Preview
PHILIP VON KAHLE, CURATOR, on
behalf of THE GOVERNOR OF FLORIDA,
for the use and benefit of the ESTATE OF
VICTOR POSNER, and for
All Other Interested Parties,
Plaintiff,
Vv.
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, a Maryland Corporation,
Defendant,
Vv.
BRENDA D. NESTOR,
Third-Party Defendant.
Filing # 65244065 E-Filed 12/11/2017 04:54:35 PM
IN THE CIRCUIT COURT IN AND FOR
THE ELEVENTH JUDICIAL CIRCUIT
FOR MIAMI-DADE COUNTY,
FLORIDA
COMPLEX BUSINESS LITIGATION
CASE NO. 2016-21099-CA-40
/
PLAINTIFF’S MOTION FOR RULING ON THIRD-PARTY DEFENDANT’S
DISCOVERY OBJECTIONS AND TO COMPEL PRODUCTION
AND PRIVILEGE LOG
Plaintiff, PHILIP VON KAHLE, as Curator (“Plaintiff” or “Curator”), by and through
his undersigned counsel, hereby moves for an order overruling discovery objections served by
Third-Party Defendant, Brenda Nestor (“Nestor”) in response to the Curator’s First Request
for Production and to compel production of documents in response thereto. The Curator further
requests an order overruling Ms. Nestor’s objections to Request No. 2 of Plaintiff's Third
Request for Production, and compelling Ms. Nestor to produce documents, and in support
states as follows:
(00480929.00¢xIntroduction
Ms. Nestor has asserted defenses of equitable estoppel, waiver, and estoppel, to
Fidelity & Deposit Company of Maryland’s (“Fidelity”) indemnity action against her in this
case. However, when asked by the Curator to produce documents supporting these defenses,
(and therefore documents supporting defenses that Fidelity has asserted on her behalf) Ms.
Nestor refused. She contends that documents supporting her defenses are irrelevant to the
Curator’s case against Fidelity, and protected by the common interest or joint defense doctrine.
Because Fidelity has asserted defenses belonging to Ms. Nestor, documents that Ms. Nestor
provided to Fidelity concerning these defenses, are absolutely relevant to the Curator’s case.
These documents are further subject to production because Ms. Nestor put her
communications with Fidelity at issue in this case, through her defenses to Fidelity’s Third-
Party complaint. The Curator therefore requests that the Court overrule her objections based on
the common interest doctrine. Additionally, the Curator requests that the Court overrule Ms
Nestor’s overbreadth objection to the Curator’s request seeking documents supporting her
answers to the Curator’s interrogatories and compelling her to produce documents related to
the same. To the extent that the Court determines that the common interest doctrine still
applies, the Curator seeks an order compelling Ms. Nestor to submit an updated privilege log
setting forth the documents that she contends are privileged
Background
1. On February 10, 2017, Fidelity filed a third-party complaint against Ms. Nestor
in this action, seeking indemnification on the Curator’s bond claim
2. On April 3, 2017, Nestor answered the third-party complaint, raising the
defenses of equitable estoppel, waiver, and estoppel. A true and correct copy of Ms. Nestor’s
Answer and Affirmative Defenses is attached hereto as Exhibit 1
‘00480929.00¢x 23. On April 7, 2017, the Curator served his First Request for Production on Ms
Nestor (the “First Request”). The First Request sought all documents, correspondence and
communications relating to all of Nestor’s affirmative defenses. The First Request also sought
documents, correspondence, and communications relating to Nestor’s Third Affirmative
Defense of equitable estoppel, and documents, correspondence and communication provided
by Nestor to Fidelity as referenced in Nestor’s third affirmative defense.
4. On June 21, 2017, nearly two months after the deadline to respond to the
Requests for Production had lapsed, Ms. Nestor served her first response to the Curator’s First
Request. Once Ms. Nestor’s former counsel withdrew, and her current counsel appeared on
her behalf, the Curator requested that Ms. Nestor serve amended responses to discovery issued
to Ms. Nestor, including but not limited to the First Request. On November 29, 2017, Ms.
Nestor served her amended response to the First Request, which is attached as Exhibit 2.
5 Ms. Nestor objects to the requests, claiming that they call for production of
documents and correspondence that are protected by the attorney-client privilege and the
common interest or joint defense doctrine. Ms. Nestor also alleges that because the defenses
are directed to the indemnification claim, there is “no basis” for the Curator to assert that he is
entitled to these documents. Ms. Nestor also alleges that any documents supporting her
defenses have already been provided by the Curator, or are available in Court records and from
third-parties.
6. On November 29, 2017, Ms. Nestor also provided updated answers to the
Curator’s First Set of Interrogatories (the “Interrogatories”) served upon her, and an updated
response to Plaintiff's Third Request for Production (the “Third Requests”), seeking all
documents, correspondence, and communication supporting, evidencing, or relating to her
‘00480929.00¢x 3responses to the Interrogatories. A true and correct copy of Ms. Nestor’s response to the Third
Requests is attached hereto as Exhibit 3.
7. Ms. Nestor objected to Request No. 2 of the Third Requests, seeking documents
relating to the Interrogatories on the basis that it is “overly broad, unduly burdensome, vague,
and ambiguous.”
