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The Fifth District Court of Appeal held that a trial court ruled in error when it ordered production of witness statements without first conducting an in camera inspection.

In Selton v. Nelson, 41 Fla. L. Weekly D2337 (Fla. 5^th DCA October 14, 2016), a party was ordered by the trial court to produce in discovery the witness statements it had gathered in anticipation of litigation. The trial court did so without first examining the statements in camera and without making a finding that the party seeking the statements could not find the equivalent information elsewhere. The petitioner, not wanting to just hand over the discovery and believing the trial court to have ruled in error, filed for a writ of certiorari. A writ of certiorari is a fast track appellate procedure used when a party is claiming irreparable harm.

Ruling for the petitioner and quashing the trial court order, the 5^th DCA held that the trial court was in error in ordering the discovery because it did not conduct an in camera inspection to determine if the statements were privileged material. Further, the respondent failed to offer any evidence they could not obtain the equivalent evidence in another fashion, such as a deposition. In quashing the order the appellate court sent the matter back to the trial court level to ascertain if the statements sought were privileged and if the respondents could meet their burden showing they could not obtain equivalent information anywhere else.

This ruling is relevant to our clients that gather witness statements before the start of litigation, such as Examinations Under Oath, and then become subject to opposing party requests seeking discovery of the statements. It is imperative that opposing counsel be held to their burden of proof when seeking discovery orders from the court. If the trial court fails to hold the opposition to their burden and erroneously orders discovery the part seeking certiorari must file for a writ within 30 days of the order they wish to appeal.