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eFile Accepted: 10/27/2014 03:02 PM
Filing # 19846406 Electronically Filed 10/27/2014 11:24:32 AM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
McCANN HOLDINGS, LTD.,
Plaintiff,
V. | Case No. 2011-CA-003897-NC
Uniform Case No. 58201 1CA0038970000NC
SDC COMMUNITIES, INC., | Judge Peter Dubensky
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC,
HENRY RODRIGUEZ and
RANDALL BENDERSON,
Defendants.
/
NON-PARTY WITNESSES MATTHEW LEWIS AND LISA NISENSON’S
RESPONSE TO PLAINTIFF’S MOTION TO COMPEL AND MOTION IN LIMINE
Non-party Witnesses Matthew Lewis (“Lewis”) and Lisa Nisenson (“Nisenson’’) hereby
respond to Plaintiff McCann Holdings, Ltd.’s (“McCann”) Motion to Compel and Motion in
Limine as follows:
MecCann’s Motion
Plaintiff McCann moves for an order compelling Lewis and Nisenson to appear for
deposition, and also move in limine for an order prohibiting the testimony of those who have
invoked their legislative privilege. Lewis and Nisenson have no objection to McCann’s Motion
in Limine. They do object to any order compelling them to testify in this case, on the basis of
their legislative privilege.
McCann is a private landowner and developer suing two other private developers over
what it alleges to be breaches of their obligations to support a proposed amendment to the
Sarasota County Comprehensive Plan. Lewis and Nisenson are two former County planners
whose only conceivable relationship to the issues in this case relate to their work on the same
{ 12-50409-1-00189763. DOCX:| 3Plan Amendment. They have invoked their legislative privilege and this Court previously has
ruled that they “demonstrated an entitlement to a protective order precluding the scheduling of
their depositions.” The prior Order was argued and then reargued upon McCann’s motions.
McCann’s Motion to Compel essentially seeks to argue it again. McCann’s current argument
advances no purported basis or subject for a different result, other than there may be some
questions that McCann’s counsel could ask that might not be subject to the privilege. However,
compelling Lewis and Nisenson to appear for depositions to ask “objective” or “general”
questions on the issues in this case just as surely violates their legislative privilege.
The Legislative Privilege
McCann does not argue that the legislative privilege does not exist under Florida law, or
that it does not apply in this case. Instead, McCann appears to challenge the scope of the
privilege, i.e. that holders of the privilege may be compelled to answer related questions anyway.
The two reported Florida decisions dictate otherwise. In Florida House of Representatives v.
Expedia, Inc., 85 So. 3d 517 (Fla. Ist DCA 2012), the court applied the privilege to prohibit the
compelled depositions of Florida legislators and their staff. The Florida Supreme Court later
held that the legislative privilege is qualified only where a “competing compelling purpose”
warrants such a compromise, such as to allow “objective” questions. League of Women Voters
of Florida, Inc. v. Florida House of Representatives, 132 So. 3d 135 (Fla. 2013). The competing
compelling purposes cited by the Supreme Court all involved vindication of significant public
prerogatives such as criminal investigations or, in the League of Women Voters’ case, instances
of gerrymandering in violation of the Florida Constitution. The Court distinguished a case where
(12-50409-1-00189763.DOCX:1 } 2private rights, even constitutional ones, were at issue. McCann does not argue, and this case
does not present, the vindication of any compelling rights of the public.
However relevant or interesting peripheral questions about their personal history or
former job duties may be, McCann provides no basis for compelling Lewis and Nisenson to
appear at deposition in violation of their legislative privilege. See Expedia, 85 So. 3d 317
(prohibiting deposition where inquiry was about where legislator and aide obtained a particular
document). “Gathering information pertaining to potential legislation and sharing it with
colleagues is an essential part of the legislative process.” Id. at 525. As both Expedia and
League of Women Voters made clear, the privilege encompasses both subjective and objective
matters that “relate[s] to functions undertaken by legislators and legislative staff during the
course of their legitimate legislative duties....” League at 147.
