Discovery is an essential tool in litigation. It allows plaintiffs to gather support for their claims that the defendant caused the plaintiff’s harm and should be held accountable for any resulting damages. Defendants are afforded certain protections in the discovery process, however, and cannot be compelled to produce privileged information.
As shown in a recent case in which a Florida appellate court upheld an order compelling discovery, a defendant is not permitted to inappropriately evade discovery based on false claims of privilege. If you sustained damages in a South Florida car accident, you should confer with an experienced attorney to discuss your case and any potential obstacles to your recovery of damages.
Factual and Procedural History
Reportedly, the plaintiffs were involved in a motor vehicle collision with the defendant driver. At the time of the accident, the defendant driver was driving a tractor-trailer owned by the defendant employer. The plaintiffs filed a lawsuit against the defendants and the parties engaged in discovery. During the discovery process, the defendants listed a private investigator as a fact witness. The private investigator was subpoenaed for a deposition and asked to bring any documents containing information regarding his investigation of the plaintiffs. At the end of the private investigator’s deposition, plaintiff’s counsel indicated the private investigator would provide further opinions at a later date.
It is alleged that later that day, the plaintiffs issued a request for production of documents to the private investigator and to the defendants, seeking documents related to the observations and opinions of the private investigator. The defendants filed objections to a notice of non-party production, citing a work product privilege, and withdrawing the private investigator as a witness. The trial court overruled the objection. The defendants also objected to the requests directed to them, alleging work product privilege for some of the requests and general objections to the remainder, but did not file a privilege log. Following a hearing, the court overruled the objections after which the defendants filed a certiorari petition.
Standard for Granting Certiorari Review
Certiorari review should only be granted in extraordinary circumstances. The court stated that certiorari review is called for when a non-final order cannot be remedied on an appeal after the final judgment, causes material harm for the rest of the case, and departs from the essential requirements of law. Here, the court held that orders granting discovery have the potential to cause irreparable harm that cannot be remedied upon appeal and could cause an unfair advantage. As such, the court assessed whether the orders departed from the essential requirements of law.
Regarding the order compelling the private investigator to respond to discovery, the court noted that the transcript from the deposition of the private investigator had not been filed and therefore it could not determine whether any of the documents the defendants claimed were privilege related to his testimony. Further, because the defendants did not assert work-product privilege in refusing to produce the majority of the documents requested, the privilege was not preserved as to those documents.
As to the remainder of the documents requested, although the defendants objected based on work-product privilege, the obligation to file a privilege log did not arise until the court overruled the objection. As such, the court ruled the issue was not yet ripe for review. In sum, the court found that the trial court’s orders compelling discovery did not depart from the requirements of law and therefore denied the petition for writ of certiorari.
Meet with an Experienced South Florida Car Accident Attorney
If you were injured in a South Florida car accident you should retain a capable South Florida car accident attorney who will fight diligently on your behalf. At Donaldson & Weston, our South Florida personal injury attorneys will aggressively seek any damages you may be owed. We can be contacted at 772-266-5555 or 561-299-3999 to set up a free and confidential consultation.
More Blog Posts:
Florida Court Finds Issue of Fact as to Whether Parties Agreed to Settle, South Florida Injury Lawyer Blog, February 11, 2019