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2009-MO-025 - Hollman v. Woolfson

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

John Hollman, Respondent,

v.

Dr. Jonathon Woolfson, individually; TLC Laser Eye Centers (Piedmont/Atlanta) LLC; TLC The Laser Center (Institute), Inc; Dr. Michael A. Campbell, individually; Optical Solutions, Inc.; and Optical Solutions of Bluffton, LLC, Defendants,

of whom Dr. Jonathan Woolfson, TLC The Laser Center (Institute), Inc., TLC Laser Eye Centers (Piedmont/Atlanta) LLC are Petitioners.

and Danielle Hollman, Respondent,

v.

Dr. Jonathon Woolfson, individually; TLC Laser Eye Centers (Piedmont/Atlanta) LLC; TLC The Laser Center (Institute), Inc; Dr. Michael A. Campbell, individually; Optical Solutions, Inc.; and Optical Solutions of Bluffton, LLC, Defendants,

of whom Dr. Jonathan Woolfson, TLC The Laser Center (Institute), Inc., and TLC Laser Eye Centers (Piedmont/Atlanta) LLC are Petitioners.

And George E. Carter, Jr., and Jean Carter, Respondents,

v.

TLC Laser Eye Center (Institute), Inc. f/k/a TLC The Laser Center (Piedmont), Inc., Petitioner.


Appeal From Greenville County
 John C. Few, Circuit Court Judge


Memorandum Opinion No.  2009-MO-025
Submitted May 19, 2009 – Filed May 28, 2009 


REVERSED AND REMANDED


W. Howard Boyd, Jr., Ronald G. Tate, Jr., and J. Matthew Whitehead, of Gallivan, White & Boyd, PA, of Greenville, for Petitioners TLC The Laser Eye Center(Institute), Inc. and TLC Laser Eye Centers (Piedmont/Atlanta) LLC; George C. Beighley, of Richardson Plowden & Robinson, P.A., for Petitioner Woolfson.

Douglas F. Patrick and Stephen R.H. Lewis, of Covington, Patrick Hagins, Stern & Lewis, P.A., of Greenville; James Walter Fayssoux, Jr., and Paul S. Landis, of Anderson Fayssoux Chasteen & Mitchell, of Greenville, for Respondents.


PER CURIUM:  Petitioners have filed a petition for a writ of certiorari in this Court’s original jurisdiction seeking review of an order of the circuit court allowing respondents to contact non-party patients of petitioners.  We grant the petition, dispense with further briefing, reverse the order of the circuit court modifying the Protective Order, and remand the matter to the circuit court.

This matter involves three actions filed against petitioners for medical malpractice, fraud, and breach of contract arising out of LASIK eye surgeries.  By order dated November 14, 2008, the circuit court compelled petitioners to respond to respondents’ discovery requests, including the production of the medical records of several nonparty patients treated at petitioners’ facilities.  At the same time, a Protective Order was issued to prohibit the use of confidential information obtained through the medical records and to prohibit any person from contacting the nonparty patients or their medical providers.  Petitioners complied with the orders and provided unredacted copies of the medical records of the nonparty patients.

On February 17, 2009, respondents filed a motion to modify the Protective Order to allow them to contact and interview nonparty patients of petitioners whose identity and medical records were disclosed pursuant to the November 14th order.  The circuit court found respondents were entitled to interview the nonparty patients subject to the privacy safeguards set forth in the Protective Order.  Petitioners seek a writ of certiorari to review the order modifying the Protective Order.

This Court will not entertain matters in its original jurisdiction which can be determined below without material prejudice to the rights of the parties.  Rule 245(a), SCACR.  Only if an extraordinary reason, such as a question of significant public interest or an emergency, exists will the Court determine a matter in its original jurisdiction.  Key v. Currie, 305 S.C. 115, 406 S.E.2d 356 (1991).  Although a discovery order is not generally immediately appealable, a writ of certiorari may be issued to review a discovery order where exceptional circumstances exist.  Lafitte v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009).  On certiorari, this Court will review only errors of law and will not review factual findings unless wholly unsupported by the evidence.  S.C. Bd. of Exam’rs in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971).

Rule 26(b)(1), SCRCP, provides, unless otherwise limited by order of the court, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”  If the discovery process threatens to become abusive or create a particularized harm to a litigant or third party, the trial judge may issue an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden by expense.”  Rule 26(c), SCRCP; Hamm v. S.C. Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994).  If a person requesting a protective order shows a particularized harm which will be caused by allowing the discovery, the opposing party has the burden of showing the information sought is “relevant and necessary” to the case.  Lafitte v. Bridgestone Corp., supra; Hamm v. S.C. Publ. Serv. Comm’n, supra.  In determining whether a protective order is necessary, the trial judge is required to weigh the factors of whether the information sought is “relevant and necessary” evidence against any particularized harm the opposing party may suffer.  Lafitte v. Bridgestone Corp., supra; Hamm v. S.C. Pub. Serv. Comm’n, supra.  In determining whether information is necessary, the party seeking the information must “demonstrate with specificity exactly how the lack of information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat.”  Lafitte v. Bridgestone Corp., 674 S.E.2d at 163.  The trial court must determine whether there are reasonable alternatives available to discover the information.  Id.

The circuit court judge found the confidential health information of the nonparty patients was properly protected by the November 14th Protective Order.  He found modifying the prior order to allow respondents to interview the witnesses was “both reasonable and highly relevant to” respondents’ claims.  However, the judge specifically found the “relevant and necessary” balancing test was not applicable in this matter and made no findings that the interviews were necessary.

The circuit court erred as a matter of law in finding the “relevant and necessary” test was inapplicable.  Because the judge did not address whether the interviews with the nonparty patients were necessary to respondents’ claims, we reverse the order of the circuit court modifying the Protective Order and remand this matter for a finding on this portion of the “necessary” element of the test.

REVERSED AND REMANDED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.