CENTEX ROONEY CONSTRUCTION CO., INC., PETITIONER,
v.
SE/BROWARD JOINT VENTURE, FOR ITSELF AND BY AND FOR THE USE AND BENEFIT OF SE 3 ASSOCIATES; ZELL/MERRILL LYNCH REAL ESTATE OPPORTUNITY PARTNERS, LIMITED PARTNERSHIP; EQUITY ASSETS MANAGEMENT, INC.; MEP, LTD.; AND THE REGENCY GROUP, INC., RESPONDENTS
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Florida appellate court quashed trial court's order compelling production of an expert's factual records (photographs and notes) where the expert was not identified as a trial witness, finding no exceptional circumstances under Florida Rule of Civil Procedure 1.280(b)(4)(B) to overcome the work product protection.
An expert retained in anticipation of litigation who is not expected to be called as a witness is protected from discovery of factual records under Florida Rule of Civil Procedure 1.280(b)(4)(B) absent exceptional circumstances, which do not exist where the discovering party had equal access to obtain the same information.
[1] An expert retained in anticipation of litigation who is not identified as an expected trial witness is protected from discovery of facts known to the expert under Florida…
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Join FLexlaw to unlock all legal intelligenceCentex Rooney Construction sought a protective order to prevent disclosure of factual records (photographs and notes) obtained by its expert during an…
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PER CURIAM.
Petitioner seeks to quash the trial court’s order denying in part its motion for a protective order, and compelling Petitioner’s expert, whom Petitioner has not identified as one it expects to call as a witness at trial, to produce “factual records,” such as photographs and notes, which the expert obtained pursuant to an earlier court order granting Petitioner access to Respondents’ building, the subject of the underlying litigation. The prior order required the parties to exchange “stone test results,” which Respondents concede Petitioner supplied. It did not provide for either party’s waiver of the protections of Florida Rule of Civil Procedure 1.280(b)(4)(B), which prevents the discovery of “facts known” by an expert retained in anticipation of litigation, who is not expected to be called as a witness at trial, except as provided in rule 1.360(b), which is not applicable here, or “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts ... on the same subject by other means.” Respondents likely could not make such a showing because, at all relevant times, Respondents have had access to the building, with every opportunity to take their own photographs and make their own notes. Accordingly, as the trial court’s order departed from the essential requirements of law, we grant the petition and quash that portion of the order which compels production of the factual records.
POLEN, KLEIN and STEVENSON, JJ., concur.