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City of Port St. Lucie v. Vallerie Follano, Case No. 4D15-2642 (4th DCA)

In Follano, the Fourth District grant a petition for writ of certiorari review of a trial court order compelling production of photographs claimed as work product without conducting an in camera review. The plaintiff sued the city after stepping into an uncovered sewer valve. The city took photographs of the area the day of the incident, which showed the uncovered pipe. The plaintiff took photographs of the area the following day, but the pipe had been covered by that time. The plaintiff moved to compel production of the photographs over the city’s claim of work product privilege, arguing the photographs were the only available evidence of how the pipe appeared the day of the incident. The trial court granted the motion, without reviewing the photographs.

The Fourth District initially noted that an order compelling production of privileged work product materials from a litigant’s file is “exactly the type of discovery order properly reviewable by certiorari. Once a litigant is compelled to produce work product, the cat is out of the bag and the harm is done.” Fla. R. Civ. P. 1.280(b)(4) provides that a party may be ordered to produce privileged work product only upon a showing that the party seeking discovery has a need for the materials to prepare the case and is unable without undue hardship to obtain the substantial equivalent of those materials by other means. The Fourth District noted that prior case law held that when a work product privilege is asserted, the trial court must conduct an in camera inspection of the material at issue in order to determine whether the privilege applies. In this case, the Fourth District found that the trial court erred by failing to conduct an in camera review, which is necessary to determine whether the city’s photographs provide the evidentiary value the plaintiff claims and whether the substantial equivalent may be obtained by the plaintiff without undue hardship.

The Fourth District therefore granted the petition and quashed the trial court’s order.

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