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eFile Accepted: 12/26/2013 09:11 AM
Filing # 8569294 Electronically Filed 12/23/2013 04:51:58 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
CIVIL DIVISION
DIGITAL COMMUNITY NETWORKS,
INC. and SW FLORIDA COMMUNICATIONS,
LLC,
Plaintiffs,
v. CASE NO. 2009 CA 021535 NC
Div. A
BAY VILLAGE OF SARASOTA, INC. and
COMCAST OF WEST FLORIDA, INC.
Defendants.
BAY VILLAGE OF SARASOTA, INC.’S
RENEWED MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
Bay Village of Sarasota, Inc. (Bay Village), by and through its undersigned counsel, files
this renewed motion for sanctions for spoliation of evidence by Digital Community Networks,
Inc. (Digital) and SW Florida Communications, LLC, (S.W. Florida Communications)
(collectively the Plaintiffs) and states:
l, Bay Village is a retirement community consisting of independent apartments,
assisted living apartments and a nursing home. In the year 2000, Bay Village and Digital entered
into two contracts whereby Digital agreed to provide television services to the independent living
residents of Bay Village.
2. In October, 2007, Digital, SW Florida Communications and Bay Village entered
into a Forbearance Agreement under which Digital agreed to improve its services and to provide
the residents of Bay Village with high definition television and up to 250 channels of television
programming within 90 days.3, On January 31, 2008, Bay Village terminated the Forbearance Agreement with
Digital and SW Florida Communications.
4, On or about March 27, 2008, the Plaintiffs first threatened litigation against Bay
Village through an email from their counsel, Robert Watrous, Esq. A threat of litigation
establishes Digital’s duty to preserve its property including its computers for Bay Village’s use
as evidence in reasonably foreseeable litigation. A copy of the email is attached as Exhibit A.
5. During the course of these proceedings, Bay Village requested that Digital
produce copies of all written complaints, in any form, by customers of Digital between January
2006 and January 31, 2008. Digital filed a frivolous objection and refused to produce the
requested documents. Bay Village’s request and Digital’s response are attached as Exhibit B.
6. When Bay Village took the depositions of the corporate representative of Digital
and S.W. Florida Communications, Mr. David Beall appeared as both the corporate
representative for both Digital and S.W. Florida Communications.
7. During the deposition, Mr. Beall identified personal property tax returns filed
with Sarasota County by Digital that all listed a number of computers owned by Digital and used
in its business operations. Mr. Beall testified that sometime in early 2009, Digital discarded or
destroyed all of its computers. The excerpt from the deposition of Mr. Beall is attached as
Exhibit C.
8. Bay Village also took the deposition of Mary McKeon. Ms. McKeon testified in
her deposition that she was the bookkeeper for Digital. Her duties were to prepare accountings,
pay Digital’s bills, payroll and billing. She prepared profit and loss statements out of Digital’s
Quickbooks accounting software, which was maintained on her office computer. Her computer
also had access to customer accounts and any notes as to customer complaints. Ms. McKeon leftthe employment with Digital in June 2008. When she left, her computer was in good working
order and she did not delete any information from the computer when she left Digital. Mr. Beall
discarded her computer after he had a duty to maintain evidence. The deposition of Mary
McKeon is being filed in support of this Motion.
9. Spoliation is defined as "the intentional destruction, mutilation, alteration, or
concealment of evidence." Golden Yachts. Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006)
(citation omitted). In order for a court to effect a remedy for a party’s spoliation of evidence, the
court must determine whether: (1) “the evidence existed at one time,” (2) "the spoliator had a
duty to preserve the evidence,” and (3) "the evidence was critical to an opposing party being able
to prove its prima facie case or a defense." Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389,
392 (Fla. 2d DCA 2012)(citing Golden Yachts, 920 So. 2d at 781).
10. With respect to the first factor, it is clear that relevant evidence existed and that it
is now unavailable. Mr. Beall stated in his deposition that Digital owned a number of computers
and used them in its business operations. All of Digital’s computers have been destroyed. Ms.
McKeon’s deposition reveals that profit and loss statements were maintained on her computer
which has also been discarded.
11. With respect to the second factor, Digital had a duty to preserve evidence on its
computers when the spoliation occurred. Florida courts have held that an affirmative duty to
preserve evidence can arise in several situations: by contract, statute, or a discovery request, see,
e.g., Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (Fla. 4th DCA
2004); where one party promises to preserve evidence, see e.g., Brown vy. City of Delray Beach,
652 So. 2d 1150 (Fla. 4th DCA 1995); or by court order, see e.g., Rockwell Int'l Corp. vy.
Menzies, 561 So. 2d 677 (Fla. 3d DCA 1990).12. Although the majority of Florida courts recognize that there is no common law
duty to preserve evidence in anticipation of litigation, recent Florida cases are following the
trend of recognizing a duty to preserve evidence when there is a reasonable anticipation of
litigation, See, e.g., Ford Motor Co. v. Stimpson, 115 So. 3d 401, 406 (Fla. 5th DCA 2013)(n a
products liability action, the court remarked that a party had not committed fraud on the court by
failing to maintain evidence for various reasons, including that there was no evidence showing
that the action was foreseeable); Osmulski, 93 So.3d at 389 (holding that there is no duty to
preserve evidence in the absence of a written request to preserve such evidence, but noting that it
could be argued in the absence of a written request, “as long as a [party’s] claim is reasonably
foreseeable, a formal request to preserve the evidence is not required in order for a [party] to be
entitled to a jury instruction on spoliation”); American Hospitality Mgmt. Co. of Minn. v.
Hettiger, 904 So.2d 547 (Fla. 4th DCA 2005)(“[iJn the context of a claim for spoliation of
evidence other than medical records, we have held that a defendant could be charged with a duty
to preserve evidence where it could reasonably have foreseen the claim”); compare Royal &
Sunalliance, 877 So. 2d at 846 (holding that there is no “common law duty to preserve the
evidence in anticipation of litigation,” and clarifying the holdings in Hagopian v. Publix
Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) and St. Mary’s Hospital, Inc. v.
Brinson, 685 So, 2d 33 (Fla. 4th DCA 1996)).
13. Further, federal law is particularly instructive because Florida courts have not
fairly addressed the preservation of electronically stored information in anticipation of litigation.
Federal law on this point is clear that “[o]nce a party files suit or reasonably anticipates doing so
. it has an obligation to make a conscientious effort to preserve electronically stored
information that would be relevant to the dispute.” Southeastern Mech. Servs. v. Brody, 2009U.S. Dist. LEXIS 69830, 7 (M.D. Fla. 2009); see also, Palmas Y Bambu, S.A. v. EI. Dupont de
Nemours & Co., 881 So, 2d 565, 579 n. 11 (Fla. 3d DCA 2004)(citing cases, including federal
case law, where a duty to preserve evidence arises in anticipation of litigation).
14. ‘In this case, Digital had a duty to preserve its computers as it reasonably
anticipated filing suit against Bay Village at least by March 27, 2008 knowing that such evidence
would be relevant to the dispute, as discussed in more detail below. A party cannot dispose of
potentially relevant or discoverable evidence just because a formal duty has not yet arisen. 1-13
LN Practice Guide: Florida E-Discovery & Evidence 13.04; see also Torres v. Matsushita Elec.
Corp., 762 So. 2d 1014, 1019 (Fla. 5th DCA 2000)(Harris, J. concurring)(“[i]f one knows that
he, she, or it is about to become involved in a civil action, this alone should be sufficient special
circumstances to impose a duty of care to preserve such evidence in such potential party's
possession that a reasonable person would foresee is material to that action. How can it
legitimately be argued that a plaintiff who can sue the defendant, or even a third party, who loses
evidence which is known to be relevant to a contemplated law suit has no duty to maintain
evidence available to plaintiff and which plaintiff knows is relevant to his or her contemplated
action?’’)
15. With respect to the third factor — whether the destroyed evidence is critical to Bay
Village’s ability to prove its defense — the loss of electronic information on Digital’s computers
is critical for two reasons: First, Digital and SW Florida Communications are seeking damages
for lost profits from the alleged breach of contract by Bay Village. Without information
concerning Plaintiffs past profits and losses on the hard drive of the discarded or destroyed
computers, lost profits could be proved through the use of the profit and loss statements of acomparable company and Bay Village will be unable to impeach such evidence by use of actual
profit and loss information from Digital’s computers.
16. Secondly, by disposing of all of Digital’s computers, Bay Village has been denied
the ability to obtain notes of complaints on customer accounts and emails between Digital and its
subcontractors that serviced Bay Village concerning complaints by Bay Village of poor service
between September 2007 and January 31, 2008. These critical notes and emails would have
established sub-standard service from Digital as alleged by Bay Village when it terminated the
contracts with Digital on January 31, 2008.
