22 Fla. L. Weekly Supp. 184b
Online Reference: FLWSUPP 2202ALVAInsurance — Personal injury protection — Discovery — Interrogatories — Trade secret privilege — Although trial court made implicit findings as to whether trade secret privilege was applicable when crafting confidentiality limitations in order requiring disclosure of reimbursements amounts paid to medical provider by other insurers, clear findings are required
VIRTUAL IMAGING SERVICES, INC., a/a/o Victor Alvarez, Petitioner-Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent-Defendant. Circuit County, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-108 AP. L.T. Case No. 13-674 SP 23. September 11, 2014. On common-law certiorari review from a non-final order rendered by the Miami-Dade County Court, Hon. Carlos Guzman. Counsel: Joseph Littman, The Greenspan Law Firm, P.A., for Petitioner-Plaintiff. Michael J. Neimand, United Automobile Insurance Company’s Office of the General Counsel, for Respondent-Defendant.
(Before HOGAN SCOLA, ARZOLA, and MARIN, JJ.)
(MARIN, Judge.) Virtual Imaging Services, Inc. (“medical provider” or “provider”) requests certiorari relief from a non-final order overruling its objection to United Automobile Insurance Company’s (“insurer” or “insurance company”) fourth (4th) interrogatory. We may review orders improperly requiring trade secret disclosure even when such orders provide “for confidentiality limitations.” Cooper Tire & Rubber Co. v. Cabrera, 112 So. 3d 731, 733 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1012a].
According to the provider, by failing “to engage in a balancing of the interests analysis” before ordering the provider to disclose the confidential information, the county court departed from the law’s essential requirements. The provider also contends that the insurer did not demonstrate “a need for the requested information”, which outweighed the prejudice suffered by the provider in divulging this trade secret information. In opposition, the insurer argues that it does not seek the provider’s “methodology, factors, or data considered by the HMO and PPO insurers in calculating their reimbursement amounts”; rather, it only requests “the amounts paid” to this provider by other insurance companies. The insurer contends that reimbursement amounts do not qualify as “secrets because they are routinely disclosed to third-parties in advertising, on websites, and in explanations of benefits.”
A petitioner may obtain common-law certiorari relief when a non-final order departs from the law’s essential requirements, causes “material injury through subsequent proceedings”, and no “adequate remedy after final judgment” can alleviate the “irreparable injury” inflicted by the non-final order. Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b].
The Florida Legislature enacted the Uniform Trade Secrets Act, § 688.001, Fla. Stat. (1988), which defines a trade secret as
information, including a formula, pattern, compilation, program, device, method, technique, or process that (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
§ 688.002(4), Fla. Stat. (1997). The Legislature also enacted a trade secret evidentiary privilege, which states:
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.
§ 90.506, Fla. Stat. (2013). In this proceeding, the provider relies upon section 90.506, Florida Statutes, the trade secret evidentiary privilege (Cert. Pet. 11).
When a litigant asserts the trade secret privilege “as the basis for resisting production, a trial court must determine whether the requested production constitutes a trade secret.” Sheridan Healthcorp, 770 So. 2d at 222. If the requested information constitutes a trade secret, “the court must require the party seeking production to show reasonable necessity for the requested materials.” Id. If the court orders production, it “must set forth its findings.” Id.
Here, the insurer’s fourth (4th) interrogatory requests that this provider reveal the payment amount it received from insurance companies and uninsured patients listed in the response to interrogatory number three (3). See App. A3,¶4. The county court overruled the provider’s objections to interrogatory four (4) and ordered the provider to disclose “the reimbursement amounts for CPT Code 72148 for only the year 2012 from each insurance” company “listed in” interrogatory three (3) and reimbursements from uninsured patients. Id. at A5. The county court also directed the provider to anonymously1 identify the insurance companies “by number and type of carrier”, such as “HMO#1 [reimbursement amount]”, to avoid disclosing any trade secret. Id.2 The county court reasoned that pursuant to section 627.736(5)(a)(1), Florida Statutes, payments to this provider become relevant to determining reasonableness. Id.
Although this non-final order directed this insurer to avoid disclosing the insurance companies’ identities, we conclude that the county court did not make any clear finding as to whether the reimbursement amounts and the insurance companies’ identities constitute trade secrets. Because this order does not include a clear legal conclusion that the reimbursement amounts and the insurance companies’ and uninsured patients’ identities constitute trade secrets, the county court violated the law’s essential requirements. Cabrera, 112 So. 3d at 733; Gen. Hotel & Rest. Supply Corp. v. Skipper, 514 So. 2d 1158, 1159 (Fla. 2d DCA 1987). The county court implicitly concluded that the trade secret privilege applies; however, an implicit finding does not satisfy the legal criteria for trade secret analysis. Accordingly, we grant certiorari relief.
CERTIORARI RELIEF GRANTED. (HOGAN SCOLA and ARZOLA, JJ., concur.)
__________________
1See § 90.506, Fla. Stat. (2013) (“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”).
2Cf. E. Colonial Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276, 1278 (Fla. 5th DCA 1982) (a “customer list can constitute a ‘trade secret’ where the list is acquired or compiled through the industry of the owner of the list and is not just a compilation of information commonly available to the public”) (footnote omitted).
* * *
