Not
final until disposition of timely filed motion for rehearing.
Petition
for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Janis Brustares Keyser,
Judge; L.T. Case No. 50-2016-CA-007649-XXXX-MB-AD.
Robert
B. Resnick, Fort Lauderdale, for petitioner.
Kara
Berard Rockenbach of Link & Rockenbach, P.A., and Matthew
K. Schwenke of Searcy Denney Scarola Barnhart & Shipley,
P.A., West Palm Beach, for respondent Anna Morsaw, as
personal representative of the Estate of Jordan Parsons,
deceased.
PER
CURIAM.
Dennis
Wright, the defendant in related civil and criminal cases,
petitions for a writ of certiorari seeking to quash portions
of a discovery order entered in the civil case requiring him
to provide certain records over Fifth Amendment privilege
against self-incrimination objections. We deny the petition
because petitioner has not demonstrated that the trial
court's order departs from the essential requirements of
law.
Petitioner
was charged with various criminal offenses for an April 2016
hit-and-run accident that resulted in a pedestrian's
death. The State alleged that petitioner drove recklessly
while intoxicated after having left a Delray Beach bar. After
the accident, petitioner allegedly fled to a friend's
home, "posted" about the accident on social media,
and hid the vehicle he had been driving before seeking its
repair.
The
decedent's estate sued petitioner, his mother as owner of
the vehicle, and the bar where petitioner was allegedly
drinking before the accident. The operative complaint sought
punitive damages and alleged that at all material times
petitioner had a prolonged history of alcohol abuse that was
well known to him, his friends, his mother, the bar, and the
public at large. The decedent's estate served a host of
production requests which were met by petitioner's Fifth
Amendment based objections. Following a hearing on the
estate's motion to compel, the trial court ordered
petitioner to respond to specific requests.
This
petition addresses four of those requests which focus on two
distinct topics: finances and social media. Interrogatory
number fourteen and production request number eleven require
petitioner to identify bank accounts and to provide credit
card statements. Interrogatory fifteen and production request
number ten require petitioner to identify any and all social
media names and handles and to produce digital copies of all
of his social media accounts. The order also provides that
petitioner shall be required to provide "signed written
authorizations for release of Facebook, Instagram and
Snapchat information." Petitioner argues that the order
violates his Fifth Amendment privilege against
self-incrimination because the records sought are
communicative in nature and could furnish a link in the chain
of evidence needed to prove him guilty in the related
criminal case.
The
Fifth Amendment to the United States Constitution provides in
pertinent part that no person '"shall be compelled
in any criminal case to be a witness against
himself.'" Pisciotti v. Stephens, 940 So.2d
1217, 1220 (Fla. 4th DCA 2006) (quoting U.S. Const. Amend.
V); see also Art. I, § 9, Fla. Const.
"This protection exists primarily to 'assure that an
individual is not compelled to produce evidence which later
may be used against him as an accused in a criminal
action.'" Pisciotti, 940 So.2d at 1220
(quoting Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th
DCA 2003). As this Court noted in Pisciotti, the
Fifth Amendment privilege protects both individuals as well
as their records. 940 So.2d at 1221. However, it
'"does not shield every kind of incriminating
evidence. Rather, it protects only testimonial or
communicative evidence, not real or physical evidence which
is not testimonial or communicative in nature."'
Id. at 1220 (quoting Boyle, 858 So.2d at
393). Accordingly, when a movant lodges a Fifth Amendment
privilege objection to the disclosure of certain records, the
trial court "must exercise its discretion and determine
whether it is reasonably possible that answers to either
interrogatories or deposition questions could evoke a
response forming a link in the chain of evidence which might
lead to criminal prosecution." Appel v. Bard,
154 So.3d 1227, 1228-29 (Fla. 4th DCA 2015) (internal
quotation marks and citation omitted).
In the
present case, petitioner has not provided this Court with the
transcript from the hearing on the motion to compel and
petitioner does not contend that he proffered information to
the trial court in order to demonstrate the testimonial or
communicative nature of the social media and financial
records. In the absence of such a transcript, we cannot
conclude that the trial court abused its discretion in
ordering petitioner to respond to the discovery requests.
See Applegate v. Barnett Bank of Tallahassee, 377
So.2d 1150, 1152 (Fla. 1979).
With
that being said, even if we were to assume that the records
at issue are testimonial or communicative in nature,
petitioner still has not demonstrated how those records could
furnish a link in the chain of evidence needed to prove him
guilty in the related criminal case. While the financial
discovery may reveal that petitioner spent money at places
that serve alcohol, that alone does not link him to the
crimes charged or demonstrate the extent of his drinking on
the night of the accident or at any other pertinent time.
Regarding the social media records, petitioner has not
demonstrated a "link" or shown that he is being
asked to furnish or reveal anything that he did not already
publically post.[1] See Rendel v. Rendel, 340 So.2d
1236, 1237-38 (Fla. 4th DCA 1976) (permitting production of
necessary written authorizations in order for appellant to
obtain copies of account information associated with foreign
accounts about which the appellee had already testified to on
numerous occasions).
The
petition for certiorari is ...