Preview
Filing # 80753066 E-Filed 11/13/2018 08:19:58 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA IN AND
FOR CHARLOTTE COUNTY
MIKEL ROLLYSON, BILL BARNETT,
BILL DECAMP, WILLIAM TOMPKINS,
BOB HINKLE, CHUCK MCMICHAEL,
RAYMOND FLISCHEL, DEAN
PETITPREN, TERRY SMITH, DOUGLAS
HYDE, DOUG SCHUEMANN, GARY
SLIGAR, JERRY SNIDER, WENDY
MELVIN, KEN MILLER, JOHN EHLERT,
MICHAEL CALAHAN, DAVID HAYES,
RON OLIVER, and BRETTA ARTHUR,
Plaintiffs,
Case No. 18000010CA
Vv.
CCC D.R., L.L.C., and CCC O.P., L-L.C., each
limited liability companies d/b/a CORAL
CREEK CLUB, ELV ASSOCIATES, INC., a
Massachusetts corporation, and MICHAEL
ZMETROVICH
Defendants.
DEFENDANTS’ WRITTEN RESPONSE TO
PLAINTIFFS’ (SECOND) REQUEST FOR PRODUCTION TO DEFENDANTS
Defendants, CCC D.R., L.L.C., CCC O.P., L.L.C. d/b/a CORAL CREEK CLUB, ELV
ASSOCIATES, INC., and MICHAEL ZMETROVICH (collectively, “Defendants”), by and
through their undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.350,
respond in writing to Plaintiffs’ Request for Production, and say:
OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS
Defendants object to the definitions and instructions contained in the request for
production to the extent that they purport to impose any burden greater than those imposed by
the Florida Rules of Civil Procedure. Specifically, but without limiting the generality of the
foregoing, Defendants object to:
A The definition of the word “document” as it exceeds the definition specified in the
rules governing requests for production. Instead of the definition provided by Plaintiffs,
Defendants will use the definitions contained within Rule 1.350, Fla. R. Civ. P., as supplemented.
by the definitions of “writings” and “recordings” contained in §90.951, Fla. Stat.
2 66,
B The attempt to define the words, such as “related to, relating to, 6 person,”
“persons,” and “communication” to mean anything other than what they are understood to mean
in day-to-day usage.
Cc The attempt to define the terms “and” and “or” to mean anything different from
their meanings in day-to-day speech. Defendants will treat “and” as conjunctive and “or” as
disjunctive.
D. The instructions for compiling and providing a privilege log to the extent they
exceed the definition specified in Rule 1.280, Fla. R. Civ. P. and are premature in that there has
been no determination that the documents requested are otherwise discoverable. See, Gosman v.
Luzinski, 937 So. 2d 293 (Fla. 4" DCA 2006) (objection to discovery request tolls time for
privilege log).
RESPONSES AND OBJECTIONS TO SPECIFIC REQUESTS
1 Any and all budgets prepared by the Club for Membership Year 2012-13 and for
each Membership Year thereafter in compliance with Article VIILA of the 2009 Plan.
RESPONSE: Objection. Plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as ordered by the Court in its Order on Defendant’s
Motion for Protective Order dated September 7, 2018 (copy attached as Exhibit 3).
Moreover, to add insult to injury, the new discovery requests are essentially duplicates of
the original objectionable requests that the Court previously ordered the parties to discuss
and add more equally intrusive and objectionable requests. Second, Defendants object on
the grounds that the requested information is not relevant to the subject matter of the
case, nor is it designed to lead to the discovery of admissible evidence. The essence of
this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the
Coral Creek Club Plan, as Amended, to financial information of the owners and
management of the Club and confidential information of the Club Members, while the
Plan itself, attached to the complaint, supports no such claim. The information sought by
this request will not help answer the question whether plaintiff have any rights to
information under the Plan. Third, it is clear from the pleading that this case is in the
nature of an accounting and, as such, this information is not properly discoverable until
Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before
it can obtain discovery of financial records which would only be relevant if the party was
actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th
DCA 1974). The “budgets prepared by the Club” have nothing to do with proving
whether Plaintiffs are entitled to such information, so they would only be relevant if
Plaintiffs prevail on their claims.
2. Any and all documents showing each and every Membership Year’s revenues by
source (Membership Deposits, annual dues, pro shop, dining room, cart fees, tournaments and
events, golf clinics and lessons, and any other sources) for the revenues projected in each such
budget.
RESPONSE: Objection. Defendants incorporate by reference their objection to the
substantially identical interrogatory previously objected to in Defendants’ Written
Response to Plaintiffs’ First Request for Production to Defendants filed on March 7,
2018, a copy of which is attached as Exhibit 1. Defendants further incorporate by
reference their Motion for Protective Order Staying Discovery of Financial Information
and Confidential Membership Information filed March 7, 2018 (copy attached as Exhibit
2). Further, Defendants object based on Plaintiffs’ disobedience of this Court’s Order on
Defendant’s Motion for Protective Order dated September 7, 2018 (“Order”) (copy
attached as Exhibit 3). This interrogatory is essentially a duplicate of the original
objectionable request that the Court previously ordered the parties to discuss. See Exhibit
3.92.
3 Any and all documents showing each and all of the Membership Year’s
operating expenses for each budget prepared in compliance with Article VIILA of the 2009 Plan.
RESPONSE: See objection to Paragraph 2.
4 Any and all documents showing any operating expenses for each Membership
Year excluded from any such budget as not “normal operating expenses.”
RESPONSE: See objection to Paragraph 2.
5 Any and all documents showing all payments made by the Club to Mr.
Zmetrovich, ELV, UK Trust, their attorneys or agents, or any other Owner or representatives of
Ownership, for Membership Year 2012-13 and each Membership Year thereafter, for
management services, including but not limited to fees, salaries, benefits, expense reimbursements
(e.g., air travel, hotel or other living accommodations, car rental or limousine service, meals,
telephone or internet/fax/printing charges), and non-cash payments by the Club (e.g., services or
other valuables).
RESPONSE: See objection to Paragraph 2.
6 Any and all documents showing the circulation or disclosure of any of the
budgets responsive to Request No. | above to Members of the Club, RL Members or to the
Members’ Advisory Committee.
RESPONSE: Objection. Plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as ordered by the Court in its Order on Defendant’s
Motion for Protective Order dated September 7, 2018 (copy attached as Exhibit 3).
Moreover, to add insult to injury, the new discovery requests are essentially duplicates of
the original objectionable requests that the Court previously ordered the parties to discuss
and add more equally intrusive and objectionable requests. Second, Defendants object on
the grounds that the requested information is not relevant to the subject matter of the
case, nor is it designed to lead to the discovery of admissible evidence. The essence of
this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the
Coral Creek Club Plan, as Amended, to financial information of the owners and
management of the Club and confidential information of the Club Members, while the
Plan itself, attached to the complaint, supports no such claim. The information sought by
this request will not help answer the question whether plaintiff have any rights to
information under the Plan. Third, it is clear from the pleading that this case is in the
nature of an accounting and, as such, this information is not properly discoverable until
Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before
it can obtain discovery of financial records which would only be relevant if the party was
actually entitled to the accounting. See e.g. David v. Tansill, 297 So, 2d 84, 86 (Fla. 4th
DCA 1974). The “documents showing the circulation or disclosure of any of the budgets
responsive to Request No. 1” have nothing to do with proving whether Plaintiffs are
entitled to such information and is simply a backhanded way of attempting to obtain
discovery of financial records of the Club before they have shown that they are entitled to
such information. This information would only be relevant if Plaintiffs prevail on their
claims.
7 Any and all documents prepared by or for Defendants that used the annual budgets
responsive to Request No. 1 above to calculate annual Membership dues for the upcoming
Membership Year or increases in annual Membership dues or show how increases in annual dues
were based on that Membership Year’s budget.
RESPONSE: See objection to Paragraph 2.
