E. Bay NC, LLC v. Estate of Djadjich by and Through Reddish

• Decision Date: 31 May 2019
• Docket Number: Case No. 2D18-3604
• Citation: 273 So.3d 1141
• Parties: EAST BAY NC, LLC ; Clear Choice Health Care, LLC; and Margaret Dalton (as to East Bay Rehabilitation Center), Petitioners, v. The ESTATE OF Elisabeth DJADJICH, BY AND THROUGH Melanie K. REDDISH, Personal Representative, Respondent.
• Court: Florida District Court of Appeals

273 So.3d 1141

EAST BAY NC, LLC ; Clear Choice Health Care, LLC; and Margaret Dalton (as to East Bay Rehabilitation Center), Petitioners,

v.The ESTATE OF Elisabeth DJADJICH, BY AND THROUGH Melanie K. REDDISH, Personal Representative, Respondent.

Case No. 2D18-3604

District Court of Appeal of Florida, Second District.

Opinion filed May 31, 2019

Bruce D. Peisner, Lisa M. Albrecht, and Kirsten K. Ullman of Ullman Bursa Law, Tampa, for Petitioners.

Joanna Greber Dettloff and Megan L. Gisclar of Wilkes & McHugh, P.A., for Respondent.

BADALAMENTI, Judge.

East Bay NC, LLC, and Clear Choice Health Care, LLC, petition this court for a writ of certiorari directed at three discovery orders granting four motions to compel discovery filed by the Estate of Elisabeth Djadjich, through its personal representative, Melanie K. Reddish (the Estate). We grant the petition in part to the extent that the orders require production of documents that East Bay and Clear Choice objected to on the basis of various statutory privileges.

In 2016, Elisabeth Djadjich was a resident of East Bay Rehabilitation Center, a nursing facility licensed pursuant to chapter 400, Florida Statutes. Ms. Djadjich died after her discharge. In 2017, the Estate filed a complaint against East Bay and Clear Choice, seeking damages for wrongful death, negligence, and violations of certain nursing home residents' rights. During the litigation, the Estate propounded two requests for production and a set of interrogatories to East Bay and one request for production and a set of interrogatories to Clear Choice, all of which are at issue here.

East Bay and Clear Choice responded to the requests for production by producing documents responsive to some requests and objecting to the rest. East Bay and Clear Choice each objected to many of the requests as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. They also asserted secondary objections based on the quality assurance and peer review privileges set forth in various state statutes, work-product doctrine, and attorney-client privilege. They further objected to some of the document requests on grounds that the requests are violative of the privacy rights of employees and violative of the right to be free from discovery of confidential financial information. East Bay and Clear Choice also provided answers to the interrogatories served by the Estate.

The Estate then filed a motion to compel East Bay to provide better responses to the first interrogatories and a motion to compel production with the first and second requests for document production. It also filed a motion to compel Clear Choice to provide better responses to the first interrogatories and a motion to compel production with the first request for document production. In three separate orders, the trial court granted the four motions to compel filed by the Estate.

As an initial matter, we note that the three discovery orders on review here contain no findings or specific rulings on any of the objections raised by East Bay and Clear Choice. The two orders pertaining to East Bay direct East Bay, within twenty days of the date of the order, to produce all documents responsive to the forty-seven requests at issue in the first request for production and the seven requests at issue in the second request for production. One of the orders also requires East Bay to provide better answers to the three interrogatories at issue. The order pertaining to Clear Choice directs Clear Choice, also within twenty days of the date of the order, to produce all documents responsive to the twenty-one requests at issue in the first request for production and to provide better answers to the seven interrogatories at issue.

East Bay and Clear Choice timely filed the petition for certiorari before this court. They argue that the discovery orders depart from the essential requirements of law because the trial court did not specifically rule upon their objections and failed to conduct an in-camera inspection before issuing orders that force disclosure of "cat out of the bag" discovery. We agree.

"Certiorari review of a discovery order is appropriate when it ‘departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ " Bright House Networks, LLC v. Cassidy, 129 So. 3d 501, 505 (Fla. 2d DCA 2014) (quoting Ameritrust Ins. Corp. v. O'Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005) ). An order that compels discovery of privileged information departs from the essential requirements of law because once such "information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal." Estate of Stephens v. Galen Health Care, Inc., 911 So. 2d 277, 279 (Fla. 2d DCA 2005) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987) ). When parties dispute that documents are protected under certain statutory provisions, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable. Tampa Med. Assocs. v. Estate of Torres, 903 So. 2d 259, 262 (Fla. 2d DCA 2005).

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