Appellate Update – Failure to Conduct an In Camera Inspection Where a Party Asserts Work-Product Privilege Constitutes a Departure from the Essential Requirements of the Law

February 18, 2016 by on News

In Marshalls of M.A., Inc. v. Witter, No. 3D15-2685, 2016 WL 403212, at *1 (Fla. 3d DCA Feb. 3, 2016), the Plaintiff sought the production of several documents. Defendant objected to five of the requests on the ground that such “requests were overbroad, unduly burdensome, irrelevant, and not likely to lead to discovery of admissible evidence.” The trial court entered an order overruling Defendant’s objections as to four of the objections, but failed to rule on one objection. Defendant produced documents responding to some of the request and filed an objection based on work-product privilege as to the remaining requests. The Defendant also filed a privilege log and a motion seeking in camera review. Instead of conducting the in camera review, the trial court entered an order compelling the production of such documents. The Defendant sought certiorari review in the Third District.

The Court explained that “when a party asserts the work-product privilege, Florida law requires that the trial court hold an in-camera inspection of the discovery at issue in order to rule on the applicability of the privilege.” Thus, the trial court’s failure to conduct an in-camera inspection would have constituted a departure from the essential requirements of the law.

Documents prepared in anticipation of litigation are protected by the work-product privilege. As a result, incident reports, internal investigative reports, and any information gathered by employees in order to defend a potential lawsuit are protected by the work-product privilege. However, under Florida Rule of Civil Procedure 1.280(b)(4), a party may still obtain work-product by “showing (1) relevance and particularized need and (2) the inability to obtain the substantial equivalent without undue hardship.”

In this case, some of the requested information at issue related to prior similar incidents at the Defendant’s store. In a slip and fall case, the injured person must prove that the defendant had actual or constructive notice of a dangerous condition. Therefore, the information the Plaintiff sought was relevant. Yet, the Court noted that while this information would be relevant to the Plaintiff to establish her claim, the Plaintiff was still required to demonstrate her inability to obtain similar information without undue hardship.

It is important to request an in camera review any time a party asserts privilege. This allows the trial court to review the subject documents before any disclosure is made. If the trial court does not conduct the in camera review, then the party has a means to seek certiorari review with the appellate court. A party will also be able to show irreparable harm because disclosure of privilege documentation constitutes cat-out-of-the-bag material, which cannot be corrected on plenary appeal. If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.  


Kansas R. Gooden
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Direct: 904.493.3755
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Loreyn P. Raab
Direct: 904.309.6786
Fax: 904.520.7597

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