work product privilege in Florida

2018The rationale supporting the work product doctrine is 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.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980).

2015“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his ease through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)).

2015P. 1.280(b)(4); Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 112 (Fla. 1970) (“The work product of the litigant, his attorney or agent, cannot be examined, absent rare and exceptional circumstances.”). 2 “The rationale supporting the work product doctrine is 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.’” Deason, 632 So. 2d at 1384 (quoting Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980)).

2006The court, relying on Northup , concluded that the request was too broad, under the work product rule, because it included documents that the plaintiff "might conceivably offer as evidence at trial." Florida Supreme Court decisions applying the work product doctrine invariably rely on federal law, specifically Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947); Northup, 865 So.2d at 1269 ; Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 113 (Fla.1970).

2019The Florida Supreme Court explained: Requiring a defendant to reveal to the prosecutor the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why this witness may be of value to the defense, is “contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved.” State v. Williams, 678 So. 2d 1356, 1358 (Fla. 3d DCA 1996); see also State v. Rabin, 495 So. 2d 257, 262 (Fla. 3d DCA 1986) (explaining that opinion work product, which includes the attorney’s theories concerning t

2018Requiring a defendant to reveal to the prosecutor the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why this witness may be of value to the defense, is "contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved." State v. Williams , 678 So.2d 1356 , 1358 (Fla. 3d DCA 1996) ; see also State v. Rabin , 495 So.2d 257 , 262 (Fla. 3d DCA 1986) (explaining that opinion work product, which includes the attorney's theories concerning the case, "is absolutely, or nearly

2025The privilege covers communications to third parties “to whom disclosure is in furtherance of the rendition of legal services to the client” and “[t]hose reasonably necessary for the transmission of the communication.” § 90.502(1)(c), Fla. Stat. “This privilege covers communications on legal matters between corporate counsel and corporate employees,” Shell Oil Co. v. Par Four P’ship, 638 So. 2d 1050, 1050 (Fla. 5th DCA 1994), and dissemination of received legal advice to other employees who need to know it because of its relevance to their duties, see Southern Bell, 632 So. 2d at 1383 . 6 The

2015“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his ease through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)).

2026"On the other hand, the attorney-client privilege, unlike the work- product doctrine, is not concerned with the litigation needs of the opposing party." Id.; see also Quarles & Brady, LLP v. Birdsall, 802 So. 2d 1205, 1206 (Fla. 2d DCA 2002) (holding that communications privileged under section 90.502 "are not discoverable unless one of the statutory exceptions applies" and that "undue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case" (citation omitted)); W.

2014Co., 74 So.3d 1064, 1068 (Fla.2011). “‘[UJndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their ease.’” Id. (quoting Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002)).

2026The production sought in Genovese was the insurer's claim file, and the supreme court explained why in bad faith actions the work product doctrine is set aside specifically for insurer's claims files: "Because the underlying claim materials are 'necessary to advance [a first-party bad faith] action . . . [and] evaluate the allegations of bad faith,' the materials fall within the confines of the exception to the work- product doctrine, and thus are discoverable." Genovese, 74 So. 3d at 1068 (alterations in original) (emphasis added) (quoting Ruiz, 899 So. 2d at 1128-29 ); see also Fla. R.

2026These necessity arguments by Progressive seem to be an attempt to overcome the attorney-client privilege by way of rule 1.280(c)(4), but while a showing of need is required to overcome the work product privilege, "there is no exception . . . that allows the discovery of attorney- client privileged communications where the requesting party has demonstrated need and undue hardship." See Genovese, 74 So. 3d at 1068 . 6 Although Genovese addressed the attorney-client privilege in the context of the production of the insurer's claim file, contrary to Progressive's assertion, the right to assert the

2022Accord Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“The work-product privilege protects documents and papers of an attorney or a party prepared in anticipation of litigation.”).

2022“Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege.” Witter, 186 So. 3d at 573 .

2013Federal and Civil Cases Involving Work Product The Supreme Court first recognized the work product doctrine in a civil case, Hickman v. Taylor, 329 U.S. 495, 508 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947), where the petitioner sought discovery of written and oral statements of witnesses in the respondent’s files, even though the identity of those witnesses was well known and their availability to the petitioner was unimpaired.

2013Federal and Civil Cases Involving Work Product The Supreme Court first recognized the work product doctrine in a civil case, Hickman v. Taylor, 329 U.S. 495, 508 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947), where the petitioner sought discovery of written and oral statements of witnesses in the respondent’s files, even though the identity of those witnesses was well known and their availability to the petitioner was unimpaired.

2026The production sought in Genovese was the insurer's claim file, and the supreme court explained why in bad faith actions the work product doctrine is set aside specifically for insurer's claims files: "Because the underlying claim materials are 'necessary to advance [a first-party bad faith] action . . . [and] evaluate the allegations of bad faith,' the materials fall within the confines of the exception to the work- product doctrine, and thus are discoverable." Genovese, 74 So. 3d at 1068 (alterations in original) (emphasis added) (quoting Ruiz, 899 So. 2d at 1128-29 ); see also Fla. R.