8 Ms. Nestor should be compelled to produce documents that support her
affirmative defenses and responses to interrogatories, and identify what documents already
produced support those defenses, or withdraw the defenses. To permit Ms. Nestor to assert
defenses, and refuse to produce documents supporting the same is contrary to the very point of
discovery.
9. Accordingly, the Court should enter an order overruling Ms. Nestor’s
objections to the Curator’s discovery, and compelling her to produce documents responsive to
the referenced requests. Failing that, Ms. Nestor should be compelled to provide an updated
privilege log
Argument and Memorandum of Law
A. Nestor Should Be Compelled to Produce Evidence Supporting Her Defenses
Florida Rule of Civil Procedure 1.280(b)(1) provides that:
Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter of the pending
action, whether it relates to the claim or defense of the party
seeking discovery or the claim or defense of any other party,
including the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the
information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence. (emphasis added).
‘00480929.00¢x 4Ms. Nestor contends that she is exempt from producing documents supporting her
defenses because of the joint defense agreement she has with Fidelity. If Ms. Nestor had not
injected her relationship with Fidelity and information given to Fidelity into this case, the
Curator agrees that he would not be entitled to production of documents and communications
between Ms. Nestor and Fidelity. However, each of Ms. Nestor’s defenses puts these
communications at issue. Her first defense asserts that there is a “special relationship” between
Ms. Nestor and Fidelity, and Fidelity is equitably estopped from asserting claims against her.
Her second defense states that as a result of the defenses that Fidelity has raised to the
Curator’s complaint, it has waived its right to proceed against Ms. Nestor on the indemnity
claim. Ms. Nestor’s third defense states, “[Fidelity] is estopped from asserting a claim against
[Nestor] based on the common defense doctrine to the Complaint by the Plaintiff Curator as a
result of information given to it’s [sic] counsel by the Third Party Defendant.” While this
defense is not a model of clarity, it appears to state that Fidelity is estopped from pursuing
claims against Ms. Nestor based on the fact that Ms. Nestor gave Fidelity information.
Ms. Nestor relies on the case of Volpe v. Conroy, Simberg & Gannon, P.A., 720 So. 2d
537 (Fla. 4th DCA 1998) for the proposition that she cannot be compelled to produce
documents given to Fidelity because of their shared common interest agreement. However,
Volpe is distinguishable. In that case, former counsel for the plaintiffs sought to invade the
attorney client privilege and common interest agreement to defend against a legal malpractice
claim. In quashing the order of the trial court permitting that discovery, the Fourth District
noted there was no suggestion that the Plaintiffs would require the information sought to
establish their claim. To the contrary, the attorneys seeking to invade the privilege were doing
so to establish their defense to the malpractice claim. The Volpe court held that “the attorney-
client privilege cannot be set aside simply because the opposing party claims that the
00480929.D0CX SDinformation held by the attorney is necessary to prove the opposing party’s case.” /d. at 539-
40. But here, the Curator seeks to discover what documents support the defenses that Nestor,
through Fidelity and on her own, has raised.
“Under the swordand shield doctrine, a party who raises a claim that
will necessarily require proof by way of a privileged communication cannot insist that the
communication is privileged.” Jenney v. Airdata Wiman, Inc., 846 So. 2d 664, 668 (Fla. 2d
DCA 2003) (emphasis in original), citing Savino v. Luciano,92 §So0.2d 817, 819
(Fla.1957). The Court should apply the same rationale in requiring Ms. Nestor to produce
documents in support of her defenses. Because Ms. Nestor claims that Fidelity is estopped from
asserting a claim against her because of information Ms. Nestor provided to Fidelity, this
defense would necessarily require proof through privileged communications with Fidelity.
Therefore, the Court should require production of the documents and communications
exchanged between Ms. Nestor and Fidelity that allegedly support her defenses.
The Court should similarly disregard Ms. Nestor’s objection that documents exchanged
between her and Fidelity are irrelevant to the Curator’s case. Not only has Ms. Nestor put these
documents and communications at issue through the assertion of her defense, Fidelity has
asserted defenses to the Curator’s Second Amended Complaint that are based on Ms. Nestor’s
conduct as personal representative and information provided to Fidelity by Ms. Nestor. To the
extent that Ms. Nestor has provided Fidelity information that supports the defenses Fidelity
interposed on her behalf, those documents are plainly relevant to the defenses to the Curator’s
claims. Accordingly, the information the Curator seeks is unquestionably relevant to this action
and within the scope of permissible discovery.
‘00480929.00¢x 6B. Nestor Should Produce a Privilege Log
To secure her claims of privilege, Ms. Nestor has attached Fidelity’s Privilege Log to
her objections and answers to Interrogatories.! The Curator requested that Ms. Nestor provide
her own privilege log; Ms. Nestor declined, stating that she was relying on Fidelity’s Privilege
Log. However, Fidelity’s privilege log is only current through April 7, 2017, and is now eight
months old. The Court should compel Ms. Nestor to provide her own privilege log concerning
documents that she provided to Fidelity, and require that the privilege log be updated through
the present, pursuant to CBL § 6.2 which states, “When a party withholds information
otherwise discoverable by claiming that the information is privileged or subject to protection as
trial-preparation material, the party must, at the same time the response to the requested
discovery is due, produce a privilege log in compliance with the Court’s separately issued
Order Re: Privilege Log” (emphasis in original).
