       Third District Court of Appeal
                                State of Florida

                            Opinion filed April 24, 2019.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D19-351
               Lower Tribunal Nos. 14-13703, 16-1219, & 18-7447
                              ________________


    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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