Plaintiff in Port St. Lucie v. Follano allegedly fell knee-deep into an uncovered sewer valve-access pipe, and had to be extracted by the fire department. Staffers with the city took photographs of the scene shortly after the accident, when plaintiff had been rescued and the scene was cleared.
Plaintiff returned to the site the following day and took her own photographs. However, by that time, the pipe was covered. When she filed a lawsuit, she requested the city turn over the images it had of the scene. She asserted to the court those were the only images reflecting the condition of the site at the time of the incident. But defendant countered the images weren’t necessarily indicative of the scene as it was prior to plaintiff’s fall because the site had been “significantly altered” by the rescue work of the firefighters.
Normally, such nuance would be an issue of fact for a jury in a personal injury case to weigh. However, defense asserted the photos were a form of work-product materials. As such, they should be protected by attorney-client privilege.
The work-product privilege or doctrine was first established by the U.S. Supreme Court in 1947 with the case of Hickman v. Taylor. In Florida, Fla. R. Civ. P. 1.280(b)(3) indicates that work product is considered documents or other tangible items that are prepared in anticipation of trial or litigation. The goal is to protect the effective assistance of lawyers and others helping to prepare a case for trial. Maintaining private communications between an attorney and client – particularly when it comes to legal theories and strategies – is important. However, courts know too that there has to be a balance because both sides should be allowed access to relevant facts.
That’s why there is a difference between “fact” work product and “opinion” work product. The former involves factual information or material that’s gathered, while the latter is primarily an attorney’s conclusions, opinions, theories or impressions concerning the legal action. While opinion work product isn’t usually discoverable, fact work product can be discoverable if the other side can show there is a need for the information and also an undue hardship in obtaining it otherwise.
The side seeking work product material needs to show:
- It’s needed to prepare the case;
- He or she is unable without undue hardship to obtain by other means the substantial equivalent;
- The material is relevant.
Even then, courts often require detailed, specific explanations and sometimes, an in camera inspection is called for.
In this case, trial court did not conduct an in camera inspection, but simply found the city’s photos couldn’t be obtained through other means and ordered the city turn over the pictures to the plaintiff. The city appealed, and Florida’s Fourth District Court of Appeal reversed.
Justices ruled trial court erred in abiding by civil rules of procedure in failing to conduct a review in camera (or in private) of the materials before making a decision regarding whether the photographs were discoverable.
The matter was remanded with instructions for the court to first conduct a review of the materials in order to determine whether plaintiff could potentially obtain the substantial equivalent to those images without an undue hardship.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Port St. Lucie v. Follano , Oct. 7, 2015, Florida’s Fourth District Court of Appeal
More Blog Entries:
Seaboard Marine v. Clark – Citing Work Privilege to Withhold Post-Accident Evidence, Sept. 28, 2015, Fort Myers Premises Liability Lawyer Blog