Third District Court of Appeal
State of Florida
Opinion filed November 17, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1593
Lower Tribunal No. 19-32735
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IMC Hospitality, LLC, etc.,
Petitioner,
vs.
Roger Ledford, Sr.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Valerie
R. Manno Schurr, Judge.
Conroy Simberg, and Hinda Klein and Samuel B. Spinner (Hollywood),
for petitioner.
Steinger, Greene & Feiner, and Todd L. Baker (Fort Lauderdale), for
respondent.
Before EMAS, LOGUE and SCALES, JJ.
SCALES, J.
In this personal injury action resulting from respondent Roger Ledford,
Sr.’s slip and fall inside a restaurant owned by petitioner IMC Hospitality, LLC
d/b/a Pollo Tropical (“IMC”), IMC seeks certiorari review of a July 9, 2021
order directing it to produce to Ledford an in-house incident report and
photographs of the accident scene. We deny the petition as it relates to the
incident report. Because, however, Ledford failed to make a proper showing
of need and undue hardship with respect to the photographs that were taken
by IMC’s employee in anticipation of litigation, 1 we grant the certiorari petition
with respect to that portion of the July 9, 2021 order compelling IMC to
produce the photographs.
I. RELEVANT FACTS
During discovery, Ledford sought both a copy of an incident report that
was prepared immediately after Ledford’s accident, as well as photographs
of the accident scene that were taken by an IMC employee. IMC objected to
the discovery requests because the incident report and photographs were
prepared in anticipation of litigation and, therefore, were protected by the
work-product privilege. See Marshalls of M.A., Inc. v. Witter,
186 So. 3d 570,
573 (Fla. 3d DCA 2016) (“Incident reports, internal investigative reports, and
information gathered by employees to be used to defend against potential
1
See Fla. R. Civ. P. 1.280(b)(4).
2
litigation are generally protected by the work-product privilege.”). Ledford
filed a motion to compel their production.
After the parties presented competing affidavits wherein the affiants
(i.e., Ledford and the restaurant’s assistant manager) both attested that they
had authored the incident report, 2 the trial court held an evidentiary hearing
at which Ledford and the assistant manager testified. The trial court also
conducted an in camera inspection of the incident report and the
photographs. Following a subsequent status conference, the trial court
entered the challenged July 9, 2021 order requiring IMC to produce the
incident report and the photographs.
II. ANALYSIS
“A writ of certiorari is the proper method to review trial court orders
compelling production of privileged discovery that is otherwise protected as
work product; compelling such production presents the potential of a
departure from the essential requirements of law, which would cause
material harm from which there is no adequate remedy on final appeal.”
Seaboard Marine Ltd. v. Clark,
174 So. 3d 626, 628 (Fla. 3d DCA 2015).
2
According to Ledford, he filled out the entire incident report, which was
written in English, by himself because the assistant manager had difficulty
writing Ledford’s name and because it appeared that English was not the
assistant manager’s first language.
3
The parties do not dispute that Ledford was required to meet the
requirements of Florida Rule of Civil Procedure 1.280(b)(4) because he
sought disclosure of materials (the incident report and photographs)
protected by Florida’s work-product doctrine. See Marshalls of M.A., Inc.,
186 So. 3d at 573. In relevant part, the rule provides:
[A] party may obtain discovery of documents and tangible things
otherwise discoverable . . . and prepared in anticipation of
litigation or for trial by or for another party or by or for that party's
representative, including that party's attorney . . . only upon a
showing that the party seeking discovery has need of the
materials in the preparation of the case and is unable without
undue hardship to obtain the substantial equivalent of the
materials by other means. . . . Without the required showing a
party may obtain a copy of a statement concerning the action or
its subject matter previously made by that party. . . . For purposes
of this paragraph, a statement previously made is a written
statement signed or otherwise adopted or approved by the
person making it . . . .
Fla. R. Civ. P. 1.280(b)(4) (emphasis added). We conclude that Ledford
satisfied the rule’s requirements with respect to production of the incident
report, but failed to make the required showing with respect to production of
the photographs.
A. The Incident Report
As to the incident report, the trial court determined that Ledford was
the more credible witness and found that Ledford, rather than the assistant
manager, had prepared the document, thereby satisfying the requirements
4
of rule 1.280(b)(4). Id. (“Without the required showing [of need and undue
hardship] a party may obtain a copy of a statement concerning the action or
its subject matter previously made by that party.”) (Emphasis added).
Because we are not free to reweigh the evidence and the trial court’s factual
finding is supported by competent, substantial evidence, see Michael
Anthony Co. v. Palm Springs Townhomes,
174 So. 3d 428, 432 (Fla. 4th
DCA 2015), we deny the petition as it relates to the incident report. Although
Ledford did not sign the incident report, the trial court’s finding – supported
by competent, substantial evidence – that Ledford authored the incident
report satisfies the rule’s requirement that Ledford “adopted or approved it.”
Fla. R. Civ. P. 1.280(b)(4) (“For purposes of this paragraph, a statement
previously made is a written statement signed or otherwise adopted or
approved by the person making it . . . .”).
B. The Photographs
As to the photographs, rather than considering whether Ledford had
made the required showing under rule 1.280(b)(4), the trial court found that
IMC had somehow “waived” the work-product privilege because of an
inconsistency between the assistant manager’s affidavit and the assistant
manager’s hearing testimony as to who took the photographs of the accident
scene. The assistant manager’s affidavit averred that she took the
5
photographs herself; whereas, at the evidentiary hearing, the assistant
manager clarified and corrected her affidavit on this point, testifying that the
restaurant’s manager had actually taken the photographs. While the trial
court did not provide an explicit explanation of, or any authority to support,
its “waiver” finding, the record seems to reflect that the trial court required
production of the photographs as a sanction for the misstatement in the
affidavit.
Rule 1.280(b)(4), however, allows for the production of work-product
“only upon a showing that the party seeking discovery has need of the
materials in the preparation of the case and is unable without undue hardship
to obtain the substantial equivalent of the materials by other means.”
(Emphasis added). Not only did Ledford fail to make the required showing,
he also failed even to allege need and undue hardship in his motion to
compel production of the photographs.
Indeed, citing to cases that very clearly determined the petitioner had
met its burden of satisfying rule 1.280(b)(4)’s requirements, 3 Ledford’s
motion to compel made only the general relevancy argument that he was
3
See Kmart Corp. v. Sundmacher,
997 So. 2d 1158 (Fla. 3d DCA 2008); Fla.
Power Corp. v. Dunn,
850 So. 2d 655 (Fla. 2d DCA 2003).
6
“entitled to photographs . . . taken . . . shortly after an incident.” But, as this
Court explained in Seaboard Marine Ltd:
No doubt the photographs are relevant; they might be
highly probative to the critical issues in the case. Rule
1.280(b)(4), however, establishes a much higher bar than mere
relevancy to obtain such privileged work-product materials
developed by an adversary. A party must first diligently exhaust
other means of obtaining the substantial equivalent. In this case,
the record is devoid of evidence of such diligence.
174 So. 3d at 628.
We conclude that, under the facts presented here, forcing the
production of otherwise privileged photographs constitutes a departure from
the essential requirements of the law. Id. We, therefore, grant the petition in
part and quash that portion of the challenged order requiring IMC to produce
the subject photographs.
Petition granted in part and denied in part.
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