ONWARD LIVING RECOVERY COMMUNITY, LLC v. CARLOS MORMENEO AND MONICA TOBON, etc.

• Court: District Court of Appeal of Florida
• Decided: March 24, 2021
• Docket: 20-1504
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 24, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1504 Lower Tribunal No. 20-11087 ________________

Onward Living Recovery Community, LLC, et al., Petitioners,

vs.

Carlos Mormeneo and Monica Tobon, etc., Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge.

Cole, Scott & Kissane, P.A., and Mary Lou Cuellar-Stilo and Mark D. Tinker (Tampa), for petitioners.

Needle & Ellenberg, P.A., and Andrew L. Ellenberg; The Ferraro Law Firm, P.A., and Mathew D. Gutierrez and Janpaul Portal, for respondents.

Before SCALES, LINDSEY and BOKOR, JJ.

BOKOR, J. Petitioner seeks to quash the trial court’s November 3, 2020 order

finding no work product protection or, alternatively, waiver of such protection

and requiring production of the root cause analysis and incident report

(collectively, the reports). The trial court found that the reports were prepared

in the ordinary course of business and therefore constituted non-privileged,

discoverable business records. Alternatively, the trial court found that even

if work-product protection applied, respondent waived such protection

entirely because of the corporate representative’s use of the records at her

deposition. As discussed below, the documents constitute work product

prepared in anticipation of litigation and the alternative determination of

waiver is unsupported by the record.

A requirement to produce irrelevant material, standing alone, is

insufficient to trigger certiorari relief. See Kobi Karp Architecture & Interior

Design, Inc. v. Charms 63 Nobe, LLC, 166 So. 3d 916, 919 (Fla. 3d DCA

2015). “To obtain a writ of certiorari, the petitioner must establish that the

discovery order was a departure from the essential requirements of law

resulting in a material injury that will affect the remainder of the proceedings

below and the injury cannot be corrected on appeal.” Bank of New York

Mellon v. Figueroa, 299 So. 3d 430, 433 (Fla. 3d DCA 2019) (citing Allstate

Ins. Co. V. Langston, 655 So. 2d 91, 94-95)). Petitioner meets this standard

2 of irreparable harm as the production of work product protected materials

constitutes impermissible “cat out of the bag” production incapable of

correction on appeal. Langston, 665 So. 2d at 94.

Accordingly, to constitute “cat out of the bag” documents, we first

ensure that the reports at issue qualify as work product. Reports prepared

after a tragic incident such as the death underlying this litigation may be

prepared in the ordinary course of business yet also constitute records

prepared in anticipation of litigation. The fact that petitioner 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. See Marshalls of MA, Inc. v. Witter,

186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal

investigative reports, and information gathered by employees to be used to

defend against potential litigation are generally protected by the work-

product privilege.”). Therefore, work product considerations attach to such

records. See Royal Caribbean Cruises, Ltd. v. Doe, 964 So. 2d 713, 718

(Fla. 3d DCA 2007).

Next, the analysis of the trial court’s alternative basis for production,

waiver, starts with the premise that work product protection would otherwise

apply to the records. Respondent contends that even assuming work product

3 protection would otherwise apply, petitioner waived such protection for two

reasons.

First, respondent contends waiver of the work product protection

because the corporate representative relied on one or both reports to refresh

her recollection or answer questions at her deposition. The trial court found

as an alternative ground that, assuming any sort of protection attached

initially, such reference to the records resulted in complete waiver. The trial

court’s conclusory determination provides limited context to support such

broad waiver of privilege. Specifically, as 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. 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. Accordingly, the trial court shall

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.

4 Second, respondent argues that the reports should be produced

notwithstanding work product protection because of the relevance and need

for the documents and the undue hardship in obtaining the underlying

information from other sources. See generally Fla. R. Civ. P. 1.280(b)(4); see

also, S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994).

It does not appear the trial court conducted an evidentiary hearing on this

basis due to its deciding the issue on other grounds. To the extent the trial

court on remand determines some or all of the records are protected from

discovery, the trial court shall conduct an evidentiary hearing to determine

whether the incident report at issue contains information that would present

an undue hardship for respondents to otherwise obtain. See id.; see also

Marshalls of MA, Inc., 186 So. 3d at 573.

Petition granted; order quashed.