14 Fla. L. Weekly Supp. 127b
Insurance — Personal injury protection — Appeals — Certiorari — Timeliness — Petition for writ of certiorari filed after insurer filed motion for rehearing of order challenged by petition but before trial court ruling on motion for rehearing is not premature as filing of petition constituted abandonment of motion for rehearing — Discovery — Privilege — Trade secret — Trial court departed from essential requirements of law by ordering production of documents claimed to contain trade secrets without conducting in camera inspection and setting forth findings regarding asserted trade secret privilege — Waiver — Privilege log — No merit to argument that insurer waived trade secret privilege by failing to file privilege log where it appears from fact that trial court overruled attorney-client and work product objections on ground that no privilege log was filed that only those privileges were affected by lack of log — Determination that trade secret privilege was not waived by lack of log is within trial court’s discretion — Motion to compel quashed
PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. PHYSICIANS INJURY CARE CENTER, INC., f/u/b/o JAMES CATON and PHYSICIANS INJURY CARE CENTER, INC., f/u/b/o ROBIN CATON, Respondents. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2004-CA-5818-O. Writ No. 04-47. July 20, 2006. Petition for Writ of Certiorari. Counsel: Douglas H. Stein and J. Keith Ramsey, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, Miami, for Petitioner. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Respondent.
(Before THORPE, M. SMITH, and WHITE, JJ.)
FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.)Petitioner Progressive Express Insurance Co. timely filed its Petition for Writ of Certiorari seeking review of an order granting Physician’s Injury Care Center, Inc.’s (“Respondent”) “Motion to Compel Discovery” and overruling Petitioner’s objections to the supplemental request for production. This Court has jurisdiction. Fla. R. App. P. 9.030(c). We dispense with oral argument. Fla. R. App. P. 9.320.
On or about December 3, 2002, Respondent filed two different complaints for failure to pay PIP benefits, which were later consolidated. Discovery proceeded, and Respondent served a request for documents on Petitioner. Petitioner objected to producing the documents, asserting, inter alia, that the requests encompassed items that were trade secrets.1 Petitioner stated in its objections that the privileged information belongs to third parties Mitchell International or Ingenix. Respondent then moved to compel the discovery.
A hearing on the motion to compel discovery was held on June 7, 2004. Petitioner objected to the motion and asserted that Mitchell International and Ingenix had provided trade secrets to Petitioner who had in turn signed a confidentiality agreement. As there was a limited time for the hearing, the hearing concluded before Petitioner could argue its trade secret privilege fully. The court provided Petitioner with an opportunity to make its objections on the record, outside the presence of the court, and agreed to allow Petitioner to submit a memorandum on the trade secret privilege by June 9, 2004.
On June 8, 2004, the court entered an order overruling Petitioner’s objections to Respondent’s supplemental request for production of documents, and it entered an amended order on June 10, 2004, stating the same.2 As to Petitioner’s objections, the court stated, “[t]he objections filed by defendant cover every possible type of objection that could be raised and thus it is impossible for the Court to determine what the real objections are.” (Pet. Writ Cert. App. at 118.) The order did not specifically address the asserted trade secret privilege.
Following the trial court’s order, Petitioner served its “Motion to Vacate Paragraph 3 of the June 10, 2004 Amended Order, or Motion for Rehearing, Reconsideration and/or Clarification and Defendant’s Memorandum in Support of Objections to Plaintiff’s Supplemental Request for Production, and in Support of Defendant’s Motion to Continue Hearing to Allow Mitchell International and Ingenix Opportunity to be Heard.” Respondent asserts that the trial court has not ruled on this motion.
Respondent argues that the Petition for Writ of Certiorari should be dismissed as premature because it was filed after Petitioner filed its motion for rehearing and before the trial court ruled on the motion.
Filing a petition for writ of certiorari before the trial court rules on the motion for rehearing constitutes an abandonment of the motion for rehearing. Fin. Mktg. Group, Inc. v. Dep’t of Banking & Fin., Div. of Sec., 352 So. 2d 524, 525 n.1 (Fla. 3d DCA 1977) (“The filing of the petition constituted an abandonment of the undisposed of petition for rehearing.”); see also Fla. R. App. P. 9.020(h)(3) (notice of appeal filed after motion for rehearing, but before the court rules on motion for rehearing, constitutes abandonment of the motion for rehearing).
As filing the Petition for Writ of Certiorari constituted an abandonment of the motion for rehearing, Respondent’s motion to dismiss the Petition due to the pending motion for rehearing is denied.
Turning to the merits, in reviewing an order compelling discovery, “[t]he applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes material injury throughout the law suit, leaving the petitioner with no other adequate remedy to review the alleged erroneous order.” Beverly Enters.-Fla., Inc. v. Ives, 832 So. 2d 161, 162 (Fla. 5th DCA 2002).
