SOUTHERN DIAGNOSTIC ASSOCIATES, PETITIONER,
v.
LUZ BENCOSME, ET AL., RESPONDENTS

Fla. 3d DCA | 2002-10-30
No. 3D02-886
Before JORGENSON, COPE, and GODERICH, JJ.
833 So. 2d 801 Florida District Court of Appeal, Third District (2002) Positive Treatment
Cited by 4 cases

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Synopsis

Southern Diagnostic Associates sought certiorari review of an order requiring inspection of its computer system to obtain discovery of payments to physicians who performed independent medical examinations (IMEs). The court held that while the discovery sought was proper under Allstate Insurance Co. v. Boecher, the trial court's order was overly broad and provided insufficient protections for confidential information.


Holding

The court held that while the information sought was discoverable under Allstate Insurance Co. v. Boecher, the trial court's order was overly broad and violated principles requiring that computer discovery orders be narrowly tailored with defined parameters, temporal scope, and sufficient access restrictions to protect confidentiality.


Headnotes

[1] Information on the frequency of an expert's testimony and payments to the expert is discoverable from an insurer.

[2] An insurer cannot avoid discovery mandates regarding its relationship with expert witnesses by delegating those responsibilities to a third-party vendor.

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Key Quotes

“United Auto cannot avoid the mandate of Boecher by employing Southern Diagnostic in an attempt to shield itself from inquiries about its relationship with its experts.”

Establishes that non-party status cannot be used to shield discoverable information about expert witness relationships from the insurer.

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Facts & Procedural History

Bencosme sued United Auto for bad faith failure to investigate a PIP claim. During discovery, Bencosme sought records of payments to two physicians wh…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Southern Diagnostic Associates, Inc., (Southern Diagnostic) a non-party, seeks certiorari review of an order compelling discovery of certain contents of its computer system. For the following reasons, we grant the petition and quash the order. Bencosme sued United Automobile Insurance Company (United Auto) alleging statutory bad faith for United Auto’s alleged failure to conduct a reasonable investigation of her PIP claim. During discovery, Bencosme sought records of payments to two individual physicians who performed IMEs and their professional associations over a three-year period. United Auto responded that it did not have records of doctors used in IMEs because it retained Southern Diagnostic to arrange, schedule, and pay for such examinations on behalf of United Auto.

Bencosme served a subpoena duces te-cum on Southern Diagnostic for records of payments to the two physicians. Southern Diagnostic responded that it had no such records, as its computer system would only accept searches by claim number, patient, and accident date. Bencosme then filed a Motion for Leave to Inspect Southern Diagnostic’s computer system to retrieve the information. The trial court granted the motion and Southern Diagnostic petitioned for a writ of certiorari.

In Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla.1999), the Florida Supreme Court held that information on the frequency of an expert’s testimony and payments to the expert is discoverable from the insurer. Id. at 998-999. Here the insurer, United Auto, does not keep records of this sort; United Auto has conveniently delegated that responsibility to Southern Diagnostic, a “non-party”. Southern Diagnostic’s current status as non-party is of no moment in this case, however. As the Boecher court held, Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) was not intended to shield a party from inquiries regarding the extent of the party’s relationship with an expert witness. 733 So. 2d at 999; cf., Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000) (holding that regardless of an insurer’s status as “party” or “nonparty,” information about the relationship between a non-party liability insurer and the insurer’s experts is discoverable under Boecher). United Auto cannot avoid the mandate of Boecher by employing Southern Diagnostic in an attempt to shield itself from inquiries about its relationship with its experts.

Nevertheless, we grant certiorari and quash the order under review, as Southern Diagnostic has demonstrated irreparable harm. See Strasser, M.D., P.A. v. Yala manchi, M.D., P.A., 669 So. 2d 1142, 1145 (Fla. 4th DCA 1996). The trial court’s order is overly broad, setting no parameters or limitations on the inspection of Southern Diagnostic’s computer system, notwithstanding Southern Diagnostic’s claim that there is confidential and privileged information in its computer system. See Strasser, 669 So. 2d at 1145 (Fla. 4th DCA 1996) (granting certiorari and holding that an order permitting discovery by computer search might be appropriate, but the “order must define parameters of time and scope and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to the computer and databases”). Accordingly, we grant certiorari, quash the order under review and remand with directions to the trial court to craft a narrowly tailored order that accomplishes the purposes of the discovery requests and provides for confidentiality of the discovery.1

WRIT GRANTED.

. To aid the court, the parties may wish to have their IT experts provide advice to the court.


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Citator

Cited By

  • Chavarria v. Bautista, 922 So. 2d 245 (Fla. 3d DCA 2006)
    …ying him discovery concerning the financial relationship between Roberto Bautista’s insurer and its medical expert, as allowed in Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000), which was adopted by Southern Diagnostic Associates v. Bencosme, 833 So. 2d 801, 802 (Fla. 3d DCA 2002). We deny relief. The underlying action arises out of an automobile accident which occurred on or about August 21, 2001. The petition takes issue with an Order dated August 4, 2005, denying Plaintiffs Fourth motion to compel…
  • Hauser v. Volusia Cnty. Dep't OF Corr., 872 So. 2d 987 (Fla. 1st DCA 2004)
    …ng home residents, who are innocent non-parties, disapproved on other grounds by Alterra Healthcare v. Estate of Shelley, 827 So. 2d 936 (Fla.2002)); Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996); and S. Diagnostic Assocs. v. Bencosme, 833 So. 2d 801 (Fla. 3d DCA 2002). In Strasser, the Fourth District found the need for additional evidence to demonstrate the likelihood of retrieving purged information from defendant’s computer, and a further order defining parameters of time and scope, and suff…

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