Written Interrogatories in Florida Slip and Fall Cases

fruits-au-supermarch-4-753603-m.jpgAn important aspect of the discovery process during litigation is the preparation of responses to interrogatories. A common practice among plaintiffs’ lawyers is to ask their clients to prepare handwritten responses to the defendant’s discovery. These responses are solely for the attorney’s benefit. Certain interrogatories may ask for an opinion or contention not within the personal knowledge of the plaintiff, though it is within the knowledge of the attorney. Therefore a written interrogatory response may differ from a draft response prepared by a plaintiff for her attorney.

In a recent appellate decision on a discovery battle, a plaintiff sought review of a court order compelling her to produce privileged attorney-client communications. The case arose because the woman filed suit against a supermarket alleging that she had suffered personal injuries after a slip and fall in a large puddle at the store.

The market had served a set of written interrogatories on the plaintiff during the discovery process. The plaintiff had answered them and verified them as true and correct to the best of her knowledge. One of the interrogatories asked her to provide the facts that formed the basis for her allegation that the defendant market knew of the dangerous condition.


The plaintiff responded in writing that the liquid had been on the “floor” long enough for the defendant to discover it. At her deposition she was asked about her answer. She replied that she had only signed the answers to the interrogatories, but the answer was not something she had given her attorney. She said she didn’t know how long the puddle was there before she slipped.

After that, the market served a request to produce her original handwritten responses to the interrogatories. She objected on the grounds that it violated attorney-client privilege. The defense requested a hearing on this objection. Her attorney told the court he helped the woman with her answer and those weren’t her precise words. This was consistent with a note on the interrogatories that identified him and the plaintiff as together supplying the answer.

The trial court decided that the market was entitled to see the handwritten draft that the plaintiff had prepared because she revealed her answers at deposition, placing them at issue. However, the court recognized that attorney-client communications might appear in addition to the plaintiff’s factual answers. Therefore the judge gave the plaintiff’s counsel 10 days to figure out what might be privileged information in the draft and give it to the court for an in camera review. The plaintiff filed a privilege log asserting the whole draft was privileged and she sought review from the appellate court.

The appellate court explained that the draft answers delivered to her attorney were privileged attorney-client communications. Under section 90.502(1)(c), Florida Statutes (2012) a communication between a lawyer and a client is “confidential” when it is not meant to be disclosed to third parties.

The defendant market had argued that verified answers to interrogatories were intended to be disclosed to them. It also argued that the plaintiff waived privilege by stating in deposition that her answer to interrogatories was not “her” answer.

The court rejected the suggestion that unsigned and unverified answer sent to a lawyer for review were intended to be disclosed to others. An attorney’s role usually includes the act of helping a client prepare interrogatories in order to advance the client’s interest while still maintaining any legal and ethical requirements.

The court explained there was no waiver at the deposition because at no point did she disclose her communications with her attorney about preparation of answers other than to state her draft was different.

If you have been hurt due to another person or entity’s negligence, contact the experienced Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585. We work hard to recover compensation from all possible sources for our clients.

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