The Florida Supreme Court also recognized that a principal reason for the privilege 1s to
protect legislators "from intimidation by a hostile executive’” and “‘from the burdens of forced
participation in private litigation.’” League at 146 (quoting Kertulla v. Abood, 686 P.2d 1197,
1205 (Alaska 1984)). Compelling Lewis and Nisenson, or any other staff member or
Commissioner involved in the Plan Amendment at issue in this case to testify also would violate
that basis for their privilege. JLewis and Nisenson have no testimony that could be relevant to
this case other than privileged testimony about the Plan Amendment. Deposing them serves no
purpose, other than to force them to repeatedly assert their privilege as McCann tries to induce
them to say something that McCann can assert to be a waiver, or than to provide fodder for
McCann's federal lawsuit against Sarasota County and former Sarasota County Administrator
James Ley. They should not be compelled to testify.
(12-50409-1-00189763.DOCX:1 } 3Lewis and Nisenson request that the Court deny McCann’s Motion to Compel their
depositions.
Respectfully submitted on this 27th day of October, 2014.
Stephen E. DeMarsh, County Attorney
Alan W. Roddy, Deputy County Attorney
OFFICE OF THE COUNTY ATTORNEY
1660 Ringling Boulevard, Second Floor
Sarasota, Florida 34236
Telephone: (941) 861-7261
Facsimile: (941) 861-7267
Email: aroddy@scgov.net
Counsel for Non-parties Witnesses Matthew Lewis
and Lisa Nisenson
w LAU
Alan W. Roddy, Deputy C
Florida Bar No. 094764
unty Attorney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
electronically filed with the Clerk of Court using the E-Filing Portal on this 27th day of October,
2014, which will send a notice of electronic filing to the following:
Steven D. Hutton, Esq. Edward Vogler, II, Esq.
Przemyslaw L. Dominko, Esq. — Vogler Ashton, PLLC
Steven D. Hutton, P.L. 2411-A Manatee Ave. W.
240 South Pineapple Ave., Suite 801 Bradenton, FL 34205
Sarasota, FL 34236 EdVogler@voglerashton.com
sdh@huttonlawhirm.com Counsel for Defendants, VOTT
pdominko(@huttonlawfirm.com and Randall Benderson
Counsel for Plaintiff, McCann Holdings, Ltd.
Morgan R. Bentley, Esq.
Bentley & Bruning P.A.
783 S. Orange Ave., Suite 220
Sarasota, FL 34236
mbentley@bentleyandbruning.com
Counsel for Defendants, SDC Communities, Inc.
and Henry Rodriguez
{12-50409-1-00189763.DOCX:1 } | 4By: Atic/t
Alan W. Roddy, Deputy County Attorney
llorida Bar No. 0947644
{12-50409-1-00189763. DOCX:1 }
a
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eFile Accepted: 10/27/2014 03:02 PM Filing # 19846406 Electronically Filed 10/27/2014 11:24:32 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA McCANN HOLDINGS, LTD., Plaintiff, V. | Case No. 2011-CA-003897-NC Uniform Case No. 58201 1CA0038970000NC SDC COMMUNITIES, INC., | Judge Peter Dubensky VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ and RANDALL BENDERSON, Defendants. / NON-PARTY WITNESSES MATTHEW LEWIS AND LISA NISENSON’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL AND MOTION IN LIMINE Non-party Witnesses Matthew Lewis (“Lewis”) and Lisa Nisenson (“Nisenson’’) hereby respond to Plaintiff McCann Holdings, Ltd.’s (“McCann”) Motion to Compel and Motion in Limine as follows: MecCann’s Motion Plaintiff McCann moves for an order compelling Lewis and Nisenson to appear for deposition, and also move in limine for an order prohibiting the testimony of those who have invoked their legislative privilege. Lewis and Nisenson have no objection to McCann’s Motion in Limine. They do object to any order compelling them to testify in this case, on the basis of their legislative privilege. McCann is a private landowner and developer suing two other private developers over what it alleges to be breaches of their obligations to support a proposed amendment to the Sarasota County Comprehensive Plan. Lewis and Nisenson are two former County planners whose only conceivable relationship to the issues in this case relate to their work on the same { 12-50409-1-00189763. DOCX:| 3Plan Amendment. They have invoked their legislative privilege and this Court previously has ruled that they “demonstrated an entitlement to a protective order precluding the scheduling of their depositions.” The prior Order was argued and then reargued upon McCann’s motions. McCann’s Motion to Compel essentially seeks to argue it again. McCann’s current argument advances no purported basis or subject for a different result, other than there may be some questions that McCann’s counsel could ask that might not be subject to the privilege. However, compelling Lewis and Nisenson to appear for depositions to ask “objective” or “general” questions on the