In Alvarez v. Cooper Tire & Rubber Company (4D08-3498), the Fourth District, sitting en banc, vacated the panel opinion previously discussed HERE, and affirmed the trial court's judgment. Judge Farmer (now retired) wrote the now vacated panel opinion in which Judge Hazouri and Judge Damoorgian concurred. Judge Warner wrote the court's en banc opinion and was joined by Chief Judge May, Judge Polen, Judge Stevenson, Judge Gross, Judge Taylor, Judge Hazouri, Judge Damoorgian, Judge Ciklin, Judge Gerber, Judge Levine, and Judge Conner. There were no dissenting or concurring opinions. The opinion began:
Appellant, Mario Alvarez, as personal representative of the estate of Jose Ramon Alvarez, appeals a final judgment in favor of Cooper Tire Company in a products liability action. Alvarez complains that the trial court abused its discretion in limiting document discovery from Cooper Tire to those involving tires with the same or similar specifications. Two trial judges conducted multiple hearings and document reviews, both concluding that the limitations were appropriate. We find no abuse of discretion and affirm.
Regarding the facts, the Court stated: "In December 2000, Abraham Calel was driving his 1994 Isuzu P15 pick-up truck on the Sawgrass Expressway with Jose Alvarez, sitting in the right-side passenger seat, and Rudy Velasquez, sitting in the middle. Neither the driver nor the passengers had on their seatbelts. Without warning, the right rear tire tread completely separated from the tire but the tire remained inflated. When this happened, the driver lost control of the pick-up truck, went off the highway, and the truck rolled over. Alvarez was partially ejected from the vehicle and ended up pinned underneath the truck. He died by asphyxiation. The other passenger was also killed in the accident. The driver survived."
The court described the facts relevant to the discovery issue: "The failed tire was a Cooper Trendsetter Steel Belted Radial Tire (Cooper Trendsetter SE, P205/70R14), produced in Tupelo, Mississippi during the 15th week of 1998 pursuant to Green Tire Specification 3011. After institution of the lawsuit, Alvarez filed a multitude of discovery requests. Those requests demanded discovery of information and documents regarding all light truck tires manufactured by Cooper.........Cooper objected to the discovery based up on trade secret, burdensomeness, and that the plaintiff was entitled to discovery only for those tires which were substantially similar to the tire which was the subject of the lawsuit. Cooper maintained that those tires with the same or related GTS number, namely GTS 3011 and 3163, were the only tires substantially similar to the subject tire. Alvarez, however, claimed that the tires manufactured to other Green Tire Specifications were substantially similar in that all Cooper tires were manufactured using the same basic processes."
There were four different discovery disputes, before two different judges in the Circuit Court.
The First Dispute Before Judge Brunson
The original trial judge, Judge Brunson, held a two day hearing in 2003. Although no live testimony was taken, the parties showed the judge a demonstration tire to explain tire construction and the manufacturing process. Both sides proffered expert affidavits and argued their respective implications........After this thorough hearing, and having taken additional time to review material submitted, Judge Brunson limited discovery 'to the subject tire and substantially similar tires which this Court defines as tires designed and manufactured according to Green Tire Specification 3011 and its Related Specification 3163.' Cooper then produced over 1,500 documents regarding those tires.
The Second Dispute Before Judge Brunson
In 2005, Alvarez filed a second motion to compel. He sought specific Cooper documents which had been produced in consolidated lawsuits in California, known as “the JCCP” (“Judicial Council Coordinated Proceeding”). This California proceeding permitted discovery to be coordinated between multiple lawsuits against Cooper, involving many different GT Specification tires, none of which included the tire specifications involved in this case. These documents were designated trade secret by the California judge. The parties obtained an order authorizing the Florida courts to inspect these documents for the purpose of this discovery dispute. Judge Brunson conducted a two-day hearing with extensive argument regarding the 139 documents. Some of the documents were reviewed during the hearing. The judge then reviewed the remaining documents. She denied discovery, concluding that the documents were protected by trade secret and plaintiff had not shown a reasonable necessity to require their production. None of the documents included the 3011 or 3163 tire specification numbers.
First Hearing Before Judge Fine
When this case was assigned to Judge Fine in 2005, Alvarez filed another motion to compel production of the JCCP documents. This time, he pointed out that these documents had been produced in an Arizona case and again claimed that they should be produced in this case, as he claimed that the tires in the Arizona case were virtually identical. Those tires, however, had different GTS numbers. Judge Fine held a hearing and then reviewed the documents himself. He denied production.
Second Hearing Before Judge Fine
In 2007, Alvarez filed another motion, this time to vacate the original 2003 order limiting discovery to the two GTS numbers. He based his request on an order of Judge Kenneth Stern who had allowed additional production of documents in another Cooper Tire case pending in the Fifteenth Circuit in Palm Beach County. That case, however, did not involve GTS numbers 3011 or 3163. Judge Fine again held a hearing on the issue and again denied discovery, noting that he simply disagreed with Judge Stern’s ruling.
"On appeal, Alvarez argues that the trial court’s limitation of discovery to the 'subject tire and substantially similar tires,' defined as 'tires designed and manufactured according to Green Tire Specification 3011 and 3163,' was too narrow and deprived him of relevant discovery......In products liability actions, when a plaintiff seeks discovery regarding other products manufactured by the defendant, Florida courts have uniformly held that the other products must be 'substantially similar' to the subject product."
The Court held:
Whether another product is “substantially similar” is a question for the trial court based upon all of the proofs presented. In this case, the trial judge reviewed the affidavits from the experts, saw a demonstration of the tire at the hearing, heard argument of counsel, and reviewed many of the documents. In fact, two trial judges reviewed documents and held multiple hearings on the issue, and each came to the same conclusion—that discovery was properly limited to tires with the subject GTS numbers. Based upon the record before us, we cannot find that the court abused its discretion.
This court adheres to review of discovery orders under an abuse of discretion standard. Trial judges must be afforded leeway in making the relevance and burdensomeness decisions required in discovery disputes. Otherwise, the cost and burden of civil litigation will imperil its very existence.
[emphasis is mine].