PRUDENTIAL INSURANCE COMPANY OF AMERICA, PETITIONER,
v.
FLORIDA DEPARTMENT OF INSURANCE AND GARY RICKETTS, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Prudential Insurance Company sought review of an administrative order requiring it to produce documents it claimed were protected as fact work product to the Florida Department of Insurance. The court quashed the order, holding that the Department failed to demonstrate the requisite need and inability to obtain the information by other means necessary to overcome work product protection.
The documents constitute protected fact work product because they were compiled in response to an event that could foreseeably be the basis of a claim and were generated in anticipation of litigation. The Department failed to make the required showing of need and undue hardship necessary to overcome work product protection, and therefore the order compelling production was improper.
[1] An administrative order requiring the production of documents asserted to be fact work product is immediately reviewable if a final agency decision would not provide an a…
[2] Documents generated by employees in response to policyholder complaints and news reports of misconduct, in anticipation of litigation, constitute fact work product.
Previewing 2 of 5 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“Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.”
Establishes the standard for protecting fact work product, including preliminary materials generated in anticipation of litigation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePrudential's legal staff assumed responsibility for oversight of responses to policyholder complaints received after March 6, 1995, in response to com…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Fact Work Product cases and more on FLexlaw
PER CURIAM.
Prudential Insurance Company of America seeks review of a nonfinal administrative order requiring Prudential to produce documents that it asserts are fact work product1 for inspection by the Department of Insurance’s attorneys. Prudential is not a party to the Department’s administrative action against Gary Ricketts, a former Prudential life insurance agent. This court has jurisdiction pursuant to section 120.68(1), Florida Statutes (1995), which provides for immediate review of such orders “if review of the final agency decision would not provide an adequate remedy.” An order requiring discovery is a proper subject for review “since an erroneously compelled disclosure, once made, may constitute irreparable harm which cannot be remedied by way of appeal.” Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985). We grant review and quash the order for the reasons set forth herein.
Prudential has demonstrated that the documents in question constitute fact work product by submitting unrefuted affidavits stating that in response to policyholder accusations in complaints and lawsuits and to extensive news reports of churning and sales misconduct by Prudential agents, Prudential’s legal staff assumed responsibility for oversight of responses to policyholder complaints pending or received after March 6, 1995. The affidavits assert that all of these documents were generated by Prudential employees who received, evaluated, and responded to policyholder complaints in anticipation of the likelihood of litigation. “Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.” Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760, 761 (Fla. 2d DCA 1989); see also Waste Management, Inc. v. Florida Power & Light Co., 571 So. 2d 507 (Fla. 2d DCA 1990) (nonparty’s investigation of accident protected as work product although a lawsuit against it was unlikely to be successful).
Before a party can obtain discovery of work product material, it must show that it “has need to the materials in the preparation of the ease and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3). The bare assertions of the Department’s counsel are clearly inadequate to show the “need” and “undue hardship” required for production of the documents. Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1195 (Fla. 1st DCA 1985); see also Whealton v. Marshall, 631 So. 2d 323, 325 (Fla. 4th DCA 1994) (respondents failed to demonstrate either need or lack of access to the factual information contained in the work product documents).
Since the Department did not make the required showing of need and inability to obtain the factual information by other means without undue hardship, the lower tribunal departed from the essential requirements of law in compelling Prudential to disclose the documents. Adjustco, Inc. v. Sibley, 611 So. 2d 88 (Fla. 2d DCA 1992).
We grant the petition for review and quash the order compelling production.
CAMPBELL, A.C.J., and WHATLEY and NORTHCUTT, JJ., concur. . Prudential’s “opinion" work product has already been excluded from production. “Fact” work product protects information relating to the case which is gathered in anticipation of litigation, while "opinion" work product consists primarily of an attorney’s mental impressions, conclusions, opinions, and theories. Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla.1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)…Gen. Ins. Co. v. Copertino, 810 So. 2d 1076 (Fla. 4th DCA 2002); Wal-Mart Stores, Inc., v. Ballasso, 789 So. 2d 519 (Fla. 1st DCA 2001); McRae’s, Inc. v. Moreland, 765 So. 2d 196 (Fla. 1st DCA 2000); Prudential Ins. Co. of Am. v. Fla. Dep’t of Ins., 694 So. 2d 772 (Fla. 2d DCA 1997); Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989). Because we conclude there is clearly conflict and confusion in the application of discovery concepts in the case law, and particularly in the insurance…
-
Allstate Indem. Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001)…uary 7,1997. Allstate argues that because the problem with coverage presented itself immediately, litigation was anticipated at the pertinent times associated with the above outlined discovery. See Prudential Ins. Co. of Am. v. Fla. Dep’t. of Ins., 694 So. 2d 772, 774 (Fla. 2d DCA 1997) (quoting Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 [*241] So. 2d 760, 761 (Fla. 2d DCA 1989)). We reject that position as this court distinguishes between material prepared during the normal course of evaluating a claim a…
-
CSX Transp., Inc. v. Carpenter, 725 So. 2d 434 (Fla. 2d DCA 1999)…quivalent of the materials by other means.” Here, the record does not contain affidavits or testimony in support of this proposition. Assertions of counsel do not fulfill this requirement. See Prudential Ins. Co. of America v. Florida Dept. of Ins., 694 So. 2d 772 (Fla. 2d DCA 1997); Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1195 (Fla. 1st DCA 1985). In its petition to this court, CSX outlines a number of evidentiary issues which Carpenter failed to address by affidavits appended to his motion to com…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)
- 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)
- Fla. Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985)
- Howard v. State, 571 So. 2d 507 (Fla. 5th DCA 1990)
- Waste Mgmt., Inc. v. Fla. Power & Light Co., 571 So. 2d 507 (Fla. 2d DCA 1990)
- Adjustco, Inc. v. Sibley, 611 So. 2d 88 (Fla. 2d DCA 1992)
- Whealton v. Martye L. Marshall, M.D., 631 So. 2d 323 (Fla. 4th DCA 1994)