MCRAE'S, INC., A MISSISSIPPI PETITIONER,
v.
DOUGLAS MORELAND AND PAULA MORELAND, AS NATURAL PARENTS AND NEXT FRIENDS OF C.M., A MINOR, RESPONDENTS
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McRae's sought certiorari review of a trial court order requiring disclosure of incident reports and employee witness statements from a "peeping tom" incident at its store. The court held that statements taken before law enforcement contact were work product protected under Florida law because litigation was foreseeable, and remanded for the trial court to properly evaluate whether respondents met the burden to overcome this qualified privilege.
The statements were protected work product because litigation was foreseeable at the time they were taken. The trial court departed from essential requirements of law by ordering production without evaluating whether respondents made the requisite showing of need and undue hardship sufficient to overcome the qualified privilege.
[1] Statements taken from employees regarding an incident are considered work product if prepared in anticipation of litigation, even if litigation is only foreseeable at the…
[2] A trial court departs from the essential requirements of law by ordering the production of work product without first evaluating the requesting party's showing of need an…
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Join FLexlaw to unlock all legal intelligence“At the time the statements were taken, it was foreseeable that litigation could arise from the incident.”
Establishes the standard for work product protection—foreseeability of litigation is sufficient, not just actual contemplation.
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Join FLexlaw to unlock all legal intelligenceA "peeping tom" incident occurred at a McRae's store. McRae's employees took statements from witnesses in preparation for potential litigation from a …
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PER CURIAM.
In the cause before us, Petitioner McRae’s, Inc. (McRae’s) seeks certiorari review of the trial court’s order requiring disclosure of McRae’s incident reports and employee witness statements regarding a “peeping tom” incident at one of its stores. McRae’s objected to Respondents’ discovery requests on the basis of work product. The trial court determined that any statements taken before law enforcement was contacted were not work product because they were not prepared in anticipation of litigation.
We hold that the trial court departed from the essential requirements of law in ordering production of the statements. At the time the statements were taken, it was foreseeable that litigation could arise from the incident. See Waste Management, Inc. v. Florida Power & Light Co., 571 So. 2d 507 (Fla. 2d DCA 1990); Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989); see also Beverly Enterprises-Florida, Inc. v. Olvera, 734 So. 2d 589 (Fla. 5th DCA 1999)(holding that nursing director’s notes regarding investigation of a patient’s injury were work product because they were “prepared in anticipation of possible litigation”); but see Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984)(holding that work product privilege attaches to documents prepared “in contemplation of litigation”, not when prepared for “mere likelihood of litigation”).
According to the affidavit of Petitioner’s corporate director of loss prevention, statements were taken from employees in preparation for litigation by the terminated employee involved in the incident or by the girl who was changing in the dressing room at the time. These statements were maintained in McRae’s corporate litigation file. Respondents presented no evidence to rebut Petitionér’s affidavit.
In determining that the statements were not work product, the trial court did not evaluate whether Respondents made the requisite showing of need for the materials and undue hardship in obtaining a substantial equivalent sufficient to overcome this qualified privilege. See Fla. R. Civ. P. 1.280(b)(3). Therefore, we GRANT the petition for writ of certiorari, quash the trial court’s order, and REMAND the cause for further proceedings consistent with this opinion.
BOOTH and LAWRENCE, JJ., CONCUR; DAVIS, J., DISSENTS WITH WRITTEN OPINION.
DAVIS, J.,
dissenting.
I respectfully dissent. I do not believe that the trial court departed from the essential requirements of law by concluding that any statements taken immediately subsequent to the incident, but before the police became involved, were not taken in contemplation of litigation, and by finding that any statements taken during this period were not protected by the work product privüege. See Cotton States Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So. 2d 595, 596 (Fla. 4th DCA 1984). At the time the statement at issue was taken, there was, at best, a mere likelihood of litigation. See id. I would therefore deny the petition for writ of certiorari.
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Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)…ee Vesta Fire Ins. v. Figueroa, 821 So. 2d 1233 (Fla. 5th DCA 2002); Fla. Farm Bureau 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…
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Allstate Indem. Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001)…cisions from other districts finding that statements are privileged and protected as work product when they were taken at a time when it was foreseeable that litigation would arise. See, e.g., Prudential, 694 So. 2d at 774; McRae’s Inc. v. Moreland, 765 So. 2d 196 (Fla. 1st DCA 2000). We nevertheless adhere to our ruling in Cotton that work product privilege attaches to documents prepared in contemplation of litigation and not for “mere likelihood of litigation.” Cotton, 444 So. 2d at 596. Accordingly, we aff…
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Marshalls OF MA, Inc. v. Cira Minsal, 932 So. 2d 444 (Fla. 3d DCA 2006)…g to discovery on the basis of the work product doctrine “maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insured.”); McRae’s, Inc. v. Moreland, 765 So. 2d 196 (Fla. 1st DCA 2000)(holding that documents concerning an incident were work product because they were prepared when it was foreseeable that litigation could arise from the incident); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Fla. Constr., Comm…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984)
- Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989)
- 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)
- Beverly Enterprises-Florida, Inc. v. Olvera, 734 So. 2d 589 (Fla. 5th DCA 1999)