FIRSTSERVICE RESIDENTIAL FLORIDA, INC.

v.

CARMEN RODRIGUEZ, VENTURA AT STONEBRIDGE COMMONS CONDOMINIUM ASSOCIATION, INC. AND STONEBRIDGE COMMONS COMMUNITY ASSOCIATION, INC.

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

FIRSTSERVICE RESIDENTIAL FLORIDA, INC.,

Petitioner,

v. Case No. 5D18-1980

CARMEN RODRIGUEZ, VENTURA AT

STONEBRIDGE COMMONS CONDOMINIUM

ASSOCIATION, INC. AND STONEBRIDGE

COMMONS COMMUNITY ASSOCIATION, INC.,

Respondents. ________________________________/

Opinion filed December 7, 2018

Petition for Certiorari Review of Order from the Circuit Court for Orange County, Heather L. Higbee, Judge.

Kathryn L. Ender and Justin M. Bleakley, of Cole, Scott & Kissane, P.A., Miami, for Petitioner.

Nicholas P. Panagakis and Lawrence Gonzalez, II, of Morgan & Morgan, P.A., Orlando, for Respondent, Carmen Rodriguez. No Appearance for other Respondents.

HARRIS, J.

In this premises liability action, FirstService Residential Florida, Inc. (“FirstService”), seeks certiorari relief, requesting that this Court quash the trial court’s order compelling production of its work product (i.e., photographs). Because FirstService

2 failed to properly preserve its claim of error for appellate review, we must deny the petition.

Carmen Rodriguez filed a premises liability lawsuit against several defendants, including FirstService. The complaint alleged that Rodriguez slipped and fell on a transitory foreign substance while walking towards the elevator of her condominium, and that FirstService was the property management company that managed the condominium property at the time of the fall. Pre-trial, Rodriguez scheduled a deposition of FirstService’s corporate representative, Jessica Gomez. Prior to the deposition, FirstService filed a privilege log, asserting a work product privilege as to, among other things, two photographs of the area near Rodriguez’s condominium. During the deposition, Rodriguez asked Gomez questions pertaining to those photographs and FirstService objected, asserting work product privilege.

Following the deposition, Rodriguez filed a motion to compel FirstService to produce the photographs. At the hearing on her motion, Rodriguez argued that she did not have any photos taken on the day of the fall and had no way to recreate the scene depicted in FirstService’s two photos. In response, FirstService argued only that Rodriguez had the substantial equivalent of the photographs requested, and as such, the exception to the work product privilege did not apply. The trial court granted Rodriguez’s motion to compel and ordered the production of the two photographs. In the instant petition, FirstService argues for the first time that certiorari relief is warranted because Rodriguez failed to meet her burden of presenting evidence establishing that an exception to the work product privilege exists in this case. FirstService asserts that the trial court’s discovery order departs from the essential

The work product privilege is set forth in Florida Rule of Civil Procedure 1.280. Specifically, rule 1.280(b)(4) provides:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party . . . only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

To support its position, FirstService cites CSX Transportation, Inc. v. Carpenter, 725 So. 2d 434, 435 (Fla. 2d DCA 1999), which explained that rule 1.280(b) requires a showing, through evidence, that the party seeking discovery needs the materials in the preparation of the case and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means and that assertions of counsel do not fulfill this requirement. FirstService also cites to Florida East Coast Railway v. Jones, 847 So. 2d 1118, 1119 (Fla. 1st DCA 2003); North Broward Hospital District v. Button, 592 So. 2d 367, 368 (Fla. 4th DCA 1992); and Winn-Dixie Stores v. Nakutis, 435 So. 2d 307, 308 (Fla. 5th DCA 1983), to support its argument that “bare assertions of counsel are clearly inadequate to show the ‘need’ and ‘undue hardship’ required for production of work product documents.”

PETITION DENIED.

EDWARDS and BERGER, JJ., concur.