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Fla. L. Weekly D789c
Fla. L. Weekly D789c
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Wrongful
death — Discovery — Action against hotel by personal representative of
decedent who drowned in hotel swimming pool — Trial court departed from
essential requirements of law in compelling disclosure of non-party
identification information in surveys completed by guests at hotel — Names and
contact information of non-party hotel guests who completed survey are
constitutionally protected, private details
death — Discovery — Action against hotel by personal representative of
decedent who drowned in hotel swimming pool — Trial court departed from
essential requirements of law in compelling disclosure of non-party
identification information in surveys completed by guests at hotel — Names and
contact information of non-party hotel guests who completed survey are
constitutionally protected, private details
MISHKO
JOSIFOV, et al., Petitioners, vs. IMAN KAMAL-HASHMAT, etc., Respondent. 3rd
District. Case No. 3D16-2571. L.T. Case No. 14-27829. Opinion filed April 5,
2017. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Antonio
Arzola, Judge. Counsel: Restani & Dalmanieras, P.A., and Charles M-P George
and Maria E. Dalmanieras, for petitioners. Podhurst Orseck, P.A., and Joel D.
Eaton, for respondent.
JOSIFOV, et al., Petitioners, vs. IMAN KAMAL-HASHMAT, etc., Respondent. 3rd
District. Case No. 3D16-2571. L.T. Case No. 14-27829. Opinion filed April 5,
2017. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Antonio
Arzola, Judge. Counsel: Restani & Dalmanieras, P.A., and Charles M-P George
and Maria E. Dalmanieras, for petitioners. Podhurst Orseck, P.A., and Joel D.
Eaton, for respondent.
(Before
LAGOA, SALTER and FERNANDEZ, JJ.)
LAGOA, SALTER and FERNANDEZ, JJ.)
(SALTER,
J.) Loews Miami Beach Hotel Operating Co., Inc. (“Hotel”),1 petitions for a writ of certiorari
quashing an order compelling disclosure of certain non-party identification
information in surveys completed by guests at the Hotel. For the reasons which
follow, we grant the petition and quash the order.
J.) Loews Miami Beach Hotel Operating Co., Inc. (“Hotel”),1 petitions for a writ of certiorari
quashing an order compelling disclosure of certain non-party identification
information in surveys completed by guests at the Hotel. For the reasons which
follow, we grant the petition and quash the order.
The
Lawsuit
Lawsuit
The
respondent here, Iman Kamal-Hashmat, as personal representative of the estate
of her late husband (“Plaintiff”), filed a complaint for damages for the tragic
drowning death of her husband at the Hotel’s swimming pool in Miami Beach in
December 2013. During pretrial discovery, the Plaintiff subpoenaed the Hotel’s
guest survey service (a non-party) to produce:
respondent here, Iman Kamal-Hashmat, as personal representative of the estate
of her late husband (“Plaintiff”), filed a complaint for damages for the tragic
drowning death of her husband at the Hotel’s swimming pool in Miami Beach in
December 2013. During pretrial discovery, the Plaintiff subpoenaed the Hotel’s
guest survey service (a non-party) to produce:
All guest/customer surveys in any way related to the
swimming pool; and/or supervision of guests using the swimming pool, at the
Loews Miami Beach Hotel, located at 1601 Collins Avenue, Miami Beach, Florida,
33139, from December 2008 to the present. Please also include any other
documents related to such surveys.
swimming pool; and/or supervision of guests using the swimming pool, at the
Loews Miami Beach Hotel, located at 1601 Collins Avenue, Miami Beach, Florida,
33139, from December 2008 to the present. Please also include any other
documents related to such surveys.
The
Hotel objected. Initially, the trial court authorized the Hotel to redact any
allegedly confidential financial or proprietary company information. The Hotel
provided the Plaintiff with a spreadsheet provided by the guest survey service,
but the Plaintiff moved to compel. The Hotel then received another database
from the survey service containing information related to the swimming pool and
extracted from the guest surveys. The Hotel informed the trial court that the
database contained confidential information regarding guests; the court ordered
the Hotel to produce the database with a privilege log pertaining to any
information withheld from the survey responses.
