Wharran v. Morgan
| Decision Date | 18 November 2022 |
| Docket Number | 2D22-395 |
| Parties | DENISE LAUREEN WHARRAN, Petitioner, v. SUEN ANGHARA MORGAN, Respondent. |
| Court | Florida District Court of Appeals |
Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Caroline Tesche Arkin, Judge.
Jeffrey D. Jensen of Unice Salzman Jensen, P.A., Trinity, for Petitioner.
Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm P.A., Orlando, for Respondent.
Suen Anghara Morgan filed suit against Defendant Denise Laureen Wharran, asserting a negligence claim based on a motor vehicle collision. Wharran seeks certiorari review of a discovery order that overrules her objection to the production of her cell phone records by nonparty Verizon Wireless Services, LLC. With one exception, we conclude that the trial court departed from the essential requirements of law by allowing disclosure of Wharran's cell phone records without first determining their relevance and balancing the need for the information against Wharran's privacy rights and without conducting an in camera review of the records as necessary. This departure constitutes irreparable harm because the very broad discovery implicates Wharran's privacy interests. We note that Wharran did not object to the production of cell phone usage records for "the moments leading up to the accident" but did object to producing the substantive content of the records. Thus, we grant the petition and quash the order except to the extent that the order allows discovery regarding whether Wharran was using her cell phone close to or at the time of the accident.
Morgan filed suit against Wharran based on a rear-end collision that occurred on November 11, 2019. In her deposition, Wharran stated that on the day of the accident she had a cell phone with the carrier Verizon. She also interjected allegations of fraud concerning who was in Morgan's vehicle when the collision occurred and damage that the vehicle allegedly had prior to the collision, describing the situation as "some kind of scam basically." She admitted to posting on Facebook about "the fraud that had happened."
Morgan filed a notice of production from nonparty directed to Verizon with a subpoena duces tecum without deposition. Wharran filed an objection and memorandum of law in support of the objection. The subpoena sought records from Verizon for ten types of information. Wharran's objection contained the following assertion:
Plaintiff is seeking the content of any communications, including but not limited to inbound calls, outbound calls, text messages, multimedia messages, data transfer, data usage, GPS usage, and any and all documents indicating the dates and times, including phone numbers of calls made and received for the said phone number and account for a period of six (6) days, which severely violates Defendant's constitutional right to privacy. Plaintiff is only entitled to the records, not the substantive communications, and not for such an intrusive period of time.
Wharran asserted that "[p]rivacy interests can be acknowledged and respected by setting strict parameters when it pertains to discovery related to a party's personal cellphone device." She recognized that "[w]hile Plaintiff arguably has a discovery interest in determining whether Defendant was texting at the moment when the accident occurred, Plaintiff has no further discovery interests in [Defendant's] cellular records."[1]
After a hearing, the trial court entered an order that narrowed the requested time frame to twenty-four hours before through twenty-four hours after the November 11, 2019, accident. The order permits Wharran "to set another hearing to narrow down and/or limit the requested types of information or data listed on the above-mentioned subpoena."
A second hearing was held that resulted in the order on review. First, Wharran asserted that the amended subpoena went from midnight to midnight and not an actual twenty-four hours before and after the 6:20 p.m. accident, as the trial court ordered. Morgan had no objection, and the court stated that its order would clarify the time frame.
Second, Wharran argued that Morgan was requesting overly intrusive and private information regarding Wharran's cell phone records. Wharran stated that she did not object to all the items requested but that many of them would violate her right to privacy under the federal Constitution and article I, section 23, of the Florida Constitution. Wharran did not object to usage records that showed whether "she was using her phone[] or sending text messages in the moments leading up to the accident"; however, she objected to production of the substantive content in those records or information on her "whereabouts before and after the accident" and mentioned "cell phone tower locations," along with "GPS and maps usage." She further objected that the request for "all application activity" was intrusive into her private life and could include banking and healthcare information. She argued that these items were also irrelevant, that Morgan was engaged in a fishing expedition, and that Morgan "ha[d] not put forth any evidence at all that would warrant such a broad and intrusive subpoena into the defendant's cell phone records."
After Wharran argued that there was no allegation in the complaint that she was using her phone at the time of the collision, Morgan asserted, "The defendant actually testified that she was phoning a friend, said she wasn't distracted during her deposition."[2]Morgan acknowledged at the hearing that she did not want to look at Wharran's "bank or her health insurance, any of that kind of application."
Instead, Morgan asserted that Wharran was very active on social media and posted on Facebook about the alleged fraudulent activity. Morgan was looking for "text messages, cell phone records, including [Wharran's] call registry, showing any calls she made before and after" that would aid Morgan's position. Morgan also sought any photos or anything Wharran told friends or family about the collision and what she said about "what actually happened."
Except as to the time frame that it had already ruled upon, the trial court overruled Wharran's objection and let the amended subpoena stand. The court told Wharran that at some point she may want to file a motion for a protective order. Wharran made an ore tenus motion to stay an order on this issue while she appealed. The trial court denied the motion.[3] Wharran did not file a motion for protective order or seek an in camera review in the trial court. The trial court's challenged order of February 7, 2022, narrowed the time frame to "6:20 p.m. on November 10, 2019, to 6:20 p.m. on November 12, 2019." The court otherwise overruled the objection.
To obtain relief on certiorari review of a discovery 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." Zawistowski v Gibson, 337 So.3d 901, 904 (Fla. 2d DCA 2022) (alteration in original) (quoting Hett v. Barron-Lunde, 290 So.3d 565, 569 (Fla. 2d DCA 2020)). Elements two and three constitute irreparable harm and must be determined first because they are jurisdictional. See Tanner v. Hart, 313 So.3d 805, 807 (Fla. 2d DCA 2021).
Florida's discovery rules allow for the liberal production of records that "are reasonably calculated to lead to the discovery of admissible evidence." Hett, 290 So.3d at 570 (citing Amente v. Newman, 653 So.2d 1030, 1032 (Fla. 1995)); see also Fla. R. Civ. P. 1.280(b)(1) (permitting discovery of any nonprivileged matter "that is relevant to the subject matter of the pending action"); Fla. R. Civ. P. 1.280(b)(3) (). Florida Rule of Civil Procedure 1.351(a) allows for the production of "documents or things within the scope of rule 1.350(a) from a" nonparty via "a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things." When a "party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced pending resolution of the objection." Fla. R. Civ. P. 1.351(b). "[T]he party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310" with a deposition. Fla. R. Civ. P. 1.351(d).
Although the discovery rules are liberal, the Florida Constitution contains an express right to privacy: "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." Weaver v. Myers, 229 So.3d 1118, 1125 (Fla. 2017) (quoting art. I, § 23, Fla. Const. (1980)). The "fundamental right to privacy" in the Florida Constitution "is much broader in scope than that of the Federal Constitution." Id. at 1125-26 (quoting Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla. 1985)). Florida's right to privacy affords protection to personal financial information, Hett, 290 So.3d at 570-71, and medical records, Tanner, 313 So.3d at 807; see also Barker v. Barker, 909 So.2d 333, 337 (Fla. 2d DCA 2005) .
The right to privacy also protects cell phone data. See Antico v. Sindt Trucking, Inc., 148 So.3d 163, 165 (Fla 1st DCA 2014) (citing Holland v. Barfield, 35 So.3d...
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