and overruled petitioners’ objections because counsel for the petitioners, after objecting to the respondent’s discovery request, on the same date served a request for discovery on the respondent for the exact same production. The only other reason given for the court’s order was the failure of the defense to cite caselaw demonstrating the validity of the objection to production.
Superficially, on our limited record, much of the requested material does appear to include work product. Compare Shell v. State Road Dept., 135 So. 2d 857 (Fla.1961); Atlantic Coast Line R. Co. v. Allen, 40 So. 2d 115 (Fla.1949); Sears, Roebuck and Co. v. Scott, 481 So. 2d 968 (Fla. 4th DCA 1986); Karch v. MacKay, 453 So. 2d 452 (Fla. 4th DCA 1984); Florida Power & Light Co. v. Limeburner, 390 So. 2d 133 (Fla. 4th DCA 1980); Albertsons, Inc. v. Howells, 518 So. 2d 291 (Fla. 2d DCA 1987); Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985); New Life Acres, Inc. v. Strickland, 436 So. 2d 391 (Fla. 5th DCA 1983) with Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th DCA 1985); Nationwide Insurance Company, Pinellas County v. Monroe, 276 So. 2d 547 (Fla. 2d DCA), cert. denied, 283 So. 2d 366 (Fla.1973).
Here there were no findings by the trial court as to whether the material and statements sought were prepared, as petitioners contend, in anticipation of litigation, in which case the privilege may be raised, or merely in the ordinary course of business, in which event there is no privilege. See Selected Risks Insurance Co. v. White, 447 So. 2d 455 (Fla. 4th DCA 1984); Cotton States Mutual Insurance Co. v. Turtle Reef Associates, 444 So. 2d 595 (Fla. 4th DCA 1984). Nor is there any authority supporting the respondent’s argument that the petitioners are precluded from object ing to the discovery request because it responded by requesting the same items.
Therefore we grant certiorari, quash the order of the trial court compelling production, and remand for further proceedings.
DOWNEY and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995)…endant’s surveillance photographs, witness statements and repair estimates 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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Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038 (Fla. 4th DCA 2001)…s for denying work product objections. See Aetna Ins. Co. v. Koganovsky, 661 So. 2d 418 (Fla. 4th DCA 1995); Cotton States Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984); Waste Mgmt. of Fla. v. S. Bell Tel. & Tel. Co., 544 So. 2d 1133 (Fla. 4th DCA 1989); Selected Risks Ins. Co. v. White, 447 So. 2d 455 (Fla. 4th DCA 1984). Accordingly, we grant certiorari review and quash that part of the trial court’s order denying petitioner’s work product objections. We remand with instruct…
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Carriage Homes AT Terra MAR Condo. Ass'n, Inc. v. The Kennedy Grp., Ltd., 637 So. 2d 331 (Fla. 4th DCA 1994)…ntitled to discovery of them pursuant to rule 1.280, Florida Rules of Civil Procedure. See Cotton States Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984). See also Waste Management, Inc. v. Southern Bell Tel. & Tel. Co., 544 So. 2d 1133 (Fla. 4th DCA 1989); Scotchel Enter., Inc. v. Velez, 455 So. 2d 1129 (Fla. 4th DCA 1984). Therefore, we remand for further proceedings consistent with these authorities. GLICKSTEIN, WARNER and POLEN, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984)
- Shell v. State Rd. Dep't of Fla., 135 So. 2d 857 (Fla. 1961)
- Fla. Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985)
- Nationwide Ins. Co. v. Monroe, 276 So. 2d 547 (Fla. 2d DCA 1973)
- Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th DCA 1985)
- Selected Risks Ins. Co. v. White, 447 So. 2d 455 (Fla. 4th DCA 1984)
- Otto Julius Karch & Fla. Power & Light Co. v. MacKAY, 453 So. 2d 452 (Fla. 4th DCA 1984)
- Fla. Power & Light Co. v. Limeburner, 390 So. 2d 133 (Fla. 4th DCA 1980)
- Cipolloni v. Lewis, 390 So. 2d 133 (Fla. 4th DCA 1980)
- NEW Life Acres, Inc. v. Strickland, 436 So. 2d 391 (Fla. 5th DCA 1983)