Legal Document: Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

On August 24, 2021 a Motion to Compel - PRODUCTION OF IMPROPERLY WITHHELD DOCUMENTS BY DEFENDANT ON THE BASIS OF PRIVILEGE AND FOR AN IN CAMRA INSPECTIONParty: Plaintiff Strike X LLC was filed involving a dispute between Strike C, Llc, Strike X Llc, and Gulfstream Park Racing Association Inc, Stronach, Belinda, Village At Gulfstream Park, Llc, for Contract and Indebtedness in the District Court of Broward County.

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Filing# 159872073 E-Filed 10/24/2022 08:51:38 PM

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY,
FLORIDA

STRIKE X, LLC, CASE NO.: CACE-21-016240

Plaintiff,
VS.

THE VILLAGE AT GULFSTREAM
PARK, LLC,

Defendant.
i

PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF IMPROPERLY WITHHELD
DOCUMENTS BY DEFENDANT ON THE BASIS OF PRIVILEGE
AND FOR AN IN CAMERA INSPECTION
Strike X,
Plaintiff, LLC ("StrikeX") by and through undersigned counsel and pursuant to

Rule 1.280 of the Florida Rules of Civil Procedure hereby files its Motion to Compel Defendant

The Villageof Gulfstream Park, LLC ("Defendant")to produce documents improperlywithheld

on the basis of privilegeand for In Camera inspectionby this Court, and in support thereof states

as follows:

I. Preliminary Statement

Defendant served its privilegelog containingnearly four hundred documents withheld by

Defendant on the purportedbasis of attorney-client See Exhibit A. To date, Defendant
privilege.

has produced thousands of documents allegedlyresponsiveto Plaintiff's requests, however, the

lion's share of the documents produced by Defendant are either non-responsive or duplicative.

Noticeably absent from Defendant's productionare internal business communications duringthe

most crucial time period leading up to the Defendant's blatant breach of the Lease Agreement.

Once Defendant served its privilegelog,it became obvious that Defendant buried these critical

communications among the nearly400 other documents contained in its 5-point-font
privilegelog.
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34?H FLOOR ?MIAMI, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/24/2022 08:51:38 PM.****
As a preliminarymatter, Defendant's privilegelog woefully fails to meet the requirements

under Fla. R. Civ. P. 1.280(b)(6)and thereby is deficient as a matter of law. It is repletewith

and generic assertions of privilege,
boilerplate lackingin any substantive detail to enable Plaintiff

to evaluate the claim of privilege.Further,Defendant fails to include the capacityof a!!I of the

of these allegedlyprotectedcommunications, such that Plaintiff is left with
authors or recipients

the impossible task oftrying to identifythe role of each and every one of the over fiftv recipients

that Defendant claims needed to know the purportedlegaladvice.

Along these same lines,on October 21, 2022, Defendant produced two additional privilege

logs related to the production from non-party, Alan Shaw, which suffer from the same infirmities

as Defendant's initial related
privilege to its own production.See Composite Exhibit B.

Worse yet, Defendant's privilegelogs contain communications that are demonstrably not

communications in which no a#orney is involved Defendant likewise

all emails in which Defendant's in-house counsel, Marie
broadly asserted privilegeon virtually

Long, was a recipient(even if she was merely copied on the emails)without any indication that

the communication was for purposes ofrenderingor obtaininglegaladvice. The law is well-settled

that the mere presence of an attorney on an email does not make it privileged.Indeed,

communications with in-house counsel are subjected to a heightened scrutiny as courts

acknowledge that company's in-house counsel routinelyact as mere business advisors and not in

furtherance of renderinglegaladvice such that those communications are generallynot protected.

In view of Defendant's clearlydeficient privilegelogs and improper assertion of privilege

on discoverable communications, Plaintiffrespectfully
requests that this Court compel production

ofthose communications which on their face are not privileged,
and conduct an in camera review

for the balance of the documents withheld by Defendant on the basis of privilege.

