Opinion
3D23-1836
05-01-2024
Elizabeth Roque, Petitioner, v. Lewis Swezy, et al., Respondents.
Young, Berman, Karpf & Karpf, P.A., and Andrew S. Berman, for petitioner. Armstrong Teasdale LLP, and Glen H. Waldman, Eleanor T. Barnett and Marlon J. Weiss, for respondent Lewis Swezy.
Not final until disposition of timely filed motion for rehearing.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lower Tribunal No. 23-16395 Thomas J. Rebull, Judge.
Young, Berman, Karpf & Karpf, P.A., and Andrew S. Berman, for petitioner.
Armstrong Teasdale LLP, and Glen H. Waldman, Eleanor T. Barnett and Marlon J. Weiss, for respondent Lewis Swezy.
Before EMAS, MILLER and LOBREE, JJ.
EMAS, J.
INTRODUCTION
Elizabeth Roque has filed a petition, seeking a writ of certiorari quashing the trial court's order requiring a forensic expert to make a complete copy of the entire contents of Roque's cellphone (including deleted data), which would then be provided to Roque's attorney. Pursuant to the order, Roque's attorney must then review this copy of the contents of his client's cellphone, and produce all data that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party. For the reasons that follow, we grant the petition, issue the writ, and quash the trial court's order.
FACTS AND PROCEDURAL HISTORY
The litigation below involves claims by Roque against her former domestic partner, Lewis Swezy (and two related companies), for breach of fiduciary duty, breach of contract, and tortious interference, all allegedly involving business disputes between the parties. Additionally, Roque alleged claims of abuse, assault, defamation and intentional infliction of emotional distress committed against her by Swezy, asserting in her operative complaint specific incidents of violence.
During the initial round of discovery, Swezy propounded interrogatories and a request to produce. Swezy also filed a request for a forensic review of Roque's cellphone, seeking to have a forensic expert copy the entire contents of Roque's cellphone, including every photo, video, text, email, note, download, and all data and metadata, including any deleted items.
In his request, Swezy asserted that "upon information and belief . . . Roque acquired pertinent information on her cellphone regarding the alleged incidents of physical, verbal, and emotional abuse she suffered."
Importantly, although Swezy stated in this request that he "believes it is necessary and timely to request forensic review of Roque's cellphone as to analyze and prevent spoliation and promote efficiency," Swezy did not proffer any showing, nor even allege, that Roque had destroyed or deleted, or threatened to destroy or delete, any data or evidence, or that the requested forensic review was the least intrusive means available to obtain the information sought.
Additionally, at the time of making this request for forensic review of Roque's cellphone, the lawsuit was in its infancy. Discovery had just commenced. Swezy filed his initial discovery requests the same day he sought forensic review of the cellphone and thus, no responses to Swezy's initial discovery requests were due and no witness depositions had been taken or even set. Instead, Swezy alleged that forensic review of Roque's cellphone was "quicker and more efficient than [Roque] having to review and send every piece of forensic evidence that would otherwise be discoverable."
Roque objected to the requested forensic copying and review of her entire cellphone, asserting it was a violation of her right to privacy and that Swezy offered no legitimate justification or need for such intrusive discovery.
After a hearing, the trial court granted Swezy's motion for forensic review. The order directed Swezy's attorney to choose a forensic expert (without input from Swezy). That expert would then have to be approved by Roque and her attorney. The order instructed the expert to make a single copy of the entire contents of Roque's cellphone (including deleted data), and that copy of the cellphone's contents would then be reviewed by Roque's attorney. The order provided that, following this review, Roque's attorney
shall produce all data on Roque's cellphone that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party, including those regarding alleged incidents of physical, verbal, and emotional abuse she suffered, as referenced extensively throughout her Complaint, as requested in Swezy's Request for Forensic Review.
The trial court 's order further provided that Roque's attorney would be required to produce only non-privileged items that fall within the scope of the above order. However, the trial court did not make any finding (nor did Swezy present any evidence) that Roque had deleted or destroyed, or threatened to delete or destroy, any of the contents of her cellphone, that she had prevented or thwarted discovery in any way, or that there was no less intrusive means to obtain the information sought.
