The work product protection rests on fundamentally different grounds from the attorney-client privilege. This fact can produce some surprising results.
In McGarrah v. Bayfront Medical Center, Inc., 889 So. 2d 923 (Fla. Dist. Ct. App. 2004), rehearing denied, No. 2D04-1-15, 2005 Fla. App. LEXIS 1848 (Jan. 12, 2005), McGarrah sued defendants in a slip and fall case. McGarrah underwent a compulsory medical examination (“CME”) under the Florida rules, and the parties agreed that a videographer would record the CME. When defendants sought a copy of the video, McGarrah claimed that it was work product. The court agreed – analogizing the videotape to a private court reporter’s transcript of a public proceeding, which could also be withheld as work product. The court remanded for a determination of defendants’ alleged “substantial need” for the video, and inability to obtain its substantial equivalent without undue hardship.
Cases like this highlight the dramatic differences between the work product doctrine and the attorney-client privilege (which protects confidential communications between lawyers and their clients).