August 4, 2020

Creative Solution to Jurisdictional Issue Helps Firm Obtain Writ of Certiorari Protecting Elderly Lady’s Health Records

March 9, 2020*

It is not easy to convince an appellate court to issue a writ of certiorari to quash a trial court’s order compelling discovery. The petitioner must demonstrate “a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal.” Fla. R. App. P. 9.100(h). In addition to the difficulty of meeting that standard substantively, it can also be difficult to meet the strict requirement of filing the petition within 30 days of rendition of the trial court’s order.

That 30-day deadline is jurisdictional, and failure to meet it will result in dismissal of the petition. If there are multiple orders to be reviewed, the petition must be timely as to each of them. If a client asks a lawyer to seek review of three orders but the lawyer finds that the 30-day deadline has passed as to one of them, the lawyer would generally conclude that it would be impossible to challenge that order and could only address the other two. But what if the other two orders logically depend on the first order by enforcing the first order? Bresky Law recently used a creative approach to obtain review of all three orders in such a situation.

The case involved a real estate agent who reportedly took advantage of an elderly client. The senior citizen alleged that the agent swindled her out of a substantial sum of money. The elderly lady sued the real estate agent for conversion and breach of contract. The defendant sought discovery of the elderly plaintiff’s medical and guardianship records, claiming that this information might be relevant to a certain count in the original complaint. However, that count was voluntarily dismissed and the complaint was amended. The plaintiff argued that the discovery would not be relevant to any count in the amended complaint.

Even though the plaintiff’s confidential health records were irrelevant to the remaining claims, the trial court entered three orders in favor of the defendant. The first order granted the defendant’s motion to compel discovery of the confidential records. The second order denied the elderly plaintiff’s motion for rehearing. The third order denied the plaintiff’s motion for reconsideration or a stay of the second order.

The plaintiff approached Bresky Law, wanting to seek certiorari review of all three orders. We found that it clearly would be possible to file a petition for a writ of certiorari as to the two most-recent orders; but it would be too late to file a petition for a writ of certiorari as to the first order because a petition “shall be filed within 30 days of rendition of the order to be reviewed.” Rule 9.100(c). Some lawyers might have given up on seeking review of the first order because the petition would be untimely. However, we viewed this as an opportunity for persistence and creativity. We were determined to find a way to help the elderly plaintiff protect her confidential health and guardianship records.

We noted that the two most-recent orders depended on the validity of the first order, as the two most-recent orders enforced the first order. We argued that, even though the 30-day deadline had passed for initiation of certiorari review of the first order, the appellate court could and should review the first order—in conjunction with the two other closely-related orders—via a different kind of writ which does not have a 30-day time limit.

First, we contended that the appellate court was authorized to review the first order under the court’s “other writs” or “all writs” powers because quashing the two most-recent orders should logically have the effect of quashing or preventing enforcement of the first order, and the appellate court may issue “other writs necessary to the complete exercise of its jurisdiction,” Art. V, § 4(b)(3), Fla. Const., or “all writs necessary to the complete exercise of the courts’ jurisdiction,” Fla. R. App. P. 9.030(b)(3). We argued that, if the first order is not reviewed now, irreversible damage would be done, effectively thwarting the appellate court’s jurisdiction to effect a remedy via a plenary appeal after a final judgment. We asserted that using the court’s “all writs” power to review the first order would be a necessary and proper aid to exercising its “ultimate jurisdiction,” see Williams v. State, 913 So. 2d 541, 543 (Fla. 2005), to prevent irreparable harm from improper disclosure of confidential information.

Alternatively, we contended that the first order should be reviewed via prohibition. Although prohibition usually lies to prevent future unauthorized judicial action, the writ has sometimes been used to prevent the enforcement of orders already entered, such as in City of Boynton Beach v. Ralph & Rosie, Inc., 976 So. 2d 654 (Fla. 4th DCA 1983) (permitting a writ of prohibition where a court issued an order regarding the subject matter of a separate companion case, as the court did not have jurisdiction in the first case to rule on that issue in the other case).

Next, we argued that all three orders departed from the essential requirements of the law by contravening the rules of evidence and civil procedure and the law regarding confidentiality of medical and mental-health/guardianship records; and that the orders would cause irreparable harm by requiring the plaintiff to produce sensitive, confidential medical and mental-health records that are irrelevant to the case and would improperly invade her right to privacy; and that the material harm could not be remedied later by a plenary appeal, as it is impossible to “undiscover” irrelevant, improperly-discovered sensitive confidential information once the “cat is out of the bag.” We also asserted that even if the confidential records had been relevant, production could not be properly compelled without the court’s first conducting a balancing test and an in-camera inspection.

The Fourth District Court of Appeal recognized that it had jurisdiction to review all three orders, and it granted a writ of certiorari quashing the first order, which logically had the effect of invalidating the other two orders. The Fourth DCA also directed the trial court to conduct an in-camera review and determine whether the confidential records are relevant before allowing discovery. We were glad to find a creative solution to a unique jurisdictional issue, and we are very pleased that the favorable result will help to protect the confidential records of the elderly plaintiff.

*Not final until disposition of any timely filed motions for rehearing.