Unfortunately, in many personal injury cases, the defendant has possession or control of much of the evidence that would prove the plaintiff’s case. In premises liability cases, plaintiffs often have to rely on discovery to obtain information and evidence to prove the defendant was negligent. Sometimes, however, evidence that would be beneficial to the plaintiff is protected from discovery by the work product doctrine.

The Third District considered the application of the work product doctrine to photographs taken after an accident in the recent case of Seaboard Marine Ltd. v. Clark. In this case, an employee of a stevedoring company was injured when a top loader ran over him.

The injured man filed suit against the county that owns the terminal and the company that leases it from the county and operates it. The plaintiff alleged that noise, congestion, inadequate lighting, and disorganized storage of containers at the terminal created a dangerous work environment.

Right after the accident, the company’s attorneys and other employees took a large number of photographs of the area. They also preserved the surveillance footage taken by a camera about 100 feet over the accident scene. The footage shows where the containers were located, how the terminal was set up, how the top loaders were working in the area, and what happened in the accident.

The company provided the surveillance footage to the injured man’s attorney before the case was even filed, but it refused to provide the photographs based on the work product doctrine and the attorney-client privilege. After filing suit, the plaintiff sought the photographs in a discovery request. The defendant company objected and filed a privilege log.

The plaintiff moved to compel production, and the court inspected the photographs in camera. The trial court found that the pictures were relevant and that the plaintiff had no other way to obtain them. It granted the motion to compel, even though the plaintiff did not present any evidence showing that he had tried to get post-accident photographs taken by the county or his employer. Furthermore, no witnesses had been deposed. The defendant company sought certiorari review of the order.

Under the Florida Rules of Civil Procedure, one party may obtain discovery of the work product of another party only if the party seeking discovery can show that he needs the materials in preparation of the case and cannot get a “substantial equivalent” by other means without undue hardship.

On review, the Third District found nothing in the record showing that the plaintiff had tried to get substantially equivalent materials. The district court agreed that the photos were relevant and possibly highly probative, but that is not the standard for obtaining work product materials. The plaintiff must make every effort to obtain the substantial equivalent and show that he cannot do so without undue hardship before he can obtain the other party’s work product. The Third District granted the petition and quashed the order compelling production.

This case shows the importance of exhausting other avenues of obtaining the substantial equivalent of work product materials. In many cases, there may not be a substantial equivalent, but the requesting party must demonstrate that.

If you have been hurt on someone else’s property, Anidjar & Levine can help you. Our skilled South Florida personal injury attorneys can investigate your case and fight for the evidence you need to prove it. Call 800-747-3733 or submit an online contact form to schedule a consultation.

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