McClure v. Publix Super Mkts., Inc.

• Decision Date: 06 November 2013
• Docket Number: No. 4D13–1220.,4D13–1220.
• Citation: 124 So.3d 998
• Parties: Judith McCLURE, Petitioner, v. PUBLIX SUPER MARKETS, INC., Respondent.
• Court: Florida District Court of Appeals

124 So.3d 998

Judith McCLURE, Petitioner,

v.PUBLIX SUPER MARKETS, INC., Respondent.

No. 4D13–1220.

District Court of Appeal of Florida,

Fourth District.

Nov. 6, 2013.

R. Timothy Vannatta of R. Timothy Vannatta, P.A., Fort Lauderdale, for petitioner.

Edward G. Guedes of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for respondent.

FORST, J.

Petitioner, Judith McClure, a plaintiff in a slip and fall negligence case, seeks certiorari review of an order compelling her deposition prior to the production of a store security video of the slip and fall. She contends that the court's order departs from the essential requirements of law based upon Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010). As set forth below, we deny the writ, finding that the trial court's order was not an abuse of judicial discretion and, as such, not contrary to our Target opinion.

Subsequent to filing suit against the Publix grocery store, McClure filed a request for production of store security video. When Publix failed to respond to this request, McClure filed a motion to compel. Publix responded that it would produce the requested video following its deposition of McClure. The trial court denied McClure's motion, permitting Publix to delay production of the video until it had completed a deposition of McClure. McClure's petition to this court followed.

To obtain certiorari relief from a non-final order, the petitioner must establish: “(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 postjudgment appeal.” Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). “The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.” Id. at 1133.

In Target, this court denied the petition for writ of certiorari (as we are doing in the instant case), noting “the circuit court's broad discretion in overseeing discovery.” Target, 41 So.3d at 963. To that extent, Target is consistent with the Florida Supreme Court's decision in Dodson v. Persell, 390 So.2d 704 (Fla.1980), which held, with respect to discovery requests for surveillance movies and photographs, it is “ within the trial court's discretion,” to determine that “the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection.” Id. at 705 (emphasis added). It is also consistent with language from decisions of federal courts in Florida, including Schulte v. NCL (Bahamas) Ltd., which is referenced in Judge Warner's dissenting opinion. See, e.g., Schulte v. NCL (Bah.) Ltd., No. 10–23265–CIV, 2011 WL 256542, at *4 (S.D.Fla. Jan. 25, 2011) (“The undersigned recognizes that even though the tapes at issue are not work product, the Court retains the discretion to control the timing of discovery. Thus, under appropriate circumstances, the Court would not require production of a videotape prior to a plaintiff's deposition.”).

The dissenting opinion, while maintaining reliance on Target, would actually contravene that decision, limiting “the circuit court's broad discretion” with respect to the timing of discovery and instead imposing the district court's judgment upon the circuit court absent evidence that failing to do so would cause irreparable harm or that compelling the production of the video prior to the petitioner's deposition is “a departure from the essential requirements of the law.” Williams, 62 So.3d at 1132. The petitioner has not shown that if she answers questions at a deposition, prior to production of the security store video showing the fall, that any harm will occur or that the video will somehow conflict with her statements at the deposition. Moreover, petitioner has not shown the trial court's order shall, in any meaningful sense, delay McClure's discovery.

Consistent with both Dodson and Target, we do not believe that the trial court abused its discretion in this matter. Accordingly, we deny certiorari review of the trial court's order.

CIKLIN, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J, dissenting.

I would grant the petition, as I conclude that the harm alleged is not remediable on appeal, and therefore irreparable, and departs from the essential requirements of law. The trial court did not follow Target Corporation v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010), or exercise judicial discretion in this case but entered the order as a matter of policy based upon prior similar rulings the court had made in other cases and not on the record in this case.

McClure slipped and fell in a Publix grocery store. Store security cameras recorded the fall. After filing suit for her injuries, McClure filed a request for production of the video. Publix did not respond to the request, and McClure filed a motion to compel. At the hearing on the motion to compel, Publix contended that it was entitled to take McClure's deposition prior to her being able to see the video so that Publix could obtain McClure's version of the incident unaided by her review of the actual video of it. McClure relied on Target, while Publix relied on Dodson v. Persell, 390 So.2d 704 (Fla.1980). No facts involving this case were elicited at the hearing. The trial court determined that it would rule consistent with its ruling in other cases that the video did not have to be produced until after the deposition. McClure now petitions for review of this order.

As noted by McClure, she will be deprived of relief by way of direct appeal, because an appeal cannot undo her deposition answers if the deposition is taken prior to viewing the store security video. These answers can be used to attack her credibility at trial thus creating harm at trial of this matter. This harm cannot be corrected by way of an appeal at the end of the proceeding. See Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156–57 (Fla. 4th DCA 1996). The court in Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957), explained such harm in connection with an order compelling a plaintiff to answer interrogatories:

“If plaintiff is wrongfully required to answer defendant's interrogatories, she is beyond relief. We conceive no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly ‘the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line.’ ” ¹

101 So.2d at 410. Although Boucher involved divulging privileged material, the principle is the same with respect to the irreparable nature of an order which requires the party to answer deposition questions prior to viewing the video, which is the substantive, objective evidence of what occurred during the incident. I suppose that McClure could simply answer questions regarding the incident by deferring to the video as to what occurred, and she well might do so with good reason depending upon her condition and extent of her injuries at the time of the accident. But that would have the same effect as not having her testify as to the facts of the incident until after the production of the video. Those answers would be used against her at trial to attack her credibility and veracity.

In any event, the issue is not remediable on appeal. With the proliferation of security video across this country, this presents an issue which will continually recur and should be addressed in an orderly fashion instead of allowing each trial court to render a ruling in accordance with its “policy” and not on the particular facts of any case. Thus, the issue is capable of repetition many times, yet evading review.

The main issue presented in this case is whether the trial court's order requiring the plaintiff's deposition prior to the production of the video is a departure from the essential requirements of law. Florida Rule of Civil Procedure 1.280(e) provides for the sequence and timing of discovery:

unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party's discovery.Thus, although the timing of discovery is within the trial court's discretion, that discretion must be exercised for the convenience of the parties or the interests of justice. Otherwise, a party may not delay discovery simply because it is engaging in discovery itself. But even in “the interests of justice” the trial court exercises judicial discretion.

Judicial discretion is not an unleashed power by which a judge may set at naught the rights of parties to a cause and define them as suits his will or the will of others who may seek to influence his judgment. Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. If this is not true, then judicial discretion, like equity, will depend on the length of the judge's foot, the state of his temper, the intensity of his prejudice, or perhaps his zeal to reward or punish a litigant. It takes more than a woolsack and a judicial robe to dehumanize human characteristics that are rehumanized each biennium.

Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89, 90 (1944). A trial court must exercise that discretion by considering the individual facts and circumstances of each case. See Matire v. State, 232 So.2d 209, 211 (Fla. 4th DCA 1970). To the extent that the trial court had discretion regarding the timing of the discovery and production of the video to the plaintiff, the court did not exercise discretion based upon the record but rather repeated a policy the court had adopted in other cases...