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Florida Fifth DCA rules that notes brought by plaintiff to deposition but not used to refresh recollection during deposition were not discoverable under Fla. Stat. § 90.613

On January 21, 2022, in Cowan v. Gray, No. 5D21-1557, the Florida Fifth DCA quashed a trial court order which had compelled motor vehicle negligence plaintiffs to produce handwritten notes they made in preparation for their depositions. The Fifth DCA noted that while the plaintiffs had brought the notes to their depositions, they had not used the notes to refresh their recollection while testifying and therefore production was not required under Fla. Stat. § 90.613, which allows for the production of writings used by a witness “to refresh memory while testifying . . . .” The defendant argued that § 90.613 gives trial courts discretionary authority to order the production of notes used to refresh an adverse party’s recollection even when they are not testifying, citing Merlin v. Boca Raton Cmty. Hosp., 479 So. 2d 236, 239 (Fla. 4th DCA 1985), but the Fifth DCA concluded that there is no way to reconcile this contention with § 90.613’s plain text, a point which the Fifth DCA pointed out that the Fourth DCA had subsequently conceded in Proskauer Rose LLP v. Boca Airport, Inc., 987 So. 2d 116, 118 (Fla. 4th DCA 2008). The Fifth DCA also concluded that the trial court had erred in rejecting the plaintiffs’ work product claims regarding the documents, finding that that the plaintiffs had prepared their notes in preparation for the depositions, and distinguishing this from the situation presented in Watkins v. Wilkinson, 724 So. 2d 717 (Fla. 5th DCA 1999), in which the plaintiff had prepared notes for her own information rather than in anticipation of litigation.