Third District Court of Appeal

State of Florida 

Opinion filed March 9, 2022.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D21-2344 & 3D21-2437

Lower Tribunal No. 20-8460

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Corey Shader, et al.,

Petitioners,

vs.

ABS Healthcare Services, LLC, et al.,

Respondents.

Writs of Certiorari to the Circuit Court for Miami-Dade County, William 

Thomas, Judge.

Carlton Fields, P.A., and Benjamine Reid, Alan Grunspan, and Clifton 

R. Gruhn, for petitioner Corey Shader; Cozen O’Connor, and James A. Gale, 

Samuel A. Lewis, David M. Stahl, and Jonathan E. Gale, for the Kratos 

petitioners.

Boies Schiller Flexner LLP, and Carlos M. Sires and Sigrid S. 

McCawley (Fort Lauderdale), for respondents.

Before LOGUE, LINDSEY, and LOBREE, JJ. 

LOGUE, J.
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Petitioner Corey Shader, a non-party below, and the Defendants below 

have filed separate petitions for a writ of certiorari seeking to quash the same 

discovery order issued by the trial court. We have consolidated the petitions. 

One of the Defendants, Richard Ryscik, and the non-party Corey Shader 

were deposed and portions of their testimony regarding financial and 

business matters were designated as confidential pursuant to a procedure 

established in a protective order entered by the trial court. Subsequently, the 

Respondents, the plaintiffs below, filed a motion to de-designate Ryscik’s 

and Shader’s testimony pursuant to a procedure established in the same 

protective order. The trial court granted the motion, de-designating the 

testimony and authorizing its public use. The Petitioners seek to quash that 

order.

The twist in this case is that the protective order and the designation of 

the material as confidential occurred before the case was submitted to 

arbitration but the motion to de-designate and the court order de-designating 

occurred after the case was submitted to arbitration.

The question presented is whether the authority to interpret and apply 

the trial court’s interlocutory pre-trial protective order entered prior to the 

case being submitted to arbitration lies with the trial court or the arbitrators

during the pendency of an arbitration. We hold that, during the pendency of 
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the arbitration, the arbitrators have exclusive authority to determine these 

matters. To decide otherwise would mean that disputes arising in the course 

of the arbitration out of interlocutory pre-trial court orders (including basic 

discovery disputes) would need to be referred back to the judicial process in 

contravention of the purpose of arbitration which is to provide a dispute 

resolution process outside of the court system. Accordingly, we issue the 

writ.

BACKGROUND

This matter stems from a lawsuit in which ABS Healthcare Services, 

LLC and Health Option One, LLC (collectively, “Plaintiffs”) sued Kratos 

Investments LLC, Health Team One LLC, Complete Vital Care LLC, Health 

Essential Care LLC, and Richard Ryscik (collectively “Defendants”) over an 

alleged scheme to steal Plaintiffs’ business. The Defendants moved to 

compel arbitration. The trial court denied the motion. Then, as part of the 

management of the case, the trial court entered a protective order governing 

discovery.

The protective order allowed both parties and non-parties to designate 

documents or testimony as confidential so long as the information was 

“entitled to confidential treatment under the applicable legal principles.” 
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Materials so designated were required to be treated as confidential until the 

designating party agrees otherwise in writing “or a court otherwise directs.”

The protective order provided that a party opposing the designation of 

the materials as confidential “may file a motion challenging a confidentiality 

designation at any time if there is good cause for doing so, including a 

challenge to the designation of a deposition transcript or any portion thereof.” 

Even after a motion was filed, however, the designated information was to 

be protected “until the court rules on the challenge.”

Pursuant to the terms of the protective order, Petitioner Corey Shader, 

a non-party below was deposed and portions of his deposition testimony 

were designated as confidential. 

Shortly afterwards, however, this Court reversed the trial court’s denial 

of arbitration and ordered the matter submitted to arbitration pursuant to a 

written agreement to arbitrate “in accordance with Commercial Arbitration 

Rules of the American Arbitration Association pursuant to the laws of the 

State of Florida governing arbitration.” Kratos Invs. LLC v. ABS Healthcare 

Servs., LLC, 319 So. 3d 97, 99-100, 102 (Fla. 3d DCA 2021). The trial court 

duly entered a stay of the court proceedings and sent the matter to 

arbitration.
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Several months later, while the arbitration was still pending, the 

Plaintiffs filed a motion in the trial court to de-designate portions of Corey 

Shader’s testimony. After initially expressing concerns over its authority to 

lift the stay entered when the case was pending in arbitration, the trial court 

entered an order expressly lifting the stay and de-designating Shader’s 

testimony.

ANALYSIS

“To grant certiorari relief, there must be: ‘(1) a material injury in the 

proceedings that cannot be corrected on appeal (sometimes referred to as 

irreparable harm); and (2) a departure from the essential requirements of the 

law.’” Fla. Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 

2019) (quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 

So. 3d 712, 721 (Fla. 2012)).

Certiorari jurisdiction is present here because “an order requiring the 

disclosure of confidential ‘cat-out-of-the-bag’ information is precisely the type 

of order that can cause irreparable harm.” Rousso v. Hannon, 146 So. 3d 

66, 71 (Fla. 3d DCA 2014) (citing Allstate Ins. Co. v. Langston, 655 So. 2d 

91, 94 (Fla. 1995)) (granting certiorari to quash order requiring disclosure of 

third party’s financial information). In this regard, “[d]iscovery orders that 

require the disclosure of claimed confidential information are reviewed with 
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greater caution than those that are simply burdensome or costly due to 

overbreadth.” Id.

