14 Fla. L. Weekly Supp. 124a

Insurance — Personal injury protection — Discovery — Computer database used to review bills — Certiorari challenge to interlocutory order requiring compliance with previous order that compelled discovery related to database and imposing sanctions for noncompliance with prior order — Timeliness of petition — Where prior order compelled production within certain time, but insurer and database owner did not seek review of that order and, instead, waited to seek appellate review until order requiring compliance and imposing sanctions was rendered one year later, petition for writ of certiorari is actually challenging initial order compelling production and is dismissed for lack of jurisdiction — Imposition of attorney’s fees as sanction for discovery violation is not subject to certiorari review

PROGRESSIVE EXPRESS INSURANCE COMPANY, and MITCHELL INTERNATIONAL, INC., Petitioners, v. PILLAR DIAGNOSTICS, INC., as assignee of FRANCISCO COLMENARES, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2004-CA-9196-O. Writ No. 04-87. Consolidated Case No. 2004-CA-9214-O. Writ No. 04-88. August 2, 2006. Petition for Writ of Certiorari. Counsel: Dorothy Venable Difiore, Law Offices of Dorothy Venable DiFiore, Tampa, for Petitioner, Progressive Express Insurance Company. Cesery L. Bullard; Gayle A. Owens and Charles R. Stepter, Jr., Fishback, Dominick, Bennet, Stepter, Ardaman, Ahlers & Bonus LLP, Orlando, for Petitioner Mitchell International, Inc. Earl I. Higgs, Jr. and Alexander Billias, Morgan & Morgan, P.A., Orlando, for Respondent.

(Before RODRIGUEZ, HAUSER, and T. SMITH, JJ.)

FINAL ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI

(PER CURIAM.) Petitioners Mitchell International, Inc., and Progressive Express Insurance Co., timely petitioned for certiorari review of an interlocutory order requiring compliance with the trial court’s previous “Order on Plaintiff’s Motion to Compel Better Responses to Supplemental Request to Produce and Better Answers to Supplemental Interrogatories.” This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2).

On June 17, 2003, Pillar Diagnostics, Inc. (“Respondent”) served a set of interrogatories and a request to produce documents pertaining to the computer database system used by Progressive to review PIP claim bills. The database program is manufactured by Mitchell International, Inc. Progressive objected to the requested discovery, asserting, among other things, that the discovery was irrelevant and protected by the trade secret privilege.

On July 29, 2003, a hearing on Respondent’s “Motion to Compel Better Responses to Supplemental Request to Produce and Better Answers to Supplemental Interrogatories” was held. The hearing was not recorded and a court reporter was not present. Judge Brewer entered an order overruling Progressive’s objections, finding that there was no indication of an applicable trade secret privilege. The order also found that if a privilege log had been provided with the trade secret objections, an in camera inspection could have taken place prior to the hearing. Finally, the order mandated that Progressive produce the documents and answer the interrogatories within twenty days of the date of the hearing. [12 Fla. L. Weekly Supp. 155b]

After the hearing, there were discussions about a possible confidentiality agreement between Respondent and Progressive. Though a proposed agreement was sent to Respondent, no agreement materialized among Respondent, Mitchell International, and Progressive. On November 4, 2003, Respondent served a “Motion for Contempt/Motion for Discovery Sanctions for Failure to Comply with Court Order.” On September 30, 2004, Judge Shoemaker heard the motion and concluded that Progressive was in violation of Judge Brewer’s order. The court did not find Progressive in contempt, but it ordered the production of the documents and answers to the interrogatories. In addition, the trial court ordered Progressive to pay Respondent’s counsel $500 as a sanction. [12 Fla. L. Weekly Supp. 156a]

Both Progressive and Mitchell filed separate petitions for writ of certiorari asking the Court to quash the October 13, 2004, order from Judge Shoemaker and deny the production of documents, or in the alternative, compel the trial court to enter a protective order. The cases were consolidated for this Court’s review.

Petitioners argue that Progressive did not waive Mitchell International’s trade secrets privilege by failing to file a privilege log. Petitioners also argue that the trial court, both Judge Brewer and Judge Shoemaker, erred in ordering disclosure without first entering a protective order. In addition, Petitioners assert that the information requested is not discoverable because it is irrelevant. Finally, Mitchell International argues that the information sought constitutes trade secrets, disclosure will cause irreparable harm, and the trial court failed to weigh the need for the information against the harm of disclosure. Thus, Petitioners’ arguments focus on the alleged erroneous nature of Judge Brewer’s order, which compelled the disclosure in the first instance. Respondent argues that Petitioners never sought appellate review of Judge Brewer’s order and, in addition, no transcript of the hearing before Judge Brewer was made, thus precluding appellate review.

In Sardinas v. Lagares, 805 So. 2d 1024, 1025 (Fla. 3d DCA 2001), the petitioner’s witness was ordered by the trial court to produce certain documents. The witness argued that the documents were nonexistent. Id. When the trial court struck the witness for failing to comply with its orders, the petitioner filed a petition for writ of certiorari from the order striking the witness, not from the orders that compelled production of the documents. Id. The petitioner argued that the underlying orders compelling production constituted an abuse of discretion. Id. In response, the court stated, “The petition is devoted almost entirely to the merits of the underlying orders compelling [the witness] to produce nonexistent documents. We are without jurisdiction to review the discovery orders, however, because the petitioner did not timely seek review of them.” Id. at 1025 n.1.