17. In addition, Digital destroyed relevant evidence relating to other customers’
complaints of sub-standard service by Digital, generally referred to as similar-fact evidence. The
rules governing similar fact evidence are embodied in section 90.404 of the Florida Evidence
Code. This section provides that although similar-fact evidence is inadmissible when the
evidence is relevant solely to prove bad character or propensity, similar-fact evidence of other
acts is admissible when relevant “to prove a material fact in issue.” § 90.404(2)(a), Fla. Stat.
(2013).
18. Complaints by other customers of sub-standard service by Digital goes to the
material issue of whether Digital provided sub-standard service to Bay Village also. The Florida
Supreme Court established the proper rule regarding the admissibility of similar fact evidence:
“relevant evidence will not be excluded merely because it relates to similar facts which point to
the commission of a separate [act]. The test of admissibility is relevancy.” Williams v. State, 110
So. 2d 654, 660 (Fla. 1959). The relevancy test was reaffirmed in 1977 and again in 2000. Akers
v. State, 352 So. 2d 97, 97 (Fla. 4th DCA 1977); Olsen v. State, 751 So. 2d 108 (Fla. 2nd DCA
2000).19. —_ In the instant case, the discarded or destroyed computers belonging to Digital was
intentional and occurred subsequent to a reasonable anticipation of litigation by Digital against
Bay Village. Without the information on Digital’s computers, (1) Bay Village has no way to
show the complaints against the services provided by Digital to Bay Village, and (2) Bay Village
has lost valuable evidence that would have shown that Digital never made a profit in its history
of operations.
20. The remedy for the spoliation of evidence by a party warrants sanctions.
Sanctions are appropriate in spoliation cases “to assure that the non-spoliator does not bear an
unfair burden.” Reed v. Alpha Prof'l Tools, 975 So. 2d 1202, 1204 (Fla. 5th DCA 2008).
21. The authority to sanction litigants for spoliation is found jointly in the Florida
Rules of Civil Procedure and the inherent power of the Court. The appropriates of sanctions
depends on “(1) the willfulness or bad faith, if any, of the party responsible for the loss of the
evidence, (2) the extent of prejudice suffered by the other party or parties, and (3) what is
required to cure the prejudice.” Harrell v. Mayberry, 754 So. 2d 742, 745 (Fla. 2d DCA 2000).
The determination of the appropriate sanction for spoliation is within the sound discretion of the
Court and is assessed on a case by case basis. See Golden Yachts, 920 So. 2d at 780.
22. In intentional spoliation cases, courts may employ more drastic sanctions,
including striking pleadings or entering default judgments. Golden Yachts, 920 So. 2d at 777;
Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-47 (Fla. 2005); Nationwide Lift Trucks,
Inc. v. Smith, 832 So. 2d 824 (Fla. 4th DCA 2002)(discussing that the ultimate sanction of
dismissal is a remedy of last resort); Harrell, 754 So. 2d at 745 and the cases cited therein
(discussing the factors for the appropriateness of sanctions). In cases involving negligent
spoliation, courts prefer to utilize adverse evidentiary inferences and adverse presumptionsduring trial to address the lack of evidence. 1-13 LN Practice Guide: Florida E-Discovery &
Evidence 13.05; citing Martino v. Wal-Mart Stores, Inc., 908 So, 2d 342, 346,347 (Fla. 2005).
An inference is a “logical and reasonable conclusion of a fact not presented by direct evidence
but which, by process of logic and reason, a trier of fact may conclude exists from the
established facts.” Golden Yachts, 920 So. 2d at 780-81 (citation omitted).
23. Here, Digital’s conduct in connection with the loss of its computers constitutes
spoliation of evidence. Therefore, it is appropriate for the Court to sanction Plaintiffs by allowing
an adverse inference instruction. An adverse inference “may arise in any situation where
potentially self-damaging evidence is in the possession of a party and that party either loses or
destroys the evidence.” Martino, 835 So. 2d at 1257. Because evidence contained on the
discarded or destroyed computers was relevant to the instant case, the spoliation inference should
be that Digital never made a profit and that Digital performed sub-standard services at Bay
Village. See Palmas, 881 So. 2d at 583, n. 14 (“[t]he destroyed evidence must be relevant to the
issue or matter for which the party seeks the inference.”) “Nothing in Florida's Evidence Code
prevents ‘the drawing of an inference that is appropriate.’” Golden Yachts, 920 So. 2d at 780
(citation omitted).
Wherefore, Bay Village respectfully requests that the Court sanction Digital and S.W.
Florida Communications for spoliation of evidence through an inference that Digital proformed —
sub-standard services under its contract with Bay Village leading up to the termination of the
contract on January 31, 2008. Further, the Court should strike the Plaintiffs’ claim for lost
profits.CERTIFICATE OF SERVICE
I certify that on December Ax 2013, I electronically filed the foregoing document
with the Clerk of Court using the Florida Courts E-Filing Portal which will send a notice of
electronic filing to: Robert P. Watrous, Esq., 2055 Wood Street, Suite 208, Sarasota, Florida
34237, Gary Resnick, Esq., 401 East Las Olas Blvd., Las Olas City Centre, Suite 1850, Ft.
Lauderdale, Florida 33301 and Robert B. George , Esq., Liles, Gavin, Costantino & George, 225
Water Street, Suite 1500, Jacksonville, Florida 32202
WILLIAMS PARKER HARRISON
DIETZ/& GEPZEN
7
M. LEWIS HALL, III, Esquire
Florida Bar No. 0249513
200 South Orange Avenue
Sarasota, Florida 34236
(941) 366-4800 (telephone)
(941) 954-3172 (facsimile)
Attorneys for Defendant Bay Village_ CANNON, JOHN ve
: From: | ‘p@watrouslaw.< com
Sent: | Thursday, March 27, 2008 12:30 PM
To: CANNON, JOHN V.
Cc: Imiscavage@yahoo. com; dbeall4@comcast. net
Subject: Bay Village/Digttal
Dear Jack:
As you may have guessed this dispute has not resolved itself. My clients can prove actual
losses under the termination of this contract in excess of $700,000.00. In addition they have
suffered other serious consequences as a result of your client's and Comcast's actions in
pirating their system. This is a violation of both State and Federal law. This will give rise to
other significant damages in excess of $100,000.00. Obviously my client (Digital is owned
by a very experienced businessman) is not going to walk away from losses of this nature.
However, I would like to make one attempt to resolve this prior to proceeding with litigation
(I may be referring this case out in that it may be filed in Federal Court). Accordingly, I
would like to try and set up a pre-suit mediation with a mutually agreeable mediator here in
Sarasota. I would agreeable to exchanging documentation prior to the mediation if it would |
. make the mediation 1 more productive.
“ i have had1 my best success at inediation with Ed Ford and yourself, Obviously you are e niot
available so I would suggest using Ed to mediate this matter. I am going to be out of town
all of next week with my family on spring break and Sharon in my office can contact Dale
so that we can start working towards scheduling (assuming your client would be agreeable
to the same). E look forward to hearing your thoughts on this situation.
Confidentiality Notice: This electronic mail transmission and any accompanying communications are
covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and contains legally
privileged and/or confidential information. Do not read this if you are not the person(s)
named. Any use, distribution, copying, or disclosure by any other person is strictly prohibited. If) you
received this transmission in error, please notify the sender by telephone 1.941.953-9771 or send an —
- electronic mail message to rpw@watrouslaw. com and destroy the original transmission and its
a . attachments without reading or r saving in r any f manner.
rer ‘Robert P. Watrous, Chartered
2033 Wood Street a
‘Suite. 220 |
a - Sarasota, FL 34237
(941) 953-9771
041): 953-9426IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA, COUNTY, FLORIDA, CIVIL DIVISION:
DIGITAL COMMUNITY NETWORKS, INC.
and SW FLORIDA COMMUNICATIONS, LLC,
Plaintiffs, : OO
VS. CASE NO.: 2009-CA-21535 NC
BAY VILLAGE OF SARASOTA, INC. and
COMCAST OF WEST FLORIDA, INC.
Defendants.
/
DEFENDANT, BAY VILLAGE OF SARASOTA, INC.’S
REQUEST TO PRODUCE TO PLAINTIFF
Defendant, BAY VILLAGE OF SARASOTA, INC., requests Plaintiffs, DIGITAL
COMMUNITY NETWORKS, INC. to produce the following described documents at the offices of
Williams, Parker, Harrison, Dietz & Getzen, 200 South Orange Avenue, Sarasota, Florida
34236, no later than thirty (30) days after service hereof, as provided for in Rule 1.350, Florida
Rules of Civil Procedure.
| DEFINITIONS
(a) Where the name or identity of a person or persons is requested, please state the
full name, home address, business or employment address and telephone number.
(b) The term “person” means any individual, firm, partnership, corporation, association
or other business enterprise.
