WALT DISNEY PARKS AND RESORTS U.S., INC. vs LISA ALESI

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
WALT DISNEY PARKS AND
RESORTS U.S., INC.,
Petitioner,
Case No. 5D22-1375
v. LT Case No. 2020-CA-002845-O
LISA ALESI,
Respondent.
________________________________/
Opinion filed November 18, 2022
Petition for Certiorari Review of Order
from the Circuit Court for Orange County,
Jeffrey L. Ashton, Judge.
Stephanie M. Simm, of Bowman and
Brooke, LLP, Miami, and Frank D. Hosley
and Suzanne L. Kersh, of Bowman and
Brooke, LLP, Lake Mary, for Petitioner.
Sagi Shaked and Cory D. Lapin, of
Shaked Law Firm, P.A., Aventura, for
Respondent.
TRAVER, J.
Walt Disney Parks & Resorts U.S., Inc. seeks certiorari review of a trial
court order compelling it to better respond to an interrogatory propounded by
Lisa Alesi, the plaintiff in a personal injury case. The trial court correctly
determined that the factual information Alesi seeks is not protected by the
work product doctrine, even though the facts are contained exclusively in
reports and a recorded statement prepared in anticipation of litigation. The
trial court’s order, however, improperly compels the production of Disney’s
work product “not limited to” the facts. We therefore grant the petition in part
and deny it in part.
Alesi claims a Disney employee injured her by striking her with a
garbage cart. In connection with her lawsuit, Alesi propounded an
interrogatory that asked Disney to describe how the incident happened,
including all actions taken by its employees and agents to prevent it. Along
with its initial response, which suggested that discovery was ongoing, and
that Alesi may not have been properly watching her surroundings, Disney
produced a privilege log. The log contained two reports about the incident,
including one by Christina Headley, the Disney first aid nurse who treated
Alesi after the incident. It also referenced a recorded statement by Kyle
Morello, the man pushing the garbage cart. Neither Headley nor Morello
currently works for Disney.
Unsatisfied by this answer, Alesi successfully moved to compel a
better response. This time, Disney stated that it had been informed that “a
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cast member pushing a garbage receptacle came into contact with [Alesi].”
Disney stressed that the depositions of the people who witnessed the
incident had not yet been taken, and it referenced the previous production of
a policy regarding trash removal. The remainder of its response included
Alesi’s own recorded statement and interrogatory response summarizing the
incident.
Still unsatisfied, Alesi again moved for a better response. This time,
the trial court specifically ordered Disney to provide a verified interrogatory
answer “based on its knowledge of the incident, including, but not limited to,
facts learned from its employees and/or agents (whether former or current),
Kyle Morello, and Christina Headley.” Disney seeks certiorari review of this
order.
We may grant certiorari relief only if Disney establishes: 1) a departure
from the essential requirements of the law; 2) resulting in material injury for
the rest of the trial; 3) that cannot be remedied on post-judgment appeal.
See State Farm Mut. Auto. Ins. v. Knapp, 234 So. 3d 843, 848 (Fla. 5th DCA
2018). We use the second and third prongs to determine if we have certiorari
jurisdiction. See Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So. 2d 1041,
1041 (Fla. 5th DCA 2007). We have jurisdiction in this case because the trial
court’s discovery order requires Disney to disclose allegedly privileged
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information. See Knapp, 234 So. 3d at 848. We have held that certiorari is
“particularly appropriate” in this context because disclosure of privileged
material may cause irreparable injury. See Fifth Third Bank v. ACA Plus,
Inc., 73 So. 3d 850, 852 (Fla. 5th DCA 2011).
The United States Supreme Court created the work product doctrine.
See Hickman v. Taylor, 329 U.S. 495, 511 (1947). Now codified by Florida
Rule of Civil Procedure 1.280(b)(4), it protects the disclosure of “documents
and tangible things” that a party prepares in anticipation of litigation or trial.1
Two types of work product exist. Fact work product protects information
related to the case that is gathered in anticipation of litigation. S. Bell Tel. &
Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994). Opinion work product
primarily safeguards “mental impressions, conclusions, opinions, and
theories.” Id. A party seeking production of work product materials must first
show it needs them for the preparation of its case, and that it cannot
otherwise obtain them without undue hardship. See Fla. R. Civ. P.
1.280(b)(4). Even then, trial courts “shall protect against disclosure of the
1
Rule 1.280(b)(4) does not reference intangible things, like an
attorney’s personal views on when to present evidence or proposed
arguments, but the work product doctrine nevertheless protects them. See
Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 112 (Fla. 1970) (citing
Hickman, 329 U.S. at 511).
