JAMES HORNE AND LOUISE HORNE, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF DAVID JOHN HORNE, DECEASED, PETITIONERS,
v.
K-MART CORPORATION, ETC., ET AL., RESPONDENTS
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Parents of a two-year-old who died from an accidental hanging sought to quash a discovery order compelling production of a videotape showing their expert's testing and analysis of the Venetian blind involved in the accident. The court granted the petition, holding that the videotape constitutes protected work product and that the respondent had adequate alternative means of discovery without undue hardship.
The discovery order is quashed because the videotape is protected work product, and the opposing party can obtain the substantial equivalent through alternative means—the blind itself, photographs, access to the house, and potentially through case management or pretrial conferences if petitioners intend to use the evidence at trial.
[1] A videotape prepared in anticipation of litigation by a party's expert, who is not expected to be called as a witness at trial, constitutes work product.
[2] Discovery of an expert's work product is permissible only upon a showing that the party seeking discovery has need of the materials and cannot obtain the substantial equi…
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Join FLexlaw to unlock all legal intelligence“A "work product" item, even if relevant to the pending case, is discoverable "only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."”
Establishes the standard for discovery of work product under Florida Rules of Civil Procedure 1.280(b)(3)
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Join FLexlaw to unlock all legal intelligenceA two-year-old child of the petitioners was accidentally hanged by a Venetian blind adjustment cord. Petitioners' expert prepared a videotape demonstr…
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GARRETT, Judge.
Petitioners seek to quash the trial court’s order compelling production of a sound video. The tape shows their expert (not yet designated for trial) performing and explaining tests on the Venetian blind and the adjustment cord which accidentally hanged petitioners’ two year old son. Petitioners offered to produce the blind and photographs of the blind attached to the window. Petitioners no longer live in the house where the accident occurred, but suggested that respondents with mere inconvenience can obtain a court order to gain access to view the window area.
We grant the petition and quash the order. The videotape is petitioner’s “work product” as it was prepared in anticipation of litigation and trial. Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981). A “work product” item, even if relevant to the pending case, is discoverable “only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and 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)(3). Florida Rules of Civil Procedure 1.280(b)(4)(B) provides:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 1.360(b) [not applicable here], or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
We hold that the order of discovery departs from the essential requirements of law for it improperly compels production of “cat-out-of-the bag” information which will cause material injury to petitioners throughout the remainder of the proceedings below. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987). Without any undue hardship respondents can obtain the blind, photographs, and access to the house as other means of discovery. Also, respondents can ferret out the videotape, the testing facts, and the expert’s opinions through case management or pretrial conferences if petitioners intend to use such evidence at trial. See Fla.R.Civ.P. 1.200. CERTIORARI GRANTED; ORDER OF DISCOVERY QUASHED; CAUSE REMANDED.
ANSTEAD and GLICKSTEIN, JJ., concur.
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Citator
Cited By
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Honey Transp., Inc. v. Leafar R. Ruiz, 893 So. 2d 661 (Fla. 4th DCA 2005)…d the discovery of photographs without making any findings “as to whether the material and statements sought were prepared ... in anticipation of litigation, in which case the privilege may be raised ....” Id. at 1134; see also Home v. K-Mart Corp., 558 So. 2d 1079 (Fla. 4th DCA)(holding a videotape made in anticipation of litigation was protected by the work-product rule and required a showing of need and undue hardship to compel discovery), rev. denied, 569 So. 2d 1279 (Fla.1990). Based on these two cases, a…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Ins. Co. OF N. Am. v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981)