2
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
II. Legal Argument

A. Defendant's PrivilegeLog Does Not Comply with the Requirements under Florida
Law

Florida Rule o f Civil Procedure 1.280(b)(6)requirespartieswho withhold privileged

documents to describe the nature of the documents "in a manner that, without revealing

information itself privilegedor protected,wit! enable other partiesto assess the applicability
of

the privilege or protection."See Fla. R. Civ. P. 1.280(b)(6)(emphasis added). Here, the

of conclusoryinvocations of
provided in Defendant's privilegelogs consist entirely
descriptions

privilege(e.g.,"attorney client email chain discussing legal advice") without any meaningful

information whatsoever to allow Plaintiff to assess the applicability
o f the asserted privilege.

At its privilegeprotects confidential communications
foundation, the attorney-client

between a lawyer and his client. In re Commitment of Sutton, 884 So. 2d 198, 205 (Fla.2d DCA

2004). "The burden of establishing privilegerests on the party claiming it."
the attorney-client S.

Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla.1994).The Florida Supreme Court has

set forth "the following criteria to judge whether a corporation'scommunications are protectedby

the attorney-client
privilege:"

(1) the communication would not have been made but for the contemplation of
legalservices;

(2) the employee making the communication did so at the direction of his or her
corporate superior;

(3)the superiormade the request ofthe employee as part ofthe corporation's
effort
to secure legaladvice or services;

(4) the content of the communication relates to the legalservices being rendered,
and the subjectmatter of the communication is within the scope of the employee's
duties;

(5)the communication is not disseminated beyond those persons who, because of
the corporate structure, need to know its contents.

3
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
see Universal City Dev. Partners, Ltd. v. Ride
Id.-, & Show Eng'g, Inc.,130ER.D. 688,690 *LD.
Fla. that "[t]heattorney-client
2005) (explaining is only available when
privilege all the elements

are present").Undoubtedly, Defendant has failed to establish the communications are in fact

subjectto the claimed privilegeas none of the requiredelements are met.

The standard for testing log is whether, as
the adequacy of a privilege to each document, it

sets forth specific facts that,if credited,would suffice to establish each element ofthe privilegeor

immunity claimed. See CSX Transportation,Inc. v. Admiral Insurance Co., 1995 N+L 855411, *3

(M.D. Fla. 1995). In that case, the court held that even if a privilegelog entry is sufficient to

if it does not adequately set forth facts showing all elements of the
invoke the claimed privilege,

claimed privileges,the privilegelog entry is deemed inadequate.
U. at 5. The focus is on

the specific portionof the log,and not on conclusoryinvocations of the privilegeor
descriptive

work-product rule,since the burden ofthe party withholdingthe documents cannot be "discharged

by mere conclusoryor ipsedixit assertions." Id. at 3. Information about the between
relationship

individuals listed in the log and the litigating and the
the maintenance of confidentiality,
parties,

reasons for any disclosures of the document to individuals not normally within the privileged

is usuallysuppliedby
relationship affidavit or Id.
deposition. If the party invoking the privilege

does not provide sufficient detail to demonstrate fulfillment of all the legalrequirements for

application the claim will be rejected.
of the privilege, Id.

When the documents or communications withheld involve email chains, each individual

1
Because Florida's Rules ofCivil Procedure were patternedafter the federal rules,and the specific
rule at issue is identical to the correspondingfederal rule, it is appropriate to rely
on federal decisions when construingFlorida's rule. See Gleneagle Ship Management v.
Leondakos, 602 So. 2d 1282, 1283-84 (Fla.1992)("we look to the federal rules and decisions for
guidance in interpreting
Florida's civil procedurerules").

4
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
email in the email stringmust be listed on the log.US. ex rel. Baklid-Kunz v. HalffaxHosp. Med.

Ctr.,No. 2012 WL 5415108, at *5 (M.D. Fla. Nov. 6, 2012) ("Simply

because technology has made it possibleto physicallylink these separate communications (which

in the past would have been separate memoranda) does not justifytreatingthem as one

communication and denying the demanding party a fair opportunityto evaluate privilegeclaims

raised by the producing party.")(quotingIn re Fioxx, 501 F. Supp. 2d 789, 812 (E.D. La.

2007));MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 195 F.R.D. 550,591 n. 175 (S.D.

Fla. 2013).

