HARTFORD ACCIDENT & INDEMNITY COMPANY AND PUBLIX SUPERMARKETS, INC., PETITIONERS,
v.
BONITA MARIE MCGANN AND BRIAN JOHN MCGANN, HER HUSBAND, RESPONDENTS
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The court held that petitioners failed to demonstrate the statements were privileged, thus they could not contend the opposing party failed to show necessity for production.
[1] A party objecting to the production of discovery materials on the grounds of work product privilege bears the initial burden of demonstrating the privilege.
[2] Once a party establishes the work product privilege, the moving party must demonstrate the necessity for the production, including showing a need for the materials and an…
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Join FLexlaw to unlock all legal intelligenceRespondents sought production of employee statements concerning an accident. Petitioners objected on work product grounds, but the trial court overrul…
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PER CURIAM.
Petitioners seek review by certiorari of a discovery order entered by the trial court in a personal injury case arising out of a slip and fall in a super market.
Respondents filed a complaint alleging that Bonita Marie McGann was injured in a super market owned by Publix Supermarkets, Inc., when she slipped and fell as a result of the negligence of the owner. Respondents filed a request to produce, in which, among other things, they sought production of “a copy of all statements taken by the employees or agents of Publix Supermarkets, Inc., concerning Bonita Marie McGann’s accident on July 11, 1980.” Petitioners’ objection to said request on the grounds that the alleged statements were “work product” was overruled by the trial court.
The request to produce is authorized by Florida Rule of Civil Procedure 1.350. It is to be noted via the Committee Note that this rule no longer contains the good cause requirement of the former rule. Thus, if no objection is made, production is had without a court order. If objection is made necessitating a court hearing, then in the case of a party objecting on grounds of the work product privilege, that party has the burden, first of showing the privilege. Surette v. Galiardo, 323 So. 2d 53 (Fla. 4th DCA 1975); Hospital Corporation of America v. Dixon, 330 So. 2d 737 (Fla. 1st DCA 1976). At that point it would be incumbent upon the moving party to demonstrate the necessity for the production as required in Rule 1.280(b)(2), i. e., that he has a need of the materials in the preparation of his case and that he is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.
It seems to us that petitioners failed to demonstrate that the statements were privileged and thus they cannot contend in this court that respondents failed to show the necessity required by Rule 1.280(b)(2). Hospital Corporation of America v. Dixon, supra.
Accordingly, the petition for writ of certiorari is denied.
LETTS, C. J., and DOWNEY and HERSEY, JJ., concur.
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Authorities Cited
- Surette v. Galiardo, 323 So. 2d 53 (Fla. 4th DCA 1975)
- W-G Dev. Corp. v. Starnes, 330 So. 2d 737 (Fla. 2d DCA 1976)