In February 2015, the Fourth District Court of Appeal held that
the Broward County Circuit Court deviated from the essential
requirements of the law when it ordered the production of a
company's quarterly safety reports during a slip-and-fall
lawsuit. In reversing the trial court's order to produce these
reports containing evidence of prior falls, the court reinforced
the adage that plaintiffs may not make a case from a
defendant's investigation intended to improve safety and manage
risk.
In this case, the plaintiff attempted to obtain incident reports
and quarterly safety reports containing details about prior
falls. The defendant objected to the production of the
documents arguing that the requested documents were protected from
disclosure by the work product doctrine because they contained
photographs, discussions surrounding the incidents and mental
impressions regarding the incidents. The trial court agreed
that the incident reports were not discoverable, but ordered the
production of the safety reports that contained much of the same
information.
In reaching its decision that the safety reports were also
protected from disclosure, the appellate court recognized that
information gathered in anticipation of litigation, including
internal investigations, are protected from disclosure absent a
showing by the plaintiff that she was unable to obtain
substantially equivalent evidence through other means.
Importantly, the court recognized that a lawsuit or claim need not
be filed to invoke the work product protections. Even reports
that are routinely prepared may qualify as work product because
experience has shown all retail stores that people who fall in
their stores try to be compensated for their injuries and that
frivolous claims are sometimes made. If defendants knew their
investigative reports were discoverable, it would defeat the
reasons for preparing them and would discourage a proactive
critical self analysis designed to improve customer safety. A
company's decision to fully investigate incidents and to
memorialize the findings to protect itself against meritless claims
should not, in and of itself, permit the plaintiff to utilize the
fruits of their labors.
This case is important because the court recognized that we live
in a litigious society and that many abuse the ease in which a
lawsuit may be filed. By holding plaintiff's to their
burden, the court ratified a defendant's right to fully
investigate adverse incidents and to document its findings while
minimizing the fear that their efforts to self-regulate will be
used against them. Public and private entities should
continue to thoroughly investigate adverse incidents and document
their findings as part of a comprehensive risk management
program.
David Marsey is a former police officer, investigator and
prosecutor and is an attorney at the law firm of Rumberger, Kirk
& Caldwell, P.A. in Tallahassee, Florida. He defends and
advises corporations, government entities and their employees on
casualty, employment and constitutional issues throughout the
state.
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