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February 16, 2018 by admin

Civil procedure — Discovery — Attorney work product privilege — Trial court departed from essential requirements of law in ordering defendant to produce a surveillance video of plaintiff which is protected by attorney work product privilege where defendant does not intend to use the video at trial — Fact that defendant intends to use an earlier surveillance video at trial does not require that defendant produce later video

43
Fla. L. Weekly D343a

Civil
procedure — Discovery — Attorney work product privilege — Trial court
departed from essential requirements of law in ordering defendant to produce a
surveillance video of plaintiff which is protected by attorney work product
privilege where defendant does not intend to use the video at trial — Fact
that defendant intends to use an earlier surveillance video at trial does not
require that defendant produce later video

MARILYN ROSEANNE HUNT, Petitioner,
v. JAMES LIGHTFOOT, Respondent. 1st District. Case No. 1D17-3938. February 9,
2018. Petition for Writ of Certiorari — Original Jurisdiction. Counsel: Dennis
P. Dore and Nikki E. Hawkins of Quintairos, Prieto, Wood & Boyer, P.A.,
Jacksonville, for Petitioner. Bryan S. Gowdy and Rebecca Bowen Creed of Creed
& Gowdy, P.A., Jacksonville; Joseph V. Camerlengo of Camerlengo & Anderson,
P.L., Jacksonville, for Respondent.
(WETHERELL, J.) Marilyn Roseanne
Hunt, the defendant below, petitions for a writ of certiorari to review an
order compelling production of a surveillance video of Respondent that Hunt
does not intend to use at trial. We grant the petition and quash the order for
the reasons that follow.
I
Respondent, the plaintiff below,
served discovery requests on Hunt for copies of “all videos, photographs,
reports, invoices, documents and any other item(s) and/or documents pertaining
to any and all surveillance performed o[n] Plaintiff.” Hunt objected on grounds
of attorney work product, but she agreed to produce copies of anything that she
intended to use at trial in accordance with the court-mandated exhibit
exchange.
The trial court held a hearing on
the objection. At the hearing, Hunt’s counsel told the trial court that (1)
Respondent had been provided a copy of the 2014 surveillance video that Hunt
intended to use at trial, and (2) additional surveillance was conducted in 2016
but Hunt did not intend to use video of that surveillance at trial.
Respondent’s counsel referred the trial court to Dodson v. Persell, 390
So. 2d 704 (Fla. 1980), and argued that although Hunt was not required to
disclose the contents of the surveillance that she did not intend to use at
trial, she was required to disclose the existence of all surveillance.1 The trial court overruled Hunt’s
objection and ordered her to provide the following information about the 2016
surveillance: “the person who took the film, when it was taken, and where it
was taken.”
After Hunt provided this
information, Respondent filed a motion to compel production of the 2016
surveillance video. In direct contradiction to the position taken by his
counsel at the hearing, Respondent argued in the motion to compel that the
contents of all of the surveillance must be disclosed because Hunt intended to use
a portion of the surveillance at trial. The trial court granted the motion
without further hearing and ordered Hunt to produce the 2016 video.2