C. Nestor’s Burden Objection Is Not Well Founded
In Request No. 2 of the Curator’s Third Requests, he asks that Ms. Nestor provide all
documents, correspondence, and communications supporting, evidencing or relating to her
responses to Plaintiff's First Set of Interrogatories. Ms. Nestor objected to this request on the
grounds that it is, “overly broad, unduly burdensome, vague and ambiguous.” As the
Magistrate has previously found when overruling similar objections asserted by Plaintiff at the
behest of Fidelity, and as other courts in this jurisdiction have found, “[o]bjections which state
that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, by themselves,
meaningless, and are deemed without merit by this Court. A party properly objecting on these
1Ms. Nestor’s responses to the Curator’s Requests for Production state that the Privilege Log
was attached thereto, however it was attached to Ms. Nestor’s Interrogatory Response.
‘00480929.00¢x 7bases must explain the specific and particular ways in which a request is vague, overly broad,
or unduly burdensome.” Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla
2007). Because Ms. Nestor has not elaborated on how this request is overbroad and
burdensome in her response, the Curator requests that the Court overrule Ms. Nestor’s
objection to Request No. 2 of the Third Requests, and direct Ms. Nestor to produce the
documents that relate to and support her answers to the Interrogatories.
CERTIFICATE OF GOOD FAITH CONFERENCE
I hereby certify that on Tuesday, December 5, 2017, counsel for Plaintiff and Ms.
Nestor conferred via telephone regarding the foregoing, in a good faith effort to resolve the
issues contained in this motion without Court intervention, but were unable to do so.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order
overruling Defendant’s objections to Requests No. 1, 2, and 3 of the Curator’s First Requests
for Production, compelling her to produce documents in response thereto. Plaintiff further
requests that the Court enter an order overruling Ms. Nestor’s objections to Request No. 2 of
the Third Request, compelling Ms. Nestor to produce documents in response to the same. To
the extent that the Court determines that the attorney-client privilege and the common interest
doctrine are applicable, the Curator requests that Ms. Nestor provide an updated privilege log
for documents and correspondence that she is withholding based on the claim of privilege, and
to grant Plaintiff such additional and further relief as the Court deems just and proper,
including, but not limited to, an award of reasonable attorney’s fees and costs.
‘00480929.00¢x 8Dated: December 11, 2017.
(00480929,00¢x
BAST AMRON LLP
Co-Special Counsel for the Curator
SunTrust International Center
One Southeast Third Ave., Suite 1400
Miami, Florida 33131
Telephone: 305.379.7904
Facsimile: 305.379.7905
Brett M. Amron (FBN 148342)
E-mail: bamron@bastamron.com
Jeremy S. Korch (FBN 14471)
E-mail: jkorch@bastamron.com _
Hayley G. Harrison (FBN 105157)
E-mail: hharrison@bastamron.com
-And-
The Cochran Firm — South Florida
Co-Special Counsel for the Curator
657 South Drive, Suite 304
Miami Springs, FL 33166
Telephone: 305.567.1200
Facsimile: 305.856.7747
Scott W. Leeds (FBN 372552)
E-mail: swleeds@cochranfirm.com
By: /s/ Jeremy S. Korch
Brett M. Amron (FBN 148342)
Jeremy S. Korch (FBN 14471)
Hayley G. Harrison (FBN 105157)
Scott W. Leeds (FBN 372552)CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served electronic mail
upon the parties listed on the Service list below on this the 11th day of December 2017:
William H. Strop
Ryan F. Carpenter
Attorneys for Fidelity and Deposit Company of
Maryland
BECKER & POLIAKOFF, P.A.
One East Broward Boulevard, Suite 1800
Fort Lauderdale, FL 33301
Telephone: (954) 987-7550
Facsimile: (954) 985-4176
Email: wstrop@bpiegal.com
rearpenter@bplegal.com
sgill@bplegal.com
Geoffrey E. Sherman, Esq.
Roy D. Oppenheim, Esq.
Jacquelyn K. Trask, Esq.
OPPENHEIM PILELSKY, PA
Attorneys for Brenda Nestor
2500 Weston Road, Suite 404
Weston, Florida 33331
Phone: (954) 384-6114
Facsimile: (954) 384-6115
E-mail:
geoffrey @oplaw.net
roy@oplaw.net
jtrask@oplaw.net
By:
(00480929,00¢x
/s/ Jeremy S. Korch
Jeremy S. Korch, Esq.
10EXHIBIT 1Filing # 54580215 E-Filed 04/03/2017 06:34:12 PM
IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 2016-21099-CA-40
PHILIP VON KAHLE, CURATOR, on behalf of
THE GOVENOR OF FLORIDA, for the
use and benefit of the ESTATE OF VICTOR
POSNER, and for all other interested parties,
Plaintiff,
ve
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND, a Maryland Corporation,
Defendant and Third-Party Plaintiff,
ve
BRENDA D. NESTOR,
Third-Party Defendant.