8 Any and all documents reflecting or describing the terms of any operating or
capital improvement reserve created in compliance with Article VILI of the 2009 Plan, the date
of the creation of the reserve, any amendments thereto, and showing its funding and
maintenance, including but not limited to the source or payor of each payment into the reserve,
the recipient or payee of each payment made out of the reserve, the date of such payments, and
the outstanding balance in the reserve after each payment was made.
RESPONSE: See objection to Paragraph 2.
9 Any and all documents showing the utilization, if any, of Membership Deposits to
pay operating deficits or accrued operating deficits of the Club in compliance with Article VILI of
the 2009 Plan for the time period October 1, 2012, to present, including but not limited to the
date, recipient, and amount of each such payment and the outstanding balance of Membership
Deposits after each payment was made.
RESPONSE: See objection to Paragraph 2.
10. Any and all documents showing the utilization, if any, of Membership Deposits
for the time period October 1, 2012, to present.
RESPONSE: See objection to Paragraph 2.
11. Any and all documents showing all payments by Defendants to satisfy Senior
Mortgage Debt and/or First Mortgage Debt from January 1, 2006 to the present, including the
source or payor of each such payment, the date, recipient, and outstanding balance of Senior
Mortgage Debt and/or First Mortgage Debt after each payment was made.
RESPONSE: See objection to Paragraph 2.
12. Any and all documents showing any repayment of equity (inclusive of a return
thereon) to Defendants or their agents, attorneys or other representatives from January 1, 2006,
to the present, including without limitation the repayment of $1.3 million to Ownership,
identifying the source or payor of each such payment, the date, the recipients, and the amount
received by each recipient.
RESPONSE: See objection to Paragraph 2.
13. Any all documents distributed or sent by Ownership to Members at annual
meetings or otherwise, showing as of that date one or more of the following:
a. The level of Certificate Membership;
b. The composition of Certificate Membership;
The number of dues-paying Members, non-dues-paying Members on the
Redemption List, and other Certificate Members; and/or
d The manner in which Certificate Membership was calculated.
RESPONSE: See objection to Paragraph 2.
14, Any and all documents identifying all Certificate Members of the Club as of the
annual meeting on March 6, 2017, including active dues-paying Members, inactive non-dues
paying Members on the Redemption List, and any Members who were neither active due-paying
Member nor on the Redemption List.
RESPONSE: Objection. First, Plaintiffs did not meet and confer with Defendants
before submitting new discovery requests, as required by the Court’s Order. See Exhibit
3. Second, at the August 20th hearing on Defendants’ Motion for Protective Order (the
“Hearing”), the Court was clear that plaintiffs are not entitled to the identity of members
of the Club at this time. Judge Porter specifically said to Plaintiffs’ attorney, “You’re
entitled to whatever your - - like where the plaintiff is on the redemption list.
Specifically going to be plaintiff. Not everybody. You don’t get that whole list of the
redemption at this point in time.” Third, Defendants object on the grounds that the
requested information is not relevant to the subject matter of the case, nor is it designed
to lead to the discovery of admissible evidence. The essence of this case is the
groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek
Club Plan, as Amended, to financial information of the owners and management of the
Club and confidential information of the Club Members, while the Plan itself, attached
to the complaint, supports no such claim. The information sought by this request will
not help answer the question whether plaintiff have any rights to information under the
Plan.
15. Any and all documents identifying which RL Members have been redeemed from
the Redemption List between March 6, 2017, and the present, the date of each such redemption,
and the amount of the Deposit Refund paid to each such redeemed Member.
RESPONSE: See objection to Paragraph 2. Aside from changing the date from March 1,
2017 to March 6, 2017, this request asks for substantially the same information as the
original objectionable request that the Court previously ordered the parties to discuss. See
Exhibit 3, § 2. Further, at the Hearing, the Court was clear that plaintiffs are not entitled
to the identity of members of the Club at this time.
16. Any and all documents identifying which of the 224 Certificate Members of the
Club as of the annual meeting on March 6, 2017, who were not RL Members have been
redeemed since that date by (i) exchanging arrearages in their accounts for their Deposit Refund
expectancies, or (ii) giving up their rights to a deposit Refund in exchange for a release of their
ongoing liability for annual fees and assessments, or (iii) turning in their Membership
Certificates for resale by the Club, including the terms of that return of Membership Certificate
to the Club, and all communications between Defendants or the Club and any such Members
relating to these transactions.
RESPONSE: See objection to Paragraph 2. This request asks for more extensive
information than the original objectionable request that the Court previously ordered the
parties to discuss. See Exhibit 3, 2. Additionally, Defendants object on the grounds that
the request is vague and ambiguous because the significance of “redeemed” as used in the
context of the request is not defined. Under the terms of the Plan, there have been no such
redemptions. Finally, Defendants object on the grounds that the Court was clear at the
Hearing that plaintiffs are not entitled to the identity of members of the Club at this time.
17. Any and all documents showing or relating to Robert Miles’ return of his
Membership Certificate to the Club for resale and the terms thereof, including but not limited to
the arrearage in Robert Miles’ Member account at the time Robert Miles returned his
Membership Certificate, the basis for that arrearage, any release or forgiveness of future
obligations of Member Miles for annual dues or assessments, any release by Member Miles of
any future claim to a Deposit Refund, and all communications between Defendants and Robert
Miles relating to the terms of this transaction.
RESPONSE: See objection to Paragraph 2.
18. Any and all documents discussing or relating to whether the Redemption rights of
Plaintiffs and/or other RL Members were vested and became fixed as of the date they resigned,
and/or whether those rights can thereafter be changed via amendments to the 2009 Plan, or
otherwise, without their express approval.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants
before submitting new discovery requests, as required by the Court’s Order. See Exhibit
3. Second, to the extent it seeks “any and all documents” the request is overbroad and
unduly burdensome. Third, to the extent that it seeks documents prepared by any third
party on behalf of or at the direction of Defendants or seeks communications between
Defendants and any third party, it necessarily seeks documents protected by the attorney-
client privilege. Fourth, Defendants object on the grounds that the request is vague and
ambiguous because the significance of “vested” and “fixed” as used in the context of the
request is not defined.
19. Any and all documents sent by mail or email to any RL Member by Defendants or
anyone else on behalf of the Club between March 6, 2017, and February 12, 2018, reflecting or
relating to proposed amendments to the 2009 Plan and/or to the procedure for approval of such
amendments. If the same document was sent to multiple RL Members, a single copy of the
identical document may be produced, together with a list identifying all RL Members to whom
the document was sent.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants
10
before submitting new discovery requests, as required by the Court’s Order. See Exhibit
3. Second, to the extent it seeks “any and all documents” the request is overbroad and
unduly burdensome. Third, the identity of Members of the Club is confidential.
Defendants object on the grounds that the production of confidential files would violate
the Members’ rights to privacy because the documents contain personal information that
has no bearing on the claims or defenses in this case and is not reasonably calculated to
lead to the discovery of admissible evidence. Furthermore, the Court was clear at the
Hearing that plaintiffs are not entitled to the identity of members of the Club at this time.
20. All other documents mailed or emailed to any RL Member by Defendants or
anyone else on behalf
of the Club between March 6, 2017, and February 12, 2018, reflecting or
relating to the RL Member’s position on the Redemption List, Deposit Refunds, redemption
rights under the 2009 Plan, or possible changes thereto.
RESPONSE: See objection to Paragraph 19.
21. Any and all documents mailed or emailed to an active Certificate Member by
Defendants or anyone else on behalf of the Club between March 6, 2017, and February 12, 2018
reflecting or relating to proposed amendments to the 2009 Plan and/or to the procedure for
approval of such amendments. If the same document was sent to multiple Members, a single
copy of the identical document may be produced, together with a list identifying all Members to
whom the document was sent.
RESPONSE: See objection to Paragraph 19.
