MARIE REYNOLDS AND JOSH REYNOLDS, PETITIONERS,
v.
ROBERT HOFMANN, RESPONDENT
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Reynolds v. Hofmann addresses whether a tape recording of a settlement meeting is discoverable in a slander lawsuit. The Third District Court of Appeal held that a contemporaneous tape recording of a conversation between parties is not protected as attorney work product and must be produced in discovery, rejecting the trial court's work product privilege claim.
The tape recording is not work product and is discoverable. The recording does not fall within the categories of privileged work product (such as attorney evaluations, notes on witness testimony, or proposed arguments) and is therefore subject to production under discovery rules.
[1] A tape recording of a conversation between parties to a lawsuit, made by one of the parties, is not attorney work product and is discoverable.
[2] Pretrial discovery is intended to reveal relevant evidence to avoid litigation proceeding as a game of "blind man's bluff."
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Join FLexlaw to unlock all legal intelligence“One of the primary purposes of pretrial discovery is to discover evidence relevant and pertinent to the triable issues pending before the court so that the litigation should no longer proceed as a game of 'blind man's bluff.'”
Establishes the foundational purpose of discovery rules and the court's rationale for rejecting broad work product claims
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Join FLexlaw to unlock all legal intelligenceIn summer 1973, Robert Hofmann sued Marie and Josh Reynolds for slander. On May 30, 1973, the parties and witnesses met at a mutual friend's apartment…
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PER CURIAM.
By way of petition for writ of certiorari, appellants seek review of an order denying their motion to compel.
Plaintiff-appellee, Robert Hofmann, in the summer of 1973 filed an action for slander against the defendants-appellants, Marie and Josh Reynolds. Defendants filed a counterclaim alleging a conspiracy to cheat and defraud.
On or about May 30, 1973, the plaintiff, the defendants and several witnesses met at the apartment of Mrs. Connie Dinkier, a mutual friend. This meeting was held in anticipation of the possibility of litigation and in an effort to settle the difficulties prior to any court action. Plaintiff, after informing all those in attendance, made a contemporaneous tape recording of this meeting. During pretrial discovery, defendants-appellants requested that plaintiff produce this tape. Plaintiff-appellee objected to the production thereof and thereupon defendants filed a motion to compel discovery. After hearing oral argument thereon the trial judge denied defendants’ motion to compel discovery and held that the tape recording was work product and, therefore, not discoverable provided that counsel for plaintiff limit the use of the tape for impeachment purposes at trial. Thereupon, appellants filed the instant petition for writ of certiorari.
Appellants contend that the tape recording of the conversation between the parties to this law suit is not work product and, therefore, discoverable. We agree.
One of the primary purposes of pretrial discovery is to discover evidence relevant and pertinent to the triable issues pending before the court so that the litigation should no longer proceed as a game of “blind man’s bluff.” Jones v. Seaboard Coast Line Railroad Company, Fla.App.1974, 297 So. 2d 861.
Hereunder, we first must dispose of plaintiff-respondent’s argument that the instant tape recording is work product and thus privileged. Generally, the following has been categorized as work product and, therefore, absent rare and exceptional circumstances, cannot be examined: personal views of an attorney as to how and when to present evidence, his evaluation of its importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence. Surf Drugs, Inc. v. Vernette, Fla.1970, 236 So. 2d 108. The subject tape of the conversation of the parties in the case sub judice does not fall into any of the above categories and therefore we find that the recording is not privileged.
Regarding unprivileged matter the following portions of RCP 1.280(b) are applicable to the case at bar:
“(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
“(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action,
“(2) Trial Preparation: Materials
5}c
Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. . For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.”
Pursuant to the above rule and in light of the purpose of pretrial discovery, we have determined that the tape recording of the conversation between the parties should be made available to the petitioner-appellants.
Accordingly, the petition for writ of certiorari is granted and the order denying the motion to compel is quashed.
It is so ordered.
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The Colonies Condo. Ass'n, Inc. v. Clairview Holdings, Inc., 419 So. 2d 725 (Fla. 5th DCA 1982)…equirements of law. Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4 (Fla. 3d DCA 1982); Colonial Penn Insurance Company v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980); Springer v. Greer, 341 So. 2d 212 (Fla. 4th DCA 1976); Reynolds v. Hofmann, 305 So. 2d 294 (Fla. 3d DCA 1974); Brennan v. Board of Public Instruction, 244 So. 2d 463 (Fla. 4th DCA 1971); Leithauser v. Harrison, 168 So. 2d 95 (Fla. 2d DCA 1964). The majority opinion misses the point in this case. Petitioner alleged that respondent failed…
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Colonial Penn Ins. Co. & John Larocca v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980)…ve certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence. Reynolds v. Hofmann, 305 So. 2d 294, 295 (Fla. 3rd DCA 1974). To bring something within the “work-product” ambit, there must be some indication of personal thought, views, knowledge, or evaluation by the attorney, litigant, or agent. Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla.…
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Spencer v. Beverly, 307 So. 2d 461 (Fla. 4th DCA 1975)…The trial court noted that petitioners intended to use the movies solely for im [*462] peachment purposes, a reason for precluding discovery which was rejected in a recent case from the Third District Court of Appeal. Reynolds v. Hofmann, Fla.App., 305 So. 2d 294, 1974. The trial court held that where a litigant reasonably anticipates he may use surveillance movie's for impeachment they should be subject to discovery. In Surf Drugs, Inc. v. Vermette, Fla.1970, 236 So. 2d 108, the court stated: “What constit…
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
- Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970)
- Jones v. Seaboard Coast Line R.R. Co., 297 So. 2d 861 (Fla. 2d DCA 1974)