/
/
THIRD-PARTY DEFENDANT BRENDA NESTOR ANSWER AND AFFIRAMATIVE
DEFENSES TO FIDELITY’S THIRD-PARTY COMPLAINT
COMES NOW, the Third-Party Defendant, BRENDA D. NESTOR (Nestor), by and
through the undersigned attorney, and hereby files her Answer and Affirmative Defenses to
Fidelity and Deposit of Maryland’s (Fidelity) Third-Party Complaint as follows:
1. Without knowledge and demand strict proof thereof as to paragraphs 1, 2, 11 and
16.
2. Admit as to paragraphs 3, 5, 6, 7, 8, 9, 10, 13, and 15.
3. Denied as to paragraphs 4, 17,22 and 31.
4. Without knowledge as to paragraphs 1, 2, 11, 12, 16, 19, 20, 23, 24, 25, 26, 28, 30,
32, 33, and 34,5. As to paragraphs 18, and 27 Defendant Nestor reaver and realleges paragraphs 1
through 17 as if set forth herein.
6. As to paragraph 21 and 29, Defendant Nestor’s denies responsibility and is without
knowledge as to Fidelity being without fault.
7. As to paragraph 14, Defendant Nestor denies said allegations in that Fidelity
through its counsel requested Nestor to cooperate in litigation against the Curator.
AFFIRMATIVE DEFENSES
i As a result of the “special relationship” alleged by the Third Party Plaintiff it is
equitably estopped from asserting a claim against the Third Party Defendant, which is repugnant
to the defenses raised in the pleadings filed by a third party Plaintiff in the claim with the curator.
2. The Third Party Plaintiff has waived any claims against Third Party Defendant by
the defenses it has raised in its answer to the Complaint filed by the Plaintiff Curator,
3. The Third Party Plaintiff is estopped from asserting a claim against the Third Party
Defendant based on the common defense doctrine to the Complaint by the Plaintiff Curator as a
result of information given to it’s counsel by the Third Party Defendant.
Respectfully Submitted,
LAW OFFICES OF DAVID M. GOLDSTEIN, P.A.
Special Appearance for Third-Party Defendant
1125 NE 125" Street, Suite 302
North Miami, FL 33161
Primary email: david@idmygpa.com
David M. Goldstein, Esq.
Florida Bar No.: 156003
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the
2Courts and served to counsel of record by using the online ePortal system this 3" day of April,
2017.
By: __ 4s/ David M. Goldstein
David M. Goldstein
woEXHIBIT 2IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
PHILIP VON KAHLE, CURATOR, on behalf of THE
GOVERNOR OF FLORIDA, for the use and benefit of
the ESTATE OF VICTOR POSNER, and for All Other
Interested Parties,
Plaintiff,
Vv
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, a Maryland Corporation,
Defendant
Vv.
BRENDA D. NESTOR,
Third-Party Defendant/Cross-Claim
Plaintiff,
Vv
PHILIP VON KAHLE, individually, MICHAEL
MOECKER AND ASSOCIATES, INC., MOECKER
REALTY AUCTIONS, LLC d/b/a SVN MOECKER
REALTY AUCTIONS, and MOECKER REALTY, INC.
Cross-Claim Defendants.
/
CASE NO.: — 2016-021099-CA-01
DIVISION: 40
FL BAR NO: 0092109
THIRD-PARTY DEFENDANT, BRENDA NESTOR’S AMENDED RESPONSE AND
OBJECTIONS TO PLAINTIFF’S FIRST REQUEST FOR PRODUCTION
Third-Party Defendant/Cross-Claim Plaintiff, Brenda Nestor, (“Nestor or the “Third
Party Defendant”), by and through the undersigned, files her amended responses and objections
to the Plaintiff, Philip von Kahle, as Curator’s (“von Kahle” or the “Curator”), First Request for
Production, as follows:
GENERAL OBJECTIONS
1, Nestor objects to the Requests for Production to the extent that they seek
information protected by the attorney-client privilege, the work-product doctrine, or any other
privilege, protection or immunity applicable under the governing law2. Nestor responds to each Request for Production based on information and
documentation available as of the date hereof and reserves the right to supplement and amend
these responses as necessary.
3 Nestor, through her Responses and Objections to Defendants’ Request for
Production, does not waive and reserves her right to challenge the relevancy, materiality, or
admissibility of the information or documents.
RESPONSES TO FIRST REQUEST TO PRODUCE
REQUEST NO. 1: Any and all documents, correspondence, and communications supporting,
evidencing or relating to your Third Affirmative Defense
RESPONSE: Nestor objects to the request on the grounds that it calls for
the production of documents, communications or correspondence which are covered by
attorney-client privilege pursuant to the joint defense privilege or common interest
exception and thus are not subject to disclosure to third parties. The very nature of
Nestor’s Third Affirmative Defense is her assertion that Fidelity is estopped from pursuing
claims against her based on said doctrine, and her participation and cooperation with
Fidelity’s defense to the Curator’s Complaint against Fidelity. As such, communications
and correspondence between Fidelity’s counsel, Nestor and Nestor’s counsel, including
information exchanged between them during the course of litigation of this matter are
protected by the extension of the attorney-client privilege provided by the common interest
or joint defense doctrine. See Volpe v. Conroy, Simberg & Ganon, P.A., 720 So. 2d 537 (Fla.
