The Work-Product Privilege in a Nutshell
The work-product privilege or doctrine1 originated in the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947, in which the U.S. Supreme Court held that statements of witnesses obtained by an attorney prior to trial were privileged and thus protected from discovery. The Court reasoned that to allow otherwise would be contrary to the public policy underlying the orderly and just prosecution and defense of claims. Florida’s courts subsequently adopted the work product privilege2 and it eventually became incorporated into the Florida rules of civil and criminal procedure.3 When applying the work-product privilege, courts generally use the same principles in both civil and criminal cases.4
Fla. R. Civ. P. 1.280(b)(3) defines work product as “documents and other tangible things. . . prepared in anticipation of litigation or for trial.” This rather broad definition has been narrowed because judicial labor over a constant flow of litigation has resulted in a set of rules and principles aimed at applying the doctrine with consistency and precision. These rules and principles are premised on a court’s initial interpretations which relate the doctrine to policy considerations rather than to legal concepts of privilege and relevance.5
The purpose of this article is to give a broad overview of the work-product doctrine. It discusses first the general principles that are encompassed within the doctrine. It then focuses on how a party may obtain work product through the discovery process, and examines how the doctrine applies to the work product of the State of Florida and experts. It concludes with an analysis of how one waives the protection afforded by the doctrine.
General Principles
The primary policy objective of the work-product doctrine is to preserve the effective assistance of attorneys and others employed to help prepare a case for trial. maintaining the privacy of communications between client, attorney, and others employed in preparing for litigation — especially privacy in the development of legal theories, opinions, and strategies-the doctrine fosters the effectiveness of legal assistance upon which our adversarial system of justice depends. But the courts realize that to achieve fairness in the disposition of litigation, the parties must be allowed to obtain knowledge of the relevant facts through a liberal interpretation of the rules of discovery. In order to accommodate these often divergent and conflicting policy considerations, the courts will give absolute or almost absolute protection to work product which encompasses the mental impressions, conclusions, opinions, and legal theories concerning the litigation while allowing discovery of other work product on a showing of substantial need and undue hardship.
Thus the courts distinguish between “fact” and “opinion” work product.6 ” Fact” work product is factual information that pertains to the litigation and is prepared or gathered in connection with it.7 ” Opinion” work product consists of the attorney’s mental impressions, conclusions, opinions, or theories concerning the litigation.8 Fla. R. Civ. P. 1.280(b)(3) also recognizes this distinction, for it provides that a party may obtain discovery of documents and tangible things prepared in anticipation of litigation by another party (fact work product) upon a showing of need and inability to obtain the substantial equivalent of such materials without undue hardship. The rule then goes on to provide that with respect to the mental impressions, conclusions, opinions, or legal theories of an attorney (opinion work product), “the court shall protect against disclosure.” The degrees of protection afforded each category of work product distinguishes between them.9 Fact work product may be discoverable upon a showing of need and undue hardship, but opinion work product has much greater protection.10 Although the Florida courts have not finally decided whether opinion work product is absolutely privileged, some federal courts have decided that it is,11 while others have decided that it is entitled only to special protection.12 It is at least clear that such work product may not be discovered merely on a showing of substantial need and undue hardship13 and, as one Florida court has stated, it is “absolutely, or nearly absolutely, privileged.”14 The primary purpose for this heightened degree of protection for opinion work product is to protect the attorney’s significant privacy interests in not disclosing it and to ensure the proper functioning of our adversarial system of justice.15
Because opinion work product will rarely, if ever, be discoverable, most discussion focuses on the discovery of fact work- product. In order to fall within the fact work-product privilege, documents and tangible things must be prepared in anticipation of litigation or for trial.l6 Courts recognize that it is often difficult to determine what is and what is not prepared in contemplation of litigation.17 In some instances, simple common sense becomes the best divider, but even this usually reliable standard produces inconsistent results in areas such as this where “the black turns to grey before becoming white.”18
Most courts agree that materials prepared and information obtained in the routine and ordinary course of business, or pursuant to public requirements unrelated to litigation, are not entitled to protection.19 These courts generally accept the principle that the mere likelihood of litigation will not be enough to protect the materials and information from discovery.20 Thus, investigations and incident reports which follow an accident may not qualify as work product if they are required as part of the ordinary course of business. For example, the early stages of an insurance company’s claim investigation may be considered part of the ordinary course of business to determine whether to honor or to deny the claim and whether the insurer should seek subrogation against the negligent party.21 In most of these cases, the courts will rely on the testimony of those who either conducted the investigation or prepared the report giving the reasons for it.
