Third District Court of Appeal
State of Florida
Opinion filed December 1, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1878
Lower Tribunal No. 20-25791
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Winn-Dixie Stores, Inc.,
Petitioner,
vs.
Miriam Mercedes Lopez,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Pedro
P. Echarte, Jr., Judge.
Kubicki Draper, P.A., and Barbara E. Fox, for petitioner.
Jimenez Hart Mazzitelli Mordes, and Mark B. Hart, and Benjamin
Mordes, for respondent.
Before HENDON, MILLER and BOKOR, JJ.
BOKOR, J.
Winn-Dixie petitions for certiorari relief from an order of the trial court
requiring production of portions of an incident report. After an in-camera
inspection, the trial court concluded that two portions of the incident report
(“Injury/Illness” and “Narrative”) contain Lopez’s statements and “must be
produced.” Upon closer inspection, we conclude that the incident report
contains no witness statement, as contemplated by Florida Rule of Civil
Procedure 1.280(b)(4). The trial court’s order departs from the essential
requirements of law and impermissibly requires production of an otherwise
work-product protected incident report. Certiorari review is appropriate
because the harm of disclosure of work-product protected material cannot
be remedied on plenary appeal. See Allstate Ins. Co. v. Langston,
655 So.
2d 91, 94 (Fla. 1995) (“Discovery of certain kinds of information ‘may
reasonably cause material injury of an irreparable nature.’ This includes. . .
material protected by privilege . . . .”) (internal citations omitted).
Winn-Dixie argues, as a preliminary matter, that Lopez made no
“showing that the party seeking discovery has need of the materials in the
preparation of the case and is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.” Fla. R. Civ. P.
1.280(b)(4). Lopez correctly notes that a party need not show need and
undue hardship to obtain its own statement. However, to qualify as a
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witness statement (or, in this case, a party’s witness statement) under Rule
1.280, the statement must be a “written statement signed or otherwise
adopted or approved by the person making it, or a stenographic,
mechanical, electrical, or other recording or transcription of it that is a
substantially verbatim recital of an oral statement by the person making it
and contemporaneously recorded.”
Id. 1
A cursory review of the incident report, including the sections of the
report identified in the trial court’s order, reveal that Lopez was not the
author of the identified sections. Despite the inference accepted by the trial
court that some of the information in the sections identified came from
Lopez, we cannot escape the fact that the report fails to identify Lopez as
making any statements and, in any event, fails to authenticate such
statements, as required by rule and our case law. A review of the
document reveals neither a written statement signed or otherwise adopted
or approved by the person making it, nor a stenographic, mechanical,
electrical, or otherwise recorded oral statement or transcription of such an
1
See also
Fla. Stat. § 92.33 (“[a]ny person having taken, or having
possession of any written statement or a copy of such statement, by any
injured person with respect to any accident or with respect to any injury to
person or property shall, at the request of the person who made such
statement or his or her personal representative, furnish the person who
made such statement or his or her personal representative a true and
complete copy thereof”).
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oral statement. See Dist. Bd. of Trs. of Miami-Dade Cmty. Coll. v. Chao,
739 So. 2d 105, 107 (Fla. 3d DCA 1999) (“the incident report form has a
space for the claimant to sign, but in this case plaintiff was not actually
asked to sign it. Since there is no signature and no other evidence of
adoption or approval by plaintiff, she is not entitled to production of the
incident report under this provision of the rule”).2 Like in Chao, the report
at issue here contains no indicia of adoption or approval of the purported
witness statement. Accordingly, the identified portions cannot qualify as a
party statement subject to production under Florida Rule of Civil Procedure
1.280(b)(4).
Petition granted; order quashed.
2
Chao nonetheless denied the certiorari petition on other grounds,
explaining that the respondent was entitled to the entire incident report, not
because it contained respondent’s statement, but because respondent
made a showing of need and undue hardship in obtaining information
contained in the report. See Chao, 739 So. 2d at 107-08.
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