23 Fla. L. Weekly Supp. 515a

Online Reference: FLWSUPP 2306LEONInsurance — Personal injury protection — Discovery — Reimbursement amounts accepted by provider from contracted payors — Order issued by trial court subsequent to in camera inspection of documents was insufficient and departed from essential requirements of law where order did not set forth findings specific to instant case

VIRTUAL IMAGING SERVICES, INC., a/a/o Framcoise Leon, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-230 AP. L.T. Case No. 12-15426 SP 23. October 8, 2015. On common-law certiorari review from a non-final order rendered by the Miami-Dade County Court, Hon. Charlie Johnson. Counsel: Charles J. Kane, The Greenspan Law Firm, P.A., for Petitioner. Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, for Respondent.

(Before SCOLA, BUTCHKO, CYNAMON, JJ.)

(HOGAN SCOLA, Judge.) Virtual Imaging Services, Inc. requests certiorari relief from a non-final discovery order. Respondent, State Farm Mutual Automobile Insurance Company, requested production of copies of contracts that Virtual maintains with private health insurance companies, and/or the reimbursement rates Virtual accepts from other insurers and payors for a particular billing code. Virtual objected to the discovery requests as overbroad, irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and protected by privileges of confidentiality and trade secret. The lower court held an in camera review of the subject documents. It found that while almost all of the information contained in the documents was either irrelevant or proprietary, the numerical reimbursement amounts from contracted payors were, in fact relevant, and did not constitute trade secrets. As such, the court ordered Virtual to disclose the reimbursement amounts generically by only identifying the type of carrier/payor (i.e., “HMO #1,” “PPO #1”) without identifying the actual name of the payor/carrier. The court attached to its order a copy of a ruling in an unrelated case, instructing the parties to consult the prior ruling for a detailed discussion of the legal issues presented in the instant case. The prior ruling is herein referred to as the “Attached Order.”¹

Appellate courts possess certiorari jurisdiction to review “[o]rders improperly requiring the disclosure of trade secrets” 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]. The applicable standard of review of a discovery order by certiorari is whether the challenged order departs from the essential requirements of the law, which causes irreparable harm, and leaves the party challenging the order with no other adequate remedy on appeal. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b] (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)).

When a party asserts the trade secret privilege as the basis for resisting production, the court must determine the validity of that assertion — usually via an in camera inspection. Cooper Tire & Rubber Co. v. Cabrera, 112 So. 3d 731, 732 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1012a]; Summitbridge Nat’l. Investments, LLC v. 1221 Palm Harbor, LLC, 67 So. 3d 448, 449 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1888b]; Premiere Lab Supply, Inc. v. Chemplex Industries, Inc., 791 So. 2d 1190 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1928b]. Once a court establishes that the trade secret privilege applies, it must then determine whether the party seeking production has shown a reasonable necessity for the disclosure that outweighs the interest in upholding the confidentiality of the trade secrets — this determination may require an evidentiary hearing. Summitbridge, 67 So. 3d at 450; Chemplex Industries, 791 So. 2d at 1190-91. If, after an in camera inspection, and an evaluation of reasonable necessity, a trial court orders production of trade secret information, its written order must set forth specific findings to support the disclosure. Cabrera, 112 So. 3d at 732.

Here, the lower court was correct to hold an in camera inspection of the subject documents. However, the trial court’s subsequent order was insufficient and departed from the essential requirements of the law as it failed to set forth specific findings. The lower court should have issued an order specific to the instant case and facts, rather than the issuing a brief main ruling which incorporated an order originating in an unrelated case where the lower court did not perform an in camera inspection of the documents in dispute.

This Court also questions the appropriateness of the lower court’s determination on relevance. State Farm seeks disclosure of the reimbursement amounts Virtual accepts from entities with whom it maintains contracts, such as HMO and PPO payors. These reimbursement amounts alone — viewed in isolation, and without the context of the contract as a whole — have limited application for State Farm, an entity that does not enjoy a contractual relationship with Virtual. In short, State Farm, a non-contracting party, sits in a significantly different position from the HMO and PPO entities that contract with Virtual for mutual benefit.

For the reasons set forth above, we grant certiorari relief, and find that Virtual Imaging is a prevailing party entitled to attorney’s fees.

CERTIORARI RELIEF GRANTED. (BUTCHKO and CYNAMON, JJ., concur.)

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¹The Attached Order was issued in a case with similar, yet distinguishable facts. One key factual difference is that the trial court did not perform an in camera inspection prior to issuing the Attached Order.