Petitioner asserts a trade secret privilege and argues that the trial court had an obligation to conduct an in camera inspection and make particular findings in its order on the subject. Respondent argues that the burden was on Petitioner to demonstrate that a trade secret exists and that Petitioner waived any claim of a trade secret privilege by failing to file a privilege log.
In Ameritrust Insurance Corp. v. O’Donnell Landscapes, Inc., 899 So. 2d 1205, 1206 (Fla. 2d DCA 2005), the trial court issued an order compelling documents that the petitioner claimed were protected by the trade secret privilege. Before entering the order, “[t]he trial court did not conduct an in camera review of the requested information. Moreover, the trial court did not make findings relative to whether the requested information included trade secrets and the reasonable necessity, if any, for its production.” Id. at1207.
First, the appellate court found that it did have jurisdiction to review the petition for writ of certiorari “because the disclosure of trade secrets creates the potential for irreparable harm.” Id. Second, the appellate court set out the procedure the trial court must follow when faced with the assertion of the trade secret privilege. Id.
When the trade secret privilege is asserted as the basis for resisting production, a court must determine: (1) whether the requested production constitutes a trade secret and, if so, (2) whether the party seeking production can show reasonable necessity for the requested information. The first determination will usually require the court to conduct an in camera inspection of the materials to determine whether they contain trade secrets. Even if production is ordered, a court must set forth its pertinent findings.
Id. (Citations omitted.)
The appellate court found that the trial court departed from the essential requirements of law because it compelled disclosure of information “claimed to be protected by the trade secret privilege without conducting an in camera inspection and making the necessary findings of fact.” Id. The trial court’s order was quashed, and the trial court was directed to “conduct an in camera inspection and make the necessary findings . . . .” Id. at 1208. See also KPMG LLP v. Dep’t of Ins., 833 So. 2d 285, 286 (Fla. 1st DCA 2002) (same); Am. Express Travel Related Serv., Inc. v. Cruz, 761 So. 2d 1206, 1208-10 (Fla. 4th DCA 2000) (same); Va. Elec. & Lighting Corp. v. Koester, 714 So. 2d 1164, 1165 (Fla. 1st DCA 1998) (same); Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996) (same); Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1278-79 (Fla. 3d DCA 1993) (same).
In this case, the trial court did not conduct an in camera inspection before ruling on Respondent’s motion to compel. In granting the motion to compel, the trial court stated, “[t]he objections filed by defendant cover every possible type of objection that could be raised and thus it is impossible for the Court to determine what the real objections are.” (Pet. Writ Cert. App. at 118.) There were no findings in the order regarding the trade secret privilege. Thus, the trial court departed from the essential requirements of law, as it did not conduct an in camera inspection and did not set forth findings in the order regarding the asserted trade secret privilege.
Respondent argues that Petitioner waived the trade secret privilege by failing to file a privilege log. Although generally the failure to file a privilege log will result in a waiver of the privilege, the trial court has discretion to determine whether that failure does result in a waiver. Metabolife Intl, Inc. v. Holster, 888 So. 2d 140, 141 (Fla. 1st DCA 2004) (“Pursuant to Florida Rule of Civil Procedure 1.280(b)(5), trial courts have the discretion to find waiver of privilege claims for failure to produce a privilege log.”).
As the trial court in this case did not set forth any findings regarding the trade secret privilege, this Court cannot determine whether the trial court found that the privilege was waived due to Petitioner’s failure to file a privilege log. It appears that the trial court did not base its decision on a waiver argument, however. In the order, the trial court states, “As to attorney-client and work product objections no privilege log was filed by [Petitioner] so those objections are overruled as well.” (Pet. Writ Cert. App. 118.) Notably not included in that sentence is Petitioner’s trade secret privilege. It appears that the trial court found that only the attorney-client and work product privileges were affected by the lack of a privilege log. As such a determination is within the trial court’s discretion, the Court rejects Respondent’s argument that Petitioner waived the trade secret privilege by not filing a privilege log.
As the trial court departed from the essential requirements of the law in granting the motion to compel without conducting an in camera inspection or setting forth findings regarding the trade secret privilege in its order, the petition for writ of certiorari is granted.
THEREFORE, based upon the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. The Petition for Writ of Certiorari is GRANTED and the order granting Respondent’s motion to compel is QUASHED.
2. Respondent’s motion for an award of attorney’s fees and costs is DENIED.
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1In anticipation of privilege issues, Petitioner submitted a privilege log one month before the supplemental request to produce, asserting a trade secret privilege on behalf of Mitchell International and Ingenix, the purported owners of the trade secret information. No additional privilege log was submitted with the objections.
2The second order corrected a numerical, typographical error.
