final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari to the Circuit Court for
Miami-Dade County Lower Tribunal No. 14-26236, John W.
Thornton, Jr., Judge.
Peoples, Assistant General Counsel (Tallahassee), for
Akerman LLP, and Gerald B. Cope, Jr., and A. Rodger Traynor,
Jr., for respondents.
LAGOA, FERNANDEZ, and LUCK, JJ.
Florida Department of Transportation ("FDOT"), a
non-party to the litigation below, petitions this Court for a
writ of certiorari seeking to quash an order compelling it to
produce information responsive to an amended subpoena
propounded by class plaintiff, Tropical Trailer Leasing,
L.L.C. ("Tropical"). Because we find no departure
from the essential requirements of the law, we deny the
FACTUAL AND PROCEDURAL HISTORY
underlying litigation involves a certified class action
brought by class plaintiff, Tropical, against Miami-Dade
Expressway Authority ("MDX"). The class action
seeks injunctive relief as well as a refund of highway tolls
purportedly assessed improperly and paid by class members to
MDX. In order to calculate possible damages and identify
class members for the "opt-out" notice required by
Florida Rule of Civil Procedure 1.220(d)(2), Tropical issued
an amended subpoena to FDOT requesting toll data for vehicles
having more than two axles, which paid the toll using a
prepaid "Toll By Plate" Account. The amended
subpoena excluded Sunpass transponder accounts.
moved to quash the subpoena and asserted that the information
sought was protected by section 316.0777, Florida Statutes
(2017) ("Automated license plate recognition systems;
public records exemption."). FDOT asserted that
production of the requested documents could only be made to
law enforcement agencies or individual license plate holders.
The trial court denied FDOT's motion and further ruled
that confidentiality would be protected through the entry of
a confidentiality order. Specifically, the trial court found
that "[a]ny production under the Subpoena is subject to
the separate 'Attorney Eyes Only' Protective
Order." Moreover, Tropical advised the trial court that
it would not seek the names of license plate holders. This
writ of certiorari is an extraordinary type of relief that is
granted in very limited circumstances.' To be entitled to
certiorari, the petitioner must establish the following three
elements: '(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.' 'The latter requirements
constitute irreparable harm, and irreparable harm is a
condition precedent to invoking certiorari jurisdiction that
should be considered first.'" Lee v.
Condell, 208 So.3d 253, 256 (Fla. 3d DCA 2016)
(citations omitted); see also Bd. of Trs. of the Internal
Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d
450, 454-55 (Fla. 2012) (stating that irreparable harm is a
condition precedent to invoking a district court's
certiorari jurisdiction); Nucci v. Target Corp., 162
So.3d 146, 151 (Fla. 4th DCA 2015) (same).
Certiorari jurisdiction is not available to review every
erroneous discovery ruling. See Bd. of Trs. of the
Internal Improvement Trust Fund, 99 So.3d at 456;
Nucci, 162 So.3d at 151. However, "[d]iscovery
of information protected by privilege 'may reasonably
cause material injury of an irreparable nature.'"
Lacaretta Rest. v. Zepeda, 115 So.3d 1091, 1092
(Fla. 1st DCA 2013) (quoting Allstate Ins. Co. v.
Langston, 655 So.2d 91, 94 (Fla. 1995)). Therefore,
"if there has been a departure from the essential
requirements of law regarding . . . privilege, the harm is
indeed irreparable." Id. at 1092-93.
FDOT argues that the records are confidential, but not
privileged. FDOT concedes in its petition that the toll
records are subject to civil discovery, and "may be
disclosed if the asserted need for the records outweighs ...