TRANSAMERICA INSURANCE COMPANY, PETITIONER,
v.
ROBERT MAZE AND SHELBY MUTUAL INSURANCE COMPANY, RESPONDENTS
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Transamerica Insurance Company sought review of a trial court order requiring it to produce witness statements for use at trial. The appellate court held that under Florida Rule 1.280(b)(2), a party seeking discovery of materials prepared in anticipation of litigation must first demonstrate both a need for the materials and inability to obtain their equivalent by other means without undue hardship, which the respondents failed to do.
The trial court's order was improper because respondents failed to meet the threshold requirements of Rule 1.280(b)(2), which places the burden on the movant to show need for the materials and inability to obtain their equivalent by other means. Without such a showing, attorney-client privilege and work product protections remain intact.
[1] Discovery of witness statements prepared in anticipation of litigation requires a showing of need and inability to obtain the substantial equivalent without undue hardshi…
[2] A party seeking discovery of witness statements prepared in anticipation of litigation bears the burden of demonstrating need and undue hardship.
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Join FLexlaw to unlock all legal intelligence“prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including his attorney, consultant, surety, indemnitor, insurer or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”
Establishes the dual requirement for discovery of work product—need and inability to obtain equivalent materials by other means
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Join FLexlaw to unlock all legal intelligenceTransamerica Insurance Company and co-defendants were ordered by trial court to produce statements of witnesses they intended to use at trial. Respond…
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BOARDMAN, Judge.
This cause is before the court on Petition for Writ of Certiorari seeking review of an interlocutory order entered by the trial court compelling petitioner and its co-defendants to produce statements of witnesses they intend to use at trial.
The said order was entered upon a Request to Produce filed by Robert Maze and Shelby Mutual Insurance Co., respondents, who were also co-defendants below. The request was based on Rule 1.350 RCP and petitioner was requested to produce “any and all statements taken from any and all persons which may be used at trial.” Petitioner timely objected to said request assigning the following grounds:
1. That there is no showing that said information is not equally available to defendants, Maze and Shelby Mutual.
2. That defendant Transamerica Insurance Company had not determined which of said statements will be used at trial.
The trial court after hearing argument entered an order on all pending motions, the pertinent part of which follows:
“. . .6. The objection of . and Transamerica Insurance Company to the request filed by Robert Maze and Shelby Mutual Insurance Company of Shelby, Ohio, be and the same is hereby overruled in that said production shall be granted as to statements of witnesses said defendants intend to use at trial ..."
Rule 1.350(a), supra, provides for the production of documents that constitute or contain matters within the scope of Rule 1.280(b) and that are in the possession, custody or control of the party to whom the request is directed.
Rule 1.280(b)(2), RCP, 30 FSA, provides, inter alia, that a party may obtain statements
. . prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . .” (emphasis supplied)
The request to produce did not assign any reasons for the statements but merely sought them; while the rqle clearly places the burden on the movants, respondents here, to show a need for the sought after statements in the preparation of their case. Further, the movants must demonstrate they are unable, without undue hardship, to obtain the equivalent of the statements by any other means. See Raulerson v. Finney, Fla.App.3rd 1973, 280 So. 2d 484. Likewise, a review of a variety of federal cases dealing with the identical federal rule (Rule 26) reveals the federal courts, in deciding whether to allow discovery of materials, will examine the motion to produce or other appropriate pleading in order to ascertain the extent of the movant’s own diligence in preparing his case for trial. As stated in Florida Civil Practice Before Trial, Third Edition, Section 16.8 at page 396:
“. . . RCP 1.280(b)(2) should not be allowed to benefit lawyers who simply leave it to the opposition to investigate and prepare a case for trial.”
Respondents in the instant case did not make a showing of why the statements are even needed or not obtainable by their own diligence. Absent the prescribed showing as provided in 1.280(b)(2), supra, the attorney-client privilege and/or work product doctrine should remain intact and undisturbed. The respondents are not entitled to unlimited disclosure as a matter of right. See, Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. Lastly, we point out and emphasize that we are not holding that the statements sought to be obtained here would under any and all circumstances be protected from discovery under the work product theory.
The Petition for Writ of Certiorari is granted quashing paragraph 6 of the trial court’s order of May 12, 1975.
HOBSON, Acting C. J., and SCHEB, J., concur.
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Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)…Graham, 432 So. 2d 756 (Fla. 5th DCA 1983); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981); Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981); Transamerica Insurance Co. v. Maze, 318 So. 2d 200 (Fla. 2d DCA 1975). Also well established in Florida is the principle that the unsworn analysis of a party’s attorney and/or a bare assertion of need and undue hardship to obtain the substantial equivalent insufficient to satisfy this showing. See,…1 / 3
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Leonard Frantz, D.D.S. v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981)…the absence of a showing — obviously not made here — that the plaintiff is unable to secure its equivalent without undue hardship. Fla.R.Civ.P. 1.280(b)(2); Atlantic Coast Line R. R. v. Allen, 40 So. 2d 115 (Fla.1949); Transamerica Ins. Co. v. Maze, 318 So. 2d 200 (Fla.2d DCA 1975); see generally, Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla.1970). For these reasons, the petition is granted and the orders of June 29 and July 17,1981 are quashed. Certiorari granted. . Avowedly pursuant to Fla.R.Civ.P.…
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Speer v. Desrosiers, 361 So. 2d 722 (Fla. 4th DCA 1978)…t the showing should be made as a routine prerequisite to production of Rule 1.280(b)(2) materials, and not that it should be brought out for the first time at a judicial hearing. The same conclusion is implied in Transamerica Insurance Co. v. Maze, 318 So. 2d 200, 201 (Fla. 2d DCA 1975): The request to produce did not assign any reasons for the statements but merely sought them; while the rule clearly places the burden on the movants . to show a need for the sought after statements in the preparation of the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947)
- Raulerson v. Finney, 280 So. 2d 484 (Fla. 3d DCA 1973)