22 Fla. L. Weekly Supp. 1144a
Online Reference: FLWSUPP 2210CAMEInsurance — Personal injury protection — Coverage — Medical benefits — Reasonableness of charges — Discovery — Trade secrets — Error to require medical provider to disclose reimbursement rate information for other insurers without conducting in camera inspection to make required determination whether requested information constituted trade secrets
VIRTUAL IMAGING SERVICES, INC. a/a/o Dienil Camejo, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-151 AP. L.T. Case No. 12-16436 SP 23. May 14, 2015. On common law certiorari review from the County Court in and for Miami-Dade County, Myriam Lehr, Judge. Counsel: Joseph Littman, Boca Raton, for Petitioner. Michael J. Neimand, United Automobile Insurance Company, Miami, for Respondent.
(Before SOTO, SCHLESINGER, and REBULL, JJ.)
(SCHLESINGER, Judge.) Petitioner Virtual Imaging Services, Inc., a/a/o Dienil Camejo (“Virtual Imaging”) petitions this court for certiorari relief from the county court’s March 31, 2014 “Order on Plaintiff’s Objection to Defendant’s Interrogatories 2, 3 and 5” overruling the medical provider’s objection to certain discovery requests.
As alleged in the underlying personal injury protection (“PIP”) litigation, Virtual Imaging provided diagnostic testing services to Dienil Camejo, relating to injuries sustained in an automobile accident. Camejo in turn assigned his PIP benefits under his policy with Respondent United Automobile Insurance Company (“United”). Litigation eventually ensued regarding the payment of claims under the policy, during which, United propounded interrogatories requesting that Virtual Imaging provide its reimbursement rate information for other insurers. Virtual Imaging objected asserting that the request was overbroad, burdensome, harassing, and not reasonably calculated to lead to the discovery of admissible evidence.
At a March 31, 2014 hearing, Virtual Imaging further objected to the disclosure of the HMO and PPO rate information because the contracts contained confidential provisions which prohibited the disclosure of the contract terms and rates included therein. Therefore, an order compelling the disclosure of the confidential information would violate the terms of the agreement. Lastly, Virtual Imaging asserted that production of the materials violated the confidentiality of its trade secrets and required the production of confidential business information.
The county court overruled Virtual Imaging’s objection, finding the payment information was relevant to the determination of the reasonableness issue in the case pursuant to section 627.736(5)(a)(1), Florida Statutes. However, the trial court limited the discovery to 2011 for each insurance provider and ruled that Virtual Imaging was permitted to omit the names of the providers and could simply identify the providers by number and type of carrier (e.g., HMO#1) “to avoid the potential for disclosure of any trade secret or proprietary information.” Accordingly, the petitioner filed the instant petition on April 30, 2014.
A party seeking review of a discovery order by certiorari must demonstrate: (1) that the order is a departure from the essential requirements of the law; (2) that the harm caused by the error is material through subsequent proceedings; and (3) that the harm cannot be corrected on appeal from the final judgment in the case. Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b].
In the instant petition, Virtual Imaging alleges that the trial court’s order compelling the disclosure of confidential and trade secret information pertaining to its contracts is a departure from the essential requirements of the law for the following reasons: (1) the lower court failed to weigh United’s alleged need for the documents against the privacy rights of Virtual Imaging and (2) the county court erred in ordering the disclosure of the confidential information without first conducting an in camera review to determine whether the asserted privilege was valid. We find Virtual Imaging’s second argument dispositive.
Trade secrets are privileged from disclosure by section 90.506, Florida Statutes, which provides as follows:
A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require.
Further, pursuant to Rule 1.280(c)(7), Florida Rules of Civil Procedure, upon motion by a party from whom discovery is sought, and for good cause shown, the trial court may order that a trade secret “not be disclosed or be disclosed only in a designated way.”
“When the trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret.” Sheridan Healthcorp, 770 So. 2d at 222. In making such a determination, an in camera inspection of the materials is usually required. Id. If the trial court determines that the request constitutes a trade secret, “the court must require the party seeking production to show reasonable necessity for the requested materials.” Id. The trial court must then set forth its findings if production is ordered. Id.
In this case, the county court overruled Virtual Imaging’s objection, but limited the discovery to 2011 and ruled that Virtual Imaging was permitted to omit the names of the providers and could anonymously identify the carriers “to avoid the potential for disclosure of any trade secret or proprietary information.” The county court nonetheless failed to make any clear findings as to whether the requested information indeed constituted trade secrets and failed to conduct an in camera inspection to make the required determination. In this respect, the order directing the production of the information constituted a departure from the essential requirements of the law.
Accordingly, we grant certiorari relief and remand to the county court to conduct an in camera inspection and to make findings of fact to determine whether the requested information constitutes trade secrets. (SOTO and REBULL, JJ., concur.)
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