          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3938
                  _____________________________

MARILYN ROSEANNE HUNT,

    Petitioner,

    v.

JAMES LIGHTFOOT,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari – Original Jurisdiction.

                         February 9, 2018


WETHERELL, J.

    Marilyn Roseanne Hunt, the defendant below, petitions for a
writ of certiorari to review an order compelling production of a
surveillance video of Respondent that Hunt does not intend to
use at trial. We grant the petition and quash the order for the
reasons that follow.

                                  I

     Respondent, the plaintiff below, served discovery requests on
Hunt for copies of “all videos, photographs, reports, invoices,
documents and any other item(s) and/or documents pertaining to
any and all surveillance performed o[n] Plaintiff.” Hunt objected
on grounds of attorney work product, but she agreed to produce
copies of anything that she intended to use at trial in accordance
with the court-mandated exhibit exchange.
     The trial court held a hearing on the objection. At the
hearing, Hunt’s counsel told the trial court that (1) Respondent
had been provided a copy of the 2014 surveillance video that
Hunt intended to use at trial, and (2) additional surveillance was
conducted in 2016 but Hunt did not intend to use video of that
surveillance at trial. Respondent’s counsel referred the trial
court to Dodson v. Persell, 390 So. 2d 704 (Fla. 1980), and argued
that although Hunt was not required to disclose the contents of
the surveillance that she did not intend to use at trial, she was
required to disclose the existence of all surveillance. 1 The trial
court overruled Hunt’s objection and ordered her to provide the
following information about the 2016 surveillance: “the person
who took the film, when it was taken, and where it was taken.”



    1   Specifically, counsel for Respondent told the trial court:

        So what we’re talking about is not the contents of
    surveillance, and that’s the big difference here . . . . We
    want to know whether there is [surveillance], what
    there is [surveillance] of, and the dates. And that is all.
    We don’t need to get into the observations or any of that.

         And that’s where [Dodson] becomes relevant,
    because it specifically held that the existence of
    surveillance and photographs is discoverable in every
    instance. The contents are only discoverable if the
    material will be used in evidence, but we don’t want the
    contents. We want to know about the existence.

        And, in this case, especially where they plan on
    using some of it, it has definitely become relevant. . . . .

        THE COURT: I’m sorry. The one that they said
    they’re not going to use –

         [RESPONDENT’S COUNSEL]: We still get to
    know about the existence. We don’t get the contents of
    it, but certainly the existence of it.



                                   2
     After Hunt provided this information, Respondent filed a
motion to compel production of the 2016 surveillance video. In
direct contradiction to the position taken by his counsel at the
hearing, Respondent argued in the motion to compel that the
contents of all of the surveillance must be disclosed because Hunt
intended to use a portion of the surveillance at trial. The trial
court granted the motion without further hearing and ordered
Hunt to produce the 2016 video. 2

     Hunt timely filed a petition for writ certiorari in this court to
review the trial court’s order. We expedited consideration of the
petition on Respondent’s motion, and based on the impending
trial date, we issued an unpublished order granting the petition
and quashing the challenged order. We now issue this opinion
explaining our ruling.

                                  II

     Certiorari relief is appropriate when an order departs from
the essential requirements of the law and causes material injury
to the petitioner that cannot be remedied on appeal. See Martin-
Johnson v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987). Although
“not every erroneous discovery order creates certiorari jurisdiction
in an appellate court,” id. (emphasis in original), it is appropriate
for the appellate court to exercise its certiorari jurisdiction to
review an order permitting discovery of material protected by the
attorney work-product privilege because the resulting harm
cannot be remedied on appeal. See Allstate Ins. Co. v. Langston,
655 So. 2d 91, 94 (Fla. 1995) (explaining that “certain kinds of
information ‘may reasonably cause material injury of an
irreparable nature,’” including “cat out of the bag” information
such as that “protected by privilege, trade secrets, work product,
or involving a confidential informant”) (quoting Martin–Johnson,
509 So. 2d at 1100).



    2  The order also required Hunt to disclose the amounts paid
to the company that performed the 2016 surveillance, but
Respondent represented in his response to the petition for writ of
certiorari that he is no longer seeking this financial information.

                                  3
     It is well-established that surveillance videos and other
materials prepared by a party’s investigator in anticipation of or
in connection with litigation are attorney work product. See
Dodson, 390 So. 2d at 707. It is also well-established that
although the existence of the surveillance must be disclosed upon
request whether or not it will be used at trial, the content of the
surveillance is discoverable only if it will be used at trial. Id.; see
also Huet v. Tromp, 912 So. 2d 336, 338 (Fla. 5th DCA 2005)
(explaining that “a party may waive the work product privilege
with respect to matters covered by an investigator’s anticipated
testimony when a party elects to present the investigator as a
witness”).

