These documents constitute, at best, fact work product, and the State has made a reasonable showing of need and inability to obtain the substantial equivalent without undue hardship. See State v. Rabin, 495 So. 2d 257, 262 n.6 (Fla. 3d DCA 1986) ; Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988) ; see also E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331 (Fla. 3d DCA 1983) ; In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). Further, nothing in the trial court's order precludes the redaction of any mental impressions or opinions prior to disclosure.
These documents, at best, constitute fact work product, and the State has made a reasonable showing of need and inability to obtain the substantial equivalent without undue hardship. See State v. Rabin, 495 So. 2d 257, 262 (Fla. 3d DCA 1986) ; Dade Cnty. Sch. Bd. v. Soler, 534 So. 2d 884, 885 (Fla. 3d DCA 1988) ; see also E. Air Lines, Inc. v. Gellert, 431 So. 2d 329, 331 (Fla. 3d DCA 1983) ; In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). Further, nothing in the trial court's order precludes the redaction of any mental impressions or opinions prior to disclosure.
The respondent concedes that the witness statements constitute work product. See Wal-Mart Stores v. Weeks, 696 So.2d 855, 857 (Fla. 2d DCA 1997) (holding that "statements made by witnesses to . . . a party or its agents are nondiscoverable work product") (citations omitted); Dade County Sch. Bd. v. Soler, 534 So.2d 884, 885 (Fla. 3d DCA 1988) (holding that "[a]lthough a party may be ordered to provide the names and addresses of individuals who have furnished statements in anticipation of litigation, `absent rare and exceptional circumstances,' the party may not be required to furnish the statements themselves because such statements are work product") (citations omitted). However, the respondent argues that the work product privilege was waived because Carnival turned over the witness statements to the FBI. The respondent also argues that, contrary to Carnival's contention, she satisfied her burden of demonstrating that she was unable to obtain the substantial equivalent of the witness statements by others means without undue hardship.
§ 455.667(5), Fla. Stat.; Acosta v. Richter, 671 So.2d 149 (Fla. 1996).See generally, Cone v. Culverhouse, 687 So.2d 888 (Fla. 2d DCA 1997) (once defendants established prima facie basis for lawyer-client and accountant-client privilege, burden of proof shifted to plaintiff to establish that an exception to the privileges applies); Dade County School Board v. Soler, 534 So.2d 884 (Fla. 3d DCA 1988) (once a party opposing production asserts a work product privilege, the burden shifts to the party requesting production to show that he is unable, without due hardship, to obtain the material by other means).
See Florida Cypress Gardens, Inc. v. Murphy, 471 So.2d 203, 205 (Fla. 2d DCA 1985); Winn-Dixie Stores, Inc. v. Gonyea, 455 So.2d 1342, 1344 (Fla. 2d DCA 1984). There has been no showing of the "rare and exceptional circumstances" necessary to authorize the trial court's order requiring Wal-Mart to produce the statements. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 113 (Fla. 1970);Dade County School Bd. v. Soler, 534 So.2d 884, 885 (Fla. 3d DCA 1988). However, the trial court correctly held that Wal-Mart may be compelled to provide the names and addresses of individuals who have furnished statements in anticipation of litigation.
See McNatt v. City of Orlando, 526 So.2d 1022 (Fla. 5th DCA 1988). See also Allstate Insurance Co., Inc. v. Walker, 583 So.2d 356 (Fla. 4th DCA 1991); Dade County School Board v. Soler, 534 So.2d 884 (Fla. 3d DCA 1988). Further, the petitioners' argument that the trial court erred by not granting their motion to strike the punitive damage claim is not timely.
In this proceeding for certiorari, we quash in its entirety an order of production upon the holdings that (a) State Farm's claim files, manuals, guidelines and documents concerning its claim handling procedures were irrelevant to the first party dispute involved in this case, see Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995); Fidelity Cas. Ins. Co. of N.Y. v. Taylor, 525 So.2d 908, 909 (Fla. 3d DCA 1987), rev. denied, 528 So.2d 1181 (Fla. 1988), disapproved on other grounds, Kujawa v. Manhattan Nat'l Life Ins. Co., 541 So.2d 1168 (Fla. 1989), and (b) the defendant's surveillance photographs, witness statements and repair estimates were protected by the work product privilege. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla. 1970); Waste Management, Inc. of Florida v. Southern Bell Tel. Tel. Co., 544 So.2d 1133 (Fla. 4th DCA 1989); Dade County School Bd. v. Soler, 534 So.2d 884 (Fla. 3d DCA 1988). Certiorari granted.
See Florida Power Light Co. v. Limeburner, 390 So.2d 133 (Fla. 4th DCA 1980). The rule is stated in Dade County School Board v. Soler, 534 So.2d 884, 885 (Fla. 3d DCA 1988), as follows: Although a party may be ordered to provide the names and addresses of individuals who have furnished statements in anticipation of litigation, "absent rare and exceptional circumstances," Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 113 (Fla. 1970), the party may not be required to furnish the statements themselves because such statements are work product.