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Appellate Court Reinforces High Bar for Overcoming the Work Product Privilege

Feb 23, 2016 in Case Law Updates by

In Marshalls v. Witter, a Florida 3rd DCA opinion filed February 3, 2016, the Court expounds on the two-part procedure necessary to compel documents protected by the work-product privilege.  The trial court initially ordered Marshalls to produce the incident report and records concerning similar accidents without conducting an in-camera inspection as requested by Marshalls.  The Court reaffirmed precedent requiring the trial court to hold an in-camera inspection of the discovery material at issue in order to rule on the applicability of the privilege. 

After determining that the work-product privilege applies to incident reports, the Court moves on to the analysis for overcoming the privilege under F.R.C.P. 1.280(b)(4). Not only must the party requesting the documents show relevance and particularized need, but it must also show the inability to obtain the substantial equivalent without undue hardship.

In dicta, the Court contemplates that while Witter may be entitled to a list of prior incidents, this does not necessarily mean she would be entitled to reports and other investigative documents. While the petition was denied as moot due to a resolution in the lower Court, the 3rd DCA has signaled a willingness to further limit discovery of incident reports and investigative material in the favor of personal injury Defendants.


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