Bench Memorandum: Reciprocal Discovery in Criminal Cases

____________________
BENCH MEMORANDUM
____________________
MATTER—Reciprocal Discovery in Criminal Cases

AUTHOR—Hon. William H. Burgess, III
DATE—January 14, 2020
____________________
This memorandum sets forth the procedural law regarding pretrial reciprocal
discovery in criminal cases under Florida Rule of Criminal Procedure 3.220.
____________________
I. Generally.
A. Control of the Business of the Court.
The trial court has the inherent power and obligation to control the courtroom for the
purposes of ascertaining the truth, promoting judicial economy, and protecting witnesses.1 In the
context of the adjudicative process, those powers include, among others, the power to preclude
the admission of evidence in order to curb litigation abuses; to reasonably manage and control
the conduct of the litigation and its participants; to control the mode and interrogation of
witnesses; and, to remedy different forms of litigation abuse.2 Stated otherwise, the inherent
powers of a court consists of all powers required to enable a court to perform efficiently its
judicial functions, to protect its dignity, independence and integrity, and to make its lawful
actions effective, consistent with the constitution and applicable statutes.3 As a corollary, the
trial judge’s directives in the proper exercise of this authority must be obeyed.4
1
Hahn v. State, 58 So. 2d 188 (Fla. 1952) (“A trial court has wide latitude in regulating the conduct of trials
in order that the administration of justice be speedily and fairly achieved in an orderly, dignified manner and
befitting the gravity of the business at hand.”); Medina v. State, 573 So. 2d 293, 295 (Fla. 1990); see also McCrae v.
State, 908 So. 2d 1095, 1096 (Fla. 1st DCA 2005) (“Trial judges have broad authority to manage their courtrooms so
that the people’s business may be conducted fairly, efficiently, and expeditiously.”); Stevenson v. State, 234 So. 3d
828 (Fla. 1st DCA 2017) (“Trial courts have wide latitude to regulate proceedings before them in order that the
administration of justice be speedily and fairly achieved in an orderly, dignified manner.”). The inherent powers
doctrine provides that when a constitution or statute gives a general power, or enjoins a duty, it also gives by
implication every particular power necessary for the exercise of the one or the performance of the other. State ex rel.
Ross v. Call, 39 Fla. 504, 507, 22 So. 748 (Fla. 1897); Thomas McIntyre Cooley, Constitutional Limitations
(Boston: Little, Brown and Co. 1868) 64; see also Roger A. Silver, “The Inherent Power of the Florida Courts,” 29
U. Miami L. Rev. 257 (January 1985).
2
See Grant v. State, 764 So. 2d 804, 806-807 (Fla. 2d DCA 2000) (Salcines, J., concurring).
3
See In re State ex re. Skurka, 512 S.W. 2d 444, 452 (Ct. App. Tx. 2016).
4
Bowen v. State, 677 So. 2d 863, 866 (Fla. 2d DCA 1996).
B. Purposes of Discovery.
A fundamental tenet of Florida’s legal system is that a search for truth and justice can be
accomplished only when all relevant facts are before the judicial tribunal, and that those relevant
facts should be the determining factor rather than gamesmanship, surprise, or superior trial
tactics.5 Upon this belief, the Florida Supreme Court has adopted discovery as a part of the
state’s procedural rules to improve the system of justice. Discovery is a tool intended (1) to
identify at early stages of a proceeding the real issues to be resolved; (2) to provide each party
with all available sources of proof as early as possible to facilitate trial preparation; and (3) to
abolish the tactical element of surprise in or adversary trial process.6 The creation of such rules
were thus meant to make a trial less a game of blind man’s bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practical extent.7 These rules also reflect a
consensus among courts that cases should be decided on the merits and not by a lawyer’s
stooping to sneaky or underhanded trial tactics.8
The policy of avoiding trial by ambush or surprise has even greater application in the
criminal context, where the stakes are much higher and the obligation of the State to see that
justice is done is much greater than that of the litigants in a civil dispute.9 Florida’s criminal
discovery rules are intended to facilitate a truthful fact-finding process and avoid trial by surprise
or ambush by either the prosecution or defense.10
C. Good Faith and the Duty to Cooperate.
Because full and fair discovery is essential to assisting the truth-finding functions of our
justice system and avoiding trial by ambush, the Florida Supreme Court has repeatedly
emphasized, in both the criminal and civil contexts, not only compliance with the technical
5
Dodson v. Persell, 390 So. 2d 704, 707 (Fla. 1980); Binger v. King Pest Control, 401 So. 2d 1310, 1313-
1314 (Fla. 1981) (The goals of the discovery rules are to eliminate surprise, to encourage settlement, and to assist in
arriving at the truth.).
6
Dodson v. Persell, 390 So. 2d 704, 706 (Fla. 1980).
7
See Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947). See also Surf Drugs, Inc.
v. Vermette, 236 So. 2d 108, 111 (Fla. 1970) (“A primary purpose in the adoption of the Florida Rules of Civil
Procedure is to prevent the use of surprise, trickery, bluff, and legal gymnastics. Revelation through discovery
procedures of the strengths and weaknesses of each side before trial encourages settlement of cases and avoids costly
litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate
results.”).
8
See, e.g., The Florida Bar v. Cocalis, 959 So. 2d 163, 167 (Fla. 2007).
9
Scipio v. State, 928 So. 2d 1138, 1145 (Fla. 2006).
10
Kilpatrick v. State, 376 So. 2d 386, 388 (Fla. 1979).
Reciprocal Discovery in Criminal Cases

2 Hon. William H. Burgess, III January 14, 2020)
provisions of the discovery rules, but also adherence to the purpose and spirit of those rules.11
The success with which the rules of discovery are applied toward the search for the truth
depends, however, on the professionalism and integrity of the attorneys involved.12 For this
reasons, lawyers have a duty under the interrelated rules of discovery and professionalism to act
in good faith in complying with their discovery obligations, and to cooperate with opposing
counsel in facilitating forthright discovery.13
This duty to cooperate with opposing counsel is a basic requirement of being licensed to
practice law in Florida. The Oath of Admission to the Florida Bar, for example, obligates all
Florida attorneys to “employ for the purpose of maintaining the causes confided to me such
means only as are consistent with truth and honor,” and to pledge “fairness,14 integrity, and
civility” to opposing parties and their counsel in court and in all written and oral
communications. Likewise, the Florida Bar Creed of Professionalism requires lawyers to
“strictly adhere to the spirit as well as the letter of [the legal] profession’s code of ethics, to the
extent that the law permits and ... at all times be guided by a fundamental sense of honor,
integrity, and fair play.” These principles are embodied in the following Rules Regulating the
Florida Bar: Rule 3-4.3,15 Rule 4-3.3,16 Rule 4-3.4,17 and Rule 4-8.4(d).18 The specific purposes
of these pledges and duties is to eliminate the improper “gotcha” tactics that generate disputes
11
See Scipio v. State, 928 So. 2d 1138 (Fla. 2006); Binger v. King Pest Control, 401 So. 2d 1310, 1313-
1314 (Fla. 1981).
12
See Malautea v. Suzuki Motor Car Co., Ltd., 987 F. 2d 1536, 1546 (11th Cir. 1993).
13
In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 342 (N.D. Ill. 2005).
14
Fairness to opposing parties and their counsel means treating them in a way that is right and reasonable, in
a manner that is even-handed, impartial, honest, and respectful, and without favoritism or discrimination. See
Black’s L. Dict. 595 (1990 ed.).
15
“The standards of professional conduct required of members of the bar are not limited to the observance
of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting
grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed
as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty
and justice may constitute a cause for discipline . . .” R. Regulating Fla. Bar 3-4.3.
16
Lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the
adjudicative process.” R. Regulating Fla. Bar 4-3.3 comment.
17
“Fair competition in the adversary system is secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” R. Regulating
Fla. Bar 4-3.4 comment.
18
“A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the
administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or
discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis . . .” R. Regulating
Fla. Bar 4-8.4(d).

that unfairly and needlessly consume public and private resources while delaying the process of
justice and making it more expensive,19 as well as to outlaw argumentum ad hominem20 that
subverts the administration of justice and undermines the public’s confidence in our system of
justice.21
D. Discretion of the Trial Court.
Discovery is controlled by the trial court, not by the parties: While the parties may
choose the testimony or documents that they deem relevant and discoverable to their opposite
parties, the judge retains the authority to decide what will be produced and whether such
evidence will be admitted at trial or hearing.
The discovery rules, enunciated pursuant to the supreme court’s rule making authority
under Article V, Section 2(a) of the Florida Constitution, grant courts authority to control
discovery in all aspects.22 In addition, the Florida Evidence Code contains an express mandate
requiring the trial court to “exercise reasonable control over the mode and order of the
questioning of witnesses and the presentation of evidence so as to (1) make those procedures
effective for discovery of the truth; (2) avoid wasting time; and (3) protect witnesses from
harassment or undue embarrassment.23 The Evidence Code also authorizes the trial court to call
its own witnesses.24 Further, the Evidence Code gives a trial court discretion to limit the
presentation of evidence that is either irrelevant or outside the scope of a witness’s knowledge.25
19
See Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015).
20
Argumentum ad hominem (“argument against the person”) is a logical fallacy in which a claim or
argument is rejected on the basis of some irrelevant fact about the person presenting the claim or argument. It
comprises an attack against the character, circumstances or actions of the person making the claim or argument and
the taking of this attack to be evidence against the claim or argument the person is making. It is a fallacy because, in
most cases, the character, circumstances, or actions of the person have no bearing on the truth, falsity, or quality of
the claim or argument being made.
21
“The proscription [of Rule 4-8.4(d)] extends to any characteristic or status that is not relevant to the proof
of any legal or factual issue in dispute. Such conduct, when directed towards litigants, jurors, witnesses, court
personnel, or other lawyers . . . subverts the administration of justice and undermines the public’s confidence in our
system of justice, as well as notions of equality.” R. Regulating Fla. Bar 4-8.4(d) Comment.
22
South Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798, 801 (Fla. 3d DCA 1985); Syken v.
Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994).
23
§ 90.612(1), Fla. Stat.
24
§ 90.615, Fla. Stat.
25
See § 90.403, Fla. Stat.; § 90.604, Fla. Stat.

