Man Given the Finger by IHOP Falters in Discovery

     (CN) – The International House of Pancakes need not produce a statement from a prep cook whose severed fingertip allegedly ended up in a customer’s salad, a Florida appeals court ruled.
     According to the complaint filed in Broward County, M. Robinson found a fingertip in a salad served by IHOP and that appendage was later identified as having belonged to prep cook Ronald Neilly.
     An investigator for IHOP’s insurer took a statement from Neilly a few weeks after the incident, and the trial court ordered IHOP to produce the statement.
     IHOP argued on appeal that the statement was privileged as work product “in anticipation of litigation.”
     The Robinsons argued that the statement was in the “normal course of business” and was not protected by privilege.
     A three-judge panel of the Fourth District Court of Appeal in West Palm Beach sided with IHOP last week.
     “Protected work product prepared in anticipation of litigation may include information compiled in response to some event which foreseeably could be made the basis of a legal claim,” the unsigned opinion states.
     Here, Neilly’s statement about the incident was “in anticipation of litigation that was reasonably foreseeable,” the judges found.
     “Furthermore, with respect to respondents’ claim that Neilly made multiple prior inconsistent statements about the extent of his finger injury, this would not justify invading the work product protection,” they added. “Reviewing courts have uniformly rejected the notion that a party is entitled to the other’s work product merely because of the possibility of generating multiple contradictory statements for use as impeachment at a subsequent trial.”

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