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Filing # 140411373 E-Filed 12/15/2021 11:00:02 AM
IN THE CIRCUIT COURT OF THE 15!
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.: 50-2020-CA-009842-XXXX-MB
DIVISION: AA.
OLIVIA CHARNEY,
Plaintiff,
v.
SCOTT LILLEY,
Defendant.
/
PLAINTIFF’S SUPPLEME) LL REQUEST TO PRODUCE
DIRECTED TO DEFENDANT
COMES NOW the Plaintiff, OLIVIA CHARNEY, by and through her undersigned
attomeys, and hereby requests, pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, that
the Defendant, SCOTT LILLEY, produce and permit said Plaintiff to inspect and to copy each of
the following documents:
1. Copies of any deposition transcripts possessed by defense counsel or the insurance
company of any of the Plaintiff's treating physicians. See attached case of Northup v. Acken.
2. Copies of any materials reasonably expected or intended to be used at trial,
including documents intended solely for witness impeachment. See attached case of Northup v.
Acken,
I HEREBY CERTIFY that the foregoing was electronically filed with the Florida Courts
E-Filing Portal and that as a registered participant of the Portal I have effectuated service through
the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on: Jonathan M. Cox, Esquire,
(c@kkcinjurylaw.com; christina@kkcinjurylaw.com) Keller, Keller, Caacuzzo, Cox &
Belluccio, 224 Datura Street, Suite 1205, West Palm Beach, FL 33401 this 15" day of
December, 2021.
'** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 12/15/2021 11:00:02 AM ***SCHULER, HALVORSON, WEISSER,
ZOELLER & OVERBECK, P.A
1615 Forum Place, Suite 4D
West Palm Beach, FL 33401
Tel.: (561) 689-8180
Attomeys for Plaintiffs
jweissser@shw-law.com;
michele@shw-law.com;
rchew@shw-law.com
By: ___/s/ Jason D. Weisser
JASON D. WEISSER
FLA BAR NO.: 1014352004 WL 178589
--- So.2d --
(Cite as: 2004 WL 178589 (Fla.))
NOTICE: THIS OPINION HAS NOT BEEN
RELEASED FOR PUBLICATION IN THE
PERMANENT LAW _ REPORTS. UNTIL
RELEASED, IT IS SUBJECT TO REVISION OR
WITHDRAWAL,
Supreme Court of Florida,
Leonard NORTHUP, Petitioner,
Howard W. ACKEN, MD., P.A., Respondent.
No. SC02-2435.
Jan. 29, 2004.
Background: Doctor petitioned for writ of certiorari
challenging an order of the Circuit Court, Polk
County, Randall G. McDonald, J., compelling the
Production all depositions of medical malpractice
plaintiff's expert witness that were in the custody and
control of doctor's counsel.
Holdings: The District Court of Appeal, Second
District, 827 Si 1070, granted writ, quashed the
order, and certified conflict. On application for
review, the Supreme Court held that:
(1) if attorney work product is intended or expected
for trial use, it is subject to rules of discovery,
disapproving Gardner v. Manor Care of Boca Raton,
Inc., 831 So.2d 676, and
(2) the depositions were not protected by the work
product privilege because doctor's counsel intended
to use portions of them at trial.
So ordered.
Lewis, J., concurred in result only.
LL] Pretrial Procedure 358
307Ak358 Most Cited Cases
All materials reasonably expected or intended to be
used at trial, including documents intended solely for
witness impeachment, are subject to proper discovery
Tequests and are not protected by the work product
privilege; disapproving Gardner v. Manor Care of
Boca Raton, Inc., 831 So.2d 676,
{2} Pretrial Procedure 358
307Ak358 Most Cited Cases
Page |
[2] Pretrial Procedure 744
307Ak744 Most Cited Cases
Litigants must make a simple and discrete decision
prior to entry of a pretrial case management order by
the trial court: an attorney must evaluate whether he
intends to use evidence in his possession for strategy
and trial preparation purposes only, which would
qualify the selection of the particular items as a
Protected product of the thought processes and
mental impressions of an attorney; however, if the
evidence or material is reasonably expected or
intended to be disclosed to the court or jury at trial, it
maust be identified, disclosed, and copies provided to
the adverse party in accordance with trial court's
order and discovery requests of opposing party.
