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Seaboard Marine, Ltd. v. Farconelly Clark, Case No. 3D14-3043 (3rd DCA)

In 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.

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