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Florida Third DCA quashes trial court order which had found that work product privilege as to defendant’s incident report was waived by defendant’s corporate representative’s use of report to refresh recollection in deposition, remands with direction to trial court to conduct in camera review of video deposition

On March 24, 2021, in Onward Living Recovery Community, LLC et al, v. Mormeneo, etc., the Florida Third DCA granted a certiorari petition by the defendant in wrongful death case and quashed a trial court order finding no work product protection in the defendant’s root cause analysis and incident report. The trial court had found that the documents were not privileged and alternatively that the privilege had been waived by the defendant’s corporate representative having used the documents to refresh her recollection at her deposition. The Third DCA stated that the fact that defendant requires as a matter of practice the creation of these records after a “sentinel event” (i.e., a high-profile or serious event) supports the contention that these documents are created in anticipation of litigation, and that work product considerations therefore attach to such records, citing Marshalls of MA, Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016), and Royal Caribbean Cruises, Ltd. v. Doe, 964 So. 2d 713, 718(Fla. 3d DCA 2007). As for the waiver, the Third DCA noted that in both the order and the hearing on the motion for protective order, there was no discussion or finding that the references to the documents were so manifest or pervasive to justify a complete release of the documents instead of a more targeted finding. The Third DCA added that a simple reference to a document would likely be insufficient to waive privilege entirely across the board. On the other hand, multiple, repeated, and sustained references to the documents could potentially waive privilege as to those referenced portions of the report. The Third DCA directed the trial court to conduct an in camera inspection, considering the video deposition of the corporate representative, to determine whether the witness waived privilege by referencing the reports, and if so, determine with specificity the extent of the waiver.

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