issues in this case just as surely violates their legislative privilege. The Legislative Privilege McCann does not argue that the legislative privilege does not exist under Florida law, or that it does not apply in this case. Instead, McCann appears to challenge the scope of the privilege, i.e. that holders of the privilege may be compelled to answer related questions anyway. The two reported Florida decisions dictate otherwise. In Florida House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla. Ist DCA 2012), the court applied the privilege to prohibit the compelled depositions of Florida legislators and their staff. The Florida Supreme Court later held that the legislative privilege is qualified only where a “competing compelling purpose” warrants such a compromise, such as to allow “objective” questions. League of Women Voters of Florida, Inc. v. Florida House of Representatives, 132 So. 3d 135 (Fla. 2013). The competing compelling purposes cited by the Supreme Court all involved vindication of significant public prerogatives such as criminal investigations or, in the League of Women Voters’ case, instances of gerrymandering in violation of the Florida Constitution. The Court distinguished a case where (12-50409-1-00189763.DOCX:1 } 2private rights, even constitutional ones, were at issue. McCann does not argue, and this case does not present, the vindication of any compelling rights of the public. However relevant or interesting peripheral questions about their personal history or former job duties may be, McCann provides no basis for compelling Lewis and Nisenson to appear at deposition in violation of their legislative privilege. See Expedia, 85 So. 3d 317 (prohibiting deposition where inquiry was about where legislator and aide obtained a particular document). “Gathering information pertaining to potential legislation and sharing it with colleagues is an essential part of the legislative process.” Id. at 525. As both Expedia and League of Women Voters made clear, the privilege encompasses both subjective and objective matters that “relate[s] to functions undertaken by legislators and legislative staff during the course of their legitimate legislative duties....” League at 147. The Florida Supreme Court also recognized that a principal reason for the privilege 1s to protect legislators "from intimidation by a hostile executive’” and “‘from the burdens of forced participation in private litigation.’” League at 146 (quoting Kertulla v. Abood, 686 P.2d 1197, 1205 (Alaska 1984)). Compelling Lewis and Nisenson, or any other staff member or Commissioner involved in the Plan Amendment at issue in this case to testify also would violate that basis for their privilege. JLewis and Nisenson have no testimony that could be relevant to this case other than privileged testimony about the Plan Amendment. Deposing them serves no purpose, other than to force them to repeatedly assert their privilege as McCann tries to induce them to say something that McCann can assert to be a waiver, or than to provide fodder for McCann's federal lawsuit against Sarasota County and former Sarasota County Administrator James Ley. They should not be compelled to testify. (12-50409-1-00189763.DOCX:1 } 3Lewis and Nisenson request that the Court deny McCann’s Motion to Compel their depositions. Respectfully submitted on this 27th day of October, 2014. Stephen E. DeMarsh, County Attorney Alan W. Roddy, Deputy County Attorney OFFICE OF THE COUNTY ATTORNEY 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Telephone: (941) 861-7261 Facsimile: (941) 861-7267 Email: aroddy@scgov.net Counsel for Non-parties Witnesses Matthew Lewis and Lisa Nisenson w LAU Alan W. Roddy, Deputy C Florida Bar No. 094764 unty Attorney CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been electronically filed with the Clerk of Court using the E-Filing Portal on this 27th day of October, 2014, which will send a notice of electronic filing to the following: Steven D. Hutton, Esq. Edward Vogler, II, Esq. Przemyslaw L. Dominko, Esq. — Vogler Ashton, PLLC Steven D. Hutton, P.L. 2411-A Manatee Ave. W. 240 South Pineapple Ave., Suite 801 Bradenton, FL 34205 Sarasota, FL 34236 EdVogler@voglerashton.com sdh@huttonlawhirm.com Counsel for Defendants, VOTT pdominko(@huttonlawfirm.com and Randall Benderson Counsel for Plaintiff, McCann Holdings, Ltd. Morgan R. Bentley, Esq. Bentley & Bruning P.A. 783 S. Orange Ave., Suite 220 Sarasota, FL 34236 mbentley@bentleyandbruning.com Counsel for Defendants, SDC Communities, Inc. and Henry Rodriguez {12-50409-1-00189763.DOCX:1 } | 4By: Atic/t Alan W. Roddy, Deputy County Attorney llorida Bar No. 0947644 {12-50409-1-00189763. DOCX:1 } a