4th DCA 1998) (“where [] co-parties communicate regarding issues of common interest to
their joint defense to adequately prepare their case, the sharing of information with their
co-parties’ attorneys implies no waiver of the privilege”). Given that the defense is asserted
to Fidelity’s Third-Party Complaint against Nestor and not to any claims pertaining to the
Curator’s Complaint against Fidelity, there is no basis for the Curator to assert that it is
entitled to disclosure of such privileged information, nor is it necessary for or relevant to
the prosecution of the Curator’s claims against Fidelity. Moreover, Fidelity previously
provided its Amended Privilege Log (attached hereto as Exhibit A) which encompasses and
asserts such privilege to the documents requested by the Curator that are otherwise
responsive to this Request.
REQUEST NO. 2: Any and all documents, correspondence, and communications relating to
information provided by Nestor to Fidelity as referenced in your Third Affirmative Defense.
RESPONSE: Nestor objects to the request on the grounds that it calls for the
production of documents, communications or correspondence which are covered by thejoint defense privilege or common interest exception and thus are not subject to disclosure
to third parties. The very nature of Nestor’s Third Affirmative Defense is her assertion
that Fidelity is estopped from pursuing claims against her based on said doctrine, and her
participation and cooperation with Fidelity’s defense to the Curator’s Complaint against
Fidelity. As such, communications and correspondence between Fidelity’s counsel, Nestor
and Nestor’s counsel, including information exchanged between them during the course of
litigation of this matter are protected by the extension of the attorney-client privilege
provided by the common interest or joint defense doctrine. See Volpe v. Conroy, Simberg &
Ganon, P.A., 720 So. 2d 537 (Fla. 4th DCA 1998) (“where [] co-parties communicate
regarding issues of common interest to their joint defense to adequately prepare their case,
the sharing of information with their co-parties’ attorneys implies no waiver of the
privilege”). Given that the defense is asserted to Fidelity’s Third-Party Complaint against
Nestor and not to any claims pertaining to the Curator’s Complaint against Fidelity, there
is no basis for the Curator to assert that it is entitled to disclosure of such privileged
information, nor is it necessary for or relevant to the prosecution of the Curator’s claims
against Fidelity. Moreover, Fidelity previously provided its Amended Privilege Log
(attached hereto as Exhibit A) which encompasses and asserts such privilege to the
documents requested by the Curator that are otherwise responsive to this Request.
REQUEST NO. 3: Any and all documents, correspondence, and communications supporting,
evidencing or relating to your Affirmative Defenses
RESPONSE: Nestor asserts that the Affirmative Defenses filed by Fidelity
to the Complaint, Amended Complaint and Second Amended Complaint by the Curator
against Fidelity as well as any documents produced or relied upon by Fidelity in support of
such Affirmative Defenses are the documents that support, evidence or relate to Nestor’s
First and Second Affirmative Defenses and are either available in the Court Records of this
case, or have already been produced between the Curator, Fidelity, and third-parties
pursuant to subpoenas issued by Fidelity or the Curator in this case. As such, the Curator
is already in possession, custody and control of such documents, having either received
them from Fidelity in discovery, from third-parties pursuant to subpoena duces tecum for
production, or from the Estate records already in the Curator’s possession, custody and
control. Nestor objects to producing any correspondence or communications to the extent
that they are covered by attorney-client privilege, work product doctrine and the joint
defense doctrine/common interest exception as set forth in her Response to Interrogatory 2,
supra. Nestor re-asserts her Response to the First Request as it pertains to her Third
Affirmative Defense.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Responses
to First Request for Production has been served to all parties identified on the attached Service
List in the manner specified on this 29th day of November, 2017
OPPENHEIM PILELSKY, PA
Attorneys for Third-Party Defendant,
BRENDA D. NESTOR
By: /s/Roy D. Oppenheim
Roy D. Oppenheim, Esq
Florida Bar No.: 710016
E-mail: roy@oplaw.net
Geoffrey E. Sherman, Esq
Florida Bar No.: 0060432
E-mail: geoffrey @oplaw.net
Jacquelyn K. Trask, Esq.
Florida Bar No.: 0092109
E-mail: jtrask@oplaw.net
2500 Weston Road, Suite 404
Weston, Florida 33331
Phone: (954) 384-6114
Facsimile: (954) 384-6115
Service E-mail service@oplaw.net;
geoffrey@oplaw.net:
roy@oplaw.net;
jtrask@oplaw netSERVICE LIST
PHILIP VON KAHLE, CURATOR, ON BEHALF OF THE GOVERNOR OF FLORIDA,
FOR THE USE AND BENEFIT OF THE ESTATE OF VICTOR POSNER, AND FOR ALL
OTHER INTERESTED PARTIES V_ FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, ET AL.
CASE NO.:; —2016-021099-CA-40
Sent via E-mail to:
Brett M. Amron, Esq.
Jeremy S. Korch, Esq.
Hayley G. Harrison, Esq.
BAST AMRON LLP
Co-Special Counsel for the Curator
SunTrust International Center
One Southeast Third Ave., Suite 1400
Miami, Florida 33131
E-mail to: bamron@bastamron.com; jkorch@bastamron.com; hharrison@bastamron.com
Scott W. Leeds, Esq.
The Cochran Firm — South Florida
Co-Special Counsel for the Curator
657 South Drive, Suite 304
Miami Springs, FL 33166
E-mail to: swleeds@cochranfirm.com
William H. Strop, Esq
Ryan F. Carpenter, Esq.
