Litigation

Florida State Court Case Regarding Facebook/S.M. Discovery

By Mark Zamora

35 Fla. L. Weekly D1018 is the cite: www.5dca.org/Opinions/Opin2010/050310/5D09-3828.op.pdf

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2010
LORELL HOLLAND,
Petitioner,
v. Case No. 5D09-3828
KIMBERLY BARFIELD, as Personal
Representative for the ESTATE
OF BRANDON SCOTT LEDFORD,
Respondent.
________________________________/
 

Lorell Holland, Petitioner, seeks a writ of certiorari quashing the trial court's order
that compelled Petitioner to produce all computer hard drives and all cell phone SIM
cards in her possession to Respondent, Kimberly Barfield, as Personal Representative
of the Estate of Brandon Scott Ledford. We grant certiorari and quash the trial court's
order.
 

 Respondent filed suit against Petitioner and five others alleging damages for the
wrongful death of Brandon Ledford on February 28, 2009, when he fell from the tenth
floor balcony of Petitioner's residence in North Miami Beach. Respondent alleged that
Ledford died because the defendants breached their duties of care to him.
Respondent served a request to produce1 upon Petitioner, seeking, inter alia:
 

 Any and all computer hard drives in possession of the
[Petitioner] from 24 hours preceding February 27, 2009 to
present; and
5. Any and all cell phones in possession of the
[Petitioner] from 24 hours preceding February 27, 2009 to
the present.
Petitioner objected to these requests, asserting that they sought irrelevant information
unlikely to lead to the discovery of admissible evidence, were overbroad in scope with
respect to time and subject matter, were harassing in nature and constituted a "fishing
expedition," and invaded her right to privacy under Article I, section 23 of the Florida
Constitution.
Respondent moved to compel production of the hard drives and cell phones,
seeking evidence of communications among the defendants through mobile phone text
messages, Facebook.com, and MySpace.com. After a hearing, the trial court granted
the motion. The trial court's order also directed that Respondent agree to a protective
order and confidentiality agreement wherein all information would be for the attorney's
eyes only unless a court order was first obtained; prohibited the use or sharing of
1 Respondent's counsel informed the trial court that he had reached a
compromise with Petitioner's counsel regarding items 1., 2., and 3. of the request to
produce, which sought statements by Petitioner and other defendants regarding the
incident and all photographs in her possession taken during the time period.
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financial or social security information with any third party; and required any third party
provided discovery to sign a copy of the order and agree to be bound by its terms.
Petitioner argues that the trial court's order violates Florida Rule of Civil
Procedure 1.350 because it gives Respondent unlimited access to her hard drive and
SIM card without satisfying the requirements of Menke v. Broward County School
Board, 916 So. 2d 8, 11-12 (Fla. 4th DCA 2005). In particular, she asserts that
Respondent could examine every byte of information on the devices in contravention of
her right of privacy and without regard to attorney-client or work-product privileges.
Petitioner also contends that the order violates rule 1.280(b)(5) because it
ordered her to first relinquish possession of the hard drive and SIM card, rather than
permitting her to review the information beforehand and produce the response herself.
Further, the order allowed Respondent's computer expert to review the hard drive and
SIM card outside the presence of Petitioner's counsel, thereby depriving Petitioner of an
opportunity to object and preserve her claims of privilege and right of privacy, resulting
in irreparable harm. Lastly, she asserts that the trial court's order is unduly burdensome
because it deprives her of her only telephone and computer for an undetermined period
of time, which affects her ability to prepare for classes, take notes, research, and
communicate with other students and faculty at Florida Atlantic University where she
attends college.
Respondent contends that Petitioner thwarted discovery by failing to produce any
documents responsive to her request, which therefore allows the requesting party to
access the computer without first affording a review by the producing party. See
Menke, 916 So. 2d at 12, citing Strasser v. Yalamanchi, 669 So. 2d 1142, 1145 (Fla. 4th
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DCA 1996). Further, Respondent suggests that the degree of irreparable harm
Petitioner would allegedly suffer was minimal compared to the parties in Menke,
Strasser, and Rasmussen v. South Florida Blood Service, 500 So. 2d 533, 534 (Fla.
1987).
This court has certiorari jurisdiction to review a discovery order that departs from
the essential requirements of law by requiring disclosure of allegedly confidential
information or discovery requests that are overbroad and thereby cause material injury
to the petitioner throughout the remainder of the proceedings below, effectively leaving
no adequate remedy on appeal. Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830 (Fla.
