ALLIED PROPERTY GROUP, INC. v. MICOR LLC

• Court: District Court of Appeal of Florida
• Decided: February 9, 2022
• Docket: 21-2414
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 9, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2414 Lower Tribunal No. 18-7261 ________________

Allied Property Group, Inc., Petitioner,

vs.

Micor LLC, et al., Respondents.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Israel, Israel & Associates, P.A., and David B. Israel and Eric J. Israel (Davie), for petitioner.

Corona Law Firm, P.A., and Ricardo M. Corona, and Yung Truong, for respondent Micor LLC.

Before SCALES, LOBREE and BOKOR, JJ.

BOKOR, J. Petitioner, Allied Property Group, Inc., seeks certiorari relief from an

order overruling certain objections to third-party subpoenas for telephone

records of Allied Property Group and Roger Reyes, Allied’s property

manager. 1 Allied contends the phone records requested constitute

impermissibly overbroad and irrelevant discovery. Allied also argues that

the discovery sought violates the privacy rights of third parties.

The limited scope of certiorari review of a discovery order would

compel us to deny relief based on a claim of overbreadth or irrelevance. See

Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99

So. 3d 450, 456 (Fla. 2012) (“This Court and other district courts of appeal

have restated with frequency that overbreadth is not sufficient, nor is it a

basis, for certiorari relief.”); Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla.

4th DCA 2015) (citation omitted) (“Overbreadth of discovery alone is not a

basis for certiorari jurisdiction. Similarly, mere irrelevance is not enough to

justify certiorari relief.”).

Allied also claims that the production of phone records violates the right

of privacy established in the Florida Constitution. See Art. I, § 23, Fla. Const.

1 The trial court sustained the objection to the fourth category of information sought, the production of transcripts of any text messages, while overruling the objections pertaining to the first three categories of documents sought, user information, call logs, and a log of text messages sent or received.

2 However, the cases cited by Allied do not support certiorari relief based on

privacy or confidentiality where, as here, the phone logs and call information

sought would include only phone numbers and basic call information and

would not include information connecting the phone number dialed to that

phone number’s owner. To show a violation of clearly established law, Allied

cites to cases in the context of confidentiality and privacy of medical records.

These aren’t medical records. Further, in those cases, the medical records

identified the patients involved. Allied presents no case extending the

constitutional right to privacy to a phone log sought here from of a party (or

a party’s employee or agent) involved in active litigation.

The record indicates that Micor, LLC, sought phone logs, with phone

numbers dialed. Micor did not seek names or other information connecting

the phone numbers to uninvolved, private third parties, nor is there any

indication that the phone logs would contain such information. Allied

presents no case in which the production of phone logs listing phone

numbers, time, and length of call, without any personally identifiable

information, constitutes an impermissible production of confidential, private,

or protected personal information. See Rosen v. McCobb, 192 So. 3d 576,

578 (Fla. 4th DCA 2016) (“Where ‘a discovery order potentially requires the

disclosure of personal information subject to privacy restrictions on

3 dissemination, including names and addresses of non-parties to a lawsuit,’

irreparable harm exists.”). A phone number, without more, reveals no

personal information subject to privacy restrictions.

Additionally, Allied suggests the records constitute confidential

business records or trade secrets identifying “contact information and

communication records of business vendors, clients (past present, and

potential).” Allied speculates, without providing record support, that Micor

may “begin cold calling/contacting and harassing.” Allied failed to raise such

argument before the trial court. A party cannot raise an issue before this

court in the first instance. Sunset Harbour Condo. Ass’n v. Robbins, 914 So.

2d 925, 928 (Fla. 2005) (“As a general rule, it is not appropriate for a party

to raise an issue for the first time on appeal.”) (citations omitted).

Petition denied.