19 Fla. L. Weekly Supp. 173a
Online Reference: FLWSUPP 1903RUESInsurance — Personal injury protection — Discovery — Surveillance videos — Error to compel insurer to produce surveillance video prior to having opportunity to depose subjects of video — Where insurer intends to use surveillance video as evidence, insurer should have disclosed existence of video in discovery rather than masking video’s existence by only disclosing existence of “investigative report” — Medical provider’s counsel had responsibility to act promptly to prevent undue delays in scheduling depositions
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. H. REHAB, INC. a/a/o ROBERTO R. RUES, JR., Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-243 AP. L.C. Case No. 08-2620 CC 26. November 21, 2011. An appeal from the County Court of Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Douglas H. Stein, Seipp & Flick, for Petitioner. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Respondent.
(Before LEDERMAN, COHEN, CYNAMON, JJ.)
(COHEN, Judge.) Before this Court is a petition for writ of certiorari filed by State Farm Mutual Automobile Insurance Company (State Farm). State Farm is seeking reversal of the trial court’s interlocutory order requiring State Farm to produce any and all surveillance videos prior to deposing the subjects of the video. For the reasons set forth below, this Court is granting State Farm’s petition and quashing the trial court’s order.
The pending petition stems from a complaint filed by the Respondent, H. Rehab, Inc., (H. Rehab), the medical provider and assignee of State Farm’s insured. H. Rehab sued State Farm for failure to pay the full amount for medical services rendered to the insured. Along with the summons and complaint, H. Rehab served interrogatories and a Request to Produce. In its interrogatories, H. Rehab requested State Farm to specify whether the insurance company conducted any surveillance of the insured and of H. Rehab “over the course of the past 12 months.” The interrogatories requested that State Farm list the dates of the surveillance, total hours of surveillance and whether the surveillance was relied upon to reduce or deny the claims for Personal Injury Protection benefits (PIP). State Farm failed to disclose the existence of surveillance tapes in its responses, instead disclosing only the existence of “investigatory reports”.
H. Rehab subsequently filed a Motion to Compel Any & All Surveillance Films and/or Reports. In opposition to the motion, State Farm contended that in order to protect the value of its surveillance evidence and for purposes of determining whether the surveillance would be used at trial, State Farm should be afforded the opportunity to take the depositions of the persons surveilled before producing the surveillance materials. At the hearing on the motion, State Farm relied on Dobson v. Persell, 390 So. 2d 704 (Fla. 1980). After hearing argument, the trial court ruled in favor of H. Rehab and ordered State Farm to disclose and produce the surveillance materials to H. Rehab prior to State Farm’s scheduled depositions. Based on this interlocutory order, State Farm filed the pending petition.
This Court finds the trial court’s order, compelling the production of surveillance videos prior to an opportunity to depose the subjects of the surveillance, or other persons with knowledge, is contrary to law. See Dodson v. Persell, 390 So. 2d 704 (Fla. 1980), and State Farm Fire and Cas. Co. v. H Rehab, Inc., 56 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D368a]. Accordingly, the trial court’s order is quashed.
In reviewing the interlocutory court order pursuant to State Farm’s petition for a Writ of Certiorari, this Court considered whether the trial court’s order departed from the essential requirements of the law and whether the material harm resulting from the error could be cured on appeal from the final judgment. Duncan v. United Auto. Ins. Co., 49 So. 3d 312, 313 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2496b] (delineating the standard of certiorari review of an interlocutory order issued in a PIP action), Old Republic Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1214c] (defining the standard of review of an interlocutory order compelling production of documents), and State Farm Mut. Auto. Ins. Co. v. Peters, 611 So. 2d 597 (Fla. 2d DCA 1993) (addressing certiorari review of an order denying an insurer’s motion for protective order and compelling discovery). See also Philip J. Padovano, Florida Appellate Practice, §19:10 Review By Certiorari-Unappealable Nonfinal Orders (2011 ed.). As a general rule, pretrial orders which force a party to disclose privileged information have been categorized as interlocutory orders that cause irreparable harm which cannot be cured on appeal. Heekin v. Del Col, 60 So. 3d 437, 438 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D580a] Cruz-Govin v. Torres, 29 So. 3d 393 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D520b] (order granting discovery of privileged information is reviewable by certiorari). See also Philip J. Padovano, Florida Appellate Practice, § 19:10, supra. Therefore, in the pending case, the trial court’s order compelling the disclosure of State Farm’s work product is within the class of orders in which an error would be material and cannot be cured on appeal after final judgment. Applying the standard of review articulated by the Florida Supreme Court to this case, we find that the trial court’s order compelling the production of surveillance evidence before an opportunity to depose does not comport with established controlling law. Moreover, harm to the Appellant cannot be cured on appeal after final judgment.
Dodson v. Persell, 390 So. 2d 704, establishes the principle of law regarding the sequence of disclosure of a surveillance tape. In Dodson, the Florida Supreme Court held that a party conducting surveillance should be permitted to depose the subjects of the surveillance prior to requiring disclosure of the contents of the surveillance to the opposing party, when it is anticipated that the surveillance tape will be introduced at trial. The Supreme Court acknowledged that its decision was an equitable compromise reached by weighing the surveilling party’s need to protect its trial strategy and to preserve the impeachment value of the surveillance tapes against the opposing party’s need to authenticate the tape and prepare for trial. Therefore, the Court’s decision in Dodson enunciated a general rule favoring post-deposition production of surveillance tapes as “an appropriate middle road.” Dodson, 390 So. 2d at 708.
