Topp Telecom, Inc. v. Atkins

• Decision Date: 02 February 2000
• Docket Number: No. 4D99-3570.,4D99-3570.
• Citation: 763 So.2d 1197
• Parties: TOPP TELECOM, INC.; Topp Comm, Inc.; and Frederick J. Pollak, Petitioners, v. B. Martin ATKINS, Respondent.
• Court: Florida District Court of Appeals

763 So.2d 1197

TOPP TELECOM, INC.; Topp Comm, Inc.; and Frederick J. Pollak, Petitioners, v. B. Martin ATKINS, Respondent.

No. 4D99-3570.

District Court of Appeal of Florida, Fourth District.

February 2, 2000.

Peter W. Homer, Lorelei J. Van Wey, and Marc A. Wites of Homer, Bonner & Delgado, P.A., Miami, for petitioners.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., West Palm Beach, for respondent.

FARMER, J.

This petition for certiorari review of a pretrial order relating to discovery presents an issue to which we devote considerable attention because we see it often, although we almost always deny review. The petitioners ask us to quash an order overruling their objections to discovery on the grounds that the discovery request is overly broad and oppressive, that the burden of complying would be substantial, and that the court should have ordered prepayment of costs.¹ In denying review, we take the time to explain our quite limited review powers as to such orders.

This is a business dispute. Plaintiff is an executive employee of one defendant. He sued his employer and a related entity, as well as the chief executive officer thereof, alleging that the planned acquisition of another business was being handled in such a way as to deprive him of certain contractual benefits. A few weeks after filing his complaint, he served defendants with discovery requests. After waiting the full 30 days to respond, and without actually supplying the information or documents requested, defendants filed objections in which they claimed that the requests were "overreaching, overbroad and unduly burdensome,"² and that some of the requests sought privileged or proprietary information. Defendants offered to supply the information only if plaintiff would sign a confidentiality agreement.

The issue was presented at a motion calendar hearing called by plaintiff to determine the sufficiency of the objections. Defendants did not support their objections at that hearing with an affidavit as to the difficulties and expected cost of compliance with the requests.³ The trial judge heard argument and overruled the objections. His order required production of the unprivileged documents by a date certain and further ordered a privilege log as to those documents that defendants claimed were privileged.

Later, defendants filed a motion for a stay of the discovery pending review and this time they did file an affidavit in support. The affidavit estimated that the requests covered several hundred thousand documents kept in three separate locations. The affidavit stated that the electronic retrieval of some documents would require more than 2½ months of computer time and that most of the requested documents contained "confidential, privileged and proprietary business information."

The trial judge granted the motion for a stay. The order requires the defendants to compile the requested documents and submit them to the court under seal. Defendants seek certiorari to review both orders.

At the initial hearing on the objections, the trial judge was faced with a claim of undue burden in responding to discovery requests. Yet there was no evidence in the record to support the objectors' claim of unwarranted discovery. There is obviously no error in overruling this kind of objection when it is not supported by record evidence, such as an affidavit detailing the basis for claiming that the onus of supplying the information or documents is inordinate. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 994 (Fla. 1999)

(noting the lack of "affidavits, depositions or other sworn testimony in the record to support Allstate's claims of undue burden.").⁴

Even more important in this kind of certiorari proceeding is the fundamental issue as to whether there is any showing of irreparable harm and thus a lack of appellate remedies for these orders. See Martin-Johnson Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)

; and Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996). If a trial judge has no record factual basis—apart from a mere claim or contention of undue burden—to conclude that requested discovery is oppressively excessive, there can be no error and therefore no necessity for any immediate appellate remedy.

If on the other hand there had been evidence in the record on the question of excessive and burdensome discovery requests, and a judge nevertheless ordered the discovery to be produced, there are two possibilities. The first is that the evidence on the nature of the burden and expense is controverted. A trial judge's resolution of contested evidence cannot be addressed on this kind of common law certiorari, which is available only to ascertain whether the trial court has departed from the essential requirements of law, thereby causing harm irremediable by final appeal. State Beverage Dept. v. Willis, 159 Fla. 698, 32 So.2d 580, 583 (1947) (on certiorari court will not ordinarily review conflicting testimony but only such lack of evidence as results in injury sufficient to amount to a departure from the essential requirements of law); London Guarantee & Acc. Co. v. I.C. Helmly Furn. Co., 153 Fla. 453, 14 So.2d 848 (1943) (on common law certiorari appellate court will not review disputes and conflicts in the evidence).

Assuming that the objector's evidence in support of the claim of undue burden were legally sufficient and uncontradicted, it is difficult to understand how, even if the order is erroneous, it would rise to the level of irreparable harm. We stress that in this case we deal with a claim that requested discovery is burdensome and unduly onerous. We distinguish the kind of claim made here with an objection contending that the requested discovery would effectually ruin the objector's business. The kind of discovery involved here would simply require unwarranted effort and expense to comply with the request but that burden, though claimed to be inordinate would not cast the recipient into financial ruin. It seems clear to us that the mere fact of unwarranted effort and expense is not, by itself, synonymous with a "departure from the essential requirements of law" [e.s.] for which immediate review is necessary.

Recently in Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999), the court affirmed that "Martin-Johnson properly sets forth the [requirements] for certiorari relief in pretrial discovery." In Martin-Johnson the court emphasized that:

"common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final

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