Root ex rel. Root v. Balfour Beatty Constr. LLC, 2D13–3205.

• Decision Date: 05 February 2014
• Docket Number: No. 2D13–3205.,2D13–3205.
• Citation: 132 So.3d 867
• Parties: Tonia ROOT, individually and on behalf of Gage Root, a minor, Petitioner, v. BALFOUR BEATTY CONSTRUCTION LLC, a Delaware limited liability corporation; Zep Construction, Inc.; C.W. Roberts Contracting, Inc. f/k/a Cougar Contracting Specialities, Inc., a wholly owned subsidiary of Construction Partner Inc.; DRMP, Inc.; Roadsafe Traffic Systems, Inc. f/k/a Nes Traffic Safety/Roadsafe Traffic, L.P. f/k/a Nes Traffic Safety, L.P.; Allied Engineering and Testing, Inc.; and City of Cape Coral, Respondents.
• Court: Florida District Court of Appeals

132 So.3d 867

Tonia ROOT, individually and on behalf of Gage Root, a minor, Petitioner,

v.BALFOUR BEATTY CONSTRUCTION LLC, a Delaware limited liability corporation; Zep Construction, Inc.; C.W. Roberts Contracting, Inc. f/k/a Cougar Contracting Specialities, Inc., a wholly owned subsidiary of Construction Partner Inc.; DRMP, Inc.; Roadsafe Traffic Systems, Inc. f/k/a Nes Traffic Safety/Roadsafe Traffic, L.P. f/k/a Nes Traffic Safety, L.P.; Allied Engineering and Testing, Inc.; and City of Cape Coral, Respondents.

No. 2D13–3205.

District Court of Appeal of Florida,

Second District.

Feb. 5, 2014.

Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, and Todd R. Falzone of Kelley Uustal, PLC, Ft. Lauderdale, for Petitioner.

Helen Ann Hauser, Peter Restani, and Eric Farmelant of Restani, Dittmar & Hauser, P.A., Coral Gables, for Respondents Balfour Beatty Construction, LLC and City of Cape Coral.

Scott A. Cole, David Salazar, and Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami, for Respondent Zep Construction, Inc.

No appearance for remaining Respondents.

SILBERMAN, Judge.

Tonia Root, individually and on behalf of Gage Root, seeks certiorari review of the circuit court's discovery order approving a magistrate's recommendations and requiring Root to produce copies of postings on her Facebook account. Root argues that the order departs from the essential requirements of the law because it allows discovery that is overbroad and compels the production of personal information that is not relevant to her claims. We agree and grant the petition.

The underlying action is a negligence action filed by Root against the City of Cape Coral, a construction contractor, and subcontractors (Defendants) for damages Root's three-year-old son Gage suffered when he was struck by an oncoming vehicle in front of a construction site. The accident occurred while Gage was under the care of his seventeen-year-old aunt. Root alleged that Defendants were negligent for failing to use reasonable care in keeping the construction site safe for pedestrians. Root also raised derivative claims for loss of parental consortium. Defendants raised affirmative defenses including negligent entrustment of Gage by Root, the aunt's failure to supervise, and the driver's negligence.

The discovery order at issue requires Root to produce copies of postings on her Facebook account which include the following:

(i.) Any counseling or psychological care obtained by Tonia Root before or after the accident;

....

(o.) Any and all postings, statuses, photos, “likes” or videos related to Tonia Root's

i. Relationships with Gage or her other children, both prior to, and following, the accident;

ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;

iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

....

v. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others[.]

These categories are in addition to fifteen other categories of information which Root concedes is discoverable.

Root argues that the order departs from the essential requirements of the law because the above-listed categories are overbroad and the order requires the production of personal information that is irrelevant and not likely to lead to the discovery of admissible evidence. Defendants disagree and also argue that Root has not established certiorari jurisdiction in this court because she has not alleged irreparable harm arising from the discovery order.

We begin our analysis with Defendants' jurisdictional argument. In order to confer certiorari jurisdiction, a petitioner is required to establish irreparable harm that is material and not remediable on postjudgment appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). An order compelling the production of discovery that implicates privacy rights demonstrates irreparable harm. Fla. First Fin. Group, Inc. v. De Castro, 815 So.2d 789, 791 (Fla. 4th DCA 2002) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 536–37 (Fla.1987)); see also Holland v. Barfield, 35 So.3d 953, 956 (Fla. 5th DCA 2010) (holding that a discovery order requiring disclosure of private information on a computer hard drive and cell phone SIM card demonstrated irreparable harm). Additionally, an order that entitles a party to carte blanche discovery of irrelevant material demonstrates the type of irreparable harm that may be remedied via petition for writ of certiorari. See Langston, 655 So.2d at 95. We conclude that Root has appropriately invoked our certiorari jurisdiction.

On the merits, trial courts around the country have repeatedly determined that social media evidence is discoverable. See Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Fla. Cases, 31 No. 2 Trial Advoc. Q. 14, 14 (Spring 2012). And the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines regarding the production of electronically stored information. SeeFla. R. Civ. P. 1.350 committee notes (2012 amend.). As one federal court has stated, discovery of information on social networking sites simply requires applying “basic discovery principles in a novel context.” E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D.Ind.2010).

Under the basic principles for evaluating discovery in Florida, the party seeking discovery must establish that it is (1) relevant to the case's subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. Fla. R. Civ. P. 1.280(b)(1); Langston, 655 So.2d at 94. We agree with Root that at present, Defendants have not met this burden as to the requested discovery.

Root's complaint contains claims on behalf of Gage for negligence as to each defendant and Root's derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of Gage by Root, the aunt's failure to supervise, and the driver's negligence. As to Gage's claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery...