21 Fla. L. Weekly Supp. 32a

Online Reference: FLWSUPP 2101ENRIInsurance — Discovery — Surveillance video — Order compelling insurer that conducted surveillance allegedly demonstrating that insured did not receive treatment on days billed to disclose surveillance video before deposing medical provider’s employees satisfies jurisdictional burden for common-law certiorari relief by demonstrating material injury that may not be remedied on plenary appeal — Abuse of discretion to order disclosure of video before depositions where insurer attempted to depose provider’s employees within reasonable time and did not delay deposing witnesses

STATE FARM FIRE AND CASUALTY COMPANY, Petitioner-Defendant, v. K & J MEDICAL CENTER, INC., a/a/o Enrique Enriquez, Respondent-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-070 AP. L.T. Case No. 09-1927 CC 21 (01). August19, 2013. On common-law certiorari review from a non-final order rendered by the Maimi-Dade County Court, Hon. Ana M. Pando. Counsel: Douglas H. Stein of Seipp & Flick, LLP, for Petitioner. Marlene S. Reiss of Marlene S. Reiss, P.A., for Respondent.

(Before KORVICK, BAILEY, and ZABEL, JJ.)

(PER CURIAM.) K & J Medical Center, Inc. (“provider”) filed a complaint against State Farm Fire and Casualty Company (“insurer”). As an affirmative defense, the insurer alleged that it conducted surveillance on the provider; this surveillance allegedly demonstrated that the claimant did not receive treatment on particular days for which the provider billed. When the provider requested the surveillance evidence, the insurer objected to the request and asserted the work product privilege. After hearing arguments, the trial court ordered the insurer to provide the surveillance evidence before deposing the provider’s employees.

In this common-law certiorari proceeding, we consider whether the insurer demonstrates (1) a departure from the law’s essential requirements, (2) a material injury, and (3) whether we may cure this injury on appeal from the judgment. DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2140a]. Disclosing the surveillance materials, prior to deposing the provider’s witnesses, may result in these witnesses improperly adjusting their deposition testimony. A witness adjusting testimony can directly hinder the insurer from obtaining discovery through depositions. Fla. R. Civ. P. 1.280(b)(1). We may not remedy this material injury on plenary appeal as “after judgment it would be impossible to determine whether” the witnesses viewing the surveillance before deposition “affected the outcome.” Dees v. Kidney Group, LLC, 16 So. 3d 277, 279 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1735a]. We find that the insurer satisfies the jurisdictional burden for common-law certiorari relief. Accordingly, we focus upon whether a departure from the law’s essential requirements occurred.

The insurer asserts that the lower court erred by directing it to provide the surveillance evidence before deposing the provider’s employees. The insurer and provider disagree as to whether the trial court properly applied Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). According to Dodson, “fairness” requires permitting a litigant to use “surveillance materials to establish any inconsistency in a claim by allowing the surveilling party to depose the party surveilled after the movies have been taken or evidence acquired but before”the surveilling party presents the contents for pretrial examination. 390 So. 2d at 708 (emphasis added). Judges possess“discretion to allow the discovery deposition before disclosure.” Id. (emphasis added).

Subsequent to Dodson, State Farm Fire & Cas. Co. v. H Rehab, Inc. a/a/o Martha Alava held that this appellate division ruled “contrary to the principles outlined in Dodson”by affirming an order, which compelled production of a surveillance video before deposing the video’s subjects. 56 So. 3d 55, 56 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D368a]. Interestingly, a circuit appellate panel cognized that Alava “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.” State Farm Mut. Auto. Ins. Co. v. H. Rehab, Inc., a/a/o Roberto R. Rues, Jr., 19 Fla. L. Weekly Supp. 173a (Fla. 11th Cir. Ct. Nov. 21, 2011) (emphasis added). We disagree with how the Rues panel interpreted Alava. We do not read Alava as abrogating the trial court’s discretion relegated by Dodson. Indeed, subsequent to Alava, the Third District Court of Appeal again cited to the discretion authorized by Dodson. State Farm Mut. Auto. Ins. Co. v. H Rehab, Inc., a/a/o Villa, 77So. 3d 724, 725 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2469a].¹ Furthermore, as the Alava opinion did not include many facts, precisely gauging how Alava abrogates this discretion’s boundaries becomes difficult. We interpret Alava as reinforcing Dodson’s application as controlling law.²

Prior to this discovery order on review, State Farm Mut. Auto. Ins. Co. v. Global Med. Rehab. Center a/a/o Francisco Cabrera recognized that “there may be circumstances wherein a trial judge may justifiably use discretion in applying” Dodson. 17 Fla. L. Weekly Supp. 164a (Fla. 11th Cir. Ct. Nov. 19, 2009). Cabrera affirmed releasing the surveillance evidence before deposing the insured and reasoned that the insurer received opportunity to schedule the deposition “prior to producing the surveillance tape” but“did not avail itself of this opportunity.” Id. (emphasis added). We interpret Cabrera as establishing “equivocating and delaying the litigation” as factors for consideration when analyzing discretion under Dodson. Id.

