THE COURT SLAPS FLEX SEAL FOR SEEKING A MISPLACED WRIT OF CERTIORARI ON A DISCOVERY ISSUE WITHOUT BASIS

Swift Response, LLC v. Routt, 50 Fla. L. Weekly D260 (Fla. 1st DCA Jan. 29, 2025):

The plaintiff sued this defendant for the bodily injury he suffered when a can of Flex Seal Clear Spray he was using allegedly combusted without warning. The accident occurred in 2021 but, as part of the discovery process, plaintiffs sought product information dating back to 2011. Waiting until the last day of the response period, the defendant produced nearly nothing, instead serving several boilerplate general objections.

The trial court granted the plaintiff’s motion to compel and ordered the defendant to produce information related specifically to the Flex Seal Clear Spray (and not as to other colors or other products) from the date requested. The trial court advised the defendant to submit a privilege log for an in-camera inspection for any documents it claimed were privileged. The defendant never did that.

The court observed that the petition was jurisdictionally flawed because it characterized the defendant’s harm as a deprivation of its legal right to be free from carte blanche disclosure of legally irrelevant information. The First District advised that such a claimed legal right lacked any basis in substantive law and had no basis in the Constitution or statute.

The court reminded us that a writ of certiorari is a form of extraordinary relief. It implies an act that invades legal rights or affects due process.

For this reason, certiorari is not usually available to address discovery problems because discovery in civil litigation is a function of court procedure—historically an equitable tool that is now incorporated into the civil rules. Inconvenience, embarrassment, or discomfort flowing from procedural decisions does not implicate a substantive right and is not recognizable as an injury remediable through a writ of certiorari.

After dressing down all the defendant’s arguments to explain why its “jurisdictional argument [fell] apart,” the court concluded that there is no certiorari jurisdiction to review discovery orders that do not cause demonstrable material harm; i.e., harm that in no way appears on the face of the petition