However, the court’s discretion on evidentiary matters is constrained by a criminal defendant’s
right to testify.26
The trial court also has the inherent power to take action to prevent discovery abuses and
other sharp practices, and to deal with them effectively when they do occur. Rule 3.220(n), for
example, provides additional authorization for the court to impose sanctions for violations of the
discovery rule or discovery orders.
A party electing to participate in discovery does not have a substantive right to refuse to
disclose the evidence and witnesses it intends to use at trial or to otherwise make discovery
unreasonably difficult for the opposing party. Where, for example, a prosecutor unfairly tries to
overwhelm the defendant by including mostly irrelevant and immaterial documents mixed in
with the materially relevant documents that are called for under the discovery rule in the hope of
making it impossible for the defense to distill what is germane and relevant to the impending
trial, or otherwise tries to “hide the ball” from the defense,27 trial courts may order the
prosecution to designate the evidence that it will introduce in its case-in-chief when justice so
requires.28 Whether a court should exercise its discretion to order the prosecution to designate
the evidence it will produce at trial in advance of trial does not turn solely on the sheer volume of
the discovery or the complexity of the case, although those characteristics are indeed factors for
the court to consider. Instead, the court’s discretion should be exercised in those few cases in
which some unusual feature of the case hinders the system from arriving at the truth in the
ordinary course.29
II. Rule 3.220
The primary procedural rules of discovery in Florida criminal cases are codified in Rule
3.220 of the Florida Rules of Criminal Procedure. The language of the rule is comprehensive,
but should be read with the understanding that the application of these rules is often shaped by
other rules and doctrines, such as bar rules pertaining to attorney conduct and judicial doctrines
pertaining to fairness and justice.
26
McCray v. State, 71 So. 3d 848 (Fla. 2011).
27
E.g., the courts disfavor the dumping of massive quantities of documents, with no indexing or readily
apparent organization, in response to a document request by an adversary. See In re Mentor Corp. Obtape, 2009
WL 152495 (M.D. Georgia 2009).
28
U.S. v. Blankenship, 2015 WL 4561458 (E.D. Tenn. 2015).
29
See U.S. v. Blankenship, 2015 WL 4561458 (E.D. Tenn. 2015).

A. Notice of Discovery.
Participation in the discovery process is not mandatory for a criminal defendant: An

accused is under no obligation, and correspondingly has no constitutional right, to participate in
the discovery process.30 After the filing of the charging document, a defendant may elect to
participate in the discovery process provided by Rule 3.220, including the taking of discovery
depositions, by filing with the court and serving on the prosecuting attorney a “Notice of
Discovery” which binds both the prosecution and defendant to all discovery procedures
contained in Rule 3.220. Participation by a defendant in the discovery process, including the
taking of any deposition by a defendant or the filing of a public records request under chapter
119, Florida Statutes, for law enforcement records relating to the defendant’s pending
prosecution, which are nonexempt as a result of a codefendant’s participation in discovery,
stands as an election to participate in discovery and triggers a reciprocal discovery obligation for
the defendant. If any defendant knowingly or purposely shares in discovery obtained by a
codefendant, the defendant is deemed to have elected to participate in discovery.31
Reciprocal discovery in criminal cases is not equal discovery, because of the different
roles prosecutors and defense counsel play in the adversary process. This is reflected in the
various provisions of Rule 3.220 that define the respective discovery obligations of the parties.32
B. Prosecutor’s Discovery Obligation.
Within 15 days after service of the Notice of Discovery, the prosecutor is required to
serve a written Discovery Exhibit which must disclose to the defendant and permit the defendant
to inspect, copy, test, and photograph the following information and material within the state’s
possession or control, except that any property or material that portrays sexual performance by a
child or constitutes child pornography may not be copied, photographed, duplicated, or otherwise
reproduced so long as the state attorney makes the property or material reasonably available to
the defendant or the defendant’s attorney:33
— A list of the names and addresses of all persons known to the prosecutor to have
information that may be relevant to any offense charged or any defense thereto, or to any similar
fact evidence to be presented at trial under section 90.404(2), Florida Statutes. The names and
addresses of persons listed must be clearly designated in the following categories:34
30
Kidder v. State, 117 So. 3d 1166, 1173 (Fla. 2d DCA 2013).
31
Fla. R. Crim. P. Rule 3.220(a).
32
See, e.g., Rule 3.220(d)(1)(A), (b)(1)(A)(i), (b)(1)(A)(iii), and (b)(1)(J).
33
Fla. R. Crim. P. Rule 3.220(b)(1).
34
Fla. R. Crim. P. Rule 3.220(b)(1)(A).

Category A. These witnesses must include (1) eye witnesses, (2) alibi witnesses
and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded
statement was taken from or made by a defendant or codefendant, which must be separately
identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor
to have any material information that tends to negate the guilt of the defendant as to any offense
charged, (6) child hearsay witnesses, (7) expert witnesses who have not provided a written report
and a curriculum vitae or who are going to testify, and (8) informant witnesses, whether in
custody, who offer testimony concerning the statements of a defendant about the issues for which
the defendant is being tried.35
Category B. All witnesses not listed in either Category A or Category C.36
Category C. All witnesses who performed only ministerial functions or whom the
prosecutor does not intend to call at trial and whose involvement with and knowledge of the case
is fully set out in a police report or other statement furnished to the defense;37
— The statement of any person whose name is furnished in compliance with the
preceding subdivision. The term “statement” as used herein includes a written statement made
by the person and signed or otherwise adopted or approved by the person and also includes any
statement of any kind or manner made by the person and written or recorded or summarized in
any writing or recording. The term “statement” is specifically intended to include all police and
investigative reports of any kind prepared for or in connection with the case, but does not include
the notes from which those reports are compiled;38
— Any written or recorded statements and the substance of any oral statements made by
the defendant, including a copy of any statements contained in police reports or report
summaries, together with the name and address of each witness to the statements;39
35
Fla. R. Crim. P. Rule 3.220(b)(1)(A)(i).
36
Fla. R. Crim. P. Rule 3.220(b)(1)(A)(ii).
37
Fla. R. Crim. P. Rule 3.220(b)(1)(A)(iii).
38
Fla. R. Crim. P. Rule 3.220(b)(1)(B).
39
Fla. R. Crim. P. Rule 3.220(b)(1)(C). See also § 925.05, Fla. Stat.: “On motion of the defendant after an
indictment, information, or affidavit has been filed,the court shall order the prosecuting attorney to permit the
defendant to photograph or copy any written or recorded statements or confessions of the defendant, whether they
are signed or not. The order shall specify the time, place, and manner of taking the photographs or copies and any
other conditions.”

— Any written or recorded statements and the substance of any oral statements made by a
codefendant;40
— Those portions of recorded grand jury minutes that contain testimony of the
defendant;41
— Any tangible papers or objects that were obtained from or belonged to the defendant;42
— Whether the state has any material or information that has been provided by a
confidential informant;43
— Whether there has been any electronic surveillance, including wiretapping, of the
premises of the defendant or of conversations to which the defendant was a party and any
documents relating thereto;44
— Whether there has been any search or seizure and any documents relating thereto;45
— Reports or statements of experts made in connection with the particular case, including
results of physical or mental examinations and of scientific tests, experiments, or comparisons;46
— Any tangible papers or objects that the prosecuting attorney intends to use in the
hearing or trial and that were not obtained from or that did not belong to the defendant;47
— Any tangible paper, objects, or substances in the possession of law enforcement that
could be tested for DNA;48 and
40
Fla. R. Crim. P. Rule 3.220(b)(1)(D).
41
Fla. R. Crim. P. Rule 3.220(b)(1)(E).
42
Fla. R. Crim. P. Rule 3.220(b)(1)(F).
43
Fla. R. Crim. P. Rule 3.220(b)(1)(G).
44
Fla. R. Crim. P. Rule 3.220(b)(1)(H).
45
Fla. R. Crim. P. Rule 3.220(b)(1)(I).
46
Fla. R. Crim. P. Rule 3.220(b)(1)(J).
47
Fla. R. Crim. P. Rule 3.220(b)(1)(K).
48
Fla. R. Crim. P. Rule 3.220(b)(1)(L).