(Cc) Where knowledge or information of possession of a party or parties is requested,
such request includes knowledge of the party's agents, representatives, and, unless privileged,
his/her attorneys.
(d) The pronouns “you”, “your”, and “yours,” refer to the party to whom the
Interrogatories are addressed and the persons mentioned i in clause (c).
(e) “Referring” and “relating” means showing, disclosing, averring to, comprising,
evidencing, constituting, or reviewing, in whole or in part.
—(f) The term “writing” includes, but i is not limited to, books, records, letters, telegrams,
notes, memoranda, diaries, worksheets, computation tabulations, financial statements and drafts
of any of the foregoing, whether originals: or copies, and in whatever language and all othertangible things on which words, figures, notations or sounds are recorded in writing or by any.
other means, and any such material underlying, supporting, or used in the preparation thereof.
(g) The term “document” or “documents” refers to all written, electronic or electronically
stored, recorded, taped, filmed or graphic matter, however produced or reproduced, of every kind
and description, whether readable by human or mechanical form, whether stored in tangible,
electronic, mechanical or electric form of representation of any kind, whether located on-site or
off-site, and whether produced internally or received from an outside source, including, but not
limited to: papers, facsimile transmission sheets, books, letters, photographs, architectural plans,
prospectuses, specifications, drawings, blueprints, sketches, feasibility studies, objects, tangible
things, correspondence, telegrams, memoranda, inter-office communications, _ intra-office
communications, reports, studies, surveys, contracts, work orders, vendors’ agreements,
subcontractors’ agreements, contractors’ agreements, licenses, building permits, permits of any
kind, permit applications of any kind, agreements, spreadsheets, graphs, graphic material of any
kind, projections, presentations, change orders, ledgers, books of account, transcripts, analyses,
proposals, estimates, legal pleadings and other legal documents, medical records, deeds,
mortgages, bills of sale, security agreements, telephone messages, handwritten notes of any
kind, vouchers, record of inter-bank and intra-bank transfers of funds, bank checks, certificates of
deposit, deposits, cashier's checks, invoices, drafts, charge slips, receipts, freight bills, working
papers or drafts, statistical records, notebooks, calendars, appointment books, diaries, agendas,
time sheets, logs, bids, job or transaction files, credit reports, notations, notes, sound records of
any type, minutes of directors or other meetings, phono-records, cassette or tape recordings or
any other mechanical compilation from which information can be obtained and any transcriptions
thereof, bulletins, circulars, press releases, notices, instructions, advertisements, work
assignments, motion picture films, any films of any description, videotapes, CD [compact disc]
recordings, recording tape or wires, all mechanical electronic sound recordings and transcripts
thereof, kinescopes, research or other articles and treatises, including all attachments and
enclosures thereto, intellectual property, computer programs, computer printouts, computer
software, computer systems, computer networks, computer system services, computer access,
hard/floppy discs, backup copies and deleted computer files, including metadata.
(h) The term “identify” or “state” means:
L When used with reference to an individual person, means to state his/her
full name, his/her position and business affiliation at that time referred to,
and his/her last known residence and business addresses.
ii. When used with reference to a firm, partnership, corporation, association or
other business enterprises, means to state its full name and address.
iii. When used with reference to a writing, means to state its date, author,
addressee, recipient, type (e.g., book, record, letter, memorandum or some
other means of identifying it), its present location and custodian and to state
the substance thereof or to annex to and incorporate into the answers to
these Interrogatories a true and correct copy thereof.
(i) The term “all” includes the word “any” and vice versa.
(j) The term “and” includes the word “or’ and vice versa.' (k) The term “communications,” means any transmission or exchange of information
between two or more persons or entities, orally or in writing, and includes without limitation any
conversation or discussion whether face to face or by means of any telephone, telegraph,
facsimile, electronic or other media, including metadata.
(I) The term "active file," when used in this document, means any electronic data file
that can be utilized by an electronic data processing system in any manner without modification
and/or re-construction. An active file is any electronic data file that has not been erased or
otherwise destroyed and/or damaged and which is readily visible to the operating system and/or
the software with which it was created.
(m) The term "archive," when used in this document, is intended to refer to all
processes for copying and storage, whether temporary or permanent, of electronic data in a
computer system, other than active files in on-line storage. "Archive" or "archiving" refers to any
system for maintaining electronic data off-line, whether referred to as an archive, dump, purge or
by other terms, and also to any system for storage of electronic media which is not in current use
on the system.
(n) The term "computer," when used in this document, shall include, but is not limited
to, microcomputers (also known as personal computers), laptop computers, portable computers,
notebook computers, palmtop computers, personal digital assistants, minicomputers and
mainframe computers.
(0) The term “computer program,” means an ordered set of data representing coded
instructions or statements that when executed by a computer cause the computer to process
data.
(p) The term “computer software,” means a set of computer programs, procedures, and
associated documentation concerned with the operation of a computer system.
(q) The term “computer system,” means a set of related, connected or unconnected,
computer equipment, devices, or computer software.
(r) The term “computer network,” means a set of related, remotely connected devices
and communication facilities including more than one computer system with capability to transmit
data among them through communication facilities.
(Ss) The term “computer system services,” means providing a computer system or
computer network to perform useful work.
(t) The term "data," when used in this document, is equivalent to the term "electronic
data" as defined herein.
(u) The term "deleted file," when used in this document, means any electronic data file
that has been erased or deleted from the electronic media on which it resided. A deleted file
includes any file whose File Allocation Table (FAT) entry has been modified to indicate the file as
being deleted and/or which is not readily visible to the operating system and/or the software with
which it was created.
(v) The term "electronic data, " when Used | in this documért, means all information of all.
kinds maintained by electronic data processing systems including all non-identical copies of suchinformation: Electronic data includes, but i is not imited to, computer programs 5 (whether private, -
commercial or work in progress), programming notes or instructions, and input and/or output used _
or produced by any software program or utility” (including electronic mail messages and all
information referencing or relating to such_message anywhere on the computer system, word
processing documents and all information stored in connection with such documents, electronic
spreadsheets, databases including all records and fields and structural information, charts,
graphs and outlines, arrays of information and all other information used or produced by any
software), operating systems, source codes of all types, programming languages, linkers and
compilers, peripheral drivers, PIF files, batch files, any and all ASCIl files, and any and ail
miscellaneous files and/or file fragments, regardless of the media on which they reside and
regardless of whether said electronic data consists in an active file, deleted file or file fragment.
Electronic data includes any and all information stored on computer memories, hard discs, floppy
discs, CD's, DVD's, internal or external hard drives, ZIP Drives, Bernoulli Box drives and their
equivalent, magnetic tape of all types, microfiche, punched cards, punched tape, computer chips,
including, but not limited to, EPROM, PROM, RAM and ROM, or on or in any other vehicle for
digital data storage and/or transmittal. The term electronic data also includes the file, folder tabs
and/or containers and labels appended to, or associated with, any physical storage device
associated with the information described above.
(w) The term “electronically-stored information,” is any information created, stored or
best utilized with computer technology of any type. It includes, but is not limited to, data; word
processing documents, spreadsheets, presentation documents, graphics, animations, images,
email and instant messages (including attachments) audio, video and audiovisual recordings,
voicemail stored on databases, networks, computers and computer systems, servers, archives,
backup or disaster recovery systems, discs, CD’s diskettes, drives, tapes, cartridges and other
storage media, printers, the Internet, personal digital assistants, handheld wireless devices,
cellular telephones, pagers, fax machines and voicemail systems.
(x) The term “accessible information,” is electronically stored information that is easily
retrievable in the ordinary course of business without undue cost and burden.
(y) The term “metadata,” means information embedded in a native file that is not by the
operation of a computer or other information technology system when a native file is created,
modified, transmitted, deleted or otherwise manipulated by a user of such system. Metadata are
a subset of electronically stored information.
(Z) The term “native file(s),” means electronically stored information in the electronic
format of the application in which such electronically stored information is normally created,
viewed and/or modified. Native files are a subset of electronically stored information.
(aa) The term “static image(s)," means a representation of electronically stored
information produced by converting native files into a standard image format capable of being
viewed and printed on standard computer systems. In the absence of agreement of the parties or
order of Court, a static image should be provided in either Tagged Image File Format (TIFF, or
TIF files) or Portable Document Format (PDF). If load files were created in the process of
converting native files to static images, or if load files may be created without undue burden or
cost, load files should be produced together with static images.
(bb) The term “intellectual property,” means data, including programs.- (ec) All other words are given their plain, ordinary meaning, unless indicated otherwise
in the Interrogatory. Bo ee
Ne INSTRUCTIONS
1. Any document as to which a claim of privilege is or will be asserted should be
identified by author, signatory, description (e.g., letter, memorandum, telex, recording, etc.), title (if
any), date, addresses (if any), general subject matter, present depository and present custodian
and a complete statement of the ground for the claim of privilege to be set forth.