Here, Defendant undoubtedly fails to set forth sufficient facts that would allow Plaintiffto

Nearlv all of the documents are described as
of the claimed privilege.
assess the applicability

"Attorney Client email chain discussinglegaladvice regardingthe 1700 Lease." See e.g 00060942.

are inadequateon
These descriptions their face to allow Plaintiff to evaluate whether the asserted

is applicable.In
privilege CSX Transportation,Inc., supra, the court found that nearlyidentical

entries insufficient as a matter of law. There, the documents on the privilegelog were described

as follows: "[clonfidential communication for the purpose ofprovidinglegaladvice
attorney-client

PA
concerningenvironmental claims made in connection with Berks Associates, Douglassville,

site." CSX Transportation,Inc., 1995 WL 855421 at 3. Even as modified to include the following

information: "re:draft letter to USEPA concerning joint defense concerning environmental

claims...,"the court held that the entries were insufficient as a matter of law. U. The court reasoned

that "[a]tbest such descriptionsstate, but do not establish,that the communication is related to

information obtained by the attorney for the purpose of providinglegaladvice." Id.

and genericdescriptions,
Likewise, here, the privilegelogs,in toto, consist of boilerplate

such as "Attorney Client email chain discussinglegaladvice regardingthe 1700 Lease." See Ex.

A. These "descriptions" fail to establish that each communication
entirely is related to information

5
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
obtained by the attorney for the purpose of providing legaladvice. Defendant's privilegelogs do

not, as is "describe the nature of the documents... in a manner
required, that... will enable other

of the privilege,"
partiesto assess the applicability but rather provides boiler plate,nonspecific,

of the documents
and genericdescriptions it maintains are protectedby attorney client privilege.

Fla. R. Civ. P. There
1.280(b)(6). is no subjectline of the email communication, no document

no specificdescriptionof the subjectmatter of the communication, and no explanation of
titles,

the purposes for which the document was prepared or communicated. See e.g Ex. A, Bates No.

00060942; Bates No. 00060934; Bates No. 00060879. Defendant's other descriptions
are equally

See id e.g., Bates
less descriptive.
or substantially No. 00059348 ("Attorney client Attorney

Client[]notes regarding work to be done on Building 1700"); Bates No. 00060231 ("Internal

memorandum on master plan).Additionally,although it appears that most, if not all,of the

documents listed on the privilegelog are email communications, Plaintiff is unable to determine

whether Defendant has specifically
identified each email in the corresponding email chain

of the privilege.
renderingit impossible to assess the applicability

of any of the authors
Moreover, Defendant's privilegelog does not indicate the capacities

or of the withheld documents. "A party objectingto productionon grounds of privilege
recipients

must provide a log 'that includes for each separate document [withheld],the authors and their

the recipients
capacities, (includingcopy recipients) the subjectmatter of the
and their capacities,

document, the purpose for its production,and a detailed,specificexplanationofwhy the document

is privilegedor immune from discovery. Andrews, 2008
,,.
WL 11336310, at *4 (quoting Pitts,

2008 WL 2229524, at *4).
Given the deficiencies in Plaintiff' s privilegelog, Plaintiff is entitled to an in camera

inspectionto determine whether such documents legitimately
qualifyas privilegedmaterial. See

Town Ctr. @Boca Raton Tr. v. Hirokawa, 789 So. 2d 1230, 1231-32 (Fla.4th DCA 2001) ("when
6
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
work product and attorney-client
privilegesare asserted, the trial court must hold an in-

camera inspectionof the discovery material at issue in order to rule on the applicability
of

Marshalls of M.A., Inc. v. Witter, 1%6 So. 3d 570, 572-73 (Fla.3d
the privilege."); DCA 2016)

("When a Florida law requiresthat the
party asserts the work-product privilege, trial court hold

an in-camera inspectionof the discoverymaterial at issue in order to rule on the applicability
of

the privilege.").

B. Multiple categories of documents identified on the privilegelog are demonstrably
not privileged and must be produced.

It is apparent, despitethe overwhelming deficiencies in the privilege that there
log itself,

are several categoriesof documents that are clearly not privileged and were improperly

withheld. As to these submits
Plaintiff respectfully
categories, that there is no necessityfor a in

camera review and this Court should compel Defendant to produce these documents without

further delay. Further, Defendant redacted certain documents without even listingthese

2
documents on its privilegelog or assertingany claim of privilege. Thus any such claim of

privilegehas been waived and the documents should be produced. See UG Ins. Corp. of Am. v.

