In what circumstances will a court grant a request to limit the discovery of electronically stored information to certain keyword search terms?

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(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

(d) Limitations on Discovery of Electronically Stored Information.

(1) A person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost. On motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sources or in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.

(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

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A “part[y] may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” Fla. R. Civ. P. 1.280(b)(1). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. ” Id. (emphasis added). Florida Rule of Civil Procedure 1.350(a) includes electronically stored information within the scope of discovery.² An outer limit of discovery is that “ ‘litigants are not entitled to carte blanche discovery of irrelevant material.’ ” Life Care Ctrs. of Am. v. Reese, 948 So.2d 830, 832 (Fla. 5th DCA 2007) (quoting Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006) ). Because the permissible scope of discovery is so broad, a “trial court is given wide discretion in dealing with discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not disturb the trial court's order.” Alvarez v. Cooper Tire & Rubber Co., 75 So.3d 789, 793 (Fla. 4th DCA 2011) (direct appeal of discovery issue). It is because of this wide discretion accorded to trial judges that it is difficult to establish certiorari jurisdiction of discovery orders.

The Shir Law Group, P.A., Guy M. Shir, Esq., and Stuart J. Zoberg, Esq. (collectively, "the Shir Defendants"), petition this Court for a writ of certiorari, seeking to quash (1) the trial court's order granting the plaintiffs', Dario Carnevale, Esq. and Flavia Carnevale, Esq. (collectively, "the Carnevales"), motion to compel the forensic examination of the Shir Defendants' electronic data, and (2) the trial court's order setting forth the protocol for the forensic examination of the Shir Defendants' electronic data. We grant the petition, in part, quash the order setting forth the protocol for the forensic examination, and remand with directions to enter an amended order limiting the search terms to terms that will protect against the disclosure of privileged or irrelevant information, without hindering the forensic examiner's ability to retrieve relevant, non-privileged information, if any.

In petitioning this Court for certiorari relief, the Shir Defendants contend that the list of over 110 search terms is overly broad as it contains common words that will result in thousands of results that are non-responsive to the discovery request and will result in private and privileged documents being subject to the protocol for the forensic examination. Under the circumstances of this case, certiorari relief is appropriate.

This Court has jurisdiction to review discovery orders that depart from the essential requirements of law resulting in material injury that cannot be remedied on appeal. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ("[T]o obtain a writ of certiorari, there must exist ‘(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’ "). "Although overbreadth by itself is not a sufficient basis for certiorari jurisdiction, the Florida Supreme Court has

[271 So.3d 155]

held that certiorari review is appropriate where the discovery order effectively grants ‘carte blanche’ to irrelevant discovery." Publix Supermarkets, Inc. v. Santos, 118 So.3d 317, 319 (Fla. 3d DCA 2013) (citing Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 457 (Fla. 2012) ).

Defendant Shir Law Group, P.A., practices in the area of condominium and community association law, and defendants Shir and Zoberg are both board certified by The Florida Bar in the area of Condominium and Planned Development Law. One of the search terms approved by the trial court was the term "Condo*". In light of the Shir Defendants' condominium law practice, this search term alone will result in every document containing either the term "condo" or "condominium" being subject to the forensic examination protocol, which will include an extremely large number of documents that are unresponsive to the discovery request and unrelated to the litigation. Further, there will be numerous documents included that are either the private or privileged documents of current and former clients of the Shir Defendants. This is just one example of several other words included in the list that effectively "grants ‘carte blanche’ to irrelevant discovery." Publix Supermarkets, 118 So.3d at 319. The purpose of the forensic examination was not to allow the Carnevales to engage in a "fishing expedition" of the Shir Defendants' electronically stored information. Rather, as stated in the order compelling the forensic examination, "[t]he parameters and search protocols should be appropriately crafted to protect against the disclosure of privileged or irrelevant information, without restricting the forensic examiner's ability to retrieve relevant, non-privileged information, if any." Accordingly, we grant, in part, the Shir Defendants' petition for writ of certiorari, quash the order setting forth the protocol for the forensic examination, and remand for further proceedings consistent with this opinion.

The remaining arguments raised by the Shir Defendants and/or the Carnevales do not merit discussion.

Petition for writ of certiorari granted, in part; order setting forth the protocol for the forensic examination quashed; and case remanded for further proceedings.

At the non-evidentiary hearing on the contempt motion, sensing that the trial court seemed skeptical of the averments in Arthur's affidavit, Arthur's counsel offered to allow the trial court to question Arthur under oath. The trial court declined this offer, and instead entered the challenged order requiring Arthur to turn over to Schneider the electronic device that Arthur had used to

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purchase the flowers. The order provided no restrictions on Schneider, other than requiring Schneider to "take an image of the device [Arthur] used" so that the trial court could conduct an in camera review of Arthur's internet searches.

It appears the trial court ordered Arthur to produce his electronic device as a means of confirming the veracity of the averments in Arthur's affidavit regarding the steps Arthur took to purchase the flower arrangement. Intrusive searching of an electronic device, though, should not be the first means of obtaining relevant information. See Menke v. Broward Cnty. Sch. Bd., 916 So.2d 8, 11-12 (Fla. 4th DCA 2005). Rather, before ordering Arthur to turn his electronic device over to his litigation adversary, the trial court should have first considered less intrusive means of obtaining the information that the trial court deemed relevant to adjudicate the contempt motion. Id.; Holland, 35 So.3d at 955-56. "Where a need for electronically stored information is demanded, such searching should first be done by [Arthur] so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case." Menke, 916 So.2d at 12. For example, the trial court might have ordered Arthur to produce a printout of the electronic

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device's internet search history for the particular time period in question, but only as it related to the purchase of the flowers.

