11 Fla. L. Weekly Supp. 660b
Insurance — Personal injury protection — Discovery — Production of documents — Privilege — Trade secret — Source/statistical data owned by third party is discoverable and not privileged and court has no basis to conduct in camera inspection or take protective measures that third party’s interests may require where third party has not entered appearance to claim privilege, and insurer that is not agent or employee of third party cannot claim trade secret privilege on third party’s behalf — To extent insurer reasonably expects its witnesses to rely on data to testify regarding reasonableness of charges submitted by provider, insurer is ordered to make data available before or at depositions unless third party first enters appearance to request in camera inspection and protective measures
PERFORMANCE HEALTH & WELLNESS (Glener, David), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. SS-03-002943-RD. April 28, 2004. Jonathan Gerber, Judge. Counsel: Blake Crane, Williams, Leininger & Crosby, P.A., West Palm Beach. Glenn Siegel, Kane & Kane, P.A., Boca Raton.
ORDER ON DEFENDANT’S OBJECTIONS TO PLAINTIFF’S SUPPLEMENTAL REQUEST TO PRODUCE
THIS CAUSE having before this Court on Defendant’s Objections to Plaintiff’s Supplemental Request to Produce. This Court has reviewed the court file, has heard argument of the parties’ counsel, and is otherwise fully advised in the premises.
Plaintiff has brought a suit for PIP benefits. Plaintiff sought toobtain certain source/statistical data upon which defendant allegedly relied to determine the reasonableness of the charges which plaintiff submitted to defendant. Defendant objected on the ground that the material belongs to a third party and is protected by the trade secret privilege. Defendant urged that the third party derives independent economic value not being generally known or readilyobtainable by proper means by other persons who can obtain economic value from its disclosure, and that the data is the subject of efforts which are reasonable under the circumstances to maintain its secrecy. Defendant cites American Express Travel Related Service, Inc. v. Cruz, 761 So.2d 1206, 1208-1209 (Fla. 4th DCA 2000), for the proposition that when the trade secret privilege is asserted as the basis for resisting production, the trial court should conduct an in camerainspection or evidentiary hearing before ordering disclosure.
Plaintiff argued that, to the extent that the thirdparty has turned over the source/statistical data to a defense witness not employed by the third party, which witness has relied upon or refers to the data in determining the reasonableness of the charges which Plaintiff submitted, the trade secret privilege has been waived and the data should be made available for inspection.
Section 90.506, Florida Statutes, states, “A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interest of the parties, and the furtherance of justice require. The privilege may be claimed by the person or the person’s agent or employee.” In Northrup v. Acken, 865 So.2d 1267, 1270 (Fla. 2004), the Florida Supreme Court, addressing another privilege, held, “[W]hen a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the video recording, document, exhibit, or other piece of evidence is fully discoverable and is not privileged. . .”.
The third party has not entered an appearance in this case to claim the privilege, and defendant cannot claim the privilege on the third party’s behalf because defendant is not the third party’s agent or employee. Therefore, at this juncture, this Court has no basis to conduct an in camera inspection or take protective measures that the third party’s interests may require. Moreover, defendant, at this juncture, reasonably expects that its trial witnesses will rely upon the source/statistical data to testify regarding the reasonableness of the charges which plaintiff submitted to defendant. Therefore, at this juncture, this Court must find that the data is discoverable and is not privileged. However, this Court recognizes that the thirdparty, at some point, may enter an appearance to request that this Court conduct an in camera inspection and take protective measures that the third party’s interests require. Based on the foregoing it is:
ORDERED AND ADJUDGED that defendant’s objections to plaintiff’s supplemental request to produce are OVERRULED IN PART AND SUSTAINED IN PART. To the extent that defendant reasonably expects that its trial witnesses will rely upon source/ statistical data to testify regarding the reasonableness of the charges which plaintiff submitted to defendant, defendant shall make the date available for inspection before or at the depositions of the witnesses, unless the third party, before the depositions, enters an appearance to request that this Court conduct an in camera inspection and take protective measures that thethird party’s interests require.
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