22. Any and all documents mailed to an RL Member or an active Certificate Member
which were returned by the Postal service for lack of proper address, and all documents emailed
to an RL Member or an active Certificate Member which were not transmitted for lack of a
11
proper email address, in both instances identifying the Member who failed to receive the
intended communication.
RESPONSE: See objection to Paragraph 19.
23. The mailing list or contacts list used by Ownership to circulate its proposed
amendments of the 2009 Plan to Members or RL Members on or about November 20, 2017, or
thereafter.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as required by the Court’s Order. See Exhibit 3.
Second, the identity of Members of the Club is confidential. Defendants object on the
grounds that the production of confidential files would violate the Members’ rights to
privacy because the documents contain personal information that has no bearing on the
claims or defenses in this case and is not reasonably calculated to lead to the discovery of
admissible evidence. Furthermore, the Court was clear at the Hearing that plaintiffs are
not entitled to the identity of members of the Club at this time. Third, Defendants object
on the grounds that the requested information is not relevant to the subject matter of the
case, nor is it designed to lead to the discovery of admissible evidence. The essence of
this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the
Coral Creek Club Plan, as Amended, to financial information of the owners and
management of the Club and confidential information of the Club Members, while the
Plan itself, attached to the complaint, supports no such claim. The information sought by
this request will not help answer the question whether plaintiff have any rights to
information under the Plan.
24. The mailing list or contacts list used by Ownership to circulate its revised
12
proposed amendments to the 2009 Plan and voting procedures to Members or RL Members on or
about January 23-24, 2018, or thereafter.
RESPONSE: See objection to Paragraph 23.
25. All proxies submitted to the Club by Members or RL Members voting on the
Amended 2018 Plan, including without limitation any proxies which were not counted for any
reason.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as required by the Court’s Order. See Exhibit 3.
Second, the identity of Members of the Club and the way in which each Member voted is
confidential. Defendants object on the grounds that the production of confidential files
would violate the Members’ rights to privacy because the documents contain personal
information that has no bearing on the claims or defenses in this case and is not
reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the
Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of
the Club at this time. Third, Defendants object on the grounds that the requested
information is not relevant to the subject matter of the case, nor is it designed to lead to
the discovery of admissible evidence. The essence of this case is the groundless claim of
Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as
Amended, to financial information of the owners and management of the Club and
confidential information of the Club Members, while the Plan itself, attached to the
complaint, supports no such claim. The information sought by this request will not help
answer the question whether plaintiff have any rights to information under the Plan.
26. All ballots submitted by Members or RL Members voting in person on the
13
Amended 2018 Plan on February 12, 2018, including without limitation any ballots which were
not counted for any reason.
RESPONSE: See objection to Paragraph 25.
27. The ledger or record made by John Payne recording the vote count on February
12, 2018,
RESPONSE: See objection to Paragraph 25.
28. Any and all documents recording, reflecting, or relating to the position taken by
the Advisory Committee or any of its members during the period from January 1, 2018 through
February 12, 2018 as to the proposed amendments to the 2009 Plan, including without limitation
whether the Advisory Committee members unanimously supported and endorsed the proposed.
amendments and whether/how the members’ positions changed during that time frame.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as required by the Court’s Order. See Exhibit 3.
Second, to the extent it seeks “any and all documents” the request is overbroad and
unduly burdensome. Third, the identity of Members of the Club and the way in which
each Member voted is confidential. Defendants object on the grounds that the production
of confidential files would violate the Members’ rights to privacy because the documents
contain personal information that has no bearing on the claims or defenses in this case
and is not reasonably calculated to lead to the discovery of admissible evidence.
Furthermore, the Court was clear at the Hearing that plaintiffs are not entitled to the
identity of members of the Club at this time. Fourth, Defendants object on the grounds
that the requested information is not relevant to the subject matter of the case, nor is it
designed to lead to the discovery of admissible evidence. The essence of this case is the
14
groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek
Club Plan, as Amended, to financial information of the owners and management of the
Club and confidential information of the Club Members, while the Plan itself, attached to
the complaint, supports no such claim. The information sought by this request will not
help answer the question whether plaintiff have any rights to information under the Plan.
29. Any and all documents from December 1, 2017, to the present, reflecting or
relating to communications between Mr. Zmetrovich or any other member of Ownership, and
any member of the Cross-Der-Urban Committee appointed on December 29, 2017.
RESPONSE: Sce objection to Paragraph 2.
30. Any and all documents exchanged, or documents relating to communications
between, any of the Defendants and the Advisory Committee or any member of the Advisory
Committee between March 6, 2017, and February 12, 2018, relating to proposed amendments to
the 2009 Plan and/or to the procedure for approval of such amendments.
RESPONSE: See objection to Paragraph 2. This request asks for substantially the same
information, except within a specified timeframe, as the original objectionable request
that the Court previously ordered the parties to discuss. See Exhibit 3, 4 2.
31. Any and all documents exchanged by or between any of the Defendants between
March 6, 2017, and February 12, 2018, reflecting or relating to proposed amendments to the
2009 Plan and/or to the procedure for approval of such amendments.
RESPONSE: See objection to Paragraph 2. This request asks for substantially the same
information, except within a specified timeframe, as the original objectionable request
that the Court previously ordered the parties to discuss. See Exhibit 3, {| 2.
32. Any and all documents identifying each owner of the Club, and the respective
15
ownership interests of each, including specifically the ownership interest of ELV, Mr.
Zmetrovich and the other owner (referred to herein as “UK Trust”) that Mr. Zmetrovich has
identified as the principal owner of the Club.
RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before
submitting new discovery requests, as required by the Court’s Order. See Exhibit 3.
Second, to the extent it seeks “any and all documents” the request is overbroad and
unduly burdensome. Third, the requested information is not relevant to the subject matter
of the case, nor is it designed to lead to the discovery of admissible evidence. The
essence of this case is the groundless claim of Plaintiffs that they are entitled, under the
terms of the Coral Creek Club Plan, as Amended, to financial information of the owners
and management of the Club and confidential information of Club Members, while the
Plan itself, attached to the complaint, supports no such claim. The information sought by
this request will not help answer the question whether plaintiff have any rights to
information under the Plan. Rather, it asks for “all documents identifying each owner of
the Club, and the respective Ownership interests of each.” Third, it is clear from the
pleading that this case is in the nature of an accounting and, as such, this information is
not properly discoverable until Plaintiffs prevail in the case. A party must prove its
entitlement to an accounting before it can obtain discovery of financial records which
would only be relevant if the party was actually entitled to the accounting. See e.g. David
v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The “documents identifying each
owner of the Club, and the respective Ownership interests of each” have nothing to do
with proving whether Plaintiffs are entitled to such information, so they would only be
relevant if Plaintiffs prevail on their claims. Fourth, to the extent this request seeks
16
information about the personal finances of Mr. Zmetrovich and other members of
management, Article I, § 23, of the Florida Constitution protects a person’s financial
information unless there is a compelling reason to order disclosure. Borck v. Borck, 906
So.2d 1209 (Fla. 4th DCA 2005). “[C]ourts will compel production of personal financial
documents and information if shown to be relevant by the requesting party.” Friedman v.
Heart Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003). The production of
financial records that are not relevant can cause irreparable harm to a person forced to
disclose them. Bogert v. Walther, 54 So.3d 607 (Fla. 5th DCA 2011). Thus, “ordinarily
the financial records of a party are not discoverable unless the documents themselves or
the status which they evidence is somehow at issue in the case.” Compton v. West Volusia
Hospital Authority, 727 So.2d 379, 381 (Fla. 5th DCA 1999), “[A]Il documents
identifying each owner of the Club, and the respective ownership interests of each
including specifically the ownership interest of ELV, Mr. Zmetrovich and the other
owner” constitute confidential and personal financial records of individuals affiliated
with the Club. Defendants object on the grounds that the production of confidential files
would violate those rights to privacy because the documents contain personal financial
information that has no bearing on the claims or defenses in this case and is not
reasonably calculated to lead to the discovery of admissible evidence. The personal
financial records of the Defendants are not relevant to the case or discoverable.
