ARGUMENT POINT I PETITIONER HAS FAILED TO ARTICULATE MATERIAL INJURY THAT CANNOT BE CORRECTED ON APPEAL, WHICH ARE JURISDICITONAL PREREQUISITES TO INVOKING THIS COURT’ S CERTIORARI REVIEW Petitioner has not articulated how it will suffer materiai injury from being compelled to provide the requested discovery, nor has petitioner demonstrated that any such injury cannot be corrected on appeal. See generally Sardinas v. LaGares, 805 So. 2d 1024 (Fla. 3d DCA 2001). Oddly, petitioner attempts to shift this burden to the respondent, arguing: “nor has [respondent] shown that it would be prejudicial to the Respondent should these documents not be produced.” Petition at 711. Clearly, it is petitioner’s burden to show irreparable harm to invoke this Court’s certiorari jurisdiction and petitioner has not even attempted to satisfy this burden with anything beyond bare conclusions. As this Court has held, the first two factors (i.e., [1] material injury that [2] cannot be corrected on appeal) are jurisdictional and the Court cannot even reach the question of departure from the essential requirements of law unless the first two factors are satisfied. See Sardinas, 805 So. 2d at 1025. As this Court has pronouncedon numerous occasions, “[t]he possibility of having to try a case twice does not constitute irreparable harm.” Id. at 1025. More importantly, an order compelling production of relevant financial information cannot cause irreparable harm. See Killinger v. Guardianship of Grable, __So. 24_, 2008 WL 1827520 (Fla. Sth DCA; April 25, 2008) ("[wle note that an order compelling production of relevant financial information cannot cause irreparable harm .. .” {emphasis added]]; Estate of Sauey, 869 So. 2d 664 (Fla. 4th DCA 2004). As the Fourth District Court of Appeal observed in Estate of Sauey: The order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm. Sauey, 869 So. 2d at 665. Thus, the only question is whether the financial information requested herein is relevant to a claim in the underlying action (see discussion at Point II[A], infra) or whether petitioner waived its non-privilege objections in having failed to object to the document request in a timely manner (see discussion at Point II(B], infra). But, again, these questions need not be asked here because petitionerhas failed to articulate material harm that cannot be corrected on appeal. Respondent submits that, while production of document discovery can cause material harm in certain situations, more than an empty assertion of prejudice must be articulated. For instance, in Allstate Ins. Co. v. Langston, 655 So. 2a 91, 94 (Fla. 1995), the Florida Supreme Court discussed the limited circumstances in which compelled document disclosure could cause irreparable material injer! This includes “cat out of the bag” material that could be used to injure another person or party outside the context of litigation, and material protected by privilege, trade secrets, work product, or involving =a confidential informant may cause such injury if disclosed. Here, no such injury has been alleged by petitioner. Rather, petitioner repeatedly echoes its empty mantra of “prejudice” without articulating the nature of the alleged prejudice. Moreover, the lower court’s ruling is presumptively correct because petitioner has failed to provide this Court with a transcript. (or adequate substitute) from the hearing when the merits of petitioner’s objections were actually considered and ruled upon by the lower court. SeeKillinger v. Guardianship of Grable, So. 2d_, 2008 WL 1827820 (Fla. 5th DCA; April 25, 2008) (“[w]e lack a transcript of the hearing or a statement of facts to assist in evaluating the trial court’s determination, and consequently, must presume the correctness of its ruling” [emphasis added]). Specifically, the lower court ruled on the merits of the protective order motion and discovery objections at a hearing that took place on April 8, 2008. However, petitioner merely provides the Court with the transcript from the May 7, 2008 hearing on respondent's Motion to Compel, which took place a month later after petitioner had persistently refused to comply with the lower court’s ruling from April 8. At the May 7, 2008 hearing, the lower court did not hear argument on the merits of the objections. Rather, her Honor simply reprimanded petitioner’s counsel for attempting to reargue the same points from the April 8 hearing all over again. See Exhibit M to the Petition at pp. 14-16. Because this Court cannot determine from this inadequate record the precise basis for the lower court’s ruling on April 8, 2008, the lower court’s determination that the financial records are relevant must be presumed to be correct and cannot be disturbed. See id.The Court’s certiorari jurisdiction has not been properly invoked and the Petition should, respectfully, be dismissed. POINT IT THE LOWER COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW If the Court determines that its certiorari jurisdiction has been invoked, then the Petition should be denied because the lower court clearly did not depart from the essential requirements of law, for several reasons. Firstly, the records sought are clearly relevant to adequately pleaded claims in this litigation. Secondly, the lower court may have determined that the documents were discoverable because all non-privileged objections had been waived due to petitioner’s failure to respond timely to the request for production of documents. A. The Discovery Sought is Relevant to Pending Claims The operative Complaint in this action alleges thi the defendants perpetrated fraudulent conveyances of monies from the developer LLC, which rendered the developer LLC insolvent. See Exhibit A to the Petition at pp. 13-14. As the Court can readily observe, this count is pleaded withmore than sufficient particularity. See id. The “meat” of that count alleges: 63. Upon information and belief, the Developer made cash distributions to its members that have rendered Developer insolvent. 64. Specifically, despite having been aware of the numerous construction defects within the Condo, Developer is believed to have dispersed all or virtually all of its capital to its members, leaving itself unable to compensate the Association for its claims. 