13] Pretrial Procedure 389
307Ak389 Most Cited Cases
Deposition testimony that expert witness for patient's
wife had previously given in unrelated civil actions
were not protected by work product privilege in
medical malpractice suit, where doctor's counsel
intended to use portions of them at trial; work
product privilege could protect the depositions from
discovery only if doctor never expected or intended
to use them for impeachment at trial.
[4] Pretrial Procedure €-35
307AK35 Most Cited Cases
An attorney may not be compelled to disclose the
mental impressions resulting from his or her
investigations, labor, or legal analysis unless the
product of such investigation itself is reasonably
expected or intended to be presented to the court or
before a jury at trial.
Scott M. Whitley of Morgan, Colling and Gilbert,
P.A., Tampa, FL, for Petitioner.
Richard E, Ramsey and Michael R. D'Lugo of
Wicker, Smith, O'Hara, McCoy, Graham & Ford,
P.A., Orlando, FL, for Respondent.
PER CURIAM.
*1 We have for review the decision in Herbert W.
Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla,
2d_DCA_2002), which certified conflict with the
decision in Gardner v. Manor Care of Boca Raton,
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works’
2004 WL 178589
=~ So.2d ---
(Cite as: 2004 WL 178589 (Fla.))
Inc., 831 So.2d 676 (Fla. 4th DCA 2002). We have
jurisdiction, see art. V. § 3(b)(4), Fla. Const., and
quash the decision below.
Facts and Procedural History
The instant discovery dispute arose within an action
for medical malpractice filed by the petitioner,
Leonard Northup, alleging that the respondent, Dr.
Herbert Acken, failed to diagnose a cancerous tumor
which resulted in the death of petitioner's wife. See
Acken, 827 So.2d at 1071. Pursuant to the trial court's
pretrial case management order, the petitioner
submitted a witness and exhibit list to the court,
which included Dr. Michael Dillon as an expert
witness, in November of 2000. See id. In the process
of litigation preparation, the respondent's attorneys
gathered deposition testimony Dr. Dillon had
previously given in unrelated civil actions.
Subsequently, the petitioner served a Request for
Production upon respondent which sought copies of
the deposition testimony transcripts possessed by
defense counsel. See id, The respondent filed an
objection to this request, asserting that the
depositions requested were exempt from disclosure
under the attorney work product doctrine. See id. The
petitioner then moved to compel production,
requesting that the trial court order the respondent to
produce the entirety of the depositions and sworn
statements of Dr. Dillon in the possession of defense
counsel, See id.
Although not in the district court's opinion, the
record reveals that during the hearing on the motion
to compel, it was the specifically stated position of
defense counsel that Dr. Dillon had been deposed in
this case and that the defense intended to impeach
him during trial with the use of the deposition
transcripts defense counsel had previously secured
but refused to disclose, Defense counsel asserted that
he was entitled to, and intended to, use the deposition
transcripts to impeach Dr. Dillon during trial but the
defense was not required to disclose or produce the
transcripts until during the trial when the transcripts
would be actually used. It was defense counsel's
position that the petitioner was not entitled to
information conceming the prior depositions or
copies of the transcripts until after the impeachment
occurred during trial,
Following this hearing on the matter, the trial court
granted the petitioner's motion and ordered the
Tespondent to produce copies of the depositions and
other documents. Thereafter, Dr. Acken filed a
petition for writ of certiorari in the Second District
Page 2
arguing that disclosure of the deposition transcripts
would reveal counsel's mental impressions regarding
the relative importance of various issues at trial as
well as counsel's strategy for trial, and thereby invade
the work product of counsel. Counsel specifically
took the position that he was not required to produce
the depositions even if he used them as impeachment
at trial and specifically attempted to distinguish
Dodson v. Persell, 390 So.2d 704 (Fla.1980).
*2 Dr. Acken relied on Smith v. Florida Power
Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), for me
Proposition that the collected deposition transcripts
were protected from disclosure as attorney work
product, even though the defense intended to use
them at trial for impeachment. The Second District
agreed and quashed the trial court's order, but
certified conflict with Gardner, 831 So.2d at 676,
writing:
The facts of the case at bar may be closer to those
in Gardner than those in Smith because there must
be a “finite” number of depositions that Dr. Dillon
has given in prior cases. However, we question
whether Smith and Gardner can be reconciled. We
adopt the rationale in Smith, and, applying that
rationale here, conclude that the group of Dr.
Dillon's prior depositions that Dr. Acken's counsel
has collected to impeach Dr. Dillon is attorney
work product, which is not subject to disclosure.
To the extent that Gardner would dictate a contrary
result, we certify conflict.