Hotel objected. Initially, the trial court authorized the Hotel to redact any
allegedly confidential financial or proprietary company information. The Hotel
provided the Plaintiff with a spreadsheet provided by the guest survey service,
but the Plaintiff moved to compel. The Hotel then received another database
from the survey service containing information related to the swimming pool and
extracted from the guest surveys. The Hotel informed the trial court that the
database contained confidential information regarding guests; the court ordered
the Hotel to produce the database with a privilege log pertaining to any
information withheld from the survey responses.
The
Hotel filed the database with the guest names and contact information redacted,
together with a privilege log claiming that the redacted information was
private and protected under Article 1, section 23, of the Florida Constitution.
The Plaintiff moved to compel the production of the redacted information, and
the trial court granted the motion. The Hotel then filed the petition for
certiorari under consideration here.
Hotel filed the database with the guest names and contact information redacted,
together with a privilege log claiming that the redacted information was
private and protected under Article 1, section 23, of the Florida Constitution.
The Plaintiff moved to compel the production of the redacted information, and
the trial court granted the motion. The Hotel then filed the petition for
certiorari under consideration here.
Analysis
The
names and contact information of the non-party Hotel guests who completed the
surveys are constitutionally protected, private details. Rasmussen v. S.
Fla. Blood Serv., Inc., 500 So. 2d 533, 536 (Fla. 1987); Amente v.
Newman, 653 So. 2d 1030 (Fla. 1995). There is no indication on the record
before us that the Plaintiff’s need for information was balanced against the
guests’ constitutionally protected rights of privacy.
names and contact information of the non-party Hotel guests who completed the
surveys are constitutionally protected, private details. Rasmussen v. S.
Fla. Blood Serv., Inc., 500 So. 2d 533, 536 (Fla. 1987); Amente v.
Newman, 653 So. 2d 1030 (Fla. 1995). There is no indication on the record
before us that the Plaintiff’s need for information was balanced against the
guests’ constitutionally protected rights of privacy.
The
Plaintiff is correct that discovery of guests’ comments on the condition of the
pool and its operations was appropriate. Chambers v. Loftin, 67 So. 2d
220, 222 (Fla. 1953) (evidence of prior similar accidents admissible to show
dangerous character of place and defendant’s knowledge of that danger).
However, the Plaintiff is incorrect when she argues that she is entitled to
discover the names and information of all the survey respondents because the
names of potential witnesses are discoverable. It may actually develop that
none of the survey respondents are witnesses.
Plaintiff is correct that discovery of guests’ comments on the condition of the
pool and its operations was appropriate. Chambers v. Loftin, 67 So. 2d
220, 222 (Fla. 1953) (evidence of prior similar accidents admissible to show
dangerous character of place and defendant’s knowledge of that danger).
However, the Plaintiff is incorrect when she argues that she is entitled to
discover the names and information of all the survey respondents because the
names of potential witnesses are discoverable. It may actually develop that
none of the survey respondents are witnesses.
If
a survey reveals that the guest stayed at the hotel at the time when the
decedent drowned, the identity of the guest would then be discoverable, as in
the case of any witness. See Sovereign Healthcare of Port St. Lucie,
LLC v. Fernandes, 132 So. 3d 855 (Fla. 4th DCA 2013) (discovery of
otherwise-protected client names and contact information is proper where they
are witnesses to incident at issue); Delta Health Grp. v. Estate of Collins,
36 So. 3d 711, 712 (Fla. 1st DCA 2010) (finding permissible disclosure of
contact information and name of single, potential witness; precluding
disclosure of other information).
a survey reveals that the guest stayed at the hotel at the time when the
decedent drowned, the identity of the guest would then be discoverable, as in
the case of any witness. See Sovereign Healthcare of Port St. Lucie,
LLC v. Fernandes, 132 So. 3d 855 (Fla. 4th DCA 2013) (discovery of
otherwise-protected client names and contact information is proper where they
are witnesses to incident at issue); Delta Health Grp. v. Estate of Collins,
36 So. 3d 711, 712 (Fla. 1st DCA 2010) (finding permissible disclosure of
contact information and name of single, potential witness; precluding
disclosure of other information).
