Despite objections to production of photographs and correct statements of law protecting them, Fifth DCA holds appellate arguments were unpreserved.

In this slip-and-fall action, the defendant, a property management company, filed a privilege log asserting a work-product privilege over two photographs purporting to depict the scene of the plaintiff’s incident. The defendant also asserted its work-product privilege objection to questions about these photographs during the deposition of the defendant’s corporate representative, after which the plaintiff filed a motion to compel production of the photographs. At the motion to compel hearing, the defendant argued only that the plaintiff had the substantial equivalent of the requested photographs and, accordingly, the work-product privilege did not apply. The trial court granted the plaintiff’s motion to compel and ordered production of the two photographs, leading to the defendant’s petition for writ of certiorari to the Fifth District Court of Appeal. The appellate court ultimately ruled that the defendant failed to properly preserve those arguments for appellate review by not making them at the trial court level. This was despite the fact that the defendant correctly stating the applicable law in its petition—which arguably supported the defendant’s position that the plaintiff failed to meet its evidentiary burden to overcome the work product privilege.

_{Case Law Alerts, 1st Quarter, January 2019}

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