Acken, 827 So.2d at 1072. This Court granted
review on March 20, 2003. See Northup v. Acken,
842 So.2d 845 (Fla.2003) (table).
Analysis
£1] In its 1947 opinion in Hickman v. Taylor, 329
US. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the
United States Supreme Court originated what has
become known as the “attorney work product
privilege." With words which have not lost their
poignancy, the Court concluded:
In performing his various duties, ... it is essential
that a lawyer work with a certain degree of | privacy,
free from unnecessary intrusion by opposing
parties and their counsel. Proper preparation of a
client's case demands that he assemble information,
sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories and plan
his strategy without undue and needless
interference. That is the historical and the
necessary way in which lawyers act within the
framework of our system of jurisprudence to
Promote justice and to protect their clients’
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works>
- 2004 WL 178589
~~ So.2d ---
(Cite as: 2004 WL 178589 (Fla.))
interests. This work is reflected, of course, in
interviews, Statements, memoranda,
correspondence, briefs, mental _ impressions,
personal beliefs, and countless other tangible and
intangible ways--aptly though roughly termed .
the "work product of the lawyer.” Were such
materials open to opposing counsel on mere
demand, much of what is now put down in writing
would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own.
Inefficiency, unfaimess and sharp practices would
inevitably develop in the giving of legal advice and
in the preparation of cases for trial. The effect on
the legal profession would be demoralizing. And
the interests of the clients and the cause of justice
would be poorly served.
dd, at 510-11, 67 S.Ct. 385. In accordance with this
teasoning, the United States Supreme Court
established the "privacy of [an attorney's}
professional activities,” id at 513, 67
foreclosed discovery of materials created by an
attomey in preparation for litigation absent "adequate
reasons to justify production.” /d_at_ $12, 67 S.Ct.
385.
*3 This Court's decision in Surf Drugs, Inc. v.
Vermette, 236 So.2d 108 (Fla.1970), provides the
established bedrock principles applicable in
considering the attorney work product privilege in
Florida._{FN1] In Surf Drugs, this Court addressed
interrogatory questions, but expressed the “broad
balancing considerations involved in the discovery
and d litigation process. This court recognized:
purpose in the adoption of the Florida
pies of Civil Procedure is to prevent the use of
surprise, trickery, bluff and legal gymnastics.
Revelation through discovery procedures of the
strength and weaknesses of each side before trial
encourages settlement of cases and avoids costly
litigation, Each side can make an_ intelligent
evaluation of the entire case and may better
anticipate the ultimate results.
Surf Drugs, 236 So.2d at 111. In placing the work
product protection within the scope of discovery, the
Court stated:
What constitutes “work product" is incapable of
concise definition adequate for all occasions.
Generally, those documents, pictures, statements
and diagrams which are to be presented as
evidence are not work products anticipated by the
rule for exemption from discovery. Personal views
of the attorneys as to how and when to present
evidence, his evaluation of its relative importance,
his knowledge of which witness will give certain
testimony, personal notes and records as to
Page 3
witesses, jurors, legal citations, proposed
arguments, jury instructions, diagrams and charts
he may refer to at trial for his convenience, but not
to be used as evidence, come within the general
category of work product.
Id. at_112 (emphasis supplied). Pertinent to the
instant action is the holding in Surf Drugs that the
scope of the attorney work product privilege
Protection is specifically bounded and limited to
materials which are not intended for use as evidence
or as an exhibit at trial. See id at 112.
This precept was recognized, expanded upon, and
specifically enunciated in our later decision in
ersell, 390 So.2d 704
addressing the petitioner's contention _ that
surveillance video recordings in the possession of the
respondent were discoverable and not protected
under the work product privilege, this Court made the
following potent statement:
Any work product privilege that existed ... ceases
once the materials or testimony are intended for
trial use. More simply, if the materials are only to
aid counsel in trying the case, they are work
product. But, if they will be used as evidence, the
materials ... cease to be work product and become
subject to an adversary’s discovery.
id, at 707. Thus, in accordance with Surf Drugs and
Dodson, we reiterate our dedication today to the
Principle that in Florida, when a party reasonably
expects or intends to utilize an item before the court
at trial, for impeachment or otherwise, the video
recording, document, exhibit, or other piece of
evidence is fully discoverable and is not privileged
work product.