2. lf any of the documents requested herein have been lost or destroyed since their
creation, identify each of the missing documents, state when, where, how and by whom the
documents were lost or destroyed, the name of the person who authorized or directed such
destruction, and identify by name and address, the person who last had custody of the missing
documents.
3. If any of the documents cannot be produced in full, produce to the extent possible,
specifying the reasons for the inability to produce the remainder.
4. Documents to be produced include the originals of all documents, plus all drafts of
any requested documents and all copies of any requested document, by whatever means made,
which bear any marking or other notation or differ in any way from the original. Documents
maintained on different storage media shall be regarded as documents which differ from the
original.
5. To the extent any of the documents are in electronic or computer form, please
produce such electronic or computer form of the documents on floppy disk or CD-ROM, as well as
in hard copy, and state the filename and path under which such data is stored.
li REQUEST FOR PRODUCTION
1. A fully executed copy of the Agreement to Render Management Services
attached as Exhibit B to the Motion to Compromise filed in the Digital Community Networks, Inc.
bankruptcy on January 8, 2007.
2. A fully executed copy of the assignment from Digital Community Networks, Inc.
to Bay Village Cable, LLC of the Bulk Cable Service Contract with Bay Village of Sarasota, Inc..
3. A complete,signed copy of all documents executed by either Digital Community
Networks, Inc., Bay Village Cable, LLC and Woolf Cable Television Service, LLC on or about
June 5, 2005.
4. A compete, fully executed copy of all settlement documents relating to the
compromise reached by Digital Community Networks and the Defendants in Case No. 8:06-bk-
01702-MGWV filed in the Middle District Bankruptcy Court.
5. Copies of Digital Community Networks tangible tax returns for the years 2005 to
2009. a a
— —«S5. Copies of all written complaints, in any form, by customers of Digital Community
Networks from January 2006 to January 31, 2008.coe "CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and eorrect copy | of the foregoing has been
furnished via United States Mail, postage prepaid to Robert P. Watrous, Esq., 2033
Wood Street, Suite 220, Sarasota, FL 34237 and Robert B. George, Esq., 225 Water
n
Street, Suite 1500, Jacksonville, FL 32202 this~/ day of May, 2010.
/ Florida Bar No. 154986
_M. Lewis Hall, Esquire
Florida Bar No. 0249513
200 South Orange Avenue
Sarasota, FL 34236
(941) 366-4800 (telephone)
(941) 954-3172 (facsimile)
Attorneys for Defendant Bay Village
1172948 1.docxIN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
DIGITAL COMMUNITY NETWORKS, INC.
And SW FLORIDA COMMUNICATIONS, LLC,
Plaintiffs,
V. CASE NO.:2009 CA 21535 NC
BAY VILLAGE OF SARASOTA, INC.
And COMCAST OF WEST FLORIDA, INC.
Defendants.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT BAY VILLAGE OF SARASOTA, INC.’S
REQUEST FOR PRODUCTION OF DOCUMENTS
COMES NOW the Plaintiffs, DIGITAL COMMUNITY NETWORKS, INC. and SW
FLORIDA COMMUNICATIONS LLC, by and through their undersigned attorney and
hereby responds to Defendant BAY VILLAGE OF SARASOTA, INC.’s Request for
Production of Documents served on May 27, 2010 as follows:
1. A true and accurate executed copy of the Agreement to Render
Management Services is attached hereto and provided herewith.
2. A true and accurate executed copy of the Assignment is attached hereto
and provided herewith.
3. True and accurate copies of signed documents executed by Digital
Community Networks, Inc., Bay Village Cable, LLC and Woolf Cable Television Service,
(LC on or about June 5, 2005 are attached hereto and provided herewith.
4. Any and all executed documents responsive to this request would be in
the possession of Roberta Colton, Esquire and/or James Gibson, Esquire.
RECEIVED
JEP AA 20195. Copies of tangible tax returns from the years 2008, 2006 and 2007 are
being obtained and will be provided with the filing ofa supplemental response to this
Request for Production. Plaintiff objects to the production of tangible tax returns fore
the years 2008 and 2009 when Defendants converted Plaintiffs property illegally and
improperly for their own use and benefit.
6. Plaintiff objects to this Request for Production in that it improperly
assumes facts that are inaccurate as well as does not identify which “customers” of
Digital Community Networks this Request refers to.
CERTIFICATE OF SERVICE
|] HEREBY CERTIFY that a true and correct copy of the foregoing has been sent
by U.S. Mail to John V. Cannon, Esquire, 200 South Orange Avenue, Sarasota, FL
34236 and Robert B. George, Esquire, 225 Water Street, Suite 1500, Jacksonville, FL
32202 this\2 day of September, 2010.
ROBERT P. WATROUS, CHARTERED
2055 Wood Street, Suite 208
Sarasota, Florida 34237
(941) 953-9771
(941) 953-9426
To
NCO oh &
Robert P. Watrous Esq.,
FBN 458015IN THE CIRCUIT COURT OF THE
TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
CIVIL DIVISION
meme mmm me mmm wm meme eee
DIGITAL COMMUNITY NETWORKS, INC.,
and SW FLORIDA COMMUNICATIONS, LLC,
Plaintiffs,
VS. CASE NO.
2009CA021535NC
BAY VILLAGE OF SARASOTA, INC.,
and COMCAST OF WEST FLORIDA, INC.,
Defendants.
mee mmm mmm mmm mmm ee
Deposition of DAVID BEALL, a Witness
herein, taken on behalf of the Plaintiffs herein,
pursuant to notice and the Florida Rules of Civil
Procedure, commencing at 10:14 a.m. and concluded at
3:39 p.m. on Thursday, May 24, 2012, at the offices
of Williams, Parker, Harrison, Dietz & Getzen, 200
S. Orange Avenue, Sarasota, Florida, before me,
Diana A. Demby, RMR, Notary public in and for the
State of Florida at Large.
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Q Okay. Are you aware that we have requested
documents in terms of emails and other communications
that occurred perhaps between Digital or Southwest
Florida Communications and Bay Village?
A I remember that you asked for -- as -- as
concerns the tax -- I mean -- the -- the property
tax?
Q Well, actually, just generally anything
that pertained to this case. We have tried to get,
as your counsel has tried to get from us, we sought
the same things from you folks.
A Correct. We have sent you everything we
have.
O And there were some -- there was a
statement, I think in the deposition of Mr. Miscavage
that you were present at, in which he said that the
documents had been -- well, were on a computer that
had been destroyed.
A That is correct.
Q What did he mean by that?
MR. WATROUS: Wait. I'm going to object on
speculation. If you want to ask him what he's
discussed with the witness, I've got no problem.
BY MR. HALL:
Q Okay. Well, what happened to that
(se he eee ree ee eer rere en neers nee eee
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computer? Do you have any personal knowledge of what
happened to the computer?
A No, not -- not exactly. But I'm happy to
try and explain what I do know.
Q Okay, Tell me what you do know about it.
A When -- we were forced almost immediately
to move -- to move the office from where we were to a
smaller space, and we then moved out to a different
space.
We had, by this time, had changed -- we had
a new contractor. If we want to think about Digital
at the time as the contractor for SWF, we now at this
time had a new contractor, and we're now talking
about summer of 2008 as a rough time frame.
The -- several of -- they were moved.
Again, we had some serious problems. We brought a --
brought an expert in -- this really didn't have
anything to do with the time of the lawsuit -- we
brought an expert in, some guy that, you know, one of
these forensic guys -- I don't know what you call
them -- to try and save some of stuff that we had.
The new, the new company had taken over,
and when I say taken over, they did something. I
don't know what they did. To this day I don't know.
Anyway, we could not retrieve a lot of the older
rr ec eee ener cee errr eee ere ee eee ere ne eee ee er eee ee ee
a li a
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stuff that was on the computers.
Some accounting stuff was gone and
Loraine's computer was toast. I mean, he couldn't --
couldn't get anything out of it.
And we -- so eventually after another move,
I can't honestly tell you what happened to the
computers, but they were worthless; and as far as I
Know they got thrown out or whatever happened to
them. I don't know.
We had tried to retrieve what we could, but
unfortunately a lot of the stuff was just not
retrievable. I mean, there wasn't anything there,
according to the forensics guy.
Q When did they get thrown out?
A I can't honestly tell you, except to say
that it was sometime, I would say in the 2009, early
time frame. I think that's when we -- we -- we moved
a lot of the stuff out of the -- they moved some of
the stuff out of the office and put it up -- the new
people were pretty well entrenched then.
Q Do you recall -- you recall that we had an
early mediation in this case --
A Yes.
Q —- and you were there. Was it after that
early mediation?
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A I can't -- I just don't -- I can't honestly
Say one way or the other.