5th DCA 2007); Wooten, Honeywell & Kest, P.A. v. Posner, 556 So. 2d 1245 (Fla. 5th
DCA 1990). The irrelevancy of the discovery alone is not a basis for granting the
extraordinary remedy of certiorari, "unless the disclosure 'may reasonably cause
material injury of an irreparable nature.'" State Farm Gen. Ins. Co. v. Grant, 641 So. 2d
949, 952 (Fla. 1st DCA 1994) (quoting Allstate Ins. Co. v. Langston, 627 So. 2d 1178
(Fla. 4th DCA 1993)).
This case is very similar to Menke, 916 So. 2d 8, where the court issued a writ of
certiorari and quashed the trial court's order to produce a party's computers. There, the
trial court ordered a high school teacher, accused of exchanging sexually explicit emails
with students and making derogatory comments regarding high school personnel, to
produce all computers in his household for inspection by the school board's computer
expert. The Fourth District described rule 1.350(a)(3) as "broad enough to encompass
requests to examine a computer hard drive but only in limited and strictly controlled
circumstances, acknowledging that unlimited access to anything on the computer would
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constitute irreparable harm, because it would expose confidential, privileged information
to the opposing party." Id. at 11 (citing Strasser, 669 So. 2d 1142). The court indicated
that a search might be approved after the requesting party proved (1) evidence of any
destruction of evidence or thwarting of discovery; (2) a likelihood the information exists
on the devices; and (3) no less intrusive means exists of obtaining the information. Id.
at 12. One alternative the court suggested would allow defendant's representative to
physically access the computer system in the presence of plaintiff's representative
under an agreed-upon set of procedures to test plaintiff's theory that it is possible to
retrieve the information. Id. The court also said that "[w]here a need for electronically
stored information is demanded, such searching should first be done by defendant so
as to protect confidential information, unless, of course, there is evidence of data
destruction designed to prevent the discovery of relevant evidence in the particular
case." Id. at 12.
In this case, there is no evidence of any destruction of evidence or thwarting of
discovery.2 Further, the request to produce sought the electronic media themselves,
not specific information contained therein. Since Respondent asserts that the electronic
media was sought as a "back-up" to the information sought in items 1. through 3. of the
request to produce, the record demonstrates that a less intrusive means was already
achieved as part of the compromise the parties reached. Items 1. through 3. requested
the same information, i.e., statements among the defendants and photographs taken
regarding the incident for the same time period.
2 Respondent specifically declined a tampering order because Petitioner was not
a threat to destroy evidence.
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As such, that discovery request, subject to the parties' compromise, represents
the less intrusive means to obtain the same discovery without violating Petitioner's
rights and privileges. Further, the record does not show that Respondent made any
request for Petitioner to first search the media so she could protect her confidential
information.
The unlimited breadth of the trial court's order allows Respondent to review,
without limit or time frame, all of the information on Petitioner's computer and mobile
phone SIM card without regard to her constitutional right of privacy and the right against
self-incrimination or privileges, including attorney-client, work product. Although the
discovery Respondent seeks does not necessarily include medical records3, such as
those protected by the constitutional right of privacy in the Rasmussen and Strasser
cases, Petitioner's asserted right against self-incrimination and right of privacy
nonetheless enjoy protection. The court in Menke protected the petitioner's assertion of
his rights to privacy and against self-incrimination in the face of an order allowing
wholesale access to his personal computer that would expose confidential
communications and matters extraneous to the litigation such as banking records.
The order permitting Respondent's expert to examine Petitioner's hard drive and
SIM card did not protect against disclosure of confidential and privileged information
and, therefore, caused irreparable harm. Because the order departed from the
essential requirements of law and would cause material injury to Petitioner throughout
3 The broad production sought in this case might, in fact, produce medical
records, banking records, and other confidential information in Petitioner's computer
hard-drive.
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the remainder of the proceedings below, effectively leaving no adequate remedy on
appeal, we grant the petition for certiorari and quash the trial court's discovery order.
WRIT OF CERTIORARI GRANTED and ORDER QUASHED.
PALMER and EVANDER, JJ., concur.

Full post as published by Trial Lawyer Resource Center on October 12, 2010 (boomark / email).