BECKER & POLIAKOFF, P.A.,
Attorneys for Fidelity and Deposit Company of Maryland
One East Broward Boulevard, Suite 1800
Fort Lauderdale, Florida 33301
E-mail to: wstrop@bplegal.com; rcarpenter@bplega.com; sgill@bplegal.com
Philip von Kahle, 2440 Riverlane Terrace, Ft. Lauderdale, FL 33312
Michael Moecker and Associates, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina
Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315
Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty Auctions, c/o Michael P. Phelan as
Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315
Moecker Realty, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite
106, Ft. Lauderdale, FL 33315EXHIBIT 3IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
PHILIP VON KAHLE, CURATOR, on behalf of THE
GOVERNOR OF FLORIDA, for the use and benefit of
the ESTATE OF VICTOR POSNER, and for All Other
Interested Parties,
Plaintiff,
Vv
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, a Maryland Corporation,
Defendant
Vv.
BRENDA D. NESTOR,
Third-Party Defendant/Cross-Claim
Plaintiff,
Vv
PHILIP VON KAHLE, individually, MICHAEL
MOECKER AND ASSOCIATES, INC., MOECKER
REALTY AUCTIONS, LLC d/b/a SVN MOECKER
REALTY AUCTIONS, and MOECKER REALTY, INC.
Cross-Claim Defendants.
/
CASE NO.: — 2016-021099-CA-01
DIVISION: 40
FL BAR NO: 0092109
THIRD-PARTY DEFENDANT, BRENDA NESTOR’S AMENDED RESPONSE AND
OBJECTIONS TO PLAINTIFF’S THIRD REQUEST FOR PRODUCTION
Third-Party Defendant/Cross-Claim Plaintiff, Brenda Nestor, (“Nestor or the “Third
Party Defendant”), by and through the undersigned, files her amended responses and objections
to the Plaintiff, Philip von Kahle, as Curator’s (“von Kahle” or the “Curator”), Third Request for
Production, as follows:
GENERAL OBJECTIONS
1, Nestor objects to the Requests for Production to the extent that they seek
information protected by the attorney-client privilege, the work-product doctrine, or any other
privilege, protection or immunity applicable under the governing law2. Nestor responds to each Request for Production based on information and
documentation available as of the date hereof and reserves the right to supplement and amend
these responses as necessary.
3 Nestor, through her Responses and Objections to Defendants’ Request for
Production, does not waive and reserves her right to challenge the relevancy, materiality, or
admissibility of the information or documents.
AMENDED RESPONSES TO THIRD REQUEST TO PRODUCE
REQUEST NO. 1: Any and all documents used by you to prepare your responses to the
Plaintiff’ s First Set of Interrogatories.
RESPONSE: None other than those specifically listed and identified as
public records readily available to the Curator in response to each specific Interrogatory or
attached to the Interrogatory Responses as Exhibits.
REQUEST NO. 2: Any and all documents, correspondence, and communications supporting,
evidencing or relating to your responses to the Plaintiff's First Set of Interrogatories.
RESPONSE: Nestor objects to this request as framed on the grounds that it
is overly broad, unduly burdensome, vague and ambiguous. Subject to and without
waiving such objections, the documents responsive to this request are either (1) specifically
identified in the Interrogatories as being public records readily available to the Curator in
response to each specific Interrogatory, (2) identified in Nestor’s Amended Responses to
the First Request for Production and Second Request for Production by the Curator which
are already in the Curator’s possession, custody and control, or (3) subject to attorney-
client privilege, work product doctrine and the joint defense/common interest exception as
set forth on the Amended Privilege Log provided by Fidelity that was attached as Exhibit A
to Nestor’s Amended Responses to the Curator’s First Request for Production to Nestor.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Responses
to Third Request for Production has been served to all parties identified on the attached Service
List in the manner specified on this 29th day of November, 2017
OPPENHEIM PILELSKY, PA
Attorneys for Third-Party Defendant,
BRENDA D. NESTOR
By: /s/Roy D. Oppenheim
Roy D. Oppenheim, Esq
Florida Bar No.: 710016
E-mail: roy@oplaw.net
Geoffrey E. Sherman, Esq
Florida Bar No.: 0060432
E-mail: geoffrey @oplaw.net
Jacquelyn K. Trask, Esq.
Florida Bar No.: 0092109
E-mail: jtrask@oplaw.net
2500 Weston Road, Suite 404
Weston, Florida 33331
Phone: (954) 384-6114
Facsimile: (954) 384-6115
Service E-mail service@oplaw.net;
geoffrey@oplaw.net:
roy@oplaw.net;
jtrask@oplaw.netSERVICE LIST
PHILIP VON KAHLE, CURATOR, ON BEHALF OF THE GOVERNOR OF FLORIDA,
FOR THE USE AND BENEFIT OF THE ESTATE OF VICTOR POSNER, AND FOR ALL
OTHER INTERESTED PARTIES V_ FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, ET AL.
CASE NO.:; —2016-021099-CA-40
Sent via E-mail to:
Brett M. Amron, Esq.
Jeremy S. Korch, Esq.
Hayley G. Harrison, Esq.
