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Florida Fifth DCA rules in premises liability case that defendant's incident report protected from production under work product privilege

On August 25, 2017, in Ruby Tuesday, Inc. v. Metalonis, No. 5D17-1158, the Florida Fifth DCA quashed an order by the trial court compelling the defendant in a premises liability case to provide the plaintiff with an incident report that documented the incident at issue. The plaintiff argued that the report was not made in anticipation of litigation and that she had a demonstrated need for the report. Quoting Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446-47 (Fla. 3d DCA 2006), the Fifth DCA stated that the determination of whether an incident report was prepared in anticipation of litigation turns on whether “the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” The incident reporter apparently did not personally foresee the potential claim and did not know the purpose of the company policy requiring the report. The Fifth DCA stated that the subjective intent of the reporter, while potentially relevant, was not dispositive because an objective standard applies. Under the circumstances, which involved at least some evidence that the injury was caused by an object in the defendant’s control that the defendant knew was in defective condition, the Fifth DCA concluded that it was foreseeable that the event might form the basis for a claim.

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