But in other cases involving preliminary investigations and incident reports, some courts adopt a broader interpretation of the “anticipation of litigation” requirement and hold that “even investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.”22 The U.S. Supreme Court appears to be leaning toward this view. In Upjohn Company v. United States, 101 S.Ct. 677 (1981), the Court indicated that statements of witnesses taken during an internal investigation into wrongdoing may be privileged even though litigation was neither pending nor threatened so long as there was a possibility that a suit might ensue.
Some appellate courts have urged trial courts to include findings of fact in their orders when ruling on this issue.23 In some cases where a trial court’s order does not contain appropriate findings of fact-especially where the record of the trial proceedings is sparse-appellate courts have simply granted certiorari, quashed the trial court’s order, and remanded the case back to the trial court for further proceedings.24 Because of the inconsistent positions taken by several appellate courts and the difficulty inherent in determining whether materials are prepared in anticipation of litigation, it is highly recommended that this request be complied with so that the appellate courts can make a more accurate resolution of the issue.
The work product privilege contained in Fla. R. Civ. P. 1.280(b)(3) specifically refers to “documents and tangible things. . . prepared. . . by or for another party.” If the items were prepared by someone other than a party and were not prepared at the request of any party to the pending litigation, the work-product privilege may not apply.25 The work-product privilege, although originally intended to protect the work product of attorneys, has been extended to materials and information prepared and obtained “by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent.”26
In some circumstances, the courts have indicated that they will allow a nonparty to assert the privilege.27 This situation usually arises when the person claiming the privilege is not made a party to the litigation because the person enjoys some legal immunity from suit or liability. For example, the person may be an employer and enjoy immunity under the worker’s compensation laws, may have some other valid affirmative defense, or the person’s liability may be difficult to prove.28 The courts have held that when a person closely connected to the events surrounding the litigation is not made a party because of these reasons, and the person nevertheless collects materials and information in anticipation of litigation, the work-product privilege may still be asserted when a party attempts to obtain from the person discovery of that information or material.29
The work-product privilege does not end with the termination of the case in which it has been successfully asserted.30 The primary reason given for the survivability of the privilege is its purpose in protecting interrelated interests.31 Not only does the privilege protect a person’s interests in obtaining complete and effective legal representation, it also seeks to protect the peculiar interests of the attorney in providing such representation without fear of having privacy invaded and the attorney’s thoughts and opinions revealed through the discovery process.32 Therefore, in order to help eliminate the possibility that the attorney’s opinion work product may be revealed, even in subsequent unrelated litigation, the courts may allow both the client and the client’s attorney to assert the privilege.33
Obtaining Discovery of Fact Work Product
Once it is determined that the requested material is work product, the privilege may be utilized to prevent discovery. In order to unwrap the materials from this cloak of immunity, the party seeking discovery will have the burden of establishing the following requirements:34
1) The material is needed to prepare the party’s case;
2) The party is unable without undue hardship to obtain the substantial equivalent of the materials by other means; and
3) The documents and tangible things fall within the general scope of discovery found in Fla. R. Civ. P. 1.280(b)(l), which, in essence, means that the material must be relevant.35
These requirements not only safeguard the proprietary aspect of the work but also protect against freeloaders who may attempt to rely on the enterprise of the other party to obtain a successful conclusion to the proceedings.
