Menke v. Broward County School Bd.

• Decision Date: 28 September 2005
• Docket Number: No. 4D05-978.,4D05-978.
• Citation: 916 So.2d 8
• Parties: David MENKE, Petitioner, v. BROWARD COUNTY SCHOOL BOARD, Respondent.
• Court: Florida Supreme Court

Page 8

916 So.2d 8

David MENKE, Petitioner, v. BROWARD COUNTY SCHOOL BOARD, Respondent.

No. 4D05-978.

District Court of Appeal of Florida, Fourth District.

September 28, 2005.

Karen Coolman Amlong of Amlong & Amlong, P.A., Fort Lauderdale, for petitioner.

Mark A. Emanuele and Marcy E. Abitz of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for respondent.

WARNER, J.

We review a petition for certiorari from the order of an administrative law judge ordering production of all computers in petitioner's household for examination by respondent's expert for the purpose of discovery. Petitioner contends that the production of the computers, including all of their contents, would violate his Fifth Amendment right against self-incrimination and his right of privacy, and would disclose privileged communications in the manner in which this examination was to be made. We agree and grant the writ.

Petitioner Menke is a high school teacher in Broward County. He was suspended from his position for "misconduct in office" in September 2004 pending the determination of an administrative complaint filed by the Broward County School Board seeking his termination. The misconduct included allegations that he had exchanged sexually-explicit e-mails with minor students and also made derogatory comments regarding school personnel and operations with students. The respondent School Board was advised of some of the e-mails, which Menke states are not actually e-mails but instant messages.

Menke requested a formal hearing, and the complaint was forwarded to the Division of Administrative Hearings. In the proceedings, the Board served a request on Menke for inspection of all of the computers in his household, which consists of Menke, his wife, and his children. The Board wanted its retained computer expert to inspect all such computers in his laboratory for messages between Menke and any students. It requested various categories of information which it sought to review.

Menke objected to the inspection on the grounds that such a wholesale inspection of the hard drives of his computers would violate his Fifth Amendment right and his right of privacy, and may reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

After a hearing on the issue, the administrative law judge granted the motion to compel production of the computers for inspection. The order allowed the expert to inspect the hard drives of all the home computers to discover whether they contained various categories of information requested. The judge sought to protect Menke's rights by ordering the expert not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged. It also allowed for Menke to have his own expert present when the inspection took place. If Menke's expert believed a privileged communication was discovered, then the document could be marked and the ALJ could conduct an in camera inspection of the document before it was delivered to the Board. Menke brings this petition to review this order.

In petitions for review from administrative orders, the standard of review is essentially the same as that from an order from a civil proceeding. As the first district recently pronounced in Eight Hundred, Inc. v. Florida Dep't of Revenue, 837 So.2d 574, 575 (Fla. 1st DCA 2003):

[O]ur scope of review in such a matter "is analogous to and no broader than the right of review by common law writ of certiorari." Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995). To be entitled to relief from a non-final order pursuant to a petition seeking a common law writ of certiorari, "the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment." Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). "An order compelling discovery over a claim that the evidence is privileged is generally reviewable under section 120.68(1), because the harm cannot be remedied on review of the final order." State Dep't of Transp. v. OHM Remediation Servs. Corp., 772 So.2d 572, 573 (Fla. 1st DCA 2000).

Because the order of inspection involves an order compelling discovery of privileged information as well as constitutionally protected information, we have jurisdiction to review by way of certiorari. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987); Ginsburg v. Pachter, 893 So.2d 586 (Fla. 4th DCA 2004); Boyle v. Buck, 858 So.2d 391 (Fla. 4th DCA 2003); Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003).

As Menke states in his petition, this order "gives an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers Menke has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for `any data' that may evidence communication between Menke and his accusers." The only admonition to the Board's expert is that if he finds such communication, he cannot discuss it with counsel. However, those communications are still revealed to a paid representative of the opposing party, as will be everything else on the computer, substantially invading the privacy of Menke and his family members.

Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an "electronic filing cabinet." Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought. In fact, even more information can be extracted, such as what internet sites an individual might access as well as the time spent in internet chat rooms. In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation. Requests for production ask the party to produce copies of the relevant information in those filing cabinets for the adversary.

Menke contends that the respondent's representative's wholesale access to his personal computer will expose confidential communications and matters entirely extraneous to the present litigation, such as banking records. Additionally, privileged communications, such as those between Menke and his attorney concerning the very issues in the underlying proceeding, may be exposed. Furthermore, Menke contends that his privacy is invaded by such an inspection, and his Fifth Amendment right may also be implicated by such an intrusive review by the opposing expert.

Preliminarily, the authority of the administrative law judge in discovery matters is prescribed by section 120.569(2)(f), Florida Statutes, providing in part:

(f) The presiding officer has...