Here’s something you’ve probably experienced in civil litigation. You serve standard interrogatories on the opposing party. For instance:
- State the facts upon which you rely for each affirmative defense in your answer.
In response, your opposing party asserts the work product privilege, perhaps even pointing out that some of the facts responsive to the interrogatories are contained within an “incident report” (or some similar document prepared in anticipation of litigation). As Florida courts have made clear, such a position reflects a basic misunderstanding of the work product privilege.
The work product privilege shields documents that memorialize or reflect attorney strategies and legal impressions from discovery. But neither privilege allows a party to shield relevant facts from discovery. As the Fourth DCA explained in Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887, 894 (Fla. 4th DCA 2006), “[b]ecause the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product.” So, “the work product concept furnishes no shield against discovery, by interrogatories or by deposition, of the facts that the adverse party’s lawyer has learned, or the persons from whom he has learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery.” Id.
The case of Walt Disney Parks & Resorts U.S., Inc. v. Alesi, 351 So. 3d 642, 645 (Fla. 5th DCA 2022), where the Fifth DCA affirmed a trial court order compelling defendant to disclose facts referenced in two incident reports and a recorded statement, is instructive.
There, a plaintiff sued Disney, alleging that “a Disney employee injured her by striking her with a garbage cart.” Id. at 643. The plaintiff “propounded an interrogatory that asked Disney to describe how the incident happened, including all actions taken by its employees and agents to prevent it.” Id. Although Disney identified two responsive incident reports as well as a recorded statement provided by the Disney employee, it claimed work product over the contents of those materials. The Fifth DCA ruled that Disney had to disclose the underlying facts within the incident reports and recorded statement. The court wrote: “[Plaintiff] can discover the underlying material, non-privileged information contained in the reports and recorded statement via interrogatory because this information is not work product. If, however, the reports and recorded statement contain any of Disney’s opinions regarding the incident, these opinions would remain protected. For example, an opinion of why the accident occurred and who was responsible would not constitute discoverable underlying facts and would remain protected work product.” Id. at 645–46.
In short, don’t let an opposing party use the work product privilege to conceal facts from you. No matter where they’re memorialized, such facts aren’t protected by the work product privilege.