Preview
eFile Accepted: 10/17/2014 03:31 PM
Filing # 19527758 Electronically Filed 10/17/2014 03:05:43 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA, COUNTY, FLORIDA
McCANN HOLDINGS, LTD.,
Plaintiff,
Vv. Case No. 2011CA003897NC
SDC COMMUNITIES, INC., JURY TRIAL DEMANDED
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC,
HENRY RODRIGUEZ, and
RANDALL BENDERSON,
Defendants.
/
PLAINTIFF’S MOTION TO COMPEL AND MOTION IN LIMINE
~—
Plaintiff, McCann Holdings, Ltd. (“McCann”), pursuant to
Fla. R. Civ. P. 1.380, moves to compel the deposition testimony
of non-parties, Matthew Lewis and Lisa Nisenson’, moves in limine
to exclude the testimony of certain Sarasota County
commissioners and employees, and states:
1. On July 18, 2014, this Court entered an Order Granting
Non-Party Witnesses David Bullock, Matthew Lewis and Lisa
Nisenson’s Motion for Protective Order and Order Denying
pone
Plaintiff’s Motion for Reconsideration and/or Rehearing (the
“Order”).
2. Subsequently, McCann attempted Lo schedule the
depositions of Lewis and Nisenson, but was prevented from doing
‘ During the period of time relevant to McCann’s claims, Lewis served as the
Planning and Development Services Operational Manager and Nisenson served as
the Planning and Development Services Greenhouse Gas Reduction Coordinator.
Neither is now employed by Sarasota County.so by the Sarasota County Deputy Attorney, Alan Roddy, who is
apparently acting as counsel for Lewis and Nisenson, and who has
an
declared that, as a result of Lewis and Nisenson’s purported
~—
assertion of the legislative privilege, they are not required to
2
even appear for a deposition in the first instance.
3. Notably, Tom Polk, who was the Planning and
Q
Development Services Planning Director at the time of the
Amendment, who is still employed by Sarasota County and who is
also represented by Mr. Roddy has waived the legislative
privilege and is scheduled to be deposed on October 28, 2014.
4. On information and belief, Lewis and Nisenson’s
—
assertion of the legislative privilege is not an independently-
t
reached decision but, rather, a decision that has been made for
them by the Sarasota County Deputy Attorney.
iB}
5. McCann should be allowed to take the depositions of
Lewis and Nisenson for at least the following reasons:
—
a. Neither the intent of the Order nor League of
0
— a
Women Voters of Florida v. Florida House of Representatives, 132
“ Presumably, Mr. Roddy’s position is based upon the following statement
contained in the Order: “Accordingly, the Court finds that these movants have
demonstrated an entitlement to a protective order precluding the scheduling
of their depositions.” Order, p. 5. However, a fair reading of the Order in
its entirety indicates that the Court intended to protect the non-parties
from having to answer questions falling within the scope of the legislative
privilege (1i.e., questions related to the non-parties’ subjective thoughts
and impressions) and not from having to appear for a deposition or answering
questions falling outside the scope of the privilege.
2th
So.3d 135 (Fla. 2013) precludes the scheduling and taking of a
deposition in the first instance;
b. The privilege should be invoked in response to
}
specific questions that seek information falling within the
a
scope of the qualified privilege, not to the scheduling and
~_
taking of the depositions in the first place’;
Cc. The decision to invoke or not invoke the
privilege should be made independently by Lewis and Nisenson,
not the County Deputy Attorney who has selectively allowed
; 1 ' 4
current Sarasota County employees to waive the privilege’; and
—
d. One of McCann’s purposes for taking the
depositions is to have Lewis and Nisenson authenticate various
e-mails and other documents related to the EEZ and the Amendment
a
and to verify (or not) statements that have been attributed to
them by third parties.”
6. Based upon the foregoing, Lewis and Nisenson should be
compelled to: (a) appear for their depositions; (b) invoke the
legislative privilege in response to specific questions, if they
° As the Court has noted, “objective information falls outside the scope of
the privilege, and is subject to disclosure.” Order, p. 3.
“The law is clear that “legislative privilege is personal in nature” and that
it “may be waived or invoked by individual legislators and their staff
members.” Order, p. 5. The privilege should not be invoked by the County for
and on behaif of its former employees.
° For example, Jim Paulmann testified in his deposition taken October 15, 2014
(which has not yet been transcribed) about various conversations with, and
statements by, Lewis and Nisenson.make the independent decision to do so; and (c) answer questions
falling outside the scope of the legislative privilege.
_—
TV. In addition, because this action is set for trial
during the trial period beginning November 10, 2014, to the
extent that any witness or potential witness has invoked the
legislative privilege in this action®, all such witnesses should
be prohibited from waiving the privilege and testifying at trial
to the matters over which they have previously invoked the
privilege. See, Romo v. Detzner, No. 2012-CA-412 (Fla. 2d Cir.
