150 So. 3d 1115
Fla.2014Background
- Challengers in Florida’s 2012 congressional redistricting suit subpoenaed documents from non-party Pat Bainter and his firm Data Targeting, seeking communications and draft maps relevant to claims that consultants participated in a parallel, partisan redistricting effort.
- Bainter was deposed in November 2012, produced some documents, testified he had conducted “a thorough search,” and consistently described his involvement as mere “interest” or “intrigue,” never asserting a First Amendment associational privilege at that time.
- Additional subpoenas were issued to Data Targeting employees and the company records custodian; the non-parties moved to quash on relevancy and burden grounds but did not timely assert a First Amendment or detailed trade-secret privilege.
- After months of hearings and a denied certiorari petition, the trial court found many responsive documents relevant, conducted an in-camera review, ordered production of 538 pages, and initially kept them confidential pending appeal; the non-parties then asserted First Amendment and trade-secrets protections belatedly.
- The Florida Supreme Court affirmed: it held the First Amendment privilege was waived under the totality of the circumstances and rejected the trade-secret claim on the merits; it also ordered the sealed documents and transcript portions unsealed.
Issues
| Issue | Plaintiffs' Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether non-parties preserved a qualified First Amendment associational privilege to block production | Discovery of communications would not invade associational/petitioning rights; disclosure will chill participation; privilege protects anonymous submissions | Bainter failed to timely assert the privilege, testified without claiming privilege, delayed assertion until after contempt and fees — so privilege waived | Waived: Court affirmed production because privilege was not timely and was belatedly asserted after months of discovery and contempt proceedings |
| Whether the disputed materials are trade secrets exempt from production | Materials contain proprietary analyses, strategic plans, and confidential business information warranting protection | Non-parties made only cursory trade-secret claims, failed to particularize or request evidentiary hearing; court reviewed in camera and found no trade-secret protection | Rejected: Court found no competent support that documents qualify as trade secrets and ordered production |
| Whether non-parties could withhold documents while pursuing interlocutory review | Non-parties asserted they had to produce under confidentiality order and could appeal protective-order rulings afterwards | Challengers argued non-parties should have sought protection earlier and that producing then appealing waived privileges; interlocutory certiorari could have been used earlier | Court held non-parties failed to exhaust/appellate remedies timely; their delay and piecemeal appeals undermine privilege claims and support waiver |
| Whether sealed records and transcript should remain sealed | Non-parties argued confidentiality necessary to protect associational and business interests | Media amici and public interest favored unsealing; court emphasized presumption of public access to trials and records | Unsealed: Court ordered the 538 pages and sealed transcript portions unsealed in interest of openness |
Key Cases Cited
- Scipio v. State, 928 So.2d 1138 (finding discovery must follow spirit and purpose of rules)
- Binger v. King Pest Control, 401 So.2d 1310 (discussing full and fair discovery essential to truth-finding)
- Barron v. Fla. Freedom Newspapers, Inc., 581 So.2d 113 (strong presumption of public access to trials and records)
- Kaye Scholer LLP v. Zalis, 878 So.2d 447 (failure to comply with rule 1.280(b) may result in waiver of privilege)
- Century Bus. Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So.2d 1156 (late and inadequate privilege log may warrant waiver)
- Parker v. Illinois, 333 U.S. 571 (state procedures adequate if they afford reasonable opportunity to assert federal rights)
- Lee v. Kemna, 534 U.S. 362 (adequacy of waiver under state law to federal claims governed by federal law)