The question of whether the trial court’s order at issue represents a 

departure from the essential requirements of law is a closer question. This 

concept means something greater than “the mere existence of legal error.” 

Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995). As 

repeatedly explained by our Supreme Court:

Since it is impossible to list all possible legal errors serious 

enough to constitute a departure from the essential 

requirements of law, the district courts must be allowed a 

large degree of discretion so that they may judge each case 

individually. The district courts should exercise this 

discretion only when there has been a violation of a clearly 

established principle of law resulting in a miscarriage of 

justice.

Nader, 87 So. 3d at 722 (quoting Combs v. State, 436 So.2d 93, 95–96

(Fla.1983)). “This standard, while narrow, also contains a degree of flexibility 

and discretion.” Id. at 723 (quoting Heggs, 658 So. 2d at 530). Moreover, our 

Supreme Court has recognized that “‘clearly established law’ can derive from 

a variety of legal sources, including recent controlling case law, rules of 

court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 

So. 2d 885, 890 (Fla. 2003). “Accordingly, a district court may grant a writ 

of certiorari after determining that the decision is in conflict with the relevant 
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statute, so long as the legal error is also ‘sufficiently egregious or 

fundamental to fall within the limited scope’ of certiorari jurisdiction.” Nader, 

87 So. 3d at 723.

The relevant statute here is Florida’s Arbitration Code. §§ 682.03–

682.15, Fla. Stat (2021). The statute squarely places discovery matters 

relating to an arbitration within the authority of the arbitrators. Among other 

things, the Florida Arbitration Code generally gives the arbitrator the 

authority to “permit such discovery as the arbitrator decides is appropriate in 

the circumstances,” § 682.08(3), Fla. Stat., and enforce these rulings by 

“issu[ing] subpoenas for the attendance of a witness and for the production 

of records and other evidence at a discovery proceeding, and tak[ing] action 

against a noncomplying party to the extent a court could if the controversy 

were the subject of a civil action in this state.” § 682.08(4), Fla. Stat.

More to the point at issue here, the Code also specifically provides that 

the arbitrator’s authority extends to protective orders. It empowers the 

arbitrator to “issue a protective order to prevent the disclosure of privileged 

information, confidential information, trade secrets, and other information 

protected from disclosure to the extent a court could if the controversy were 

the subject of a civil action in this state.” § 682.08(5), Fla. Stat.
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Of course, “an order of referral [to arbitration] is an interlocutory order, 

and as a statutory matter, the trial court retains jurisdiction during the 

pendency of the stay and until final judgment.” Ocala Breeders’ Sales Co. v. 

Brunetti, 567 So. 2d 490, 492 (Fla. 3d DCA 1990). Nevertheless, the Code 

also mandates the stay of the judicial proceeding after referral to arbitration: 

“[i]f the court orders arbitration, the court on just terms shall stay any judicial 

proceeding that involves a claim subject to the arbitration.” § 682.03(7), Fla. 

Stat. (emphasis added). See also Chemstar Corp. v. Stark, 634 So. 2d 794, 

795 (Fla. 3d DCA 1994) (“Any proceedings involving an issue subject to 

arbitration under the Florida Arbitration Code must be stayed when the order 

for arbitration is made.”). 

“[T]he effect of a stay of proceedings is to prevent the taking of any 

further steps in the action during the period of the stay . . . .” Ocala Breeders’, 

567 So. 2d at 492. In short, “[o]nce a matter has been voluntarily submitted 

to arbitration, a trial court lacks authority to become involved in the 

arbitration.” Sea Vault Partners, LLC v. Bermello, Ajamil & Partners, Inc, 274 

So. 3d 473, 477 (Fla. 3d DCA 2019).

Under this law and related law, we have held that a court departed from 

the essential requirements of law by asserting jurisdiction over discovery 

after a matter has been referred to arbitration. Macro Cap. Corp. v. The 
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Soffer Grp. ex rel. Soffer, 822 So. 2d 525, 526 (Fla. 3d DCA 2002); 

Greenstein v. Baxas Howell Mobley, Inc., 583 So. 2d 402, 403 (Fla. 3d DCA 

1991) (issuing writs of certiorari to quash orders governing discovery after a 

matter has been referred to arbitration).

Respondents contend that the plain language of the order at issue 

requires designated material to be kept confidential “until a court otherwise 

directs.” They go so far as to maintain that testimony and documents 

produced and designated as confidential under the protective order cannot 

be disclosed to the arbitrator for any purpose, even for the purpose of 

seeking a de-designation of the documents or materials. Respondents 

accurately report the plain language of the protective order. This plain 

language, however, must yield to the law described above which mandates 

a stay in the trial court once arbitration is ordered, prohibits the trial court 

from becoming involved in the arbitration, and authorizes the arbitrator to 

take charge of discovery—including the issuance of protective orders—

during the pendency of the arbitration. 

Accordingly, we issue the writ and quash the trial court order under 

review as such matters are left to the arbitrators during the pendency of the 

arbitration.

Petition granted. Writ issued.