— Whether the state has any material or information that has been provided by an
informant witness, including:49 the substance of any statement allegedly made by the defendant
about which the informant witness may testify;50 a summary of the criminal history record of the
informant witness;51 the time and place under which the defendant’s alleged statement was
made;52 whether the informant witness has received, or expects to receive, anything in exchange
for his or her testimony;53 and the informant witness’ prior history of cooperation, in return for
any benefit, as known to the prosecutor.54
If the court determines, in camera, that any police or investigative report contains
irrelevant, sensitive information or information interrelated with other crimes or criminal
activities and the disclosure of the contents of the police report may seriously impair law
enforcement or jeopardize the investigation of those other crimes or activities, the court may
prohibit or partially restrict the disclosure.55
The court may prohibit the state from introducing into evidence any of the foregoing
material not disclosed, so as to secure and maintain fairness in the just determination of the
cause.56
As soon as practicable after the filing of the charging document the prosecutor is required
to disclose to the defendant any material information within the state’s possession or control that
tends to negate the guilt of the defendant as to any offense charged, regardless of whether the
defendant has incurred reciprocal discovery obligations.57
It should be noted that, while the prosecutor cannot withhold material evidence favorable
to the accused, it is not the prosecutor’s duty to actively assist the defense in preparing the case.
The defense has the initial burden of trying to discover impeachment evidence, and the
49
Fla. R. Crim. P. Rule 3.220(b)(1)(M).
50
Fla. R. Crim. P. Rule 3.220(b)(1)(M)(i).
51
Fla. R. Crim. P. Rule 3.220(b)(1)(M)(ii).
52
Fla. R. Crim. P. Rule 3.220(b)(1)(M)(iii).
53
Fla. R. Crim. P. Rule 3.220(b)(1)(M)(iv).
54
Fla. R. Crim. P. Rule 3.220(b)(1)(M)(v).
55
56
57

prosecutor is not required to prepare the defendant’s case.58 The prosecutor has no duty to do for
the defense work which the defense can do for itself.59 This is especially true when the
evidence is as accessible to the defense as to the prosecution.60 The prosecutor is not required to
secure for defense counsel such material and information as is not in the possession or under the
control of the prosecutor.61 This does not, however, permit the prosecutor to evade the discovery
rules by a wilful failure to learn that which is available to be learned in order to thwart the
purpose of the rules; lack of knowledge resulting from bad faith would not relieve the prosecutor
of his or her duty to disclose to the defense the material that is otherwise unavailable to the
defense.62
The clear language of Rule 3.220 does not require the prosecution to identify which
documents fall in each category of discovery, it only requires production of documents
responsive to any category. Nor does the rule require the prosecution to specify among the
universe of those documents which of those documents it intends to rely on at trial or to make
specific identification of its case-in-chief documents separately from those it is required to
disclose under a plain reading of the rule. Nothing about this lack of specificity, however,
endows the prosecution with a right of obfuscation, or the right to drown a defendant in a sea of
irrelevant, or even tangentially relevant, documents from a defendant in the hope that the trial
will ensue before the defendant discovers such materials. If it did, Rule 3.220 might would run
afoul of Fifth (due process) and Sixth (speedy trial) Amendments. The rule creates no such
difficulties because, where it has been brought to the attention of the court that a party has failed
to comply with an applicable discovery rule or with an order issued pursuant to an applicable
discovery rule, it authorizes the court “for good cause” to grant such order as it deems just under
the circumstances. Furthermore, although Rule 3.220 does not require the prosecutor to identify
documents it intends to use in its case in chief, the court may, in appropriate circumstances, order
such relief or, in the alternative where full disclosure would force the prosecution to reveal its
trial plans a considerable time before the trial, order the prosecution to identify to the best of its
58
See Matheson v. State, 468 So. 2d 1011, 1013 (Fla. 4 th DCA 1985) (“The discovery rules were drafted to
balance the scales, to require disclosure of material not otherwise available to the defense. They were not meant to
supplant the defendant’s obligation to investigate the case and prepare a defense.”); Cooper v. State, 336 So. 2d
1133, 1138 (Fla. 1976) (The rules of discovery “were not designed to eliminate the onerous burdens of trial practice.
Their purpose was to avail the defense of evidence known to the state so that convictions would not be obtained by
the suppression of evidence favorable to a defendant, or by surprise tactics in the courtroom.”).
59
Matheson v. State, 468 So. 2d 1011 (Fla. 4th DCA 1985).
60
Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987).
61
See State v. Crawford, 257 So. 2d 898 (Fla. 1972).
62
State v. Counce, 392 So. 2d 1029, 1031 (Fla. 4th DCA 1981).

good-faith ability any discrete portions of the discovered material it does not intend to use at
trial.63 However, the court should not entertain such requests for relief lightly.64
C. Disclosure to Prosecution.
After the filing of the charging document and subject to constitutional limitations, the
court may require a defendant to:
— Appear in a lineup;65
— Speak for identification by witnesses to an offense;66
— Be fingerprinted;67
— Pose for photographs not involving re-enactment of a scene;68
— Try on articles of clothing;69
— Permit the taking of specimens of material under the defendant’s fingernails;70
63
The negative-identification approach is especially applicable to situations where the prosecution has
discovered hours of audio recordings. This is because, unlike printed or written documents, audio recordings cannot
be sped-read and have to be listened to in their entirety, and again listened to in whole or in part in order to identify
the relevant material, overcome noise and other recording defects, discern and identify inaudible words or faint,
garbled voices.
64
No Florida appellate court has specifically addressed over-inclusiveness as a matter of discovery abuse.
For examples of how federal courts have dealt with this issue, see U.S. v. Kenny, et al., 462 F. 2d 1205 (3d Cir.
1972) (room containing all documents containing all tangible evidence related to the case kept open to defendants
six days a week prior to trial and seven days a week during trial gave defendants ample opportunity to prepare
defense); U.S. v. Turkish, 458 F. Supp. 874, 882 (S.D.N.Y. 1978) (it is improper for the prosecution to bury the
defendant in paper by making all documents generally available); U.S. v. McDade, 1992 WL 382351 (E.D. Penn.
1992); U.S. v. Perraud, 2009 U.S. Dist. LEXIS 123150 (S.D. Fla. 2009) (rule of discovery and principles of due
process demand that the prosecutor provide “meaningful” discovery) ; U.S. v. Vasquez-Ruiz, 136 F. Supp. 2d 941
(N.D. Ill. 2001) (granting in part, and denying in part, a motion for bill of particulars).
65
Fla. R. Crim. P. Rule 3.220(c)(1)(A).
66
Fla. R. Crim. P. Rule 3.220(c)(1)(B).
67
Fla. R. Crim. P. Rule 3.220(c)(1)(C).
68
Fla. R. Crim. P. Rule 3.220(c)(1)(D).
69
Fla. R. Crim. P. Rule 3.220(c)(1)(E).
70
Fla. R. Crim. P. Rule 3.220(c)(1)(F).

— Permit the taking of samples of the defendant’s blood, hair, and other materials of the
defendant’s body that involves no unreasonable intrusion thereof;71
— Provide specimens of the defendant’s handwriting;72 and
— Submit to a reasonable physical or medical inspection of the defendant’s body.73
If the personal appearance of a defendant is required for the foregoing purposes,

reasonable notice of the time and location of the appearance must be given by the prosecuting
attorney to the defendant and his or her counsel. Provisions may be made for appearances for
such purposes in an order admitting a defendant to bail or providing for pretrial release.74
D. Defendant’s Obligation.
If a defendant elects to participate in discovery, either through filing the appropriate

notice or by participating in any discovery process, including the taking of a discovery
deposition, the following disclosures must be made:75
— Within 15 days after receipt by the defendant of the Discovery Exhibit furnished by
the prosecutor pursuant to Rule 3.220(b)(1)(A), the defendant must furnish to the prosecutor a
written list of the names and addresses of all witnesses whom the defendant expects to call as
witnesses at the trial or hearing. When the prosecutor subpoenas a witness whose name has been
furnished by the defendant, except for trial subpoenas, the rules applicable to the taking of
depositions must apply.76
— Within 15 days after receipt of the prosecutor’s Discovery Exhibit the defendant must
serve a written Discovery Exhibit which must disclose to and permit the prosecutor to inspect,
copy, test, and photograph the following information and material that is in the defendant's
possession or control:77 the statement of any person listed under Rule 3.220(d)(1)(A), other than
71
Fla. R. Crim. P. Rule 3.220(c)(1)(G).
72
Fla. R. Crim. P. Rule 3.220(c)(1)(H).
73
Fla. R. Crim. P. Rule 3.220(c)(1)(I).
74
Fla. R. Crim. P. Rule 3.220(c)(2).
75
Fla. R. Crim. P. Rule 3.220(d)(1).
76
Fla. R. Crim. P. Rule 3.220(d)(1)(A).
77
Fla. R. Crim. P. Rule 3.220(d)(1)(B).