Johnson, 799 So. 2d 339, 342 (Fla.4th Dist. App. 2001).

i. Communication in which No Attorney is Involved

Defendant withheld a large number of documents that are clearly not subject to

privilegebecause
the attorney-client no attorney is involved in the communication. It is a basic

requirementthat in order for a communication to be "for purposes of providinglegaladvice" there

needs to be an attorney as part of the communication. Here, Defendant, without any valid basis,

2
Plaintiff discovered that the followingredacted documents that listed on Defendant's privilegelog:
DEFENDANTS018022; DEFENDANTS016773- 016774; DEFENDANTS004367; DEFENDANTS004369 - 004372;
DEFENDANTS004374; DEFENDANTS004379 -004380; DEFENDANTS004382 - DEFENDANTS004391;
DEFENDANTS004393 - 004402; DEFENDANTS004416 - 004423; DEFENDANTS004441 - 004445;
DEFENDANTS004446; DEFENDANTS004582.

7
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
claims privilegeclaims privilegeto internal communications between its non-attorney personnel.

For example, Defendant withheld an email between Belinda Stronach (an officer of the Stronach

Group), Alan Shaw (Defendant's former Senior Vice President of U.S. Real Estate),and Andrew

on March 2, 2021. See Ex. A, Bates 7525516-00008025. There
Gerth (Defendant'sarchitect) is

no attorney on the communication and no basis to claim This
privilege. is one ofmany examples

apparent from the face of Defendant's privilege logs. See also, e.g., Ex. A, Bates No.

7525516 00008022 (email between Andrew Gerth and Alan Shaw dated March 2, 2021); Ex. A
Bates 7525516 00008021 (emailbetween Colin Chapin (CFO of Stronach Group) and Alan Shaw

dated March 1,2021); Ex. A, Bates No. 7525516-00059347 (Email between Belinda Stronach and

Thad Miguez (SeniorProjectManager of Stronach Group) dated March 8, 2021).

Defendant either entirely
withheld critical emails between company personnel(withoutany

attorney involved),or improperly redacted their content, as demonstrated below.

Front: Chapin, Colin
Sent: Saturday, February 27,2021 12:19 PM
To: Shaw. Alan
Subject: RE: Projected Revenue Growth New Strike 10 Facility 2-22-21.xlsx
-

Attachments: 1700 Bldg interior fitout speculated cost

Alan,
Good afternoon.
For bo me coritext re the $8 milliori number Belirida quoted, see th e attached mail from Andrew and an excerpt from an
exchange l had with herearl erinthe week where she hadposed a numberof questions:
2.Re $1.4 miltion in Tenant Improvements to be buitt out by brother's construction company, can I get o
breakdown of the budget? As it's the brother's construction company doing the work we wiN want to double check
thot we ore getting the fui} vo]ue for this work.
3.We should olso get the breakdown of the $1,2 million of renovotions the tenont soy they ore paying for on top of
our $1.4 million. We wont them to hove skin in the game.

Colin

8
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
3
See Exhibit B, Bates No. AS-002457.

These communications withheld by Defendant under the guise of privilegeare

demonstrably not privileged.Accordingly, this Court need not conduct an in camera review to

were improperly withheld
determine that these emails are not subjectto any applicableprivilege,

by Defendant, and should be produced to Strike forthwith.

ii. Defendant Improperly Invoked Privilege on Communications Where In-
House Counsel is Merely Copied and is One of Many Recipients.

privilegeon a litanyof communications in
Similarly,Defendant asserts attorney-client

which in-house counsel, Marie Long, is a recipient(among many others)even if she is merely

copied on the communication. An exemplar of Defendant's improper assertions of privilegeis

contained below in which the communication is between two company officers (ColinChapin and

Alan Shaw) and Marie Long happens to be copied:

., U
From: C Celln
Iiar,n.
t/nt: Wedne
Cc: Long. ?A.,r,c < Marie.Longghtronachgroup.corn >
Subjett: R[: Strike 10 Projectiuris

C
Fr/m: Shaw. AI/.,
Sent: Tuesday. Febiu.uv 23.2021 15:07
To: Chapin. Colin
Ce= Lorig, Ivldrie
Subject: Re= Strike 10 P/ojeitior,s

4
See Exhibit B, Bates No. AS-002557-59.'

Ms. Long is not even communicating in the above email and, thus, is certainlynot

3
This email was not listed on Defendant's initial privilegelog or otherwise produced even though Plaintiffs corporate
(Colin Chapin)
representative is on the correspondence. It was produced, in redacted form, as part of Alan Shaw' s

production.
4
Same as Footnote No. 3 above.
9
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
"renderinglegaladvice", yet Defendant still withheld the email on the basis ofpurportedprivilege.

