Northup v. Acken
865 So. 2d 1267, 2004 WL 178589 (2004)
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Rule of Law:
Materials gathered by an attorney, including prior deposition transcripts of an opposing expert witness, lose their work product protection and become discoverable if they are reasonably expected or intended to be used at trial, whether as direct evidence or solely for impeachment purposes.
Facts:
- Leonard Northup filed a medical malpractice action against Dr. Herbert Acken, alleging that Dr. Acken's failure to diagnose a cancerous tumor resulted in the death of Northup's wife.
- Northup submitted a witness and exhibit list to the court, which included Dr. Michael Dillon as an expert witness.
- Attorneys for Dr. Acken gathered deposition testimony Dr. Dillon had previously given in unrelated civil actions.
- Northup served a Request for Production upon Dr. Acken, seeking copies of the deposition testimony transcripts possessed by defense counsel.
- Dr. Acken's attorneys filed an objection to Northup's request, asserting that the requested depositions were exempt from disclosure under the attorney work product doctrine.
- Dr. Acken's counsel specifically stated that he intended to use the prior deposition transcripts to impeach Dr. Dillon during trial but was not required to disclose them until during the trial when they would actually be used.
Procedural Posture:
- Leonard Northup initiated a medical malpractice action against Dr. Herbert Acken in a state trial court.
- Northup filed a motion to compel production of Dr. Dillon's prior deposition transcripts from Dr. Acken.
- The trial court granted Northup's motion and ordered Dr. Acken to produce the requested documents.
- Dr. Acken filed a petition for writ of certiorari with the Second District Court of Appeal, arguing that disclosing the transcripts would invade counsel's work product.
- The Second District Court of Appeal quashed the trial court's order, agreeing with Dr. Acken that the collected depositions were protected work product, but certified conflict with Gardner v. Manor Care of Boca Raton, Inc. (Fourth District Court of Appeal).
- The Supreme Court of Florida granted review due to the certified conflict.
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Issue:
Does the attorney work product doctrine protect from discovery prior deposition transcripts of an expert witness that an opposing counsel has gathered and intends to use solely for impeachment at trial?
Opinions:
Majority - PER CURIAM
No, the attorney work product doctrine does not protect prior deposition transcripts of an expert witness that an opposing counsel has gathered and intends to use solely for impeachment at trial. The Court quashes the decision of the Second District Court of Appeal, reaffirming that materials reasonably expected or intended to be used at trial—whether as direct evidence or solely for witness impeachment—are subject to proper discovery requests and are not protected by the work product privilege in Florida. Citing Hickman v. Taylor, the Court acknowledges the foundational principles of work product protection, which safeguard an attorney's privacy in litigation preparation. However, it emphasizes Florida's strong commitment, established in Surf Drugs, Inc. v. Vermette and Dodson v. Persell, to preventing "surprise, trickery, bluff and legal gymnastics" in litigation. These precedents hold that any work product privilege ceases once materials or testimony are intended for trial use. The Court clarifies that while the collection of depositions could be work product if not intended for trial, the intent to use them at trial for impeachment removes that protection, distinguishing this case from the Second District's reliance on Smith v. Florida Power & Light Co. The Court explicitly disapproves of the Gardner v. Manor Care of Boca Raton, Inc. decision to the extent it required counsel to "cull" through documents, which could reveal strategic mental impressions, unless the documents themselves were intended for trial. The Court concludes that Florida's discovery rules demand disclosure of all materials reasonably expected or intended to be used at trial, without exception for impeachment materials, to allow intelligent evaluation of the case and prevent trial by ambush.
Analysis:
This case significantly reinforces Florida's "anti-ambush" discovery philosophy, making it clear that the intent to use materials at trial, even for impeachment, negates work product protection. It provides explicit guidance that attorneys must disclose impeachment materials they reasonably expect or intend to use, thereby preventing last-minute surprises. The decision highlights a critical distinction between an attorney's mental impressions (which remain protected) and the physical documents themselves, once those documents are earmarked for presentation in court. This ruling promotes broader pre-trial disclosure, encouraging settlement and a fairer trial process, while also setting boundaries on what can be compelled when it delves too deeply into an attorney's strategic thought process (as seen in the disapproval of part of Gardner).
