28 Fla. L. Weekly Supp. 27b

Online Reference: FLWSUPP 2801WILL

Attorney’s fees — Insurance — Personal injury protection — Discovery — Appeals — Certiorari — Medical provider has not satisfied jurisdictional prerequisite for certiorari relief from order compelling production of unredacted portion of employment agreement between attorney and provider’s parent company where it was within trial court’s discretion to determine that agreement was relevant, and disclosure of limited information is insufficient to establish irreparable harm — Further, certiorari relief cannot be granted based on order to disclose privileged document where provider did not assert attorney-client privilege below

CHIRO-MEDICAL ASSOCIATES OF HOLLYWOOD, INC. a/a/o Deshandria Williams, Petitioner, v. GEICO INDEMNITY CO., Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division AY. Case No. 502019AP000034CAXXMB. Marach 17, 2020. Petition for Writ of Certiorari from the Honorable Marni Bryson, Palm Beach County Court. Counsel: Robert A. Trilling, Boca Raton, for Petitioner. Michael A. Rosenberg, Plantation, for Respondent.

(PER CURIAM.) Chiro-Medical Associates of Hollywood, Inc. (“Petitioner”) files a Petition for Writ of Certiorari seeking review of the trial court’s order granting GEICO Indemnity Company’s (“Respondent”) Motion to Compel Production of Unredacted Employment Agreement. The Petition for Writ of Certiorari is DENIED for the reasons set forth below.

Petitioner sued Respondent for its alleged failure to pay the full amount of benefits under a Personal Injury Protection (“PIP”) insurance claim due for its medical treatment of Respondent’s insured. After Respondent agreed to pay the benefits at issue, Petitioner filed its motion for attorney’s fees and costs. Because Respondent did not challenge the motion, the limited issue remaining for the trial court’s consideration was the amount of attorney’s fees and costs due to Petitioner.

Petitioner’s attorney is an employee of Petitioner’s parent company. Respondent served discovery on Petitioner, which included a request to produce “[a]ny documents reflecting the fee arrangement between Plaintiff and its counsel as it relates to this case.” Petitioner did not object and in response, produced a heavily redacted employment agreement between Petitioner’s attorney and Petitioner’s parent company (“Agreement”). Respondent filed a motion to compel the production of an unredacted Agreement. At the hearing on Respondent’s motion, Petitioner argued that the Agreement was irrelevant to the determination of reasonable attorney’s fees. Petitioner raised no other objections. The trial court concluded that portions of the redacted Agreement were relevant and ordered¹ Petitioner to produce the portion of the Agreement reflecting the percentage of legal fees Petitioner agreed to pay its attorney.

A non-final order for which no appeal is provided in Florida Rule of Appellate Procedure 9.130 is reviewable by certiorari in limited circumstances. Palm Beach Cnty. Sch. Bd. v. Morrison, 621 So. 2d 464, 468 (Fla. 4th DCA 1993). To obtain certiorari review, Petitioner must establish that the order departs from the essential requirements of the law, results in material injury to Petitioner for the remainder of the case, and leaves Petitioner with no adequate remedy on appeal. See id. Petitioner argues that the trial court’s order departs from the essential requirements of law by requiring discovery of irrelevant materials, which will result in material injury for which Petitioner would have no adequate remedy by requiring the discovery of confidential and privileged materials.

We first hold that Petitioner has not established that the court’s order departed from the essential elements of law by requiring the discovery of irrelevant materials. Discovery must be relevant to the subject matter of the case and admissible or reasonably calculated to lead to admissible evidence. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) [20 Fla. L. Weekly S217a]. When fees are contested, the scope of relevant discovery falls within the discretion of the trial court. Paton v. GEICO General Ins. Co., 190 So. 3d 1047, 1050 (Fla. 2016) [41 Fla. L. Weekly S115a]. For example, in Paton, the Florida Supreme Court held that the billing records of opposing counsel were relevant to the issue of reasonableness of time expended in a claim for attorney’s fees. Id.; see also Anderson Columbia v. Brown, 902 So. 2d 838, 841 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D949a] (holding that “discovery of an opposing party’s legal costs is a matter best left to the sound discretion of the trial court”). Accordingly, because fees were at issue, it was within the trial court’s discretion to determine that the Agreement was relevant.

Second, even if the discovery was irrelevant, irrelevant discovery alone is not a basis for granting certiorari because discovery of irrelevant materials does not necessarily cause irreparable harm. See Langston, 655 So. 2d at 94-95. Here, the trial court’s order compelled Petitioner to unredact a discreet portion of the Agreement pertaining to attorney’s fees while maintaining the confidentiality of the rest of the Agreement. We hold that the disclosure of this limited information is insufficient to establish irreparable harm.

Finally, certiorari relief cannot be granted based on the court ordered disclosure of privileged documents during discovery when privilege was not raised below. See Leonhardt v. Masters, 679 So. 2d 73, 74 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2022c] (denying petition for writ of certiorari from order compelling allegedly privileged documents because petitioner first raised the privilege in his petition). Petitioner waived its assertion of attorney-client privilege by raising it for the first time in its Petition. In response to Respondent’s discovery request, Petitioner did not assert that its fee agreement was protected by the attorney-client privilege. During the hearing, Petitioner also did not raise privilege, but only objected as to the relevance of its Agreement. Petitioner cannot now seek to assert privilege for the first time.

We therefore hold that Petitioner has not met the jurisdictional prerequisites for this Court to grant certiorari relief. See Paton, 109 So. 3d at 1052 (“Certiorari review of interlocutory orders is an extraordinary remedy that should only be granted in very limited circumstances.”). Accordingly,

We DENY the Petition for Writ of Certiorari. Further, we DENY Petitioner’s motion for appellate attorney’s fees as to this Writ. (KERNER, ROWE, and NUTT, JJ., concur.)

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¹The trial court entered two identical orders dated January 29, 2019 and February 6, 2019.