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October 9, 2015 by admin

Torts — Discovery — Privilege — Work product — Trial court departed from essential requirements of law by compelling production of photographs of accident scene taken by defendant

40 Fla. L.
Weekly D2260a
Top of Form

Torts
— Discovery — Privilege — Work product — Trial court departed from
essential requirements of law by compelling production of photographs of
accident scene taken by defendant on day of accident, over defendant’s claim of
work product privilege, without conducting in camera review — In camera review
is necessary to determine whether photographs provide evidentiary value
plaintiff claims and whether plaintiff could obtain substantially equivalent
photographs without undue hardship — Inspection is required even where, as
here, party seeking discovery concedes that material at issue constitutes work
product, but argues that it is nevertheless discoverable under rule 1.280 —
Remand for evidentiary hearing

THE CITY OF PORT ST. LUCIE, Petitioner, v. VALLERIE FOLLANO, Respondent.
4th District. Case No. 4D15-2642. October 7, 2015. Petition for writ of
certiorari to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie
County; Janet Croom, Judge; L.T. Case No. 562013CA000999. Counsel: Carri S.
Leininger and James O. Williams, Jr. of Williams, Leininger & Cosby, P.A.,
North Palm Beach, for petitioner. James L.S. Bowdish and Donna E. DeMarchi of
Crary Buchanan, P.A., Port St. Lucie, for respondent.

(PER CURIAM.) Petitioner, the City of Port St. Lucie, seeks certiorari
review of an order compelling production of certain photographs, which it
claims are protected work product. The trial court found the photographs
discoverable under Florida Rule of Civil Procedure 1.280(b)(4) but failed to
conduct an in camera review before making that determination. We therefore
grant the City’s petition, quash the trial court’s order, and remand for an in
camera review and an evidentiary hearing.

Respondent, Vallerie Follano, sued the City for negligence after stepping
into an uncovered sewer valve access pipe up to her knee. The City took
photographs of the area on the day of the incident, after Follano was extracted
by the fire department. The photographs show the uncovered pipe, but the City
claims the surrounding area had been altered significantly by the firefighters.
Follano took photographs of the area the next day, but the pipe had been
covered by that time.

Follano moved to compel production of the City’s photographs over the
City’s claim of work product privilege. She argued the City’s photographs are
the only available evidence of how the pipe appeared on the day of the incident
since the area was later completely reconstructed. The trial court granted the
motion based on the testimony of Follano’s counsel, without reviewing the
City’s photographs, simply finding that “the photographs cannot be obtained by
any other measure.” The court denied the City’s request to review the
photographs in camera.

Certiorari review is appropriate when a discovery order departs from the
essential requirements of law, causing material injury throughout the remainder
of the proceedings below and effectively leaving no adequate remedy on appeal. See
Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC
,
99 So. 3d 450, 454-55 (Fla. 2012); Allstate Ins. Co. v. Langston, 655
So. 2d 91, 94 (Fla. 1995). “An order compelling production of privileged work
product materials from a litigant’s file is exactly the type of discovery order
properly reviewable by certiorari. Once a litigant is compelled to produce work
product, the cat is out of the bag and the harm is done.” Nat’l Car Rental
Sys., Inc. v. Kosakowski
, 659 So. 2d 455, 456 (Fla. 4th DCA 1995)
(citations omitted). We therefore accept jurisdiction to review the trial
court’s order in this case.

Florida Rule of Civil Procedure 1.280(b)(4) provides that a party may be
ordered to produce privileged work product “only upon a showing that the party
seeking discovery has need of the materials in the preparation of the case and
is unable without undue hardship to obtain the substantial equivalent of the
materials by other means.” In Snyder v. Value Rent-A-Car, 736 So. 2d 780
(Fla. 4th DCA 1999), this Court held that when a work product privilege is
asserted, the trial court must conduct an in camera inspection of the material
at issue in order to determine whether the privilege applies. The court can
then consider whether the material is discoverable under Rule 1.280. Id. at
782; see also Lloyd’s Underwriters at London v. El-Ad Villagio Condo. Ass’n,
976 So. 2d 28, 29 (Fla. 4th DCA 2008); Town Ctr. @ Boca Raton Trust v.
Hirokawa
, 789 So. 2d 1230, 1231-32 (Fla. 4th DCA 2001).1

The trial court in this case departed from the essential requirements of
law by failing to conduct an in camera review before determining that the
City’s photographs were discoverable under Rule 1.280. Such a review is
necessary to determine whether the City’s photographs provide the evidentiary
value Follano claims and whether Follano could obtain substantially equivalent
photographs without undue hardship.

We reject Follano’s argument that an in camera inspection is not required
when, as here, the party seeking discovery concedes that the material at issue
constitutes work product, but argues that it is nevertheless discoverable under
Rule 1.280. The inspection is intended, in part, to assist the trial court in
making the factual determinations required by the rule. See, e.g., Fla.
E. Coast Ry., LLC v. Jones
, 847 So. 2d 1118, 1119 (Fla. 1st DCA 2003)
(“[W]e direct the trial court to hold an evidentiary hearing to determine
whether the plaintiff could make the requisite showing of need and undue
hardship. In doing so the trial court should review the materials in camera to
determine whether [the plaintiff] can meet his burden under [the Rule].”).

We therefore grant the City’s petition and quash the trial court’s order
granting Follano’s motion to compel. On remand, the trial court is directed to
conduct an in camera review of the City’s photographs and hold an evidentiary
hearing to determine whether Follano has met her burden under Rule 1.280(b)(4).

Petition for writ of certiorari granted; order quashed; remanded for
further proceedings consistent with this opinion.
 (GROSS, LEVINE and CONNER, JJ., concur.)

__________________

1These cases refer to Rule 1.280(b)(3), but the subsection was renumbered
as (b)(4) in 2012. See In re Amendments to the Fla. Rules of Civil Procedure
— Elec. Discovery
, 95 So. 3d 76, 79-80 (Fla. 2012).

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