       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 18, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2039
                          Lower Tribunal No. 11-7923
                             ________________


                     Bianchi & Cecchi Services, Inc.,
                                    Petitioner,

                                        vs.

                         Navalimpianti USA, Inc.,
                                   Respondent.


     On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, John W. Thornton, Jr., Judge.

       Richard S. Gendler & Associates, P.A., and Martin G. McCarthy, for
petitioner.

      Gunster, and Angel A. Cortiñas, Joseph L. Raia, and Michael B. Green, for
respondent.

Before SUAREZ, LAGOA and SCALES, JJ.

      SCALES, J.
      Bianchi & Cecchi Services, Inc. (“BCS”) petitioned this Court for a writ of

certiorari to quash the trial court’s denial of its motion for a protective order, or to

remand to the trial court to conduct an evidentiary hearing and an in-camera

inspection. After oral argument, we issued a denial of the petition without a written

opinion. Pursuant to Florida Rule of Appellate Procedure 9.330(a), BCS filed a

request for a written opinion proffering that: (1) our decision directly conflicts with

the decisions of our sister courts; (2) this issue will arise in future cases; and (3) a

written opinion would provide the basis for review by the Florida Supreme Court.

We grant BCS’s request for a written opinion.

      I.     Factual Background

      In the underlying case, the plaintiff/respondent Navalimpianti USA, Inc.

(“Navalimpianti”) brought suit against several of its former officers, directors, or

employees. Navalimpianti’s complaint alleged that from 2007 through June 4,

2010, the defendants conspired to breach fiduciary duties, misappropriate trades

secrets, and convert property in order to shift business from Navalimpianti to the

defendants’ new company, BCS, the instant petitioner. In July 2014, the

defendants’ pleadings were stricken and default was subsequently entered against

each of the defendants.

      Liability having been established, the only issue remaining for the trial

court’s determination was that of Navalimpianti’s unliquidated damages. In order



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to help quantify its damages for alleged lost sales and misappropriation of trade

secrets, Navalimpianti served a subpoena duces tecum on BCS for the production

of certain historical financial records of BCS for the years 2008-2012. The

requested information included: federal tax returns; income statements and balance

sheets; QuickBooks data; invoices showing sales to specific clients; and total sales

for those clients to BCS.

      While BCS is a non-party to the underlying dispute, one of the defendants

owns a 10% interest in BCS and Navalimpianti alleges that BCS has benefitted

from that defendant’s, as well as the other defendants’, wrongdoing.

      Navalimpianti and BCS entered into a confidentiality agreement and BCS

agreed to produce information responsive to the subpoena subject to that

agreement.

      BCS produced some of the requested records (financial information from

2008 to June 2010), however, it objected to producing the more recent records

(financial information from June 2010 through 2012). BCS claims that the subject

records are irrelevant and privileged, and that production of such records will give

Navalimpianti, who is a competitor of BCS, an unfair competitive advantage.

      Seeking production of the outstanding documents, Navalimpianti filed a

motion to enforce the subpoena. BCS moved for protective orders and to quash the

subpoena.



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      After a non-evidentiary hearing, the trial court ultimately entered an order

requiring BCS to produce the requested documents. The trial court’s order stated

that documents produced pursuant to the subpoena could only be reviewed by

“Plaintiff’s counsel and expert . . . and shall not be disclosed to Plaintiff.”

      BCS sought certiorari relief from this Court arguing that the trial court

departed from the essential requirements of law by entering its order without

conducting an evidentiary hearing and an in-camera review of the subject financial

records.

      This Court initially denied BCS’s petition without written opinion. Pursuant

to Florida Rule of Appellate Procedure 9.330(a), BCS has requested us to issue a

written opinion.


      II.    Analysis

      Essentially, BCS argues that when a non-party objects to a civil subpoena

requesting financial documents, the trial court commits per se reversible error by

enforcing the subpoena unless the trial court conducts either an evidentiary hearing

or an in-camera review of the objected-to documents. We disagree.

      When a non-party objects to the production of allegedly confidential records,

the trial court is required to weigh the requesting party’s need for those records

against the privacy interests of the objecting non-party. Rousso v. Hannon, 146 So.

