TORTS: NEGLIGENCE: PREMISES LIABILITY: SLIP AND FALL: CIVIL PROCEDURE: DISCOVERY: SAFETY COMMITTEE REPORTS: WORK PRODUCT: SAFETY COMMITTEE REPORTS CONSTITUTED WORK PRODUCT AND WERE NOT DISCOVERABLE BECAUSE PLAINTIFF DID NOT SHOW THAT PRODUCTION WAS NECESSARY AND THAT SHE COULD NOT OBTAIN THE SUBSTANTIAL EQUIVALENT WITHOUT UNDUE HARDSHIP; APPEALS: CERTIORARI

Millard Mall Services, Inc. v. Bolda, ___ So. 3d ___, 40 Fla. L. Weekly D384 (Fla. 4th DCA February 11, 2015)

The trial court, in a slip and fall case, overruled the defendant’s objection to the production of Quarterly Safety Committee Reports, but the appellate court granted the defendants’ petition for certiorari and quashed the trial court’s order. The appellate court agreed that the reports constituted work product because they “were prepared in anticipation of litigation.” In addition, the plaintiff failed to invoke the exception to the work product privilege by showing that she needed the reports and was unable to obtain the substantial equivalent without undue hardship. “[D]iscovery directed to defendants. . . . enabled [the plaintiff] to obtain a list of incidents on defendants’ premises for three years predating plaintiff’s accident, including the dates, times, locations, and a detailed description of those incidents. Therefore, the requested information (or its substantial equivalent) was obtained through means other than the production of work-product materials.” “The mere fact that [the safety committee reports] ‘might yield additional information about the incident [was] not enough, without more, to show ‘undue hardship.’’” Judges Damoorgian and Klingensmith concurred in a per curiam opinion. Judge Warner dissented because the reports were prepared to improve safety and, even if they “could be considered work product, . . . section 768.0755, Florida Statutes, . . . should make them discoverable.” This statute provides that premises liability in cases involving transitory foreign substances requires constructive notice or foreseeability based upon the regularity of the dangerous condition. In this case, despite the plaintiff’s request, the defendants failed to preserve the video of her accident, compromising her ability to establish constructive notice. As a result, she was entitled to discovery of the safety committee reports to establish regularity and foreseeability.

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