*4 [2] In essence, Florida litigants must make a
simple and discrete decision prior to entry of a
pretrial case management order by the trial court. An
attomey must evaluate whether he or she intends to
use evidence in his or her possession for strategy and
trial preparation purposes only, which would qualify
the selection of the particular items as a protected
product of the thought processes and mental
impressions of an attorney. On the other hand, if the
evidence or material is reasonably expected or
intended to be disclosed to the court or jury at trial, it
must be identified, disclosed, and copies provided to
the adverse party in accordance with the trial court's
order and the discovery requests of the opposing
party.
[3] The instant case is clearly governed by this
principle. At the hearing before the trial court
regarding the instant discovery dispute, Dr. Acken's
Copr. ©. West 2004 No Claim to Orig. U.S. Govt. Works2004 WL 178589
~~ So.2d ---
(Cite as: 2004 WL 178589 (Fla.))
attomey specifically submitted the
argument:
There's no procedure that says that a party is
entitled to get impeachment materials which are
not evidence before trial. That's obviously work
product,
These are depositions which are going to be used
for impeachment. They’re not evidence at trial. So
therefore they don't go on a witness list, they don't
have to be produced to the other side. Classic
impeachment materials would be these depositions.
That's why there's no case law on this topic
because clearly this is protected by work product
privilege and should not be produced.
The clearly erroneous position of the respondent in
the trial court was that he was totally free to use
depositions at trial and read portions thereof in the
Presence of the jury without ever disclosing the
depositions until the impeachment actually occurred
during trial. We conclude and specifically announce
today that all materials reasonably expected or
intended to be used at trial, including documents
intended solely for witness impeachment, are subject
to proper discovery requests under Surf Drugs,
Dedson, and a host of lower court decisions, and are
not protected by the work product privilege. Florida's
dedication to the prevention of “surprise, trickery,
bluff and legal gymnastics," Surf Drugs, 236 So.2d at
111, at trial holds no exception for impeachment
materials. Indeed, approval of the arguments
submitted by the respondent would bring great harm
upon and undermine the idea that in this State,
litigants are entitled to evaluate “the strength and
weaknesses of each side before trial" and have the
ability to "make an intelligent evaluation of the entire
case ... [to] better anticipate the ultimate results.” Ja.
Trial by ambush is distant history, and it is clear that
respondent had knowledge of the materials that
would actually be used at trial.
following
In its decision below, the Second District concluded
that the trial court's order compelling production of a
discernible group of documents gathered by counsel
“departed from the essential requirements of the law."
Acken, 827 So.2d at 1071. The panel relied heavily
upon Smith v. Florida Power & Light Co. 632 So.2d
696 (Fla. 3d DCA 1994), and concluded "that the
group of Dr. Dillon's prior depositions that Dr.
Acken's counsel has collected to impeach Dr. Dillon
is attomey work product, which is not subject to
disclosure." Jd. at 1072. We approve this reasoning to
the extent that it reiterates our longstanding
jurisprudence regarding work product, as expressed
in this opinion.
Page 4
*5 However, the Second District's analysis of the
instant case cannot be approved solely within a
“discovery vacuum." We note that the court declined
to address the expected and intended use of Dr.
Dillon's depositions at trial, _[FN2] and instead
examined an academic question: whether the
gathering and review of Dr. Dillon's depositions
could be protected as attorney work product. We
agree that work product privilege could protect the
depositions at issue from discovery, but only if the
respondent never expected or intended to use them
for impeachment at trial. Dodson and other decisions
demand that evidence reasonably expected or
intended for trial use be produced when requested. As
noted above, the respondent in this case clearly
intended to use portions of the depositions during
trial. Thus, the Second District's decision is erroneous
to the extent that it could be interpreted to insulate
these depositions and preclude discovery until the
actual testimony of Dr. Dillon is presented at trial.
[4] On the other hand, we do not approve the broad
sweep of the Fourth District Court of Appeal's
decision in Gardner v. Manor Care of Boca Raton,
Inc. The district court's approval in Gardner of an
order requiring "counsel to ‘cull' through various
surveys and personnel files to determine which ones
are relevant," Gardner, 831 So.2d at 678, an action
which the court admitted "may indicate counsel's
strategy," id, goes entirely too far. The overriding
touchstone in this area of civil discovery is that an
attorney may not be compelled to disclose the mental
impressions resulting from his or her investigations,
labor, or legal analysis unless the product of such
investigation itself is reasonably expected or intended
to be presented to the court or before a jury at trial.
