DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ISAIAH LEON THOMAS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D16-313

[April 27, 2016]

Petition for writ of certiorari to the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Barry M. Cohen, Judge; L.T. Case 

No. 2013CF012962 AMB.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant 

Public Defender, West Palm Beach, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, 

Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Isaiah Thomas seeks certiorari review of a trial court order allowing the 

prosecution to question his fingerprint expert about work he did at the 

request of defense counsel. Thomas asserts work product protection and 

related objections. Certiorari lies. See, e.g., Manuel v. State, 162 So. 3d 

1157, 1158 (Fla. 5th DCA 2015); Kidder v. State, 117 So. 3d 1166, 1169 

(Fla. 2d DCA 2013). We grant the petition and quash the order. 

Thomas was charged with burglary of a dwelling and grand theft. The 

State moved to compel reciprocal discovery, alleging that its primary 

evidence linking Thomas to the burglary was latent fingerprints located 

inside the victim’s residence and that a defense fingerprint expert had 

tested the prints independently. The State sought the results of that 

testing. Thomas objected on work product privilege and related grounds. 

He claimed there was no discoverable material available because there 

were no written reports or statements of any expert to produce for 

inspection, copying, testing, or photographing. As such, he argued Florida 

Rule of Criminal Procedure 3.220(d)(1)(B)(ii) did not apply. Thomas further 
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alleged that no work done by the defense expert was in his “possession or 

control,” as required by this rule. Thomas argued that even if a statement 

or report had been created, it would be work product as it came from a 

non-testifying member of the defense team, as his fingerprint expert was 

a consultant on the defense team recruited to assist in forming a strategy 

to challenge the prosecution’s fingerprint expert witness, not a testifying 

witness. 

The Florida Supreme Court has recognized the confidentiality of the 

work product of a nontestifying expert hired to prepare a defendant for 

trial. See State v. Fitzpatrick, 118 So. 3d 737, 755 n.13 (Fla. 2013). 

Also, the work product doctrine has been recognized and applied in 

criminal cases such as State v. Rabin, 495 So. 2d 257, 261 (Fla. 3d DCA 

1986), and is codified in Fla. R. Crim. P. 3.220(g)(1), which provides:

(g) Matters Not Subject to Disclosure.

(1) Work Product. Disclosure shall not be required of legal 

research or of records, correspondence, reports, or

memoranda to the extent that they contain the opinions, 

theories, or conclusions of the prosecuting or defense attorney 

or members of their legal staffs. 

This rule does not define what constitutes a member of the defense 

attorney’s “legal staff.” Even so, case law in civil cases supports work 

product protection of expert witnesses or consultants who will not be 

testifying at trial. In Healthtrust, Inc.-The Hospital Co. v. Behan, 638 So. 

2d 635 (Fla. 4th DCA 1994), for example, this Court quashed a trial court 

order allowing the deposition of an expert witness who was not designated 

as an expert witness for trial, ruling that work product protected against 

deposition of the expert. Id. at 635.

The fact that the prosecution placed Thomas’s expert consultant on its 

witness list for trial does not eviscerate work product and other protections 

from discovery set forth in rule 3.220. 

Accordingly, the trial court departed from the essential requirements of 

law in allowing the State to contact the defense expert and speak with him 

about the work he performed at the request of defense counsel. 

Petition granted. Order quashed. 

MAY, FORST, and KLINGENSMITH, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.