LAKELAND — Florida’s Second District Court of Appeal has sided, in part, with Harborside Healthcare in its challenge of a trial court ruling that granted a request to obtain evidence by the estate of a former patient.

The opinion was filed June 9 and came after Harborside had filed a motion to quash an order by the Estate of William F. Jacobson to compel discovery. 

In December 2014, Jacobson’s estate filed suit against Harborside, seeking damages for alleged wrongful death, negligence and violation of nursing home residents' rights.

Jacobson was a resident of Bay Tree Center, a nursing facility from Nov. 20, 2012, until Feb. 4, 2013. After his discharge from Bay Tree Center, Jacobson passed away.

In 2016, the estate amended the complaint and served the requests for production at issue when it requested emails from Harborside. The request for production included 73 paragraphs with subrequests.

Harborside produced responsive documents to some of the requests and objected to others.

Harborside initially objected to the requests as overly broad, unduly burdensome, vague, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. 

It also objected to various requests, citing quality assurance, peer review, attorney-client or work-product privileges, as well as documents that are protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The request for production of electronic mail included all emails or other electronic communications sent or received by virtually any administrator, director or supervisor from six months prior to Jacobson's residency until nine months after his discharge that contain a litany of words or their derivations.

The request for production of electronic mail also included a request for Harborside's electronic mail retention policy.

The estate filed its motion to compel along with a memorandum of law and a proposed order granting the motion. The trial court granted the motion without holding a hearing, executing the order prepared by the estate.

The order contains no findings and directs Harborside to produce the requested documents.

Harborside then filed a motion for reconsideration, maintaining that the trial court erred in overruling all of Harborside’s asserted objections without a hearing and requesting specific rulings on the objections. The motion was denied without explanation.

As a result, Harborside sought a writ of certiorari to quash the order compelling discovery as of the requests for production and as to the request for electronic mail production. A writ of certiorari is an order for a lower court to make its records of a proceeding available to a higher court for review.

Harborside contends that the trial court departed from the essential requirements of the law in multiple ways, including by determining that the discovery requests were relevant, failing to conduct the necessary in-camera review of certain responsive documents and failing to require the estate to meet the requirements necessary to gain access to privileged or protected documents.

Citing Bright House Networks LLC v. Cassidy, the appeals court noted in its opinion that “certiorari review of a discovery order is appropriate when it 'departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’”

In writing the court’s opinion, Judge Anthony Black noted the certiorari relief is also appropriate in cases which allow discovery of privileged information because once such information is disclosed, there is "no remedy for the destruction of the privilege available on direct appeal."

“The same is true of production of discovery implicating privacy rights, requiring disclosure of trade secrets or other proprietary information and requiring production of documents subject to peer review privilege,” Black said in the opinion.

And for those reasons, the court quashed the order for more than a dozen paragraphs of the estate’s request. It also quashed the order to the extent that it requires production of documents responsive to the first paragraph of the estate's request for electronic communications.

“The order as it relates to the remaining paragraphs of the request for production and request for production of electronic communications remains in effect,” Black said. "Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in-camera and fashion appropriate limits and protections regarding the discovery."

The opinion is not final until the window to file a rehearing motion closes. If such a motion is filed, the opinion will not be final until the motion is decided.

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