TIME WARNER, INC., AMERICAN LAWYER MEDIA LIMITED PARTNERSHIP AND MARK DILLON, PETITIONERS,
v.
EDWARD GADINSKY AND KAREN SANZO, RESPONDENTS
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Time Warner and American Lawyer Media sought protection of memoranda written by a journalist in anticipation of threatened libel litigation under the work product privilege. The Florida appellate court granted certiorari and quashed the lower court's order requiring production, holding that the documents were created in anticipation of litigation and thus protected.
The memoranda are protected by the work product privilege because they were created in anticipation of the litigation specifically threatened by the notice and which in fact ensued. No waiver of the work product privilege occurred, and the lower court's order requiring production is quashed.
[1] Documents created in anticipation of litigation threatened by a notice, which subsequently ensues, are protected by the work product privilege.
[2] The work product privilege is not waived by asserting an alternative, unrecognized privilege.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“memoranda from the writer of an allegedly offending article to his superiors submitted to prepare a response to a notice served on the publication pursuant to section 770.01, Florida Statutes (1991) were created in anticipation of the litigation specifically threatened by the notice itself, and which in fact ensued thereafter in the present action for libel. The documents are therefore protected by the work product privilege.”
The court's primary holding establishing that the documents qualify for work product protection based on their creation in anticipation of specific threatened litigation.
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Join FLexlaw to unlock all legal intelligenceAn allegedly offending article was published, and a notice was served on the publication pursuant to Florida Statute section 770.01. The article's wri…
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SCHWARTZ, Chief Judge.
It is clear that memoranda from the writer of an allegedly offending article to his superiors submitted to prepare a response to a notice served on the publication pursuant to section 770.01, Florida Statutes (1991) were created in anticipation of the litigation specifically threatened by the notice itself, and which in fact ensued thereafter in the present action for libel. The documents are therefore protected by the work product privilege. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994); Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989); Sears, Roebuck & Co. v. Scott, 481 So. 2d 968 (Fla. 4th DCA 1986); Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985); Winn-Dixie Stores, Inc. v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983), pet. for review denied, 446 So. 2d 100 (Fla.1984); Associated Medical Inst., Inc. v. Trube, 394 So. 2d 563 (Fla. 3d DCA 1981). Contrary to the respondent’s contention, moreover, we find no waiver of that position.1 The order requiring production of the papers in question is therefore quashed.
Certiorari granted.
. In fairness to the trial court, we note that, while the petitioners preserved their work product claim, their primary thrust below (and in the briefs here) was that discovery was precluded by a "self-evaluative media privilege,” which was (singularly) recognized in Lasky v. American Broadcasting Cos., 5 Fed.R.Serv.3d 1366 (S.D.N.Y.1986). While the basis of our decision makes it unnecessary directly to decide whether this claim was correctly rejected, we have at least very grave doubts both about our authority to adopt such a privilege even if we thought it wise, see Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984), and whether we would if we could.
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Snyder v. Value Rent-A-Car, 736 So. 2d 780 (Fla. 4th DCA 1999)…requirement in this rule that for something to be protected as work product, it must be an item ordered to be prepared by an attorney. See, e.g., Barnett Bank v. Dottie-G. Dev. Corp., 645 So. 2d 573 (Fla. 2d DCA 1994); Time Warner, Inc. v. Gadinsky, 639 So. 2d 176 (Fla. 3d DCA 1994). Rule 1.280 (b)(3), provides that work product documents may be obtained only upon a showing that the party seeking discovery “has need of the materials in the [*782] preparation of the case and is unable without undue hardship t…
Authorities Cited
- Winn-Dixie Stores, Inc. v. Varsenig Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983)
- Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)
- Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989)
- DeBARTOLO-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994)
- Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984)
- Associated Med. Inst., Inc. v. Trube, 394 So. 2d 563 (Fla. 3d DCA 1981)
- Sears v. Scott, 481 So. 2d 968 (Fla. 4th DCA 1986)
- State Dep't OF Health & Rehabilitative Servs. v. Whitman, 481 So. 2d 968 (Fla. 2d DCA 1986)