# Third District Court of Appeal

State of Florida

Opinion filed September 16, 2015

. Not final until disposition of timely filed motion for rehearing.

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No. 3D14- 3043

Lower Tribunal No. 13- 2043

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### Seaboard Marine Ltd.,

Petitioner,

vs.



### Farconelly Clark,

Repondent.

A Petition for Writ of Certiorari from the Circuit Court for Miami-Dade

County, Lisa S. Walsh, Judge.

Blanck and Cooper, P.A., and Robert W. Blanck and Jonathan Hernandez,

for petitioner.

Cassidy and Black, P.A., and Michael C. Black and Kate S. Goodsell, for

respondent.

Before WELLS, ROTHENBERG and SCALES, JJ.

SCALES, J.Petitioner Seaboard Marine Ltd., the defendant below, seeks

certiorari review of an order of the trial court compelling Seaboard to disclose to

Respondent Farconelly Clark, the plaintiff below, certain work-product

photographs that were developed by Seaboard’s attorneys. We grant certiorari

relief, and quash the trial court’s order, because Clark failed to exercise the due

diligence required as a prerequisite for obtaining materials protected by

Florida's work-product privilege.

I. Facts

In February of 2012, Clark, an employee of a stevedoring company, was

injured while working at Seaboard’s terminal at the Port of Miami. Seaboard

operates the terminal, which it leases from Miami-Dade County. During the

loading process of cargo containers onto ships, a top loader operated by another

employee of the stevedoring company, ran over Clark and crushed his legs, which

were later amputated.

Clark sued Seaboard and the County, alleging that noise and congestion in

the terminal, combined with alleged inadquate lighting and disorganized storage of

containers, created a dangerous work environment.

Immediately following the accident, attorneys for Seaboard and other

Seaboard representatives, took ninety-one post-accident photographs of the area in

which the accident occurred. In addition to these ninety-one photographs, Seaboard

2preserved approximately ninety minutes of surveillance footage of the terminal

from the night of the accident. This footage was taken from a camera stationed

approximately one hundred feet over the location of the accident. The surveillance

footage depicts the location of the containers within the terminal, the terminal

layout, the top loaders working in the accident area, as well as a somewhat distant

view of the accident itself.

The surveillance footage was turned over to Clark’s counsel before Clark

brought his action against Seaboard and the County. Seaboard declined to provide

Clark with the ninety-one post-accident photographs, asserting a work-product

privilege and an attorney-client privilege.

On January 18, 2013, Clark filed the instant lawsuit. In a request for

production dated April 2, 2013, Clark sought the ninety-one photographs, to which

Seaboard objected. Seaboard filed the appropriate privilege log pursuant to rule

1.280(b)(6) of the Florida Rules of Civil Procedure.

Clark then filed a motion to compel the production of the photographs.

Seaboard responded and provided the trial court with the photographs for an in

camera inspection. On November 7, 2014, the trial court heard Clark’s motion to

compel. The trial court entered an order granting Clark’s motion to compel,

finding that the photographs are relevant to the issues in the lawsuit, and that Clark

has no other means of obtaining the photographs.

3At the time this motion was heard by the trial court, no witnesses had been

deposed. Further, Clark presented no evidence at the hearing indicating that Clark

had attempted to obtain any post-accident photographs taken by either the County

or Clark’s employer.

Seaboard timely sought certiorari review of the trial court’s order.

II. Analysis

A writ of certiorari is the proper method to review trial court orders

compelling production of privileged discovery that is otherwise protected as work

product; compelling such production presents the potential of a departure from the

essential requirements of law, which would cause material harm for which there is

no adequate remedy on final appeal. Allstate Ins. Co. v. Langston

, 655 So. 2d 91,

94 (Fla. 1995).

Rule 1.280(b)(4) of the Florida Rules of Civil Procedure sets forth

requirements that must be met by a party seeking the disclosoure of materials

protected by Florida’s work product doctrine. In relevant part, this rule reads:

[A] party may obtain discovery of documents and tangible things

otherwise discoverable

. . . and prepared in anticipation of litigation or

for trial by or for another party or by or for that party’s representative,

including that party’s attorney

. . . , only upon a showing that the party

seeking discovery has need of the materials in the preparation of the

case and is unable without undue hardship to obtain the substantial

equivalent of the materials by other means.

4Fla. R. Civ. P. 1.280(b)(4).

Therefore, the party requesting such privileged materials has a considerable

burden to show that the party has both a significant need and an undue hardship in

obtaining a substantial equivalent. Metric Eng’g, Inc. v. Small

, 861 So. 2d 1248,

1250 (Fla. 1st DCA 2003); CSX Transp., Inc. v. Carpenter

, 725 So. 2d 434, 435

(Fla. 2d DCA 1999).

In this case, the record is devoid of any efforts by Clark to obtain

substantially equivalent materials to the privileged, post-accident photographs

taken by Seaboard’s counsel. No depositions of witnesses were taken; no attempts

to obtain other, non-privileged photographs were undertaken.

No doubt the photographs are relevant; they might be highly probative to the

critical issues in the case. Rule 1.280(b)(4), however, establishes a much higher

bar than mere relevancy to obtain such privileged work-product materials

developed by an adversary. A party must first diligently exhaust other means of

obtaining the substantial equivalent. In this case, the record is devoid of evidence

of such diligence.

III. Conclusion

We grant Seaboard’s petition and quash the trial court’s order compelling

Seaboard to produce the ninety-one post-accident photographs.

Petition granted.

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