Third District Court of Appeal
State of Florida
Opinion filed March 24, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1504
Lower Tribunal No. 20-11087
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Onward Living Recovery Community, LLC, et al.,
Petitioners,
vs.
Carlos Mormeneo and Monica Tobon, etc.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County,
Veronica A. Diaz, Judge.
Cole, Scott & Kissane, P.A., and Mary Lou Cuellar-Stilo and Mark D.
Tinker (Tampa), for petitioners.
Needle & Ellenberg, P.A., and Andrew L. Ellenberg; The Ferraro Law
Firm, P.A., and Mathew D. Gutierrez and Janpaul Portal, for respondents.
Before SCALES, LINDSEY and BOKOR, JJ.
BOKOR, J.
Petitioner seeks to quash the trial court’s November 3, 2020 order
finding no work product protection or, alternatively, waiver of such protection
and requiring production of the root cause analysis and incident report
(collectively, the reports). The trial court found that the reports were prepared
in the ordinary course of business and therefore constituted non-privileged,
discoverable business records. Alternatively, the trial court found that even
if work-product protection applied, respondent waived such protection
entirely because of the corporate representative’s use of the records at her
deposition. As discussed below, the documents constitute work product
prepared in anticipation of litigation and the alternative determination of
waiver is unsupported by the record.
A requirement to produce irrelevant material, standing alone, is
insufficient to trigger certiorari relief. See Kobi Karp Architecture & Interior
Design, Inc. v. Charms 63 Nobe, LLC,
166 So. 3d 916, 919 (Fla. 3d DCA
2015). “To obtain a writ of certiorari, the petitioner must establish that the
discovery order was a departure from the essential requirements of law
resulting in a material injury that will affect the remainder of the proceedings
below and the injury cannot be corrected on appeal.” Bank of New York
Mellon v. Figueroa,
299 So. 3d 430, 433 (Fla. 3d DCA 2019) (citing Allstate
Ins. Co. V. Langston,
655 So. 2d 91, 94-95)). Petitioner meets this standard
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of irreparable harm as the production of work product protected materials
constitutes impermissible “cat out of the bag” production incapable of
correction on appeal. Langston, 665 So. 2d at 94.
Accordingly, to constitute “cat out of the bag” documents, we first
ensure that the reports at issue qualify as work product. Reports prepared
after a tragic incident such as the death underlying this litigation may be
prepared in the ordinary course of business yet also constitute records
prepared in anticipation of litigation. The fact that petitioner requires as a
matter of practice the creation of these records after a “sentinel event” (i.e.,
a high-profile or serious event) supports the contention that these documents
are created in anticipation of litigation. See Marshalls of MA, Inc. v. Witter,
186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal
investigative reports, and information gathered by employees to be used to
defend against potential litigation are generally protected by the work-
product privilege.”). Therefore, work product considerations attach to such
records. See Royal Caribbean Cruises, Ltd. v. Doe,
964 So. 2d 713, 718
(Fla. 3d DCA 2007).
Next, the analysis of the trial court’s alternative basis for production,
waiver, starts with the premise that work product protection would otherwise
apply to the records. Respondent contends that even assuming work product
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protection would otherwise apply, petitioner waived such protection for two
reasons.
First, respondent contends waiver of the work product protection
because the corporate representative relied on one or both reports to refresh
her recollection or answer questions at her deposition. The trial court found
as an alternative ground that, assuming any sort of protection attached
initially, such reference to the records resulted in complete waiver. The trial
court’s conclusory determination provides limited context to support such
broad waiver of privilege. Specifically, as in both the order and the hearing
on the motion for protective order, there was no discussion or finding that the
references to the documents were so manifest or pervasive to justify a
complete release of the documents instead of a more targeted finding. A
simple reference to a document would likely be insufficient to waive privilege
entirely across the board. On the other hand, multiple, repeated, and
sustained references to the documents could potentially waive privilege as
to those referenced portions of the report. Accordingly, the trial court shall
conduct an in camera inspection, considering the video deposition of the
corporate representative, to determine whether the witness waived privilege
by referencing the reports, and if so, determine with specificity the extent of
the waiver.
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Second, respondent argues that the reports should be produced
notwithstanding work product protection because of the relevance and need
for the documents and the undue hardship in obtaining the underlying
information from other sources. See generally Fla. R. Civ. P. 1.280(b)(4); see
also, S. Bell Tel. & Tel. Co. v. Deason,
632 So. 2d 1377, 1384 (Fla. 1994).
It does not appear the trial court conducted an evidentiary hearing on this
basis due to its deciding the issue on other grounds. To the extent the trial
court on remand determines some or all of the records are protected from
discovery, the trial court shall conduct an evidentiary hearing to determine
whether the incident report at issue contains information that would present
an undue hardship for respondents to otherwise obtain. See id.; see also
Marshalls of MA, Inc., 186 So. 3d at 573.
Petition granted; order quashed.
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