The courts require more than legal analysis or bare assertions of need and inability in a pleading.36 Rather the showing must include specific explanations and reasons supported by such evidence as sworn testimony before the court or affidavits.37 If the three requirements are met, a party may discover the work product of another party but the court allowing the discovery must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories (opinion work product) of the attorney or other representative of the party concerning the litigation.38 This is primarily the reason why the courts, in deciding whether material is work product and discoverable, should always conduct an in camera inspection of the requested items.39
The courts have held that the requirement of need encompasses relevance and diligence on the part of the party seeking discovery of work product.40 If the materials are not relevant and the party seeking discovery has not been diligent in the preparation of the case, need cannot be established.41 Some decisions hold that need for work product materials may be established by showing 1) that the underlying evidence has been damaged, dismantled, changed, or is inaccessible to the same examination by the party seeking discovery; 2) that withholding the materials would defeat the interests of justice; or 3) that the materials are not as readily available to the party seeking discovery.42
Once the party seeking discovery establishes need for the work-product materials, it must then be established that the party is unable to obtain the substantial equivalent by other means without undue hardship.43 Because the rule specifies obtaining the substantial equivalent of the requested materials, it does not suffice to show an inability to obtain the actual materials or to discover their exact contents. Rather, the requesting party will be denied access to the work product if the court determines that the party has available the means to discover the substantial equivalent of the materials.
The required showing of need and inability to obtain the substantial equivalent of the requested materials is not necessary when a party seeks discovery of his or her own statement previously given regarding the action or its subject matter.44 This showing is also unnecessary when a person not a party to the action requests a copy of his or her own statement previously given concerning the action or its subject matter.45 This statement may be written and signed, approved, or adopted by the party or person making it; it may be recorded or transcribed by other means in verbatim form; or it may be in a form which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously rec0rded.46
Expert Witnesses
Whether the facts known or opinions held by expert witnesses are subject to discovery is dependent upon whether the expert will testify at trial or whether the expert is hired to consult.47 The facts and opinions as well as the identity of experts hired to give testimony at trial are not protected by the work product doctrine and may be discovered.48 The proper procedure to first obtain this information is to serve expert interrogatories on the other party.49 Experts disclosed by this discovery device or otherwise may be deposed in accordance with Fla. R. Civ. P. 1.390 without motion or order from the court.50 Other discovery methods may be utilized provided a motion for additional discovery is filed and an order is obtained from the court permitting further discovery.51
The work-product doctrine does apply to expert witnesses who will not testify and who are only hired on a consulting basis to assist with trial preparation.52 Thus their identity and the facts and opinions they hold do not, as a general rule, have to be disclosed.53 But there are exceptions which allow discovery of the work product of a nonwitness expert. Discovery will be allowed when the expert performs a physical or mental medical examination pursuant to Fla. R. Civ. P. 1.360, or when a showing is made to the court of exceptional circumstances which make it impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.54
Work Product of the State
The Public Records Act55 generally requires that all state, county, and municipal records be open to public inspection and examination unless specifically exempted by statute.56 A public record is defined as any document, paper, letter, map, book, tape, photograph, film, sound recording, or other material made or obtained pursuant to law or in connection with the transaction of official business by any agency.57 The courts liberally construe the Public Records Act to fulfill public policy which favors open government in order to preserve basic liberties and freedoms without obstructing significant governmental functions.58
The Public Records Act applies to the items and materials which are kept by attorneys employed by the State of Florida59 and, therefore, as a general rule, the work-product doctrine does not apply to protect such items from discovery or inspection. But since this act only pertains to public records, it may not apply to the discovery of oral testimony by deposition of a representative or employee of the state.60 Thus privileges that normally apply to oral testimony, such as the attorney-client or work-product privilege, may not be affected by the Public Records Act.61
There are exemptions from disclosure which the courts narrowly construe and which are limited to their stated purpose.62 One of those exemptions protects from disclosure materials which are prepared by or at the express direction of an agency attorney.63 An agency attorney is generally defined as an attorney employed by a governmental agency or employed by another public officer or agency to protect or represent the interests of the agency having custody of the record.64 In order to be exempt from disclosure, the materials must reflect a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency.65 Thus this exemption only applies to the opinion work product of the attorney and does not protect other materials from disclosure under the act even though they may otherwise qualify as work product.66 In addition, the exemption only applies if the material was prepared exclusively for civil or criminal litigation, adversarial administrative proceedings, or for such proceedings which are anticipated or imminent.67 This exemption prevents disclosure only until the litigation or administrative proceeding is concluded.68 Once the proceedings end, the general principle of disclosure under the act applies and discovery may be allowed.69
Waiver
It is generally agreed that’ a party who has a privilege may waive it by voluntarily disclosing the privileged information to another.70 In order to constitute a waiver, the substance of the privileged information must be revealed.71 Thus simply listing an expert witness on a witness list may not constitute a waiver of the work-product privilege when the name is subsequently withdrawn as a witness.72 In addition, a claims agent who participated in responding to interrogatories does not necessarily waive the work product privilege regarding knowledge the claims agent may have that may not have been disclosed.73
Partial disclosure of information or material does not necessarily mean that the privilege is waived as to all information.74 For example, disclosure of an expert’s written report does not mean that the work-product privilege has been waived concerning facts known and opinions held by the expert that were not previously disclosed in the report.75
Since the work-product privilege protects the interests of both the attorney and the client, either may assert it.76 If the privilege is waived by the client as to fact work product, the attorney may not have a right to assert the privilege and prevent disclosure.77 But the attorney may prevent waiver by the client of the privilege relating to opinion work product because of the overriding interest the attorney has in protecting the right to privacy.78
There seems to be a conflict among the decisions of the district courts of appeal concerning when the privilege must be asserted. One court has held that if it is not specifically asserted in a response to a discovery request, the privilege is waived.79 The majority of other courts, however, do not require a timely objection based on privilege so long as it is asserted prior to disclosure.80 Because there remains an unresolved conflict among the courts on this issue, it is recommended that the privilege be asserted at the earliest possible time so that any argument based on timeliness can be avoided.
