final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County
Lower Tribunal No. 16-19802, Eric William Hendon, Judge.
Law, P.A., and Alexis S. Read and Michael P. Dunn, for
Liebler, Gonzalez & Portuondo, and Andrew L. Portuondo,
for respondent Bank of America, N.A..
SALTER, FERNANDEZ and SCALES, JJ.
and plaintiff below, Michael Foster, as trustee of the
Theodore and Beatrice Foster Irrevocable Intervivos Insurance
Trust ("Foster"), seeks certiorari review of an
October 28, 2016 trial court order denying Foster's
motion to compel Bank of America ("BOA"),
Respondent and defendant below, to produce certain bank
records related to an allegedly stolen check. Because the
bank records that are sought are highly probative and plainly
relevant to Foster's allegations, we grant the petition
and quash the challenged discovery order.
March of 2016, Foster's insurance company issued a check
made payable to Foster in the amount of $123, 038.64. The
check was mailed to property owned by Foster, but rented to,
and occupied by, defendants Benjamin J. Borsani and Rajmonda
Bycmeti. Foster alleges that Borsani and Bycmeti intercepted
the check, caused the check to be endorsed by Borsani and
Bycmeti's company (co-defendant Bed Cloud, LLC), and
deposited the check into a BOA account owned by Bed Cloud.
August of 2016, Foster filed a multi-count complaint against
Borsani, Bycmeti, Bed Cloud, and BOA. In addition to
asserting counts for civil theft and conversion, Foster's
complaint seeks to impose a constructive trust on assets of
the defendants which are traceable from the alleged theft.
Additionally, Foster asserts a negligence claim against BOA
alleging that BOA improperly negotiated the check.
Foster's complaint attaches a copy of the check as an
exhibit. While "Theodore & Beatrice Foster Irrev
Life Ins Trust" is identified as the check's sole
payee, the back of the check contains Bed Cloud's single,
stamped endorsement, referencing an account at BOA.
the Bank was served with Foster's complaint, Foster
served a request for production on BOA that sought: (i) all
surveillance footage and digital images relating to or
depicting the deposit of the check; (ii) all transactions
related to the check; and (iii) all unprivileged
communications between BOA and anyone else related to the
filed an objection to Foster's production request, citing
section 655.059(1)(e) of the Florida Statutes, which requires
a financial institution to keep all of its books and records
confidential unless otherwise compelled by a court of
competent jurisdiction. Foster responded to BOA's
objection by filing a motion to compel. Foster's motion
to compel argues, among other things, that the records sought
- related to the allegedly stolen and wrongfully endorsed
check - are highly probative and relevant to the issues in
the case as framed by Foster's complaint.
trial court conducted a hearing on the discovery issue,
entered the challenged order. The trial court's order
required BOA to produce the information sought in Request No.
1 (i.e., the surveillance footage and digital images relating
to the check), but denied Foster's motion as it related
to Request Nos. 2 and 3. The trial court's order states
that Foster "has not made an adequate showing of
necessity which outweighs the countervailing interests of
[BOA] in maintaining the confidentiality of the documents and
information sought by [Foster] . . . ."
seeks certiorari relief from this order. We grant
Foster's petition and ...