MELVIN ESMAN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LESLIE ANN ESMAN, DECEASED, PETITIONER,
v.
BOARD OF REGENTS OF THE STATE OF FLORIDA, D/B/A SHANDS TEACHING HOSPITAL & CLINICS AND J. HILLIS MILLER HEALTH CENTER, AND PAT SMITH, RESPONDENTS

Fla. 1st DCA | 1983-01-05
No. AM-340
ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.
425 So. 2d 156 Florida District Court of Appeal, First District (1983)

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Synopsis

A trial court denied discovery of a tape-recorded conversation between medical personnel and an insurance agent, claiming work product privilege protection. The petitioner sought certiorari review of this interlocutory discovery denial, but the appellate court held that the denial did not meet the stringent test for extraordinary writ intervention.


Holding

The interlocutory discovery denial does not meet the test for common law certiorari review because it was not rendered in excess of the trial court's jurisdiction and does not demonstrate that the order fails to conform to essential requirements of law in a manner that would cause material injury through subsequent proceedings for which appeal would be inadequate.


Headnotes

[1] Interlocutory orders in discovery proceedings are reviewable by common law certiorari only when the order is rendered in excess of jurisdiction or fails to conform to the…

[2] A petition for common law certiorari seeking review of a trial court's discovery order will be denied if it does not meet the established criteria for such review.

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Key Quotes

“interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certiorari when it is demonstrated that the order complained of was rendered by the court in excess of its jurisdiction, or that the order does not conform to the essential requirements of the law and may cause material injury through subsequent proceedings for which the remedy by appeal will be inadequate”

Establishes the stringent test required for certiorari review of interlocutory discovery orders

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Facts & Procedural History

Leslie Ann Esman died following a surgical procedure at a hospital operated by the Board of Regents. The day after the procedure, a tape-recorded conv…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The plaintiff in this wrongful death action seeks review, by certiorari, of the trial court’s order denying the plaintiff’s discovery request.

The trial court refused discovery on the grounds that the material sought1 was protected by the work product privilege, and further, that the material did not constitute “public records” within the contemplation of Chapter 119, Florida Statutes (1981), “Public Records Law.” We issued a show cause order. Upon further consideration of the petition, the response, and petitioner’s reply, we conclude that the trial court’s interlocutory ruling denying discovery does not furnish the occasion for this court’s intervention through the use of the extraordinary writ. The rule is well-established, as stated in West Volusia Hospital Authority v. Williams, 308 So. 2d 634 (Fla. 1st DCA 1975), that interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certiorari when it is demonstrated that the order complained of was rendered by the court in excess of its jurisdiction, or that the order does not conform to the essential requirements of the law and may cause material injury through subsequent proceedings for which the remedy by appeal will be inadequate. Id. at 636.

The denial of discovery in the present case does not meet this test. See, United States Fidelity & Guaranty Company v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981).

But, Cf., Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980).2

Upon jurisdictional grounds, the petition for common law certiorari is hereby denied.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur. . Plaintiffs sought production of a tape recorded conversation held the day after the surgical procedure which purportedly lead to the patient’s death, consisting of conversations be tween the individual defendant, the anesthesiologist, other medical personnel, and an agent of the respondents’ insurer. In support of their work product defense, the insurer’s agent testified that the conferences were held at the request of the insurer as a part of its initial investigation of an incident having claim potential, and for the express purpose of use by defense counsel in preparation for anticipated litigation. Vann v. State, 85 So. 2d 133 (Fla.1956); Sligar v. Tucker, 267 So. 2d 54 (Fla. 4th DCA 1972); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981).

Respondents maintain, among other things, that there is no work product exception under Chapter 119, or, even if one exists, the plaintiff has not met the requirements of Rule 1.280(b)(2), Florida Rules of Civil Procedure, by an adequate showing of need and inability to obtain the information sought by other means.

. Unlike the Fourth District, per its opinion in United States Fidelity & Guaranty Company v. Graham, supra, we do not find that our decision conflicts with that of the Fifth District in Travelers Indemnity Co. v. Hill, supra.


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