DISCUSSION AND ANALYSIS
To obtain certiorari relief, Roque must establish a "(1) departure from the essential requirements of the law; (2) resulting in material harm or injury for the remainder of the case; (3) that cannot be remedied on plenary appeal." City of Sweetwater v. Mejia, 316 So.3d 769, 770 (Fla. 3d DCA 2021). We have "certiorari jurisdiction to review a discovery order that departs from the essential requirements of law by requiring disclosure of allegedly confidential information or discovery requests that are overbroad and thereby cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Holland v. Barfield, 35 So.3d 953, 955 (Fla. 5th DCA 2010).
The Florida Constitution guarantees a person's right to privacy from "governmental intrusion into the person's private life." Fla. Const. Art. I, § 23. However, the Florida Supreme Court, recognizing that the constitutional right to privacy "was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual," has articulated an analysis to be undertaken and applied by courts when assessing a claim of unconstitutional intrusion into a person's privacy rights.
"Court orders compelling discovery constitute state action that may impinge on constitutional rights, including the constitutional right of privacy." Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 940 n.5 (Fla. 2002) (quoting Berkley v. Eisen, 699 So.2d 789, 790 (Fla. 4th DCA 1997)). "In the civil discovery context, courts must engage in a balancing test, weighing the need for the discovery against the privacy interests." Nucci v. Target Corp., 162 So.3d 146, 153 (Fla. 4th DCA 2015) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla. 1987)).
Winfield v. Division of Pari-Mutuel Wagering, Dep't of Bus. Reg., 477 So.2d 544, 547 (Fla. 1985).
First, there must exist a reasonable expectation of privacy. Winfield v. Division of Pari-Mutuel Wagering, Dep't of Bus. Reg., 477 So.2d 544, 547 (Fla. 1985). The parties do not dispute that Roque has a reasonable expectation of privacy in the contents of her cellphone, and that the trial court's order granting access, even if such access is limited to Roque's own attorney (and a forensic expert to image the data and metadata) would constitute an invasion of Roque's privacy rights. See e.g., Riley v. California, 573 U.S. 373, 985 (2014) ("modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."); Planned Parenthood of SW and Central Fla. v. State, Nos. SC2022-1050, SC2022-1127, 2024 WL 1363525 (Fla. April 1, 2024) at *8 n.13, and *9 (noting that historically, the right to privacy was "'directed to keeping personal information from being exposed to the public,'" (internal quotation omitted) and concerns one's "'freedom from official intrusion into my home, my person, my papers, my telephone.'" (internal quotation omitted)); Shaktman v. State, 553 So.2d 148, 150 (Fla. 1989) (holding that the constitutional right to privacy "ensures that individuals are able 'to determine for themselves when, how and to what extent information about them is communicated to others.'" (internal quotation omitted); Wharran v. Morgan, 351 So.3d 632, 636 (Fla. 2d DCA 2022) (noting "the right to privacy is implicated by the production of a broad sweep of . . . cell phone records").
Indeed, at oral argument, counsel for Swezy properly conceded that the trial court's order was an invasion of Roque's privacy rights but characterized it as a "de minimis" violation. As noted earlier, however, the right to privacy is enshrined in Article I, Section 23 of the Florida Constitution: "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." Conferring such notable value upon one's right to privacy is neither new nor novel, as aptly recognized by Justice Louis Brandeis nearly a century ago:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting).
Where, as here, a reasonable expectation of privacy exists for the information, data or items ordered to be disclosed, a trial court is required to balance this right against the need for the discovery, and the burden is on the party seeking disclosure to establish that the invasion of privacy is warranted, and the least intrusive means are utilized to obtain the discovery sought. See Winfield, 477 So.2d at 547; Morgan, 351 So.3d 637 (granting certiorari relief where trial court's order compelled disclosure of a "sweeping range of information from . . . cell phone records without first determining their relevance and balancing the need for the information against Wharran's privacy rights"); Menke v. Broward Cty. School Bd., 916 So.2d 8, 11-12 (Fla. 4th DCA 2005) (granting certiorari relief where order allowed inspection of computer hard drives and there was no evidence of destructive of evidence or discovery thwarting and no proof there was no less intrusive method of obtaining the information, holding "intrusive searching of the entire computer by an opposing party should not be the first means of obtaining the relevant information); Holland, 35 So.3d at 955 (reversing an order allowing inspection of a computer hard drive and cellphone SIM card where no evidence of destruction or thwarting discovery and less intrusive means existed to obtain the information); see also William Hamilton Arthur Architect, Inc. v. Schneider, 342 So.3d 757, 763 (Fla. 3d DCA 2022) (holding: "Intrusive searching of an electronic device . . . should not be the first means of obtaining relevant information"); Medina v. Haddad, 156 So.3d 1113, 1115 (Fla. 3d DCA 2015) (reiterating that "'means less intrusive than the release of confidential information should be used where available.'" (quoting Berkeley v. Eisen, 699 So.2d 789, 792 (Fla. 4th DCA 1997))).