Only at such time as the attorney should reasonably
ascertain in good faith that the material may be used
or disclosed at trial is he or she expected to reveal it
to the opposing party. Because the Fourth District's
Gardner decision conflicts with this principle, we
must disapprove that portion of the opinion requiring
counsel to evaluate the comparative relevance of
documents for purposes of an opponent's discovery.
Conclusion
In accordance with the above analysis and
conclusions, we quash the decision under review,
Herbert W_Acken, M.D., P.A. v. Northup, 827 So.2d
1070 (Fla. 2d DCA 2002), but approve the reasoning
to the extent that it reiterates the principles espoused
in this opinion, and disapprove the portion of
Gardner v. Manor Care of Boca Raton, Inc., 831
Copr. © West 2004 No Ciaim.to Orig. U.S. Govt. Works2604 WL 178589
--- So.2d ---*
(Cite as: 2004 WL 178589 (Fla.))
So.2d 676 (Fla. 4th DCA 2002), that is inconsistent
with this opinion. Although not directly addressed by
the Second District, we also explicitly hold that if
attorney work product is expected or intended for use
at trial, it is subject to the rules of discovery.
Therefore, we also approve the order entered by the
trial judge in this case and remand the instant cause
to the trial court for further proceedings.
*6 It is so ordered,
ANSTEAD, C.J., and WELLS, PARIENTE,
QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, J., concurs in result only.
EN1. This Court first recognized the work
product doctrine and privilege in Atlantic
Coast Line R, Co. v. Allen, 40 So.2d_115
(Fla. 1949),
EN2. In a footnote, the Second District
stated, "While the parties discussed the
possible use of the depositions for
impeachment at trial, the issue of whether
such use is proper is not before us and we do
not address it." Acken, 827 So.2d at 1071 n.
L
2004 WL 178589, 2004 WL 178589 (Fla.), 29 Fla. L.
Weekly $37
END OF DOCUMENT
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works
Preview
Filing # 140411373 E-Filed 12/15/2021 11:00:02 AM IN THE CIRCUIT COURT OF THE 15! JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2020-CA-009842-XXXX-MB DIVISION: AA. OLIVIA CHARNEY, Plaintiff, v. SCOTT LILLEY, Defendant. / PLAINTIFF’S SUPPLEME) LL REQUEST TO PRODUCE DIRECTED TO DEFENDANT COMES NOW the Plaintiff, OLIVIA CHARNEY, by and through her undersigned attomeys, and hereby requests, pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, that the Defendant, SCOTT LILLEY, produce and permit said Plaintiff to inspect and to copy each of the following documents: 1. Copies of any deposition transcripts possessed by defense counsel or the insurance company of any of the Plaintiff's treating physicians. See attached case of Northup v. Acken. 2. Copies of any materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment. See attached case of Northup v. Acken, I HEREBY CERTIFY that the foregoing was electronically filed with the Florida Courts E-Filing Portal and that as a registered participant of the Portal I have effectuated service through the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on: Jonathan M. Cox, Esquire, (c@kkcinjurylaw.com; christina@kkcinjurylaw.com) Keller, Keller, Caacuzzo, Cox & Belluccio, 224 Datura Street, Suite 1205, West Palm Beach, FL 33401 this 15" day of December, 2021. '** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 12/15/2021 11:00:02 AM ***SCHULER, HALVORSON, WEISSER, ZOELLER & OVERBECK, P.A 1615 Forum Place, Suite 4D West Palm Beach, FL 33401 Tel.: (561) 689-8180 Attomeys for Plaintiffs jweissser@shw-law.com; michele@shw-law.com; rchew@shw-law.com By: ___/s/ Jason D. Weisser JASON D. WEISSER FLA BAR NO.: 1014352004 WL 178589 --- So.2d -- (Cite as: 2004 WL 178589 (Fla.)) NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW _ REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL, Supreme Court of Florida, Leonard NORTHUP, Petitioner, Howard W. ACKEN, MD., P.A., Respondent. No. SC02-2435. Jan. 29, 2004. Background: Doctor petitioned for writ of certiorari challenging an order of the Circuit Court, Polk County, Randall G. McDonald, J., compelling the Production all depositions of medical malpractice plaintiff's expert witness that were in the custody and control of doctor's counsel. Holdings: The District Court of Appeal, Second District, 827 Si 1070, granted writ, quashed the order, and certified conflict. On application for review, the Supreme Court held that: (1) if attorney work product is intended or expected for trial use, it is subject to rules of discovery, disapproving Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676, and (2) the depositions were not protected by the work product privilege because doctor's counsel intended to use portions of them at trial. So ordered. Lewis, J., concurred in result only. LL] Pretrial Procedure 358 307Ak358 Most Cited Cases All materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are subject to proper discovery Tequests and are not protected by the work product privilege; disapproving Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676, {2} Pretrial Procedure 358 307Ak358 Most Cited Cases Page | [2] Pretrial Procedure 744 307Ak744 Most Cited Cases Litigants must make a simple and discrete decision prior to entry of a pretrial case management order by the trial court: an attorney must evaluate whether he intends to use evidence in his possession for strategy and trial preparation purposes only, which would qualify the selection of the particular items as a Protected product of the thought processes and mental impressions of an attorney; however, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it maust be identified, disclosed, and copies provided to the adverse party in accordance with trial court's order and discovery requests of opposing party. 