THE TRAVELERS INDEMNITY COMPANY, PETITIONER,
v.
MELVIN FIELDS, RESPONDENT

Fla. 1st DCA | 1972-05-23
No. Q-135
SPECTOR, C. J., and RAWLS, J., concur.
262 So. 2d 222 Florida District Court of Appeal, First District (1972) Positive Treatment
Cited by 23 cases

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Holding

The court held that the trial court's order compelling answers to deposition questions and requiring an in camera review of documents was not a departure from the essential requirements of law, but reserved judgment on the ultimate production of documents pending the in camera review.


Headnotes

[1] Work product of a party litigant is not subject to discovery except upon a showing of compelling necessity to reach the merits of the case.

[2] Documents that are merely business records acquired in the usual course of business are subject to inspection during discovery.

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Facts & Procedural History

Defendant insurance company sought certiorari review of a trial court order compelling its claims adjuster to answer deposition questions and produce …

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Defendant insurance company seeks review by certiorari of an order rendered by the trial court requiring a claims adjuster employed by it to answer two questions *223propounded to him on his deposition. Review is also sought of that provision of the same order which requires defendant to produce and deliver to the court for an in camera examination 17 documents written and furnished to it by its claims adjuster relative to the fire loss which forms the basis of this action. Plaintiff claims the right to inspect the questioned documents in preparation of his case for trial. We accept jurisdiction to determine the points raised.1

The documents involved herein may be generally characterized as correspondence, reports, cost estimates, written instructions, and information in the custody and control of defendant’s claims adjuster or which may have been furnished to or received by him from defendant in connection with the fire loss suffered by plaintiff.

It is noted that the order here assaulted requires only that the questioned documents be delivered to the court for an in camera examination preliminary to a ruling on defendant’s objection and motion for a protective order. No ruling has yet been made requiring that all or any of the documents be produced for plaintiff’s inspection and use.

Petitioner contends that the motion to produce the documents affirmatively establishes that they constitute petitioner’s work product which it is not lawfully required to divulge. From an examination of the record before us, we are unable to determine with any degree of certainty whether any or all of the documents are in fact nothing more than business records acquired and developed by petitioner in the usual course of its business of investigating and settling fire losses sustained by its insureds or are its work product acquired in connection with or in anticipation of this lawsuit brought by respondent.

The work product of a party litigant is not subject to discovery by another party to the cause except upon a showing of compelling necessity in order to reach the merits of the case. This is not on the principle of privileged communications but one of public policy underlying the orderly presentation and defense of legal claims.2

If it is ultimately determined that the documents are merely business records acquired by petitioner in the usual course of its business, then respondent has the right to inspect them in connection with the discovery procedures initiated by him. If on the other hand the documents are held to be the work product of petitioner, then its objection to respondent’s motion and its motion for a protective order should be granted. However, in the event an in camera examination of the documents viewed in the light of any evidence relative thereto, which may be submitted to the court by the parties, demonstrates a compelling necessity for the documents to be exhibited to respondent, then such may be ordered by the court in the exercise of its discretion.3

Such a necessity recognized as an exception to the work product exclusionary rule may be established by a showing (1) that the underlying evidence has been damaged, disassembled, changed, or is inaccessible to the same examination by respondent; (2) that the withholding of the in*224formation contained in the documents sought would defeat the interest of justice; or (3) that the information is not as readily available to respondent as it was to petitioner.4

We are unwilling to assume that after an in camera examination of the documents in question, the trial court will order that they be produced for respondent’s inspection unless such is authorized under the principles set forth herein. In the event the trial court finds that a compelling necessity exists for petitioner’s work product to be made available to respondent for his inspection and use, orderly procedure would seem to dictate that the facts upon which such finding of necessity is predicated will be clearly outlined in the order to produce.5 If at that time petitioner feels that the trial court’s ruling constitutes a departure from the essential requirements of law as set forth herein, it may then again seek the aid of this court by a renewed application for writ of cer-tiorari.

We have considered petitioner’s objection to the two questions addressed to its claims adjuster which he is required to answer under the terms of the order here reviewed. We are of the opinion that the answers sought to be elicited by the questions would be relevant to the claim for damages alleged by plaintiff in his supplemental complaint filed in the cause. For this reason the questions are not objectionable and should be answered.

Petitioner’s application for writ of cer-tiorari is denied.

SPECTOR, C. J., and RAWLS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Allstate Ins. Co. v. Gibbs, 340 So. 2d 1202 (Fla. 4th DCA 1976)
    …es, particularly where the work product of a party litigant is the subject matter of such dis [*1204] covery. Brooks v. Owens, 97 So. 2d 693 (Fla. 1957); Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla.1970); Travelers Indemnity Company v. Fields, 262 So. 2d 222 (Fla. 1st DCA 1972); Nationwide Insurance Co. Pinellas Cty. v. Monroe, 276 So. 2d 547 (Fla. 2d DCA 1973); see in particular, Allstate Insurance Company v. Shupack, 335 So. 2d 620 (Fla. 3d DCA 1976). Additionally, with respect to the claim for punit…
  • Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA 1981)
    …pondent; (2) that the withholding of the information and the documents sought would defeat the interest of justice; or (3) that the information is not as readily available to respondent as it was to petitioner. Travelers Insurance Company v. Fields, 262 So. 2d 222 (Fla. 1st DCA 1972). The record in the present case clearly reflects that no such showing was made before the deputy commissioner. Therefore, there is no competent substantial evidence which can support the deputy commissioner’s finding that the pre…
    1 / 2
  • Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258 (Fla. 3d DCA 1989)
    …1.280(b)(4)(B). See generally Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1194 (Fla. 1st DCA 1985); Agri-Business, Inc. v. Bridges, 397 So. 2d 394, 395 (Fla. 1st DCA), review denied, 407 So. 2d 1102 (Fla.1981); Travelers Indem. Co. v. Fields, 262 So. 2d 222, 223-24 (Fla. 1st DCA 1972). Here, one of Lind’s experts indicates that he has already formed his opinion, and the other expert indicates that he will shortly do so. The large investigatory team focused specifically on electrical code violations as…

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