Ct., Oct. 3, 2012) (“[O]nce the legislative defendants invoke the
pte —
privilege and deprive the plaintiffs of the discovery necessary
for them to properly prepare their claim, it may be difficult to
overcome the prejudice inherent in a last moment decision to
waive the privilege and testify at trial.”)
CERTIFICATE OF GOOD FAITH
The undersigned counsel for McCann, in an effort to resolve
the issues regarding the depositions, has attempted to confer in
good faith with counsel for Lewis and Nisenson and has been
unable to resolve these issues without court action.
WHEREFORE, McCann requests the following:
© Nora Patterson and Shannon Staub invoked the privilege in response to
questions asked during their depositions. To date, David Bullock, Matthew
Lewis and Lisa Nisenson have not provided any testimony based upon their
assertion of the privilege prior to even being deposed.
‘|t
A. An Order compelling the deposition testimony of non-
parties, Matthew Lewis and Lisa Nisenson;
B. An Order in Limine excluding from admission into
evidence or prohibiting the parties, the attorneys and any
4
witness from testifying to, commenting on or alluding to any
testimony over which the legislative privilege has been
previously invoked; and
C. Such further relief as the Court deems appropriate.
/s/ Przemyslaw L. Dominko
steven D. Hutton
Florida Bar No. 342221
sdh@huttonlawfirm.com
Przemyslaw L. Dominko
Florida Bar NO. 0074143
pdominko@huttonlawfirm.com
STEVEN D. HUTTON, P.L.
240 South Pineapple Ave.
Suite 801
Sarasota, Florida 34236
(941) 364-9292 (Telephone)
(941) 364-9777 (Facsimile)
Attorneys for McCann
Holdings, Ltd.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been
electronically filed with the Clerk of the Court of Sarasota County,
Florida using the Florida Courts E-Filing Portal and served on Morgan
R. Bentley, Esq., Bentley & Bruning, P.A., 783 South Orange Avenue,
Sarasota, Florida, 34236 (mbentley@bentleyandbruning.com and
nwhite@bentleyandbruning.com); Edward Vogler, II, Esq., Vogler Ashton,
PLLC, Z4A11-A Manatee Avenue West, Bradenton, Florida, 34205
(EdVogler@voglerashton.com); and Alan W. Roddy, Esq., Office of the
County Attorney, 1660 Ringling Boulevard, 2™ Floor, Sarasota, Florida
34236 (aroddy@scgov.net), by e-mail via the Portal on October 17,
2014.
/s/ Przemyslaw L. Dominko
Przemyslaw L. Dominko
Preview
eFile Accepted: 10/17/2014 03:31 PM Filing # 19527758 Electronically Filed 10/17/2014 03:05:43 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA, COUNTY, FLORIDA McCANN HOLDINGS, LTD., Plaintiff, Vv. Case No. 2011CA003897NC SDC COMMUNITIES, INC., JURY TRIAL DEMANDED VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ, and RANDALL BENDERSON, Defendants. / PLAINTIFF’S MOTION TO COMPEL AND MOTION IN LIMINE ~— Plaintiff, McCann Holdings, Ltd. (“McCann”), pursuant to Fla. R. Civ. P. 1.380, moves to compel the deposition testimony of non-parties, Matthew Lewis and Lisa Nisenson’, moves in limine to exclude the testimony of certain Sarasota County commissioners and employees, and states: 1. On July 18, 2014, this Court entered an Order Granting Non-Party Witnesses David Bullock, Matthew Lewis and Lisa Nisenson’s Motion for Protective Order and Order Denying pone Plaintiff’s Motion for Reconsideration and/or Rehearing (the “Order”). 2. Subsequently, McCann attempted Lo schedule the depositions of Lewis and Nisenson, but was prevented from doing ‘ During the period of time relevant to McCann’s claims, Lewis served as the Planning and Development Services Operational Manager and Nisenson served as the Planning and Development Services Greenhouse Gas Reduction Coordinator. Neither is now employed by Sarasota County.so by the Sarasota County Deputy Attorney, Alan Roddy, who is apparently acting as counsel for Lewis and Nisenson, and who has an declared that, as a result of Lewis and Nisenson’s purported ~— assertion of the legislative privilege, they are not required to 2 even appear for a deposition in the first instance. 3. Notably, Tom Polk, who was the Planning and Q Development Services Planning Director at the time of the Amendment, who is still employed by Sarasota County and who is also represented by Mr. Roddy has waived the legislative privilege and is scheduled to be deposed on October 28, 2014. 4. On information and belief, Lewis and Nisenson’s — assertion of the legislative privilege is not an independently- t reached decision but, rather, a decision that has been made for them by the Sarasota County Deputy Attorney. iB} 5. McCann should be allowed to take the depositions of Lewis and Nisenson for at least the following reasons: — a. Neither the intent of the Order nor League of 0 — a Women Voters of Florida v. Florida House of Representatives, 132 “ Presumably, Mr. Roddy’s position is based upon the following statement contained in the Order: “Accordingly, the Court finds that these movants have demonstrated an entitlement to a protective order precluding the scheduling of their depositions.” Order, p. 5. However, a fair reading of the Order in its entirety indicates that the Court intended to protect the non-parties from having to answer questions falling within the scope of the legislative privilege (1i.e., questions related to the non-parties’ subjective thoughts and impressions) and not from having to appear for a deposition or answering questions falling outside the scope of the privilege. 