Shir Law Group v. Carnevale , 271 So. 3d 152 ( 2019 )

Third District Court of Appeal
State of Florida
Opinion filed April 24, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-351
Lower Tribunal Nos. 14-13703, 16-1219, & 18-7447
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The Shir Law Group, P.A., Guy M. Shir, Esq., and Stuart J.
Zoberg, Esq.,
Petitioners,
vs.
Dario Carnevale, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Miguel de
la O, Judge.
Robert E. Menje, PLLC, and Robert E. Menje (Pembroke Pines), for
petitioners.
Kozyak Tropin & Throckmorton, LLP, and Javier A. Lopez, Tal J. Lifshitz,
and John I. Criste, Jr., for respondents.
Before EMAS, C.J., and LOGUE and HENDON, JJ.
HENDON, J.
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.
The Carnevales sued their former attorneys, the Shir Defendants, alleging
counts for malpractice and violations of fiduciary obligations. The Carnevales,
who owned a unit at a particular condominium, retained the Shir Defendants to
represent them in their opposition to the dissolution of the condominium
association, which dissolution would facilitate the sale of all units to a developer.
Three other unit owners, collectively referred to as the Rogenia Group, also
retained the Shir Defendants to represent them in their opposition to the
termination of the condominium association.
During the litigation, the Carnevales sought discovery from the Shir
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Defendants of certain settlement communications with the developer and the
Rogenia Group. The Carnevales also sought discovery from the law firm who
represented the developers in the negotiations with the Rogenia Group. The
documents that were produced by the developer’s counsel included several
communications between the Shir Defendants and the developer’s counsel relating
to the developer’s settlement with the Rogenia Group. Although these
communications between the developer’s counsel and the Shir Defendants were
responsive to the Carnevales’ discovery request to the Shir Defendants, the
communications were not included in the Shir Defendants’ production to the
Carnevales.
After discovering these undisclosed relevant communications, the
Carnevales filed a motion to compel forensic examination, seeking to examine the
Shir Defendants’ electronic data. Following an evidentiary hearing, the trial court
entered an order granting the Carnevales’ motion to compel forensic examination,
stating that, despite the Shir Defendants’ good-faith attempt to produce the
requested information, “their efforts have not been sufficiently technically
competent. More expertise needs to be brought to bear to the task.” The order
provides, among other things, that the forensic examiner will be a third party
mutually chosen by the parties, with the parties equally dividing the cost. Further,
the order provides that, within thirty days, the parties’ counsels are required to
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submit proposed orders setting forth the parameters and search protocols for the
forensic examination. The order provides:
The 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. Counsel for the
parties shall confer telephonically in a good-faith effort to reach
agreement on this issue prior to the submission of proposed orders.
A few days before the thirty-day deadline set forth in the order compelling
the forensic examination, the Shir Defendants’ counsel unsuccessfully attempted to
discuss the list of proposed search terms with the Carnevales’ counsel. After not
being able to schedule a meeting with the Carnevales’ counsel, the Shir Defendants
filed their proposed order setting forth the protocol for the forensic examination,
which, among other things, limited the search to approximately thirty terms and/or
emails. Following the Shir Defendants’ submission of their proposed order, the
Carnevales submitted their competing proposed order, which included over 110
search terms. Without refining the list of permissible search terms, the trial court
adopted the proposed order submitted by the Carnevales’ counsel. The Shir
Defendants’ petition for writ of certiorari followed.
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
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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 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
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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
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for the forensic examination quashed; and case remanded for further proceedings.
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