The
Plaintiff is also mistaken when she argues that she can have the information
because the guests have no reasonable expectation of privacy in the
information, having provided it to the Hotel to make reservations. When a guest
makes a reservation, the information provided is not intended for dissemination
to any unforeseeable, unknown third party. This is not a knowing waiver of the
right to privacy. Berkeley v. Eisen, 699 So. 2d 789 (Fla. 4th DCA 1997).
Plaintiff is also mistaken when she argues that she can have the information
because the guests have no reasonable expectation of privacy in the
information, having provided it to the Hotel to make reservations. When a guest
makes a reservation, the information provided is not intended for dissemination
to any unforeseeable, unknown third party. This is not a knowing waiver of the
right to privacy. Berkeley v. Eisen, 699 So. 2d 789 (Fla. 4th DCA 1997).
“[T]he
party seeking discovery of confidential information must make a showing of
necessity which outweighs the countervailing interest in maintaining the
confidentiality of such information.” Higgs v. Kampgrounds of Am., 526
So.2d 980, 981 (Fla. 3d DCA 1988); see CAC — Ramsay Health Plans,
Inc. v. Johnson, 641 So.2d 434 (Fla. 3d DCA 1994). The Plaintiff has not
shown any compelling interest in disclosure of the names and contact
information. See Berkeley, 699 So. 2d at 789. Here, as in
Berkeley, the non-parties have not waived their privacy rights, nor have they
done anything inconsistent with their reasonable expectation of privacy in the
information they gave to the Hotel. That information is constitutionally
protected. Id. “Privacy rights are protected without sacrificing the
ability to discover legitimate information where the trial court redacts from
the records all identifying information.” Id. at 792.
party seeking discovery of confidential information must make a showing of
necessity which outweighs the countervailing interest in maintaining the
confidentiality of such information.” Higgs v. Kampgrounds of Am., 526
So.2d 980, 981 (Fla. 3d DCA 1988); see CAC — Ramsay Health Plans,
Inc. v. Johnson, 641 So.2d 434 (Fla. 3d DCA 1994). The Plaintiff has not
shown any compelling interest in disclosure of the names and contact
information. See Berkeley, 699 So. 2d at 789. Here, as in
Berkeley, the non-parties have not waived their privacy rights, nor have they
done anything inconsistent with their reasonable expectation of privacy in the
information they gave to the Hotel. That information is constitutionally
protected. Id. “Privacy rights are protected without sacrificing the
ability to discover legitimate information where the trial court redacts from
the records all identifying information.” Id. at 792.
The
trial court departed from the essential requirements of law in ordering the
production of the confidential information supplied by guests completing the
survey, and there is no adequate remedy on appeal. Allstate Ins. Co. v.
Langston, 655 So.2d 91, 94 (Fla. 1995). The non-party survey respondents
have no remedy by direct appeal, supporting issuance of the writ. Fla. Dep’t
of Health & Rehab. Servs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA
1996).
trial court departed from the essential requirements of law in ordering the
production of the confidential information supplied by guests completing the
survey, and there is no adequate remedy on appeal. Allstate Ins. Co. v.
Langston, 655 So.2d 91, 94 (Fla. 1995). The non-party survey respondents
have no remedy by direct appeal, supporting issuance of the writ. Fla. Dep’t
of Health & Rehab. Servs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA
1996).
Conclusion
The
petition for certiorari is granted. The order of October 27, 2016, compelling
the Hotel to produce the guest survey database with guest names and contact
information intact, is quashed.
petition for certiorari is granted. The order of October 27, 2016, compelling
the Hotel to produce the guest survey database with guest names and contact
information intact, is quashed.
__________________
1The
Hotel is the remaining defendant below and petitioner here. Numerous other
defendants/respondents were dismissed previously by Ms. Kamal-Hashmat,
plaintiff below.
Hotel is the remaining defendant below and petitioner here. Numerous other
defendants/respondents were dismissed previously by Ms. Kamal-Hashmat,
plaintiff below.
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