Let me ask you to -- are you saying that
they were thrown out or that we had tried to gather
the information? Those are kind of two different
questions.
I believe they would have been thrown out
sometime after the mediation, because I kind of
remember the time of that. We had -- they were just
sitting in the office collecting dust at that point.
QO Were they thrown out after this lawsuit was
initiated?
A What's that date?
MR. WATROUS: It's an '09 case number.
MR. HALL: Sometime prior to March 28th --
well, I don't have the exact date.
Ld
WITNESS: When was the mediation?
THI
MR. WATROUS: Presuit --
THE WITNESS: No, I mean approximate time
frame,
MR. HALL: I want to say 2008, 2009, early
2009.
MR. WATROUS: IT can't remember.
THE WITNESS: Anyway, I guess I can't -- I
can't answer that question. I don't remember.
The Court Reporters
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Preview
eFile Accepted: 12/26/2013 09:11 AM Filing # 8569294 Electronically Filed 12/23/2013 04:51:58 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL DIVISION DIGITAL COMMUNITY NETWORKS, INC. and SW FLORIDA COMMUNICATIONS, LLC, Plaintiffs, v. CASE NO. 2009 CA 021535 NC Div. A BAY VILLAGE OF SARASOTA, INC. and COMCAST OF WEST FLORIDA, INC. Defendants. BAY VILLAGE OF SARASOTA, INC.’S RENEWED MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE Bay Village of Sarasota, Inc. (Bay Village), by and through its undersigned counsel, files this renewed motion for sanctions for spoliation of evidence by Digital Community Networks, Inc. (Digital) and SW Florida Communications, LLC, (S.W. Florida Communications) (collectively the Plaintiffs) and states: l, Bay Village is a retirement community consisting of independent apartments, assisted living apartments and a nursing home. In the year 2000, Bay Village and Digital entered into two contracts whereby Digital agreed to provide television services to the independent living residents of Bay Village. 2. In October, 2007, Digital, SW Florida Communications and Bay Village entered into a Forbearance Agreement under which Digital agreed to improve its services and to provide the residents of Bay Village with high definition television and up to 250 channels of television programming within 90 days.3, On January 31, 2008, Bay Village terminated the Forbearance Agreement with Digital and SW Florida Communications. 4, On or about March 27, 2008, the Plaintiffs first threatened litigation against Bay Village through an email from their counsel, Robert Watrous, Esq. A threat of litigation establishes Digital’s duty to preserve its property including its computers for Bay Village’s use as evidence in reasonably foreseeable litigation. A copy of the email is attached as Exhibit A. 5. During the course of these proceedings, Bay Village requested that Digital produce copies of all written complaints, in any form, by customers of Digital between January 2006 and January 31, 2008. Digital filed a frivolous objection and refused to produce the requested documents. Bay Village’s request and Digital’s response are attached as Exhibit B. 6. When Bay Village took the depositions of the corporate representative of Digital and S.W. Florida Communications, Mr. David Beall appeared as both the corporate representative for both Digital and S.W. Florida Communications. 7. During the deposition, Mr. Beall identified personal property tax returns filed with Sarasota County by Digital that all listed a number of computers owned by Digital and used in its business operations. Mr. Beall testified that sometime in early 2009, Digital discarded or destroyed all of its computers. The excerpt from the deposition of Mr. Beall is attached as Exhibit C. 8. Bay Village also took the deposition of Mary McKeon. Ms. McKeon testified in her deposition that she was the bookkeeper for Digital. Her duties were to prepare accountings, pay Digital’s bills, payroll and billing. She prepared profit and loss statements out of Digital’s Quickbooks accounting software, which was maintained on her office computer. Her computer also had access to customer accounts and any notes as to customer complaints. Ms. McKeon leftthe employment with Digital in June 2008. When she left, her computer was in good working order and she did not delete any information from the computer when she left Digital. Mr. Beall discarded her computer after he had a duty to maintain evidence. The deposition of Mary McKeon is being filed in support of this Motion. 9. Spoliation is defined as "the intentional destruction, mutilation, alteration, or concealment of evidence." Golden Yachts. Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (citation omitted). In order for a court to effect a remedy for a party’s spoliation of evidence, the court must determine whether: (1) “the evidence existed at one time,” (2) "the spoliator had a duty to preserve the evidence,” and (3) "the evidence was critical to an opposing party being able to prove its prima facie case or a defense." Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2d DCA 2012)(citing Golden Yachts, 920 So. 2d at 781). 10. With respect to the first factor, it is clear that relevant evidence existed and that it is now unavailable. Mr. Beall stated in his deposition that Digital owned a number of computers and used them in its business operations. All of Digital’s computers have been destroyed. Ms. McKeon’s deposition reveals that profit and loss statements were maintained on her computer which has also been discarded. 11. With respect to the second factor, Digital had a duty to preserve evidence on its computers when the spoliation occurred. Florida courts have held that an affirmative duty to preserve evidence can arise in several situations: by contract, statute, or a discovery request, see, e.g., Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (Fla. 4th DCA 2004); where one party promises to preserve evidence, see e.g., Brown vy. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995); or by court order, see e.g., Rockwell Int'l Corp. vy. Menzies, 561 So. 2d 677 (Fla. 3d DCA 1990).12. Although the majority of Florida courts recognize that there is no common law duty to preserve evidence in anticipation of litigation, recent Florida cases are following the trend of recognizing a duty to preserve evidence when there is a reasonable anticipation of litigation, See, e.g., Ford Motor Co. v. Stimpson, 115 So. 3d 401, 406 (Fla. 5th DCA 2013)(n a products liability action, the court remarked that a party had not committed fraud on the court by failing to maintain evidence for various reasons, including that there was no evidence showing that the action was foreseeable); Osmulski, 93 So.3d at 389 (holding that there is no duty to preserve evidence in the absence of a written request to preserve such evidence, but noting that it could be argued in the absence of a written request, “as long as a [party’s] claim is reasonably foreseeable, a formal request to preserve the evidence is not required in order for a [party] to be entitled to a jury instruction on spoliation”); American Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547 (Fla. 4th DCA 2005)(“[iJn the context of a claim for spoliation of evidence other than medical records, we have held that a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”); compare Royal & Sunalliance, 877 So. 2d at 846 (holding that there is no “common law duty to preserve the evidence in anticipation of litigation,” and clarifying the holdings in Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) and St. Mary’s Hospital, Inc. v. Brinson, 685 So, 2d 33 (Fla. 4th DCA 1996)). 13. Further, federal law is particularly instructive because Florida courts have not fairly addressed the preservation of electronically stored information in anticipation of litigation. Federal law on this point is clear that “[o]nce a party files suit or reasonably anticipates doing so . it has an obligation to make a conscientious effort to preserve electronically stored information that would be relevant to the dispute.” Southeastern Mech. Servs. v. Brody, 2009U.S. Dist. LEXIS 69830, 7 (M.D. Fla. 2009); see also, Palmas Y Bambu, S.A. v. EI. Dupont de Nemours & Co., 881 So, 2d 565, 579 n. 11 (Fla. 3d DCA 2004)(citing cases, including federal case law, where a duty to preserve evidence arises in anticipation of litigation). 14. ‘In this case, Digital had a duty to preserve its computers as it reasonably anticipated filing suit against Bay Village at least by March 27, 2008 knowing that such evidence would be relevant to the dispute, as discussed in more detail below. A party cannot dispose of potentially relevant or discoverable evidence just because a formal duty has not yet arisen. 1-13 LN Practice Guide: Florida E-Discovery & Evidence 13.04; see also Torres v. Matsushita Elec. Corp., 762 So. 2d 1014, 1019 (Fla. 5th DCA 2000)(Harris, J. concurring)(“[i]f one knows that he, she, or it is about to become involved in a civil action, this alone should be sufficient special circumstances to impose a duty of care to preserve such evidence in such potential party's possession that a reasonable person would foresee is material to that action. How can it legitimately be argued that a plaintiff who can sue the defendant, or even a third party, who loses evidence which is known to be relevant to a contemplated law suit has no duty to maintain evidence available to plaintiff and which plaintiff knows is relevant to his or her contemplated action?’’) 15. With respect to the third factor — whether the destroyed evidence is critical to Bay Village’s ability to prove its defense — the loss of electronic information on Digital’s computers is critical for two reasons: First, Digital and SW Florida Communications are seeking damages for lost profits from the alleged breach of contract by Bay Village. Without information concerning Plaintiffs past profits and losses on the hard drive of the discarded or destroyed computers, lost profits could be proved through the use of the profit and loss statements of acomparable company and Bay Village will be unable to impeach such evidence by use of actual profit and loss information from Digital’s computers. 