Torts
— Discovery — Work product privilege — Trial court improperly entered order
compelling defendant to disclose to plaintiff post-accident photographs of area
where plaintiff was injured where plaintiff failed to exercise due diligence to
obtain substantially equivalent materials to the privileged photographs

SEABOARD MARINE LTD., Petitioner, vs. FARCONELLY CLARK, Repondent. 3rd
District. Case No. 3D14-3043. L.T. Case No. 13-2043. Opinion filed September
16, 2015. A Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County, Lisa S. Walsh, Judge. Counsel: Blanck and Cooper, P.A., and
Robert W. Blanck and Jonathan Hernandez, for petitioner. Cassidy and Black,
P.A., and Michael C. Black and Kate S. Goodsell, for respondent.

(Before WELLS, ROTHENBERG and SCALES, JJ.)

(SCALES, Judge.) Petitioner Seaboard Marine Ltd., the defendant below,
seeks certiorari review of an order of the trial court compelling Seaboard to
disclose to Respondent Farconelly Clark, the plaintiff below, certain
work-product photographs that were developed by Seaboard’s attorneys. We grant
certiorari relief, and quash the trial court’s order, because Clark failed to
exercise the due diligence required as a prerequisite for obtaining materials
protected by Florida’s work-product privilege.

I. Facts

In February of 2012, Clark, an employee of a stevedoring company, was
injured while working at Seaboard’s terminal at the Port of Miami. Seaboard
operates the terminal, which it leases from Miami-Dade County. During the
loading process of cargo containers onto ships, a top loader operated by
another employee of the stevedoring company, ran over Clark and crushed his
legs, which were later amputated.

Clark sued Seaboard and the County, alleging that noise and congestion in
the terminal, combined with alleged inadquate lighting and disorganized storage
of containers, created a dangerous work environment.

Immediately following the accident, attorneys for Seaboard and other
Seaboard representatives, took ninety-one post-accident photographs of the area
in which the accident occurred. In addition to these ninety-one photographs,
Seaboard preserved approximately ninety minutes of surveillance footage of the
terminal from the night of the accident. This footage was taken from a camera
stationed approximately one hundred feet over the location of the accident. The
surveillance footage depicts the location of the containers within the
terminal, the terminal layout, the top loaders working in the accident area, as
well as a somewhat distant view of the accident itself.

The surveillance footage was turned over to Clark’s counsel before Clark
brought his action against Seaboard and the County. Seaboard declined to
provide Clark with the ninety-one post-accident photographs, asserting a
work-product privilege and an attorney-client privilege.

On January 18, 2013, Clark filed the instant lawsuit. In a request for
production dated April 2, 2013, Clark sought the ninety-one photographs, to
which Seaboard objected. Seaboard filed the appropriate privilege log pursuant
to rule 1.280(b)(6) of the Florida Rules of Civil Procedure.

Clark then filed a motion to compel the production of the photographs.
Seaboard responded and provided the trial court with the photographs for an in
camera inspection. On November 7, 2014, the trial court heard Clark’s motion to
compel. The trial court entered an order granting Clark’s motion to compel,
finding that the photographs are relevant to the issues in the lawsuit, and
that Clark has no other means of obtaining the photographs.

At the time this motion was heard by the trial court, no witnesses had
been deposed. Further, Clark presented no evidence at the hearing indicating
that Clark had attempted to obtain any post-accident photographs taken by
either the County or Clark’s employer.

Seaboard timely sought certiorari review of the trial court’s order.

II. Analysis

A writ of certiorari is the proper method to review trial court orders
compelling production of privileged discovery that is otherwise protected as
work product; compelling such production presents the potential of a departure
from the essential requirements of law, which would cause material harm for
which there is no adequate remedy on final appeal. Allstate Ins. Co. v.
Langston, 655 So. 2d 91, 94 (Fla. 1995).

Rule 1.280(b)(4) of the Florida Rules of Civil Procedure sets forth
requirements that must be met by a party seeking the disclosoure of materials
protected by Florida’s work product doctrine. In relevant part, this rule
reads:

[A] party may
obtain discovery of documents and tangible things otherwise discoverable . . .
and prepared in anticipation of litigation or for trial by or for another party
or by or for that party’s representative, including that party’s attorney . . .
, 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.

Fla. R. Civ. P. 1.280(b)(4).

Therefore, the party requesting such privileged materials has a
considerable burden to show that the party has both a significant need and an
undue hardship in obtaining a substantial equivalent. Metric Eng’g, Inc. v.
Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003); CSX Transp., Inc. v.
Carpenter, 725 So. 2d 434, 435 (Fla. 2d DCA 1999).

In this case, the record is devoid of any efforts by Clark to obtain
substantially equivalent materials to the privileged, post-accident photographs
taken by Seaboard’s counsel. No depositions of witnesses were taken; no
attempts to obtain other, non-privileged photographs were undertaken.

No doubt the photographs are relevant; they might be highly probative to
the critical issues in the case. Rule 1.280(b)(4), however, establishes a much
higher bar than mere relevancy to obtain such privileged work-product materials
developed by an adversary. A party must first diligently exhaust other means of
obtaining the substantial equivalent. In this case, the record is devoid of
evidence of such diligence.

III. Conclusion

We grant Seaboard’s petition and quash the trial court’s order compelling
Seaboard to produce the ninety-one post-accident photographs.

Petition granted.

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