Moreover, to the extent a less intrusive method of obtaining the information does not exist - a circumstance not shown here - the challenged order is deficient because it fails to "define parameters of time and scope, and . . . place sufficient access restrictions to prevent compromising . . . confidentiality and to prevent harm to [the device]." Id. at 11 (quoting Strasser v. Yalamanchi, 669 So.2d 1142, 1145 (Fla. 4th DCA 1996)); Holland, 35 So.3d at 956 ("The unlimited breadth of the trial court's order allows Respondent to review, without limit or time frame, all of the information on Petitioner's computer and mobile phone SIM card without regard to her constitutional right of privacy and the right against self-incrimination or privileges, including attorney-client, work product.").

Because the trial court failed to consider less intrusive means of obtaining the requested information and because the challenged order grants Schneider unfettered access to Arthur's electronic device that did not protect against disclosure of confidential and privileged information, we conclude that the trial court's order "depart[s] from the essential requirements of law and would cause material injury to [Arthur] throughout

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the remainder of the proceeding below, effectively leaving no adequate remedy on appeal." Holland, 35 So.3d at 956.

III. CONCLUSION

We therefore grant the petition and, subject to the qualification in footnote 6, supra, we quash those portions of the challenged order that require Arthur, prior to the show cause hearing, to: (i) produce to the trial court for in camera review all communications between Arthur and his counsel regarding Arthur's ordering of the flowers; and (ii) permit Schneider to take an image of the hard drive of the device Arthur used to order the flowers so that the trial court could also review in camera Arthur's "Google searches and the results thereof."

Petition granted.

Under Florida's broad discovery rules, any non-privileged information, including ESI, is discoverable so long as it is relevant to the subject matter of the action. See Fla. R. Civ. P. 1.280(b)(1), (b)(3). However, if there were error, once the private records have been disclosed, no post-judgment appeal can fully remedy the harm. In this way, irreparable harm can exist where a discovery dispute involves otherwise private cellphone records. See Antico v. Sindt Trucking, 148 So.3d 163, 165 (Fla. 1st DCA 2014). Petitioners here have demonstrated that the records sought are private phone communications for which improper discovery would result in a harm irreparable on post-judgment appeal. We therefore turn our attention to the essential requirements of the law.

Discovery is governed primarily by the Florida Rules of Civil Procedure. Our inquiry here turns on whether the trial court reasonably concluded that a protective order was not necessary to protect Petitioners "from annoyance, embarrassment, oppression, or undue burden or expense." Fla. R. Civ. P. 1.280(c). The supreme court has explained that this Rule 1.280(c) analysis is informed by Article I, Section 23 and includes balancing the need for discovery with affected privacy interests. Rasmussen, 500 So.2d at 535 (recognizing "the discovery rules provide a framework for judicial analysis of challenges to discovery on the basis that the discovery will result in undue invasion of privacy").

In Saints 120, LLC v. Moore, this Court considered a petition for writ of certiorari seeking review of two discovery orders in a wrongful death action that was brought by the decedent's estate against a nursing home. See 292 So.3d at 1211. The first order compelled the nursing home to disclose "'all documents' reflecting

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the names, addresses, and next of kin of all of the nursing home's residents who were present in the facility" on the day of the incident. Id. The second order sought "patient information intended to aid the estate's expert witness or witnesses in forming an opinion concerning the estate's allegation of understaffing in the nursing home" at the time of the incident. Id. at 1214-15. This Court found that the discovery orders could cause irreparable harm by infringing "on the privacy rights of the non-party nursing home residents in the confidentiality of their medical information." Id. at 1212. Having found the possibility of irreparable harm, we considered whether there was a violation of a clearly established principle of law, finding that the first order not only sought irrelevant information, but the information was protected under two independent provisions in the Florida Statutes. See id. at 1212-14. The trial court thus departed from the essential requirements of law with regards to the first order. On the other hand, the second discovery order did not depart from the essential requirements of law because it was narrowly tailored to target relevant information and allowed the nursing home to redact confidential information. See id. at 1214-15.

Like the second order in Saints 120, the order under review is narrowly tailored to certain search terms that are likely to render relevant information. Discovery is also directed at non-parties. However, that is the extent of the similarities between Saints 120 and the instant case. Here, there is no reasonable question that the text messages contain relevant information. Moreover, apart from asserting a global right to privacy, Petitioners could not point to any additional basis for protecting the information. Under Saints 120, it would not seem that Petitioners are entitled to relief.

Under the particular facts of this case, Petitioners have failed to show that they have a clearly established global right to privacy in the personal text messages that is sufficient to outweigh the tailored need for discovery. Certiorari review should not be used to create new law where the law at issue is not clearly established. See Nader v. Fla. Dep't of Highway Safety &Motor Vehicles, 87 So.3d 712, 723 (Fla. 2012). No Florida court has ever recognized an absolute right to privacy in text messages. While "'clearly established law' can derive from a variety of legal sources," Petitioners have not pointed to-and the trial court did not find- any statutory provision or court rule to support such a right. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). Accordingly, the trial court could not have departed from the essential requirements of law, especially when Petitioners concede that the text messages contain relevant information and the trial court has gone to great lengths to ensure that any specific privacy or privilege concerns may still be addressed in the future.