13] Pretrial Procedure 389 307Ak389 Most Cited Cases Deposition testimony that expert witness for patient's wife had previously given in unrelated civil actions were not protected by work product privilege in medical malpractice suit, where doctor's counsel intended to use portions of them at trial; work product privilege could protect the depositions from discovery only if doctor never expected or intended to use them for impeachment at trial. [4] Pretrial Procedure €-35 307AK35 Most Cited Cases An attorney may not be compelled to disclose the mental impressions resulting from his or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably expected or intended to be presented to the court or before a jury at trial. Scott M. Whitley of Morgan, Colling and Gilbert, P.A., Tampa, FL, for Petitioner. Richard E, Ramsey and Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Orlando, FL, for Respondent. PER CURIAM. *1 We have for review the decision in Herbert W. Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla, 2d_DCA_2002), which certified conflict with the decision in Gardner v. Manor Care of Boca Raton, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works’ 2004 WL 178589 =~ So.2d --- (Cite as: 2004 WL 178589 (Fla.)) Inc., 831 So.2d 676 (Fla. 4th DCA 2002). We have jurisdiction, see art. V. § 3(b)(4), Fla. Const., and quash the decision below. Facts and Procedural History The instant discovery dispute arose within an action for medical malpractice filed by the petitioner, Leonard Northup, alleging that the respondent, Dr. Herbert Acken, failed to diagnose a cancerous tumor which resulted in the death of petitioner's wife. See Acken, 827 So.2d at 1071. Pursuant to the trial court's pretrial case management order, the petitioner submitted a witness and exhibit list to the court, which included Dr. Michael Dillon as an expert witness, in November of 2000. See id. In the process of litigation preparation, the respondent's attorneys gathered deposition testimony Dr. Dillon had previously given in unrelated civil actions. Subsequently, the petitioner served a Request for Production upon respondent which sought copies of the deposition testimony transcripts possessed by defense counsel. See id, The respondent filed an objection to this request, asserting that the depositions requested were exempt from disclosure under the attorney work product doctrine. See id. The petitioner then moved to compel production, requesting that the trial court order the respondent to produce the entirety of the depositions and sworn statements of Dr. Dillon in the possession of defense counsel, See id. Although not in the district court's opinion, the record reveals that during the hearing on the motion to compel, it was the specifically stated position of defense counsel that Dr. Dillon had been deposed in this case and that the defense intended to impeach him during trial with the use of the deposition transcripts defense counsel had previously secured but refused to disclose, Defense counsel asserted that he was entitled to, and intended to, use the deposition transcripts to impeach Dr. Dillon during trial but the defense was not required to disclose or produce the transcripts until during the trial when the transcripts would be actually used. It was defense counsel's position that the petitioner was not entitled to information conceming the prior depositions or copies of the transcripts until after the impeachment occurred during trial, Following this hearing on the matter, the trial court granted the petitioner's motion and ordered the Tespondent to produce copies of the depositions and other documents. Thereafter, Dr. Acken filed a petition for writ of certiorari in the Second District Page 2 arguing that disclosure of the deposition transcripts would reveal counsel's mental impressions regarding the relative importance of various issues at trial as well as counsel's strategy for trial, and thereby invade the work product of counsel. Counsel specifically took the position that he was not required to produce the depositions even if he used them as impeachment at trial and specifically attempted to distinguish Dodson v. Persell, 390 So.2d 704 (Fla.1980). *2 Dr. Acken relied on Smith v. Florida Power Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), for me Proposition that the collected deposition transcripts were protected from disclosure as attorney work product, even though the defense intended to use them at trial for impeachment. The Second District agreed and quashed the trial court's order, but certified conflict with Gardner, 831 So.2d at 676, writing: The facts of the case at bar may be closer to those in Gardner than those in Smith because there must be a “finite” number of depositions that Dr. Dillon has given in prior cases. However, we question whether Smith and Gardner can be reconciled. We adopt the rationale in Smith, and, applying that rationale here, conclude that the group of Dr. Dillon's prior depositions that Dr. Acken's counsel has collected to impeach Dr. Dillon is attorney work product, which is not subject to disclosure. To the extent that Gardner would dictate a contrary result, we certify conflict. Acken, 827 So.2d at 1072. This Court granted review on March 20, 2003. See Northup v. Acken, 842 So.2d 845 (Fla.2003) (table). Analysis £1] In its 1947 opinion in Hickman v. Taylor, 329 US. