By: Esther E. Galicia
The Third District recently stood firm on the evidentiary requirement that a party must comply with before being able to obtain its opponent’s work product.
In Seaboard Marine Ltd. v. Clark, 40 Fla. Law Weekly D2164 (Fla. 3d DCA Sept. 16, 2015) the Third held that the trial court erred in compelling the defendant to produce 91 relevant post-accident photographs. The plaintiff had not, however, established that: he engaged in any efforts to obtain substantially equivalent materials; he deposed any witnesses; or he attempted to obtain other, non-privileged photographs.
The Seaboard Marine court thus granted the defendant’s petition for writ of certiorari and quashed the trial court’s order, reasoning that Rule 1.280(b)(4) “establishes a much higher bar than mere relevancy to obtain such privileged work-product materials developed by the adversary. A party must first diligently exhaust other means of obtaining the substantial equivalent.”