Here, the provider contends that the insurer “had two years to depose the therapist and treating physician, but inexplicably chose not to.” We disagree. Every civil action “shall be deemed commenced” when the plaintiff files the complaint. Fla. R. Civ. P. 1.050. This provider filed the complaint on June 5, 2009; pursuant to Rule 1.050, the provider did not commence this action until June 5, 2009. Florida Rule of Civil Procedure 1.310(a) states that after commencing an action “any party may take the testimony of any person, including a party, by deposition.” Therefore, the insurer generally could not depose the provider’s employees, pursuant to Rule 1.310(a), until after June 5, 2009, the date the provider filed its complaint. We consider the insurer’s attempts to depose these witnesses; on December 7, 2009, the insurer served the provider with a notice to depose the physician and the parties scheduled this deposition for January 14, 2010. The insurer served a second deposition notice for this same physician on January 7, 2010; the parties scheduled this deposition for February 25, 2010. Clearly, the insurer attempted to depose the physician after the provider commenced this action.³

Here, the trial court relied upon Dodson and directed the insurer to produce the surveillance evidence before deposing the provider’s employees.⁴ Cabrera cited Dodson and reasoned that the surveilling-party did not utilize the opportunity to schedule the deposition before producing the surveillance evidence. 17 Fla. L. Weekly Supp. 164a. Unlike Cabrera, this insurer scheduled the same physician’s deposition twice. No evidence demonstrates that the insurer disobeyed a prior order to complete depositions by a specific deadline before disclosing the surveillance evidence. Rather, the insurer attempted to depose the provider’s employees within a reasonable time and did not delay deposing these witnesses. Considering Cabrera’s interpretation of Dodson’s discretion, we conclude that the lower tribunal abused its discretion.

This non-final order conflicts with Dodson, Alava, and diverges from Cabrera’s interpretation of Dodson’s discretion, thus, contravening controlling law.⁵ Failing to follow controlling case law violates the law’s essential requirements. Bellsouth Telecomms., Inc. v. Church & Tower of Florida, Inc., 930 So. 2d 668, 673 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D800a]. We quash the non-final order.

CERTIORARI RELIEF GRANTED.

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(JUDGE ZABEL, concurring.) The insurer objected to the provider’s request for the surveillance evidence by asserting the work product privilege. See 1 Fla. Prac. Evidence § 502.9 (2013 ed.) (“The ‘work product’ privilege or doctrine protects documents and papers of an attorney or a party prepared in anticipation of litigation regardless of whether they pertain to confidential conversations between attorney and client”) (footnote omitted). The insurer’s work product privilege does not provide the primary reason for granting certiorari relief. Although we grant certiorari relief, discretion ultimately remains with the trial court. See Dodson, 390 So. 2d at 708 (“the trial court’s discretion to allow the discovery deposition before disclosure is an appropriate middle road to ensure that all relevant evidence reaches the trier of fact in a fair and accurate fashion”).

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¹See Target Corp. v. Vogel, 41 So. 3d 962, 963 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1686b] (“we find no abuse of discretion in the order requiring their [accident photographs] production before”the plaintiff’s “deposition”) (emphasis added).

²We observe that Alava becamebinding authority in 2011 and did not exist as controlling law when the county court rendered this non-final order on February 2, 2010. Nonetheless, we “apply the law in existence at the time of the appeal.” Hunte-Wilde Corp. v. Kitchen, 452 So. 2d 2, 5 (Fla. 1st DCA 1984). This premise applies even when a litigant requests an extraordinary writ. See Allstate Ins. Co. v. Baughman, 741 So. 2d 624, 625 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2239a] (“Although we cannot unequivocally say that the circuit [appellate] court failed to apply the correct law in resolving the matter as it existed at the time . . . the circuit court’s order is erroneous under current law”) (citations omitted and emphasis added). Accordingly, we apply extant district court and circuit appellate cases to the facts.

³The appendices do not include a notice to depose the therapist.

⁴We review a trial court’s interpretation of decisional law de novo. Dortch v. State, 63 So. 3d 904, 906 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1302a].

⁵We presume that neither litigant nor the trial court considered Cabrera since this appellate division issued Cabrera on November 19, 2009; Florida Law Weekly Supplement may not have published Cabrera when the provider served its motion to compel on December 8, 2009. Despite Cabrera’s possible unavailability, we consider Cabrera precedential since the “effective date of an appellate decision is the date appearing on the face of the decision.” 3 Fla. Jur 2d Appellate Review § 408.

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