33. Any and all documents reflecting or relating to contracts or agreements entered
into by Mr. Zmetrovich or ELV with the Club, other Defendants, or any other person, relating to
the Mr. Zmetrovich’s or ELV’s ownership or equity interest in the Club or their management
responsibilities at the Club.
17
RESPONSE: See objection to Paragraph 2.
34. Any and all documents reflecting communications among any members of
Ownership relating to proposed amendments to the 2009 Plan.
RESPONSE: See objection to Paragraph 2.
/s/ Edward A. Marod
EDWARD A. MAROD
Florida Bar No. 238961
emarod@gunster.com
dpeterson@gunster.com
eservice@, gunster.com
EMILY J. CHASE
Florida Bar No. 1004117
echase@gunster.com
GUNSTER, YOAKLEY & STEWART, P.A.
777 South Flagler Drive, Suite 500 East
West Palm Beach, FL 33401-6194
Telephone: (561) 650-0660
Facsimile: (561) 655-5677
Attorney for Defendants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY the foregoing was submitted on this 13th day of November, 2018,
for filing to the Clerk of the Courts by using the Florida Courts E-Filing Portal which will send a
Notice of Electronic Filing to the following:
/s/ Edward A. Marod
EDWARD A. MAROD
WPB_ACTIVE 9001947.2
18
Filing # 68940069 E-Filed 03/07/2018 03:27:58 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR CHARLOTTE COUNTY
MIKEL ROLLYSON, an individual, BILL
BARNETT, an individual, BILL DECAMP, an
individual, WILLIAM TOMPKINS, an individual,
BOB HINKLE, an individual, CHUCK
MCMICHAEL, an individual, RAYMOND
FLISCHEL, an individual, DEAN PETITPREN, an
individual, TERRY SMITH, an individual,
DOUGLAS HYDE, an individual, DOUG
SCHUEMANN, an individual, and BILL
DECKLEVER, an individual,
Plaintiff,
Vv. Case No. 18000010CA
CCC D.R., L.L.C. a limited liability company, CCC
O.P., L.L.C. a limited liability company d/b/a
CORAL CREEK CLUB, ELV ASSOCIATES,
INC., a Massachusetts corporation, and MICHAEL
ZMETROVICH an individual,
Defendants. /
DEFENDANT'S WRITTEN RESPONSE TO
PLAINTIFFS’ FIRST SET OF INTERROGATORIES TO DEFENDANT, CCC O.P.. LLC
Defendant, CCC O.P., L.L.C., by and through its undersigned attorneys and pursuant
to Florida Rule of Civil Procedure 1.350, respond in writing to Plaintiffs’ first set of
interrogatories, and say:
OBJECTIONS
DEFINITIONSTO AND INSTRUCTIONS
Defendant objects to the definitions and instructions contained in the request for
production to the extent that they purport to impose any burden greater than those imposed by
the Florida Rules of Civil Procedure. Specifically, but without limiting the generality of the
foregoing, Defendant objects to:
EXHIBIT 1
A The definition of the word “document” as it exceeds the definition specified in the
rules governing requests for production. Instead of the definition provided by Plaintiffs,
Defendant will use the definitions contained within Rule 1.350, Fla. R. Civ. P., as supplemented
by the definitions of “writings” and “recordings” contained in §90.951, Fla. Stat.
«6
B The attempt to define the words, such as “related to, relating to, 3946, person,”
“persons,” and “communication” to mean anything other than what they are understood to mean
in day-to-day usage.
Cc The attempt to define the terms “and” and “or” to mean anything different from
their meanings in day-to-day speech. Defendants will treat “and” as conjunctive and “or” as
disjunctive.
D. The instructions for compiling and providing a privilege log to the extent they
exceed the definition specified in Rule 1.280, Fla. R. Civ. P. and are premature in that there has
been no determination that the documents requested are otherwise discoverable. See, Gosman
y, Luzinski, 937 So. 2d 293 (Fla. 4" DCA 2006) (objection to discovery request tolls time for
privilege log).
ANSWERS AND OBJECTIONS TO SPECIFIC INTERROGATORIES
1 Please state the name, address and telephone number of the person answering
these Interrogatories, and the person’s official position or relationship with CCC, including the
dates of such position or relationship.
ANSWER: All of the interrogatories are objected to and none is answered.
Undersigned counsel signed the objections.
2 Please identify each individual who had, or presently has, a direct or indirect
ownership interest in the Club, beginning on December 1, 2006. For each individual identified,
please include if the individual still presently possess the ownership interest, whether the
ownership interest is/was direct or indirect, the percentage of ownership interest—initially and
presently, the individual’s full legal name, residence or business address, telephone number,
facsimile number, and email address. Please also identify any and all documents supporting,
referring or related to CCC’s answer to this Interrogatory.
ANSWER: Objection. First, the requested information is not relevant to the subject
matter of the case, nor is it designed to lead to the discovery of admissible evidence. The
essence of this case is the groundless claim of Plaintiffs that they are entitled, under the
terms of the Coral Creek Club Plan, as Amended, to financial information of the owners
and management of the Club, while the Plan itself, attached to the complaint, supports
no such claim. The information sought by this interrogatory will not help answer the
question whether plaintiff have any rights to information under the Plan. Rather, it asks
for the identification of “each individual who had, or presently has, a direct or indirect
ownership interest in the Club, beginning on December 1, 2006.” Second, it is clear
from the pleading that this case is in the nature of an accounting and, as such, this
information is not properly discoverable until Plaintiffs prevail in the case. A party
must prove its entitlement to an accounting before it can obtain discovery of financial
records which would only be relevant if the party was actually entitled to the
accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The
identification of “each individual who had, or presently has, a direct or indirect
ownership interest in the Club, beginning on December 1, 2006” has nothing to do with
proving whether Plaintiffs are entitled to such information, so they would only be
relevant if Plaintiffs prevail on their claims. Third, to the extent this request seeks
information about the personal finances of individuals affiliated with the Club, Article I,
§ 23, of the Florida Constitution protects a person’s financial information unless there is
a compelling reason to order disclosure. Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA.
2005). “[C]ourts will compel production of personal financial documents and
information if shown to be relevant by the requesting party.” Friedman v. Heart
Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003). The production of
financial records that are not relevant can cause irreparable harm to a person forced to
disclose them. Bogert v. Walther, 54 So.3d 607 (Fla. 5th DCA 2011). Thus, “ordinarily
the financial records of a party are not discoverable unless the documents themselves or
the status which they evidence is somehow at issue in the case.” Compton v. West
Volusia Hospital Authority, 727 So.2d 379, 381 (Fla. 5th DCA 1999). The information
regarding an individual’s « ‘ownership interest, whether the ownership interest is/was
direct or indirect, [and] the percentage of ownership interest—initially and presently”
constitutes confidential and personal financial records of individuals affiliated with the
Club. Defendants object on the grounds that the production of confidential files would
violate the individuals’ right to privacy because the documents contain personal
financial information that has no bearing on the claims or defenses in this case and is not
reasonably calculated to lead to the discovery of admissible evidence. The personal
financial records of individuals affiliated with the Club are not relevant to the case or
discoverable. This interrogatory is simply a backhanded way of asking for financial
information that is not relevant and not appropriate at this stage of the proceedings.
3 Please identify each individual presently on the Redemption List, the effective
date of his/her resignation, and his/her current position on the Redemption List. For each
individual identified, please include the individual’s full legal name, residence or business
address, telephone number, facsimile number, and email address. Please also identify any and
all documents supporting, referring or related to CCC’s answer to this Interrogatory.
ANSWER: Objection. First, the requested information is not relevant to the subject
matter of the case, nor is it designed to lead to the discovery of admissible evidence.