2022In Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1129-30 (Fla. 2005), the court explained that "all materials . . . contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages" are not protected by the work product privilege.

2013Several years later in United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975), the Supreme Court discussed the application of the work product doctrine in criminal cases, explaining that “[t]he interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.” At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepa

2013Several years later in United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975), the Supreme Court discussed the application of the work product doctrine in criminal cases, explaining that “[t]he interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.” At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepa

2012Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984) (“The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation.

2009Co., 444 So.2d 595 (Fla. 4th DCA 1984), described this work product protection thus: “The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation.

2025Such documents “will not lose their protected status even if they were also generated for another purpose,” id. at 446, and disclosure in anticipation of litigation “does not waive the work product privilege unless it is ‘inconsistent with the maintenance of secrecy from the disclosing party’s adversary . . . [that is, that it] substantially increases the possibility of an opposing party obtaining the information.’” Visual Scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 442 (Fla. 3d DCA 1987) (alteration in original) (quoting United States v. Am.

2013See Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 442 (Fla. 3d DCA 1987) (work product privilege waived where disclosure of information is made in manner that is “inconsistent with the maintenance of secrecy from the disclosing party’s adversary”).

2022“Under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable.” Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446 (Fla. 3d DCA 2006) (quoting Liberty Mut.

2022“In this district . . . the standard to be applied when determining whether an incident report is protected by the work product doctrine, is whether the document was prepared in response to some event 3 which foreseeably could be made the basis of a claim in the future.” Minsal, 932 So. 2d at 446–47.

2020Although counsel stated, upon prompting by the trial judge, that he did not anticipate objecting to the discovery requests, this exchange was not sufficient to waive the client's objections, which were later timely asserted in counsel's written responses to the requests."); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. 5th DCA 2005) (holding that the Huets were entitled -8- to claim work product privilege despite previous waiver; waiver had been cured when the Huets struck the witnesses at issue from their witness list); Truly Nolen Exterminating, Inc. v. Thomasson, 554 So. 2d 5, 5-6 (Fla. 3d DCA 1

2019Bd., 958 So. 2d 1003 (Fla. 1st DCA 2007) (holding that the findings and opinions of a non-witness expert were protected from discovery under the work- product privilege); Huet v. Tromp, 912 So. 2d 336, 338 (Fla. 5th DCA 2005) (“An investigator employed by a party may not be required to produce the work-product of his or her investigations, except in unusual circumstances constituting compelling necessity for the discovery in order to reach the merits of the cause.”).

2019Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected from discovery by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera revi

2019Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected from discovery by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera revi

2016See Nat'l Car Rental Sys., Inc. v. Kosakowski, 659 So. 2d 455 (Fla. 4th DCA 1995) (explaining that order compelling production of privileged work-product materials from litigant's file is type of discovery order properly reviewable by certiorari).

2016See Nat'l Car Rental Sys., Inc, v. Kosakowski, 659 So.2d 455 (Fla. 4th DCA 1995) (explaining that order compelling production of privileged work-product materials from litigant’s ñle is type of discovery order properly reviewable by certiora-ri).

2014Hosp., Inc. v. Zimmer U.S.A., Inc., 403 So.2d 1087 (Fla. 1st DCA 1981) (holding that the work product privilege extends beyond the anticipated litigation and noting that “the weight of modern authority clearly provides that work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related”).

1986As for the trial court's determination that the work product privilege expires when a case file is closed, the petitioners cite to the case of Alachua General Hospital, Inc. v. Zimmer U.S.A., Inc., 403 So.2d 1087 (Fla. 1st DCA 1981), which held that the work product privilege does not end when the litigation ends.

2019The Florida Supreme Court explained: Requiring a defendant to reveal to the prosecutor the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why this witness may be of value to the defense, is “contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved.” State v. Williams, 678 So. 2d 1356, 1358 (Fla. 3d DCA 1996); see also State v. Rabin, 495 So. 2d 257, 262 (Fla. 3d DCA 1986) (explaining that opinion work product, which includes the attorney’s theories concerning t

2018Requiring a defendant to reveal to the prosecutor the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why this witness may be of value to the defense, is "contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved." State v. Williams , 678 So.2d 1356 , 1358 (Fla. 3d DCA 1996) ; see also State v. Rabin , 495 So.2d 257 , 262 (Fla. 3d DCA 1986) (explaining that opinion work product, which includes the attorney's theories concerning the case, "is absolutely, or nearly

2016See Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004) (“We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are ... not protected by the work product privilege.”).

2014See Northup v. Acken, 865 So.2d 1267, 1270 (Fla.2004) (holding that all materials reasonably expected or intended to be used at trial are subject to proper discovery requests and are not protected by the work product privilege).

2022Corp. v. Dabney, 73 F.3d 262 , 266 (10th Cir. 1995) (“Because the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product.”)); see also Adams v. Mem’l Hermann, 973 5 F.3d 343 , 350 (5th Cir. 2020) (reiterating that work product doctrine protects only attorney's work product and not underlying facts); 8 Charles Alan Wright & Arthur R.

