RUBY TUESDAY, INC. AND CATHERINE ANDERSON, PETITIONERS,
v.
KAREN METALONIS, RESPONDENT
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Ruby Tuesday and Catherine Anderson challenged an order compelling production of an incident report created after a patron allegedly was injured by a collapsing chair. The Florida appellate court held that the incident report was protected attorney work product because it was prepared in anticipation of potential litigation, and the respondent failed to demonstrate sufficient need to overcome the work product protection.
The incident report was protected work product because it was prepared in anticipation of potential litigation. Although the reporter's subjective intent is relevant but not dispositive, an objective standard applies: the report was protected because the alleged injury was caused by an object under the restaurant's control and there was evidence of prior knowledge of the defective condition, making litigation foreseeable. Additionally, respondent failed to meet her burden of demonstrating need to overcome the work product protection.
[1] An incident report is prepared in anticipation of litigation if it is created in response to an event that could foreseeably become the basis of a future claim.
[2] The determination of whether a document was prepared in anticipation of litigation applies an objective standard, not solely the subjective intent of the reporter.
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Join FLexlaw to unlock all legal intelligence“the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future”
Establishes the objective standard for determining whether a document is prepared in anticipation of litigation
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Join FLexlaw to unlock all legal intelligenceRespondent allegedly was injured when a chair collapsed at a Ruby Tuesday restaurant. Petitioners prepared an incident report following the incident i…
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Petitioners challenge an order compelling the production of an incident report prepared after Respondent allegedly was injured when a chair collapsed at a Ruby Tuesday restaurant. Although the trial court’s order compelling production of the incident report does not provide the court’s reasoning, Respondent argued below that the report was not made in anticipation of litigation and that she had a demonstrated need for the report nevertheless.
The determination of whether an incident report was prepared in anticipation of litigation turns on whether “the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of the reporter in making the report might be relevant to this determination, it is by no means dispositive because an objective standard applies. Here, the reporter testified that she made the report in accordance with company policy to report incidents of injury to patrons. The fact that the reporter did not personally foresee the potential claim and did not know the purpose for the company policy did not negate a finding that the report was work product. It was clear that the alleged injury was caused by an object in Petitioners’ control and there was some evidence to suggest that Petitioners had prior knowledge of the defective condition of the chair. Under the circumstances presented here, it was foreseeable that the event might form the basis for a claim. Accordingly, the incident report was protected work product.
As for Respondent’s argument regarding need, we conclude without elaboration that the present record demonstrates that Respondent did not meet her burden on this issue.
ORDER QUASHED.
COHEN, C.J., ORFINGER and TORPY, JJ., concur.