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EXPERTS AND THE WORK PRODUCT PRIVILEGE

A recent decision from Florida's Third District Court of Appeal that addressed the scope of experts and the work product privilege could have an effect on personal injury litigation.

Fla. R. Civ. P. 1.280(b)(3) defines work product as any "documents and other tangible things … prepared in the anticipation of litigation. The Florida Rules of Civil Procedure were developed based on the Federal law that provided statements of witnesses obtained by an attorney prior to trial were privileged and thus protected from discovery. See Hickman v. Taylor, 329 U.S. 495 S.Ct. (1947). The basis of the law was rooted on the concept that to allow attorney work product to be exposed would be contrary to the public policy underlying the orderly and just prosecution and defense of claims.

In a recent decision, the Third District Court of Appeal of Florida clarified how far the privilege goes. In Rocca v. Rones, So.3d, 38 FLW D2378a (Fla. 3d DCA 11-13-2013) the Third DCA quashed orders that would have required an expert to disclose work product after the expert was dropped from the witness list. The defense seeking the records argued that because the expert was listed as a witness said records were not protected.

The Third DCA disagreed and ruled that because the expert was employed for litigation but would not be called as a witness, the facts known or opinions held by him constituted work product that was discoverable only on a showing of exceptional circumstances. Thus even though an expert is listed as witness, if the lawyer removes the expert as the witness, he or she may still maintain the work product privilege for any and all of their records.

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