OSCAR FARACH, ETC., ET AL.,

v.

MARCUS RIVERO

MILLER, J.

Petitioners, Oscar Farach, Jesmany Jomarron, and Jomarron Lopez, PLLC, seek certiorari relief from the denial of their motion to unseal the criminal arrest record of respondent, Marcus Rivero, in a pending defamation lawsuit. Petitioners contend the arrest record is integral to a vital defense, that of “truth.” We conclude that petitioners have failed to demonstrate material injury, irremediable on appeal, hence, we dismiss the petition.

FACTS AND BACKGROUND On August 4, 2015, Rivero was arrested in Miami-Dade County for trafficking in certain controlled substances. In early 2016, an anonymous blogger posted the following content on the Internet: [Rivero] is a regular douche bag in the Miami area who thinks because he has been mentioned in a few TMZ articles and he thinks he’s hot sh*t. Please put this fool in his place. He uses his shoe business as a disguise for selling drugs as you can see in his arrest.

Approximately two months after the post appeared, Rivero obtained an order sealing his criminal court record, pursuant to section 943.059, Florida Statutes (2019). He then commenced a defamation lawsuit against the unknown blogger, identified at that time only as “John Doe.” After conducting further investigation, Rivero amended his complaint to name Farach as the offending author. Farach retained Jomarron and the law firm of Jomarron Lopez, PLLC to represent him.

Pursuant to the representation, Jomarron and the firm sent a “litigation hold” letter to Rivero’s mother. Affixed to the correspondence was a copy of the blog post. Rivero then added Jomarron and the firm as defendants in the defamation suit, contending the disclosure of the blog post in conjunction with the litigation hold letter was tortious. Several iterations of the complaint and corresponding responsive pleadings followed, but suffice it to say, all respondents eventually asserted truth as an affirmative defense. After conducting preliminary discovery, petitioners moved in the trial court to unseal respondent’s arrest record, asserting the information contained therein was relevant and material to their theory of defense. The lower tribunal denied the motion. The instant petition ensued.

STANDARD OF REVIEW “Certiorari is an extraordinary remedy that is available only in limited circumstances.” Charles v. State, 193 So. 3d 31, 32 (Fla. 3d DCA 2016). Certiorari review is warranted when a non-final order (1) cannot be remedied on postjudgment appeal, (2) results in material injury for the remainder of the case, and (3) departs from the essential requirements of law. Fernandez-Andrew v. Fla. Peninsula Ins. Co., 208 So. 3d 835, 837 (Fla. 3d DCA 2017) (citing Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012)). In examining a petition for certiorari review, “[t]he first two prongs of the analysis are jurisdictional.” Dade Truss Co., Inc. v. Beaty, 271 So. 3d 59, 62 (Fla. 3d DCA 2019).

Thus, the merits of a certiorari petition cannot be considered absent a determination of material injury irremediable on appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995) (“[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before [the] court has power to determine whether the order departs from the essential requirements of the law.”).

LEGAL ANALYSIS “Very few categories of non-final orders qualify for the use of [a writ of certiorari].” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012); see Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014) (“Certiorari is not a general license for appellate courts to closely supervise the day-today decision making of trial courts.”).

Furthermore, lower courts are endowed with broad discretion in determining the scope and limitation of discovery. See Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003) (“Thus, as is always the case, ‘the scope and limitation of discovery is within the broad discretion of the trial court.’”) (quoting SCI Funeral Servs. of Fla., Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002)); Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (“But not every erroneous discovery order creates certiorari jurisdiction.”). In the narrow context of orders denying discovery, the already “extremely rare” certiorari remedy becomes even rarer. Am. Educ. Enters., LLC,

99 So. 3d at 455 (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098-99 (Fla. 1987), superseded by statute on other grounds, § 768.72 Fla. Stat. (1989)).

This result stems from adherence “to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Boyd v. Pheo, Inc., 664 So. 2d 294, 295 (Fla. 1st DCA 1995); see also Goslin v. Preisser, 148 So. 3d 869, 870 (Fla. 1st DCA 2014) (“We do not have jurisdiction to review the order by certiorari because the order merely denies a discovery request and any resulting harm can be remedied on appeal.”) (citations omitted).

In the instant case, petitioners contend they have demonstrated “good cause” for unsealing the record.¹ Specifically, they assert that, as Rivero is legally permitted to deny the fact of his sealed arrest, his initiation of a suit for defamation has culminated in the use of his detention as both “a sword and a shield.” Howe v. Detroit Free Press, Inc., 487 N.W. 2d 374, 381 (Mich. 1992).

Petitioners are partially

correct, as, in the absence of unsealing, under section 943.059(6)(b), Florida Statutes, Rivero is permitted to deny he was arrested, without penalty. See § 943.059(6)(b), Fla. Stat. (“The subject of the criminal history record sealed under this section . . . , may lawfully deny or fail to acknowledge the arrests covered by the sealed record.”). Further, the fact of Rivero’s arrest, alone, may serve to legally insulate the excerpt of the statement describing his apprehension by law enforcement.

Nonetheless, we conclude that this bare denial does not precipitate a finding of irreparable harm. As was so compellingly penned in G.D. v. Kenny, 15 A. 3d 300, 315-16 (N.J. 2011), the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information—long maintained in official records—now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

See also Martin v. Hearst Corp., 777 F. 3d 546, 551 (2d Cir. 2015) (“The [expungement] statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods . . . the statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.”);

Bahr v. Statesman Journal Co., 624 P. 2d 664, 666 (Or. Ct. App. 1981) (“The [expungement] statute does not, however, impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.”); Rzeznik v. Chief of Police of Southampton, 373 N.E. 2d 1128, 1133 (Mass. 1978) (“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.”).

Petitioners assert, alternatively, that their inability to access the arrest record precludes access to witnesses and documents necessary to support the truth of the portion of the statement asserting Rivero uses the façade of his business as a cover for a narcotics operation.

We agree that, as the truth of the contents of this portion of the post is dependent upon the substantive proof of the criminal acts, rather than the mere fact of arrest, the circumstances of the arrest, and the witnesses thereto, may indeed be relevant and discoverable.

Nonetheless, at this juncture, petitioners have failed to demonstrate “the unavailability or lack of other means of obtaining the information sought.” Scott v. Nelson, 697 So. 2d 207, 209 (Fla. 1st DCA 1997) (citation omitted). Under these circumstances, we conclude certiorari relief is improvident. Petition dismissed.