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Hunt v. Lightfoot

Florida Court of Appeals, First District

February 9, 2018

Marilyn Roseanne Hunt, Petitioner,
James Lightfoot, Respondent.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         Petition for Writ of Certiorari - Original Jurisdiction.

          Dennis P. Dore and Nikki E. Hawkins of Quintairos, Prieto, Wood & Boyer, P.A., Jacksonville, for Petitioner.

          Bryan S. Gowdy and Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville; Joseph V. Camerlengo of Camerlengo & Anderson, P.L., Jacksonville, for Respondent.

          Wetherell, J.

         Marilyn Roseanne Hunt, the defendant below, petitions for a writ of certiorari to review an order compelling production of a surveillance video of Respondent that Hunt does not intend to use at trial. We grant the petition and quash the order for the reasons that follow.


         Respondent, the plaintiff below, served discovery requests on Hunt for copies of "all videos, photographs, reports, invoices, documents and any other item(s) and/or documents pertaining to any and all surveillance performed o[n] Plaintiff." Hunt objected on grounds of attorney work product, but she agreed to produce copies of anything that she intended to use at trial in accordance with the court-mandated exhibit exchange.

         The trial court held a hearing on the objection. At the hearing, Hunt's counsel told the trial court that (1) Respondent had been provided a copy of the 2014 surveillance video that Hunt intended to use at trial, and (2) additional surveillance was conducted in 2016 but Hunt did not intend to use video of that surveillance at trial. Respondent's counsel referred the trial court to Dodson v. Persell, 390 So.2d 704 (Fla. 1980), and argued that although Hunt was not required to disclose the contents of the surveillance that she did not intend to use at trial, she was required to disclose the existence of all surveillance.[1] The trial court overruled Hunt's objection and ordered her to provide the following information about the 2016 surveillance: "the person who took the film, when it was taken, and where it was taken."

         After Hunt provided this information, Respondent filed a motion to compel production of the 2016 surveillance video. In direct contradiction to the position taken by his counsel at the hearing, Respondent argued in the motion to compel that the contents of all of the surveillance must be disclosed because Hunt intended to use a portion of the surveillance at trial. The trial court granted the motion without further hearing and ordered Hunt to produce the 2016 video.[2]

         Hunt timely filed a petition for writ certiorari in this court to review the trial court's order. We expedited consideration of the petition on Respondent's motion, and based on the impending trial date, we issued an unpublished order granting the petition and quashing the challenged order. We now issue this opinion explaining our ruling.


         Certiorari relief is appropriate when an order departs from the essential requirements of the law and causes material injury to the petitioner that cannot be remedied on appeal. See Martin-Johnson v. Savage, 509 So.2d 1097, 1100 (Fla. 1987). Although "not every erroneous discovery order creates certiorari jurisdiction in an appellate court, " id. (emphasis in original), it is appropriate for the appellate court to exercise its certiorari jurisdiction to review an order permitting discovery of material protected by the attorney work-product privilege because the resulting harm cannot be remedied on appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (explaining that "certain kinds of information 'may reasonably cause material injury of an irreparable nature, '" including "cat out of the bag" information such as that "protected by privilege, trade secrets, work product, or involving a confidential informant") (quoting Martin-Johnson, 509 So.2d at 1100).

         It is well-established that surveillance videos and other materials prepared by a party's investigator in anticipation of or in connection with litigation are attorney work product. See Dodson, 390 So.2d at 707. It is also well-established that although the existence of the surveillance must be disclosed upon request whether or not it will be used at trial, the content of the surveillance is discoverable only if it will be used at trial. Id.; see also Huet v. Tromp, 912 So.2d 336, 338 (Fla. 5th DCA 2005) (explaining that "a party may waive the work product privilege ...

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