Brady et al v. Broward County Sherriff's Office et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-61849-SINGHAL/STRAUSS
JOEL BRADY, individually
and as personal representative of
the Estate of Casheve Brady, et al.,
Plaintiffs,
v.
SHERIFF GREGORY TONY,
in his official capacity as Sheriff of
Broward County, et al.,
Defendants.
/
DISCOVERY ORDER
THIS MATTER came before the Court upon Defendant Anthony Campo’s Motion to
Overrule Plaintiffs’ Asserted Privilege to Request for Production Number One and Compel
Production of the Private Autopsy Report and Materials [DE 56] (the “Motion”). District Judge
Raag Singhal has referred all discovery matters to me for appropriate disposition. [DE 27] at 5. I
have reviewed the Motion, Plaintiffs’ Response [DE 57], and all other pertinent portions of the
record. For the reasons discussed below, the Motion is DENIED.
BACKGROUND
Plaintiffs’ allegations include a claim for wrongful death. [DE 56] at 1; [DE 34] ¶ 1. The
decedent’s cause of death is thus disputed and central to the case. Id. at 1-2. A medical examiner
for Broward County previously performed an official autopsy on the decedent. [DE 57] at 2. After
the medical examiner for Broward County completed the autopsy, Plaintiffs retained a forensic
pathologist for the completion of a private autopsy. Id. According to Plaintiffs, the pathologist
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 1 of 6

2
was retained for a private autopsy at the direction of legal counsel. Id. Plaintiffs state, “Critically,
but for counsel’s direction, the decedent’s family would not have sough a second, private autopsy
at all.” Id. Plaintiffs assert that the private autopsy was a “targeted, litigation-driven investigation
undertaken to assess potential claims and develop case strategy.” Id. Plaintiffs represent that the
procedure was not a routine medical procedure. Id.
During this litigation, Defendant Anthony Campo (“Defendant”) served a request for
production on Plaintiffs that requested the private autopsy report. 	[DE 56] at 2. 	Rather than
produce anything related to the private autopsy, Plaintiffs instead asserted the work-product
doctrine, the attorney-client privilege, and the consulting-expert privilege. 	Id. 	In the Motion,
Defendant concedes that the private autopsy report and related materials are fact work product, id.
at 3, but argues that, because the decedent’s body has been buried, he cannot conduct an
independent autopsy, id. at 2-3. Defendant thus asks for the Court to overrule Plaintiffs’ objections
and compel the production of the private autopsy report and related materials. 	Id. 	Plaintiffs
respond that the private autopsy report is protected work product and consulting expert material,
that Defendant cannot establish substantial need or undue hardship, and that no exceptional
circumstances exist. [DE 57] at 2-7. The Court agrees with Plaintiffs.
ANALYSIS
The Motion will be denied because Defendant has not met his burden to show substantial
need and undue hardship under Rule 26(b)(3) or his burden to show exceptional circumstances
under Rule 26(b)(4).
“Fact work product is subject to discovery ‘only upon a showing that the party seeking
discovery has substantial need of the materials in preparation of the party’s case and that the party
is unable without undue hardship to obtain the substantial equivalent of the materials by other
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 2 of 6

3
means.” 	Cohen v. Gulfstream Training Acad., Inc., 249 F.R.D. 385, 387 n.4 (S.D. Fla. 2008)
(citing Fed. R. Civ. P. 26(b)(3)); Holladay v. Royal Caribbean Cruises, Ltd., 333 F.R.D. 588, 592
(S.D. Fla. 2019) (“Factual work product may be subject to discovery upon the showing of a
‘substantial need’ and the inability to obtain substantially equivalent evidence by other means
without undue hardship.”); Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984)
(citing In re Int’l Sys. & Controls Corp., 693 F.2d 1235, 1240-41 (5th Cir. 1982)). 	“A non-
exhaustive list of factors are assessed in determining substantial need including: (1) the importance
of the materials to the party seeking them for case preparation, (2) the difficulty the party will have
obtaining them by other means, and (3) the likelihood that the party, even if he obtains the
information by independent means, will not have the substantial equivalent of the documents he
seeks.” Holladay, 333 F.R.D. at 592 (quoting Burrow v. Forjas Taurus S.A., 334 F. Supp. 3d 1222,
1229-30 (S.D. Fla. 2018)); see also F.T.C. v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142,
155 (D.C. Cir. 2015) (“[A] moving party’s burden is generally met if it demonstrates that the
materials are relevant to the case, the materials have a unique value apart from those already in the
movant’s possession, and ‘special circumstances’ excuse the movant’s failure to obtain the
requested materials itself.”).
“Additionally, those parties seeking discovery of facts known or opinions held by
consulting experts who are not expected to be called as trial witnesses have the heavy burden of
demonstrating the existence of exceptional circumstances.” Spirit Master Funding, LLC v. Pike
Nurseries Acquisition, LLC, 287 F.R.D. 680, 686 (N.D. Ga. 2012) (first citing In re Shell Oil
Refinery, 132 F.R.D. 437, 442 (E.D. La. 1990); and then citing Hartford Fire Ins. Co. v. Pure Air
on the Lake Ltd. P’ship, 154 F.R.D. 202, 206-07 (N.D. Ind. 1993)); see Fed. R. Civ. P. 26(b)(4)(D);
Tambourine Comercio Internacional SA v. Solowsky, 312 F. App’x 263, 283 n.28 (11th Cir. 2009).
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 3 of 6

