Florida’s Fourth District Holds Information Prepared in Anticipation of Litigation is Not Discoverable in Slip and Fall Case

In Millard Mall Service, Inc. v. Bolda, a woman filed a lawsuit against the owner of a shopping mall after she sustained an injury in a March 2011 slip and fall accident. In support of her case, the woman requested certain documents from the mall owner. As part of a subpoena, the woman asked the owner for any records related to substantially similar accidents within the preceding three-year-period, mall cleaning and maintenance records from March 2011, and any information related to cleaning or maintenance that was performed by a third party during the same month.

In response to the woman’s discovery requests, the owner of the mall argued the documents were not discoverable because they were prepared in anticipation of litigation. According to the mall owner, the information requested included photos, discussions, and mental impressions regarding incidents that took place on the premises. After reviewing the documents at issue in his chambers, the presiding trial court judge ordered the mall owner to produce the requested information except for the incident report related to the woman’s fall. In response to the trial court’s order, the owner of the mall sought certiorari review before Florida’s Fourth District Court of Appeal.

On appeal, the court said Rule 1.280(b)(4) of the Florida Rules of Civil Procedure states a party may only obtain documents prepared in anticipation of litigation if the party can demonstrate the information is needed in order to prepare his or her case, and it may not be obtained by other means without undue hardship. The Fourth District stated that work product protection is also extended to information that is gathered in anticipation of litigation by non-attorneys. In addition, the court said a routine report may rise to the status of work product in certain circumstances.

Next, the Florida Court of Appeal said the woman failed to demonstrate she had a particularized need for the information at issue. In addition, the court stated the woman “had the ability to obtain substantially equivalent information through discovery directed to defendants.” The appeals court also said the fact that the requested documents might yield relevant information was not sufficient to demonstrate undue hardship. Since the woman failed to show that she was unable to obtain the requested information through other means, Florida’s Fourth District Court of Appeal granted the owner of the mall’s writ and quashed the trial court’s discovery order.

If you were injured as a result of a Florida property owner’s negligence, you need a hardworking premises liability attorney on your side to help you protect your rights. To discuss your case with a caring Miami personal injury lawyer today, call the veteran attorneys at Friedman, Rodman & Frank, P.A. at (305) 448-8585 or contact us through our website.

Additional Resources:

Millard Mall Service, Inc. v. Bolda, Fla: Dist. Court of Appeals, 4th Dist. 2015

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