This interrogatory seeks personal, confidential information regarding individuals who
are not parties to this action. Plaintiffs have not established particularized need for such
information in this case. The identification of the individual’s full legal name, residence
or business address, telephone number, facsimile number, and email address, is not
relevant to any claims or defenses. The essence of this case is the groundless claim of
Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as
Amended, to financial information of the owners and management of the Club, while
the Plan itself, attached to the complaint, supports no such claim. The information
sought by this interrogatory will not help answer the question whether plaintiff have any
rights to information under the Plan. Rather, it asks for the identification of “each
individual presently on the Redemption List, the effective date of his/her resignation,
and his/her current position on the Redemption List.” Second, it is clear from the
pleading that this case is in the nature of an accounting and, as such, this information is
not properly discoverable until Plaintiffs prevail in the case. A party must prove its
entitlement to an accounting before it can obtain discovery of financial records which
would only be relevant if the party was actually entitled to the accounting. See e.g.
David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The identification of “each
individual presently on the Redemption List, the effective date of his/her resignation,
and his/her current position on the Redemption List” has nothing to do with proving
whether Plaintiffs are entitled to such information, so they would only be relevant if
Plaintiffs prevail on their claims.
4 Please identify the nine (9) non-dues paying Certificated Members (including
defaulted Memberships), who were disclosed as the non-dues paying Certificate Members at
the Club’s annual meeting on March 6, 2017. For each Member identified, please include the
date of payment of the Membership Deposit by each such Member, his/her Admission Effective
Date, the date of resignation (if applicable), the amount and method of calculation of any
arrearage in such Member’s account, the current status of such Member, the Member’s full
legal name, residence or business address, telephone number, facsimile number, and email
address. Please also identify any and all documents supporting, referring or related to CCC’s
answer to this Interrogatory.
ANSWER: Objection. First, the requested information is not relevant to the subject
matter of the case, nor is it designed to lead to the discovery of admissible evidence. The
essence of this case is the groundless claim of Plaintiffs that they are entitled, under the
terms of the Coral Creek Club Plan, as Amended, to financial information of the owners
and management of the Club, while the Plan itself, attached to the complaint, supports
no such claim. The information sought by this interrogatory will not help answer the
question whether plaintiff have any rights to information under the Plan. Rather, it asks
for the identification of “nine (9) non-dues paying Certificated Members (including
defaulted Memberships), who were disclosed as the non-dues paying Certificate
Members at the Club’s annual meeting on March 6, 2017.” Second, it is clear from the
pleading that this case is in the nature of an accounting and, as such, this information is
not properly discoverable until Plaintiffs prevail in the case. A party must prove its
entitlement to an accounting before it can obtain discovery of financial records which
would only be relevant if the party was actually entitled to the accounting. See e.g.
David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The identification of “nine
(9) non-dues paying Certificated Members (including defaulted Memberships), who
were disclosed as the non-dues paying Certificate Members at the Club’s annual
meeting on March 6, 2017” has nothing to do with proving whether Plaintiffs are
entitled to such information, so they would only be relevant if Plaintiffs prevail on their
claims. Third, to the extent this request seeks information about the personal finances of
individuals affiliated with the Club, Article I, § 23, of the Florida Constitution protects a
person’s financial information unless there is a compelling reason to order disclosure.
Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA 2005). “[C]ourts will compel production
of personal financial documents and information if shown to be relevant by the
requesting party.” Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189,
194 (Fla. 2003). The production of financial records that are not relevant can cause
irreparable harm to a person forced to
Preview
Filing # 80753066 E-Filed 11/13/2018 08:19:58 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR CHARLOTTE COUNTY MIKEL ROLLYSON, BILL BARNETT, BILL DECAMP, WILLIAM TOMPKINS, BOB HINKLE, CHUCK MCMICHAEL, RAYMOND FLISCHEL, DEAN PETITPREN, TERRY SMITH, DOUGLAS HYDE, DOUG SCHUEMANN, GARY SLIGAR, JERRY SNIDER, WENDY MELVIN, KEN MILLER, JOHN EHLERT, MICHAEL CALAHAN, DAVID HAYES, RON OLIVER, and BRETTA ARTHUR, Plaintiffs, Case No. 18000010CA Vv. CCC D.R., L.L.C., and CCC O.P., L-L.C., each limited liability companies d/b/a CORAL CREEK CLUB, ELV ASSOCIATES, INC., a Massachusetts corporation, and MICHAEL ZMETROVICH Defendants. DEFENDANTS’ WRITTEN RESPONSE TO PLAINTIFFS’ (SECOND) REQUEST FOR PRODUCTION TO DEFENDANTS Defendants, CCC D.R., L.L.C., CCC O.P., L.L.C. d/b/a CORAL CREEK CLUB, ELV ASSOCIATES, INC., and MICHAEL ZMETROVICH (collectively, “Defendants”), by and through their undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.350, respond in writing to Plaintiffs’ Request for Production, and say: OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS Defendants object to the definitions and instructions contained in the request for production to the extent that they purport to impose any burden greater than those imposed by the Florida Rules of Civil Procedure. Specifically, but without limiting the generality of the foregoing, Defendants object to: A The definition of the word “document” as it exceeds the definition specified in the rules governing requests for production. Instead of the definition provided by Plaintiffs, Defendants will use the definitions contained within Rule 1.350, Fla. R. Civ. P., as supplemented. by the definitions of “writings” and “recordings” contained in §90.951, Fla. Stat. 2 66, B The attempt to define the words, such as “related to, relating to, 6 person,” “persons,” and “communication” to mean anything other than what they are understood to mean in day-to-day usage. Cc The attempt to define the terms “and” and “or” to mean anything different from their meanings in day-to-day speech. Defendants will treat “and” as conjunctive and “or” as disjunctive. D. The instructions for compiling and providing a privilege log to the extent they exceed the definition specified in Rule 1.280, Fla. R. Civ. P. and are premature in that there has been no determination that the documents requested are otherwise discoverable. See, Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4" DCA 2006) (objection to discovery request tolls time for privilege log). RESPONSES AND OBJECTIONS TO SPECIFIC REQUESTS 1 Any and all budgets prepared by the Club for Membership Year 2012-13 and for each Membership Year thereafter in compliance with Article VIILA of the 2009 Plan. RESPONSE: Objection. Plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as ordered by the Court in its Order on Defendant’s Motion for Protective Order dated September 7, 2018 (copy attached as Exhibit 3). Moreover, to add insult to injury, the new discovery requests are essentially duplicates of the original objectionable requests that the Court previously ordered the parties to discuss and add more equally intrusive and objectionable requests. Second, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. Third, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The “budgets prepared by the Club” have nothing to do with proving whether Plaintiffs are entitled to such information, so they would only be relevant if Plaintiffs prevail on their claims. 2. Any and all documents showing each and every Membership Year’s revenues by source (Membership Deposits, annual dues, pro shop, dining room, cart fees, tournaments and events, golf clinics and lessons, and any other sources) for the revenues projected in each such budget. RESPONSE: Objection. Defendants incorporate by reference their objection to the substantially identical interrogatory previously objected to in Defendants’ Written Response to Plaintiffs’ First Request for Production to Defendants filed on March 7, 2018, a copy of which is attached as Exhibit 1. Defendants further incorporate by reference their Motion for Protective Order Staying Discovery of Financial Information and Confidential Membership Information filed March 7, 2018 (copy attached as Exhibit 2). Further, Defendants object based on Plaintiffs’ disobedience of this Court’s Order on Defendant’s Motion for Protective Order dated September 7, 2018 (“Order”) (copy attached as Exhibit 3). This interrogatory is essentially a duplicate of the original objectionable request that the Court previously ordered the parties to discuss. See Exhibit 3.92. 3 Any and all documents showing each and all of the Membership Year’s operating expenses for each budget prepared in compliance with Article VIILA of the 2009 Plan. RESPONSE: See objection to Paragraph 2. 4 Any and all documents showing any operating expenses for each Membership Year excluded from any such budget as not “normal operating expenses.” RESPONSE: See objection to Paragraph 2. 