2th So.3d 135 (Fla. 2013) precludes the scheduling and taking of a deposition in the first instance; b. The privilege should be invoked in response to } specific questions that seek information falling within the a scope of the qualified privilege, not to the scheduling and ~_ taking of the depositions in the first place’; Cc. The decision to invoke or not invoke the privilege should be made independently by Lewis and Nisenson, not the County Deputy Attorney who has selectively allowed ; 1 ' 4 current Sarasota County employees to waive the privilege’; and — d. One of McCann’s purposes for taking the depositions is to have Lewis and Nisenson authenticate various e-mails and other documents related to the EEZ and the Amendment a and to verify (or not) statements that have been attributed to them by third parties.” 6. Based upon the foregoing, Lewis and Nisenson should be compelled to: (a) appear for their depositions; (b) invoke the legislative privilege in response to specific questions, if they ° As the Court has noted, “objective information falls outside the scope of the privilege, and is subject to disclosure.” Order, p. 3. “The law is clear that “legislative privilege is personal in nature” and that it “may be waived or invoked by individual legislators and their staff members.” Order, p. 5. The privilege should not be invoked by the County for and on behaif of its former employees. ° For example, Jim Paulmann testified in his deposition taken October 15, 2014 (which has not yet been transcribed) about various conversations with, and statements by, Lewis and Nisenson.make the independent decision to do so; and (c) answer questions falling outside the scope of the legislative privilege. _— TV. In addition, because this action is set for trial during the trial period beginning November 10, 2014, to the extent that any witness or potential witness has invoked the legislative privilege in this action®, all such witnesses should be prohibited from waiving the privilege and testifying at trial to the matters over which they have previously invoked the privilege. See, Romo v. Detzner, No. 2012-CA-412 (Fla. 2d Cir. Ct., Oct. 3, 2012) (“[O]nce the legislative defendants invoke the pte — privilege and deprive the plaintiffs of the discovery necessary for them to properly prepare their claim, it may be difficult to overcome the prejudice inherent in a last moment decision to waive the privilege and testify at trial.”) CERTIFICATE OF GOOD FAITH The undersigned counsel for McCann, in an effort to resolve the issues regarding the depositions, has attempted to confer in good faith with counsel for Lewis and Nisenson and has been unable to resolve these issues without court action. WHEREFORE, McCann requests the following: © Nora Patterson and Shannon Staub invoked the privilege in response to questions asked during their depositions. To date, David Bullock, Matthew Lewis and Lisa Nisenson have not provided any testimony based upon their assertion of the privilege prior to even being deposed. ‘|t A. An Order compelling the deposition testimony of non- parties, Matthew Lewis and Lisa Nisenson; B. An Order in Limine excluding from admission into evidence or prohibiting the parties, the attorneys and any 4 witness from testifying to, commenting on or alluding to any testimony over which the legislative privilege has been previously invoked; and C. Such further relief as the Court deems appropriate. /s/ Przemyslaw L. Dominko steven D. Hutton Florida Bar No. 342221 sdh@huttonlawfirm.com Przemyslaw L. Dominko Florida Bar NO. 0074143 pdominko@huttonlawfirm.com STEVEN D. HUTTON, P.L. 240 South Pineapple Ave. Suite 801 Sarasota, Florida 34236 (941) 364-9292 (Telephone) (941) 364-9777 (Facsimile) Attorneys for McCann Holdings, Ltd. CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been electronically filed with the Clerk of the Court of Sarasota County, Florida using the Florida Courts E-Filing Portal and served on Morgan R. Bentley, Esq., Bentley & Bruning, P.A., 783 South Orange Avenue, Sarasota, Florida, 34236 (mbentley@bentleyandbruning.com and nwhite@bentleyandbruning.com); Edward Vogler, II, Esq., Vogler Ashton, PLLC, Z4A11-A Manatee Avenue West, Bradenton, Florida, 34205 (EdVogler@voglerashton.com); and Alan W. Roddy, Esq., Office of the County Attorney, 1660 Ringling Boulevard, 2™ Floor, Sarasota, Florida 34236 (aroddy@scgov.net), by e-mail via the Portal on October 17, 2014. /s/ Przemyslaw L. Dominko Przemyslaw L. Dominko