The author of the blog Abstract Appeal notes that the work product privilege that extends to investigators working for attorneys does not extend to conditions where the investigator is listed as a trial witness. See the posting under the heading, Fifth District: Work Product.
The Fifth District reasoned:
The first order denying the Huets’ motion for a protective order rendered February 16, 2005, was correctly decided because the Huets had included these investigators on their witness lists, and indicated they intended to call them to present testimony and evidence at trial. See Persell; Ellis. The controlling issue here, however, is the efficacy of the Huets’ subsequent attempt to solve their problem by filing an amended witness list which removed any reference to the three investigators and then filing a motion for rehearing, arguing a change of circumstances.
And arguing that the cat can be stuffed back into the bag, the court observed that once the investigators names were removed from the witness list they were once again covered by the work product privilege.
That is, in essence, what occurred here. Having struck the three investigators from the witness list, the Huets cured the basis for the prior ruling. The trial court was placed in the position it had declined to address before. Can the witnesses be deposed as to “fact” work product? See State v. Rabin, 495 So. 2d 257 (Fla. 3d DCA 1986) (“fact” work product is subject to discovery only after a showing of need). Read the opinion