Whitten v. Clark

First DCA

Whitten v. Clark
1st DCA

5/3/23, Judge B.L. Thomas
Topics: Discovery; Petition for Certiorari

The First District issued an exceedingly short opinion denying a petition for certiorari that is, nevertheless, chilling. The opinion is short on facts, but it appears that a trial court ordered a civil litigant to surrender his smartphone passcode and allow a search of his cellphone for discovery purposes. The First District appears to have held that no civil litigant can meet the test for certiorari relief in such cases.

The case is civil in nature, as Whitten is involved in a suit with three natural persons, one of whom is a party both individually and as a personal representative for a fourth natural person’s estate. My guess is that the three people are suing Mr. Whitten for something like wrongful death pertaining to the death of the person whose estate is represented in the suit, but these facts are not made clear.

The DCA offered two citations as the basis for dismissing Mr. Whitten’s petition for a writ of certiorari. They are both criminal cases. The first is a 2022 Supreme Court of Florida opinion that held that a criminal defendant could be compelled to surrender his cellphone passcode because he could adequately remedy any harm by appealing after trial. The phone was seized by a warrant. The second case, a First DCA case from 2021, is cited for the proposition that a defendant failed to show he was irreparably harmed by an order compelling him to turn over his smartphone’s passcode because he could raise his arguments in a direct appeal or motion to suppress. But, again, that case involved a warrant.

In this civil case (where it is hard to imagine that the other private party has a warrant and where the litigant cannot move for suppression based on search and seizure or self-incrimination constitutional principles and where there has been no finding of probable cause for a search in a warrant), the First DCA holds that the petition could not show irreparable harm sufficient to qualify for certiorari relief because “Petitioner has not even been charged and may never be charged.” The DCA did not mention anything about privacy or the multitude of cases granting cert relief in civil cases (where no one was charged with a crime) where a discovery order to surrender a cell phone or other social media data was deemed an irreparable harm that departed from the essential requirements of law. The DCA did not address whether the data was relevant to any civil claim or defense. It simply seems to hold that neither criminal nor civil litigants can suffer irreparable harm from an order to surrender one’s cellphone passcode either pursuant to a warrant or a discovery order in a civil case.

https://supremecourt.flcourts.gov/content/download/867909/opinion/download%3FdocumentV ersionID=1d511040-4db6-49c3-9018-c8e1b5b64e62

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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