that of the defendant;78 reports or statements of experts, that the defendant intends to use as a
witness at a trial or hearing, made in connection with the particular case, including results of
physical or mental examinations and of scientific tests, experiments, or comparisons;79 and any
tangible papers or objects that the defendant intends to use in the hearing or trial.80
The prosecutor and the defendant are required to perform their obligations under Rule
3.220 in a manner mutually agreeable or as ordered by the court.81
The filing of a motion for protective order by the prosecutor will automatically stay the
times provided for in Rule 3.220(d). If a protective order is granted, the defendant may, within 2
days thereafter, or at any time before the prosecutor furnishes the information or material that is
the subject of the motion for protective order, withdraw the defendant’s notice of discovery and
not be required to furnish reciprocal discovery.82
E. Restricting Disclosure.
The court on its own initiative or on motion of counsel must deny or partially restrict
disclosures authorized by Rule 3.220 if it finds there is a substantial risk to any person of
physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or
embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to
either party.83
F. Additional Discovery.
On a showing of materiality, the court may require such other discovery to the parties as
justice may require.84
Rule 3.220 sets forth the discovery obligations of the defense as well as the prosecution.
The rule is intended to prescribe the minimum amount of discovery to which the parties are
78
Fla. R. Crim. P. Rule 3.220(d)(1)(B)(i).
79
Fla. R. Crim. P. Rule 3.220(d)(1)(B)(ii).
80
Fla. R. Crim. P. Rule 3.220(d)(1)(B)(iii).
81
82
83
Fla. R. Crim. P. Rule 3.220(e).
84
Fla. R. Crim. P. Rule 3.220(f). The current version of Rule 3.220(f) was adopted in 1989. The committee
notes for the 1989 amendment provide: “Subdivision (f) was previously numbered (a)(5) and has been modified to
permit the prosecutor, as well as the defense attorney, to seek additional discovery.”

entitled, and leaves intact a court’s discretion to grant or deny the broader discovery requests of a
criminal defendant or prosecutor. If a party fails to comply with Rule 3.220, the trial court has
discretion to impose a number of sanctions—it may order discovery, grant a continuance,
exclude the undisclosed evidence, or enter any other order that is just under the circumstances.
Rule 3.220 is entirely silent on the issue of the form that discovery must take; it contains
no indication that documents must be organized or indexed. The rule does not, however, prohibit
a trial court judge from ordering such in appropriate circumstances.
In the discovery context, “material” means reasonably calculated to lead to admissible

evidence. Rule 3.220 also permits exemption of matters from discovery on a showing of good
cause.85 The mere possibility that information may be helpful to a party in its own investigation
does not establish materiality. The party seeking additional discovery has the burden to show
materiality of matters not enumerated in Rule 3.220 or, for the defense, constituting Brady
material.86 Rule 3.220(m) provides a mechanism for a defendant to make a showing of
materiality without revealing privileged or protected information.87
G. Matters Not Subject to Disclosure.
1. Work Product.
Disclosure is not required of legal research or of records, correspondence, reports, or

memoranda to the extent that they contain the opinions, theories, or conclusions of the
prosecuting or defense attorney or members of their legal staffs.88 This leaves a wide range of
other types of work product that is discoverable notwithstanding assertion of the work product
privilege. See the fuller discussion of work product protection, infra.
2. Informants.
Disclosure of a confidential informant can not be required unless the confidential

informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity
will infringe the constitutional rights of the defendant.89
85
Fla. R. Crim. P. 3.220(l )(1).
86
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Demmings v. Brendmoen,
158 So. 3d 622 (Fla. 5th DCA 2014).
87
Jackson v. State, 202 So. 3d 97 (Fla. 4th DCA 2016).
88
Fla. R. Crim. P. Rule 3.220(g)(1).
89
Fla. R. Crim. P. Rule 3.220(g)(2).

The State’s privilege to withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with enforcement of that law is well-
established. The purpose of the privilege is the furtherance and protection of the public interest
in effective law enforcement. The privilege recognizes the obligation of citizens to communicate
their knowledge of violations of law to law enforcement officials and, by preserving their
anonymity, encourages them to perform that obligation. The scope of the privilege is limited by
its underlying purpose. Thus, where the discussion of the contents of a communication will not
tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the
identity of the informer has been disclosed to those who would have cause to resent the
communication, the privilege is no longer applicable. A further limit on the applicability of the
privilege arises from the fundamental requirements of fairness. Where the disclosure of the
informant’s identity, or of the contents of the informant’s communication, is relevant and helpful
to the defense of an accused, or is essential to a fair determination of a cause, the privilege must
give way. In these situations, the trial court may require disclosure and, if the prosecution
withholds the information, dismiss the action. In reaching its determination, the court must
balance the public interest in protecting the flow of information against the right of the defendant
to prepare his or her defense.90
H. Discovery Depositions.
At any time after the filing of the charging document any party may take the deposition
upon oral examination of any person authorized by Rule 3.220. A party taking a deposition must
give reasonable written notice to each other party and must make a good faith effort to coordinate
the date, time, and location of the deposition to accommodate the schedules of other parties and
the witness to be deposed. The notice must state the time and the location where the deposition
is to be taken, the name of each person to be examined, and a certificate of counsel that a good
faith effort was made to coordinate the deposition schedule. After notice to the parties the court
may, for good cause shown, extend or shorten the time and may change the location of the
deposition. Except as provided in Rule 3.220, the procedure for taking the deposition, including
the scope of the examination, and the issuance of a subpoena for deposition by an attorney of
record in the action,91 must be the same as that provided in the Florida Rules of Civil Procedure
and section 48.031, Florida Statutes (which pertains to service of process and service of witness
subpoenas). Any deposition taken pursuant to Rule 3.220 may be used by any party for the
purpose of contradicting or impeaching the testimony of the deponent as a witness. The trial
court or the clerk of the court may, upon application by a pro se litigant or the attorney for any
party, issue subpoenas for the persons whose depositions are to be taken. In any case, including
multiple defendants or consolidated cases, no person can be deposed more than once except by
consent of the parties or by order of the court issued on good cause shown. A witness who
90
Rovario v. U.S., 353 U.S. 53, 59-60, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).
91
See Fla. R. Civ. P. 1.310.

refuses to obey a duly served subpoena may be adjudged in contempt of the court from which the
subpoena issued.92
— The defendant may, without leave of court, take the deposition of any witness listed by
the prosecutor as a Category A witness or listed by a co-defendant as a witness to be called at a
joint trial or hearing. After receipt by the defendant of the Discovery Exhibit, the defendant may,
without leave of court, take the deposition of any unlisted witness who may have information
relevant to the offense charged. The prosecutor may, without leave of court, take the deposition
of any witness listed by the defendant to be called at a trial or hearing.93
— No party may take the deposition of a witness listed by the prosecutor as a Category B
witness except upon leave of court with good cause shown. In determining whether to allow a
deposition, the court should consider the consequences to the defendant, the complexities of the
issues involved, the complexity of the testimony of the witness (e.g., experts), and the other
opportunities available to the defendant to discover the information sought by deposition.94
— A witness listed by the prosecutor as a Category C witness can not be subject to

deposition unless the court determines that the witness should be listed in another category.95
— No deposition can be taken in a case in which the defendant is charged only with a
misdemeanor or a criminal traffic offense when all other discovery provided by Rule 3.220 has
been complied with unless good cause can be shown to the trial court. In determining whether to
allow a deposition, the court should consider the consequences to the defendant, the complexity
of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other
opportunities available to the defendant to discover the information sought by deposition.
However, this prohibition against the taking of depositions is not applicable if following the
furnishing of discovery by the defendant the state then takes the statement of a listed defense
witness pursuant to section 27.04, Florida Statutes.96
No transcript of a deposition for which the state may be obligated to expend funds can be
ordered by a party unless it is in compliance with general law.97
92
Fla. R. Crim. P. Rule 3.220(h)(1).
93
Fla. R. Crim. P. Rule 3.220(h)(1)(A).
94
Fla. R. Crim. P. Rule 3.220(h)(1)(B).
95
Fla. R. Crim. P. Rule 3.220(h)(1)(C).
96
Fla. R. Crim. P. Rule 3.220(h)(1)(D).
97

Depositions of witnesses residing in the county in which the trial is to take place must be
taken in the building in which the trial is going to be held, such other location as is agreed on by
the parties, or a location designated by the court. Depositions of witnesses residing outside the
county in which the trial is to take place must be taken in a court reporter’s office in the county or
state in which the witness resides, such other location as is agreed on by the parties, or a location
designated by the court.98
Depositions of children under the age of 18 are required to be videotaped unless

otherwise ordered by the court. The court may order the videotaping of a deposition or the taking
of a deposition of a witness with fragile emotional strength, or an intellectual disability as
defined in section 393.063, Florida Statutes, to be in the presence of the trial judge or a special
magistrate.99
Subject to the general provisions of Rule 3.220(h)(1), law enforcement officers must
appear for deposition, without subpoena, upon written notice of taking deposition delivered at the
physical address of the law enforcement agency or department, or an e-mail or other address
designated by the law enforcement agency or department, 5 days prior to the date of the
deposition. Law enforcement officers who fail to appear for deposition after being served notice
as required by Rule 3.220 may be adjudged in contempt of court.100
If a witness coordinating office has been established in the jurisdiction pursuant to

applicable Florida Statutes, the deposition of any witness should be coordinated through that
office. The witness coordinating office should attempt to schedule the depositions of a witness at
a time and location convenient for the witness and acceptable to the parties.101
A defendant is not allowed to be physically present at a deposition except on stipulation

of the parties or as provided by Rule 3.220. The court may order the physical presence of the
defendant on a showing of good cause.102 The court may consider: the need for the physical
presence of the defendant to obtain effective discovery;103 the intimidating effect of the
98
99
100
101
102
103
Fla. R. Crim. P. Rule 3.220(h)(7)(A).

