A party may only obtain materials prepared in anticipation of litigation, “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. In this context, the phrase “in anticipation of litigation” has been broadly construed to encompass those “investigative materials if such materials were compiled in response to some event which foreseeably could be made the basis of a claim.”
Avatar Property & Casualty Insurance Company vs. Gladys Mitchell
“[T]he work product doctrine is a creation of the common law, first identified by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), and adopted by the Florida Supreme Court in Atlantic Coast Line R.R. Co. v. Allen, 40 So. 2d 115 (Fla.1949).” Lakeland Reg’l Med. Ctr. 4 v. Neely, 8 So. 3d 1268, 1270 (Fla. 2d DCA 2009).
In Hickman, relying upon the lauded goal of preventing “unwarranted inquiries into the files and mental impressions of an attorney,” our highest court held that work-product is immune from discovery disclosure. 329 U.S. at 510, 67 S. Ct. at 393.
In Florida, the work-product privilege is codified within the Florida Rules of Civil Procedure. Rule 1.280(b)(4) provides a party may only obtain materials prepared in anticipation of litigation, “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.” In this context, the phrase “in anticipation of litigation” has been broadly construed to encompass those “investigative materials if such materials were compiled in response to some event which foreseeably could be made the basis of a claim.” Fireman’s Fund Ins. Co. v. Signorelli, 681 So. 2d 720, 721 (Fla. 2d DCA 1996) (citation omitted).
Further, an attorney’s bare assertions of “need” and “undue hardship” are insufficient to satisfy the rigorous prerequisite to disclosure. Fla. E. Coast Ry. L.L.C. v. Jones, 847 So. 2d 1118, 1119 (Fla. 1st DCA 2003) (citations omitted). Rather, proof of the same must be demonstrated by affidavit or other sworn testimony. Falco v. N. Shore Labs. Corp., 866 So. 2d 1255, 1257 (Fla. 1st DCA 2004) (citation omitted).
Finally, assuming the threshold burden is satisfied, the lower court remains charged with protecting “against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
The adjuster… tasked with investigating whether the claim was subject to coverage. Consequently, the materials challenged constitute work-product. See Fla. Power Corp. v. Dunn, 850 So. 2d 655, 656 (Fla. 2d DCA 2003) (noting photographs taken at accident scene were work-product); State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (finding surveillance photographs “were protected by the work product privilege”) (citations omitted); see also GKK v. Cruz, 251 So. 3d 967, 969 n.3 (Fla. 3d DCA 2018) (“Documents are prepared in ‘anticipation of litigation’ . . . if they were ‘prepared in response to some event which foreseeably could be made the basis of a claim in the future.’”) (citation omitted); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905, 910 (Fla. 3d DCA 2004) (“In the insurance context, a document may be deemed to have been prepared in anticipation of coverage litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced.”).
Prudential Ins. Co. of Am. v. Fla. Dep’t of Ins., 694 So. 2d 772, 774 (Fla. 2d DCA 1997) (holding that since the department failed to show need and inability to obtain information by other means, order requiring disclosure departed from the essential requirements of law); Procter & Gamble Co. v. Swilley, 462 So. 2d 1188, 1194 (Fla. 1st DCA 1985) (“Absent the prescribed showing of Rule 1.280(b)(2), P & G’s work product should not have been ordered produced”). Further, as liability for coverage remains in dispute, the report, housed within the claim file, is irrelevant, hence, not yet “otherwise discoverable,” within the meaning of Florida Rule of Civil Procedure 1.280(b)(4). See Ill. Nat’l Ins. Co. v. Bolen, 997 So. 2d 1194, 1196 (Fla. 5th DCA 2008) (“[A]n insurer’s claims file . . . is not subject to discovery until the insurer’s obligation to provide coverage and benefits is determined.”) (citations omitted); Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So. 2d 250, 251 (Fla. 3d DCA 2002) (“When the issue of insurance coverage is unresolved and at issue in pending court proceedings, a trial court must not order an insurer to produce its claims files.”) (citations omitted); see also Owners Ins. Co. v. Armour, 303 So. 3d 263, 267 (Fla. 2d DCA 2020) (finding a trial court departs form the essential requirements of law by compelling disclosure of an insurer’s claim where the issue of coverage remains in dispute); Homeowners Choice Prop. & Cas. Ins. Co. v. Mahady, 284 So. 3d 582, 583 (Fla. 4th DCA 2019) (granting writ of certiorari as an order requiring disclosure of the insurer’s underwriting and claims file prior to a determination of liability for coverage and damages departed from the essential requirements of law); Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 93 So. 3d 501, 503 (Fla. 3d DCA 2012) (granting a petition for certiorari where order compelled production of work-product documents before coverage was determined); State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So. 2d 633, 637-38 (Fla. 2d DCA 2008) (granting petition for writ of certiorari and quashing the order requiring State Farm to produce its claim file until the issues of liability for coverage and damages were determined); Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347, 1348 (Fla. 5th DCA 1998) (“We therefore hold that the trial court departed from the essential requirements of law . . . in compelling disclosure of the privileged claim file until the remaining coverage issue is resolved.”).