In doing so, Defendant is clearlyattemptingto immunize critical business communications from

discovery by simply copying in-house counsel on the email.

As courts acknowledge the risk of corporationsusing such a claim to shield documents

from discovery,a heightenedscrutinyis appliedin determiningwhether a party claimingattorney-

client privilegewith its in-house counsel has met its burden. S Bell Tel. & Tel. Co. v. Deason, 632

So. 2d 1377, 1383 (Fla.1994) ("Thus,to minimize the threat of corporationscloakinginformation

privilegein order to avoid discovery,claims of the privilegein the
with the attorney-client

corporate context will be subjectedto a heightened level of scrutiny.").
Indeed,

To satisfythe burden of establishing the privilege,
the party assertingthe privilege
must make an "evidentiaryshowing based on competent evidence," rather than
"mere conclusory or ipse dixit assertions." The party assertingthe privilegemust
provide the court with underlying facts demonstratingthe existence ofthe privilege,
which may be accomplished by an affidavit. "Unless the affidavit is preciseto bring
the document within the rule, the Court has no basis on which to weigh the

applicabilityof the claim of privilege.An improperly asserted claim of privilege
..
isno claim of privilege at all."... the party asserting
the attorney-client
privilege
must prove that the privilegeapplies"by way of evidence, not justargument."

Abraham v. MHM Solutions, Inc, 2016 WL 1730592, at *6 (Fla.Cir.Ct.
May 02, 2016) (internal

quotationsand citations omitted)(emphasis added).

It is well settled that not every communication from a lawyer to a client acquires

privilegedstatus.
attorney/client To establish a privilege,a corporationmust prove: (1) the

communication would not have been made but for the contemplation of legalservices; (2) the

employee's corporate superiordirected him or her to make the communication; (3) the superior

made the request of the employee as part of the corporation's
effort to secure legaladvice or

services;(4)the communication relates to the legalservices being rendered, and the subjectmatter

of the communication is within the scope of the employee's duties;and (5) the communication

10
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
is not disseminated beyond those who need to know due to the corporate structure. Ginsburg v.

Pachter, 893 So. 2d 586, 588 (Fla.4th DCA 2004). See also Gen. Motors Corp. v. McGee, %31

So. 2d 1010, 1031 (Fla.4th DCA 2002), review denied 851 So. 2d 728 (Fla.2003). "The party

claiming the privilegealso bears the burden of showing that disclosure to a third party did not

waive the privilege."
RC/PB, Inc. v. Ritz-Carlton Hotel Co., L.L.C., 132 So.3d 325,326 (Fla.4th

DCA 2014).
Defendant's entries claimingattorney client privilegeto communications with its in-house

counsel undoubtedly fail to establish the burden of showing that these communications were made

for purposes of rendering legal advice. Defendant seeks to avoid producing discoverable

documents by shieldingthese communications merely because they were authored or received by

an attorney. However, this Court has stated that "even where a lawyer may be involved in the

transmission process, Courts and scholars repeatedlyhave criticized the practiceof trying to

'immunize internal [businessl communications from discovery by placing legal counsel in

strategiccorporate positions and funneling documents through counsel."' Abraham v. MHM
Solution's.Mc,2015 WL 5554805 Cfla.Cir.Ct.)
Cqwting PreMed Care Pamers Holding Corp.

v. Humana. Inc.,258 F.R.D. 684, 689-90 (S.D.Fla. 2009)).

