Millard Mall Services, Inc. v. Bolda

Citations: 155 So. 3d 1272; 2015 Fla. App. LEXIS 1839; 2015 WL 543041Docket: No. 4D14-1338

Court: District Court of Appeal of Florida; February 10, 2015; Florida; State Appellate Court

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Mary Bolda filed a negligence lawsuit against Millard Mall Services, Inc. and Sunrise Mills Limited Partnership following a slip and fall incident at Sawgrass Mills Mall in March 2011. In her case, she issued a subpoena duces tecum to Sunrise Mills for various documents, including records of similar slip and fall incidents over the past three years, and maintenance documentation for March 2011. The defendants objected to the request, arguing that the documents, including Quarterly Safety Committee Reports, were protected by work product privilege as they contained sensitive information regarding prior incidents. 

The trial court reviewed the documents in camera and ordered the production of the Committee Reports from 2008 until the incident but upheld the privilege regarding the specific incident report related to Bolda's fall. The defendants sought certiorari review, asserting that the Committee Reports were prepared in anticipation of litigation and thus not discoverable. 

The court referenced Florida Rule of Civil Procedure 1.280(b)(4), stating that work product can only be obtained if the requesting party demonstrates a particularized need and inability to obtain equivalent material without undue hardship. Bolda's arguments did not sufficiently establish this need. The court highlighted that work product protection applies to information gathered by corporate non-attorney employees and that a party cannot access an adversary's investigative work unless no alternative means exist. Ultimately, the court granted the writ and quashed the trial court's order, reaffirming the protections afforded to work product.

Incident reports created by employees for the risk management department to defend against potential litigation are protected as work product under Florida law. This protection extends to internal investigative reports as well. Importantly, work-product protection applies even if no lawsuit has been filed, as anticipating litigation is sufficient for this designation. For example, in a slip and fall case, a report did not lose its work-product status despite being shared with other departments for remedial purposes. Routine reports can also qualify for work-product protection if they are not merely generated out of curiosity but as part of a structured investigative process due to the likelihood of claims arising from incidents.

The legal framework emphasizes that both parties in litigation should be able to prepare their cases without fear of disclosing their investigative materials to opponents, supporting open communication and discussion in preparation for trial. In the case referenced, the plaintiff was able to obtain relevant information about the incident and prior similar incidents through discovery, even if some documents were protected as work product. The court noted that if equivalent information is obtainable through standard discovery methods, one party cannot compel the opposing party to disclose their investigative work product. Thus, the plaintiff had sufficient access to necessary information without breaching work-product protection.

The excerpt establishes that the party seeking to overcome a work product objection bears the burden of demonstrating a need for the requested documents and that they cannot obtain equivalent information through other means without experiencing undue hardship. Citing Intercontinental Props. Inc. v. Samy, it emphasizes that the requesting party must first attempt to secure the information through interrogatories and depositions before challenging the work product privilege. The relevance of the documents is considered but is insufficient alone to prove undue hardship, as illustrated in Mt. Sinai Med. Ctr. v. Schulte. The court found that the defendants successfully met their burden, while the plaintiff failed to show an inability to obtain substantial equivalent material by other means. The mere assertion of needing the documents for case prosecution, without further substantiation, is inadequate, as noted in Healthtrust, Inc.-The Hosp. Co. v. Saunders. Additionally, Universal City Dev. Partners, Ltd. v. Pupillo reinforces that claims regarding the scope of discovery and knowledge of prior incidents do not suffice to overcome the work product privilege. Given that the documents were generated during investigations and the plaintiff did not adequately demonstrate need or undue hardship, the trial court's order to compel disclosure was deemed a legal error. Consequently, the court quashed the trial court's order and found no necessity to address other objections or arguments from the defendants regarding the document production. The petition was granted, with two judges concurring and one dissenting.