15 Fla. L. Weekly Supp. 787a
Insurance — Personal injury protection — Discovery — Computer database used to reduce bills — Trade secrets — Where insurer resisted discovery of database used to reduce bills based on claim of trade secrets, trial court erred in ordering disclosure without conducting in camera inspection or hearing to evaluate material — Waiver — No merit to argument that insurer waived in camera inspection by failing to request it where trial court deprived insurer of opportunity for inspection by mistakenly holding that earlier order compelling disclosure was law of the case
DAIRYLAND INS. CO., Appellant, vs. NADAL MEDICAL CENTER (as assignee of YUSDEY ESTEVEZ), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 07-1558, Division X. L.C. Case No. 05-31413-CC. February 19, 2008. On review of a judgment of the Hillsborough County Court, the Honorable Gaston Fernandez, County Judge, presiding. Counsel: Douglas H. Stein, Miami, for Appellant. Timothy Patrick, Tampa, for Appellee. David M. Caldevilla, De la Parte & Gilbert, P.A., Tampa. James E. Bogos, Allen Kopet & Associates Tampa.On Motion for Rehearing
(WILLIAM P. LEVENS, J.) The following is substituted for the opinion rendered January 10, 2008. Although the court adheres to the same result, we address Nadal’s assertion that we overlooked certain of its arguments. This court will entertain no further motions for rehearing in this appeal.
This case is before the court on Dairyland Insurance Company’s appeal of a final judgment entered against it by the county court. We have jurisdiction. Based upon our review, we agree that the judgment should be set aside and further proceedings conducted.
Yusdey Estevez was injured in an accident and covered by a policy of insurance issued by Appellant Dairyland Insurance Company (Dairyland). Mr. Estevez sought treatment at the Nadal Medical Center (Nadal) and executed an assignment of benefits in favor of Nadal Medical Center. Nadal submitted bills to Dairyland for payment for the treatment it rendered to Mr. Estevez. Although Dairyland paid the submitted bills, it paid them at substantially less than the amount billed. According to Dairyland, it based its decision to reduce the payments on recommendations by Mitchell Medical, which maintains a database of “reasonable” charges for various CPT codes in different geographic regions. In turn, Mitchell obtains or produces its information based on data it receives from Ingenix.
The parties engaged in discovery. A number of times, Nadal sought underlying data to support the conclusion Dairyland reached regarding the reduction of the bills Nadal had submitted. To provide that information, which Dairyland long maintained was not in its custody or control, Dairyland also asserted that it would be violating trade secret information to provide the information Nadal sought. After much legal wrangling, Dairyland offered to provide the requested information, conditioned upon Nadal’s signing a confidentiality agreement. Dairyland argued that other courts have conducted in camera reviews of the proffered data in similar cases and entered protective orders. Nadal refused, taking the position that it was not required to sign a confidentiality agreement. Ultimately, the trial court entered an order conditioning the admissibility of Dairyland’s witness’s testimony upon Dairyland’s turning over the information without the benefit of a protective order. The court did not review the subject data or make findings as to the existence of trade secret material. The trial court judge initially wanted to afford protection to the materials, but mistakenly concluded that it was bound by a previous decision directing disclosure. Ultimately, Dairyland refused to turn over the information without trade secret protection, and its sole witness, who intended to rely upon the information, was struck, leaving Nadal with no meaningful defense at trial. [Editor’s note: See 13 Fla. L. Weekly Supp. 1088c; 13 Fla. L. Weekly Supp. 1088b; 14 Fla. L. Weekly Supp. 108a.]
It is the burden of the party resisting production to show good cause, that is, whether the need to protect the material outweighs the need to produce it. American Exp. Travel Related Services, Inc. v. Cruz, 761 So.2d 1206 (Fla. 4th DCA 2000). However, when a party resists discovery on the ground that turning over the requested information would result in the disclosure of trade secrets, a trial court is required to conduct an in camera inspection or hearing on the objections asserted by the party opposing their production. Harley Shipbuilding Corp. v. Fast Cats Ferry Service, LLC, 820 So. 2d 445 (Fla. 2d DCA 2002). See also Beck v. Dumas, 709 So. 2d 601 (Fla. 4th DCA 1998); Uniroyal Goodrich Tire Co. v. Eddings, 673 So.2d 131 (Fla. 4th DCA 1996); Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d1277 (Fla. 3d DCA 1993). We are sympathetic to Nadal’s position that the insurer waited until the 11th hour to raise the trade secret issue. We are nonetheless constrained by precedent to reach the present conclusion on the issue before us. The trial court must conduct further proceedings to evaluate the information at issue and enter an order that specifies whether trade secrets existed, and, if so, what trade secrets existed, along with findings of fact supporting a conclusion that disclosure of the trade secrets was reasonably necessary to resolve the issues in dispute.” Id. In so doing, we acknowledge that the information sought appears to be, as the trial court concluded, relevant to the issues before the county court and, therefore, subject to disclosure. If so, the issue is simply under what conditions the information is to be disclosed rather than whether it is to be disclosed.
We close with a brief discussion on the issue of waiver. Nadal strenuously argues that Dairyland waived an in camera inspection because Dairyland failed to request it. We find that here, just as in Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 791 So. 2d 1190 (Fla. 4th DCA 2001). Dairyland was not given an opportunity for such inspection. Our review of the transcript reveals that Dairyland appeared at the hearing with the subject documents prepared for the trial court to examine them, and the trial court judge initially leaned in favor of granting the requested protection to Dairyland. However, in an abrupt about-face, the trial judge changed his mind, apparently persuaded by Nadal’s argument that the court’s initial order to compel was the “law of the case.” This was error. See Dade Engineering Corp. v. C. Hunt Enterprises, Inc., Slip Op. 2D07-3295 (Fla. 2d DCA Jan. 25, 2008) (res judicata only applicable where there is a relevant prior final judgment) [33 Fla. L. Weekly D349a]. Although interlocutory orders are not, by operation of the rules, subject to rehearing, this is not jurisdictional, and a court is free to reconsider its previous orders at anytime until final judgment is entered. See e.g. Oliver v. Stone, 940 So. 2d 526 (Fla. 2d DCA 2006); Bettez v. City of Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987); Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 3d DCA 1984). Under the circumstances, Appellant was not given an opportunity for the required in camera inspection and, consequently, did not waive inspection.
It is therefore ORDERED that the final judgment be set aside and the cause is REMANDED to the county court to conduct further proceedings consistent with this opinion. Accordingly, Appellee’s motion for appellate attorney’s fees is DENIED. (NIELSEN and ARNOLD, JJ., Concur)
