25 Fla. L. Weekly Supp. 497a
Online Reference: FLWSUPP 2506DSMIInsurance — Personal injury protection — Discovery — Trial court departed from essential requirements of law by ordering provider to produce information claimed to be trade secret without conducting in camera inspection, weighing interests, making clear findings, and requiring appropriate protections — Order also departed from essential requirements of law by requiring production of more material than the court orally ordered produced at hearing on motion to compel
BAYFRONT HEALTH, EDUCATION AND RESEARCH ORGANIZATION, INC. (“HERO”), a Florida corp. (a/a/o Smith, Dave), Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 16-000014-AP-88B. UCN 522016AP000014XXXXCI. March 31, 2017. Counsel: Yasmin Gilinsky, Dania Beach, for Petitioner. Mark D. Tinker, St. Petersburg, for Respondent.
ORDER AND OPINION
Petitioner challenges the trial court’s Order on Defendant’s Motion to Compel Plaintiff’s Better Discovery Responses. For the reasons set forth below, the Petition is granted.
Facts and Procedural History
Petitioner performed emergency services on Dave Smith after a car accident and billed Respondent, his personal injury protection insurance company. Respondent allegedly paid 75% of all but one of the charges, and Petitioner, as assignee of Smith, brought a county court action against Respondent for the remainder. During discovery, Respondent requested that Petitioner produce “information or documentation evidencing what [Petitioner] accepted as payment from Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurances carriers . . . private pay or any other payor . . . for the CPT code(s) at issue.” In its response to the request to produce, Petitioner objected to the request as irrelevant, confidential, business propriety trade secret, and unduly burdensome. Petitioner also filed a privilege log that identified the documents regarding agreements and contracts with other payors as trade secrets. Thereafter, Respondent filed a motion to compel better discovery responses. After a hearing, the court orally granted the Motion to Compel and stated that it was requiring Petitioner to produce documents and information “as both to the reimbursement data, as well as the reimbursement amounts . . . accepted by the hospital.” The written order requires Petitioner to produce the reimbursement data and reimbursement amounts as instructed, but also requires “any and all contracts and agreements between [Petitioner and payors] that established or outlined charges or payments for the CPT codes at issue.” Petitioner filed the instant Petition for Writ of Certiorari asserting that it would suffer irreparable harm if it had to produce the required information.
Standard of Review
Circuit court certiorari review “is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) [20 Fla. L. Weekly S217a] (citation omitted).
Discussion
Petitioner contends that the lower court departed from the essential requirements of law by ordering the information to be produced despite Petitioner’s trade secret objections without first conducting an in-camera inspection, weighing the interests, making clear findings, and requiring appropriate protections. We agree. “Orders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari review.” Grooms v. Distinctive Cabinet Designs, Inc., 846 So. 2d 652, 654 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1299a]. In Bright House Networks, LLC v. Cassidy, the Second District Court of Appeal discussed objections to discovery based on trade secrets:
The Florida Evidence Code contains a privilege against the disclosure of trade secrets. See § 90.506, Fla. Stat. (2012). When a party objects to the disclosure of a trade secret, first a court must determine whether the requested information is, in fact, a trade secret. Usually this determination requires the trial court to perform an in camera review of the information.
Second, if the trial court determines that the information is a trade secret, then the court must determine if the party requesting the information has shown a reasonable necessity for the information. This court has explained that “[c]ompelled disclosure through discovery must be limited to items necessary for a court to determine contested issues.” If the court orders disclosure, it must make findings to support its determination. Furthermore, the trial court may need to order safeguards to prevent the unnecessary dissemination of the information.
129 So. 3d 501, 505-06 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D150d] (internal citations omitted). The court granted the petition for writ of certiorari because “the trial court ordered disclosure without an in camera review or making any findings regarding whether the disputed information was privileged as a trade secret or whether the [party requesting the information] had shown sufficient necessity to overcome the privilege.” Id. at 506.
In the instant case, the trial court erred by not conducting an in camera review of the requested materials and making the appropriate findings. If the trial court is unable to determine whether the requested materials are a trade secret during an in camera review, the court may need to conduct an evidentiary hearing. See id.; Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 808 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2480a]. “If the trial court finds that the information is a trade secret, then the court must balance the necessity for the information in the litigation against protecting the confidential information.” Bright House Networks, LLC, 129 So. 3d at 506 (citing Grooms, 846 So. 2d at 655). “[I]f disclosure is ordered, the trial court should take measures to limit any harm caused by the production.” Sea Coast Fire, Inc., 170 So. 3d at 809; see § 90.506, Fla. Stat. (“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.”).
Futhermore, the Court notes that the written order departs from the essential requirements of law because it requires production of more material than the court ordered at the hearing, including “any and all contracts and agreements.” See Hampton Manor, Inc. v. Fortner, 141 So. 3d 1260, 1262 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1437b] (“To the extent there is a conflict between the oral pronouncement and the written order, it is the oral pronouncements that controls.”); Xavier Fernandez, P.A. v. Sun Bank of Tampa Bay, 670 so.2d 1106, 1107 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D789b] (“Reversal is required where the final judgment is inconsistent with the trial court’s oral pronouncements.”)
Because the trial court failed to conduct an in camera review and make the appropriate findings, it is
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. (DAY, WILLIAMS, and CAMPBELL, JJ.)