Further, the law is well settled that privilegedoes not arise when an in-house lawyer is

actingin a business capacityor performing business functions. Preterred Care Partners Holding

Corp. v. Humana, Inc.,258 F.R.D. 684,689 (S.D. Fla. 2009) (quotingHaso' v. Lockheed Martin

Corp., 1999 WL 600322, at *2 (E.D.La. Aug. 6,1999) ( CC .
[T]he business aspects of [a corporate]

decision are not protectedsimply because legalconsiderations are also involved;' and, 'in those

cases where the document does not contain sufficient information to indicate whether the material

was considered confidential,that Based on Defendant's
material should not be privileged."').

there
blatantly deficient descriptions, is Rg indication that Marie Long is part of the

11
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
communications for purposes ofrendering legalrather than business advice. Cableview Commc'ns

ofJacksonville,Inc. v. Time Warner Cable Se.,LLC 2015 WL 13870258, at *2 (M.D. Fla. Mar.

31, 2015) (quotingIn re Denture Cream Prods. 2012
Liab. Litig., WL 5057844, at *6 (S.D. Fla.

Oct. 18, 2012) (unpublished))("the burden of proof rests squarely on the party claiming the

attorney-client to show that the primary purpose of the communication in questionwas
privilege

for the purpose of obtaininglegaladvice, not business advice.").
Defendant's conclusory assertion

of "discussinglegal advice" undoubtedly fails to meet its burden in establishingthat the

communication is subjectto the asserted privilege.
Id.

pertinenthere, the communications in which Marie Long
Particularly is involved, are in

many number of other personnel of Defendant or
instances, disseminated to a significant its

affiliated companies, and/or third parties.Where, as here, "the business 'simultaneouslysends

communications to both lawyers and non-lawyers,it usuallycannot claim that the primary purpose

of the communication was for legaladvice or assistance because the communication served both

business and legal purposes."' Preferred Care Partners Holding Corp. v. Humana, Inc., 258

F.R.D. 684,689 (S.D.Fla. 2009) (quotingIn re Vioxx Products Liability
Litigation,501 F.Supp.2d

789,805 (E.D.La.2007)).The dissemination of these communications to non-essential personnel

with only a copy to counsel demonstrates that legal advice was Rgi the purpose of the

communications. See, e.g., U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Cen., 2012 WL

5415108, p. 4 (M.D.FIa. Nov. 6,2012); U.S. v. Davita, Inc.,301 F.R.D. 676,681 (N.D. Ga. 1014)

(a communication is not privilegedmerely because a company lawyer is copied)."Ifthe document

was prepared for purposes of simultaneous review by legaland non-legalpersonnel,it cannot be

said that the primary purpose of the document is to secure legaladvice."' Preferred Care Partners

Holding Corp. v. Humana, Inc., 258 F.R.D. 684,689 (S.D. Fla. 2009) (quoting United States v.

International Business Machines Corp.,66 F.R.D. 206, 213 (S.D.N.Y.1974). Here, Defendant's

12
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
claim of purported privilegedis belied by its distribution of these communications to a large

number ofpersonnel.Even log conclusivelyshows that
a cursory review of Defendant's privilege

Ms. Long just happens to be one of the many recipientsof these internal business emails that

Defendant now convenientlyseeks to withhold on the basis ofpurportedprivilege.Defendant has

not shown (nor can it)that these communications were for purposes of legaladvice. Thus, this

Court should compel Defendant to produce these communications in which Ms. Long is one of

multiple(non-attorney) being copied on the email.
recipients

iii. Communications with Third Parties

Defendant also improperly asserts privilege as to communications with third party

companies, Terra Group and Madison Marquette. However, the law is well settled that "ifpersons

other than the client,its attorney, or their agents are present, the communication is not made in

confidence,and the privilegedoes not attach." In re Teleglobe Communications Corp.,493 F.3d

345, 361 (3d Cir. 2007). "The disclosure rule operates as a corollaryto this principle:
if a client

subsequently shares a privileged communication with a third party, then it is no longer

and the privilegeceases to protect
confidential, it. This is because the act of disclosingsignalsthat

the client does not intend to keep the communication secret. In addition,it prevents clients from

engaging in strategicselective disclosure. The privilegedoes, after all,hinder the truth-seeking

process..."Id Thus, even if the matters were covered by the attorney-client
privilege,the

protectionof the privilegehas been waived by Defendant's voluntarydisclosure to a third party.

See AG Beaumont 1, LLC v. Wells Fargo Bank N.1, 160 So. 3d 510, 512 (Fla.2d Dist. App.

2015). As such, Defendant should be compelled to produce these communications with Terra

Group and Madison Marquette.

