Florida’s Third District Court of Appeal has held in Onward Living Recovery Community, LLC v. Mormeneo that a rehabilitation program’s root cause analysis and incident report were protected work product, quashing a trial court order requiring their production.  The March 24, 2021 decision rejected the trial court’s finding that because the records were prepared in the rehabilitation program’s ordinary course of business they could not also be privileged work product.  The appellate court held that both can be true, most especially when there is a requirement to create such records after a serious event, which “supports the contention that these documents are created in anticipation of litigation.”

The court also held that there was no waiver of the work product privilege simply because the rehabilitation program’s corporate representative relied on the reports to refresh her recollection at her deposition.  A simple reference would not constitute waiver, while multiple, repeated, and sustained references could potentially waive the privilege, requiring a detailed analysis from the trial court.

This new decision accords with the court’s established prior holdings finding that incident reports and other similar investigative reports are generally protected work product.

Written by Gavrila Brotz