4
“The exceptional circumstances requirement has been interpreted by the courts to mean an inability
to obtain equivalent information from other sources.” Spirit Master Funding, 287 F.R.D. at 686-
87 (citations omitted).
Here, Defendant’s Motion fails to demonstrate either exceptional circumstances or
substantial need and undue hardship. The Motion will therefore be denied. For starters, although
Defendant acknowledges the proper standard for one of the exceptions under Rule 26(b)(4)(D) is
“exceptional circumstances,” see [DE 56] at 3, Defendant never actually argues that it meets this
exception, see id. at 3-4 (arguing only that private autopsy report is fact work product and that
there is substantial need and undue hardship). 	The Court cannot simply assume Defendant’s
argument that it meets Rule 26(b)(3) applies with equal force to Rule 26(b)(4). 	Specifically,
nothing provided by Defendant suggests that the requirements of “substantial need” and “undue
hardship” 	under 	Rule 	26(b)(3) 	are 	coextensive 	with 	the 	requirement 	of 	“exceptional
circumstances” under Rule 26(b)(4), especially where Rule 26(b)(3) conditions itself as being
“subject to Rule 26(b)(4).” Fed. R. Civ. P. 26(b)(3)(A).
Even 	looking 	beyond 	this 	defect, 	Defendant 	has 	not 	established 	that 	exceptional
circumstances exist. Importantly, Rule 26(b)(4) states that Defendant may only receive discovery
from Plaintiffs’ consulting expert “on showing exceptional circumstances under which it is
impracticable for [Defendant] to obtain facts or opinions on the same subject by other means.”
Fed. R. Civ. P. 26(b)(4)(D)(ii) (emphasis added). The Broward County autopsy plainly is on “the
same subject,” i.e., the decedent’s cause of death, even if it does not contain the precise details or
conclusions that Plaintiffs’ consulting pathologist’s report does.
Defendant also has not demonstrated substantial need and undue hardship under Rule
26(b)(3). Again, Defendant acknowledges that the private autopsy report is fact work product, so
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 4 of 6

5
the only issue before the Court is whether Defendant has shown that “it has substantial need for
the materials to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).1 Although the decedent’s cause of
death is an important issue in the case and the decedent’s body is no longer available, Defendant
still has not shown the existence of substantial need and undue hardship. 	This case is not one
where an opposing party is gatekeeping the only evidence demonstrating critical facts based on
the 	work-product 	doctrine. 	Cf., 	e.g., 	Johnson 	v. 	Westgate 	Vacation 	Villas, 	LLC, 	No.
617CV2141ORL37GJK, 2018 WL 7461685, at *4 (M.D. Fla. Oct. 23, 2018) (holding that
plaintiffs demonstrated substantial need and undue hardship because incident report was “the only
contemporaneous account of what happened” and relevant persons could not be located for
depositions). As Plaintiffs rightly point out (and Defendant does not dispute), a medical examiner
for Broward County already completed a complete forensic autopsy and related report that
Defendant can access. See [DE 57] at 5. So forensic evidence exists to establish the foundational
issue of the decedent’s cause of death, meaning there is no necessity for the private autopsy report.
Indeed, Plaintiffs’ disclosed expert, Dr. Michael Freeman, does not even rely on the private
autopsy report of the undisclosed consulting expert to form his opinion on cause of death. 	See
[DE 57-2] at 5. Dr. Freeman instead relies on other materials that are not disputed in the instant
Motion to identify supposed deficiencies in the cause-of-death opinions rendered by the medical
examiner for Broward County. See id. Because Defendant can access the same materials, it cannot
be said that there exists substantial need for additional facts that may be contained in the private
autopsy report. 	That some of the things potentially contained in the private autopsy report are
1 The Court assumes that the private autopsy report is otherwise withing the scope of discovery.
See Fed. R. Civ. P. 26(b)(3)(A)(i).
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 5 of 6

6
relevant is simply not enough. See U.S. Sec. & Exch. Comm’n v. Herrera, 324 F.R.D. 258, 267
(S.D. Fla. 2017) (“Substantial need cannot be overcome simply with an argument that documents
are relevant and will assist in bolstering a party’s affirmative defenses.” (quoting Beaubrun v.
GEICO Gen. Ins. Co., No. 16-24205-CIV, 2017 WL 1738117, at *5 (S.D. Fla. May 4, 2017))).
And Defendant provides nothing in the Motion indicating that it cannot hire an expert to examine
similar materials and render an opinion on them. 	Therefore, no undue hardship in obtaining
similar evidence exists.
CONCLUSION
For the reasons discussed above, it is ORDERED AND ADJUDGED that the Motion
[DE 56] is DENIED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 31st day of March 2026.
Case 0:24-cv-61849-AHS Document 62 Entered on FLSD Docket 03/31/2026 Page 6 of 6