During the discovery phase of civil trial proceedings, there is extensive effort on both sides to uncover all facts, records and other evidence relevant to the case. It involves deposing eyewitnesses, seeking expert witness testimony, conducting reconstruction of the incident and becoming as knowledgeable as possible on the facts of the case as they apply to the law.
In some situations, there is evidence to which only one side has access. It may be relevant to the case, and it may be impossible for the other side to obtain it otherwise. These could be things like medical records, voicemail recordings or video evidence. Properly determining what to hand over and what to fight to withhold takes legal experience and skill.
Where the evidence is deemed work-product privilege, the requesting party will have an even higher proof burden.
Fla. R. Civ. P. 1.280(b)(3) defines work product as documents and other tangible things that were prepared in anticipation of litigation. This is the broad definition that was set in the 1947 U.S. Supreme Court case of Hickman v. Taylor, though it’s been narrowed over the years by case law. The idea is essentially that courts want to preserve the effective assistance of attorneys preparing for trial by keeping private communications between client-attorney, especially in developing legal theories and case strategies. On the other hand, courts do appreciate that there must be fairness in litigation, and both sides have to be allowed to obtain relevant facts, which is why discovery rules are interpreted so liberally.
So the question of whether work product should be granted in discovery is a tightrope act of balance, and different courts could rule on the same issue in different ways.
That brings us to the case of Seaboard Marine v. Clark, recently before Florida’s Third District Court of Appeal.
According to court records, plaintiff was an employee of a stevedoring company who was injured while working at a terminal owned by defendant in the Port of Miami. Defendant owns and operates the terminal, which is leased from the county.
In the process of loading large containers onto ships, another employee of the stevedoring company was operating a top loader and ran over plaintiff, crushing his legs. He ultimately had to undergo amputation of both legs.
Plaintiff then sued both defendant terminal operator and the county. He alleged the congestion and noise of the terminal, plus inadequate light and the disorganized storage of containers, made for an especially dangerous working environment.
Right after the work accident, lawyers for defendant terminal operator took nearly 100 photos of the scene post-accident. They also preserved surveillance footage of the site.
Defense attorneys then turned over the surveillance video to plaintiffs, but withheld the photographs.
When plaintiff then sought the photographs too, defense objected, citing work-product privilege.
Trial court conducted an in-camera inspection, and determined the photos were relevant, plaintiff had no other means of obtaining them and defense should turn them over. Defense appealed, and the appellate court reversed.
In weighing the issue, the appeals court noted that at the time the photos were requested, no witnesses had been deposed and plaintiff had not presented any evidence indicating he tried to obtain post-accident photos either by his employer or the county.
Relevance alone is not enough to overcome work-product privilege in the discovery phase. The court conceded the photos are relevant, and may even be quite damaging to the defense. However, there has to be a showing that the other party “diligently exhausted other means” of obtaining the same evidence.
That could mean this issue will later be revisited before trial, but it will require plaintiffs to pursue more action in advance of filing such a motion.
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.
Seaboard Marine v. Clark, Sept. 16, 2015, Florida Third District Court of Appeal
More Blog Entries:
Grace v. Mansourian – Requests for Admissions in Crash Cases, Sept. 16, 2015, Boca Raton Industrial Accident Lawyer Blog