Shir Law Group v. Carnevale
271 So.3d 152 (2019)
Rule of Law:
A court order compelling a forensic examination of a party's electronic data must utilize narrowly tailored search parameters to protect against the disclosure of irrelevant and privileged information, and an order with overly broad terms constitutes a departure from the essential requirements of law.
Facts:
- Dario and Flavia Carnevale owned a unit at a condominium and retained The Shir Law Group, P.A. ('Shir Defendants') to represent them.
- The representation was to oppose the dissolution of the condominium association, which was a prerequisite for the sale of all units to a developer.
- The Shir Defendants also represented three other unit owners, known as the Rogenia Group, in the same matter.
- During the course of the representation, the Shir Defendants engaged in settlement communications with the developer and the Rogenia Group.
- Later, in a malpractice suit brought by the Carnevales against the Shir Defendants, it was discovered that the Shir Defendants failed to produce certain responsive communications they had with the developer's counsel regarding the Rogenia Group's settlement.
Procedural Posture:
- Dario and Flavia Carnevale sued their former attorneys, the Shir Defendants, in the Circuit Court for Miami-Dade County, alleging malpractice and violations of fiduciary obligations.
- During discovery, the Carnevales discovered that the Shir Defendants had failed to produce certain relevant communications.
- The Carnevales filed a motion to compel a forensic examination of the Shir Defendants' electronic data.
- The trial court granted the motion and ordered the parties to submit proposed orders setting forth the parameters and search protocols.
- The Shir Defendants proposed a protocol with approximately 30 search terms, while the Carnevales submitted a competing proposal with over 110 search terms.
- The trial court adopted the Carnevales' proposed order without refinement.
- The Shir Defendants (Petitioners) sought a writ of certiorari from the Third District Court of Appeal to quash the trial court's order.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court's order setting the protocol for a forensic examination of a law firm's electronic data depart from the essential requirements of law when the approved search terms are so overly broad that they constitute a 'carte blanche' to irrelevant discovery and risk exposing privileged client information?
Opinions:
Majority - Hendon, J.
Yes, the trial court's order departs from the essential requirements of law. An order compelling forensic examination that grants 'carte blanche' to irrelevant discovery and fails to protect against the disclosure of privileged information is improper. The court reasoned that the approved list of over 110 search terms was excessively broad, citing the term 'Condo*' as an example. For a law firm specializing in condominium law, this term would subject an enormous volume of unrelated and privileged client documents to the examination protocol. This amounts to an impermissible 'fishing expedition' and contravenes the trial court's own initial instruction that the protocol be 'appropriately crafted to protect against the disclosure of privileged or irrelevant information.'
Analysis:
This case reinforces the principle that while electronic discovery and forensic examinations are powerful tools, they are not unlimited and must be proportional to the needs of the case. The decision serves as a caution to trial courts to act as gatekeepers, scrutinizing proposed search protocols to prevent overly intrusive 'fishing expeditions,' especially when dealing with the electronically stored information of law firms, which inherently contains privileged data. It solidifies the requirement that parties seeking such discovery must propose narrowly tailored search terms that balance the need for relevant information with the opposing party's right to protect privileged and irrelevant data. This precedent strengthens the position of parties resisting discovery requests they deem to be overly broad digital intrusions.
Gunnerbot
AI-powered case assistant
Loaded: Shir Law Group v. Carnevale (2019)
Try: "What was the holding?" or "Explain the dissent"