August 2008
"Sunshine in Litigation" - Florida Trial Courts to Review Confidential Documents
The Court of Appeal of Florida recently held that state trial courts must review all purportedly confidential information for Sunshine in Litigation Act (“Sunshine Act”) application prior to entering a “blanket” protective order. The decision, in Goodyear v. Schalmo, et al., 2008 Fla. App. Lexis 10538 (2d DCA July 11, 2008), may be read to create a rule which will bring discovery in products cases to a screeching halt.
By way of background, the Florida Sunshine in Litigation Act bars courts from entering protective orders which conceal a public hazard, information concerning a public hazard, or information which may be useful to the public in safeguarding from injury due to a public hazard. Fla. Stat. § 69.081(3). The Act defines a “public hazard” as “an instrumentality...that has caused and is likely to cause injury.” Fla. Stat. § 69.081(2). Where a party attempts to prevent disclosure of information “potentially falling within the scope” of the Act, the court must examine the information in camera, and, if the court finds that the information pertains to a public hazard as described above, the court must allow disclosure of the information. Fla. Stat. § 69.081(7).
In an earlier case, Goodyear v. Jones, 929 So.2d 1081 (3d DCA 2005), another Florida appeals court held vacated a trial court’s protective order after a jury returned a verdict finding the product at issue defective. Specifically, during discovery Goodyear objected to producing certain materials without a protective order. The trial court ultimately entered a protective order over the plaintiff’s objection, ruling that if the product was ultimately found to be defective, it would withdraw the protective order. The jury returned a verdict in the plaintiff’s favor, but the trial court vacated the jury verdict, ordered a new trial and kept the protective order. The plaintiff appealed and the appellate court ordered that the jury’s verdict be reinstated and the protective order lifted. On remand to the trial court, Goodyear sought an in camera hearing on the protected nature of its documents and argued that the Sunshine Act was unconstitutional. The trial court refused to award Goodyear’s requested relief and the company appealed. On final appeal, the appellate court affirmed the trial court, holding that the trial court should have held a hearing on whether the documents concerned a public hazard before deferring decision until after the trial.
In the instant Schalmo case, Goodyear sought to apply the lessons learned in Jones. Before the trial court entered a blanket protective order, the Company asked for a hearing so the trial court could determine whether any documents were subject to disclosure under the Sunshine Act. “Over Goodyear’s objections, the trial court entered a confidentiality order setting forth procedures to designate documents as confidential without having the court first review such documents.” Goodyear petitioned for interlocutory review and the appellate court granted certiorari. On review, the appellate court held that the trial court erred by not analyzing Goodyear’s documents for confidentiality and application of the Sunshine Act prior to entering a blanket protective order. The Court of Appeal specifically noted that when a party resists disclosure of materials which may pertain to a “public hazard” Fla. Stat. § 69.081(2) states that a court shall examine the materials in camera. If the trial court finds that the materials, or portions thereof, pertain to a public hazard, the court shall allow disclosure of the materials. As such, the appellate court overturned the trial court’s order and remanded with instructions for the trial court to first review Goodyear’s purportedly confidential documents prior to entering any protective order.
This is a decision with potentially far-reaching implications. The Court of Appeal noted that it “sympathized” with the trial court’s concerns that (a) the documents would be highly-technical and beyond the trial court’s expertise and (b) that the contested documents could be quite voluminous, meaning that any review would severely tax a trial court’s resources. Regardless, the appellate court held that “the trial court’s approach, while logical, is not supported by the plain language of the statute.”
The potential effect of this decision is obvious – in products, complex commercial litigation, toxic tort and similar matters involving large volumes of technical or scientific documents, Florida trial courts may now be required to conduct a review and rule upon the applicability of the Sunshine Act before the parties exchange discovery and move the case toward resolution. If this decision sticks and Schalmo becomes the norm in Florida, it will mean brisk business for special masters and long waits for plaintiffs seeking to resolve their cases.
In our experience, Florida plaintiffs are already seizing on Schalmo and using it as a sword to challenge pre-existing protective orders, companies’ claims of confidentiality (and trade secret status), and the use of large document repositories in pattern litigation. For our clients involved in Florida litigation, Moran Reeves & Conn PC is currently working on developing workable solutions which ease the load on trial courts while permitting plaintiffs access to the materials they need to work up their cases, all while continuing to protect our clients’ proprietary interests in their information.