16. Secondly, by disposing of all of Digital’s computers, Bay Village has been denied the ability to obtain notes of complaints on customer accounts and emails between Digital and its subcontractors that serviced Bay Village concerning complaints by Bay Village of poor service between September 2007 and January 31, 2008. These critical notes and emails would have established sub-standard service from Digital as alleged by Bay Village when it terminated the contracts with Digital on January 31, 2008. 17. In addition, Digital destroyed relevant evidence relating to other customers’ complaints of sub-standard service by Digital, generally referred to as similar-fact evidence. The rules governing similar fact evidence are embodied in section 90.404 of the Florida Evidence Code. This section provides that although similar-fact evidence is inadmissible when the evidence is relevant solely to prove bad character or propensity, similar-fact evidence of other acts is admissible when relevant “to prove a material fact in issue.” § 90.404(2)(a), Fla. Stat. (2013). 18. Complaints by other customers of sub-standard service by Digital goes to the material issue of whether Digital provided sub-standard service to Bay Village also. The Florida Supreme Court established the proper rule regarding the admissibility of similar fact evidence: “relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate [act]. The test of admissibility is relevancy.” Williams v. State, 110 So. 2d 654, 660 (Fla. 1959). The relevancy test was reaffirmed in 1977 and again in 2000. Akers v. State, 352 So. 2d 97, 97 (Fla. 4th DCA 1977); Olsen v. State, 751 So. 2d 108 (Fla. 2nd DCA 2000).19. —_ In the instant case, the discarded or destroyed computers belonging to Digital was intentional and occurred subsequent to a reasonable anticipation of litigation by Digital against Bay Village. Without the information on Digital’s computers, (1) Bay Village has no way to show the complaints against the services provided by Digital to Bay Village, and (2) Bay Village has lost valuable evidence that would have shown that Digital never made a profit in its history of operations. 20. The remedy for the spoliation of evidence by a party warrants sanctions. Sanctions are appropriate in spoliation cases “to assure that the non-spoliator does not bear an unfair burden.” Reed v. Alpha Prof'l Tools, 975 So. 2d 1202, 1204 (Fla. 5th DCA 2008). 21. The authority to sanction litigants for spoliation is found jointly in the Florida Rules of Civil Procedure and the inherent power of the Court. The appropriates of sanctions depends on “(1) the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, (2) the extent of prejudice suffered by the other party or parties, and (3) what is required to cure the prejudice.” Harrell v. Mayberry, 754 So. 2d 742, 745 (Fla. 2d DCA 2000). The determination of the appropriate sanction for spoliation is within the sound discretion of the Court and is assessed on a case by case basis. See Golden Yachts, 920 So. 2d at 780. 22. In intentional spoliation cases, courts may employ more drastic sanctions, including striking pleadings or entering default judgments. Golden Yachts, 920 So. 2d at 777; Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-47 (Fla. 2005); Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824 (Fla. 4th DCA 2002)(discussing that the ultimate sanction of dismissal is a remedy of last resort); Harrell, 754 So. 2d at 745 and the cases cited therein (discussing the factors for the appropriateness of sanctions). In cases involving negligent spoliation, courts prefer to utilize adverse evidentiary inferences and adverse presumptionsduring trial to address the lack of evidence. 1-13 LN Practice Guide: Florida E-Discovery & Evidence 13.05; citing Martino v. Wal-Mart Stores, Inc., 908 So, 2d 342, 346,347 (Fla. 2005). An inference is a “logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts.” Golden Yachts, 920 So. 2d at 780-81 (citation omitted). 23. Here, Digital’s conduct in connection with the loss of its computers constitutes spoliation of evidence. Therefore, it is appropriate for the Court to sanction Plaintiffs by allowing an adverse inference instruction. An adverse inference “may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Martino, 835 So. 2d at 1257. Because evidence contained on the discarded or destroyed computers was relevant to the instant case, the spoliation inference should be that Digital never made a profit and that Digital performed sub-standard services at Bay Village. See Palmas, 881 So. 2d at 583, n. 14 (“[t]he destroyed evidence must be relevant to the issue or matter for which the party seeks the inference.”) “Nothing in Florida's Evidence Code prevents ‘the drawing of an inference that is appropriate.’” Golden Yachts, 920 So. 2d at 780 (citation omitted). Wherefore, Bay Village respectfully requests that the Court sanction Digital and S.W. Florida Communications for spoliation of evidence through an inference that Digital proformed — sub-standard services under its contract with Bay Village leading up to the termination of the contract on January 31, 2008. Further, the Court should strike the Plaintiffs’ claim for lost profits.CERTIFICATE OF SERVICE I certify that on December Ax 2013, I electronically filed the foregoing document with the Clerk of Court using the Florida Courts E-Filing Portal which will send a notice of electronic filing to: Robert P. Watrous, Esq., 2055 Wood Street, Suite 208, Sarasota, Florida 34237, Gary Resnick, Esq., 401 East Las Olas Blvd., Las Olas City Centre, Suite 1850, Ft. Lauderdale, Florida 33301 and Robert B. George , Esq., Liles, Gavin, Costantino & George, 225 Water Street, Suite 1500, Jacksonville, Florida 32202 WILLIAMS PARKER HARRISON DIETZ/& GEPZEN 7 M. LEWIS HALL, III, Esquire Florida Bar No. 0249513 200 South Orange Avenue Sarasota, Florida 34236 (941) 366-4800 (telephone) (941) 954-3172 (facsimile) Attorneys for Defendant Bay Village_ CANNON, JOHN ve : From: | ‘p@watrouslaw.< com Sent: | Thursday, March 27, 2008 12:30 PM To: CANNON, JOHN V. Cc: Imiscavage@yahoo. com; dbeall4@comcast. net Subject: Bay Village/Digttal Dear Jack: As you may have guessed this dispute has not resolved itself. My clients can prove actual losses under the termination of this contract in excess of $700,000.00. In addition they have suffered other serious consequences as a result of your client's and Comcast's actions in pirating their system. This is a violation of both State and Federal law. This will give rise to other significant damages in excess of $100,000.00. Obviously my client (Digital is owned by a very experienced businessman) is not going to walk away from losses of this nature. However, I would like to make one attempt to resolve this prior to proceeding with litigation (I may be referring this case out in that it may be filed in Federal Court). Accordingly, I would like to try and set up a pre-suit mediation with a mutually agreeable mediator here in Sarasota. I would agreeable to exchanging documentation prior to the mediation if it would | . make the mediation 1 more productive. “ i have had1 my best success at inediation with Ed Ford and yourself, Obviously you are e niot available so I would suggest using Ed to mediate this matter. I am going to be out of town all of next week with my family on spring break and Sharon in my office can contact Dale so that we can start working towards scheduling (assuming your client would be agreeable to the same). E look forward to hearing your thoughts on this situation. Confidentiality Notice: This electronic mail transmission and any accompanying communications are covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and contains legally privileged and/or confidential information. Do not read this if you are not the person(s) named. Any use, distribution, copying, or disclosure by any other person is strictly prohibited. If) you received this transmission in error, please notify the sender by telephone 1.941.953-9771 or send an — - electronic mail message to rpw@watrouslaw. com and destroy the original transmission and its a . attachments without reading or r saving in r any f manner. rer ‘Robert P. Watrous, Chartered 2033 Wood Street a ‘Suite. 220 | a - Sarasota, FL 34237 (941) 953-9771 041): 953-9426IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA, COUNTY, FLORIDA, CIVIL DIVISION: DIGITAL COMMUNITY NETWORKS, INC. and SW FLORIDA COMMUNICATIONS, LLC, Plaintiffs, : OO VS. CASE NO.: 2009-CA-21535 NC BAY VILLAGE OF SARASOTA, INC. and COMCAST OF WEST FLORIDA, INC. Defendants. / DEFENDANT, BAY VILLAGE OF SARASOTA, INC.’S REQUEST TO PRODUCE TO PLAINTIFF Defendant, BAY VILLAGE OF SARASOTA, INC., requests Plaintiffs, DIGITAL COMMUNITY NETWORKS, INC. to produce the following described documents at the offices of Williams, Parker, Harrison, Dietz & Getzen, 200 South Orange Avenue, Sarasota, Florida 34236, no later than thirty (30) days after service hereof, as provided for in Rule 1.350, Florida Rules of Civil Procedure. | DEFINITIONS (a) Where the name or identity of a person or persons is requested, please state the full name, home address, business or employment address and telephone number. (b) The term “person” means any individual, firm, partnership, corporation, association or other business enterprise. (Cc) Where knowledge or information of possession of a party or parties is requested, such request includes knowledge of the party's agents, representatives, and, unless privileged, his/her attorneys. (d) The pronouns “you”, “your”, and “yours,” refer to the party to whom the Interrogatories are addressed and the persons mentioned i in clause (c). (e) “Referring” and “relating” means showing, disclosing, averring to, comprising, evidencing, constituting, or reviewing, in whole or in part. —(f) The term “writing” includes, but i is not limited to, books, records, letters, telegrams, notes, memoranda, diaries, worksheets, computation tabulations, financial statements and drafts of any of the foregoing, whether originals: or copies, and in whatever language and all othertangible things on which words, figures, notations or sounds are recorded in writing or by any. other means, and any such material underlying, supporting, or used in the preparation thereof. (g) The term “document” or “documents” refers to all written, electronic or electronically stored, recorded, taped, filmed or graphic matter, however produced or reproduced, of every kind and description, whether