defendant’s presence on the witness, if any;104 any cost or inconvenience which may result;105 and
any alternative electronic or audio/visual means available.106
On stipulation of the parties and the consent of the witness, the statement of any witness
may be taken by telephone in lieu of the deposition of the witness. In such case, the witness need
not be under oath. The statement, however, must be recorded and may be used for impeachment
at trial as a prior inconsistent statement pursuant to the Florida Evidence Code.107
I. Investigations Not to Be Impeded.
Except as is otherwise provided as to matters not subject to disclosure or restricted by

protective orders, neither the counsel for the parties nor other prosecution or defense personnel is
allowed to advise persons having relevant material or information, except the defendant, to
refrain from discussing the case with opposing counsel or showing opposing counsel any relevant
material, nor are they otherwise allowed to impede opposing counsel’s investigation of the
case.108
J. Continuing Duty to Disclose.
If, subsequent to compliance with the rules, a party discovers additional witnesses or
material that the party would have been under a duty to disclose or produce at the time of the
previous compliance, the party must promptly disclose or produce the witnesses or material in
the same manner as required under these rules for initial discovery. This duty includes any
additional recorded or unrecorded statements of any person disclosed under Rule 3.220(b)(1)(A)
or (d)(1)(A) that materially alter a written or recorded statement previously provided under Rule
3.220.109
104
Fla. R. Crim. P. Rule 3.220(h)(7)(B).
105
Fla. R. Crim. P. Rule 3.220(h)(7)(C).
106
Fla. R. Crim. P. Rule 3.220(h)(7)(D).
107
108
Fla. R. Crim. P. Rule 3.220(i).
109
Fla. R. Crim. P. Rule 3.220(j).

K. Court May Alter Times.
The court may alter the times for compliance with any discovery under the rules of
criminal procedure on good cause shown.110
L. Protective Orders.
On a showing of good cause, the court shall at any time order that specified disclosures be
restricted, deferred, or exempted from discovery, that certain matters not be inquired into, that
the scope of the deposition be limited to certain matters, that a deposition be sealed and after
being sealed be opened only by order of the court, or make such other order as is appropriate to
protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including
prohibiting the taking of a deposition. All material and information to which a party is entitled,
however, must be disclosed in time to permit the party to make beneficial use of it.111
At any time during the taking of a deposition, on motion of a party or of the deponent,
and upon a showing that the examination is being conducted in bad faith or in such manner as to
unreasonably annoy, embarrass, or oppress the deponent or party, the court in which the action is
pending or the circuit court where the deposition is being taken may: terminate the deposition;112
limit the scope and manner of the taking of the deposition;113 limit the time of the deposition;114
continue the deposition to a later time;115 order the deposition to be taken in open court;116 and, in
addition, may impose any sanction authorized by Rule 3.220.117 If the order terminates the
deposition, it can be resumed thereafter only upon the order of the court in which the action is
pending. Upon demand of any party or deponent, the taking of the deposition must be suspended
for the time necessary to make a motion for an order.118
110
Fla. R. Crim. P. Rule 3.220(k).
111
Fla. R. Crim. P. Rule 3.220(l)(1).
112
Fla. R. Crim. P. Rule 3.220(l)(2)(A).
113
Fla. R. Crim. P. Rule 3.220(l)(2)(B).
114
Fla. R. Crim. P. Rule 3.220(l)(2)(C).
115
Fla. R. Crim. P. Rule 3.220(l)(2)(D).
116
Fla. R. Crim. P. Rule 3.220(l)(2)(E).
117
Fla. R. Crim. P. Rule 3.220(l)(2)(F).
118
Fla. R. Crim. P. Rule 3.220(l)(2).

M. In Camera and Ex Parte Proceedings.
Any person may move for an order denying or regulating disclosure of sensitive matters.
The court may consider the matters contained in the motion in camera.119
Upon request, the court must allow the defendant to make an ex parte showing of good
cause for taking the deposition of a Category B witness.120
A record must be made of proceedings authorized under Rule 3.220(m). If the court
enters an order granting relief after an in camera inspection or ex parte showing, the entire record
of the proceeding must be sealed and preserved and be made available to the appellate court in
the event of an appeal.121
N. Sanctions.
If, at any time during the course of the proceedings, it is brought to the attention of the
court that a party has failed to comply with an applicable discovery rule or with an order issued
pursuant to an applicable discovery rule, the court may order the party to comply with the
discovery or inspection of materials not previously disclosed or produced, grant a continuance,
grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence
the material not disclosed, or enter such other order as it deems just under the circumstances.122
Willful violation by counsel or a party not represented by counsel of an applicable

discovery rule, or an order issued pursuant thereto, subjects counsel or the unrepresented party to
appropriate sanctions by the court. The sanctions may include, but are not limited to, contempt
proceedings against the attorney or unrepresented party, as well as the assessment of costs
incurred by the opposing party, when appropriate.123
Every request for discovery or response or objection, including a notice of deposition

made by a party represented by an attorney, must be signed by at least one attorney of record, as
defined by Florida Rule of Judicial Administration 2.505, in the attorney’s individual name,
whose address must be stated. A party who is not represented by an attorney mustl sign the
request, response, or objection and list his or her address. The signature of the attorney
constitutes a certification that the document complies with Florida Rule of Judicial
119
Fla. R. Crim. P. Rule 3.220(m)(1).
120
121
122
Fla. R. Crim. P. Rule 3.220(n)(1).
123

Administration 2.515.124 The signature of the attorney or party constitutes a certification that the
signer has read the request, response, or objection and that to the best of the signer’s knowledge,
information, or belief formed after a reasonable inquiry it is: consistent with these rules and
warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law;125 not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation;126 and not unreasonable or unduly
burdensome or expensive, given the needs of the case and the importance of the issues at stake in
the litigation.127 If a request, response, or objection is not signed, it must be stricken unless it is
signed promptly after the omission is called to the attention of the party making the request,
response, or objection, and a party is not to be obligated to take any action with respect to it until
it is signed.128
If a certification is made in violation of Rule 3.220, the court, on motion or on its own
initiative, is required to impose on the person who made the certification, the firm or agency with
which the person is affiliated, the party on whose behalf the request, response, or objection is
made, or any or all of the above an appropriate sanction, which may include an order to pay the
amount of the reasonable expenses incurred because of the violation, including a reasonable
attorney’s fee.129
O. Pretrial Conference.
The trial court may hold one or more pretrial conferences, with trial counsel present, to
consider such matters as will promote a fair and expeditious trial. The defendant must be present
unless the defendant waives this in writing.130
The court may set, and upon the request of any party must set, a discovery schedule,
including a discovery cut-off date, at the pretrial conference.131
124
125
Fla. R. Crim. P. Rule 3.220(n)(3)(A).
126
Fla. R. Crim. P. Rule 3.220(n)(3)(B).
127
Fla. R. Crim. P. Rule 3.220(n)(3)(C).
128
Fla. R. Crim. P. Rule 3.220(n).
129
Fla. R. Crim. P. Rule 3.220(n).
130
Fla. R. Crim. P. Rule 3.220(o)(1).
131
Fla. R. Crim. P. Rule 3.220(o)(2).

III. Work Product Doctrine.
A. Generally.
The work product doctrine is a litigation privilege that protects legal research, records,
correspondence, reports, or memoranda prepared in anticipation of litigation to the extent that
they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or
members of their legal staffs, regardless of whether they pertain to confidential conversations
between attorney and client. The rationale supporting the work product doctrine is that one party
is not entitled to prepare his or her case through the investigative work product of his adversary
where the same or similar information is available through ordinary investigative techniques and
discovery procedures.132
The work product privilege is broader than the attorney-client privilege because its
protections extend beyond communications between attorney and client. While the mere
showing of a voluntary disclosure to a third person will generally suffice to show waiver of the
attorney-client privilege, it should not suffice in itself for waiver of the work product privilege.
The work product privilege will protect opinion work product that has been disclosed to third
parties, unless disclosure is inconsistent with maintaining secrecy from possible adversaries.
Thus, a disclosure to a party sharing a common interest is not inconsistent with the policies of
encouraging proper and competent advocacy and protecting privacy that underlie the work
product doctrine.133
An attorney cannot have any significant interest in fact work product where his client has
waived all privileges related thereto and the litigation for which the work product was generated
has terminated. Some of an attorney’s interests in opinion work product, however, survive the
client’s waiver and the termination of the litigation for which the work product was prepared.
The work-product doctrine seeks to protect a complex of interrelated interests that range from
clients’ interests in obtaining good legal advice, undistorted by mechanisms to avoid discovery,
to the interests of attorneys in their own intellectual product. As with the attorney-client
privilege, the work-product doctrine seeks to protect the client's interests in obtaining complete
legal representation, however, unlike the attorney-client privilege, the work-product doctrine also
seeks to protect certain interests peculiar to the attorney. Thus, while the attorney-client privilege
belongs to the client alone, the work-product privilege may be asserted by either the client or the
attorney.134
132
Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994).
133
See Monarch Fire Protection Dist. v. Freedom Consulting & Auditing Services, 2009 WL 2155158 (E.D.
Missouri 2009) and cases cited therein.
134
See State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986).

