Opinion
No. 3D21-1258
12-01-2021
ESJ JI LEASEHOLD, LLC, Petitioner, v. PJGWI, INC., et al., Respondents.
Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for petitioner. Haber Law, P.A., and David B. Haber, Roger Slade, and Ariella J. Gutman, for respondents.
Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for petitioner.
Haber Law, P.A., and David B. Haber, Roger Slade, and Ariella J. Gutman, for respondents.
Before FERNANDEZ, C.J., and MILLER and BOKOR, JJ.
BOKOR, J.
ESJ JI Leasehold, LLC ("ESJ") seeks certiorari relief from an order of the trial court requiring production from third parties of, inter alia, ESJ's financial records and other communications. Despite requiring the production of ESJ's financial documents under a confidentiality order, we conclude that compelling production of financial documents sought, with no relevance to the litigation as framed by the parties’ pleadings, constitutes "cat out of the bag" discovery meriting certiorari relief. However, to the extent the order requires production of other materials, such as communications or comments pertaining to the lease extension, such requests either constitute permissible discovery or, at a minimum, do not rise to the level of irreparable harm warranting certiorari relief.
Specifically, ESJ seeks review of the trial court's May 7, 2021 "ORDER ON PLAINTIFF'S MOTION TO COMPEL DOCUMENTS RESPONSIVE TO SUBPOENAS DUCES TECUM AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER RE SUBPOENAS ISSUED TO (1) MORRISON BROWN ARGI & FARRA, LLC (2) DAVID HOLLANDER (3) CITY NATIONAL BANK (4) JOHN DUNLAP AND (5) ICONIC ATTRACTIONS," which lists specific categories of documents to be produced from each nonparty.
As explained in this order, we confine the certiorari relief granted herein to cabin off and prevent the disclosure of "cat out of the bag," sensitive financial information unrelated to the claims or defenses of the underlying litigation.
"To grant certiorari relief, there must be: ‘(1) a material injury in the proceedings that cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.’ " Fla. Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 2019) (quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012) ). In the context of private financial information of a party, we have previously explained that:
"Discovery is limited to those matters relevant to the litigation as framed by the parties' pleadings ." Rousso v. Hannon, 146 So.3d at 69. "Generally, private individual financial information is not discoverable when there is no financial issue pending in the case to which the discovery applies." Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450 (Fla.2012) ; see also Aspex Eyewear, Inc. v. Ross, 778 So.2d 481, 481–82 (Fla. 4th DCA 2001) ("Ordinarily the financial records of a party are not discoverable unless the documents themselves or the status which they evidence is somehow at issue in the case.").
Mana v. Cho, 147 So. 3d 1098, 1100 (Fla. 3d DCA 2014) (emphasis in original). In the instant petition, the Respondents make no serious argument that ESJ's financial information is somehow at issue in the case. Respondents have made no showing of a causal connection between the claims, as framed by the parties’ pleadings, and the financial records sought, not even one of "tangential relevance." Rousso v. Hannon, 146 So. 3d 66, 79 (Fla. 3d DCA 2014). Instead, "Respondent PJGWI anticipates that the documents being withheld are likely to show that Petitioner ESJ represented to various non-parties (including the bank, their accountants, and potential investors) that it had ‘obtained’ the Extension Amendment at issue [...]." Applying Respondents’ stated goals (which is consistent with the parties’ pleadings) to the order at issue, the May 7, 2021, order clearly requires production of financial information not relevant to the claims at issue.
Accordingly, the Respondents are entitled to exactly what they seek and nothing more: communications regarding the lease extension. Allowing discovery of irrelevant, private financial information clearly departs from the essential requirements of law and constitutes "cat out of the bag" discovery that can cause material injury that cannot be adequately redressed on appeal. Mana v. Cho, 147 So. 3d at 1100 (citing Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) ). Thus, we grant the petition for writ of certiorari in part and quash the portion of the May 7, 2021, order compelling production of ESJ's financial information and communications related thereto, including portions of audit reports, appraisals, loan documents, and investment and financing information, other than the portions of those documents that contain communication or representations from ESJ regarding the lease extension. To the extent the May 7, 2021, order pertains to any other documents evincing communication regarding the lease extension at issue in the litigation, we leave such portion of the order undisturbed.
ESJ invites us to grant certiorari relief and quash not only the portions of the order requiring production of irrelevant financial or sensitive business information, but also the portion of the order requiring production of any communication regarding the lease extension. ESJ argues that such communications are irrelevant to the trial court's ultimate legal determination of the existence of the lease extension. However, we need not (and do not) make any determination regarding overbreadth or relevance because our certiorari review of a discovery order doesn't provide us with jurisdiction to review a discovery order on those bases. See Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021, 1023 (Fla. 4th DCA 1998) ("A mere claim of irrelevance does not rise to the level required, that of irreparable harm, for certiorari to lie.") (citing Eberhardt v. Eberhardt, 666 So. 2d 1024 (Fla. 4th DCA 1996) ).
Petition granted in part; discovery order quashed in part.