Although voluntary disclosure of privileged matter to a third party generally waives the privilege, the courts have adopted an exception to this rule when the disclosure is made to another litigant who shares a unified interest in the litigation.81 Under this exception, parties and their attorneys who share common litigation interests may share and exchange information among themselves without fear that they will forfeit the protection afforded by the privilege.82 In determining whether this exception applies, the courts must find not only that the transferor and transferee share common litigation interests, but also that the disclosure is consistent with maintaining secrecy against their opponents.83 If a member of the common interest group discloses the privileged matter to a nonmember, the privilege is deemed waived just as it would be in the ordinary case.84
In order to have a common interest in the litigation, all that is required is that the parties anticipate litigation against a common adversary on the same issue or issues and have a strong common interest in sharing the fruits of the trial preparation efforts.8 5 Thus in multi-party litigation involving numerous plaintiffs and/or defendants, parties who share a common interest under this exception may be a plaintiff and a defendant.86
Conclusion
The work-product privilege serves a very useful purpose in our system of jurisprudence. Because distinct differences have been drawn between fact work product and opinion work product, the privilege, as it exists today, promotes the endeavors of attorneys and others to protect and advance the interests of their clients through the judicial process by protecting individual privacy rights. At the same time, it advances the cause of justice in each case by allowing litigants in certain circumstances to obtain fact work product which is relevant and necessary to render a fair and correct judgment on the merits of each case.
To supplant this salutary doctrine with one which is more intrusive of privacy rights or restrictive of the discovery process would foster inefficiency, unfairness, and questionable practices by those called upon to serve litigants in need of legal assistance. This, in turn, would diminish the efficacy of our legal system and poorly serve the cause of justice.
1 The courts have not been consistent with their terminology. Some refer to the “work-product privilege” while others refer to the “work-product doctrine.” This article will also use the two terms interchangeably.
2 See, e.g., Dodson a. Persell, 390 So . 2d 704 (Fla. 1980); Surf Drugs, Inc. u. Vermette, 236 So . 2d 108 (Fla. 1970); Miami Transit Co. v. Hurns, 46 So. 2d 390 (Fla. 1950); Atlantic Coast Line R.R. Company u. Allen, 40 So. 2d 115 (Fla. 1949).
3 Fla. R. Civ. P. 1.280(b)(3); Fla. R. Civ. P. 3.220(g)(l).
4 See State v. Rabin, 495 So. 2d 257 (Fla. 3d D.C.A. 1986); Ehrhardt, Florida Evidence §502.9 at 258 (West 1992).
5 Shell v. State Road Dept., 135 So. 2d 857 (Fla. 1961); Atlantic Coast Line R.R. Company v. Allen, 40 So. 2d 115, 116 (Fla. 1949).
6 State v. Rabin, 495 So. 2d 257 (Fla. 3d D.C.A. 1986); Upjohn Co. v. United States, 101 S. Ct. 677 (1981): Hickmann v. Taylor, 67 S. Ct. 385 (1947).
