Tuesday, December 22, 2009

Order Requiring Production Of Materials Protected By Work Product Privilege Affirmed

In Paradise Pines Health Care Assoc., LLC v. Bruce, et al (1D09-961),  in a divided opinion, the First District affirmed the trial court's order requiring the production of material protected by the work product privilege. Chief Judge Hawkes wrote the majority opinion and was joined by Judge KahnJudge Kahn also wrote a concurring opinion.  Judge Clark wrote a dissenting opinion.  The majority opinion stated:
Under Rule 1.280(b)(3) (2008), Florida Rules of Civil Procedure, there are two prongs that the Respondents must meet to overcome the Petitioner’s work product privilege: (1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship....To determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the Respondents had no realistic way to independently procure the information and the Petitioner had the incident reports at their immediate disposal.
In the order, the trial court expressly stated the Respondents demonstrated a need for the reports; then, in the following sentence, explained that the subject of the incidents contained in the reports was deceased and “unable to confer [] about events surrounding any of the incidents.” This is an implicit finding of undue hardship on the part of the Respondents.
Because the trial court applied the proper test and balanced the factors, the First District refused to grant a writ a certiorari. The dissent concluded:
The order on appeal stated “[Petitioner] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports.” Hardship upon the party producing the records is irrelevant to the rule 1.280 (b)(3) analysis. The respondents were the party seeking production of the incident reports, not the petitioner.


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