5 Any and all documents showing all payments made by the Club to Mr. Zmetrovich, ELV, UK Trust, their attorneys or agents, or any other Owner or representatives of Ownership, for Membership Year 2012-13 and each Membership Year thereafter, for management services, including but not limited to fees, salaries, benefits, expense reimbursements (e.g., air travel, hotel or other living accommodations, car rental or limousine service, meals, telephone or internet/fax/printing charges), and non-cash payments by the Club (e.g., services or other valuables). RESPONSE: See objection to Paragraph 2. 6 Any and all documents showing the circulation or disclosure of any of the budgets responsive to Request No. | above to Members of the Club, RL Members or to the Members’ Advisory Committee. RESPONSE: Objection. Plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as ordered by the Court in its Order on Defendant’s Motion for Protective Order dated September 7, 2018 (copy attached as Exhibit 3). Moreover, to add insult to injury, the new discovery requests are essentially duplicates of the original objectionable requests that the Court previously ordered the parties to discuss and add more equally intrusive and objectionable requests. Second, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. Third, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So, 2d 84, 86 (Fla. 4th DCA 1974). The “documents showing the circulation or disclosure of any of the budgets responsive to Request No. 1” have nothing to do with proving whether Plaintiffs are entitled to such information and is simply a backhanded way of attempting to obtain discovery of financial records of the Club before they have shown that they are entitled to such information. This information would only be relevant if Plaintiffs prevail on their claims. 7 Any and all documents prepared by or for Defendants that used the annual budgets responsive to Request No. 1 above to calculate annual Membership dues for the upcoming Membership Year or increases in annual Membership dues or show how increases in annual dues were based on that Membership Year’s budget. RESPONSE: See objection to Paragraph 2. 8 Any and all documents reflecting or describing the terms of any operating or capital improvement reserve created in compliance with Article VILI of the 2009 Plan, the date of the creation of the reserve, any amendments thereto, and showing its funding and maintenance, including but not limited to the source or payor of each payment into the reserve, the recipient or payee of each payment made out of the reserve, the date of such payments, and the outstanding balance in the reserve after each payment was made. RESPONSE: See objection to Paragraph 2. 9 Any and all documents showing the utilization, if any, of Membership Deposits to pay operating deficits or accrued operating deficits of the Club in compliance with Article VILI of the 2009 Plan for the time period October 1, 2012, to present, including but not limited to the date, recipient, and amount of each such payment and the outstanding balance of Membership Deposits after each payment was made. RESPONSE: See objection to Paragraph 2. 10. Any and all documents showing the utilization, if any, of Membership Deposits for the time period October 1, 2012, to present. RESPONSE: See objection to Paragraph 2. 11. Any and all documents showing all payments by Defendants to satisfy Senior Mortgage Debt and/or First Mortgage Debt from January 1, 2006 to the present, including the source or payor of each such payment, the date, recipient, and outstanding balance of Senior Mortgage Debt and/or First Mortgage Debt after each payment was made. RESPONSE: See objection to Paragraph 2. 12. Any and all documents showing any repayment of equity (inclusive of a return thereon) to Defendants or their agents, attorneys or other representatives from January 1, 2006, to the present, including without limitation the repayment of $1.3 million to Ownership, identifying the source or payor of each such payment, the date, the recipients, and the amount received by each recipient. RESPONSE: See objection to Paragraph 2. 13. Any all documents distributed or sent by Ownership to Members at annual meetings or otherwise, showing as of that date one or more of the following: a. The level of Certificate Membership; b. The composition of Certificate Membership; The number of dues-paying Members, non-dues-paying Members on the Redemption List, and other Certificate Members; and/or d The manner in which Certificate Membership was calculated. RESPONSE: See objection to Paragraph 2. 14, Any and all documents identifying all Certificate Members of the Club as of the annual meeting on March 6, 2017, including active dues-paying Members, inactive non-dues paying Members on the Redemption List, and any Members who were neither active due-paying Member nor on the Redemption List. RESPONSE: Objection. First, Plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, at the August 20th hearing on Defendants’ Motion for Protective Order (the “Hearing”), the Court was clear that plaintiffs are not entitled to the identity of members of the Club at this time. Judge Porter specifically said to Plaintiffs’ attorney, “You’re entitled to whatever your - - like where the plaintiff is on the redemption list. Specifically going to be plaintiff. Not everybody. You don’t get that whole list of the redemption at this point in time.” Third, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. 15. Any and all documents identifying which RL Members have been redeemed from the Redemption List between March 6, 2017, and the present, the date of each such redemption, and the amount of the Deposit Refund paid to each such redeemed Member. RESPONSE: See objection to Paragraph 2. Aside from changing the date from March 1, 2017 to March 6, 2017, this request asks for substantially the same information as the original objectionable request that the Court previously ordered the parties to discuss. See Exhibit 3, § 2. Further, at the Hearing, the Court was clear that plaintiffs are not entitled to the identity of members of the Club at this time. 16. Any and all documents identifying which of the 224 Certificate Members of the Club as of the annual meeting on March 6, 2017, who were not RL Members have been redeemed since that date by (i) exchanging arrearages in their accounts for their Deposit Refund expectancies, or (ii) giving up their rights to a deposit Refund in exchange for a release of their ongoing liability for annual fees and assessments, or (iii) turning in their Membership Certificates for resale by the Club, including the terms of that return of Membership Certificate to the Club, and all communications between Defendants or the Club and any such Members relating to these transactions. RESPONSE: See objection to Paragraph 2. This request asks for more extensive information than the original objectionable request that the Court previously ordered the parties to discuss. See Exhibit 3, 2. Additionally, Defendants object on the grounds that the request is vague and ambiguous because the significance of “redeemed” as used in the context of the request is not defined. Under the terms of the Plan, there have been no such redemptions. Finally, Defendants object on the grounds that the Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of the Club at this time. 17. Any and all documents showing or relating to Robert Miles’ return of his Membership Certificate to the Club for resale and the terms thereof, including but not limited to the arrearage in Robert Miles’ Member account at the time Robert Miles returned his Membership Certificate, the basis for that arrearage, any release or forgiveness of future obligations of Member Miles for annual dues or assessments, any release by Member Miles of any future claim to a Deposit Refund, and all communications between Defendants and Robert Miles relating to the terms of this transaction. RESPONSE: See objection to Paragraph 2. 18. Any and all documents discussing or relating to whether the Redemption rights of Plaintiffs and/or other RL Members were vested and became fixed as of the date they resigned, and/or whether those rights can thereafter be changed via amendments to the 2009 Plan, or otherwise, without their express approval. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, to the extent it seeks “any and all documents” the request is overbroad and unduly burdensome. Third, to the extent that it seeks documents prepared by any third party on behalf of or at the direction of Defendants or seeks communications between Defendants and any third party, it necessarily seeks documents protected by the attorney- client privilege. Fourth, Defendants object on the grounds that the request is vague and ambiguous because the significance of “vested” and “fixed” as used in the context of the request is not defined. 19. Any and all documents sent by mail or email to any RL Member by Defendants or anyone else on behalf of the Club between March 6, 2017, and February 12, 2018, reflecting or relating to proposed amendments to the 2009 Plan and/or to the procedure for approval of such amendments. If the same document was sent to multiple RL Members, a single copy of the identical document may be produced, together with a list identifying all RL Members to whom the document was sent. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants 10 before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, to the extent it seeks “any and all documents” the request is overbroad and unduly burdensome. Third, the identity of Members of the Club is confidential. Defendants object on the grounds that the production of confidential files would violate the Members’ rights to privacy because the documents contain personal information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of the Club at this time. 20. All other documents mailed or emailed to any RL Member by Defendants or anyone else on behalf of the Club between March 6, 2017, and February 12, 2018, reflecting or relating to the RL Member’s position on the Redemption List, Deposit Refunds, redemption rights under the 2009 Plan, or possible changes thereto. RESPONSE: See objection to Paragraph 19. 