granting certiorari to quash denial of protective order that effectively allowed discovery after case had been compelled to arbitration
How later courts described this case
- granting certiorari to quash denial of protective order that effectively allowed discovery after case had been compelled to arbitration
- “As a general rule, precertification discovery should be limited to matters relevant to class certification, not the merits of the case.”
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed March 6, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-1730
Lower Tribunal No. 23-15340
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Telesco Construction Management, Inc., et al.,
Petitioners,
vs.
National Concrete Preservation, Inc.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, David
C. Miller, Judge.
The Law Offices of Gold & Parado, and Alan C. Gold and James L.
Parado, for petitioners.
Touron Law, and Francisco Touron, III, and Lucas J. Sanchez, for
respondent.
Before LOGUE, C.J., and EMAS and BOKOR, JJ.
PER CURIAM.
Telesco Construction Management, Inc., and Park Realty Enterprises,
LLC, petition for certiorari relief from an order of the trial court compelling
discovery prior to the trial court’s determination of Telesco and Park Realty’s
motion to dismiss or to compel arbitration. Certiorari relief lies when there
has been a violation of a clearly established principle of law resulting in
irreparable harm and a miscarriage of justice that cannot be remedied on
appeal. See, e.g., Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla.
2003).
The trial court’s order violates clearly established law. See Shader v.
ABS Healthcare Servs., LLC, 337 So. 3d 1259, 1263 (Fla. 3d DCA 2022)
(granting certiorari to quash order declassifying confidential information
protected before referral to arbitration; because trial court was required to
stay proceedings subject to arbitration and arbitrator’s authority extends to
issuance of protective orders, trial court lacked authority to become involved
in discovery once arbitration had been ordered); Greenstein v. Baxas Howell
Mobley, Inc., 583 So. 2d 402, 403 (Fla. 3d DCA 1991) (granting certiorari to
quash denial of protective order that effectively allowed discovery after case
had been compelled to arbitration); § 682.08, Fla. Stat. (providing for
arbitrator’s authority to make discovery orders in arbitrable cases). Thus,
because the court already had sufficient documentation to determine that the
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parties agreed to resolve the dispute solely by mediation and binding
arbitration, it should not have ordered any additional discovery beyond what
was necessary to make its threshold determination of the existence of an
arbitration contract between the parties.
But to obtain certiorari relief, it is not enough that the trial court, even
after being presented with clear legal authority, issued an impermissible
discovery order. There must also be a showing of irreparable harm,
irremediable on appeal. Normally, absent a showing of “cat out of the bag”
discovery or some undue burden, we generally refrain from interfering with
discovery matters through certiorari. See, e.g., Sahmoud v. Marwan, 338
So. 3d 29, 31 (Fla. 3d DCA 2022) (denying certiorari review of granted
request for production of irrelevant discovery). Here, there appears to be the
possibility of production of confidential financial information regarding
amounts paid to non-parties. Additionally, ordering merits discovery prior to
a determination on arbitrability is akin to ordering merits discovery prior to a
determination of sovereign immunity, or standing. See Miami-Dade County
v. Eastern Partners, LLC, 298 So. 3d 1185, 1187 (Fla. 3d DCA 2020)
(granting certiorari relief and explaining that “a trial court departs from the
essential requirements of law, warranting certiorari relief, when the trial court
compels merits discovery without first determining that a putative class
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representative has adequate standing”); United Auto Ins. Co. v. Gables
MRA, 997 So. 2d 1208, 1209 (Fla. 3d DCA 2008) (“As a general rule,
precertification discovery should be limited to matters relevant to class
certification, not the merits of the case.”). As the order under review compels
production of merits discovery prior to a determination of arbitrability though
resolution of the motion to dismiss or compel arbitration, it similarly “departs
from the essential requirements of law, warranting certiorari relief.” Eastern
Partners, 298 So. 3d at 1187.
Petition granted; order quashed.
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