A Defense Attorney’s Take on Muller v. Wal-Mart Stores

Florida law recognizes that its citizens have a right to privacy, and the Florida Constitution limits the courts from compelling disclosure of information that is not necessary for the court to determine the issues before it. However, defense attorneys in personal injury cases often try to get as much information about a plaintiff as possible, from medical records and bank statements to phone records and Facebook posts. Florida rules of civil procedure allow a defendant to obtain discovery of any non-privileged matter that is relevant to the subject matter of the case. For example, if a person is claiming injury in a car accident, it is reasonable for the Defendant to request and review the plaintiff’s medical records relating to his treatment for the accident. But sometimes, defense requests for private information from plaintiffs goes far beyond the scope of what is reasonable or even relevant. They are searching for any and all information that might not only bolster their case and serve their interests, but that which might discredit the plaintiff.

This was the sort of issue addressed in the recent case of Muller v. Wal-Mart Stores, Inc., before the Florida Second District Court of Appeals. The case arose from a 2012 auto accident in which the plaintiff was struck by a truck belonging to Wal-Mart and driven by one of its employees.  The plaintiff sought damages for permanent injury, pain and suffering, aggravation of pre-existing conditions, disability, disfigurement, mental anguish, loss of life enjoyment, medical expenses, loss of earnings and earning capacity.

In the course of the discovery process, it was revealed plaintiff had served in the U.S. Army for more than a decade before he was honorably discharged in 1993. During his service, he was stationed in Korea, Berlin and Iraq. In that time, he had suffered three injuries. However, he was not seeking damages in this negligence case for aggravation of any military injuries.

The defendant then requested that the plaintiff produce his entire military personnel file and medical records, as well as his DD Form 214 which would contain information about the plaintiff’s military service, including information about the plaintiff’s separation from the military that the form identifies as sensitive information.

The plaintiff objected to the request, arguing that it asked for irrelevant information and was a violation of his right to privacy under the Florida Constitution. The plaintiff requested that the court at least inspect the records in camera before it compelled him to produce them. The defendant argued that the information was necessary, in part to determine the plaintiff’s ability to observe and understand his surroundings when the accident occurred. The trial court granted the defendant’s request, without an in camera review of those records, and plaintiff appealed.

At the appellate level, the Second District Court of Appeals acknowledged that while the military records likely contained some evidence that would assist the defendant in its case, it was also true that the records likely contained information that wasn’t relative to the claims and would be “highly intrusive” to the plaintiff’s “private interests” if disclosed. The district court found that the trial court had departed from the essential requirements of law when it ordered the plaintiff to simply produce all of the records requested without the Court reviewing them first.  Therefore, the court held that the defendant’s right to discovery of the plaintiff’s military record was limited to those portions of the record that were relevant to the case and that the lower court must  conduct an in camera inspection of the records and separate the irrelevant documents from the relevant.

As a citizen of Florida and a veteran, I appreciate that the courts in Florida respect my right to privacy and will go the extra distance of reviewing my military records for relevancy before releasing them to an opposing party.   I feel better knowing that if I am ever injured in an accident and have to file a claim, the insurance company and their attorneys will not have complete, unrestricted access to all of my personal and private records.


Clay Morgan, Defense Attorney

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,