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the United States Supreme Court originated what has become known as the “attorney work product privilege." With words which have not lost their poignancy, the Court concluded: In performing his various duties, ... it is essential that a lawyer work with a certain degree of | privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to Promote justice and to protect their clients’ Copr. © West 2004 No Claim to Orig. U.S. Govt. Works> - 2004 WL 178589 ~~ So.2d --- (Cite as: 2004 WL 178589 (Fla.)) interests. This work is reflected, of course, in interviews, Statements, memoranda, correspondence, briefs, mental _ impressions, personal beliefs, and countless other tangible and intangible ways--aptly though roughly termed . the "work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfaimess and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. dd, at 510-11, 67 S.Ct. 385. In accordance with this teasoning, the United States Supreme Court established the "privacy of [an attorney's} professional activities,” id at 513, 67 foreclosed discovery of materials created by an attomey in preparation for litigation absent "adequate reasons to justify production.” /d_at_ $12, 67 S.Ct. 385. *3 This Court's decision in Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), provides the established bedrock principles applicable in considering the attorney work product privilege in Florida._{FN1] In Surf Drugs, this Court addressed interrogatory questions, but expressed the “broad balancing considerations involved in the discovery and d litigation process. This court recognized: purpose in the adoption of the Florida pies of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation, Each side can make an_ intelligent evaluation of the entire case and may better anticipate the ultimate results. Surf Drugs, 236 So.2d at 111. In placing the work product protection within the scope of discovery, the Court stated: What constitutes “work product" is incapable of concise definition adequate for all occasions. Generally, those documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorneys as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to Page 3 witesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence, come within the general category of work product. Id. at_112 (emphasis supplied). Pertinent to the instant action is the holding in Surf Drugs that the scope of the attorney work product privilege Protection is specifically bounded and limited to materials which are not intended for use as evidence or as an exhibit at trial. See id at 112. This precept was recognized, expanded upon, and specifically enunciated in our later decision in ersell, 390 So.2d 704 addressing the petitioner's contention _ that surveillance video recordings in the possession of the respondent were discoverable and not protected under the work product privilege, this Court made the following potent statement: Any work product privilege that existed ... ceases once the materials or testimony are intended for trial use. More simply, if the materials are only to aid counsel in trying the case, they are work product. But, if they will be used as evidence, the materials ... cease to be work product and become subject to an adversary’s discovery. id, at 707. Thus, in accordance with Surf Drugs and Dodson, we reiterate our dedication today to the Principle that in Florida, when a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the video recording, document, exhibit, or other piece of evidence is fully discoverable and is not privileged work product. *4 [2] In essence, Florida litigants must make a simple and discrete decision prior to entry of a pretrial case management order by the trial court. An attomey must evaluate whether he or she intends to use evidence in his or her possession for strategy and trial preparation purposes only, which would qualify the selection of the particular items as a protected product of the thought processes and mental impressions of an attorney. On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court's order and the discovery requests of the opposing party. [3] The instant case is clearly governed by this principle. At the hearing before the trial court regarding the instant discovery dispute, Dr. Acken's Copr. ©. West 2004 No Claim to Orig. U.S. Govt. Works2004 WL 178589 ~~ So.2d --- (Cite as: 2004 WL 178589 (Fla.)) attomey specifically submitted the argument: There's no procedure that says that a party is entitled to get impeachment materials which are not evidence before trial. That's obviously work product, These are depositions which are going to be used for impeachment. They’re not evidence at trial. So therefore they don't go on a witness list, they don't have to be produced to the other side. Classic impeachment materials would be these depositions. That's why there's no case law on this topic because clearly this is protected by work product privilege and should not be produced. The