Similarly, in Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094, 1094 (Fla. 4th DCA 1991), the trial court denied the petitioner’s motion for protective order, and the petitioner did not appeal that ruling. Then, after the petitioner still refused to permit discovery, the petitioner filed a second motion for protective order, arguing the same grounds as asserted in the first motion, but in greater detail. Id. When the trial court denied the second motion, the petitioner then filed a petition for writ of certiorari. Id. In dismissing the petition, the appellate court stated the following:

Any petition for writ of certiorari should have been filed after the first order denying the motion for protective order. Petitioner cannot evade the time requirements of Florida Rule of Appellate Procedure 9.100(c) by filing successive motions addressed to the same issue. We liken this to the filing of a motion for rehearing from a non-final order which does not toll rendition.

Id. at 1094-95. See also Edwards v. Edwards, 634 So. 2d 284, 285 (Fla. 4th DCA 1994) (petitioner’s challenge to order rescheduling test was, in actuality, challenge to previous order requiring test, and thus appellate court did not have jurisdiction to review previous order, where petition for writ of certiorari was filed more than three months after previous order was rendered); Cent. Truck Lines v. Boyd, 106 So. 2d 547, 549 (Fla. 1958) (petition for writ of certiorari was dismissed where petitioners were, in actuality, challenging order rendered eight months before petition was filed); Great S. Trucking Co. v. Carter, 113 So. 2d 555, 557 (Fla. 1959) (same).

As in Sardinas, in this case, the trial court first ordered production of the discovery within a specific time period. The trial court specifically stated in the August 11, 2003, Order, “Defendant shall serve its response to Plaintiff’s Supplemental Request to Produce and answers to Plaintiff’s Supplemental Interrogatories within twenty (20) days of the date of this hearing.” (Mitchell App. at 87 (emphasis added).)¹ Also as in Sardinas, Petitioners did not seek review of this order compelling the discovery. Instead, Petitioners waited until an order on Respondent’s motion for sanctions was rendered to challenge Judge Brewer’s order at the appellate level.² As Petitioners are, in actuality, challenging Judge Brewer’s order, and their petitions were filed over one year after that order was rendered, the petitions are dismissed for lack of jurisdiction.

Progressive also challenges that portion of the trial court’s order directing it to pay $500 to Respondent’s attorney as a sanction for failing to comply with Judge Brewer’s order. Although not citing any cases, Progressive admits in its petition that it “recognizes that the imposition of monetary sanctions may not constitute irreparable injury sufficient to justify certiorari review.” (Progressive Pet. Writ Cert. at 26.)

In State Farm Mutual Automobile Insurance Co. v. Bravender, 700 So. 2d 796, 797 (Fla. 4th DCA 1997), State Farm appealed an order directing it to pay $300 as attorney’s fees for discovery misconduct pursuant to Florida Rule of Civil Procedure 1.380(a)(4). The appellate court found that the order was not reviewable on direct appeal and also was not reviewable via certiorari, citing Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982). State Farm, 700 So. 2d at 797.

In Malone, the court found that the appellant challenging an order imposing monetary sanctions for failure to comply with discovery could not demonstrate that the order constituted “a clear departure from the essential requirements of law [that] would otherwise result in irreparable harm.” Malone, 410 So. 2d at 570. Thus, the court declined to review the order via certiorari. Id. See also Powell v. Wingard, 402 So. 2d 532, 533-34 (Fla. 5th DCA 1981) (trial court order imposing monetary sanctions for discovery violation was not reviewable via certiorari, as petitioner had choice of paying sanctions or having its defenses stricken); Valenzuela v. Valenzuela, 648 So. 2d 741, 741-42 (Fla. 3d DCA 1994) (order requiring party to pay expert witness fee before deposition not reviewable on petition for writ of certiorari, as well as direct appeal); IDS Long Distance, Inc. v. Heiffer, 837 So. 2d 1130, 1131 (Fla. 4th DCA 2003) (imposition of attorney’s fees as sanction for discovery violations not subject to certiorari review); compare Avril v. Civilmar, 605 So. 2d 988, 989 (Fla. 4th DCA 1992) (order imposing attorney’s fees that were immediately due as sanction for failure to participate in good faith in mediation was reviewable by certiorari).

Here, Respondent moved for an award of its attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.380(b)(2)(E), for the time expended due to Progressive’s failure to comply with Judge Brewer’s order. The trial court granted that request, ordering Progressive to pay Respondent’s attorney “discovery sanctions in the amount of $500.00.” (Mitchell App. at 1.) Thus, this case is indistinguishable from those cited above, and therefore Progressive’s request that the Court at this time review the order imposing attorney’s fees on it as a discovery sanction is denied.

THEREFORE, based upon the foregoing, it is hereby ORDERED and ADJUDGED that the Petitions for Writ of Certiorari are DISMISSED.

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¹Thus, this case is distinguishable from Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So. 2d 445 (Fla. 2d DCA 2002). In Harley Shipbuilding, the court ruled on some objections in a previous order, but did not compel production of the documents within a certain time period and set other objections for further hearing. Id. at447. Thus, the petitioner had preserved the issue of its trade secret privilege by seeking review of the trial court’s later order on a motion for contempt and sanctions. Id. at 448.

²This may be because no transcript was made of the hearing before Judge Brewer, thus possibly precluding this Court from determining that the trial court erred in ordering the discovery. See Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279, 280 (Fla. 3d DCA 1995) (“We deny certiorari review, finding that absent the hearing transcript, we are obliged to assume that at the hearing below, [the respondent] made the showing necessary to entitle it to obtain the documents thereafter ordered produced.”).