Clark, the defendant sought certiorari review of a trial court order compelling
the defendant to produce certain work product photographs taken by the
defendant’s attorneys. Following a workplace incident resulting
in the plaintiff suffering substantial injuries, the defendant and its
attorneys took several photographs of the scene. In the subsequent lawsuit,
the defendant asserted work product privilege over those photographs.
The trial court later entered an order compelling the production of the
photographs, finding them to be relevant and that the plaintiff had no
other means of obtaining the photographs.
On appeal, the Third District explained that Florida Rule of Civil Procedure
1.280(b)(4) sets forth the requirements that must be met by a party seeking
the disclosure of work product protected materials. Under the rule, the
party requesting production of privileged materials has a “considerable
burden” to show that the party has both a significant need and an
undue hardship in obtaining a substantial equivalent. A party must first
diligently exhaust other means of obtaining the substantial equivalent.
The Third District, however, found that there was no evidence provided
by the plaintiff of any such diligence, given that there was no discovery,
no depositions and no evidence that the plaintiff could not obtain substantially
equivalent, non-privileged photographs from other parties.