When May a Defendant Obtain Certiorari Review of Discovery Order?

Author: Damian M. Fletcher

Related Articles: Florida, Professional Liability Litigation

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November 5, 2017 10:42am

Walgreen Co. v. Rubin, 42 Fla. L. Weekly D2112 (Fla. 3rd DCA October 4, 2017):

In this wrongful death case brought against two pharmacies, the plaintiff alleged a woman died of multiple drug toxicity due to the alleged negligence of the pharmacies in dispensing prescription medication. The allegation was that Walgreens had filled approximately 275 different prescriptions issued by 18 different physicians, and that CVS filled approximately 95 different prescriptions issued by 10 different physicians. Many of the prescriptions were narcotics.

The plaintiff propounded requests for production of documents on Walgreens. He requested the personnel files of all persons actually working in the pharmacy at Walgreens where the prescriptions were filled at the time of the fills at the issue in the lawsuit. A similar request was propounded to CVS. Walgreens moved to have the plaintiff bear the costs of its counsel reviewing and redacting financial and health information from the personnel files of 45 pharmacists identified; CVS moved for pre-payment of costs associated with assembling the personnel files.  The defendants objected leading the plaintiff to file a motion to compel production and objecting to the cost shifting request.

Walgreens submitted an unsworn statement of its in-house paralegal stating it would take the employees 283 hours to pull and prepare the 45 files at an average hourly pay of $20.34, and that it would take 90 hours for a junior associate from outside counsel to review and redact the files at an hourly rate of $175. Walgreens asserted it would cost over $21,000 to produce the requested documents. CVS did not provide a cost estimate or any of that information.

The trial judge granted the plaintiff’s motion to compel, and directed Walgreens and CVS to produce the files for an in-camera inspection to address ancillary privacy issues. The court determined, initially, the plaintiff would not have to bear the fees and costs of the production at that time.

The requirements for a writ of certiorari are familiar:

A writ of certiorari is an extraordinary type of relief that is granted in very limited circumstances. To be entitled to certiorari, the petitioner is required to establish the following three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal. The last two elements, often referred to as “irreparable harm,” are jurisdictional. If a petition fails to make a threshold showing of irreparable harm, this Court will dismiss the petition.

Coral Gables Chiropractic PILCv. United Auto. Ins. Co., 199 So. 3d 292,294 (Fla. 3dDCA 2016).

The appellate court noted even if the unsworn statement constituted evidence which could be properly considered for the trial court, the record still failed to establish irreparable harm to Walgreens. It held the trial court correctly disregarded the unsworn statement from the Walgreens paralegal.  (Practice pointer – any testimony being submitted as evidence must be sworn).  Florida courts consistently hold that undue burden or expense arising from a discovery order does not constitute irreparable harm. The usual remedy available to a party that has incurred burdensome discovery is to recoup costs through the taxation of costs at the end of the case, not via certiorari.

Walgreens relied on the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Association. However, the court distinguished that case, noting the supreme court found a discovery order in a routine slip and fall case unduly burdensome because it would have imposed over $90,000 in costs (when the damages sought were only $66,000).  The court stated 200 hours and over $90,000 in costs to discover a collateral issue of bias in a case where damages sought were only $66,000 was unduly burdensome.

In this wrongful death case, the court observed, unlike in Worley, the damages would be significantly higher, and the discovery sought was to a main issue not a collateral issue. Because neither petitioner met the threshold jurisdictional requirements establishing that the trial court’s order created irreparable harm, the court dismissed the petitioners.

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