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 RumbergerKirk, P.A. in Tallahassee, Florida.  He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state.

RumbergerKirk provides litigation and counseling services in a wide range of civil practice areas including product liability, commercial litigation, construction,  real estate, intellectual property litigation, securities litigation , labor and employment law,  bankruptcy, insurance coverage, professional liability and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama. For more information, please visit www.rumberger.com.

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