In State Farm Fire & Cas. Co. v. H Rehab, Inc. a/a/o Martha Alava, 56 So. 3d 55 (Fla. 3d DCA, Feb 16, 2011) [36 Fla. L. Weekly D368a] (reh’g en banc denied March 28, 2011), the Third District Court of Appeals applied the Dodson holding to a PIP case. Language in that case construes Dodson narrowly and abrogates any questions concerning the trial court’s discretionary authority to weigh the competing arguments regarding discovery of surveillance videos or to select the appropriate time in which surveillance videos must be produced during the course of pre-trial discovery. The Court in State Farm Fire & Cas. Co. held:
In Dodson, the Florida Supreme Court held that a party is not required to produce surveillance video unless the party is going to introduce the video as evidence, and if so, not until the surveilling party has had an opportunity to depose the subject of the video. Id. at 56.
In ruling on State Farm’s opposition to the Motion to Compel in this case, the trial court made a distinction between applying Dodson in a bodily injury case as opposed to a PIP case. The trial court opined that a surveillance video in a bodily injury case would determine whether the insured’s injury is genuine and whether the injury is as extensive as asserted. Any potential impeachment value, therefore, would be destroyed by ordering pre-deposition disclosure of such surveillance materials in those types of cases. On the other hand, in a PIP case, a pre-deposition disclosure would not be critical to the insurer’s defense and ability to effectively cross-examine the insured since the purpose of the surveillance is not to impeach. Rather the purpose of the surveillance is to assist the insurer in formulating mental impressions, legal theories or conclusions regarding the necessity of the treatment or the reasonableness of the charge. This Court finds this distinction meaningless and contrary to State Farm Fire & Cas. Co. v. H Rehab, Inc., 56 So. 3d 55, which is controlling case law in this jurisdiction.
Finally, in this case, both Parties have misapprehended their respective roles and the rules of civil procedure regarding pre-trial discovery. Two concerns raised during oral argument, which are often the subject of litigation, will be addressed in order to inform the parties practice in conducting litigation. First, there is a distinction between disclosing the existence of a surveillance video versus disclosing the video’s contents. Pursuant to Dodson, a party who conducts a surveillance is mandated to disclose the existence of the surveillance information to the opposing party even if the surveilling party does not intend to use the information at trial. However, the surveilling party is not required to disclose the contents of the surveillance if the surveillance information is not intended to be submitted as evidence at trial. In instances in which the surveillance depicts unique events which cannot be duplicated and are not available from another source, then the contents of a surveillance video is subject to disclosure. Dodson, 390 So. 2d at 707. In this case, State Farm is seeking to submit as evidence the contents of its surveillance video. Accordingly, State Farm must disclose, and should have immediately disclosed, the existence of the surveillance video when requested by the opposing party in compliance with Dodson. State Farm should not have waited for more than a year before disclosing the existence of its surveillance tape or masked its existence by only disclosing the existence of as an “investigative report.” Indeed, the trial court may have exercised its discretion to sanction State Farm for deliberately providing an inaccurate or evasive response to an interrogatory. See Herold v. Computer Components Intern., Inc., 252 So. 2d 576, 580 (Fla. 4th DCA 1971).
Second, while the trial court is vested with broad discretion in dictating the course of discovery, which includes the discretion to prevent undue delays in the discovery process, the onus is on a plaintiff to move the case towards a resolution. In the pending case, H. Rehab contends that State Farm has intentionally delayed scheduling depositions for nearly a year, and has “refus[ed] to produce surveillance materials [to] slow the resolution of the claims for PIP benefits . . .” (H. Rehab, Inc.’s Response Brief, at 9-10, fn 6). However, under the Florida Rules of Professional Conduct, an attorney has the obligation to diligently pursue a client’s case despite obstruction or opposition. See R. Regulating Fla. Bar 4-1.3 Diligence. Thus, H. Rehab must take the initiative to address and eliminate dilatory practices undertaken for the purpose of delay. Under Fla. R. Civ. P. 1.340(a) (governing interrogatories), and 1.350(b) (governing production of documents), a litigant may request the court to shorten the deadline for responding to discovery requests. Scheduling motions on the court’s calendar is within the province of any litigant seeking to resolve discovery disputes. See Pimental v. Dep’t of Revenue ex rel. Barnes, 2011 WL 4825617 (Fla. 2d DCA 2011) (a party is required in a civil proceeding to contact the judge’s chambers to arrange time for a hearing before the trial court is obligated to rule), Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D753e] (in a civil proceeding it is necessary to bring a pending matter to the trial court’s attention by noticing it for hearing). In addition, it is an attorney’s ethical responsibility to zealously expedite litigation to a conclusion. R. Regulating Fla. Bar 4-3.2 Expediting Litigation. Therefore, it was incumbent upon H. Rehab to act promptly once it became clear that the opposing party was recalcitrant or unreasonably delaying the progress of the case.
State Farm’s Writ of Certiorari is granted and the trial court’s order is quashed.
Accordingly, this matter is REMANDED for further proceedings.
The Respondent’s Request for Attorney’s Fees is Denied. (LEDERMAN and CYNAMON, JJ., concur.)
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