R. Civ. P. 1.390 without application or court order.50 Other investigative methods may be used provided that a request for additional disclosure is made and a court order is obtained authorizing further disclosure.51 Most courts agree that documents and information obtained in the ordinary course of business or pursuant to public requirements unrelated to litigation, are not entitled to protection.19 These courts generally accept the principle that the mere likelihood of litigation is not sufficient to protect documents and information from discovery.20 Therefore, investigations and reports of occurrences following an accident cannot be considered a product of work if they are necessary in the ordinary course of business. For example, the early stages of investigating insurance company claims may be considered part of the ordinary course of business in deciding whether to recognize or deny the claim and whether the insurer should seek subrogation against the negligent party.21 In most of these cases, the courts rely on the testimony of those who conducted the investigation or prepared the statement of reasons. This, in turn, would diminish the effectiveness of our legal system and serve the cause of justice poorly. The Public Records Act applies to articles and materials held by attorneys employed in the State of Florida59 and, therefore, the work product doctrine generally does not apply to protect such items from discovery or inspection. However, because this Act only applies to public records, it may not apply to the discovery of oral testimony by the filing of a Crown official or employee.60 Therefore, privileges normally applicable to oral testimony, such as solicitor or work product privilege, cannot be affected by the Public Records Act.61 The privilege not to disclose rests with the prosecutor. The courts generally find that there is no protection for work done prior to the lawyer`s intervention. For example, the work of an investigator hired by an insurance company before hiring a lawyer or filing a lawsuit is not protected. To be protected under the doctrine of immunity of work products, the material in question must have been created in anticipation of litigation or legal proceedings. The product of work doctrine applies to expert witnesses who do not testify and who are hired only in an advisory capacity in preparation for trial.52 Therefore, their identity and the facts and opinions they represent do not normally have to be disclosed.53 However, there are exceptions that allow the result of the work of a non-witness expert to be discovered.
The discovery is admissible if the expert carries out a physical or mental medical examination in accordance with Fla. R. Civ. P. 1.360 or if extraordinary circumstances are demonstrated to the court which prevent the party requesting prior disclosure from obtaining facts or opinions on the same subject by other means54. General principles The main objective of the work product doctrine is to obtain the effective assistance of lawyers and others involved in the preparation of a case for trial. Maintaining the confidentiality of communications between the client, counsel and others used in litigation preparation – particularly privacy in the development of legal theories, opinions and strategies – promotes the effectiveness of legal aid on which our adversarial justice system depends. However, the courts recognize that the parties must be allowed to become aware of the relevant facts through a liberal interpretation of the rules of inquiry in order to achieve a fair resolution of the dispute. In order to accommodate these often divergent and conflicting political considerations, courts provide absolute or near-absolute protection for the work product, including mental impressions, conclusions, opinions and legal theories relating to litigation, while allowing for the discovery of another work product if substantial necessity and undue hardship are demonstrated.