In a divided opinion, the First District Court of Appeal affirmed the trial court's order requiring the production of material protected by the work product privilege. The majority opinion explained that:

Under Rule 1.280(b)(3) (2008), Florida Rules of Civil Procedure, there are two prongs that the Respondents must meet to overcome the Petitioner's work product privilege: (1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship.... To determine whether a moving party will experience undue hardship, courts must balance the moving party's burden in obtaining information with the non-moving party's burden of production. Here the trial court determined the Respondents had no realistic way to independently procure the information and the Petitioner had the incident reports at their immediate disposal.

In its order, the trial court found that the Respondents demonstrated a need for the reports. It further explained that the subject of the incidents contained within the reports was deceased and unable to confer about the events surrounding any of the incidents. The First DCA determined that these statements were an implicit finding of undue hardship on the part of the Respondents. The First District therefore refused to grant a writ of certiorari, and held that the trial court applied the proper test and balanced the factors.

Judge Clark wrote a dissenting opinion, stating:

The order on appeal stated "[Petitioner] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports." Hardship upon the party producing the records is irrelevant to the rule 1.280 (b)(3) analysis. The respondents were the party seeking production of the incident reports, not the petitioner.

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