Hunt timely filed a petition for
writ certiorari in this court to review the trial court’s order. We expedited
consideration of the petition on Respondent’s motion, and based on the
impending trial date, we issued an unpublished order granting the petition and
quashing the challenged order. We now issue this opinion explaining our ruling.
II
Certiorari relief is appropriate
when an order departs from the essential requirements of the law and causes
material injury to the petitioner that cannot be remedied on appeal. See
Martin-Johnson v. Savage
, 509 So. 2d 1097, 1100 (Fla. 1987). Although “not every
erroneous discovery order creates certiorari jurisdiction in an appellate
court,” id. (emphasis in original), it is appropriate for the appellate
court to exercise its certiorari jurisdiction to review an order permitting
discovery of material protected by the attorney work-product privilege because
the resulting harm cannot be remedied on appeal. See Allstate Ins. Co. v.
Langston,
655 So. 2d 91, 94 (Fla. 1995) (explaining that “certain kinds of
information ‘may reasonably cause material injury of an irreparable nature,’ ”
including “cat out of the bag” information such as that “protected by
privilege, trade secrets, work product, or involving a confidential informant”)
(quoting Martin-Johnson, 509 So. 2d at 1100).
It is well-established that
surveillance videos and other materials prepared by a party’s investigator in
anticipation of or in connection with litigation are attorney work product. See
Dodson
, 390 So. 2d at 707. It is also well-established that although the existence
of the surveillance must be disclosed upon request whether or not it will be
used at trial, the content of the surveillance is discoverable only if
it will be used at trial. Id.; see also Huet v. Tromp, 912 So. 2d
336, 338 (Fla. 5th DCA 2005) (explaining that “a party may waive the work
product privilege with respect to matters covered by an investigator’s
anticipated testimony when a party elects to present the investigator as a
witness”).
Here, it is undisputed that Hunt
does not intend to use the 2016 surveillance video at trial. Thus, the content
of the video is not discoverable absent a showing of extraordinary
circumstances. See Huet, 912 So. 2d at 340-41 (quoting Dodson,
390 So. 2d at 707-08, and Florida Rule of Civil Procedure 1.280(b)(4)(B)).
Respondent made no such showing, nor did he even attempt to do so below.3 Accordingly, the trial court departed
from the essential requirements of law in ordering production of the 2016
video.
We have not overlooked Respondent’s
argument that because Hunt intends to use the 2014 surveillance video at trial,
the 2016 video must also be produced in discovery. However, under the
circumstances of this case, we do not find this argument — or the federal
cases4 on which it is based — persuasive
because the videos at issue in this case do not depict a continuous period of
surveillance such that principles of fairness and completeness require the
production of the later video in conjunction with the earlier video. Rather,
the videos involve entirely separate periods of surveillance that were two
years apart and were conducted by different companies.
Moreover, taken to its logical end,
Respondent’s argument is tantamount to saying that all attorney work
product on a particular subject is discoverable if any evidence on that
subject is presented at trial. If that were correct, then if an attorney
consulted with an expert on a particular issue in preparing for trial but elected
to use a different expert on the issue at trial, then the opposing party would
have right to discover the facts known to both experts. However, that
proposition is inconsistent with the distinction in the Florida Rules of Civil
Procedure between testifying experts and consulting experts, see Fla. R.
Civ. P. 1.280(b)(5)(A)-(B), and it also finds no support in Dodson,
wherein the Court emphasized that “one party is not entitled to prepare his
case through the investigative work product of his adversary where the same or
similar information is available through ordinary investigative techniques and
discovery procedures.” 390 So. 2d at 708.
That said, we recognize that in Northup
v. Acken
, 865 So. 2d 1267 (Fla. 2004), the Court held that a defendant
whose attorney had gathered depositions previously given by one of the
plaintiff’s experts in unrelated cases was required to produce all of the
depositions in discovery where he intended to use certain unspecified portions
of the depositions to impeach the witness at trial. However, Respondent’s
reliance on that case is misplaced because in Northup, the defendant
refused to produce any of the depositions that he might use for
impeachment whereas, in this case, Hunt produced the only video that he
intends to use at trial. Thus, while Northup stands for the proposition
that a party must disclose materials — including attorney work product — that
the party may use at trial, id., at 1272, it does not require
disclosure of attorney work product (such as the 2016 surveillance video in
this case) that the party unequivocally does not intend to use at trial.
III
In sum, because the trial court
departed from the essential requirements of law in ordering Hunt to produce the
2016 surveillance video that is protected by the attorney work-product
privilege thereby causing material injury that cannot be remedied on appeal, we
grant Hunt’s petition for writ of certiorari and quash the order compelling
production of the 2016 video and the financial information related to that
video.
PETITION GRANTED; ORDER QUASHED.
(RAY and M.K. THOMAS, JJ., concur.)
__________________
1Specifically,
counsel for Respondent told the trial court:
So what we’re talking about is not the contents of
surveillance, and that’s the big difference here . . . . We want to know
whether there is [surveillance], what there is [surveillance] of, and the
dates. And that is all. We don’t need to get into the observations or any of
that.
And that’s where [Dodson] becomes relevant, because
it specifically held that the existence of surveillance and photographs is
discoverable in every instance. The contents are only discoverable if the
material will be used in evidence, but we don’t want the contents. We want to
know about the existence.
And, in this case, especially where they plan on using some
of it, it has definitely become relevant. . . . .
THE COURT: I’m sorry. The one that they said they’re not
going to use —
[RESPONDENT’S COUNSEL]: We still get to know about the
existence. We don’t get the contents of it, but certainly the existence of it.
2The order
also required Hunt to disclose the amounts paid to the company that performed
the 2016 surveillance, but Respondent represented in his response to the
petition for writ of certiorari that he is no longer seeking this financial
information.
3Respondent
contends that he was only required to show that he “has a need of the materials
in the preparation of his case” and “is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.” But, even if that
standard applied, Respondent failed to meet it because his claimed need for the
2016 video was to show that the 2014 video represented only a snapshot in time
and that it did not necessarily represent his condition at other times not
depicted on the video. This self-evident point can be made through
cross-examination of the witness through which the 2014 video is offered and
the testimony of Respondent or other witnesses who have first-hand knowledge of
his condition at points not depicted in the video.
4See, e.g., Hairston v. ED Nelson Transport, 2015
WL 12843869 (M.D. Fla. 2015); Roa v. Tetrick, 2014 WL 695961 (S.D. Ohio
2014); Papadakis v. CSX Transp., Inc., 233 F.R.D. 227 (D Mass. 2006); Smith
v. Diamond Offshore Drilling, Inc.
, 168 F.R.D. 582 (S.D. Tex. 1996). All of
the cases appear to involve a single, continuous period of surveillance, not
multiple periods of surveillance as in this case. Indeed, the Hairston
case on which Respondent most heavily relies for the proposition that all
surveillance evidence must be produced even when only a portion will be used at
trial distinguishes Angelucci v. Gov’t Employees Ins. Co., 2011 WL
4809146 (M.D. Fla. 2011), in which the court denied a motion to compel
production of a 2011 surveillance video that the defendant did not intend to
use at the retrial in the case even though a 2009 surveillance video had been
produced and used at the initial trial. See Hairston, 2015 WL 12843869,
at *2 (distinguishing Angelucci because “in that case there was a
two-year gap and an intervening trial between the first and second
surveillance”). This case is more like Angelucci than Hairston
and the other federal cases cited by Respondent.
* * *

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