There are several tests commonly used for determining whether something qualifies for
work product protection: Under the primary purpose test, a material is deserving of work
product protection as long as the primary motivating purpose behind the creation of the material
was to aid in possible future litigation.135 A variation of the primary purpose test authorizes work
product protection when at least one of the principal reasons for generating the material was to
aid in possible future litigation.136 Under the dual purpose test, dual purpose materials are
protected from disclosure if, taking into account the facts surrounding their creation, their
litigation purpose so permeates any non-litigation purpose that the two purposes cannot be
discretely separated from the factual nexus as a whole. Thus, dual purpose materials created
because of the prospect of litigation can be protected even though a non-litigation purpose can
also be ascertained.137 Under the “because of” test, material used for business purposes does not
lose work-product protection if it was created because of anticipated litigation, and would not
have been prepared in substantially similar form but for the prospect of that litigation.138 Under
the sole purpose test, the work product proponent bears the burden of showing that the materials
were prepared for the purpose of assisting an attorney in preparing for litigation, and not for some
other reason.139
Florida recognizes two forms of work product: opinion work product and fact work
product.140 Fact work product traditionally protects that information which relates to the case and
is gathered in anticipation of litigation.141 In comparison, opinion work product consists
primarily of the attorney’s mental impressions, conclusions, opinions, and theories.142 The
distinction between the two forms of work product becomes important when disclosure is sought.
B. Opinion Work Product.
An attorney may not be compelled to disclose the mental impressions resulting from his
or her investigations, labor, or legal analysis unless the product of such investigation itself is
reasonably expected or intended to be presented to the court or before a jury at trial. Only at such
time as the attorney should reasonably ascertain in good faith that the material may be used or
135
See U.S. v. Davis, 636 F. 2d 1028, 1040 (5th Cir. 1981).
136
See Eisenberg v. Carnival Corp., No. 07-22058-CIV, 2008 WL 2946029 (S.D. Fla. July 7, 2008).
137
See In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir.2004).
138
See U.S. v. Adlman, 134 F. 3d 1194 (2nd Cir.1998).
139
See Judicial Watch, Inc. v. U.S. Department of Homeland Security, 926 F. Supp. 2d 121 (D.D.C. 2013).
140
Kidder v. State, 117 So. 3d 1166 (Fla. 2d DCA 2013).
141
142

disclosed at trial is he or she expected to reveal it to the opposing party.143 More simply, if the
materials are only to aid counsel in trying the case, they are work product; if they will be used as
evidence, the materials cease to be work product and become subject to an adversary’s discovery.
If the evidence or material is reasonably expected or intended to be disclosed to the court or jury
at trial, it is subject to the rules of discovery and must be identified, disclosed, and copies
provided to the adverse party in accordance with the trial court’s order and the discovery requests
of the opposing party.144
Opinion work product is virtually undiscoverable absent extraordinary circumstances.145

The rationale for this heightened protection is that if courts failed to protect opinion work
product, lawyers would lose the incentive to do thorough research, relying instead on the
opposing party’s efforts; clients and the adversary system would suffer as a result.146 Among the
circumstances that would permit discovery of opinion work product are those in which the
factual circumstances indicate bad faith or fraud.147
C. Fact Word Product.
Fact work product is subject to discovery upon a showing that the party seeking discovery
has need of the materials in the preparation of the case and that the seeking party is unable
without undue hardship to obtain the substantial equivalent of the materials by other means.148
The standard is not whether it is possible to obtain the information, but whether it would cause
undue hardship.149
143
Northrup v. Acken, 865 So. 2d 1267, 1272 (Fla. 2004).
144
Northrup v. Acken, 865 So. 2d 1267, 1270 (Fla. 2004).
145
See Gundacker v. Unisys Corp., 151 F. 3d 842, 847 (8th Cir. 1998) (“In rare circumstances, a party
opponent is permitted to discover opinion work product.”); see Myron By and Through Brock v. Doctors General,
Ltd., 573 So. 2d 34 (Fla. 4th DCA 1990) (Respondents are not entitled to discovery of either the identity or the
opinions of any specially retained non-witnesses absent a showing of exceptional circumstances under which it is
impractical for the respondents to obtain facts or opinions on the same subject by other means).
146
See In re Allen, 106 F. 3d 582, 607 (4th Cir. 1997).
147
See, e.g., State v. Mark Marks, P.A., 654 So. 2d 1184, 1187 (Fla. 4th DCA 1995); Allstate Indemnity Co.
v. Ruiz, 899 So. 2d 1121, 1123-24 (Fla. 2005).
148
Kidder v. State, 117 So. 3d 1166, 1171 (Fla. 2d DCA 2013); Southern Bell Tel. & Tel. Co. v. Deason,
632 So. 2d 1377, 1384 (Fla. 1994).
149
See Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383-85 (Fla. 1994).

D. Prosecutors
The work product privilege is generally not available to protect materials in the files of
state prosecutors because the Public Records Act applies to those records. The Florida
Legislature has, however, enacted the following limited exception to the Act for prosecutor
opinion work product:
A public record that was prepared by an agency attorney (including an attorney employed or
retained by the agency or employed or retained by another public officer or agency to protect or
represent the interests of the agency having custody of the record) or prepared at the attorney’s
express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory
of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or
for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil
or criminal litigation or imminent adversarial administrative proceedings, is exempt from s.
119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or
adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in
s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public
records prepared for direct appeal as well as for all capital collateral litigation after direct appeal
until execution of sentence or imposition of a life sentence.150
E. Discovery of Work Product.
Rule 3.220 allows a court to weigh the application of the work product privilege against
the genuine needs of the litigant seeking discovery. Thus, a litigant may gain access to otherwise
privileged information upon showing (1) a substantial need for the materials in the preparation of
the party’s case; and (2) that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. This exception acts as a counterweight to the
potentially broad reach of the work product privilege, and prevents its use as a tool to thwart
good faith discovery efforts. Application of this exception requires a fact-based inquiry into the
needs of the party seeking discovery as well as into the hardship that might be avoided by
allowing discovery. Such an inquiry necessarily reposes a great deal of discretion in the trial
judge, who, of course, acts as the fact finder in discovery disputes.
1. Burden of the Party Seeking Work Product Information.
The process begins with a motion to compel discovery that of necessity contains a
particularized showing that the movant meets the need and undue hardship standard.151 A legally
competent showing of substantial need for the materials in the preparation of the party’s case,
150
§ 119.071(1)(d)1., Fla. Stat. Note that § 90.502(6) ensures that the State of Florida and its subdivisions
can assert the attorney-client privilege for confidential communications with their attorney that are not subject to the
Sunshine Law or the Public Records Act, and § 119.071(2)(c)1., Fla. Stat., exempts from public disclosure criminal
investigative information as long as the investigation remains active.
151
See Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279 (Fla. 3d DCA 1995).

and that the party is unable without undue hardship to obtain the substantial equivalent of the
materials by other means, is more than a bare assertion and must include specific explanations
and reasons. Unsworn assertions of counsel are insufficient to meet this burden.152
a. Need.
To show “need,” a party must present testimony or other evidence demonstrating the
material requested is critical to the theory of the requestor’s case, or to some significant aspect of
the case, e.g., that the documents sought are relevant to the substantive issues or the credibility of
witnesses.153
b. Undue Hardship.
In order to demonstrate undue hardship, the requesting part must make a particularized
showing that other avenues for obtaining the material have been exhausted. What hardship is
“undue” usually depends on the extent to which there are alternate means of obtaining the
information and the need for continuing protection against discovery. The requirement of need
encompasses a showing diligence by the party seeking the other party’s work product, as dilatory
attorneys should not be able to take advantage of their opponents’ diligent preparation.154 Courts
generally will not find undue hardship based on mere inconvenience or expense, unless the
expenditure of cost and effort is substantially disproportionate to what is at stake in the litigation
and to the value of the desired information to the requesting party. Courts are more likely to find
undue hardship where the needed materials are exclusively in the opposing party’s possession, or
where the person possessing the materials has refused to respond to discovery requests.155
2. Burden of the Party Asserting Work Product Protection.
The party asserting applicability of a privilege that interferes with the truth-seeking
process bears a heavy burden, because such privileges are not lightly created and must be strictly
construed. Work product privilege is not self-executing. The proponent of such a privilege must
make a timely objection to the disclosure of the information, and failure to object may constitute
a waiver. Once a party objects to discovery based on privilege, that party has the burden of
152
North Broward Hospital Dist. v. Button, 592 So. 2d 367 (Fla. 4th DCA 1992).
153
See Zirkelbach Const., Inc. v. Rajan, 93 So. 3d 1124, 1130 (Fla. 2d DCA 2012). See also Ehrhardt, 1
Florida Practice: Florida Evidence § 502.9 (2019 ed.).
154
Ehrhardt, 1 Florida Practice: Florida Evidence § 502.9 (2019 ed.); see also Proctor & Gamble Co. v.
Swilley, 462 So. 2d 1188, 1194 (Fla. 1st DCA 1985).
155
See David M. Greenwald, Erin R. Schrantz, and Michele L. Slachetka, 1 Testimonial Privilege § 2:25 (3d
ed. 2019).