2006"Because the work product doctrine is intended only to guard against divulging the attorney's strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product." Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.1995).

2022“The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert.” Mullins v. Tompkins, 15 So. 3d 798, 801 (Fla. 1st DCA 2009); see also Smith v. State, 873 So. 2d 585, 591 (Fla. 3d DCA 2004) (“We also hold that the act of disclosing [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege.”).

2009See Smith v. State, 873 So.2d 585, 591 (Fla. 3d DCA 2004) (“We also hold that the act of disclosing it [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege.”).

2022See GKK v. Cruz, 251 So. 3d 967 , 969 n.1 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ for purposes of the work product doctrine if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’” (quoting id.)).

2021Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (finding surveillance photographs “were protected by the work product privilege”) (citations omitted); see also GKK v. Cruz, 251 So. 3d 967 , 969 n.3 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ . . . if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’”) (citation omitted); Liberty Mut.

2022“The rationale supporting the work product doctrine is 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.’” DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988, 989 (Fla. 3d DCA 1994) (quoting S. Bell Tel. & Tel.

2022“The rationale supporting the work product doctrine is 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.’” DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988, 989 (Fla. 3d DCA 1994) (quoting S. Bell Tel. & Tel.

2021Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (finding surveillance photographs “were protected by the work product privilege”) (citations omitted); see also GKK v. Cruz, 251 So. 3d 967 , 969 n.3 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ . . . if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’”) (citation omitted); Liberty Mut.

2018Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (granting certiorari, quashing the trial court’s discovery order “in its entirety,” and holding that “(a) State Farm’s claims files, manuals, guidelines and documents concerning its claims handling procedures were irrelevant to the first party [coverage] dispute” and “(b) the defendant’s surveillance photographs, witness statements and repair estimates were protected by the work product privilege”).

2020Although counsel stated, upon prompting by the trial judge, that he did not anticipate objecting to the discovery requests, this exchange was not sufficient to waive the client's objections, which were later timely asserted in counsel's written responses to the requests."); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. 5th DCA 2005) (holding that the Huets were entitled -8- to claim work product privilege despite previous waiver; waiver had been cured when the Huets struck the witnesses at issue from their witness list); Truly Nolen Exterminating, Inc. v. Thomasson, 554 So. 2d 5, 5-6 (Fla. 3d DCA 1

1992See Truly Nolen Exterminating, Inc. v. Thomasson, 554 So.2d 5 (Fla. 3d DCA 1989), rev. dismissed, 558 So.2d 20 (Fla.1990); Eastern Air Lines, Inc. v. Gellert, 431 So.2d 329 (Fla. 3d DCA 1983).

2019Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected from discovery by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera revi

2019Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected from discovery by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera revi

2006Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004)(stating that a party objecting to discovery on the basis of the work product doctrine "maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insured."); McRae's, Inc. v. Moreland, 765 So.2d 196 (Fla. 1st DCA 2000)(holding that documents concerning an incident were work product because they were prepared when it was foreseeable that litigation could arise from the incident); Nat'l Union Fire Ins.

2004Co. of Am. v. Fla. Dep't. of Ins., 694 So.2d 772, 774 (Fla. 2d DCA 1997); McRae's Inc. v. Moreland, 765 So.2d 196 (Fla. 1st DCA 2000)). *375 The view we have adopted, from Carver v. Allstate Insurance Co., 94 F.R.D. 131 (S.D.Ga.1982), that the probability of litigation must be "substantial and imminent," was rejected by the Fifth Circuit Court of Appeals in United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.Tex.1981): It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of

1989A failure to assert a work-product privilege at the earliest opportunity, in response to a discovery motion, does not constitute a waiver of the privilege so long as the privilege is asserted by a pleading, to the trial *6 court, before there has been an actual disclosure of the information alleged to be protected. § 90.507, Fla. Stat. (1987); Eastern Airlines, Inc. v. Gellert, 431 So.2d 329 (Fla. 3d DCA 1983); Insurance Co. of N. Am. v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981).

1983Since these documents are not ab initio within the work product privilege, no showing to overcome the privilege, see Fla.R.Civ.P. 1.280(b)(2); 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); Associated Medical Institution, Inc. v. Trube, 394 So.2d 563 (Fla. 3d DCA 1981), was needed.

2023Co. v. Lanier, 800 So. 2d 689 , 690–91 (Fla. 1st DCA 2001) (explaining that insurer’s “blanket statement in its privilege log is insufficient to establish the work-product privilege”).

2017Co. v. Lanier, 800 So.2d 689, 691 (Fla. 1st DCA 2001) (explaining that the work-product doctrine protects documents prepared “in anticipation of litigation, rather than in the ordinary course of ... business”); see also § 381.028(3)0*), Fla. Stat. (2010) (defining “records” for purposes of legislation implementing Amendment 7 to exclude “documents or portions thereof which constitute, contain, or reflect any attorney-client communications or any attorney-client work product”).