9 Fla. L. Weekly Supp. 634c
Insurance — Dispute between medical provider and insurer — Discovery — Work product — Computer notes of adjuster — Waiver of privilege — Plaintiff is entitled to computer notes made by original adjuster up until the date new adjuster took over file — Insurer waived any work product privilege as to these notes by producing an adjuster the insurer knew would be relying upon those notes at his deposition — Further, insurer failed to produce any evidence which would reflect that these documents were work product or were generated in anticipation of litigation
DR. STEVEN BROWN, as assignee for Jerome Johnson, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-025206 (54). July 3, 2002. Zebedee W. Wright, Judge. Counsel: Cris Boyar, for Plaintiff. Matt Helman, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
THIS CAUSE having come before the Court on June 26, 2002 and the Court having reviewed the pleadings, heard argument of counsel, and being otherwise duly advised in the premises, the Court finds as follows:
The Plaintiff medical provider filed suit against the Defendant Insurance company for PIP benefits. The Plaintiff filed a Motion to compel the diary or log notes of adjuster Nora Santana who was the original adjuster on the file. The request for these records became an issue on April 23, 2002 at the deposition of Steven Tabor who, according to his deposition, is a litigation apprentice for the Defendant. Mr. Tabor was voluntarily produced by the Defendant as the person to be deposed on this case.
At Mr. Tabor’s deposition he stated: he became familiar with this file after the lawsuit was filed; he has never spoken to the original adjuster, Ms. Santana, about this file; that Ms. Santana created computer notes about this case; that he reviewed those notes in preparation for his deposition; that those notes helped him in providing his deposition testimony; that he has no first hand knowledge about this case until it was assigned to him; and that all of his testimony about what happened in this case from the time before he was assigned the file to the time the file was assigned to him would be based on the computer notes generated by Ms. Santana.
In a request for production and at the deposition of Mr. Tabor the Plaintiff requested these computer notes and the Defendant objected alleging the computer notes of Ms. Santana were work product. The Defendant has filed this motion in order to obtain all of the computer notes generated prior to the time Steven Tabor was assigned the file by the Defendant. The Plaintiff is not seeking any notes that were generated after the suit was filed.
The Plaintiff claims it is entitled to these notes for two (2) reasons.
Waiver
First, the Plaintiff argues it has a right to see and examine any documents used by a witness in preparing for and providing deposition testimony. The Plaintiff claims it needs to see and examine these documents in order to be in a position to cross examine the witness. Additionally, the Plaintiff argues the Defendant has waived any work product privilege by voluntarily producing a witness it knew was going to rely upon and use computer notes in giving sworn testimony at the deposition scheduled by the Plaintiff. The Defendant could have produced Ms. Santana who is still employed by the Defendant. In support of the Plaintiff’s position the Plaintiff relies on the case of Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974) where the Court held that:
It is fundamental that the opposite party in both criminal and civil cases has a right to see and examine the memorandum used by a witness so as to be in a position to cross-examine the witness in regard to the testimony given on direct examination.
In Soler the Court held the Plaintiff waived the right to assert the accident report privileged by allowing a Police Officer to testifyfrom his notes and records and, as a result, the Court allowed the Defendant access to the officer’s notes and records.
Work Product
Second, the Plaintiff argues these computer notes are not work product since they were generated before a lawsuit was filed or even anticipated and could not be deemed work product. In support thereof the Plaintiff relies on the case of Charles Henry v. Progressive Express Insurance Co., 9 Fla. L. Weekly Supp. 139 (Fla. Orange Cty Court 2001) where the Court compelled the production of the adjuster’s notes up until the time the insurer initiated the adversarial process by informing the insured that it would no longer honor payment of medical bills as a result of the insured’s failure to attend a compulsory medical exam. Additionally, the Court found the computer entry notes after that date in no way relate to contemplated litigation. The Court ordered the release of the PIP adjuster’s computer records up to the point of the insured’s filing of a breach of contract suit. The Plaintiff also relies on the case Oscar v. Progressive Express Insurance Co., 9 Fla. L. Weekly Supp. 324 (Fla. Polk Cty Court 2001).
This Court finds the Plaintiff is entitled to the computer notes up until November 14, 2001 which is the last day Ms. Santana created the notes before Mr. Tabor took over the file. The Court finds the Defendant has waived any work product privilege as to these notes by producing an adjuster it knew would by relying upon those notes at his deposition. The Court also finds the Defendant has failed to produce any evidence which would reflect these documents are work product or were generated in anticipation of litigation.
Accordingly, the Court grants the Plaintiff’s Motion and the Defendant is ordered to produce the computer notes up the time the lawsuit was filed within 15 days from June 26, 2002.
IT IS ORDERED AND ADJUDGED the Plaintiff’s Motion is granted for the reasons stated above.
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