United States District Court, M.D. Florida, Orlando Division
J. KIDD, UNITED STATES MAGISTRATE JUDGE.
cause comes before the Court following an in camera
review of the Florida Department of Children and Family's
(“DCF”) records produced to the Court pursuant to
its September 17, 2019 Order. (Doc. 45.)
previously discussed in that Order, Defendants seek the
release of DCF records pertaining to the July 19, 2018
incident in which L.E., who was two years old at the time,
gained access to an above-ground pool and later died. (Doc.
45 at 1-2.) Generally, DCF records are confidential. Fla.
Stat. § 39.202(1). However, the records can be produced
to “[a] court upon its finding that access to such
records may be necessary for the determination of an issue
before the court . . . .” Fla. Stat. §
39.202(2)(f). Under this provision, the records are first
made available for in camera review by the court so
that it can then determine whether “public disclosure
of the information contained [in the records] is necessary
for the resolution of an issue then pending before it.”
September 17, 2019 Order, the Court ordered DCF to produce
the records for in camera review, finding that,
based on Defendants' arguments, the DCF records likely
contained information that may be necessary for an
adjudication of the parties' claims and defenses. (Doc.
45 at 3.) DCF timely complied with the Court's Order, and
the undersigned has had an opportunity to review the records.
The Court is now at the more onerous standard of the two-step
process governing release of DCF records, which requires a
definitive finding of actual necessity for resolution of an
issue pending before the court before releasing the records.
parties readily admitted at the hearing, there is an absence
of case law expounding on the standard the Court should
employ to determine whether such information is
“necessary for the resolution of an issue then pending
before it.” Fla. Stat. § 39.202(2)(f). Defendants
have posited that the Court should employ a Rule 26 relevancy
standard in determining whether the DCF records are
“necessary.” (Doc. 33 at 6.) Plaintiff responds
that the standard to be employed should be much higher than
relevancy, based on the plain language of the statute. (Doc.
36 at 3-4.)
cite Sutor v. Walmart-Stores, Inc., No.
2:12-cv-600-FtM-38DNF, Doc. 72 at 1 (M.D. Fla. Aug. 19,
2014), in support of their request for the release of the DCF
records here. (Doc. 39 at 3.) While this case is the most
factually analogous among those cited, the parties in
Sutor did not contest the defendants' request
for the release of DCF records. To that end, the court did
not engage in a detailed analysis of the
“necessity” standard at step two of Florida
Statute § 39.202(2)(f). Defendants also cite A.S. v.
McNair, No. 8:05-CV-1198-T-23EAJ, 2006 WL 4821450, at *2
(M.D. Fla. Nov. 22, 2006), arguing that the Court should
similarly employ the Rule 26(b)(1) standard for
discoverability when determining the second step of the
analysis. (Doc. 33 at 3.) In McNair, the plaintiff
sought the release of records from the Children's
Advocacy Center (“CAC”) in a case involving the
alleged sexual harassment of a minor while in foster
care. Id. at *1. The CAC had in its
possession a videotaped interview of the minor child as well
as other records related to the alleged sexual abuse.
Id. The court in McNair did not engage in
an explicit analysis of the necessity standard in step two of
Florida Statute § 39.202(2)(f). Rather, the Court
focused on whether the requested records were relevant under
Federal Rule of Civil Procedure 26. Finding that they were,
the Court released the records, stating, “good cause
exists to order disclosure [of the records] because of the
relevance to the claims in this case and because of the
governing provisions of the protective order already in
place.” Id. at *2.
Plaintiff points to Bogle v. Clifford Investments,
LLC, No: 6:14-cv-670-Orl-22GJK, Doc. 89 at 9 (M.D. Fla.
Sept. 2, 2015), which found that the standard for the release
of DCF records must necessarily be more stringent than the
relevancy standard in Rule 26. (Doc. 36 at 6.) In denying
plaintiff's motion for release of DCF records, the court
stated that the plaintiff needed to “articulat[e] why
the information [sought] is relevant, non-cumulative, and may
be necessary for the resolution of a specific issue pending
before the court.” Bogle, No:
6:14-cv-670-Orl-22GJK, Doc. 89 at 9.
Court agrees with Bogle's interpretation of the
“necessity” standard set forth in §
39.202(2)(f). Relevancy is an inherent consideration in
whether the Court should order the disclosure of the DCF
records. But Bogle's conclusion that the
standard set forth in Florida Statute § 39.202(2)(f)
requires more than just relevancy squares with the
Statute's plain language requiring a showing of
Defendants argue that the DCF records in this case include
notes from the investigation that took place shortly after
the death of L.E. (Doc. 33 at 7.) Defendants assert that a
critical defense in this case is the alleged negligence of
L.E.'s parents surrounding this incident. (Id.)
To that end, they believe the DCF records are necessary
because “[t]hese files will provide timely and critical
information that . . . weigh directly on the issues of
liability for the claims of negligence and product defect, as
well as Defendants' affirmative defenses of comparative
negligence and Fabre.” (Id.)
responds that the records should not be released because they
are cumulative of evidence that Defendants have already
received to date, such as the District Nine Medical Examiner
and Volusia County Sheriff's Office's records. (Doc.
36 at 4.) But the DCF records are not necessarily cumulative.
While some information in the DCF records may already be
available to Defendants, the DCF records contain information
that evaluate the fitness of L.E.'s parents. Thus, the
Court finds that the records are relevant and non-cumulative,
and that Defendants have made a particularized showing to
this Court regarding how the DCF records are sufficiently
necessary for their defenses in this case to satisfy the
“necessary” standard set forth in step two of
Florida Statute § 39.202(2)(f).
it is ORDERED as follows:
DCF records produced to the Court pursuant to its September
19, 2019 Order (Doc. 45) are to be released to the
parties' counsel of record in this case.
parties' counsel of record in this case
SHALL maintain the confidentiality of the
DCF records, subject to any confidentiality agreement that
may exist between the parties.
parties are DIRECTED to notify the Court
on or before November 8, 2019, whether a
confidentiality agreement exists to protect the
confidentiality of the DCF records. If one does not presently
exist, then the parties should attempt to negotiate a
confidentiality agreement prior to November 8, 2019. If the
parties cannot agree on the terms of a confidentiality
agreement, they may move for a protective order. Upon the
Court ascertaining that the proper ...