clearly erroneous position of the respondent in the trial court was that he was totally free to use depositions at trial and read portions thereof in the Presence of the jury without ever disclosing the depositions until the impeachment actually occurred during trial. We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are subject to proper discovery requests under Surf Drugs, Dedson, and a host of lower court decisions, and are not protected by the work product privilege. Florida's dedication to the prevention of “surprise, trickery, bluff and legal gymnastics," Surf Drugs, 236 So.2d at 111, at trial holds no exception for impeachment materials. Indeed, approval of the arguments submitted by the respondent would bring great harm upon and undermine the idea that in this State, litigants are entitled to evaluate “the strength and weaknesses of each side before trial" and have the ability to "make an intelligent evaluation of the entire case ... [to] better anticipate the ultimate results.” Ja. Trial by ambush is distant history, and it is clear that respondent had knowledge of the materials that would actually be used at trial. following In its decision below, the Second District concluded that the trial court's order compelling production of a discernible group of documents gathered by counsel “departed from the essential requirements of the law." Acken, 827 So.2d at 1071. The panel relied heavily upon Smith v. Florida Power & Light Co. 632 So.2d 696 (Fla. 3d DCA 1994), and concluded "that the group of Dr. Dillon's prior depositions that Dr. Acken's counsel has collected to impeach Dr. Dillon is attomey work product, which is not subject to disclosure." Jd. at 1072. We approve this reasoning to the extent that it reiterates our longstanding jurisprudence regarding work product, as expressed in this opinion. Page 4 *5 However, the Second District's analysis of the instant case cannot be approved solely within a “discovery vacuum." We note that the court declined to address the expected and intended use of Dr. Dillon's depositions at trial, _[FN2] and instead examined an academic question: whether the gathering and review of Dr. Dillon's depositions could be protected as attorney work product. We agree that work product privilege could protect the depositions at issue from discovery, but only if the respondent never expected or intended to use them for impeachment at trial. Dodson and other decisions demand that evidence reasonably expected or intended for trial use be produced when requested. As noted above, the respondent in this case clearly intended to use portions of the depositions during trial. Thus, the Second District's decision is erroneous to the extent that it could be interpreted to insulate these depositions and preclude discovery until the actual testimony of Dr. Dillon is presented at trial. [4] On the other hand, we do not approve the broad sweep of the Fourth District Court of Appeal's decision in Gardner v. Manor Care of Boca Raton, Inc. The district court's approval in Gardner of an order requiring "counsel to ‘cull' through various surveys and personnel files to determine which ones are relevant," Gardner, 831 So.2d at 678, an action which the court admitted "may indicate counsel's strategy," id, goes entirely too far. The overriding touchstone in this area of civil discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably expected or intended to be presented to the court or before a jury at trial. Only at such time as the attorney should reasonably ascertain in good faith that the material may be used or disclosed at trial is he or she expected to reveal it to the opposing party. Because the Fourth District's Gardner decision conflicts with this principle, we must disapprove that portion of the opinion requiring counsel to evaluate the comparative relevance of documents for purposes of an opponent's discovery. Conclusion In accordance with the above analysis and conclusions, we quash the decision under review, Herbert W_Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla. 2d DCA 2002), but approve the reasoning to the extent that it reiterates the principles espoused in this opinion, and disapprove the portion of Gardner v. Manor Care of Boca Raton, Inc., 831 Copr. © West 2004 No Ciaim.to Orig. U.S. Govt. Works2604 WL 178589 --- So.2d ---* (Cite as: 2004 WL 178589 (Fla.)) So.2d 676 (Fla. 4th DCA 2002), that is inconsistent with this opinion. Although not directly addressed by the Second District, we also explicitly hold that if attorney work product is expected or intended for use at trial, it is subject to the rules of discovery. Therefore, we also approve the order entered by the trial judge in this case and remand the instant cause to the trial court for further proceedings. *6 It is so ordered, ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. LEWIS, J., concurs in result only. EN1. This Court first recognized the work product doctrine and privilege in Atlantic Coast Line R, Co. v. Allen, 40 So.2d_115 (Fla. 1949), EN2. In a footnote, the Second District stated, "While the parties discussed the possible use of the depositions for impeachment at trial, the issue of whether such use is proper is not before us and we do not address it." Acken, 827 So.2d at 1071 n. L 2004 WL 178589, 2004 WL 178589 (Fla.), 29 Fla. L. Weekly $37 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works