7 State v. Rabin, 495 So. 2d at 262.
8 Id.
9 Id.
10 Id; Fla. R. Civ. P. 1.280(b)(3).
11 See, e.g., DuPlan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir. 1974), cert. denied, 95 S. Ct. 1438 (1975).
12 See, e.g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (3d Cir. 1979); In re Murphy, 560 F.2d 326 (8th Cir. 1977). See also Upjohn Co. u. United States, 101 S. Ct. 677 (1981).
l3 Upjohn Co. v. United States, 101 S. Ct. 677 (1981), cited in State v. Rabin, 495 So. 2d at 262.
l4 State v. Rabin, 495 So. 2d 257, 262.
l5 Id. at 263.
l6 Fla. R. Civ. P. 1.280(b)(3); Anchor Nat’l Fin. Serv., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d D.C.A. 1989); Waste Management, Inc. v. Southern Bell Tel. & Tel. Co., 544 So. 2d 1133 (Fla. 4th D.C.A. 1989); Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th D.C.A. 1985).
17 Airocar, Inc. v. Goldman, 474 So. 2d at 270.
18 Id.
19 Waste Management, Inc. v. Southern Bell Tel. & Tel. Co., 544 So. 2d 1133; Proctor & Gamble v. Swilley, 462 So. 2d 1188 (Fla. 1st D.C.A. 1985); Cotton States Mut. Ins. Co. v. Zbrtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th D.C.A. 1984).
But information and materials may be collected because a law or regulation requires it and, at the same time, it may also be collected in anticipation of litigation. Under these circumstances, the information may qualify as work product. Waste Management, Inc. v. Florida Power & Light Co., 571 So. 2d 507 (Fla. 2d D.C.A. 1990); Fogarty Bros. Transfer Co. v. Perkins, 250 So . 2d 655 (Fla. 2d D.C.A. 1971).
20 Id.
21 See Cotton States Mut. Ins. Co. v. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th D.C.A. 1984).
22 Anchor Mut. Fin. Serv., Inc. u. Smeltz, 546 So. 2d 760, 761 (Fla. 2d D.C.A. 1989); Waste Management, Inc. v. Florida Power & Light Co., 571 So. 2d 507, 509-510 (Fla. 2d D.C.A. 1990), quoting Anchor Nat’l.
23 See, e.g., Airocar, Inc. v. Goldman, 474 So . 2d 269 (Fla. 4th D.C.A. 1985); Scotchel Enter., Inc. v. Velez, 455 So. 2d 1129 (Fla. 4th D.C.A. 1984).
24 Waste Management, Inc. v. Southern Bell Tel. & Tel. Co., 544 So. 2d 1133 (Fla. 4th D.C.A. 1989); Selected Risks Ins. Co. u. White, 447 So. 2d 455 (Fla. 4th D.C.A. 1984).
25 Fla. R. Civ. P. 1.280(b)(3); Equifax Corp. v. Cooper, 380 So. 2d 514 (Fla. 5th D.C.A. 1980).
26 Fla. R. Civ. P. 1.280(b)(3). See also Zaban u. McCombs, 568 So. 2d 87 (Fla. 1st D.C.A. 1990); Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d D.C.A. 1985); Proctor & Gamble Company v. Swilley, 462 So . 2d 1188 (Fla. 1st D.C.A. 1985); Winn-Dixie Stores, Inc. v. Gonyea, 455 So. 2d 1342 (Fla. 2d D.C.A. 1984); Cavalere u. Graham, 423 So. 2d 428 (Fla. 5th D.C.A. 1982).
27 Waste Management, Inc. v. Florida Power & Light Co., 571 So. 2d 507 (Fla. 2d D.C.A. 1990); Zaban v. McCombs, 568 So. 2d 87 (Fla. 1st D.C.A. 1990).
28 Id.
29 Id.
30 Ruhland v. Gibeault, 495 So. 2d 1243 (Fla. 5th D.C.A. 1986); State v. Rabin, 495 So. 2d 257 (Fla. 3d D.C.A. 1986); Alachua General Hosp., Inc. v. Zimmer U.S.A., Inc., 403 So. 2d 1087 (Fla. 1st D.C.A. 1981).