BAST AMRON LLP
Co-Special Counsel for the Curator
SunTrust International Center
One Southeast Third Ave., Suite 1400
Miami, Florida 33131
E-mail to: bamron@bastamron.com; jkorch@bastamron.com; hharrison@bastamron.com
Scott W. Leeds, Esq.
The Cochran Firm — South Florida
Co-Special Counsel for the Curator
657 South Drive, Suite 304
Miami Springs, FL 33166
E-mail to: swleeds@cochranfirm.com
William H. Strop, Esq
Ryan F. Carpenter, Esq.
BECKER & POLIAKOFF, P.A.,
Attorneys for Fidelity and Deposit Company of Maryland
One East Broward Boulevard, Suite 1800
Fort Lauderdale, Florida 33301
E-mail to: wstrop@bplegal.com; rcarpenter@bplega.com; sgill@bplegal.com
Philip von Kahle, 2440 Riverlane Terrace, Ft. Lauderdale, FL 33312
Michael Moecker and Associates, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina
Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315
Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty Auctions, c/o Michael P. Phelan as
Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315
Moecker Realty, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite
106, Ft. Lauderdale, FL 33315
Preview
PHILIP VON KAHLE, CURATOR, on behalf of THE GOVERNOR OF FLORIDA, for the use and benefit of the ESTATE OF VICTOR POSNER, and for All Other Interested Parties, Plaintiff, Vv. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Defendant, Vv. BRENDA D. NESTOR, Third-Party Defendant. Filing # 65244065 E-Filed 12/11/2017 04:54:35 PM IN THE CIRCUIT COURT IN AND FOR THE ELEVENTH JUDICIAL CIRCUIT FOR MIAMI-DADE COUNTY, FLORIDA COMPLEX BUSINESS LITIGATION CASE NO. 2016-21099-CA-40 / PLAINTIFF’S MOTION FOR RULING ON THIRD-PARTY DEFENDANT’S DISCOVERY OBJECTIONS AND TO COMPEL PRODUCTION AND PRIVILEGE LOG Plaintiff, PHILIP VON KAHLE, as Curator (“Plaintiff” or “Curator”), by and through his undersigned counsel, hereby moves for an order overruling discovery objections served by Third-Party Defendant, Brenda Nestor (“Nestor”) in response to the Curator’s First Request for Production and to compel production of documents in response thereto. The Curator further requests an order overruling Ms. Nestor’s objections to Request No. 2 of Plaintiff's Third Request for Production, and compelling Ms. Nestor to produce documents, and in support states as follows: (00480929.00¢xIntroduction Ms. Nestor has asserted defenses of equitable estoppel, waiver, and estoppel, to Fidelity & Deposit Company of Maryland’s (“Fidelity”) indemnity action against her in this case. However, when asked by the Curator to produce documents supporting these defenses, (and therefore documents supporting defenses that Fidelity has asserted on her behalf) Ms. Nestor refused. She contends that documents supporting her defenses are irrelevant to the Curator’s case against Fidelity, and protected by the common interest or joint defense doctrine. Because Fidelity has asserted defenses belonging to Ms. Nestor, documents that Ms. Nestor provided to Fidelity concerning these defenses, are absolutely relevant to the Curator’s case. These documents are further subject to production because Ms. Nestor put her communications with Fidelity at issue in this case, through her defenses to Fidelity’s Third- Party complaint. The Curator therefore requests that the Court overrule her objections based on the common interest doctrine. Additionally, the Curator requests that the Court overrule Ms Nestor’s overbreadth objection to the Curator’s request seeking documents supporting her answers to the Curator’s interrogatories and compelling her to produce documents related to the same. To the extent that the Court determines that the common interest doctrine still applies, the Curator seeks an order compelling Ms. Nestor to submit an updated privilege log setting forth the documents that she contends are privileged Background 1. On February 10, 2017, Fidelity filed a third-party complaint against Ms. Nestor in this action, seeking indemnification on the Curator’s bond claim 2. On April 3, 2017, Nestor answered the third-party complaint, raising the defenses of equitable estoppel, waiver, and estoppel. A true and correct copy of Ms. Nestor’s Answer and Affirmative Defenses is attached hereto as Exhibit 1 ‘00480929.00¢x 23. On April 7, 2017, the Curator served his First Request for Production on Ms Nestor (the “First Request”). The First Request sought all documents, correspondence and communications relating to all of Nestor’s affirmative defenses. The First Request also sought documents, correspondence, and communications relating to Nestor’s Third Affirmative Defense of equitable estoppel, and documents, correspondence and communication provided by Nestor to Fidelity as referenced in Nestor’s third affirmative defense. 4. On June 21, 2017, nearly two months after the deadline to respond to the Requests for Production had lapsed, Ms. Nestor served her first response to the Curator’s First Request. Once Ms. Nestor’s former counsel withdrew, and her current counsel appeared on her behalf, the Curator requested that Ms. Nestor serve amended responses to discovery issued to Ms. Nestor, including but not limited to the First Request. On November 29, 2017, Ms. Nestor served her amended response to the First Request, which is attached as Exhibit 2. 5 Ms. Nestor objects to the requests, claiming that they call for production of documents and correspondence that are protected by the attorney-client privilege and the common interest or joint defense doctrine. Ms. Nestor also alleges that because the defenses are directed to the indemnification claim, there is “no basis” for the Curator to assert that he is entitled to these documents. Ms. Nestor also alleges that any documents supporting her defenses have already been provided by the Curator, or are available in Court records and from third-parties. 