National SEC. Fire & Cas. Co. v. Dunn
751 So. 2d 777, 2000 WL 263184 (2000)
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Rule of Law:
A party seeking discovery of documents protected by the work product privilege must demonstrate both a compelling need for the materials and an inability to obtain their substantial equivalent without undue hardship, and an attorney's affidavit asserting need without showing diligent efforts to seek equivalent information is insufficient to overcome the privilege.
Facts:
- Jeffrey Dunn filed a bad faith claim against National Security Fire & Casualty Company.
- Dunn identified 38 other bad faith claims against National and sought to inspect their files to prove a general business practice of bad faith.
- Dunn's counsel submitted an affidavit asserting the relevance of the claims files to his bad faith claim and his inability to obtain the information elsewhere without undue hardship.
- The affidavit specified that the other claimants resided in 38 cities across 8 states and that their addresses were 8 to 11 years old.
- Dunn sought to depose two of National's employees.
- Dunn was pursuing a claim for punitive damages against National.
Procedural Posture:
- Jeffrey Dunn initiated an action against National Security Fire & Casualty Company in the circuit court (trial court) alleging bad faith.
- The circuit court ordered National to allow Dunn to inspect files regarding 38 bad faith claims.
- National sought certiorari review, and the District Court of Appeal of Florida, Fifth District, in National Security Fire & Casualty Co. v. Dunn, 705 So.2d 605 ('Dunn V'), quashed the circuit court's order, holding the files were protected work product and Dunn failed to show need or undue hardship.
- Following Dunn V, the trial court again ordered discovery of the claims files based on an affidavit from Dunn's counsel.
- The trial court also issued an order allowing Dunn to take depositions of two National employees.
- The trial court denied National's motion to compel Dunn to post a further discovery bond.
- National Security Fire & Casualty Company (Petitioner) subsequently filed the current petition for writ of certiorari with the District Court of Appeal of Florida, Fifth District, seeking review of these three discovery orders.
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Issue:
Does a trial court depart from the essential requirements of law by compelling discovery of claims files, allowing depositions, and denying a discovery bond, when the requesting party has not sufficiently demonstrated an inability to obtain equivalent information for work product, there is no operative complaint, and financial harm from discovery costs is not irreparable?
Opinions:
Majority - Thompson, Judge
Yes, the trial court departed from the essential requirements of law by compelling discovery of the claims files. The court reiterated its holding from a previous appeal (Dunn V) that these files were protected by the work product privilege, and Dunn had failed to demonstrate an inability to obtain the substantial equivalent information without undue hardship. Although Dunn filed an affidavit asserting need, it focused solely on need and ignored the requirement to show diligent efforts to obtain equivalent information without undue hardship. The affidavit did not allege any steps taken by Dunn since Dunn V to find alternative evidence, such as contacting claimants, reviewing other bad faith lawsuits, or checking Department of Insurance notices. Therefore, no change in circumstances justified a different conclusion from Dunn V, and the importance of the work product privilege must not be lightly invaded. No, the trial court did not depart from the essential requirements of law by allowing depositions of National's employees. While acknowledging the problem of discovery without an operative complaint, the court held that the decision to allow depositions prior to the filing of an amended complaint, especially when a complaint has been dismissed with leave to amend, is within the sound discretion of the trial judge. The court noted that guidelines exist for the scope of such discovery, relating to a general business practice of bad faith. No, the trial court did not depart from the essential requirements of law by denying National's motion for a further discovery bond. While Section 624.155(4)(c), Florida Statutes, requires a plaintiff pursuing punitive damages against an insurer to post discovery costs, any harm from denying a further bond beyond the initial $1,500 already posted is purely financial. Financial harm, generally, is not sufficient to justify certiorari review, as it typically does not cause irreparable injury that cannot be remedied on appeal. Therefore, the petition for writ of certiorari is granted as to the production of claims files and denied in all other respects. The trial court is also directed to set a time limit for filing an amended complaint.
Analysis:
This case reinforces the high bar for overcoming the work product privilege in Florida, particularly when seeking discovery of claims files in bad faith litigation against insurers. It clarifies that a party must not only assert a 'need' but also actively demonstrate 'undue hardship' in obtaining equivalent information through diligent efforts, emphasizing that the burden is not satisfied by merely pointing to the difficulty of gathering old or geographically dispersed information. The decision also provides guidance on the discretion of trial courts regarding discovery when a complaint has been dismissed with leave to amend and reiterates that purely financial harm from discovery costs is insufficient for certiorari review.