31 State v. Rabin, 495 So. 2d 257, 262-263 (Fla. 3d D.C.A. 1986).
32 Id.
33 Id.
34 State Farm & Casualty Co. v. Von Hohenberg, 595 So . 2d 303 (Fla. 3d D.C.A. 1992); Dade County School Bd. v. Soler, 534 So . 2d 884 (Fla. 3d D.C.A. 1988); Ruhland v. Gibeault, 495 So. 2d 1243 (Fla. 5th D.C.A. 1986); Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d D.C.A. 1985).
35 Fla. R. Civ. P. 1.280(b)(3); Horne v. K-Mart Corp., 558 So. 2d 1079 (Fla. 4th D.C.A. 1990); Ruhland v. Gibeault, 495 So. 2d 1243 (Fla. 5th D.C.A. 1986); Proctor & Gamble Co. u. Swilley, 462 So. 2d 1188 (Fla. 1st D.C.A. 1985); Winn-Dixie Stores, Inc. v. Gonyea, 455 So. 2d 1342 (Fla. 2d D.C.A. 1984); Winn-Dixie Stores, Inc. v. Nakutis, 435 So. 2d 307 (Fla. 5th D.C.A. 1983).
36 North Broward Hosp. Dist. v. Button, 592 So. 2d 367 (Fla. 4th D.C.A. 1992); State Farm Mut. Auto. Ins. Co. v. LaForet, 591 So . 2d 1143 (Fla. 4th D.C.A. 1992); Proctor & Gamble Co. v. Swilley, 462 So . 2d 1188 (Fla. 1st D.C.A. 1985); Winn-Dixie Stores, Inc. v. Nakutis, 435 So . 2d 307 (Fla. 5th D.C.A. 1983); Speer v. Desrosiers, 361 So . 2d 722 (Fla. 4th D.C.A. 1978).
37 Id.
38 Fla. R. Civ. P. 1.280(b)(3).
39 Old Holdings, LTD v. Taplin, Howard, Shaw & Miller, 584 So . 2d 1128 (Fla. 4th D.C.A. 1991); Mount Sinai Medical Center v. Schulte, 546 So . 2d 37 (Fla. 3d D.C.A 1989).
40 Proctor & Gamble Co. v. Swilley, 462 So . 2d 1188 (Fla. 1st D.C.A. 1985); Transamerica Ins. Co. v. Maze, 318 So . 2d 200 (Fla. 2d D.C.A. 1975).
41 Id.
42 Agri-Business, lnc. v. Bridges, 397 So . 2d 394 (Fla. 1st D.C.A. 1981); Travelers Indem. Co. v. Fields, 262 So . 2d 222 (Fla. 1st D.C.A. 1972); Ford Motor Co. v. Havee, 123 So . 2d 572 (Fla. 3d D.C.A. 1960).
43 Fla. R. Civ. P. 1.280(b)(3). See also Zaban v. McCombs, 568 So . 2d 87 (Fla. 1st D.C.A. 1990); Horne u. K-Mart Corp., 558 So . 2d 1079 (Fla. 4th D.C.A. 1990); Adventist Health System/Sunbelt, Inc. v. Lake, 556 So . 2d 819 (Fla. 5th D.C.A. 1990).
44 Fla. R. Civ. P. 1.2806)(3).
45 Id.
46 Id.
47 Fla. R. Civ. P . 1.2806)(4).
48 Id. See also Peck v. Messina, 523 So . 2d 1154 (Fla. 2d D.C.A. 1988); Mims v. Casademont, 464 So . 2d 643 (Fla. 3d D.C.A. 1985).
49 Fla. R. Civ. P. 1.280(b)(4); Richmond v. American Honda Motor Co., Inc., 571 So. 2d 491 (Fla. 2d D.C.A. 1990); Continental Ins. Co. v. Cole, 467 So . 2d 309 (Fla. 4th D.CA. 1985).
50 Id.
5l Id.
52 Fla. R. Civ. P. 1.280(b)(4); Myron u. Doctors Gen., Ltd., 573 So . 2d 34 (Fla. 4th D.C.A. 1990); Gilmore Trading Corp. v. Lind Elec., Inc., 555 So . 2d 1258 (Fla. 3d D.C.A. 1989); Ruiz v. Brea, 489 So . 2d 1136 (Fla. 3d D.C.A. 1986) (on rehearing).
