Opinion
No. 1D20-3772
10-06-2021
Briana CARNES and Maruti Fleet & Mgmt., LLC, Petitioners, v. Sommer FORD, Respondent.
Scott A. Cole from Cole, Scott, & Kissane, P.A., Miami, for Petitioners. Brian J. Lee from Morgan & Morgan, Jacksonville, for Respondent.
Scott A. Cole from Cole, Scott, & Kissane, P.A., Miami, for Petitioners.
Brian J. Lee from Morgan & Morgan, Jacksonville, for Respondent.
Per Curiam.
DENIED . See Allstate Ins. Co. v. Boecher , 733 So. 2d 993 (Fla. 1999) ; see also Dodgen v. Grijalva , 281 So. 3d 490 (Fla. 4th DCA 2019), rev. granted , No. SC19-1118, 2019 WL 4805833 (Fla. Oct. 1, 2019) (review granted by Florida Supreme Court after the district court denied a similar petition and certified a question of great public importance) & Younkin v. Blackwelder , ––– So. 3d ––––, 2019 WL 847548 (Fla. 5th DCA), rev. granted , No. SC19-385, 2019 WL 2180625 (Fla. May 21, 2019) (same).
Osterhaus and Bilbrey, JJ., concur; Tanenbaum, J., concurs in part in result with opinion.
Tanenbaum, J., concurring in part in result.
The petitioners fail to establish a jurisdictional basis for their requested relief. I would dismiss, rather than deny, the petition.
For relief the petitioners ask that we quash the trial court's order overruling their objections to several expert witness interrogatories and ordering that they respond. Those interrogatories asked the petitioners to provide certain information regarding any expert witness they anticipated calling to testify at trial, which could be summarized as follows:
• The amount of fees that the petitioners' insurance company or their law firm (but not the petitioners) paid to the expert witness over the last three years;
• The cases in which their anticipated expert witness rendered opinions for the petitioners' insurance company or their law firm (but not for them) over the last three years; and
• The most recent case in which some of this information was requested from either the petitioners or someone acting on their behalf, including their insurance company.
The petitioners did not respond at all to any of the requests in question. Instead, they demurred, arguing that these requests sought information beyond what the discovery rules allowed; sought privileged attorney-client communications; sought their attorneys' work product; and sought privileged information of non-parties. The petitioners added that any responsive information was "not readily available," so "compliance" with any of these objectionable requests would be "oppressive and unduly burdensome." As bases for invoking our certiorari jurisdiction, however, they limit their contentions to burdensomeness, overbreadth, and the statutory privacy rights of unidentified non-parties; the petitioners do not rely on a violation of the attorney-client privilege or the work-product doctrine as a jurisdictional basis. And this is the salient problem with the petition.
Under the civil rules, interrogatories may be directed to a party , and the party must answer those interrogatories based on information available to the party . See Fla. R. Civ. P. 1.340(a) ; cf. Fla. R. Civ. P. 1.280(b)(5)(A)(i) (allowing a party to use interrogatories to require "any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion" (emphasis supplied)). There is no requirement that the party, before answering the interrogatories, hunt down knowledge that the party does not already have. If the party does not know the answer (or, if the party is a business entity, does not have internal access to information from which to derive the answer), the party has no obligation to start asking non-parties for help. It is okay instead for the party simply to say, under penalty of perjury, "I don't know." The trial court's order does not appear to foreclose this response or a similar one (if true) for any interrogatory to which it applies. The order just overrules the petitioners' objections.
In turn, none of those objections that the petitioners ask us to consider here points to the type of harm that is cognizable as a basis for certiorari jurisdiction. On the one hand, the burdensomeness or irrelevance of discovery alone certainly cannot support that jurisdiction. Cf. Rodriguez v. Miami-Dade County , 117 So. 3d 400, 405 (Fla. 2013) (reiterating that increased litigation "costs, time, and effort" are not irreparable harm that can support certiorari jurisdiction); Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC , 99 So. 3d 450, 456–57 (Fla. 2012) (holding that discovery overbreadth alone is not a basis for certiorari relief); Allstate Ins. Co. v. Langston , 655 So. 2d 91, 94 (Fla. 1995) (explaining that irrelevant discovery does not "necessarily cause[ ] irreparable harm"); Martin-Johnson, Inc. v. Savage , 509 So. 2d 1097, 1100 (Fla. 1987) (observing that inconvenience and "considerable expense of time and money" in connection with litigation is clearly not the type of harm sufficient to support certiorari review); see also Allstate Ins. Co. v. Boecher , 733 So. 2d 993, 1000 (Fla. 1999) (noting that " Martin–Johnson properly sets forth the parameters for certiorari relief in pretrial discovery").
On the other hand, the petitioners do not identify a statutory privilege or some other fundamental right that either of them hold (instead of one held by a non-party ) that would be violated by the trial court's order they ask us to review. Cf. Martin-Johnson , 509 So. 2d at 1099 (reaffirming distinction between discovery orders violative of the rules of evidence and "those that violate fundamental rights causing harm that cannot be remedied on appeal" (citing Kilgore v. Bird , 149 Fla. 570, 6 So. 2d 541 (1942) ); id. at 1100 (approving district court's conclusion that there was no irreparable harm because there was not "material protected by any privilege" and because any asserted privacy interest did not "rise[ ] to the level of trade secrets, work product, or information about a confidential informant"). At best, the petitioners seem to rely on discovery irregularities for support of certiorari jurisdiction. The discovery rules, however, cannot supply the jurisdictionally necessary privilege or right. I say this because a rule of procedure cannot create a substantive right; the right must stem from the text of the constitution or a statute. Compare Art. III, § 1, Fla. Const. (vesting the State's legislative power in its Legislature), with Art. V, § 2, Fla. Const. (giving the supreme court authority to "adopt rules for the practice and procedure in all courts"); see Boyd v. Becker , 627 So. 2d 481, 484 (Fla. 1993) ("While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights."); see also Benyard v. Wainwright , 322 So. 2d 473, 475 (Fla. 1975) (distinguishing between "[s]ubstantive law," which "prescribes the duties and rights under our system of government" and is the responsibility of the Legislature to make "within the limits of the state and federal constitutions"; and procedure, which "concerns the means and method to apply and enforce those duties and rights").
The privilege that the petitioners do purport to assert is that of a non-party, which they lack standing to advance. Cf. Alterra Healthcare Corp. v. Estate of Shelley , 827 So. 2d 936, 941 (Fla. 2002) (explaining that the right to privacy "is a personal one, inuring solely to individuals" and not to be asserted by another on his behalf; noting that "a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties" (second quotation from Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ).
To review, the petitioners do not identify a substantive right of their own that would be violated by their being required to respond to the interrogatories in question, and they do not have standing to assert a right held by a non-party. Their petition on its face does not carry them across the jurisdictional threshold. I would dismiss the petition. Practically speaking, though, the majority's denial of the petition has the same effect for the petitioners (i.e. , they get no relief), so I concur to that extent.