readable by human or mechanical form, whether stored in tangible, electronic, mechanical or electric form of representation of any kind, whether located on-site or off-site, and whether produced internally or received from an outside source, including, but not limited to: papers, facsimile transmission sheets, books, letters, photographs, architectural plans, prospectuses, specifications, drawings, blueprints, sketches, feasibility studies, objects, tangible things, correspondence, telegrams, memoranda, inter-office communications, _ intra-office communications, reports, studies, surveys, contracts, work orders, vendors’ agreements, subcontractors’ agreements, contractors’ agreements, licenses, building permits, permits of any kind, permit applications of any kind, agreements, spreadsheets, graphs, graphic material of any kind, projections, presentations, change orders, ledgers, books of account, transcripts, analyses, proposals, estimates, legal pleadings and other legal documents, medical records, deeds, mortgages, bills of sale, security agreements, telephone messages, handwritten notes of any kind, vouchers, record of inter-bank and intra-bank transfers of funds, bank checks, certificates of deposit, deposits, cashier's checks, invoices, drafts, charge slips, receipts, freight bills, working papers or drafts, statistical records, notebooks, calendars, appointment books, diaries, agendas, time sheets, logs, bids, job or transaction files, credit reports, notations, notes, sound records of any type, minutes of directors or other meetings, phono-records, cassette or tape recordings or any other mechanical compilation from which information can be obtained and any transcriptions thereof, bulletins, circulars, press releases, notices, instructions, advertisements, work assignments, motion picture films, any films of any description, videotapes, CD [compact disc] recordings, recording tape or wires, all mechanical electronic sound recordings and transcripts thereof, kinescopes, research or other articles and treatises, including all attachments and enclosures thereto, intellectual property, computer programs, computer printouts, computer software, computer systems, computer networks, computer system services, computer access, hard/floppy discs, backup copies and deleted computer files, including metadata. (h) The term “identify” or “state” means: L When used with reference to an individual person, means to state his/her full name, his/her position and business affiliation at that time referred to, and his/her last known residence and business addresses. ii. When used with reference to a firm, partnership, corporation, association or other business enterprises, means to state its full name and address. iii. When used with reference to a writing, means to state its date, author, addressee, recipient, type (e.g., book, record, letter, memorandum or some other means of identifying it), its present location and custodian and to state the substance thereof or to annex to and incorporate into the answers to these Interrogatories a true and correct copy thereof. (i) The term “all” includes the word “any” and vice versa. (j) The term “and” includes the word “or’ and vice versa.' (k) The term “communications,” means any transmission or exchange of information between two or more persons or entities, orally or in writing, and includes without limitation any conversation or discussion whether face to face or by means of any telephone, telegraph, facsimile, electronic or other media, including metadata. (I) The term "active file," when used in this document, means any electronic data file that can be utilized by an electronic data processing system in any manner without modification and/or re-construction. An active file is any electronic data file that has not been erased or otherwise destroyed and/or damaged and which is readily visible to the operating system and/or the software with which it was created. (m) The term "archive," when used in this document, is intended to refer to all processes for copying and storage, whether temporary or permanent, of electronic data in a computer system, other than active files in on-line storage. "Archive" or "archiving" refers to any system for maintaining electronic data off-line, whether referred to as an archive, dump, purge or by other terms, and also to any system for storage of electronic media which is not in current use on the system. (n) The term "computer," when used in this document, shall include, but is not limited to, microcomputers (also known as personal computers), laptop computers, portable computers, notebook computers, palmtop computers, personal digital assistants, minicomputers and mainframe computers. (0) The term “computer program,” means an ordered set of data representing coded instructions or statements that when executed by a computer cause the computer to process data. (p) The term “computer software,” means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system. (q) The term “computer system,” means a set of related, connected or unconnected, computer equipment, devices, or computer software. (r) The term “computer network,” means a set of related, remotely connected devices and communication facilities including more than one computer system with capability to transmit data among them through communication facilities. (Ss) The term “computer system services,” means providing a computer system or computer network to perform useful work. (t) The term "data," when used in this document, is equivalent to the term "electronic data" as defined herein. (u) The term "deleted file," when used in this document, means any electronic data file that has been erased or deleted from the electronic media on which it resided. A deleted file includes any file whose File Allocation Table (FAT) entry has been modified to indicate the file as being deleted and/or which is not readily visible to the operating system and/or the software with which it was created. (v) The term "electronic data, " when Used | in this documért, means all information of all. kinds maintained by electronic data processing systems including all non-identical copies of suchinformation: Electronic data includes, but i is not imited to, computer programs 5 (whether private, - commercial or work in progress), programming notes or instructions, and input and/or output used _ or produced by any software program or utility” (including electronic mail messages and all information referencing or relating to such_message anywhere on the computer system, word processing documents and all information stored in connection with such documents, electronic spreadsheets, databases including all records and fields and structural information, charts, graphs and outlines, arrays of information and all other information used or produced by any software), operating systems, source codes of all types, programming languages, linkers and compilers, peripheral drivers, PIF files, batch files, any and all ASCIl files, and any and ail miscellaneous files and/or file fragments, regardless of the media on which they reside and regardless of whether said electronic data consists in an active file, deleted file or file fragment. Electronic data includes any and all information stored on computer memories, hard discs, floppy discs, CD's, DVD's, internal or external hard drives, ZIP Drives, Bernoulli Box drives and their equivalent, magnetic tape of all types, microfiche, punched cards, punched tape, computer chips, including, but not limited to, EPROM, PROM, RAM and ROM, or on or in any other vehicle for digital data storage and/or transmittal. The term electronic data also includes the file, folder tabs and/or containers and labels appended to, or associated with, any physical storage device associated with the information described above. (w) The term “electronically-stored information,” is any information created, stored or best utilized with computer technology of any type. It includes, but is not limited to, data; word processing documents, spreadsheets, presentation documents, graphics, animations, images, email and instant messages (including attachments) audio, video and audiovisual recordings, voicemail stored on databases, networks, computers and computer systems, servers, archives, backup or disaster recovery systems, discs, CD’s diskettes, drives, tapes, cartridges and other storage media, printers, the Internet, personal digital assistants, handheld wireless devices, cellular telephones, pagers, fax machines and voicemail systems. (x) The term “accessible information,” is electronically stored information that is easily retrievable in the ordinary course of business without undue cost and burden. (y) The term “metadata,” means information embedded in a native file that is not by the operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted or otherwise manipulated by a user of such system. Metadata are a subset of electronically stored information. (Z) The term “native file(s),” means electronically stored information in the electronic format of the application in which such electronically stored information is normally created, viewed and/or modified. Native files are a subset of electronically stored information. (aa) The term “static image(s)," means a representation of electronically stored information produced by converting native files into a standard image format capable of being viewed and printed on standard computer systems. In the absence of agreement of the parties or order of Court, a static image should be provided in either Tagged Image File Format (TIFF, or TIF files) or Portable Document Format (PDF). If load files were created in the process of converting native files to static images, or if load files may be created without undue burden or cost, load files should be produced together with static images. (bb) The term “intellectual property,” means data, including programs.- (ec) All other words are given their plain, ordinary meaning, unless indicated otherwise in the Interrogatory. Bo ee Ne INSTRUCTIONS 1. Any document as to which a claim of privilege is or will be asserted should be identified by author, signatory, description (e.g., letter, memorandum, telex, recording, etc.), title (if any), date, addresses (if any), general subject matter, present depository and present custodian and a complete statement of the ground for the claim of privilege to be set forth. 