2D07-204 / Hargroves v. R.J. Reynolds Tobacco Co.

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State: Florida

Court: Florida Southern District Court

Docket No: 2D07-204

Case Date: 09/28/2007

Plaintiff: 2D07-204 / Hargroves

Defendant: R.J. Reynolds Tobacco Co.

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WALTER HARGROVES, as the                         )
Personal Representative of the Estate            )
of DEBRA HARGROVES,                              )
)
Petitioner,                                      )
)
v.                                               )   Case No. 2D07-204
)
R.J. REYNOLDS TOBACCO COMPANY,                   )
a foreign corporation, as successor by           )
merger to BROWN & WILLIAMSON                     )
TOBACCO COMPANY and AMERICAN                     )
TOBACCO COMPANY,                                 )
)
Respondents.                                     )
______________________________________)
Opinion filed September 28, 2007.
Petition for Writ of Certiorari from the
Circuit Court for Hillsborough County;
Perry A. Little, Judge.
Howard M. Acosta and Charles M. Schropp
of Law Offices of Howard M. Acosta, St.
Petersburg, and Kent G. Whittemore of The
Whittemore Law Group, P.A., St. Petersburg,
for Petitioner.
Stephanie E. Parker and John M. Walker,
Atlanta and Benjamin H. Hill, III and Troy
A. Fuhrman of Hill, Ward & Henderson, P.A.,
Tampa, for Respondent.
WHATLEY, Judge.

Walter Hargroves, as the personal representative of the estate of Debra
Hargroves, petitions this court for a writ of certiorari quashing the circuit court order
directing him to provide certain items pursuant to a discovery request by R.J. Reynolds
Tobacco Company in Hargroves' wrongful death action against R.J. Reynolds.   The
circuit court entered the discovery order at issue after hearing motions to compel filed
by R.J. Reynolds.   Hargroves argues that the circuit court departed from the essential
requirements of law in three of its rulings in that order.   We find merit in Hargroves'
arguments regarding two of those rulings.1
First, the circuit court overruled Hargroves' objection based on the marital
privilege.   See § 90.504, Fla. Stat. (2006).   Hargroves lodged that objection to R.J.
Reynolds' question as to whether his wife had said anything else to him about the
lawsuit before she died.   R.J. Reynolds asserted that Hargroves had made a blanket
waiver of the marital privilege by testifying without objection that he and his wife
discussed filing the lawsuit before she passed away, that it was his wife's idea to file the
lawsuit, and that she said she would like the two of them to file the action.
This testimony by Hargroves did not waive the husband-wife privilege as
to all confidential communications about the lawsuit.   See Courville v. Promedco of Sw.
Fla., Inc., 743 So. 2d 41, 42 (Fla. 2d DCA 1999) ("When the attorney-client privilege is
waived regarding a certain matter, the waiver is limited to communications on the same
matter.").   The testimony concerned the decision to file the lawsuit, and therefore,
Hargroves waived the privilege only with regard to communications with his wife
1                                                                                              “Orders which improperly compel discovery of privileged information . . . are
reviewable by certiorari.”   Palm Beach County Sch. Bd. v. Morrison, 621 So. 2d 464,
468 (Fla. 4th DCA 1993).
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regarding that decision.   Accordingly, we grant the petition for writ of certiorari and
quash the order insofar as it can be interpreted to direct Hargroves to reveal any
confidential communications by his wife about the lawsuit other than her statements
about the decision to file the action.
Second, the circuit court overruled Hargroves' work product privilege
objection to R.J. Reynolds' request for production of documents supporting specific
allegations of Hargroves' complaint.   Hargroves responded to R.J. Reynolds' request by
producing four DVD’s containing thousands of documents without specifying which
documents supported which allegations.   The circuit court directed Hargroves to identify
the documents responsive to each specific request in R.J. Reynolds' third request for
production.   Hargroves argues that the court's directive departs from the essential
requirements of law because his selection of which documents are responsive to which
requests will reveal his protected mental impressions, conclusions, opinions, and
theories about the case.
We agree with Hargroves' argument based on the supreme court's
disapproval of Gardner v. Manor Care of Boca Raton, Inc., 831 So. 2d 676 (Fla. 4th
DCA 2002), in Northup v. Acken, 865 So. 2d 1267 (Fla. 2004).   In Northup, the supreme
court held 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."   Id. at 1270.   The decision whether to use any item at trial is to be made prior
to the trial court's entry of the pretrial case management order.   Id.
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In disapproving Gardner, the court held that an order requiring counsel to
cull through previously disclosed documents and advise the opposing party which ones
are relevant "goes entirely too far."   Id. at 1272.   The court reasoned as follows:
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.
Id. at 1272.
In the present case, the circuit court's directive to Hargroves essentially
compels him to advise R.J. Reynolds which of the documents he has already produced
is relevant to particular allegations of his complaint.   We see no difference between this
directive and the one in Gardner disapproved of by the supreme court.   In addition, the
court's directive is overbroad because it is not limited to documents that Hargroves has
determined he will use at trial.   See Kranias v. Tsiogas, 941 So. 2d 1173 (Fla. 2d DCA
2006).
Accordingly, we grant the petition for writ of certiorari and quash that part
of the discovery order directing Hargroves to identify which of the already produced
documents is responsive to R.J. Reynolds' request for production until such time as he
is required to do so by the dictates of Northup.
We deny Hargroves' petition in all other respects without comment.
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Petition for writ of certiorari granted in part and denied in part.
NORTHCUTT, C.J., Concurs.
ALTENBERND, J., Concurs with opinion.
ALTENBERND, Judge, Concurring.
I fully concur in the court's opinion.   I write only to make two observations
that affect my reasoning on these issues.
First, concerning R.J. Reynolds' specific questions to Mr. Hargroves at his
deposition seeking to discover statements that his wife had made to him about the law-
suit prior to her death, I am inclined to believe that these questions were improper even
if the marital privilege had been waived.   I do not understand the relevance of this line of
questions to the matters at issue in the lawsuit.   I have a difficult time envisioning how
these questions were designed to lead to admissible evidence.
Second, I have not reviewed each document on the four DVDs in the
record, but I have reviewed a representative sample.   They include many copies of
cigarette advertisements, including television advertising from the 1950s and 1960s.
Many, if not most, of the documents are copies of documents produced by R.J.
Reynolds in prior lawsuits.   At this point in the history of tobacco litigation, it is unlikely
that R.J. Reynolds does not understand how plaintiffs' attorneys are using or plan to use
these documents.
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If the multitude of documents on these DVDs were records unique to this
plaintiff or if it appeared that Mr. Hargroves' attorneys were trying to hide the proverbial
needle in a haystack, then I would be less convinced that the case law cited in this
opinion warranted the issuance of a writ of certiorari in this case.
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