14 Fla. L. Weekly Supp. 847a
Insurance — Personal injury protection — Discovery — Computer database used to review medical bills — Trial court did not err in compelling production of manuals and documentation related to database used to review medical bills where documents were in insurer’s control and possession, and insurer failed to file privilege log asserting privileged nature of documents — Requests for production that seek identification of information, not production of documents, were improperly propounded, and trial court erred in compelling production — No error to compel production of alleged trade secret of payments made in excess of amount allowed where insurer did not file privilege log — Discovery order does not depart from essential requirements of law or rise to level of irreparable harm merely because compliance will require unwarranted effort and expense, but will not effectually ruin insurer’s business
PROGRESSIVE CONSUMERS INSURANCE COMPANY, Petitioner, vs. JEAN PATRICK FLORESTAL, L.M.T. & C.n.m.t., a/a/o Sally Harper, Respondent. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 06-97-AP. June 28, 2007. Appeal from the County Court for Seminole County, Honorable John R. Sloop, County Court Judge. Counsel: John R. Urbanowicz, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Petitioner. Roy J. Smith, Weiss Legal Group, P.A., Maitland, for Respondent.
(NELSON, D., J.) Progressive Express Insurance Company (“Progressive”) appeals an Order Granting Plaintiff’s Motion to Compel Discovery.
When reviewing the propriety of a discovery order by certiorari, the applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes a material injury throughout the lawsuit, leaving the petitioner with no other adequate remedy to review the alleged erroneous order. Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995).
Requests for Production numbers 3, 4, and 5 seek production of documents called “procedure reports” and fee verification documents, or “sliver reports.” The Affidavit of Progressive supervisor Keith Benefiel in Physical Medicine Pain Center, P.A. v. Progressive Express Insurance Company, Seminole County Case No. 03-SC-3437 states that “The ‘Procedure Reports’ are created from data maintained in the course of regularly conducted business activity and it is the practice of Progressive to maintain this data.” Therefore, documents requested in Requests for Production numbers 3, 4, and 5 should have been produced, and the trial court did not err in ordering their production.
Requests for Production numbers 25-29 seek production of manuals and documentation related to “the computer program that the Defendant relied on in determining a reasonable amount for the charges at issue in this lawsuit.” Florestal maintains that “it is clear that many of the documents requested are not only in Progressive’s control, but also in its possession and custody such as manuals regarding the Mitchell Medical software.” Response to Petition for Writ of Certiorari at 12. This Court noted in Bixon that Progressive’s contractual relationship with Mitchell prevented Progressive from providing any proprietary Mitchell information to any third party. Progressive Express Ins. Co. v. Bixon Chiropractic Center, P.A. a/a/o Jane Ihndris, Case No. 04-115-AP at 2, FN 1.
However, Progressive never filed a privilege log asserting the privileged nature of this documentation. Progressive maintains that it already asserted privileges in its response, and that the trial court’s order did not hold that those privileges had been waived. Pursuant to Rule 1.280(b)(5), trial courts have the discretion to find waiver of privilege claims for failure to produce a privilege log. See General Motors v. McGee, 837 So.2d 1010, 1032 (Fla. 4th DCA 2002). Progressive has been provided with an appropriate vehicle for asserting privilege: the filing of a privilege log.
Although the trial court did not specifically make a finding that the privilege had been waived, it did not, in compelling production, depart from the essential requirements of the law. There is no evidence that this order caused a material injury throughout the lawsuit. Most importantly, Progressive was indeed expressly left with another adequate remedy to review the order.
The Order compels production of the following:
30. Please describe the range of charges that the Defendant’s database has determined to be reasonable with respect to the charges at issue in this lawsuit.
31. Please state the name of the Corporate Representative, the current business address and phone number for Defendant.
Progressive maintains that these requests to produce seek the identification of information, not the production of documents, and are therefore improperly propounded as requests to produce, in contravention of Rule 1.350, Fla.R.Civ.Pr. Further, Progressive alleges that request to produce 31 is so vague as to make it impossible to determine which Corporate Representative Florestal is seeking the name of. Requests for Production numbers 30 and 31 were improperly propounded as requests to produce, and the trial court erred in compelling their production.
Requests for Production numbers 6-10 seek production of any payments in excess of the “amount allowed” column, and any billings received from Florida No-Fault for certain codes during certain months of 2003. Interrogatory 18 seeks identification of any payments in excess of the “amount allowed” column for certain codes in certain zip codes during certain months of 2003. Progressive’s response asserted trade secret and confidentiality privileges.
Progressive asserted trade secret privileges in response to Plaintiff’s Request to Produce numbers 6-10. Progressive did not, however, file a privilege log. As discussed above, Progressive has been provided with an appropriate vehicle for asserting privilege: the filing of a privilege log.
As the applicable standard of review considers whether the challenged order leaves the petitioner with no other adequate remedy to review the alleged erroneous order, the trial court did not err in ordering the production of the documents alleged to be trade secrets.
When there is legally sufficient and uncontradicted evidence in the record on the question of excessive and burdensome discovery requests, and a judge nevertheless ordered the discovery to be produced, “it is difficult to understand how, even if the order is erroneous, it would rise to the level of irreparable harm.” Topp Telecom, Inc. v. Atkins,763 So.2d 1197, 1199 (Fla. 4th DCA 2000). “We stress that in this case we deal with a claim that requested discovery is burdensome and unduly onerous. We distinguish the kind of claim made here with an objection contending that the requested discovery would effectually ruin the objector’s business. The kind of discovery involved here would simply require unwarranted effort and expense to comply with the request but that burden, though claimed to be inordinate would not cast the recipient into financial ruin. It seems clear to us that the mere fact of unwarranted effort and expense is not, by itself, synonymous with a “departure from the essential requirements of law” [e.s..] for which immediate review is necessary.” Id. at 1199-1200.
The Affidavit of Keith Benefiel, Petitioner’s Appendix to Petition for Writ of Certiorari, pages 69-70, paragraph 12 merely states that it would require approximately 56 to 112 days to gather this information, and that there would be costs involved of approximately $16,775.00 to $33,500.00. There are no allegations that such costs would cast Progressive into financial ruin. The Court stated in Topp, supra,that “the mere fact that a trial judge has allowed burdensome discovery to proceed does not forestall later reallocation of the costs incurred when the prevailing party seeks to tax costs at the end of the case. In taxing costs, the trial judge has considerable discretion and it is certainly within such discretion to determine at the end of the case that overly burdensome discovery requests by the losing party should be compensated to some extent by allowing specific requests for costs incurred thereby. It will be at this stage that the parties can have full review of the issues dealing with the allocation of those costs.”
ACCORDINGLY the Petitioner’s Petition for Writ of Certiorari is hereby denied with respect to Requests for Production numbers 3-5, 6-10, 25-29, and Interrogatory number 18. Petitioner’s Petition for Writ of Certiorari is hereby granted for Requests for Production numbers 30-31, and the portion of the trial court’s Order Granting Plaintiff’s Motion to Compel Discovery with respect to Requests for Production numbers 30-31 is hereby quashed.