establishing each element of the asserted privilege to show that it does exist.156 When, however,
documents appear on their face to be privileged, the party seeking disclosure must prove that they
are not privileged. If an exception to the privilege applies, the party seeking disclosure bears the
burden of proving facts in support of that exception.”157
Once an objection is made that the information or materials sought are protected work
product, it becomes the decision of the requesting party to proceed with a motion to compel
additional discovery or to accept the objection. If the motion to compel challenges the status of
the requested information as work product, the party asserting the work product protection must
then show, at an ex parte in camera hearing if necessary, that the information or materials were
prepared in anticipation of litigation and whether it is opinion work product, fact work product,
or a mixture of both. That is, the party asserting protection under the work product doctrine is
required to demonstrate that the drafter or creator anticipated litigation at the time the sought-
after information, documents, or other material were created. This means that materials created
in the ordinary course of business may be discoverable unless the materials are not infused with a
litigation purpose. In determining whether materials are protected, a court must determine when
and why a contested information, document, or material was created.158
For example, a party may assert that the very selection of documents to be used at trial is
protected opinion work product. To establish that the work product privilege does, in fact, apply
to an attorney’s selection of documents to be used at trial, a court should first determine that (1)
disclosure of the documents would create a “real, non-speculative danger of revealing the
lawyer’s thoughts,” and (2) a lawyer had a justifiable expectation that such mental impressions
revealed by the materials would remain private.159 A criminal prosecutor asserting the privilege
also must show that its ability to prosecute the case would be significantly impaired by
disclosure.160 Without some showing or assurance that the mental impressions of attorneys
would be revealed, however, the work product doctrine is not applicable and no court can decide
that a party is entitled to the privilege claimed. A court may, therefore, permit ex parte
156
See Ehrhardt, 1 Florida Practice: Florida Evidence § 501.1 n. 10 (2018 ed.), citing Southern Bell Tel. &
Tel. Co. v. Deason, 632 So. 2d 1377, 27 A.L.R. 5th 829 (Fla. 1994); State v. Rabin, 495 So. 2d 257 (Fla. 3d DCA
1986).
157
See MCC Management of Naples, Inc. v. Arnold & Porter LLP, 2010 WL 1817585 (M.D. Fla. 2010).
158
See Burrow v. Forjas Taurus S.A., 334 F. Supp. 1222, 1227 (S.D. Fla. 2018).
159
See, e.g., Hambrian v. C.I.R., 118 T.C. No. 35 (2002).
160
See State v. Cummins, 225 So.3 d 417 (Fla. 5th DCA 2017) (trial court’s discovery order requiring
prosecutor to disclose to the defense which, out of a number or recorded jail calls between defendant and others
departs from the essential requirements of the law); see State v. Williams, 678 So. 2d 1356, 1358 (Fla. 3d DCA
1996) (prosecutor did not have to tell defendants which documents, out of 285 boxes of documents, it intended on
using at trial because to do so would violate the work product doctrine). Note that neither of these opinions explains
the process followed or the rationale used to reach their respective decisions.

communication of the strategy the party claiming the privilege wishes to conceal and an in
camera review of the relevant documents so that the court may make an intelligent assessment
whether disclosure of the compilation will reveal a party’s litigation strategy.
A “showing” in this sense is more than a bare assertion; it consists of specific

explanations and reasons.161 The demonstration of need and undue hardship must be supported
by competent evidence in the form of testimony or affidavits. The argument of counsel is not a
substitute for evidence.162 Absent the prescribed showing, the work product protection against
disclosure remains intact and undisturbed.163
One method of meeting the burden to establish work product privilege is the submission
of a “Vaughn index,”164 or privilege log, such as is authorized in civil cases under Florida Rule of
Civil Procedure 1.280(b)(6),165 and an explanatory affidavit from counsel. Some courts require
that a privilege log contain basic information about each separate document or communication
over which the party asserts a privilege. An example of a simplified privilege log is as follows:
Bates No. Document Date of Author/ Recipient Persons With Subject Category
Type Document Capacity Access Matter of
Privilege
1 1091 - 1093 Letter 10/08/2012 PI Jones Atty. Johns Atty. Smythe Confidential Work
report of Product
meeting with
potential
defense witness
2 2404-2403 Email 11/04/2014 Defendant Atty. Smythe Atty. Johns Confidential Attorney-
A communication Client
from client
seeking legal
advice
3 2738-2742 Report 06/18/2016 Dr. David Johns Smythe, Atty. Johns Confidential Work
Bland LLP Atty. Smythe report of expert Product
Annie Banks
161
Speer v. Desrosiers, 361 So. 2d 722, 723 (Fla. 4th DCA 1978).
162
Zirkelbach Constr., Inc. v. Rajan, 93 So. 3d 1124, 1130 (Fla. 2d DCA 2012); North Broward Hosp. Dist.
v. Button, 592 So. 2d 367 Fla. 4th DCA 1992) (unsworn assertions of plaintiff’s counsel were insufficient to
constitute a showing of need and undue hardship).
163
See Transamerica Ins. Co. v. Maze, 318 So. 2d 200, 201 (Fla. 2d DCA 1975).
164
The Vaughn index gets its name from Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert. denied 415
U.S. 977 (1974).
165
Fla. R. Civ. P. 1.280(b)(6).

It is with the discovery log that the issue of whether a document is protected by the
attorney-client privilege or the work product doctrine is identified, framed, and the resolution of
the issue begins. Without the log, identifying and framing those types of issues is extremely
difficult, perhaps impossible, and in any event impractical.
3. Weighing by the Court.
It is ultimately for the court to determine whether work product protection applies. Once
the trial court knows the requestor’s theory as to why the items are needed, the trial court should
then conduct an in camera review. During this review, the trial court can evaluate whether the
contested materials provide the requisite evidentiary value alleged by the requesting party, and
determine whether the requested materials are substantially similar to materials already
available.166 When a party so asserts privilege objections in opposition to discovery requests, the
trial court must make specific findings to support its denial of those objections. Such findings
are necessary for meaningful appellate review.167
A non-exhaustive list of factors to be assessed in determining substantial need and

hardship includes: (1) importance of the materials to the party seeking them for case preparation;
(2) the difficulty the party will have in obtaining them by other means; and (3) the likelihood that
the party, even if the party obtains the information by independent means, will not have the
substantial equivalent of the documents the party seeks.168 In criminal cases in which the
defendant seeks discovery of information the state claims is privileged against discovery, courts
weigh the interests of the defendant receiving the information against the state’s countervailing
interest in keeping the information undisclosed. In balancing these interests, the factors
ordinarily considered may include:
–– Whether disclosure of the information would expedite the trial and facilitate docket
control;
— Whether disclosure would cause a security issue for the state witnesses;
–– The amount of time the defendant already had to research discovery and prepare for
his or her defense;
–– Whether the state has previously provided the information to the defendant;
–– Whether the charged offense is a crime of violence;
–– Whether the defendant has a criminal history of crimes of violence;
–– Whether provision of the information will realistically have an adverse effect on the
state to present its case at trial;
166
See Zirkelbach Const., Inc. v. Rajan, 93 So. 3d 1124, 1130 (Fla. 2d DCA 2012).
167
State Farm Mutual Automobile Ins. Co. v. Knapp, 234 So. 2d 843 (Fla. 5th DCA 2018).
168
See Fidelity National Title Insurance Company v. Wells Fargo, 2013 WL 12138558 (S.D. Fla. 2013).

–– Whether the case is complex and difficult, including allegations of offenses committed
over an extended period of time; and
–– Whether investigation of the case and trial preparation will strain the defendant’s
limited resources.
The court’s determination of whether there has been a showing of exceptional

circumstances which justify piercing the qualified work product immunity ultimately rests upon
the balance struck in the particulars of a concrete case between the competing interests of
disclosure and protection for the fruits of the lawyer’s labor.169
169
See, e.g., U.S. v. Swift & Co., 24 F.R.D. 280, 284 (N.D. Ill. 1959); Kearney & Trecker Corp. v. Giddings
& Lewis, Inc., 296 F. Supp. 979, 982 (E.D. Wis. 1969).

