3d DCA Watch -- Good Things Happen in Threes Edition

Ahh to be young again, when my days were filled with wondrous yet pointless legal exercises, such as carefully reviewing an actual book to "shepardize" a case.

Yes I was wide-eyed and reckless then. I would pull crazy stunts, like file serial petitions for a writ of common law cert over minor discovery orders, hoping against hope that -- just this one time -- the 3d would pluck my lucky petition from among the many crying out for instant attention and then order briefing -- Holy Hail yes briefing! -- on my desperate, nay pathetic, plea for immediate judicial intervention.

Well I feel like I'm fresh out of law school today, as we peer down south to the cold dark windowless bunker by the highway, where coffee-swilling jurists don resplendent robes and even sometimes pen odes -- to ticky-tacky houses, to errant trial judges and the lawyers who got them there, and yes, where good things sometimes come in threes. So without further adieu let's climb on board kiddies, it's our patented own, sometimes replicated but never duplicated 3d DCA Watch:

Well that's a lot of prelude to a rather thin edition this week huh? I mean, from what I can tell it looks like the 3d decided to become a supra-discovery court this week. Three civil opinions, all petitions for writs of cert, all dealing with discovery orders down below.

Let's take a look --

Kmart v. Sundmacher:

Here Judge Esquiroz denied a motion by Kmart to produce photographs taken by the plaintiff of the condition of the floor at the time he fell. Kmart didn't take any photos, waited three years after learning of their existence, and on the eve of their corporate rep being deposed then demanded they be produced. Judge E said no, they are work product, Kmart sought a writ.

In an opinion authored by Judge Rothenberg the 3d once again reaffirms the old maxim -- "what the heck, it's worth a shot." Acknowledging that orders denying discovery are not ordinarily reviewable by cert, the 3d found this case was extraordinary in that irreparable harm would befall Kmart in that they would not have access to photos taken by the plaintiff's investigator of the condition of the floor at the time of the accident.

Question -- isn't that always the expected outcome if a retailer takes no steps to document the conditions at the time of an accident?

In a dissent, Judge Ramirez basically asks, "what's the point of extraordinary writs again"? Moreover, he would allow trial courts to deal with the order or timing of discovery in the normal course. Silly guy -- then I'd have nothing to write about this week!

Bank of America v. Barnett:

I told you it is extraordinary writ day at the 3d. This one involves Judge David C. Miller, who granted a motion to compel certain account documents of the defendant that would have included privileged information and private financial data of nonparty depositors. Oops! Judge Suarez tells the jurist to go back, take a look at the statutes, try again, and please don't bother us anymore.

Ford Motors v. Edwards:

This writ of cert also involves Judge Miller, who ordered disclosure of Ford's confidential attorney communication database as a discovery sanction involving the alleged existence of certain unproduced expert reports. I'm not sure the 3d liked this very much:

The trial court's sole reason for ordering a search of “all databases” at Ford, including the privileged LMMS database, was that Ford willfully violated the trial court’s order of September 5, 2008, by filing affidavits of due diligence that lacked certain information about Ford’s search for expert reports. Even if the trial court correctly found that Ford’s five due diligence affidavits failed to satisfy the requirements of the September 5 order, such a correctable, and non-prejudicial, violation could not justify the invasion of attorney-client privilege and attorney opinion work product.

Everybody better hang onto their fax machines, they are not done:

This case appears to have gone astray after we reversed and remanded. Our opinion and the quoted passages from the testimony seem to reveal that at one point the plaintiff had been prepared to argue, and indeed argued, that Ford Explorers were defective regarding handling and stability characteristics. During the 2005 trial, the plaintiff bolstered these characteristics through the testimony of experts who had warned Ford about the problem about “150 times.” Our reversal was not based on any new evidentiary requirement that the plaintiff lay a sufficient predicate to establish substantial similarity between this accident and the other accidents which had “killed hundreds of people.” The predicate for admissibility of similar accident evidence is not a new evidentiary requirement. See, e.g., Railway Exp. Agency, Inc. v. Fulmer, 227 So. 2d 870, 873 (Fla. 1969) (“Evidence of the occurrence or non-occurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions.”) (citing 13 Am.Jur. Evidence s 141 (1957)). We thus fail to see how these discovery disputes have now surfaced more than eleven years after the accident and three years after the first trial.

Check please!

On that positive note, we conclude our regularly scheduled 3d DCA intervention into disposing of pesky trial court discovery disputes. If this continues, any guesses on what we'll be talking about next week?