VIRTUAL IMAGING SERVICES INC

v.

UNITED AUTOMOBILE INSURANCE COMPANY

Before: ANTONIO ARZOLA, GEORGE SARDUY, and MARCIA B. CABALLERO, J1.

ARZOLA,J.

Page I of5 [*2] Luis Zeledon was insured under an insurance policy for Personal Injury Protection (PIP) benefits issued by the Respondent, United Automobile Insurance Company ("United"). Zeledon was injured in an automobile accident and subsequently received medical services from the Petitioner, Virtual Imaging Services, Inc. ("Virtual"). With treatment, Zeledon assigned his rights under the policy to Virtual. Eventually, Virtual submitted its bills to United for Zeledon's treatment, and United reduced them. Maintaining that the reduction was improper and therefore in breach of the agreement, Virtual brought suit against United, asserting that United should have reimbursed Virtual at a rate of 80% of the billed amount, and not a reduced amount pursuant to the Medicare Part B Fee Schedule (80% of200%), which United paid. In defending the suit, United propounded certain interrogatories and a request to produce upon Virtual. United requested Virtual to provide reimbursement amounts Virtual received in 2009, 2010 and 2011 from other insurance carriers and uninsured patients for the CPT codes at issue in the present suit. Virtual objected on the grounds that the requests were overbroad, burdensome, vague, and not reasonably calculated to the discovery of admissible' evidence. Virtual also objected to the requests by asserting that HMO and PPO reimbursement amounts are privileged and confidential, protected by trade secrets, and that requiring disclosure of these amounts would violate privacy interests. Eventually, although without first conducting an in camera inspection of the documents in order to determine if they in fact constituted trade secrets, the trial court entered an order overruling Virtual's objections and requiring Virtual to provide reimbursement amounts only for the year 2011, the year during which Zeledon received treatment from Virtual. However, while requiring this information to be disclosed, the trial court allowed for Virtual to keep the carriers' Page 2 of5 [*3] identity undisclosed, "to avoid the potential for disclosure of any trade secret or proprietary information. " Alleging error, Virtual has filed this Petition for Writ of Certiorari. In maintaining that Virtual's Petition should be denied and the trial court's discovery order affirmed, United argues that: (1) Virtual has not proven that the reimbursement amounts are in fact trade secrets; (2) Vitiual has failed to prove that it has a proprietary interest in the amounts so that it would have standing to assert the privilege; (3) under the circumstances of this case, an in camera inspection was not required; (4) even assuming that the information was trade secret, the information was relevant as to the reasonableness of the charges; (5) the trial court's order implemented adequate safeguards to protect the privacy interests of the carriers involved; (6) the privilege was waived due to the entities' disclosure of rates and amounts to third parties in advertising and EOBs; and lastly, (7) the "Sword and Shield" doctrine prevents Virtual from initiating litigation based on the reasonableness of its prices while simultaneously claiming that the amounts it accepted as payment from other insurers is privileged. We grant Virtual's Petition for Writ of Certiorari and thereby quash the trial court's discovery order. On certiorari review of a discovery order, it must be determined whether the lower court departed from the essential requirements of the law, whether the order will cause material injury through subsequent proceedings, and whether the injury is one for which there is no adequate remedy after final judgment. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987». Page 3 of5 [*4] In resisting production, Virtual argued below that the requested information was confidential and protected by trade secret privilege, while initially maintaining that the requested information was overall not relevant. For these reasons, Virtual asserts that the lower court's order compelling production departed from the essential requirements of law which will cause irreparable harm if not quashed. It is c1ear,and has so been generally held, that "[w]hen trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret. ... This determination will usually require that the trial court conduct an in camera inspection of the materials in question to determine whether they contain trade secrets." Am. Exp. Tra~el RgLaL(dScrJ!kes,llJb JI. Cruz, 761 So. 2d 1206, 1208-09 (Fla. 4th DCA 2000) (citing Salick Health Care, Inc. v. Spunberg, 722 So. 2d 944 (Fla. 4th DCA 1998); Kaiser Aluminum & Chem. Corp. v. Phosphate Eng'g & Constr. Co.,153 F.R.D. 686 (M.D.Fla.l994)) (emphasis supplied). Accordingly, by failing to conduct an in camera inspection prior to entering its discovery order, the lower court departed from the essential requirements oflaw. See Gen. Hotel & Rest. Supply Corp. v. Skipper, 514 So. 2d 1158, 1159 (Fla. 2d DCA 1987) (trial court order departed from the essential requirements of law because it "ma[ de] no determination as to whether or not the documents are trade secrets"). Because the lower court did not conduct the mandated in camera inspection of the documents and make the requisite findings, we find that all of United's arguments in response to the petition, as outlined above, are legally inconsequential or otherwise legally non-curative of the trial court's initial error. Page 4 of5 [*5] Petition granted and trial court's order quashed. The case is hereby remanded for the trial court or an assigned special master to conduct the requisite in camera review and for all other necessary proceedings. Petitioner's Motion for Appellate Attorney's Fees is DENIED. See Allstar Builders Corp., Inc. v. Zimmerman, 706 So. 2d 92 (Fla. 3d DCA 1998) (finding that the party prevailing on an interlocutory appeal is not the ultimate prevailing party in the litigation and any award of fees would be premature). Judges arduy and Caballero, JJ, concur. Page 5 of5