       Third District Court of Appeal
                               State of Florida

                            Opinion filed April 5, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2571
                         Lower Tribunal No. 14-27829
                             ________________


                           Mishko Josifov, et al.,
                                   Petitioners,

                                        vs.

                        Iman Kamal-Hashmat, etc.,
                                   Respondent.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Antonio
Arzola, Judge.

     Restani & Dalmanieras, P.A., and Charles M-P George and Maria E.
Dalmanieras, for petitioners.

      Podhurst Orseck, P.A., and Joel D. Eaton, for respondent.


Before LAGOA, SALTER and FERNANDEZ, JJ.

      SALTER, J.
      Loews Miami Beach Hotel Operating Co., Inc. (“Hotel”),1 petitions for a

writ of certiorari quashing an order compelling disclosure of certain non-party

identification information in surveys completed by guests at the Hotel. For the

reasons which follow, we grant the petition and quash the order.

      The Lawsuit

      The respondent here, Iman Kamal-Hashmat, as personal representative of

the estate of her late husband (“Plaintiff”), filed a complaint for damages for the

tragic drowning death of her husband at the Hotel’s swimming pool in Miami

Beach in December 2013. During pretrial discovery, the Plaintiff subpoenaed the

Hotel’s guest survey service (a non-party) to produce:

      All guest/customer surveys in any way related to the swimming
      pool; and/or supervision of guests using the swimming pool, at the
      Loews Miami Beach Hotel, located at 1601 Collins Avenue, Miami
      Beach, Florida, 33139, from December 2008 to the present. Please
      also include any other documents related to such surveys.

      The Hotel objected. Initially, the trial court authorized the Hotel to redact

any allegedly confidential financial or proprietary company information.       The

Hotel provided the Plaintiff with a spreadsheet provided by the guest survey

service, but the Plaintiff moved to compel. The Hotel then received another

database from the survey service containing information related to the swimming


1 The Hotel is the remaining defendant below and petitioner here. Numerous other
defendants/respondents were dismissed previously by Ms. Kamal-Hashmat,
plaintiff below.

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pool and extracted from the guest surveys. The Hotel informed the trial court that

the database contained confidential information regarding guests; the court ordered

the Hotel to produce the database with a privilege log pertaining to any

information withheld from the survey responses.

      The Hotel filed the database with the guest names and contact information

redacted, together with a privilege log claiming that the redacted information was

private and protected under Article 1, section 23, of the Florida Constitution. The

Plaintiff moved to compel the production of the redacted information, and the trial

court granted the motion. The Hotel then filed the petition for certiorari under

consideration here.

      Analysis

      The names and contact information of the non-party Hotel guests who

completed the surveys are constitutionally protected, private details. Rasmussen v.

S. Fla. Blood Serv., Inc., 500 So. 2d 533, 536 (Fla. 1987); Amente v. Newman,

653 So. 2d 1030 (Fla. 1995). There is no indication on the record before us that

the Plaintiff’s need for information was balanced against the guests’

constitutionally protected rights of privacy.

      The Plaintiff is correct that discovery of guests’ comments on the condition

of the pool and its operations was appropriate. Chambers v. Loftin, 67 So. 2d 220,

222 (Fla. 1953) (evidence of prior similar accidents admissible to show dangerous



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character of place and defendant’s knowledge of that danger).         However, the

Plaintiff is incorrect when she argues that she is entitled to discover the names and

information of all the survey respondents because the names of potential witnesses

are discoverable. It may actually develop that none of the survey respondents are

witnesses.

      If a survey reveals that the guest stayed at the hotel at the time when the

decedent drowned, the identity of the guest would then be discoverable, as in the

case of any witness.     See Sovereign Healthcare of Port St. Lucie, LLC v.

Fernandes, 132 So. 3d 855 (Fla. 4th DCA 2013) (discovery of otherwise-protected

client names and contact information is proper where they are witnesses to incident

at issue); Delta Health Grp. v. Estate of Collins, 36 So. 3d 711, 712 (Fla. 1st DCA

2010) (finding permissible disclosure of contact information and name of single,

potential witness; precluding disclosure of other information).

      The Plaintiff is also mistaken when she argues that she can have the

information because the guests have no reasonable expectation of privacy in the

information, having provided it to the Hotel to make reservations. When a guest

makes a reservation, the information provided is not intended for dissemination to

any unforeseeable, unknown third party. This is not a knowing waiver of the right

to privacy. Berkeley v. Eisen, 699 So. 2d 789 (Fla. 4th DCA 1997).




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      “[T]he party seeking discovery of confidential information must make a

showing of necessity which outweighs the countervailing interest in maintaining

the confidentiality of such information.” Higgs v. Kampgrounds of Am., 526

So.2d 980, 981 (Fla. 3d DCA 1988); see CAC–Ramsay Health Plans, Inc. v.

Johnson, 641 So.2d 434 (Fla. 3d DCA 1994). The Plaintiff has not shown any

compelling interest in disclosure of the names and contact information.         See

Berkeley, 699 So. 2d at 789.    Here, as in Berkeley, the non-parties have not

waived their privacy rights, nor have they done anything inconsistent with their

reasonable expectation of privacy in the information they gave to the Hotel. That

information is constitutionally protected. Id. “Privacy rights are protected without

sacrificing the ability to discover legitimate information where the trial court

redacts from the records all identifying information.” Id. at 792.

      The trial court departed from the essential requirements of law in ordering

the production of the confidential information supplied by guests completing the

survey, and there is no adequate remedy on appeal. Allstate Ins. Co. v. Langston,

655 So.2d 91, 94 (Fla. 1995). The non-party survey respondents have no remedy

by direct appeal, supporting issuance of the writ. Fla. Dep't of Health & Rehab.

Servs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA 1996).

      Conclusion




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      The petition for certiorari is granted.   The order of October 27, 2016,

compelling the Hotel to produce the guest survey database with guest names and

contact information intact, is quashed.




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