65. Developer dispersed the funds to its members with the intention of defrauding and/or hindering the Association. It is difficult to imagine how much more particularity in pleading could be expected of the party who has been allegedly defrauded. The five categories of documents requested by the Plaintiff’s Second Request for Production of Documents are specifically targeted and narrowly tailored to the allegations of Count VI of the Complaint. See generally Exhibit E to Petition. it is firmly settled that “wide latitude should be permitted in seeking evidence of fraud since positive proof of the tort is generally not to be expected.” Davich v. Norman Brothers Nissan, Inc., 739 So. 2d 138, 140 (Fla. Sth DCA 1999). And, unlike the facts before the Fifth DistrictCourt of Appeal in Exit 242 Tourist Information v Florida’s Room Service, Inc., 792 So. 2d 1283 (Fla. 5th DCA 2001), upon which petitioner relies, ample facts have been alleged here to support the respondent's fraudulent conveyance claim at Count VI of the Complaint. At the April 8, 2008 hearing, the lower court considered the Fifth District Court of Appeal’s decision of Davich v. Norman Brothers Nissan, Inc., 739 So. 2d 138 (Fla. 5th DCA 1999), and examined Count VI of the Complaint before her Honor determined that the objections should be overruled and the protective order motion denied. Again, because the record is inadequate, the lower court's ruling is presumptively correct, in all events. See discussion at Point I, supra. The authorities cited by petitioner are not to the contrary. Petitioner relies on Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189 (Fla. 2003) for the proposition that financial information is only discoverable in aid of execution of a judgment. Petitioner omits from its discussion of that opinion the High Court’s observation that: (W]here materials sought by a party ‘would appear to be relevant to the subject matter of the pending action,’ the information is fully discoverable. [citation omitted]. A party'sfinances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party. Friedman, 863 So. 2d at 194. No discussion of Gruman v. Bankers Trust Co., 379 So. 2d 658 (Fla. 3d DCA 1980) is warranted, because in that decision, this Court noted that financial information is discoverable if relevant to the issues in the case and petitioner’s reliance on this decision is, therefore, unavailing. Finally, petitioner’s argument that financial information is not discoverable unless a party has demonstrated its entitlement to an accounting is untenable. Here, respondent is not suing for an accounting. Rather, the discovery is being sought in conjunction with a fraud claim. None of the decisions relied on by petitioner in this regard involve fraud claims. See Picerne Development Corp. of Florida v. Tasca & Rotelli, 635 So. 2d 149 (Fla. 4th DCA 1994); Colonies Condominium Assn, Inc. v. Claizview Holdings, Inc., 419 So. 2d 725 (Fla. Sth DCA 1982); Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla. 1956). Rather, all of the foregoing authorities cited by petitioner were cases where financial information wassought in conjunction with accounting claims. The reason that such discovery is not available in an accounting claim is because such discovery is only pertinent to the amount of recoverable damages rather than liability. Charles Sales Corp., 88 So. 2d at 554-555, It is for this reason that the courts do allow discovery of financial information in accounting suits so long as such documentation is pertinent to the “right to” an accounting ([i-e., liability]. See id. Here, by contrast, respondent seeks only to flesh out its allegations that fraudulent conveyances were, in fact, made. Therefore, it is clear that the discovery is being sought to establish liability and not damages. Petitioner’s analogy to accounting claims is unavailing. B. Petitioner Waived all Non-Privilege Objections Moreover, the lower court’s ruling may have been based on the fact that petitioner’s objections to the request for production of documents were untimely and, therefore, waived. This argument too, was considered by the lower court at the April 8, 2008 hearing and may have been the basis therefor. Plaintiff’s Second Request for Production of Documents was served by facsimile on February 22, 2008, and a copywas also sent by another authorized method (i.e., mail) in accordance with Rule 1.080(b)(5) of the Florida Rules of Civil Procedure (which Rule also provides “(f]acsimile service occurs when transmission is compiete”). | Thus, petitioner’s responses and any objections were required to be served within 30 days on or before March 24, 2008. However, petitioner's objections to the | document requests were not served until March 28, 2008. See Exhibit G to Petition. Petitioner has been less than candid with this Court in having alleged that the objections were “timely served” (Petition at J 13), whereas, as petitioner is well-aware, the lower court was persuaded at the April 8 hearing that the objections were not timely interposed. As respondent argued at the April 8, 2008 hearing, petitioner had not moved for a protective order vis the document requests, nor did petitioner timely request or move for an enlargement of time and the objections were, therefore, untimely. Indeed, respondent could have sought an order compelling production of the documents by ex parte application, but chose instead, in good faith, to simply write a letter to petitioner’s counsel asking when the documents would be forthcoming. This letter was met with petitioner's untimely, wholesale objections. 10The failure to timely respond to a request for production of documents constitutes a waiver of all non- privilege objections. See Fl. Civ. Pro. R. 1.380id) (providing that the failure to timely respond to a document request “may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order .."); see also Allstate Ins. Co. v. Langston, 627 So. 2d 1178 (Fla. 4th DCA 1994), partially quashed on other grounds, 655 So. 91 (Fla. 1995); American Funding Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981) (holding that relevance objections are waived by failure to timely object or move for protective order}. Petitioner’s objections were, therefore, waived by its tardy response and the lower court’s ruling on April 8, 2008, by which the court overruled petitioner’s objections, was not a departure from the essential requirements of law. The lower court did not depart from the essential requirements of law and the Petition should, respectfully, be denied. iW