Muller v. Wal-Mart Stores, Inc. ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH MULLER, )
)
Petitioner, )
)
v. ) Case No. 2D14-3433
)
WAL-MART STORES, INC., a foreign for )
profit corporation; NORDEL CONTRERAS, )
individually; and SELECT SPACE )
LOGISTICS COMPANY, )
)
Respondents. )
___________________________________ )
Opinion filed May 22, 2015.
Petition for Writ of Certiorari to the Circuit
Court for Lee County; Joseph C. Fuller,
Judge.
Margaret Bichler of Lytal, Reiter, Smith,
Ivey & Fronrath, West Palm Beach, for
Petitioner.
Edward R. Nicklaus and Gustavo A.
Martinez-Tristani of Nicklaus & Associates,
P.A., Coral Gables, for Respondents
Wal-Mart Stores, Inc., and Nordel
Contreras.
No appearance for Respondent
Select Space Logistics Company.
SILBERMAN, Judge.
Joseph Muller seeks certiorari review of a discovery order compelling the
production of his military records in Muller's negligence action against Wal-Mart and
Wal-Mart employee Nordel Contreras.1 Muller argues that the circuit court departed
from the essential requirements of the law in requiring the disclosure of his military
records without conducting an in camera examination to segregate the relevant
documents from the private, irrelevant documents. We agree and grant the petition.
Muller initiated the underlying action in December 2012 after he was
struck by a truck belonging to Wal-Mart and driven by Contreras at a Wal-Mart
Distribution Center. In his complaint, Muller sought damages for permanent bodily
injury, pain and suffering, aggravation of pre-existing conditions or physical defects,
disability or physical impairment, disfigurement, mental anguish, inconvenience, loss of
capacity for the enjoyment of life, medical expenses, and loss of earnings and earning
capacity.
The discovery revealed that Muller had served in the Army in an infantry
regiment for eleven years before being honorably discharged in 1993. Muller, who had
served in Berlin, Korea, and Iraq, disclosed that he had sustained three injuries while in
the military but asserted that he was not seeking damages for the aggravation of any of
his military injuries. In an additional discovery request, Wal-Mart requested that Muller
provide the following documents: (1) an "undeleted" DD Form 214,2 (2) Muller's entire
military personnel file, and (3) Muller's military medical records.
1
Although Contreras has appeared in this proceeding, he has filed for
bankruptcy protection. The trial court has stayed proceedings solely as to him. This
appeal is limited to a discovery dispute between Muller and Wal-Mart.
2
An undeleted DD Form 214 contains information for the verification of
military service, which the form itself describes as including "[s]ensitive items, such as,
the character of separation, authority for separation, reason for separation, reenlistment
eligibility code, separation (SPD/SPN) code, and dates of time lost."
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Muller filed an objection and supporting memorandum asserting, among
other things, that the request was an invasion of his right to privacy under article I,
section 23, of the Florida Constitution and sought irrelevant information. Muller
requested that the court, at a minimum, conduct an in camera inspection prior to
compelling the production of the records. In a motion to compel, Wal-Mart argued that
the discovery was necessary to defend against Muller's claims for damages and to
determine his capacity to hear, observe, and understand his surroundings at the time of
the accident. The magistrate entered an order in which it recommended granting Wal-
Mart's discovery request, and the circuit court entered an order adopting the
recommendation.
" 'The right of privacy set forth in article 1, section 23, of the Florida
Constitution undoubtedly expresses a policy that compelled disclosure through
discovery be limited to that which is necessary for a court to determine contested
issues.' " Ryan v. Landsource Holding Co., LLC, 127 So. 3d 764, 767 (Fla. 2d DCA
2013) (quoting Rappaport v. Mercantile Bank, 17 So. 3d 902, 906 (Fla. 2d DCA 2009)).
When a party challenges a discovery order by asserting a constitutional right to privacy,
the trial court must conduct an in camera review to determine whether the requested
materials are relevant to the issues in the underlying action. James v. Veneziano, 98
So. 3d 697, 698 (Fla. 4th DCA 2012). An order directing the production of such records
without the required determination may cause irreparable harm that cannot be remedied
on direct appeal and is properly reviewable by certiorari. Id.While Wal-Mart may be correct that Muller's military records likely contain
evidence that will assist Wal-Mart in defending against Muller's claims, Muller's military
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records also likely contain information that is not relevant to his claims but would be
highly intrusive to his privacy interests if disclosed. See Walker v. Ruot, 111 So. 3d
294, 295-96 (Fla. 5th DCA 2013) (discussing a petitioner's potential privacy interests in
his personnel file). The irrelevant documents containing this information must therefore
be segregated from any relevant documents that are discoverable. See id. at 296.
Accordingly, the circuit court departed from the essential requirements of
the law by compelling Muller to produce the undeleted DD Form 214, his entire military
personnel file, and all of his military medical records without first conducting an in
camera inspection. We therefore grant the petition for writ of certiorari and quash the
discovery order. On remand the court should conduct an in camera inspection and
segregate any private documents that are not relevant to Muller's negligence action
from the relevant documents.
Petition granted.
ALTENBERND and BLACK, JJ., Concur.
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