     Here, it is undisputed that Hunt does not intend to use the
2016 surveillance video at trial. Thus, the content of the video is
not discoverable absent a showing of extraordinary
circumstances. See Huet, 912 So. 2d at 340-41 (quoting Dodson,
390 So. 2d at 707-08, and Florida Rule of Civil Procedure
1.280(b)(4)(B)). Respondent made no such showing, nor did he
even attempt to do so below. 3 Accordingly, the trial court
departed from the essential requirements of law in ordering
production of the 2016 video.

    We have not overlooked Respondent’s argument that because
Hunt intends to use the 2014 surveillance video at trial, the 2016
video must also be produced in discovery. However, under the


    3  Respondent contends that he was only required to show
that he “has a need of the materials in the preparation of his
case” and “is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.” But,
even if that standard applied, Respondent failed to meet it
because his claimed need for the 2016 video was to show that the
2014 video represented only a snapshot in time and that it did
not necessarily represent his condition at other times not
depicted on the video. This self-evident point can be made
through cross-examination of the witness through which the 2014
video is offered and the testimony of Respondent or other
witnesses who have first-hand knowledge of his condition at
points not depicted in the video.

                                  4
circumstances of this case, we do not find this argument—or the
federal cases 4 on which it is based—persuasive because the
videos at issue in this case do not depict a continuous period of
surveillance such that principles of fairness and completeness
require the production of the later video in conjunction with the
earlier video. Rather, the videos involve entirely separate periods
of surveillance that were two years apart and were conducted by
different companies.

     Moreover, taken to its logical end, Respondent’s argument is
tantamount to saying that all attorney work product on a
particular subject is discoverable if any evidence on that subject
is presented at trial. If that were correct, then if an attorney
consulted with an expert on a particular issue in preparing for
trial but elected to use a different expert on the issue at trial,
then the opposing party would have right to discover the facts
known to both experts. However, that proposition is inconsistent
with the distinction in the Florida Rules of Civil Procedure
between testifying experts and consulting experts, see Fla. R. Civ.
P. 1.280(b)(5)(A)-(B), and it also finds no support in Dodson,
wherein the Court emphasized that “one party is not entitled to

    4    See, e.g., Hairston v. ED Nelson Transport, 2015 WL
12843869 (M.D. Fla. 2015); Roa v. Tetrick, 2014 WL 695961 (S.D.
Ohio 2014); Papadakis v. CSX Transp., Inc., 233 F.R.D. 227 (D
Mass. 2006); Smith v. Diamond Offshore Drilling, Inc., 168
F.R.D. 582 (S.D. Tex. 1996). All of the cases appear to involve a
single, continuous period of surveillance, not multiple periods of
surveillance as in this case. Indeed, the Hairston case on which
Respondent most heavily relies for the proposition that all
surveillance evidence must be produced even when only a portion
will be used at trial distinguishes Angelucci v. Gov’t Employees
Ins. Co., 2011 WL 4809146 (M.D. Fla. 2011), in which the court
denied a motion to compel production of a 2011 surveillance video
that the defendant did not intend to use at the retrial in the case
even though a 2009 surveillance video had been produced and
used at the initial trial. See Hairston, 2015 WL 12843869, at *2
(distinguishing Angelucci because “in that case there was a two-
year gap and an intervening trial between the first and second
surveillance”). This case is more like Angelucci than Hairston
and the other federal cases cited by Respondent.
                                5
prepare his case through the investigative work product of his
adversary where the same or similar information is available
through ordinary investigative techniques and discovery
procedures.” 390 So. 2d at 708.

     That said, we recognize that in Northup v. Acken, 865 So. 2d
1267 (Fla. 2004), the Court held that a defendant whose attorney
had gathered depositions previously given by one of the plaintiff’s
experts in unrelated cases was required to produce all of the
depositions in discovery where he intended to use certain
unspecified portions of the depositions to impeach the witness at
trial. However, Respondent’s reliance on that case is misplaced
because in Northup, the defendant refused to produce any of the
depositions that he might use for impeachment whereas, in this
case, Hunt produced the only video that he intends to use at trial.
Thus, while Northup stands for the proposition that a party must
disclose materials—including attorney work product—that the
party may use at trial, id., at 1272, it does not require disclosure
of attorney work product (such as the 2016 surveillance video in
this case) that the party unequivocally does not intend to use at
trial.

                                III

     In sum, because the trial court departed from the essential
requirements of law in ordering Hunt to produce the 2016
surveillance video that is protected by the attorney work-product
privilege thereby causing material injury that cannot be
remedied on appeal, we grant Hunt’s petition for writ of certiorari
and quash the order compelling production of the 2016 video and
the financial information related to that video.

    PETITION GRANTED; ORDER QUASHED.

RAY and M.K. THOMAS, JJ., concur.




                                 6
               _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
              _____________________________


Dennis P. Dore and Nikki E. Hawkins of Quintairos, Prieto,
Wood & Boyer, P.A., Jacksonville, for Petitioner.

Bryan S. Gowdy and Rebecca Bowen Creed of Creed & Gowdy,
P.A., Jacksonville; Joseph V. Camerlengo of Camerlengo &
Anderson, P.L., Jacksonville, for Respondent.




                            7
