Rawe v. Coleman, 47 Fla. L. Weekly D2271 (Fla. 2d DCA Nov. 9, 2022)

Work product privilege is waived where a party inadvertently produced incident report in discovery and delayed in asserting work product privilege.

This case stems from an automobile accident, where the defendant driver was working at the time of the accident and both he and his employer were named in the case. The defendants first objected to production of the internal incident report referred to as “Root Cause Analysis” (Analysis) based on work product privilege. However, the defendants later amended their privilege log to instead claim the “Accident Report Privilege,” based on Florida Statute 316.066(4), and they produced the document contemporaneously while preserving its objection. 

The Second District Court of Appeal found the trial court erred in disallowing plaintiff’s counsel from impeaching an employee of the defendant with the Analysis. The Accident Report Privilege did not apply here as the Analysis report did not directly mention or quote the police crash report. Further, any work product privilege was waived when the defendants amended their privilege log to abandon their work product privilege and then produced the document. 

The practical implications of this decision are that it is extremely important to timely and properly claim work product privilege and to not inadvertently disclose documents that you are claiming are privileged, or the privilege will be waived.

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