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mental impressions, conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the litigation.” Id.Disney argues that the work product doctrine protects every piece of
information contained in the reports and recorded statement, and that Alesi
has not proven the two prerequisites to obtaining these materials. See id.Alesi responds that she is not seeking production of the actual documents
Disney prepared; she just wants to know factual details of how the incident
happened.
Alesi is correct that she is not required to prove need and undue
hardship because she does not demand the production of protected work
product materials. Instead, she merely seeks otherwise-discoverable factual
information contained in the materials. Alesi can discover this factual
information because the work product doctrine does not safeguard the
discovery of underlying facts gathered in work product materials. See
Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887, 894 (Fla.
4th DCA 2006) (en banc) (quoting Resol. Tr. Corp. v. Dabney, 73 F.3d 262,
266 (10th Cir. 1995) (“Because the work product doctrine is intended only to
guard against divulging the attorney’s strategies and legal impressions, it
does not protect facts concerning the creation of work product or facts
contained within work product.”)); see also Adams v. Mem’l Hermann, 973
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F.3d 343, 350 (5th Cir. 2020) (reiterating that work product doctrine protects
only attorney's work product and not underlying facts); 8 Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure § 2024 (3d ed. 2022) (noting
that work product doctrine “does not bar discovery of facts a party may have
learned from documents that are not themselves discoverable”). Stated
differently, the underlying facts contained in documents protected by the
work product doctrine are neither fact work product nor opinion work product.
The Hickman Court recognized that interrogatories or depositions
provided suitable means to uncover “material, non-privileged” facts
embedded in work product.2 See 329 U.S. at 511-13; see also Univ. City
Dev. Partners, Ltd. v. Pupillo, 54 So. 3d 612, 614 (Fla. 5th DCA 2011). For
these reasons, part of the trial court’s order is appropriate, and Alesi can
discover the underlying material, non-privileged factual information
contained in the reports and recorded statement via interrogatory because
this information is not work product.3 If, however, the reports and recorded
2
Our sister court has explained that in connection with establishing the
necessary predicate to obtain protected work product, a party should at least
attempt to obtain information via interrogatory or deposition. See
Intercontinental Props., Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA
1997). While this case does not involve the necessity of establishing such a
predicate, it shows the appropriate nature of Alesi’s inquiry.
3
Citing Quest Diagnostics Inc. v. Hall, 325 So. 3d 927 (Fla. 5th DCA
2020), Disney frets that if it produces these facts, it will waive its work product
protections on these otherwise-protected documents, thus effectively
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statement contain any of Disney’s opinions regarding the incident, these
opinions would remain protected. For example, an opinion of why the
accident occurred and who was responsible would not constitute
discoverable underlying facts and would remain protected work product.
See, e.g., Northup v. Acken, 865 So. 2d 1267, 1272 (Fla. 2004) (stating that
an “attorney may not be compelled to disclose the mental impressions
resulting from his or her investigations”).
In this sense, the trial court’s order sweeps more broadly than merely
compelling the disclosure of facts. Instead, it requires Disney to produce
compelling their future disclosure. In Quest, a plaintiff deposed a Quest
corporate representative. 325 So. 3d at 928. At the deposition, and at least
one time without the plaintiff’s objection, Quest’s corporate representative
disclosed part of an incident report prepared in anticipation of litigation. Id.
at 928–29. We determined this voluntary disclosure constituted a waiver of
the work product protections on the report, and that Quest could not later
seek to safeguard this information after its witness had voluntarily produced
it. Id. at 929. Significantly, Quest never argued that it had not waived work
product protections on its reports because the corporate representative only
testified to facts unprotected by the doctrine.
This situation is different. Our record reflects that Disney has always
objected to producing its work product, and it has never divulged the contents
of these documents. Disney’s concern about waiver will not materialize if it
answers Alesi’s targeted interrogatory with otherwise-discoverable
underlying factual information. See Fla. R. Civ. P. 1.280(b)(4); see also
Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 630 (N.D. Okla. 2009)
(noting that although factual information contained in work product can be
discovered via deposition, “interrogatories are the generally preferred route
due to the inherent risk of the [corporate representative] deponent
inadvertently disclosing protected work product”).
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information about its knowledge of the incident “not limited to” facts. This
would, by definition, include Disney’s work product in the form of mental
impressions, conclusions, opinions, or legal theories. To her credit, Alesi
insists she does not want Disney’s mental impressions, conclusions,
opinions, or legal theories, and she would not be entitled to them anyway.
See Fla. R. Civ. P. 1.280(b)(4). Regardless, because the trial court’s order
compels this production, we grant Disney’s petition in part and quash that
portion of the order.
PETITION GRANTED IN PART and DENIED IN PART. ORDER
QUASHED IN PART.
SASSO and WOZNIAK, JJ., concur.
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