The City of Port St. Lucie v. Vallerie Follano

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE CITY OF PORT ST. LUCIE,
Petitioner,
v.
VALLERIE FOLLANO,
Respondent.
No. 4D15-2642
[October 7, 2015]
Petition for writ of certiorari to the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Janet Croom, Judge; L.T. Case No.
562013CA000999.
Carri S. Leininger and James O. Williams, Jr. of Williams, Leininger &
Cosby, P.A., North Palm Beach, for petitioner.
James L.S. Bowdish and Donna E. DeMarchi of Crary Buchanan, P.A.,
Port St. Lucie, for respondent.
PER CURIAM.
Petitioner, the City of Port St. Lucie, seeks certiorari review of an order
compelling production of certain photographs, which it claims are
protected work product. The trial court found the photographs
discoverable under Florida Rule of Civil Procedure 1.280(b)(4) but failed to
conduct an in camera review before making that determination. We
therefore grant the City’s petition, quash the trial court’s order, and
remand for an in camera review and an evidentiary hearing.
Respondent, Vallerie Follano, sued the City for negligence after stepping
into an uncovered sewer valve access pipe up to her knee. The City took
photographs of the area on the day of the incident, after Follano was
extracted by the fire department. The photographs show the uncovered
pipe, but the City claims the surrounding area had been altered
significantly by the firefighters. Follano took photographs of the area the
next day, but the pipe had been covered by that time.
Follano moved to compel production of the City’s photographs over the
City’s claim of work product privilege. She argued the City’s photographs
are the only available evidence of how the pipe appeared on the day of the
incident since the area was later completely reconstructed. The trial court
granted the motion based on the testimony of Follano’s counsel, without
reviewing the City’s photographs, simply finding that “the photographs
cannot be obtained by any other measure.” The court denied the City’s
request to review the photographs in camera.
Certiorari review is appropriate when a discovery order departs from
the essential requirements of law, causing material injury throughout the
remainder of the proceedings below and effectively leaving no adequate
remedy on appeal. See Bd. of Trs. of Internal Improvement Trust Fund v.
Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012); Allstate Ins. Co.
v. Langston, 655 So. 2d 91, 94 (Fla. 1995). “An order compelling
production of privileged work product materials from a litigant’s file is
exactly the type of discovery order properly reviewable by certiorari. Once
a litigant is compelled to produce work product, the cat is out of the bag
and the harm is done.” Nat’l Car Rental Sys., Inc. v. Kosakowski, 659 So.
2d 455, 456 (Fla. 4th DCA 1995) (citations omitted). We therefore accept
jurisdiction to review the trial court’s order in this case.
Florida Rule of Civil Procedure 1.280(b)(4) provides that a party may be
ordered to produce privileged work product “only upon a 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.” In Snyder v. Value Rent-A-
Car, 736 So. 2d 780 (Fla. 4th DCA 1999), this Court held that when a work
product privilege is asserted, the trial court must conduct an in camera
inspection of the material at issue in order to determine whether the
privilege applies. The court can then consider whether the material is
discoverable under Rule 1.280. Id. at 782; see also Lloyd’s Underwriters
at London v. El-Ad Villagio Condo. Ass’n, 976 So. 2d 28, 29 (Fla. 4th DCA
2008); Town Ctr. @ Boca Raton Trust v. Hirokawa, 789 So. 2d 1230, 1231-
32 (Fla. 4th DCA 2001).1
The trial court in this case departed from the essential requirements of
law by failing to conduct an in camera review before determining that the
City’s photographs were discoverable under Rule 1.280. Such a review is
1
These cases refer to Rule 1.280(b)(3), but the subsection was renumbered as
(b)(4) in 2012. See In re Amendments to the Fla. Rules of Civil Procedure—Elec.
Discovery, 95 So. 3d 76, 79-80 (Fla. 2012).
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necessary to determine whether the City’s photographs provide the
evidentiary value Follano claims and whether Follano could obtain
substantially equivalent photographs without undue hardship.
We reject Follano’s argument that an in camera inspection is not
required when, as here, the party seeking discovery concedes that the
material at issue constitutes work product, but argues that it is
nevertheless discoverable under Rule 1.280. The inspection is intended,
in part, to assist the trial court in making the factual determinations
required by the rule. See, e.g., Fla. E. Coast Ry., LLC v. Jones, 847 So. 2d
1118, 1119 (Fla. 1st DCA 2003) (“[W]e direct the trial court to hold an
evidentiary hearing to determine whether the plaintiff could make the
requisite showing of need and undue hardship. In doing so the trial court
should review the materials in camera to determine whether [the plaintiff]
can meet his burden under [the Rule].”).
We therefore grant the City’s petition and quash the trial court’s order
granting Follano’s motion to compel. On remand, the trial court is directed
to conduct an in camera review of the City’s photographs and hold an
evidentiary hearing to determine whether Follano has met her burden
under Rule 1.280(b)(4).
Petition for writ of certiorari granted; order quashed; remanded for
further proceedings consistent with this opinion.
GROSS, LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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