10 Fla. L. Weekly Supp. 45a
Insurance — Personal injury protection — Discovery — Privilege — Work product — Contents of videotape of compulsory exam made at direction of insured’s attorney in anticipation of litigation is work product until it is determined that video will be used as evidence at trial — Motion to compel denied, but insured shall produce video once she determines to use it as evidence or will be precluded from use at trial
MARIA SUAVITA, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO 01-17451. November 25, 2002. C. Jeffery Arnold, Judge. Counsel: Gregory C. Maaswinkel, Jeffrey M. Byrd, P.A., Orlando, for Plaintiff. Lisa Del Vecchio, Thompson, Goodis, Thompson, Groseclose & Richardson, St. Petersburg, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPEL VIDEO TAPE OF EXAM
THIS CAUSE having come before the Court on Defendant’s Motion to Compel Videotape of a Compulsory Physical Exam on October 11, 2002 at 11:30 a.m. and after hearing arguments and reviewing the Court’s file it is hereby ORDERED and ADJUDGED as follows:
1. The Defendant sought the production of Plaintiff’s Videotape of a Compulsory Exam performed by Dr. Richard Bocco at Defendant’s request on March 12, 2001. The Plaintiff objected to production of the video, contending it was work product.
2. “What constitutes ‘work product’ is incapable of concise definition adequate for all occasions.” Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla. 1970); see also Gardner v. Manor Care of Boca Raton, Inc., 27 Fla. L. Weekly D837(Fla. 4th DCA 2002). Material prepared in anticipation of litigation is work product. However, material prepared where the “mere likelihood of litigation” existed is not work product. See Allstate Indemnity Co. v. Ruiz, 780 So.2d 239 (Fla. 17th Cir. 2001).
3. Florida’s Supreme Court approved the videotaping of compulsory medical examinations. U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). The Supreme Court noted that “Plaintiff’s attorneys are understandably uncomfortable with a swearing contest at trial between an unsophisticated plaintiff and a highly trained professional with years of courtroom experience.” Id. at 702. Videotaping the exam is a way for Plaintiffs to “level the playing field on the credibility issues arising from such examinations.” Id. at 702.
4. This Court finds the March 12, 2001 Videotape is Plaintiff’s work product, made at the direction of Plaintiff’s attorney in anticipation of litigation. See State Farm Fire and Casualty Co. v. Valido, 662 So. 2d 1012 (Fla. 3rd DCA 1995) (finding surveillance photographs and witness statements were protected work product).
5. While the existence of the Videotape is discoverable, the contents of the videotape are work product until it is determined it will be used as substantive or impeachment evidence at trial. See Dodson v. Persell, 390 So.2d 704 (Fla. 1980). Furthermore, the Plaintiff should have the opportunity to depose the Defendant’s expert physician before she may be required to produce the exam Video. See id. at 705. The Court reasons that to rule otherwise would defeat the Plaintiff’s legal strategy.
6. Accordingly, the Defendant’s Motion to Compel Production of the exam Videotape is hereby DENIED. However, the Plaintiff shall produce the Video once she determines to use it at trial for substantive or impeachment evidence. If the Plaintiff does not produce the exam Video upon such determination, she shall be precluded from using it at trial.
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