ANCHOR NATIONAL FINANCIAL SERVICES, INC., PETITIONER,
v.
GLADYS SMELTZ AND ROSE BAGWELL, RESPONDENTS
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Anchor National Financial Services sought a writ of certiorari to review a discovery order requiring disclosure of documents it claimed were protected work product. The court held that preliminary investigative materials prepared in anticipation of potential litigation qualify for work product privilege even without specific pending litigation, and remanded for the trial court to determine whether respondents could overcome the qualified privilege.
The court held that the disputed documents qualify for work product privilege as materials prepared in anticipation of litigation. The court established that work product protection attaches to preliminary investigative materials compiled in response to an event that foreseeably could become the basis of a claim, even if no specific litigation was pending at the time of compilation. The case was remanded to determine whether respondents could overcome this qualified privilege.
[1] Work product privilege attaches to materials prepared in anticipation of litigation, even if no specific litigation was pending at the time of compilation.
[2] Preliminary investigative materials may qualify as work product if compiled in response to an event that could foreseeably be made the basis of a claim.
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Join FLexlaw to unlock all legal intelligence“Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.”
Establishes the key holding that work product privilege extends to preliminary materials prepared before specific litigation is pending
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Join FLexlaw to unlock all legal intelligenceAnchor National Financial Services and respondents Gladys Smeltz and Rose Bagwell were involved in litigation over the negligent or fraudulent mismana…
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PER CURIAM.
Anchor National Financial Services (Anchor) petitions this court for a writ of certiorari to review a discovery order entered by the circuit court in connection with ongoing litigation between Anchor and respondents Gladys Smeltz and Rose Bag-well. The order requires Anchor to furnish Smeltz and Bagwell with certain discovery materials which Anchor has argued are work product prepared in anticipation of litigation and are therefore privileged. We grant the petition.
Simply stated, the separate complaints filed by Smeltz and Bagwell (consolidated in the trial court for discovery purposes) both allege that Anchor and David Adding-ton, a former employee of Anchor, negligently or fraudulently mismanaged investment funds entrusted to them. Anchor has identified four separate documents which, it asserts, merit the work product privilege. These were viewed by the trial court in camera and are included, under seal, in the record before us. Without revealing the contents of the documents, they may be described as stemming from Anchor’s own investigation of Addington, including internal analyses of information garnered during such investigation. Anchor submitted an affidavit by former assistant general counsel Brenda Sneed to the effect that each of these items was prepared pursuant to her instruction, in anticipation of potential litigation stemming from Addington’s business activities.
We find ample evidence that the disputed items were prepared in anticipation of litigation and therefore that a limited privilege attaches to them. This conclu sion is based upon the unrefuted Sneed affidavit and an examination of the materials themselves. In so holding we note that materials such as these may qualify as work product even if, as here, no specific litigation was pending at the time the materials were compiled. Even preliminary investigative materials are privileged if compiled in response to some event which fore-seeably could be made the basis of a claim. See, e.g., Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985); Winn-Dixie Stores, Inc. v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983), review denied, 446 So. 2d 100 (Fla.1984); Sligar v. Tucker, 267 So. 2d 54 (Fla. 4th DCA), cert. denied, 271 So. 2d 146 (Fla.1972).
Since the trial court found that the documents are not work product, she apparently did not determine whether respondents might be able to overcome the qualified privilege against disclosure of work product. See, e.g., Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA), review denied, 407 So. 2d 1102 (Fla.1981). Accordingly, our decision is without prejudice to respondents to attempt such a showing.
The petition for writ of certiorari is granted and this case is remanded to the trial court for further proceedings consistent with this opinion.
SCHOONOVER, A.C.J., and LEHAN and HALL, JJ., concur.
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Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)…res, Inc., v. Ballasso, 789 So. 2d 519 (Fla. 1st DCA 2001); McRae’s, Inc. v. Moreland, 765 So. 2d 196 (Fla. 1st DCA 2000); Prudential Ins. Co. of Am. v. Fla. Dep’t of Ins., 694 So. 2d 772 (Fla. 2d DCA 1997); Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989). Because we conclude there is clearly conflict and confusion in the application of discovery concepts in the case law, and particularly in the insurance bad faith context, we determine that we have jurisdiction in this case and th…
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Allstate Indem. Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001)
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State Farm Mut. Auto. Ins. Co. v. Knapp, 234 So. 3d 843 (Fla. 5th DCA 2018)…s evidence that the disputed documents were prepared in anticipation of litigation, which provides a good faith claim and the possibility for finding that the work product privilege would attach to them. See Anchor Nat’l Fin. Servs., Inc. v. Smelts, 546 So. 2d 760, 760 (Fla. 2d DCA 1989). If on remand the trial court agrees that State Farm’s work product claims are valid, Respondent, would be entitled to the “fact” work product contained in the documents only if he can establish need and undue hardship.. At t…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winn-Dixie Stores, Inc. v. Varsenig Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983)
- Sligar v. Tucker, 267 So. 2d 54 (Fla. 4th DCA 1972)
- Fla. Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985)
- Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA 1981)
- Adela Davis v. Jewish Vocational Rehabilitation Workshop, 271 So. 2d 146 (Fla. 1972)