BUCKEYE PLUMBING INC v. TODD (2022)

Petition denied.

I would grant the petition and quash the order requiring the defendant to produce a surveillance tape to the plaintiff which was protected by the work product privilege. The trial court ordered production of the tape because it found that the defense had waived its work product privilege by disclosing the tape to their retained medical expert. In that ruling, the trial court departed from the essential requirements of law. “The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party's own expert.” Mullins v. Tompkins, 15 So. 3d 798, 801 (Fla. 1st DCA 2009); see also Smith v. State, 873 So. 2d 585, 591 (Fla. 3d DCA 2004) (“We also hold that the act of disclosing [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege.”). Further, the expert testified that he did not rely on the surveillance tape in his opinions; therefore, production of the tape would not be required pursuant to Florida Rule of Civil Procedure 1.280(b)(5).

Per Curiam.

Ciklin and Forst, JJ., concur. Warner, J., dissents with opinion.