JENNINGS v. ELECTIONS CANVASSING COMMISSION OF STATE OF FLORIDA (2007)

District Court of Appeal of Florida,First District.

Christine JENNINGS, Ellen Fedder, Lance Jones, Ernest Lasche a/k/a/ Mike Lasche, Barbara Klein, Lois Harmes, John Minder, Dovie Murray, John McBride, Susan Gaar, Gary Lamer, and Charles Clifton (Collectively, “Voter Plaintiffs” or “Petitioners”), Petitioners, v. ELECTIONS CANVASSING COMMISSION OF the STATE OF FLORIDA; Sarasota County Canvassing Board; Kathy Dent, as Sarasota County Supervisor of Elections; Sue M. Cobb, as Secretary of the State to Florida; Dawn K. Roberts, as Director of the Division of Elections of the State of Florida; Vern Buchanan; and Election Systems & Software, Inc., Respondents.

No. 1D07-0011.

Decided: June 18, 2007

Kendall Coffey, of Coffey & Wright, L.L.P., Miami; Mark Herron, of Messer, Caparello & Self, P.A., Tallahassee; and Donald B. Verrilli, Jr., Sam Hirsch, Jessica Ring Amunson, of Jenner & Block, L.L.P., Washington, DC, for Petitioner Jennings. Matthew J. Zimmerman, Electronic Frontier Foundation, San Francisco, CA; Rebecca Harrison Steele & Zeina N. Salam, A.C.L.U. Foundation of Florida, Tampa; and Reginald J. Mitchell, P.F.A.W. Foundation, Tallahassee, for Joinder Petitioners. Peter Antonacci and Allen Winsor, of GrayRobinson, P.A., Tallahassee, for Respondents Kurt S. Browning, Amy K. Tuck, and Elections Canvassing Commission. Miguel A. DeGrandy & Stephen M. Cody, of Miguel DeGrandy, P.A., Miami; and Harry O. Thomas & Jeffrey L. Frehn, of Radey, Thomas, Yon & Clark, Tallahassee, for Respondent Election Systems & Software, Inc. Glenn T. Burhans, Jr., Hayden R. Dempsey & M. Hope Keating, of Greenberg Traurig, P.A., Tallahassee, for Respondent Vern Buchanan.

The petitioners seek certiorari review of the trial court's non-final order denying motions to compel discovery, including a request to order the respondents to disclose trade secrets, including the source code and other proprietary technology associated with certain voting machines used in the Florida Thirteenth Congressional District in the November 2006 election, which Petitioner Christine Jennings lost to Respondent Vern Buchanan by fewer than 400 votes, according to the certified election results. We have jurisdiction. See Art. V, § (4)(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(2)(A). “We recognize that an order denying discovery is ordinarily not reviewable by certiorari because the harm from such orders, as a general rule, can be rectified on plenary appeal.” Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). This is such a situation. Because the petitioners have not met their extraordinary burden to demonstrate that the trial court departed from the essential requirements of law, resulting in irreparable, material injury for the remaining trial proceedings that cannot be rectified on direct appeal, we deny the petition for writ of certiorari. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); S.Y. v. McMillan, 563 So.2d 807, 809 (Fla. 1st DCA 1990) (denying petition for writ of certiorari, where petitioner failed to show that the trial court departed from “a clearly established principle of law resulting in a miscarriage of justice which cannot be remedied on direct appeal”).

PETITION FOR WRIT DENIED.

BROWNING, C.J.

POLSTON and HAWKES, JJ., concur.

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