21. Any and all documents mailed or emailed to an active Certificate Member by Defendants or anyone else on behalf of the Club between March 6, 2017, and February 12, 2018 reflecting or relating to proposed amendments to the 2009 Plan and/or to the procedure for approval of such amendments. If the same document was sent to multiple Members, a single copy of the identical document may be produced, together with a list identifying all Members to whom the document was sent. RESPONSE: See objection to Paragraph 19. 22. Any and all documents mailed to an RL Member or an active Certificate Member which were returned by the Postal service for lack of proper address, and all documents emailed to an RL Member or an active Certificate Member which were not transmitted for lack of a 11 proper email address, in both instances identifying the Member who failed to receive the intended communication. RESPONSE: See objection to Paragraph 19. 23. The mailing list or contacts list used by Ownership to circulate its proposed amendments of the 2009 Plan to Members or RL Members on or about November 20, 2017, or thereafter. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, the identity of Members of the Club is confidential. Defendants object on the grounds that the production of confidential files would violate the Members’ rights to privacy because the documents contain personal information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of the Club at this time. Third, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. 24. The mailing list or contacts list used by Ownership to circulate its revised 12 proposed amendments to the 2009 Plan and voting procedures to Members or RL Members on or about January 23-24, 2018, or thereafter. RESPONSE: See objection to Paragraph 23. 25. All proxies submitted to the Club by Members or RL Members voting on the Amended 2018 Plan, including without limitation any proxies which were not counted for any reason. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, the identity of Members of the Club and the way in which each Member voted is confidential. Defendants object on the grounds that the production of confidential files would violate the Members’ rights to privacy because the documents contain personal information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of the Club at this time. Third, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. 26. All ballots submitted by Members or RL Members voting in person on the 13 Amended 2018 Plan on February 12, 2018, including without limitation any ballots which were not counted for any reason. RESPONSE: See objection to Paragraph 25. 27. The ledger or record made by John Payne recording the vote count on February 12, 2018, RESPONSE: See objection to Paragraph 25. 28. Any and all documents recording, reflecting, or relating to the position taken by the Advisory Committee or any of its members during the period from January 1, 2018 through February 12, 2018 as to the proposed amendments to the 2009 Plan, including without limitation whether the Advisory Committee members unanimously supported and endorsed the proposed. amendments and whether/how the members’ positions changed during that time frame. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, to the extent it seeks “any and all documents” the request is overbroad and unduly burdensome. Third, the identity of Members of the Club and the way in which each Member voted is confidential. Defendants object on the grounds that the production of confidential files would violate the Members’ rights to privacy because the documents contain personal information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the Court was clear at the Hearing that plaintiffs are not entitled to the identity of members of the Club at this time. Fourth, Defendants object on the grounds that the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the 14 groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of the Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. 29. Any and all documents from December 1, 2017, to the present, reflecting or relating to communications between Mr. Zmetrovich or any other member of Ownership, and any member of the Cross-Der-Urban Committee appointed on December 29, 2017. RESPONSE: Sce objection to Paragraph 2. 30. Any and all documents exchanged, or documents relating to communications between, any of the Defendants and the Advisory Committee or any member of the Advisory Committee between March 6, 2017, and February 12, 2018, relating to proposed amendments to the 2009 Plan and/or to the procedure for approval of such amendments. RESPONSE: See objection to Paragraph 2. This request asks for substantially the same information, except within a specified timeframe, as the original objectionable request that the Court previously ordered the parties to discuss. See Exhibit 3, 4 2. 31. Any and all documents exchanged by or between any of the Defendants between March 6, 2017, and February 12, 2018, reflecting or relating to proposed amendments to the 2009 Plan and/or to the procedure for approval of such amendments. RESPONSE: See objection to Paragraph 2. This request asks for substantially the same information, except within a specified timeframe, as the original objectionable request that the Court previously ordered the parties to discuss. See Exhibit 3, {| 2. 32. Any and all documents identifying each owner of the Club, and the respective 15 ownership interests of each, including specifically the ownership interest of ELV, Mr. Zmetrovich and the other owner (referred to herein as “UK Trust”) that Mr. Zmetrovich has identified as the principal owner of the Club. RESPONSE: Objection. First, plaintiffs did not meet and confer with Defendants before submitting new discovery requests, as required by the Court’s Order. See Exhibit 3. Second, to the extent it seeks “any and all documents” the request is overbroad and unduly burdensome. Third, the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club and confidential information of Club Members, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this request will not help answer the question whether plaintiff have any rights to information under the Plan. Rather, it asks for “all documents identifying each owner of the Club, and the respective Ownership interests of each.” Third, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The “documents identifying each owner of the Club, and the respective Ownership interests of each” have nothing to do with proving whether Plaintiffs are entitled to such information, so they would only be relevant if Plaintiffs prevail on their claims. Fourth, to the extent this request seeks 16 information about the personal finances of Mr. Zmetrovich and other members of management, Article I, § 23, of the Florida Constitution protects a person’s financial information unless there is a compelling reason to order disclosure. Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA 2005). “[C]ourts will compel production of personal financial documents and information if shown to be relevant by the requesting party.” Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003). The production of financial records that are not relevant can cause irreparable harm to a person forced to disclose them. Bogert v. Walther, 54 So.3d 607 (Fla. 5th DCA 2011). Thus, “ordinarily the financial records of a party are not discoverable unless the documents themselves or the status which they evidence is somehow at issue in the case.” Compton v. West Volusia Hospital Authority, 727 So.2d 379, 381 (Fla. 5th DCA 1999), “[A]Il documents identifying each owner of the Club, and the respective ownership interests of each including specifically the ownership interest of ELV, Mr. Zmetrovich and the other owner” constitute confidential and personal financial records of individuals affiliated with the Club. Defendants object on the grounds that the production of confidential files would violate those rights to privacy because the documents contain personal financial information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. The personal financial records of the Defendants are not relevant to the case or discoverable. 33. Any and all documents reflecting or relating to contracts or agreements entered into by Mr. Zmetrovich or ELV with the Club, other Defendants, or any other person, relating to the Mr. Zmetrovich’s or ELV’s ownership or equity interest in the Club or their management responsibilities at the Club. 17 RESPONSE: See objection to Paragraph 2. 34. Any and all documents reflecting communications among any members of Ownership relating to proposed amendments to the 2009 Plan. RESPONSE: See objection to Paragraph 2. /s/ Edward A. Marod EDWARD A. MAROD Florida Bar No. 238961 emarod@gunster.com dpeterson@gunster.com eservice@, gunster.com EMILY J. CHASE Florida Bar No. 1004117 echase@gunster.com GUNSTER, YOAKLEY & STEWART, P.A. 777 South Flagler Drive, Suite 500 East West Palm Beach, FL 33401-6194 Telephone: (561) 650-0660 Facsimile: (561) 655-5677 Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY the foregoing was submitted on this 13th day of November, 2018, for filing to the Clerk of the Courts by using the Florida Courts E-Filing Portal which will send a Notice of Electronic Filing to the following: /s/ Edward A. Marod EDWARD A. MAROD WPB_ACTIVE 9001947.2 18 Filing # 68940069 E-Filed 03/07/2018 03:27:58 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR CHARLOTTE COUNTY MIKEL ROLLYSON, an individual, BILL BARNETT, an individual, BILL DECAMP, an individual, WILLIAM TOMPKINS, an individual, BOB HINKLE, an individual, CHUCK MCMICHAEL, an individual, RAYMOND FLISCHEL, an individual, DEAN PETITPREN, an individual, TERRY SMITH, an individual, DOUGLAS HYDE, an individual, DOUG SCHUEMANN, an individual, and BILL DECKLEVER, an individual, Plaintiff, Vv. Case No. 18000010CA CCC D.R., L.L.C. a limited liability company, CCC O.P., L.L.C. a limited liability company d/b/a CORAL CREEK CLUB, ELV ASSOCIATES, INC., a Massachusetts