Marshalls of M.A., Inc. v. Witter
186 So. 3d 570
| Fla. Dist. Ct. App. | 2016Background
- Witter sued Marshalls after an alleged slip-and-fall on a transitory substance at a Marshalls store in Miami-Dade County. Discovery included requests for incident reports and records of similar incidents (requests 11, 13, 15, 16, 17).
- Marshalls objected as overbroad and asserted the work-product privilege for several documents, produced documents responsive to requests 16 and 17, and submitted a privilege log seeking in-camera review.
- The trial court overruled objections to requests 13, 15, 16, and 17 on April 9, 2015, but did not rule on request 11; later, on October 29, 2015, it denied Marshalls’ motion and compelled production of documents responsive to requests 11, 13, and 15 without conducting an in-camera inspection.
- Marshalls filed a certiorari petition challenging the denial of an in-camera inspection; the petition was initially dismissed as untimely, but rehearing was granted and that dismissal vacated because the petition actually was timely.
- While the certiorari petition was pending here, the trial court granted Marshalls’ renewed motion for a protective order and agreed to conduct an in-camera review, so the issue became moot and the petition was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of certiorari petition | The court should dismiss as untimely? (Witter implicitly relied on trial rulings) | Marshalls contends its petition challenging Oct. 29 order was timely filed on Nov. 25, 2015 | Court vacated prior dismissal and found petition was timely filed |
| Trial court’s failure to conduct in-camera inspection of asserted work-product | Witter argued documents should be produced without in-camera review because of relevancy/statutory standard | Marshalls argued work-product privilege required in-camera inspection before ordering production | Failure to perform in-camera inspection departs from essential requirements of law; certiorari relief appropriate (but moot here after trial court acted) |
| Scope of work-product protection for incident reports | Witter: prior-incident information at the specific store is relevant under § 768.0755 and should be produced | Marshalls: incident reports, internal investigations and similar documents are work product and protected even if routinely prepared or created before suit | Court reiterated that such reports often qualify as work product, but may be discoverable upon showing of relevance and particularized need and undue hardship under rule 1.280(b)(4) |
| Mootness of appellate relief | Witter: sought production; appellate relief would enforce trial order | Marshalls: obtained trial-court protective order and in-camera review while petition pending | Because trial court granted the protective order and agreed to in-camera review, this court dismissed the certiorari petition as moot |
Key Cases Cited
- Snyder v. Value Rent-A-Car, 736 So. 2d 780 (Fla. 4th DCA 1999) (trial court must hold in-camera inspection when work-product privilege asserted)
- Millard Mall Servs., Inc. v. Bolda, 155 So. 3d 1272 (Fla. 4th DCA 2015) (investigative reports can be work product even if routinely prepared)
- Royal Caribbean Cruises, Ltd. v. Doe, 964 So. 2d 713 (Fla. 3d DCA 2007) (incident and internal investigative reports generally protected as work product)
- Publix Super Markets, Inc. v. Anderson, 92 So. 3d 922 (Fla. 4th DCA 2012) (discussion of why post-accident reports are prepared in anticipation of litigation)
- Florida Power & Light Co. v. Limeburner, 390 So. 2d 133 (Fla. 4th DCA 1980) (personal accident reports for similar accidents held prepared in anticipation of litigation)
- Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) (work-product discoverable only upon showing of relevance and particularized need plus inability to obtain substantial equivalent without undue hardship)