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Millard Mall Services, Inc., et al. v. Mary Bolda, Case No. 4D14-1338 (4th DCA)

In Bolda, the Fourth District quashed a trial court order compelling the defendant mall to produce certain quarterly safety committee reports. The plaintiff had filed suit against the defendant mall after she slipped and fell while shopping at the mall. During litigation, the plaintiff requested production of various documents and records relating to substantially similar events and maintenance and cleaning of the subject premises. After an in camera review of the documents, the trial court ordered production of several year's worth of quarterly safety committee reports, but sustained the defendant's work product privilege as to the report generated as a result of the plaintiff's event. The defendant appealed, arguing that the safety reports were privileged work product prepared in anticipation of litigation. The Fourth District agreed with the defense.

The Fourth District explained that a party may only discovery work product prepared in anticipation of litigation upon a showing of (1) particularized need, which includes a determination of whether the privilege documentation contains relevant information, and (2) the inability to obtain the substantial equivalent without undue hardship. The Fourth District additionally noted that work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation's risk management department. Internal investigative reports are covered under the rule. The court added that a report that is routinely prepared may still qualify as work product.

The court found that in Bolda the plaintiff had the ability to obtain substantially equivalent information through discovery directed to the defendant mall. The Fourth District also noted that the fact that the requested materials were potentially relevant is but one factor among several to be considered. The court found that the plaintiff had not demonstrated that she is unable to obtain the substantial equivalent of the material by other means. "The assertion that plaintiff needs these materials for the prosecution of her case, without more, is wholly insufficient to meet her burden." The Fourth District concluded that because the information was documents created in the court of the defendant's investigations, and because the plaintiff had not met her burden to show undue hardship, the trial court's order compelling disclosure was a departure from the essential requirements of the law.

Dissenting, Judge Warner noted that the safety reports were used to promote safety and to determine whether proper maintenance was being done at the mall. Judge Warner stated that the reports, as opposed to individual incident reports, were not made in anticipation of litigation. The judge continued, "Moreover, even if the quarterly reports could be considered work product, the enactment of section 768.0755, Florida Statutes, concerning premises liability for transitory foreign substances in a business establishment, should make them discoverable. Enacted at the behest of commercial interests, that statute requires an injured person to prove 'that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.'" The person may prove constructive knowledge by, among other things, that the condition occurred with regularity and was therefore foreseeable. The safety reports could shed light on this issue.

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