        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             DENNIS WRIGHT,
                                Petitioner,

                                      v.

 ANNA MORSAW, as Personal Representative of the Estate of JORDAN
  PARSONS, deceased, PATRICIA FULLER, and BSB DELRAY, LLC
                  d/b/a BUDDHA SKY BAR,
                        Respondents.

                              No. 4D17-0589

                           [December 13, 2017]

  Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Janis Brustares Keyser, Judge; L.T.
Case No. 50-2016-CA-007649-XXXX-MB-AD.

   Robert B. Resnick, Fort Lauderdale, for petitioner.

   Kara Berard Rockenbach of Link & Rockenbach, P.A., and Matthew K.
Schwenke of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm
Beach, for respondent Anna Morsaw, as personal representative of the
Estate of Jordan Parsons, deceased.

PER CURIAM.

    Dennis Wright, the defendant in related civil and criminal cases,
petitions for a writ of certiorari seeking to quash portions of a discovery
order entered in the civil case requiring him to provide certain records over
Fifth Amendment privilege against self-incrimination objections. We deny
the petition because petitioner has not demonstrated that the trial court’s
order departs from the essential requirements of law.

    Petitioner was charged with various criminal offenses for an April 2016
hit-and-run accident that resulted in a pedestrian’s death. The State
alleged that petitioner drove recklessly while intoxicated after having left a
Delray Beach bar. After the accident, petitioner allegedly fled to a friend’s
home, “posted” about the accident on social media, and hid the vehicle he
had been driving before seeking its repair.
   The decedent’s estate sued petitioner, his mother as owner of the
vehicle, and the bar where petitioner was allegedly drinking before the
accident. The operative complaint sought punitive damages and alleged
that at all material times petitioner had a prolonged history of alcohol
abuse that was well known to him, his friends, his mother, the bar, and
the public at large. The decedent’s estate served a host of production
requests which were met by petitioner’s Fifth Amendment based
objections. Following a hearing on the estate’s motion to compel, the trial
court ordered petitioner to respond to specific requests.

    This petition addresses four of those requests which focus on two
distinct topics: finances and social media. Interrogatory number fourteen
and production request number eleven require petitioner to identify bank
accounts and to provide credit card statements. Interrogatory fifteen and
production request number ten require petitioner to identify any and all
social media names and handles and to produce digital copies of all of his
social media accounts. The order also provides that petitioner shall be
required to provide “signed written authorizations for release of Facebook,
Instagram and Snapchat information.” Petitioner argues that the order
violates his Fifth Amendment privilege against self-incrimination because
the records sought are communicative in nature and could furnish a link
in the chain of evidence needed to prove him guilty in the related criminal
case.

    The Fifth Amendment to the United States Constitution provides in
pertinent part that no person ‘“shall be compelled in any criminal case to
be a witness against himself.’” Pisciotti v. Stephens, 940 So. 2d 1217, 1220
(Fla. 4th DCA 2006) (quoting U.S. Const. Amend. V); see also Art. I, § 9,
Fla. Const. “This protection exists primarily to ‘assure that an individual
is not compelled to produce evidence which later may be used against him
as an accused in a criminal action.’” Pisciotti, 940 So. 2d at 1220 (quoting
Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003). As this Court
noted in Pisciotti, the Fifth Amendment privilege protects both individuals
as well as their records. 940 So. 2d at 1221. However, it ‘“does not shield
every kind of incriminating evidence. Rather, it protects only testimonial
or communicative evidence, not real or physical evidence which is not
testimonial or communicative in nature.”’ Id. at 1220 (quoting Boyle, 858
So. 2d at 393). Accordingly, when a movant lodges a Fifth Amendment
privilege objection to the disclosure of certain records, the trial court “must
exercise its discretion and determine whether it is reasonably possible that
answers to either interrogatories or deposition questions could evoke a
response forming a link in the chain of evidence which might lead to
criminal prosecution.” Appel v. Bard, 154 So. 3d 1227, 1228–29 (Fla. 4th
DCA 2015) (internal quotation marks and citation omitted).

                                      2
   In the present case, petitioner has not provided this Court with the
transcript from the hearing on the motion to compel and petitioner does
not contend that he proffered information to the trial court in order to
demonstrate the testimonial or communicative nature of the social media
and financial records. In the absence of such a transcript, we cannot
conclude that the trial court abused its discretion in ordering petitioner to
respond to the discovery requests. See Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).

   With that being said, even if we were to assume that the records at
issue are testimonial or communicative in nature, petitioner still has not
demonstrated how those records could furnish a link in the chain of
evidence needed to prove him guilty in the related criminal case. While
the financial discovery may reveal that petitioner spent money at places
that serve alcohol, that alone does not link him to the crimes charged or
demonstrate the extent of his drinking on the night of the accident or at
any other pertinent time. Regarding the social media records, petitioner
has not demonstrated a “link” or shown that he is being asked to furnish
or reveal anything that he did not already publically post. 1 See Rendel v.
Rendel, 340 So. 2d 1236, 1237–38 (Fla. 4th DCA 1976) (permitting
production of necessary written authorizations in order for appellant to
obtain copies of account information associated with foreign accounts
about which the appellee had already testified to on numerous occasions).

    The petition for certiorari is accordingly denied.

WARNER, MAY, and DAMOORGIAN, JJ., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




1 We recognize that there are many potential issues surrounding the testimonial
nature of social media and the production of passwords. See State v. Stahl, 206
So. 3d 124, 131–35 (Fla. 2d DCA 2016); see also Caren Myers Morrison,
Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the
Fifth Amendment, 65 Ark. L. Rev. 133, 133 (2012). This case, however, does not
involve the production of social media passwords.

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