III. Conclusion

13
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
As discussed above, Defendant has woefully failed to assert its privilegeclaims in a manner

consistent with Rule 1.280(b)(6),
Florida Rules of Civil Procedure. Based on the information

provided in the privilegelogs,or lack thereof,it is impossible for Plaintiff or this Court to assess

of the privilege.However,
the applicability what is clear is that certain categoriesof documents

are have been improperly withheld by Defendant, and should be
demonstrably not privileged,

produced to Plaintiff immediately. Accordingly, because Defendant has failed to meet its burden

in showing that such communications are properlywithheld the Court should compel Defendant

to produce these documents. At minimum, given the deficiencies in Defendant's privilegelog,

Plaintiff is entitled to an in camera inspectionto determine whether such documents legitimately

qualifyas privilegedmaterial. See Town Ctr. @ Boca Raton Tr. V. Hirokawa,7%9 So. ld 1230,

1231-32 (Fla.4th DCA 2001).

Strike X, LLC respectfully
WHEREFORE, based on the foregoing,Plaintiff, requests that

this Court: (1)Grant the instant Motion; (2)conduct an in camera inspection
to determine whether

the documents identified in Defendant's privilegelog qualifyas privilegedmaterial under Florida

law, or appoint a specialmagistrateto conduct an in-camera review at Defendant's expense, (3)

compel Defendant to produce documents that have been improperly withheld on the basis of

and (4) for any other relief that
privilege; this Court deems justand proper.

CERTIFICATE OF GOOD-FAITH CONFERENCE

Undersigned counsel conferred with Strike X's counsel via teleconference on October 6,

2022 in a good-faith effort to resolve the issues raised by this motion, but no resolution was

reached.

Dated: October 24,2022 Respectfullysubmitted,

ZAR(JO EINHORN SALKOWSKI, P.A.
Counsel for Plaintiff
14
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
One Biscayne Tower
th
2 South Biscayne Boulevard, 34? Floor
Miami, Florida 33131
Telephone:(305) 374-5418
Facsimile: (305) 374-5428

By-. /sl Mary Nikezic
ROBERT ZARCO
Florida Bar No. 502138
E-mail:
ROBERT F. SALKOWSKI
Florida Bar No. 903124
E-mail: rsalkowski@zarcolaw.com
Secondary acoro@zarcolaw.com
MARY NIKEZIC
Florida Bar No. 92928
E-mail: mnikezic@zarcolaw.com

Secondary: eservice@zarcolaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 24,2022, a true and correct copy o f the foregoing
was served via the Florida Courts' e-Portal upon the following Jordanna Ishmael

abrahamd@gtlaw.com, and and Michael N.

Kreitzer and belloy@gtlaw.coml GREENBERG TRAURIG, P.A., 333

S.E. Second Avenue, 44th Floor, Miami, FL 33131.

Byr /s/Mary Nikezic

15
ZARCO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ?F: (305) 374-5428
-(XlIIBI'
'

A
Document ID or Bates Numb' Sent To ..om CC Documentlescriptioo M?ster Date .....i.'IM GT Attorney Client DesignatioI
-

7525516.00000061 Manelong@stmnachg[oup.com And[ew Gerth@s?onachgroup.com Atlomey cllent emml chain dlscusslng 1700 building 7/21/2020 E??IL AttorneyC.ent

Case Info

Judge

Tuter, Jack Track Judge’s New Case

Case No.

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Document Filed Date

October 24, 2022

Case Filing Date

August 24, 2021

County

Parties

Conforti, Colby Grossman Attorney for the Plaintiff
Gulfstream Park Racing Association Inc Defendant
Kreitzer, Michael N Attorney for the Defendant
Strike C, LLC Plaintiff
Strike X LLC Plaintiff
Stronach, Belinda Defendant
Village At Gulfstream Park, LLC Defendant
Zarco, Roberto Attorney for the Plaintiff
Robert Salkowski Attorney
Merema Nikezic Attorney
Robert Zarco Attorney
Jennifer Junger Attorneys for Defendants
Jordanna Ishmael Attorneys for Defendants
Diana Albite Attorney
Jude Cooper Attorney
Jon Polenberg Attorney
Gavin Banta Attorney
Steven Berman Attorney

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Document for Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

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Case Info

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