PUBLIX SUPER MARKETS, INC., PETITIONER,
v.
LINDA ANDERSON AND ALLEN ANDERSON, RESPONDENTS
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Publix appealed a trial court order requiring it to produce incident reports and witness statements prepared after a customer's slip-and-fall, claiming work-product privilege. The Fourth District Court of Appeal granted the writ and quashed the production order, holding that such reports are clearly prepared in anticipation of litigation and Publix met its burden under Florida Rule of Civil Procedure 1.280(b)(3).
The court held that both the incident report and witness statement are clearly documents prepared in anticipation of litigation and are protected work product. Publix met its burden under Rule 1.280(b)(3), and the plaintiffs failed to demonstrate they could not obtain the substantial equivalent of the materials through alternative means such as depositions.
[1] Documents prepared by a party or its representative in anticipation of litigation are protected by the work-product privilege.
[2] A party seeking discovery of work product must demonstrate a substantial need for the materials and an inability to obtain the substantial equivalent by other means witho…
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Establishes the legal standard under Florida Rule of Civil Procedure 1.280(b)(3) for obtaining work product
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs suffered a slip and fall at a Publix grocery store and sought discovery of all reports concerning the incident. Publix asserted work-pr…
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This case arises from a slip and fall at a Publix grocery store. During discovery, the plaintiff sought “any and all reports concerning the incident identified in the plaintiffs complaint.” Publix asserted a work-product privilege and its privilege log identified two documents: a report of the incident by the assistant store manager and a “customer incident witness statement” of a customer service staff associate. Both items were prepared after the plaintiffs fall, on the same day. After reviewing the reports in camera, the trial court ordered their production. Publix seeks certiorari review of that order. We grant the writ and quash the order.
Florida Rule of Civil Procedure 1.280(b)(3) provides that a party may obtain work product, or materials “prepared in anticipation of litigation,” “only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”
Both the incident report and the witness statement state that they were “prepared in anticipation of a claim or litigation” and are “confidential.” We agree with the observation of the fifth district that such items are obviously documents prepared in anticipation of litigation. Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983). Created after a slip and fall has been reported to the grocery store, such reports and employee statements,
certainly are not prepared because of some morbid curiosity about how people fall at the market. Experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries. Experience has also shown those stores that bogus or frivolous or exaggerated claims might be made. A potential defendant’s right to fully investigate and memorialize the results of the investigation should not be restricted any more than should a potential plaintiffs. Our system of advocacy and dispute settlement by trial mandates that each side should be able to use its sources of investigation without fear of having to disclose it all to its opponents. This allows for free discussion and communication during preparation for litigation. If all reports and other communications of the litigants were available to the opposition then those communications would certainly be stilted, unrevealing and thus self-defeating in their purpose.
Publix has met its burden, and the plaintiffs have not demonstrated that they are unable to obtain the “substantial equivalent of the material by other means,” such as depositions.
*924We grant the petition for writ of certio-rari and quash the order requiring production of the two reports.
MAY, C.J., and STEVENSON, J., concur.
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Marshalls OF M.A., Inc. v. Mecca Witter, 186 So. 3d 570 (Fla. 3d DCA 2016)…s routinely prepared may qualify as’ work' product. Millard Mall Servs., 155 So. 3d at 1275; Sears, Roebuck & Co. v. Scott, 481 So. 2d 968 (Fla. 4th DCA 1986). As the Fourth District Court of Appeal noted in Publix Super Markets., Inc. v. Anderson, 92 So. 3d 922, 923 (Fla. 4th DCA 2012), reports created after a slip and fall has been reported: ' certainly are not prepared because ’ of some morbid curiosity about how people fall at a market. Experience has shown all retail stores that people who fall in the…
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Millard Mall Servs., Inc. v. Bolda, 155 So. 3d 1272 (Fla. 4th DCA 2015)…DCA 1984) (documents are work product only if they were prepared “in contemplation of litigation,” and the “[m]ere likelihood of litigation does not satisfy this qualification.”). Even the reports at issue in Publix Super Markets, Inc. v. Anderson, 92 So. 3d 922, 923 (Fla. 4th DCA 2012), quoted in the majority, were incident reports about the particular slip and fall in litigation in that case. Here, there is no evidence that the quarterly reports meet this test. Moreover, even if the quarterly reports cou…1 / 2
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Int'l House OF Pancakes (Ihop) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013)…ng some portion of Neilly’s severed fingertip. The statement that Neilly gave IHOP’s insurer on January 2, 2009 was “in anticipation of litigation” that was “reasonably foreseeable.” Fla. R. Civ. P. 1.280(b)(4); Publix Super Mkts., Inc. v. Anderson, 92 So. 3d 922, 923 (Fla. 4th DCA 2012). Experience has shown ... that people [injured on a business premises] try to be compensated for their injuries[;][e]x-perience has also shown ... that bogus or frivolous or exaggerated claims might be made.... Our system .…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winn-Dixie Stores, Inc. v. Varsenig Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983)