Table of Authorities
Court Opinions
Florida
Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)

Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996)
Cooper v. State, 336 So. 2d 1133 (Fla. 1976)
Demmings v. Brendmoen, 158 So. 3d 622 (Fla. 5th DCA 2014)
Dodson v. Persell, 390 So. 2d 704 (Fla. 1980)
Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015)
Grant v. State, 764 So. 2d 804 (Fla. 2d DCA 2000)
Hahn v. State, 58 So. 2d 188 (Fla. 1952)
Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987)
Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279 (Fla. 3d DCA 1995)
Jackson v. State, 202 So. 3d 97 (Fla. 4th DCA 2016)
Kidder v. State, 117 So. 3d 1166 (Fla. 2d DCA 2013)
Kilpatrick v. State, 376 So. 2d 386, (Fla. 1979)
Matheson v. State, 468 So. 2d 1011 (Fla. 4 th DCA 1985)
McCrae v. State, 908 So. 2d 1095 (Fla. 1st DCA 2005)
McCray v. State, 71 So. 3d 848 (Fla. 2011)
Medina v. State, 573 So. 2d 293 (Fla. 1990)
Myron By and Through Brock v. Doctors General, Ltd., 573 So. 2d 34 (Fla. 4th DCA 1990)
North Broward Hospital Dist. v. Button, 592 So. 2d 367 (Fla. 4th DCA 1992)
Northrup v. Acken, 865 So. 2d 1267 (Fla. 2004)
Proctor & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)
Scipio v. State, 928 So. 2d 1138 (Fla. 2006)
Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)
South Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798 (Fla. 3d DCA 1985)
Speer v. Desrosiers, 361 So. 2d 722 (Fla. 4th DCA 1978)
State v. Counce, 392 So. 2d 1029 (Fla. 4th DCA 1981)
State v. Crawford, 257 So. 2d 898 (Fla. 1972)
State v. Cummins, 225 So.3 d 417 (Fla. 5th DCA 2017)
State v. Mark Marks, P.A., 654 So. 2d 1184 (Fla. 4th DCA 1995)
State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986)
State v. Williams, 678 So. 2d 1356 (Fla. 3d DCA 1996)
State ex rel. Ross v. Call, 39 Fla. 504, 22 So. 748 (Fla. 1897)
State Farm Mutual Automobile Ins. Co. v. Knapp, 234 So. 2d 843 (Fla. 5th DCA 2018)
Stevenson v. State, 234 So. 3d 828 (Fla. 1st DCA 2017)
Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970)
Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994)

Tbl. of Auth.-1 Hon. William H. Burgess, III January 14, 2020)
The Florida Bar v. Cocalis, 959 So. 2d 163, 167 (Fla. 2007)
Transamerica Ins. Co. v. Maze, 318 So. 2d 200 (Fla. 2d DCA 1975)
Zirkelbach Const., Inc. v. Rajan, 93 So. 3d 1124 (Fla. 2d DCA 2012)
Texas
In re State ex re. Skurka, 512 S.W. 2d 444 (Ct. App. Tx. 2016)
Federal
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)
Burrow v. Forjas Taurus S.A., 334 F. Supp. 1222 (S.D. Fla. 2018)
Eisenberg v. Carnival Corp., No. 07-22058-CIV, 2008 WL 2946029 (S.D. Fla. July 7, 2008)
Fidelity National Title Insurance Company v. Wells Fargo, 2013 WL 12138558 (S.D. Fla. 2013)
Gundacker v. Unisys Corp., 151 F. 3d 842 (8th Cir. 1998)
Hambrian v. C.I.R., 118 T.C. No. 35 (2002)
Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947)
In re Allen, 106 F. 3d 582 (4th Cir. 1997)
In re Grand Jury Subpoena, 357 F.3d 900 (9th Cir.2004)
In re Mentor Corp. Obtape, 2009 WL 152495 (M.D. Georgia 2009)
In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331 (N.D. Ill. 2005)
Judicial Watch, Inc. v. U.S. Department of Homeland Security, 926 F. Supp. 2d 121 (D.D.C.
2013)
Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F. Supp. 979 (E.D. Wis. 1969)
Malautea v. Suzuki Motor Car Co., Ltd., 987 F. 2d 1536 (11th Cir. 1993)
MCC Management of Naples, Inc. v. Arnold & Porter LLP, 2010 WL 1817585 (M.D. Fla. 2010)
Monarch Fire Protection Dist. v. Freedom Consulting & Auditing Services, 2009 WL 2155158
(E.D. Missouri 2009)
Rovario v. U.S., 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)
U.S. v. Adlman, 134 F. 3d 1194 (2nd Cir.1998)
U.S. v. Blankenship, 2015 WL 4561458 (E.D. Tenn. 2015)
U.S. v. Davis, 636 F. 2d 1028 (5th Cir. 1981)
U.S. v. Kenny, et al., 462 F. 2d 1205 (3d Cir. 1972)
U.S. v. McDade, 1992 WL 382351 (E.D. Penn. 1992)
U.S. v. Perraud, 2009 U.S. Dist. LEXIS 123150 (S.D. Fla. 2009)
U.S. v. Swift & Co., 24 F.R.D. 280, 284 (N.D. Ill. 1959)
U.S. v. Turkish, 458 F. Supp. 874 (S.D.N.Y. 1978)
U.S. v. Vasquez-Ruiz, 136 F. Supp. 2d 941 (N.D. Ill. 2001)
Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert. denied 415 U.S. 977 (1974)
Statutes
§ 90.403, Fla. Stat.

§ 90.502, Fla. Stat.
§ 90.604, Fla. Stat.
§ 90.612, Fla. Stat.
§ 90.615, Fla. Stat.
§ 119.071, Fla. Stat.
§ 393.063, Fla. Stat.
Rules of Court
Fla. R. Civ. P. 1.280

Fla. R. Civ. P. 1.310
Fla. R. Crim. P. Rule 3.220
Rules Regulating The Florida Bar
R. Regulating The Florida Bar 3-4.3

Other Authorities
Black’s L. Dict. (1990 ed.)

Thomas McIntyre Cooley, Constitutional Limitations (Boston: Little, Brown and Co. 1868)
Charles Ehrhardt, 1 Florida Practice: Florida Evidence (2019 ed.)
David M. Greenwald, Erin R. Schrantz, and Michele L. Slachetka, 1 Testimonial Privilege (3d
ed. 2019)
Roger A. Silver, “The Inherent Power of the Florida Courts,” 29 U. Miami L. Rev. 257 (January
1985)


Bench Memorandum: Reciprocal Discovery in Criminal Cases

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Bench Memorandum: Reciprocal Discovery in Criminal Cases

Hochgeladen von

Copyright:

Verfügbare Formate

____________________

MATTER—Reciprocal Discovery in Criminal Cases

A. Control of the Business of the Court.

C. Good Faith and the Duty to Cooperate.

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

D. Discretion of the Trial Court.

Reciprocal Discovery in Criminal Cases

II. Rule 3.220

Reciprocal Discovery in Criminal Cases

Participation in the discovery process is not mandatory for a criminal defendant: An

B. Prosecutor’s Discovery Obligation.

Reciprocal Discovery in Criminal Cases

Category B. All witnesses not listed in either Category A or Category C.36

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

— Speak for identification by witnesses to an offense;66

— Pose for photographs not involving re-enactment of a scene;68

— Try on articles of clothing;69

— Permit the taking of specimens of material under the defendant’s fingernails;70

Reciprocal Discovery in Criminal Cases

— Provide specimens of the defendant’s handwriting;72 and

— Submit to a reasonable physical or medical inspection of the defendant’s body.73

If the personal appearance of a defendant is required for the foregoing purposes,

If a defendant elects to participate in discovery, either through filing the appropriate

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

In the discovery context, “material” means reasonably calculated to lead to admissible

G. Matters Not Subject to Disclosure.

Disclosure is not required of legal research or of records, correspondence, reports, or

Disclosure of a confidential informant can not be required unless the confidential

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

— A witness listed by the prosecutor as a Category C witness can not be subject to

Reciprocal Discovery in Criminal Cases

Depositions of children under the age of 18 are required to be videotaped unless

If a witness coordinating office has been established in the jurisdiction pursuant to

A defendant is not allowed to be physically present at a deposition except on stipulation

Reciprocal Discovery in Criminal Cases

I. Investigations Not to Be Impeded.

Except as is otherwise provided as to matters not subject to disclosure or restricted by

J. Continuing Duty to Disclose.

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

Willful violation by counsel or a party not represented by counsel of an applicable

Every request for discovery or response or objection, including a notice of deposition

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

B. Opinion Work Product.

Reciprocal Discovery in Criminal Cases

Opinion work product is virtually undiscoverable absent extraordinary circumstances.145

C. Fact Word Product.

Reciprocal Discovery in Criminal Cases

E. Discovery of Work Product.

1. Burden of the Party Seeking Work Product Information.

Reciprocal Discovery in Criminal Cases

2. Burden of the Party Asserting Work Product Protection.

Reciprocal Discovery in Criminal Cases

Reciprocal Discovery in Criminal Cases

A “showing” in this sense is more than a bare assertion; it consists of specific

Reciprocal Discovery in Criminal Cases