12 Fla. L. Weekly Supp. 1038a
Insurance — Personal injury protection — Discovery — Computer database used to determine usual and customary charges — No merit to arguments that court erred in ordering discovery of materials related to database which uses information compiled and supplied by independent third parties because database is not within possession, custody, or control of insurer and because material is irrelevant to central issues of PIP suit for balance of reduced bills where insurer intends to rely on database as defense — No error in failing to conduct in camera inspection upon insurer’s assertion that materials constitute trade secret — Insurer that does not possess privilege in own right and is not agent or employee of third party privilege holders may not assert privilege
PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner/Defendant, vs. ST. GERMAIN CHIROPRACTIC, P.A., as assignee of HOLLMAN GUANA, Respondent/Plaintiff. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 05-17-AP. August 9, 2005. Counsel: Michael C. Clarke, Kubicki Draper, Tampa. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland.
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(CLAYTON D. SIMMONS, J.) Progressive Express Insurance Company (“Progressive”) seeks a Writ of Certiorari quashing the lower court’s “Order on Plaintiff’s Motion for Standing Order and on Defendant’s Objections to Discovery” (“discovery order”) entered on January 7, 2005, in a PIP suit. St. Germain Chiropractic, P.A. (“St. Germain”), as assignee of Hollman Guana, has sued Progressive seeking to recover the difference between those charges asserted by St. Germain for reasonable and necessary medical care and the amount which Progressive ultimately paid. Pursuant to the discovery order, Progressive was required to turn over certain discovery related to a computer database utilized by Progressive to determine the “usual and customary” charge for a given medical service in the medical provider’s geographical region. Progressive utilized this database to compare that which was charged by a provider with the value offered by the database for the given medical service. The database, which utilizes information compiled by Utah-based Ingenix, Inc. (“Ingenix”), was supplied by Mitchell International, Inc. (“Mitchell”), a California corporation, to Progressive pursuant to a confidential contractual agreement.
On August 9, 2004, the lower court held a hearing on St. Germain’s motion for a standing order on discovery. The lower court informed Progressive that if Progressive intended to rely upon the Mitchell database as a defense at trial, then any data gathered by Ingenix and input into Mitchell’s software would have to be provided to St. Germain. Otherwise, the lower court warned, the defense would be stricken. Unable to agree on the language of an order, the parties were granted a second hearing before the lower court on August 26, 2004.1 At that hearing, Progressive presented to the court the affidavit of its medical manager who stated that Progressive does not share any corporate or business structure with Mitchell or Ingenix and that the latter are independent third parties. Furthermore, the medical manager acknowledged that Progressive has a contract with Mitchell, but the terms of the contract prohibit Progressive’s production of the requested material. Finally, the medical manager indicated that Progressive does not have possession, custody, or control over many of the materials sought by St. Germain.
The county court rejected these arguments as well as assertions by Progressive that the subject material was protected by trade secret and entered the discovery order.
Certiorari will lie to quash an order granting discovery when the order: (1) departs from the essential requirements of the law, (2) resulting in material injury that (3) cannot be corrected on direct appeal. McGarrah v. Bayfront Medical Center, Inc.,889So.2d 923 (Fla. 2nd DCA 2004). It is Petitioner’s contention that the discovery order rendered by the lower court meets all three of these requirements.
Petitioner argues that the lower court erred in three separate respects when it entered the discovery order. First, Progressive argues that the lower court order should be quashed because it requires Progressive to produce materials not within Progressive’s possession, custody, or control contrary to case law and Florida Rule of Civil Procedure 1.350. Next, Progressive asserts that the requested materials are irrelevant to the central issue in the lawsuit and therefore their production should not be compelled. Finally, Progressive argues that the subject materials are protected by trade secret requiring the lower court to conduct an in camera inspection prior to mandating their production.
With respect to Petitioner’s first argument this Court finds that while it is true that a party is required to only produce those materials within its possession, custody, or control, it is also true that “when 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 . . . .” Northup v. Acken, 865So.2d 1267, 1270 (Fla. 2004). When the lower court asked the counsel for Progressive whether Progressive intended to rely upon the Mitchell database as a defense during trial, Progressive’s counsel replied that this would be one of Progressive’s defenses. Accordingly, the law dictates that the materials in question be produced by Progressive. See Northup, supra; see also State v. Muldowny, 871 So.2d 911 (Fla. 5th DCA 2004).
In Muldowny, the Fifth District addressed a similar issue with respect to the State of Florida’s refusal to disclose the operator’s manuals, maintenance manuals and schematics of the intoxilyzer in two separate DUI cases. In holding that such disclosures must be made, the Fifth District noted that the Defendants would otherwise risk the loss of their driving privileges and perhaps their liberty based upon the use and operation of a “mystical machine that is immune from discovery.” Id. at 913. Although enunciated in a criminal case, the trial court below correctly relied on the logic of Muldowny as the principles forming its foundation are applicable in this matter. Principles of fairness and equity dictate that Progressive should not reap the benefit of an otherwise “mystical” database without having to produce the data and information which underlie its conclusions.
This Court finds the Petitioner’s relevance arguments unpersuasive for similar reasons. While it is true that in a PIP suit, the insured (or his/her assignee) bears the burden of establishing that the charges claimed for medical expenses are reasonable, see State Farm Mutual Automobile Ins. Co. v. Sestile, 821 So.2d 1244(Fla. 2ndDCA 2002), if Progressive intends to rely upon the Mitchell database to defend its claim reductions, it must produce the materials requested by St. Germain. Northup, supra. Clearly these materials constitute relevant discovery that must be provided by Progressive to St. Germain.
Finally, this Court rejects Progressive’s argument that the lower court erred by failing to conduct an in camera inspection upon Progressive’s assertion that the requested materials constitute trade secret. 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 interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or the person’s agent or employee.
(Emphasis added). Because Progressive is neither the agent nor employee of either Mitchell or Ingenix, and because Progressive does not possess the privilege in its own right, Progressive may not assert the trade secret privilege. Accordingly, there was no basis for the lower court to conduct an in camera inspection of the materials at issue.
The lower court’s order has not departed from the essential requirements of the law and will not result in material injury. This Court’s decision in this matter is buttressed by the confidentiality provisions the lower court prudently saw fit to include in the discovery order.
ACCORDINGLY the Petition for Writ of Certiorari is hereby DENIED.
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1It should be noted at this point that both the August 9 and August 24 hearings were presided over by the Honorable Judge Marblestone. The discovery order at issue was issued by the Honorable Judge Sloop upon inheriting this matter.
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