corporation, and MICHAEL ZMETROVICH an individual, Defendants. / DEFENDANT'S WRITTEN RESPONSE TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES TO DEFENDANT, CCC O.P.. LLC Defendant, CCC O.P., L.L.C., by and through its undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.350, respond in writing to Plaintiffs’ first set of interrogatories, and say: OBJECTIONS DEFINITIONSTO AND INSTRUCTIONS Defendant objects to the definitions and instructions contained in the request for production to the extent that they purport to impose any burden greater than those imposed by the Florida Rules of Civil Procedure. Specifically, but without limiting the generality of the foregoing, Defendant objects to: EXHIBIT 1 A The definition of the word “document” as it exceeds the definition specified in the rules governing requests for production. Instead of the definition provided by Plaintiffs, Defendant will use the definitions contained within Rule 1.350, Fla. R. Civ. P., as supplemented by the definitions of “writings” and “recordings” contained in §90.951, Fla. Stat. «6 B The attempt to define the words, such as “related to, relating to, 3946, person,” “persons,” and “communication” to mean anything other than what they are understood to mean in day-to-day usage. Cc The attempt to define the terms “and” and “or” to mean anything different from their meanings in day-to-day speech. Defendants will treat “and” as conjunctive and “or” as disjunctive. D. The instructions for compiling and providing a privilege log to the extent they exceed the definition specified in Rule 1.280, Fla. R. Civ. P. and are premature in that there has been no determination that the documents requested are otherwise discoverable. See, Gosman y, Luzinski, 937 So. 2d 293 (Fla. 4" DCA 2006) (objection to discovery request tolls time for privilege log). ANSWERS AND OBJECTIONS TO SPECIFIC INTERROGATORIES 1 Please state the name, address and telephone number of the person answering these Interrogatories, and the person’s official position or relationship with CCC, including the dates of such position or relationship. ANSWER: All of the interrogatories are objected to and none is answered. Undersigned counsel signed the objections. 2 Please identify each individual who had, or presently has, a direct or indirect ownership interest in the Club, beginning on December 1, 2006. For each individual identified, please include if the individual still presently possess the ownership interest, whether the ownership interest is/was direct or indirect, the percentage of ownership interest—initially and presently, the individual’s full legal name, residence or business address, telephone number, facsimile number, and email address. Please also identify any and all documents supporting, referring or related to CCC’s answer to this Interrogatory. ANSWER: Objection. First, the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this interrogatory will not help answer the question whether plaintiff have any rights to information under the Plan. Rather, it asks for the identification of “each individual who had, or presently has, a direct or indirect ownership interest in the Club, beginning on December 1, 2006.” Second, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The identification of “each individual who had, or presently has, a direct or indirect ownership interest in the Club, beginning on December 1, 2006” has nothing to do with proving whether Plaintiffs are entitled to such information, so they would only be relevant if Plaintiffs prevail on their claims. Third, to the extent this request seeks information about the personal finances of individuals affiliated with the Club, Article I, § 23, of the Florida Constitution protects a person’s financial information unless there is a compelling reason to order disclosure. Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA. 2005). “[C]ourts will compel production of personal financial documents and information if shown to be relevant by the requesting party.” Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003). The production of financial records that are not relevant can cause irreparable harm to a person forced to disclose them. Bogert v. Walther, 54 So.3d 607 (Fla. 5th DCA 2011). Thus, “ordinarily the financial records of a party are not discoverable unless the documents themselves or the status which they evidence is somehow at issue in the case.” Compton v. West Volusia Hospital Authority, 727 So.2d 379, 381 (Fla. 5th DCA 1999). The information regarding an individual’s « ‘ownership interest, whether the ownership interest is/was direct or indirect, [and] the percentage of ownership interest—initially and presently” constitutes confidential and personal financial records of individuals affiliated with the Club. Defendants object on the grounds that the production of confidential files would violate the individuals’ right to privacy because the documents contain personal financial information that has no bearing on the claims or defenses in this case and is not reasonably calculated to lead to the discovery of admissible evidence. The personal financial records of individuals affiliated with the Club are not relevant to the case or discoverable. This interrogatory is simply a backhanded way of asking for financial information that is not relevant and not appropriate at this stage of the proceedings. 3 Please identify each individual presently on the Redemption List, the effective date of his/her resignation, and his/her current position on the Redemption List. For each individual identified, please include the individual’s full legal name, residence or business address, telephone number, facsimile number, and email address. Please also identify any and all documents supporting, referring or related to CCC’s answer to this Interrogatory. ANSWER: Objection. First, the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. This interrogatory seeks personal, confidential information regarding individuals who are not parties to this action. Plaintiffs have not established particularized need for such information in this case. The identification of the individual’s full legal name, residence or business address, telephone number, facsimile number, and email address, is not relevant to any claims or defenses. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this interrogatory will not help answer the question whether plaintiff have any rights to information under the Plan. Rather, it asks for the identification of “each individual presently on the Redemption List, the effective date of his/her resignation, and his/her current position on the Redemption List.” Second, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The identification of “each individual presently on the Redemption List, the effective date of his/her resignation, and his/her current position on the Redemption List” has nothing to do with proving whether Plaintiffs are entitled to such information, so they would only be relevant if Plaintiffs prevail on their claims. 4 Please identify the nine (9) non-dues paying Certificated Members (including defaulted Memberships), who were disclosed as the non-dues paying Certificate Members at the Club’s annual meeting on March 6, 2017. For each Member identified, please include the date of payment of the Membership Deposit by each such Member, his/her Admission Effective Date, the date of resignation (if applicable), the amount and method of calculation of any arrearage in such Member’s account, the current status of such Member, the Member’s full legal name, residence or business address, telephone number, facsimile number, and email address. Please also identify any and all documents supporting, referring or related to CCC’s answer to this Interrogatory. ANSWER: Objection. First, the requested information is not relevant to the subject matter of the case, nor is it designed to lead to the discovery of admissible evidence. The essence of this case is the groundless claim of Plaintiffs that they are entitled, under the terms of the Coral Creek Club Plan, as Amended, to financial information of the owners and management of the Club, while the Plan itself, attached to the complaint, supports no such claim. The information sought by this interrogatory will not help answer the question whether plaintiff have any rights to information under the Plan. Rather, it asks for the identification of “nine (9) non-dues paying Certificated Members (including defaulted Memberships), who were disclosed as the non-dues paying Certificate Members at the Club’s annual meeting on March 6, 2017.” Second, it is clear from the pleading that this case is in the nature of an accounting and, as such, this information is not properly discoverable until Plaintiffs prevail in the case. A party must prove its entitlement to an accounting before it can obtain discovery of financial records which would only be relevant if the party was actually entitled to the accounting. See e.g. David v. Tansill, 297 So. 2d 84, 86 (Fla. 4th DCA 1974). The identification of “nine (9) non-dues paying Certificated Members (including defaulted Memberships), who were disclosed as the non-dues paying Certificate Members at the Club’s annual meeting on March 6, 2017” has nothing to do with proving whether Plaintiffs are entitled to such information, so they would only be relevant if Plaintiffs prevail on their claims. Third, to the extent this request seeks information about the personal finances of individuals affiliated with the Club, Article I, § 23, of the Florida Constitution protects a person’s financial information unless there is a compelling reason to order disclosure. Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA 2005). “[C]ourts will compel production of personal financial documents and information if shown to be relevant by the requesting party.” Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003). The production of financial records that are not relevant can cause irreparable harm to a person forced to