Smithwick v. TELEVISION 12, No. 98-2147.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WEBSTER, J.
• Citation: 730 So.2d 795
• Docket Number: No. 98-2147.
• Decision Date: 30 March 1999
• Parties: Walter SMITHWICK, III, M.D., Appellant, v. TELEVISION 12 OF JACKSONVILLE, INC., d/b/a WTLV Channel 12, Appellee.

730 So.2d 795

Walter SMITHWICK, III, M.D., Appellant,
v.
TELEVISION 12 OF JACKSONVILLE, INC., d/b/a WTLV Channel 12, Appellee

No. 98-2147.

District Court of Appeal of Florida, First District.

March 30, 1999.

John R. Saalfield and Harvey L. Jay, III, of Saalfield, Coulson, Shad & Jay, P.A., Jacksonville, for Appellant.

730 So.2d 796

D. Gray Thomas and Wm. J. Sheppard of Sheppard and White, P.A., Jacksonville, for Appellee

WEBSTER, J.

Appellant (Smithwick) seeks review of two orders entered in this medical malpractice action. The first directed Smithwick to return previously filed discovery documents which the trial court had earlier permitted Smithwick to remove from the court file pursuant to an agreement reached between Smithwick and the plaintiffs following settlement of the action. The second denied Smithwick's subsequent motion either to seal the documents or to excise portions of them. Smithwick argues that the documents ceased to be "judicial records" once the trial court permitted him to remove them from the court file and that, therefore, Florida Rule of Judicial Administration 2.051, which addresses public access to judicial records, was inapplicable. In the alternative, he argues that, even if they remained judicial records for purposes of rule 2.051, the trial court abused its discretion when it denied his motion either to seal the documents or to excise portions of them. We affirm.

I.

Procedural History

Irene and Leroy Barber filed a medical malpractice action against Smithwick (who is a vascular surgeon), and others. As amended, the complaint alleged that, while Mrs. Barber was "under Dr. Smithwick's care, Dr. Smithwick was suffering from chronic alcoholism and was impaired in his ability to provide appropriate care to Mrs. Barber"; and that, as a proximate result of Smithwick's "alcoholism and impaired condition," Mrs. Barber suffered the amputation of her left leg and other injuries and damages. Smithwick denied all of the material allegations of the amended complaint.

During the course of the litigation, the parties engaged in considerable discovery. Many of the discovery documents, including several depositions and accompanying exhibits, were filed by plaintiffs' attorney, without objection from any of the defendants. Ultimately, court-ordered mediation resulted in settlement of the action. The day following mediation, and while the action remained pending, the parties entered into a stipulation permitting Smithwick's attorney to remove all discovery documents from the court file. A proposed order to that effect was presented to the trial judge, who signed it. Smithwick's attorney also obtained permission to take the court file to his office, where he promptly removed all discovery documents from the file.

Days after the order permitting Smithwick's attorney to remove all discovery materials from the file had been entered, and while the action remained pending, appellee (TV-12) filed a motion to intervene and a motion for access to judicial records. In the former motion, TV-12 claimed that it had tried to examine the court file, only to find that it had been removed from the courthouse, and that requests for review of the file made to Smithwick's attorney had been refused. According to TV-12, this constituted a denial of public access to judicial records. In the latter motion, TV-12 argued that, notwithstanding its removal from the courthouse, the file remained a public record pursuant to Florida Rule of Judicial Administration 2.051, and it demanded immediate access to the file. Following a hearing at which the trial court granted the motion to intervene, counsel for TV-12 was permitted to examine the file, and learned that all of the discovery documents had been removed. TV-12 immediately filed an amended motion requesting access to the removed documents, and an emergency motion for a temporary injunction, to prevent the destruction of the documents before its motion could be heard. Only after TV-12 had been permitted to intervene for the purpose of seeking access to the discovery documents did the plaintiffs file a notice of voluntary dismissal.

A hearing was subsequently held on the amended motion filed by TV-12, following which the trial court ordered Smithwick's attorney to return the discovery documents previously removed from the file. Smithwick then filed a motion for rehearing, and a motion asking the trial court either to seal the discovery documents or to excise portions

730 So.2d 797

of them, pursuant to Florida Rule of Judicial Administration 2.051. In the latter motion, he asserted that the relief requested was appropriate because the documents "contain[ed] confidential and sensitive information of a personal...