3d 66, 71 (Fla. 3d DCA 2014) (“Moreover, confidential discovery sought from


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third parties is not subject to a mere relevance inquiry . . . rather, the respondents

must establish a need for the information that outweighs the privacy interests of the

third party.”); Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So. 3d

620, 622 (Fla. 4th DCA 2009) (“When confidential information is sought from a

non-party, the trial court must determine whether the requesting party establishes a

need for the information that outweighs the privacy rights of the non-party.”).

      While conducting an evidentiary hearing or an in-camera review of the

subject records is generally the appropriate mechanism for assisting the trial court

in balancing these competing interests, see, e.g., Rousso, 146 So. 3d at 71 n.4, we

decline BCS’s invitation to tie the hands of trial court judges by creating a hard and

fast rule requiring the trial court to conduct an evidentiary hearing or an in-camera

review.

      Plainly, trial judges are in a better position than appellate court judges to

determine what mechanism should be employed in a given case when deciding

whether the requesting party has established that the need for the information

outweighs the privacy rights of the non-party. See Elsner v. E-Commerce Coffee

Club, 126 So. 3d 1261, 1263 (Fla. 4th DCA 2013) (“We . . . decline to adopt a per

se rule requiring a trial court always to conduct an evidentiary hearing before

ordering financial discovery from a party. Such a mandatory rule would be

inconsistent with the Florida Supreme Court’s refusal to limit the discretion of trial



                                          5
courts with specific rules or formulas.”)1; see also 2245 Venetian Court Bldg. 4,

Inc. v. Harrison, 149 So. 3d 1176 (Fla. 2d DCA 2014) (finding no reversible error

where the trial court failed to conduct an evidentiary hearing prior to ordering the

disclosure of financial records because the relevancy of the requested documents

was readily apparent and the personal right to privacy was not at issue).2

      Put another way, a trial court does not necessarily depart from the essential

requirements of law by not conducting either an evidentiary hearing or an in-

camera review when faced with a non-party’s objection to the production of

financial documents.



1The fact that Elsner involved a request for financial discovery from a party does
not make the rationale of its holding any less applicable to the facts of this case,
which involve a request for financial discovery from a non-party.
2 As in Harrison, the relevancy of the requested documents is readily apparent from
the pleadings in this case; Navalimpianti’s complaint clearly implicates the
financial records of BCS. Also, as in Harrison, the personal right to privacy is not
at issue here because the disputed discovery requests were directed at BCS, a
business entity, not a natural person. Harrison, 149 So. 3d at 1181 (“However,
those cases involved the personal right to privacy which, as we have already
explained, is not what is at issue here.”); Borck v. Borck, 906 So. 2d 1209, 1211
(Fla. 4th DCA 2005) (“Article I, section 23, of the Florida Constitution protects the
financial information of persons if there is no relevant or compelling reason to
compel disclosure.”) (emphasis added). BCS also argues that it will be irreparably
harmed if it is ordered to produce the requested information to Navalimpianti, its
direct competitor. BCS asserts that production of such information will disclose all
of BCS’s pricing models and margins. That proverbial cat, however, is already out
of the bag. By agreement, BCS already produced similar information for 2008 to
June 2010 that revealed the very pricing models and margins the production of
which BCS now claims will cause it to suffer irreparable harm.

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       In some, albeit not most, cases, the trial court—without conducting an

evidentiary hearing or an in-camera inspection of the subject records—is able to

perform the required balancing test by reviewing the pleadings and the record

evidence to date, and by being informed by counsel’s argument. See, e.g.,

Harrison, 149 So. 3d at 1181; Elsner, 126 So. 3d at 1263-64.

       In this case, despite not conducting an evidentiary hearing or an in-camera

inspection of the subject financial documents, the record is clear that the trial court

performed the required balancing test; indeed, the trial court’s order was expressly

crafted to balance the competing interests of Navalimpianti’s right to know and

BCS’s right to privacy.

       III.   Conclusion

       When conducting certiorari review of interlocutory discovery orders, this

Court’s inquiry is limited to determining whether the petitioner demonstrated that

the contested order constitutes “(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.” Bd. of Trs. of Internal Improvement

Trust Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves

v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004).

       BCS did not make these required demonstrations. Consequently, its petition

for writ of certiorari is denied.



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Petition denied.




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