53 Id.
54 Fla. R. Civ. P. 1.280(b)(4)(B); see also cases cited supra note 52.
55 Fla. Stat. Ch. 119.
56 Fla. Stat. §119.01; Tribune Co. v. Public Records, 493 So . 2d 480 (Fla. 2d D.C.A. 1986).
57 Fla. Stat. §119.011(1). See also Shin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So . 2d 633, 640 (Fla. 1980); Tribune Co. v. Public Records, 493 So . 2d 480, 483 (Fla. 2d D.C.A. 1986).
58 Seminole County u. Wood, 512 So . 2d 1000 (Fla. 5th D.C.A. 1987); Tribune Co. v. Public Records, 493 So . 2d 480, 483 (Fla. 2d D.C.A. 1986).
59 Neu v. Miami Herald Publishing Co. 462 So . 2d 821 (Fla. 1985).
60 State v. Coca-Cola Bottling Co., 582 So. 2d 1 (Fla. 4th D.C.A. 1990).
61 Id.
62 Fla . Stat . §119.07; Seminole County u. Wood, 512 So . 2d 1000 (Fla. 5th D.C.A. 1987); Tribune Co. v. Public Records, 493 So . 2d 480, 483 (Fla. 2d D.C.A. 1986).
63 Fla . Stat . §119.07(3)(n).
64 Id.
65 Fla . Stat . §119.07(3)(n). See also Jordan v. School Bd. of Broward County, 531 So . 2d 976 (Fla. 4th D.C.A. 1988); Ehrhardt , Florida Evidence §502.9 (West 1992).
66 Id.
67 Id.
68 Fla . Stat . §119.07(3)(n). See City of North Miami v. Miami Herald Publishing Co., 468 So. 2d 218 (Fla. 1985); State v. Coca-Cola Bottling Co., 582 So . 2d 1 (Fla. 4th D.C.A. 1990); Seminole County v. Wood, 512 So . 2d 1000 (Fla. 5th D.C.A. 1987).
69 Id.
70 Fla . Stat . §90.507; Visual Scene v. Pilkington Bros., 508 So . 2d 437 (Fla. 3d D.C.A. 1987); St. Paul Fire and Marina Ins. Co. v. Welsh, 501 So. 2d 54 (Fla. 4th D.C.A. 1987); Hamilton v. Hamilton Steel Corp., 409 So . 2d 1111 (Fla. 4th D.C.A. 1982).
71 Fla . Stat . §90.507; Eastern Air Lines, Inc. v. Gellert, 431 So . 2d 329 (Fla. 3d D.C.A. 1983).
72 See Morgan v. Tracy, 604 So . 2d 15 (Fla. 4th D.C.A. 1992).
73 See Florida Power & Light Co. v. Guettler, 589 So . 2d 985 (Fla. 4th D.C.A. 1991).
74 See Morgan v. Tracy, 604 So . 2d 15 (Fla. 4th D.C.A. 1992).
75 Id.
76 Ehrhardt , Florida Evidence §502.9 (West 1992).
77 Id.
78 Id.
79 American Funding, Ltd. v. Hill, 402 So . 2d 1369 (Fla. 1st D.C.A. 1981).
80 Truly Nolen Exterminating, Inc. v. Thomasson, 554 So . 2d 5 (Fla. 3d D.C.A. 1989); Austin v. Barnett Bank of South
Florida, 472 So. 2d 830 (Fla. 4th D.C.A. 1985); Gross v. Security Trust Co., 462 So . 2d 580 (Fla. 4th D.C.A. 1985); Insurance Co. of North America v. Noya, 398 So . 2d 836 (Fla. 5th D.C.A. 1981).
81 Visual Scene, Inc. v. Pilkington Bros., 508 So . 2d 437 (Fla. 3d D.C.A. 1987). See also Barnett Bank Trust Co. v. Compson, 18 Fla. L. Weekly 348 (Fla. 2d D.C.A. 1993).
82 Id.
83 Id.
84 Id.
85 Id.
86 Id.
Thomas D. Sawaya is a circuit judge with the Fifth Judicial Circuit, and has served in both its civil and criminal divisions since 1991. He received a B.A. degree from the University of South Florida in 1974, and a J.D. degree from Stetson University College of Law in 1977. Prior to his present position, Judge Sawaya maintained a private general law practice in Ocala, and was elected Marion County judge from 1987 to 1990.