We recognize, of course, that Swezy is not altogether foreclosed from seeking electronically stored information on Roque's cellphone. But there must be an appropriate showing by Swezy and a proper balancing of the competing interests by the trial court. As our sister court observed in Antico v. Sindt Trucking, Inc., 148 So.3d 163 (Fla. 1st DCA 2014):
[L]imited and strictly controlled inspections of information stored on electronic devices may be permitted. See Menke, 916 So.2d at 11 ("[Rule 1.350 is] broad enough to encompass requests to examine [electronic information storage devices] but only in limited and strictly controlled circumstances"); cf. Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (finding that privacy rights limit compelled disclosure to that which is necessary to determine contested issues). Both Holland and Menke, for instance, would have allowed for inspections of the devices involved (computers and cellphones) if: (1) there was evidence of destruction of evidence or thwarting of discovery; (2) the device likely contained the requested information; and (3) no less intrusive means existed to obtain the requested information. Holland, 35 So.3d at 955; Menke, 916 So.2d at 12.
We reject Swezy's position (as argued to the trial court) that this proposed forensic review should be permitted as a "quicker and more efficient" means of obtaining evidence. While it may indeed be quicker and more efficient, it fails to satisfy well-established law protecting such information from disclosure without the appropriate showing. Such a contention is reminiscent of arguments advanced to justify warrantless searches otherwise prohibited under the Fourth Amendment. As the United States Supreme Court observed in that regard:
[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.Mincey v. Arizona, 437 U.S. 385, 393 (1978) (internal citations omitted).
Requiring the imaging and production of the entire contents of one's cellphone cannot be justified merely because it is the quickest and most efficient method to obtain the discovery sought. If this were the threshold, we daresay every party in every civil case would issue such a request for production as its very first discovery salvo.
We do not ignore the fact that the trial court attempted to fashion a procedure it believed would limit the extent of the invasion of Roque's privacy rights by requiring the contents of the cellphone be provided in the first instance only to Roque's attorney, who would then cull through the contents of the cellphone to determine what relevant and non-privileged information, data and other items should be produced to Swezy. But requiring that the entire contents of Roque's cellphone be imaged by a forensic expert (consisting of every photo, video, text, email, note, download, and all data and metadata, including every deleted item) and requiring disclosure of it to Roque's own attorney, is simply insufficient, without more, to protect Roque's privacy rights and ensure that she is not compelled to disclose to anyone the entirety of her life's experiences and innermost thoughts as captured, created, uploaded or stored on her cellphone, without the requesting party first meeting the standards established to justify such compelled production.
CONCLUSION
Given Swezy's failure to establish that there was any actual or threatened alteration, deletion or destruction of data on Roque's cellphone, and no less intrusive means to obtain the information sought, the trial court departed from the essential requirements of law in granting Swezy's motion and directing the forensic imaging of the entire contents of Roque's cellphone and production of electronically stored information and data as set forth in the trial court's order. Accordingly, we grant the petition for writ of certiorari, quash the order granting forensic copying and review of Roque's cellphone, and remand for further proceedings consistent with this opinion.
Because we grant the petition and issue the writ for the reasons stated, we do not reach the additional claims raised by Roque, including whether the trial court's order compels the disclosure of opinion work product by requiring Roque's attorney to reveal his mental impressions and strategies during the selection and compilation process as he culls through the data on his client's cellphone to determine what information is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party. See, e.g., Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994).