2. lf any of the documents requested herein have been lost or destroyed since their creation, identify each of the missing documents, state when, where, how and by whom the documents were lost or destroyed, the name of the person who authorized or directed such destruction, and identify by name and address, the person who last had custody of the missing documents. 3. If any of the documents cannot be produced in full, produce to the extent possible, specifying the reasons for the inability to produce the remainder. 4. Documents to be produced include the originals of all documents, plus all drafts of any requested documents and all copies of any requested document, by whatever means made, which bear any marking or other notation or differ in any way from the original. Documents maintained on different storage media shall be regarded as documents which differ from the original. 5. To the extent any of the documents are in electronic or computer form, please produce such electronic or computer form of the documents on floppy disk or CD-ROM, as well as in hard copy, and state the filename and path under which such data is stored. li REQUEST FOR PRODUCTION 1. A fully executed copy of the Agreement to Render Management Services attached as Exhibit B to the Motion to Compromise filed in the Digital Community Networks, Inc. bankruptcy on January 8, 2007. 2. A fully executed copy of the assignment from Digital Community Networks, Inc. to Bay Village Cable, LLC of the Bulk Cable Service Contract with Bay Village of Sarasota, Inc.. 3. A complete,signed copy of all documents executed by either Digital Community Networks, Inc., Bay Village Cable, LLC and Woolf Cable Television Service, LLC on or about June 5, 2005. 4. A compete, fully executed copy of all settlement documents relating to the compromise reached by Digital Community Networks and the Defendants in Case No. 8:06-bk- 01702-MGWV filed in the Middle District Bankruptcy Court. 5. Copies of Digital Community Networks tangible tax returns for the years 2005 to 2009. a a — —«S5. Copies of all written complaints, in any form, by customers of Digital Community Networks from January 2006 to January 31, 2008.coe "CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and eorrect copy | of the foregoing has been furnished via United States Mail, postage prepaid to Robert P. Watrous, Esq., 2033 Wood Street, Suite 220, Sarasota, FL 34237 and Robert B. George, Esq., 225 Water n Street, Suite 1500, Jacksonville, FL 32202 this~/ day of May, 2010. / Florida Bar No. 154986 _M. Lewis Hall, Esquire Florida Bar No. 0249513 200 South Orange Avenue Sarasota, FL 34236 (941) 366-4800 (telephone) (941) 954-3172 (facsimile) Attorneys for Defendant Bay Village 1172948 1.docxIN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA DIGITAL COMMUNITY NETWORKS, INC. And SW FLORIDA COMMUNICATIONS, LLC, Plaintiffs, V. CASE NO.:2009 CA 21535 NC BAY VILLAGE OF SARASOTA, INC. And COMCAST OF WEST FLORIDA, INC. Defendants. / PLAINTIFFS’ RESPONSE TO DEFENDANT BAY VILLAGE OF SARASOTA, INC.’S REQUEST FOR PRODUCTION OF DOCUMENTS COMES NOW the Plaintiffs, DIGITAL COMMUNITY NETWORKS, INC. and SW FLORIDA COMMUNICATIONS LLC, by and through their undersigned attorney and hereby responds to Defendant BAY VILLAGE OF SARASOTA, INC.’s Request for Production of Documents served on May 27, 2010 as follows: 1. A true and accurate executed copy of the Agreement to Render Management Services is attached hereto and provided herewith. 2. A true and accurate executed copy of the Assignment is attached hereto and provided herewith. 3. True and accurate copies of signed documents executed by Digital Community Networks, Inc., Bay Village Cable, LLC and Woolf Cable Television Service, (LC on or about June 5, 2005 are attached hereto and provided herewith. 4. Any and all executed documents responsive to this request would be in the possession of Roberta Colton, Esquire and/or James Gibson, Esquire. RECEIVED JEP AA 20195. Copies of tangible tax returns from the years 2008, 2006 and 2007 are being obtained and will be provided with the filing ofa supplemental response to this Request for Production. Plaintiff objects to the production of tangible tax returns fore the years 2008 and 2009 when Defendants converted Plaintiffs property illegally and improperly for their own use and benefit. 6. Plaintiff objects to this Request for Production in that it improperly assumes facts that are inaccurate as well as does not identify which “customers” of Digital Community Networks this Request refers to. CERTIFICATE OF SERVICE |] HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail to John V. Cannon, Esquire, 200 South Orange Avenue, Sarasota, FL 34236 and Robert B. George, Esquire, 225 Water Street, Suite 1500, Jacksonville, FL 32202 this\2 day of September, 2010. ROBERT P. WATROUS, CHARTERED 2055 Wood Street, Suite 208 Sarasota, Florida 34237 (941) 953-9771 (941) 953-9426 To NCO oh & Robert P. Watrous Esq., FBN 458015IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL DIVISION meme mmm me mmm wm meme eee DIGITAL COMMUNITY NETWORKS, INC., and SW FLORIDA COMMUNICATIONS, LLC, Plaintiffs, VS. CASE NO. 2009CA021535NC BAY VILLAGE OF SARASOTA, INC., and COMCAST OF WEST FLORIDA, INC., Defendants. mee mmm mmm mmm mmm ee Deposition of DAVID BEALL, a Witness herein, taken on behalf of the Plaintiffs herein, pursuant to notice and the Florida Rules of Civil Procedure, commencing at 10:14 a.m. and concluded at 3:39 p.m. on Thursday, May 24, 2012, at the offices of Williams, Parker, Harrison, Dietz & Getzen, 200 S. Orange Avenue, Sarasota, Florida, before me, Diana A. Demby, RMR, Notary public in and for the State of Florida at Large. The Court Reporters Sarasota, Florida 941.951.194110 11 12 13 1.4 15 16 1] 18 19 20 21 22 23 24 29 71 Q Okay. Are you aware that we have requested documents in terms of emails and other communications that occurred perhaps between Digital or Southwest Florida Communications and Bay Village? A I remember that you asked for -- as -- as concerns the tax -- I mean -- the -- the property tax? Q Well, actually, just generally anything that pertained to this case. We have tried to get, as your counsel has tried to get from us, we sought the same things from you folks. A Correct. We have sent you everything we have. O And there were some -- there was a statement, I think in the deposition of Mr. Miscavage that you were present at, in which he said that the documents had been -- well, were on a computer that had been destroyed. A That is correct. Q What did he mean by that? MR. WATROUS: Wait. I'm going to object on speculation. If you want to ask him what he's discussed with the witness, I've got no problem. BY MR. HALL: Q Okay. Well, what happened to that (se he eee ree ee eer rere en neers nee eee The Court Reporters Sarasota, Florida 941.951.194110 11 12 13 14 15 16 1] 18 19 20 21 22 23 24 29 72 computer? Do you have any personal knowledge of what happened to the computer? A No, not -- not exactly. But I'm happy to try and explain what I do know. Q Okay, Tell me what you do know about it. A When -- we were forced almost immediately to move -- to move the office from where we were to a smaller space, and we then moved out to a different space. We had, by this time, had changed -- we had a new contractor. If we want to think about Digital at the time as the contractor for SWF, we now at this time had a new contractor, and we're now talking about summer of 2008 as a rough time frame. The -- several of -- they were moved. Again, we had some serious problems. We brought a -- brought an expert in -- this really didn't have anything to do with the time of the lawsuit -- we brought an expert in, some guy that, you know, one of these forensic guys -- I don't know what you call them -- to try and save some of stuff that we had. The new, the new company had taken over, and when I say taken over, they did something. I don't know what they did. To this day I don't know. Anyway, we could not retrieve a lot of the older rr ec eee ener cee errr eee ere ee eee ere ne eee ee er eee ee ee a li a The Court Reporters Sarasota, Florida 941.951.1941]10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 stuff that was on the computers. Some accounting stuff was gone and Loraine's computer was toast. I mean, he couldn't -- couldn't get anything out of it. And we -- so eventually after another move, I can't honestly tell you what happened to the computers, but they were worthless; and as far as I Know they got thrown out or whatever happened to them. I don't know. We had tried to retrieve what we could, but unfortunately a lot of the stuff was just not retrievable. I mean, there wasn't anything there, according to the forensics guy. Q When did they get thrown out? A I can't honestly tell you, except to say that it was sometime, I would say in the 2009, early time frame. I think that's when we -- we -- we moved a lot of the stuff out of the -- they moved some of the stuff out of the office and put it up -- the new people were pretty well entrenched then. Q Do you recall -- you recall that we had an early mediation in this case -- A Yes. Q —- and you were there. Was it after that early mediation? The Court Reporters Sarasota, Florida 941.951.194110 1 12 13 14 15 Lo 1/ 18 19 20 21 22 23 24 25 74 A I can't -- I just don't -- I can't honestly Say one way or the other. Let me ask you to -- are you saying that they were thrown out or that we had tried to gather the information? Those are kind of two different questions. I believe they would have been thrown out sometime after the mediation, because I kind of remember the time of that. We had -- they were just sitting in the office collecting dust at that point. QO Were they thrown out after this lawsuit was initiated? A What's that date? MR. WATROUS: It's an '09 case number. MR. HALL: Sometime prior to March 28th -- well, I don't have the exact date. Ld WITNESS: When was the mediation? THI MR. WATROUS: Presuit -- THE WITNESS: No, I mean approximate time frame, MR. HALL: I want to say 2008, 2009, early 2009. MR. WATROUS: IT can't remember. THE WITNESS: Anyway, I guess I can't -- I can't answer that question. I don't remember. The Court Reporters Sarasota, Florida 941.951.1941