There are usually two doctrines that apply when it comes to the security of knowledge in litigation. Next, the attorney-client privilege is there. Made sense here. The second is what is known as the doctrine of “work product”. This doctrine stands for the proposition that what a party does is shielded from disclosure during discovery in advance of litigation. This may involve the legal or mental impressions of a faction, or strategic decisions and organization in relation to a pending or continuing conflict.
Usually, it would be listed on a privilege log when a document is withheld under either the attorney-client privilege or work product doctrine. This is simply a spreadsheet that clearly defines the document and the basis for withholding the document, e.g. job product, since there is software such as Soda PDF that helps open these documents, these documents can be physical or digital as in the PDF edition. Indeed, a group that claims the right carries the responsibility of making the document is privileged. The Fifth District Court of Appeal in Avatar Property & Casualty Ins. as regards the working product. Co. v. Simmons, Fla. 45. L. Weekly (Fla. 5th DCA 2020) D1429a stated:
It is well-settled that “under the work-product doctrine, documents prepared in anticipation of litigation by or on behalf of a party are not discoverable.” Liberty Mut. Ins. of Flames. Kaufman Co. v., 885 So. (citing Fla. R. Civ. P. 1.280(b)(3)) 2d 905, 910 (Fla. 3d DCA 2004). It is equally known, however, that the party asserting a privilege should have the duty of proving such a privilege. See, e.g., Acc. Hartford. & Indem. Indem. Co. v. McGann, So. 402. 2d 1361, 1362 (Fla. 4th DCA 1981) (‘If an objection involving a court hearing is made, then in the case of a party objecting on the basis of the right of the work product, that party has the responsibility, first of all, of justifying the privilege.’); see also Kaufman, 885 So. 2d at 910 (explaining that “the party objecting to the discovery . . . retains the burden of demonstrating that the materials were compiled in response to an event that could predictably be the basis for a claim against the insurer”) (citation omitted).
In Avatar Property & Casualty Ins, notably. An insurer appealed the decision of a trial court forcing it to reveal pictures in its claim file. The insurer sued for the right of “claims file.” The Fifth District learned that there’s actually no “privilege claims,” it’s either a job product or it’s not. However, in anticipation of litigation, the insurer did not prove that the photos were prepared. Although documents will certainly be a work product in an insurer’s claims file, this does not mean that any document in the file falls under the doctrine of the work product. See Property & Casualty Ins. of Avatar. Co., supra, citing Sec. of Bankers Ins. Ins. Co. v. Symons, 899, 966, 969, So.2d 93 (Fla. 5th DCA 2004).
Know, define the record and privilege/basis on a privilege log if you claim the work product privilege and bear in mind that you have the burden to explain the privilege if questioned. If the trial court determines that, notwithstanding the claimed right, you must show the records, you may appeal. “Certiorari is to review the order of a trial court that forces the production of privileged documents due to the potential for irreparable harm.” Avatar Property & Casualty Ins. Co., supra. Supra.