26 Fla. L. Weekly Supp. 976a
Online Reference: FLWSUPP 2612ARIKInsurance — Automobile — Windshield repair or replacement — Discovery — Depositions — Trade secrets — Insurer’s corporate representative is ordered to answer questions relating to methodology used by insurer to determine “price we can secure” and “prevailing competitive price” — Court will conduct in camera inspection of documents claimed to constitute trade secret
AUTO GLASS AMERICA, LLC (a/a/o Chenchurama Arikatla), Plaintiff, v. GEICO CASUALTY COMPANY, GEICO INDEMNITY COMPANY, and GEICO GENERAL INSURANCE COMPANY, Defendants. County Court, 10th Judicial Circuit in and for Hillsborough County. Case No. 16-CC-031589. January 31, 2019. Cynthia Oster, Judge. Counsel: Emilio R. Stillo, Kevin W. Richardson and Andrew B. Davis-Henrichs, Stillo & Richardson, P.A.; and Mark B. Hartig, McCumber, Daniels, Buntz, Hartig, Puig & Ross, P.A., for Plaintiff. Mary Jo M. Smith, Law Office David S. Dougherty, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
THIS CAUSE, having come before the Court for hearing and argument on PLAINTIFF, AUTO GLASS AMERICA, LLC’s MOTION TO COMPEL TESTIMONY OF GEICO’S CORPORATE REPRESENTATIVE, on October 15, 2018, and the Court having and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. Plaintiff filed its notice of taking deposition for the corporate representative of the Defendant on March 15, 2018 pursuant to F.R.C.P. 1.310(B)(6).
2. On May 14, 2018, Defendants filed numerous objections to Plaintiff’s 1.310 Disclosure. Defendants raised multiple grounds one of which included asserting an alleged “trade secret privilege” as to paragraph 20 and 27 of the Disclosure. Defendants did not assert this objection as to paragraph 26.
3. The Defendants did not set their objections to the deposition notice or their objections to the Disclosure for hearing, nor did they move for protective order prior to the date the deposition was scheduled. Further the Defendants did not submit any privilege log for its asserted “trade secret privilege.”
4. On May 30, 2018, counsel for Plaintiff conducted the deposition of Defendants’ designated corporate representative, Susanna Eberling. At the deposition, counsel for the Defendants instructed the witness to not answer any questions relating to the following areas listed in the Disclosure:
· If the reimbursement rate has been contested by the Defendant, the methodology implemented by the Defendant in determining the appropriate reimbursement rate to which the Plaintiff is entitled, including the identity of all persons who were involved in the determination of what reimbursement rate was to be permitted for the charges of the Plaintiff in this matter. (#20 of Plaintiff’s Notice.)
· The methodology used to determine the “price we can secure” and the “prevailing competitive price” for the payments GEICO made to (30 identified invoices and work orders). (#26 of Plaintiff’s Notice.)
· The identification of all GEICO personnel who made or participated in the decision to reimburse or pay Florida windshield replacement claims at 110% to 150% of NAGS. (#27 of Plaintiff’s Notice.)
· The maximum amount reimbursed by GEICO to any Florida windshield replacement and repair facility for the same windshield replacement and/or repair services at issue in the instant action for the same year at issue. (#29 of Plaintiff’s Notice.)
· The criteria utilized by GEICO to arrive at 50 percent of the National Auto Glass Standards as being the prevailing competitive price consistent with its policy language, and examples of why GEICO has chosen to voluntarily pay more than 50 percent. (Eberling Deposition, pp 92 and 94).
5. The Defendants have apparently asserted a trade-secret privilege for the methodology it employs to determine the reimbursement rate to which the Plaintiff is entitled and the persons who participate in creating the methodology. Defendants have asserted the same privilege with respect to methodology used to determine the “price we can secure” and the “prevailing competitive price” for the payments GEICO made to (30 identified invoices and work orders) attached to the deposition notice.
6. The Defendants also instructed its designated corporate representative to not answer any questions relating to:
a. The identification of all GEICO personnel who made or participated in the decision to reimburse or pay Florida windshield replacement claims at 110% to 150% of NAGS. (#27 of Plaintiff’s Notice.)
b. The maximum amount reimbursed by GEICO to any Florida windshield replacement and repair facility for the same windshield replacement and/or repair services at issue in the instant action for the same year at issue. (#29 of Plaintiff’s Notice.)
c. The criteria utilized by GEICO to arrive at 50 percent of the National Auto Glass Standards as being the prevailing competitive price consistent with its policy language, and examples of why GEICO has chosen to voluntarily pay more than 50 percent. (Eberling Deposition, pp 92 and 94).
7. The Court finds that discovery or questioning relating to the Defendants’ methodology used to determine the “price we can secure” and the “prevailing competitive price” to be relevant to issues in this matter and hereby orders the corporate representative to answer questions relating to the same at the forthcoming continued deposition.
8. With respect to testimony based on documents withheld based on the trade secret privilege, this Court will employ the procedure articulated by the Fourth District in Columbia Hospital (Palm Beaches) Ltd. Partnership v. Hasson, 33 So.3d 148 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a]. There, the court held that a trial judge first has to determine whether information requested in discovery constitutes a trade secret. That determination may be made by agreement of the parties or an in camera inspection by the trial court. Hasson, 33 So.3d at 150. If it is determined that the information sought does not contain trade secrets, it may be produced subject only to ordinary discovery objections. If, however, it is determined that the information does indeed contain trade secrets, then the court must require the party seeking production to show reasonable necessity for the requested materials. Id. If the party seeking production makes such a showing, the trial court may properly compel the production of these materials but must also take such protective measures as are required to protect the trade secrets, such as entering a confidentiality order. Id. at 151.
9. Within thirty (30) days of this Order, the Defendants shall deliver to chambers the un-redacted documents which comprise the basis of any trade-secret objection.
10. After the Court has reviewed the materials the Court will set a status as it relates to the Court’s ruling.
11. This court retains jurisdiction over the matter of fees and costs for the bringing of this motion and hearing to be determined upon proper motion.