6. On November 29, 2017, Ms. Nestor also provided updated answers to the Curator’s First Set of Interrogatories (the “Interrogatories”) served upon her, and an updated response to Plaintiff's Third Request for Production (the “Third Requests”), seeking all documents, correspondence, and communication supporting, evidencing, or relating to her ‘00480929.00¢x 3responses to the Interrogatories. A true and correct copy of Ms. Nestor’s response to the Third Requests is attached hereto as Exhibit 3. 7. Ms. Nestor objected to Request No. 2 of the Third Requests, seeking documents relating to the Interrogatories on the basis that it is “overly broad, unduly burdensome, vague, and ambiguous.” 8 Ms. Nestor should be compelled to produce documents that support her affirmative defenses and responses to interrogatories, and identify what documents already produced support those defenses, or withdraw the defenses. To permit Ms. Nestor to assert defenses, and refuse to produce documents supporting the same is contrary to the very point of discovery. 9. Accordingly, the Court should enter an order overruling Ms. Nestor’s objections to the Curator’s discovery, and compelling her to produce documents responsive to the referenced requests. Failing that, Ms. Nestor should be compelled to provide an updated privilege log Argument and Memorandum of Law A. Nestor Should Be Compelled to Produce Evidence Supporting Her Defenses Florida Rule of Civil Procedure 1.280(b)(1) provides that: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (emphasis added). ‘00480929.00¢x 4Ms. Nestor contends that she is exempt from producing documents supporting her defenses because of the joint defense agreement she has with Fidelity. If Ms. Nestor had not injected her relationship with Fidelity and information given to Fidelity into this case, the Curator agrees that he would not be entitled to production of documents and communications between Ms. Nestor and Fidelity. However, each of Ms. Nestor’s defenses puts these communications at issue. Her first defense asserts that there is a “special relationship” between Ms. Nestor and Fidelity, and Fidelity is equitably estopped from asserting claims against her. Her second defense states that as a result of the defenses that Fidelity has raised to the Curator’s complaint, it has waived its right to proceed against Ms. Nestor on the indemnity claim. Ms. Nestor’s third defense states, “[Fidelity] is estopped from asserting a claim against [Nestor] based on the common defense doctrine to the Complaint by the Plaintiff Curator as a result of information given to it’s [sic] counsel by the Third Party Defendant.” While this defense is not a model of clarity, it appears to state that Fidelity is estopped from pursuing claims against Ms. Nestor based on the fact that Ms. Nestor gave Fidelity information. Ms. Nestor relies on the case of Volpe v. Conroy, Simberg & Gannon, P.A., 720 So. 2d 537 (Fla. 4th DCA 1998) for the proposition that she cannot be compelled to produce documents given to Fidelity because of their shared common interest agreement. However, Volpe is distinguishable. In that case, former counsel for the plaintiffs sought to invade the attorney client privilege and common interest agreement to defend against a legal malpractice claim. In quashing the order of the trial court permitting that discovery, the Fourth District noted there was no suggestion that the Plaintiffs would require the information sought to establish their claim. To the contrary, the attorneys seeking to invade the privilege were doing so to establish their defense to the malpractice claim. The Volpe court held that “the attorney- client privilege cannot be set aside simply because the opposing party claims that the 00480929.D0CX SDinformation held by the attorney is necessary to prove the opposing party’s case.” /d. at 539- 40. But here, the Curator seeks to discover what documents support the defenses that Nestor, through Fidelity and on her own, has raised. “Under the swordand shield doctrine, a party who raises a claim that will necessarily require proof by way of a privileged communication cannot insist that the communication is privileged.” Jenney v. Airdata Wiman, Inc., 846 So. 2d 664, 668 (Fla. 2d DCA 2003) (emphasis in original), citing Savino v. Luciano,92 §So0.2d 817, 819 (Fla.1957). The Court should apply the same rationale in requiring Ms. Nestor to produce documents in support of her defenses. Because Ms. Nestor claims that Fidelity is estopped from asserting a claim against her because of information Ms. Nestor provided to Fidelity, this defense would necessarily require proof through privileged communications with Fidelity. Therefore, the Court should require production of the documents and communications exchanged between Ms. Nestor and Fidelity that allegedly support her defenses. The Court should similarly disregard Ms. Nestor’s objection that documents exchanged between her and Fidelity are irrelevant to the Curator’s case. Not only has Ms. Nestor put these documents and communications at issue through the assertion of her defense, Fidelity has asserted defenses to the Curator’s Second Amended Complaint that are based on Ms. Nestor’s conduct as personal representative and information provided to Fidelity by Ms. Nestor. To the extent that Ms. Nestor has provided Fidelity information that supports the defenses Fidelity interposed on her behalf, those documents are plainly relevant to the defenses to the Curator’s claims. Accordingly, the information the Curator seeks is unquestionably relevant to this action and within the scope of permissible discovery. ‘00480929.00¢x 6B. Nestor Should Produce a Privilege Log To secure her claims of privilege, Ms. Nestor has attached Fidelity’s Privilege Log to her objections and answers to Interrogatories.! The Curator requested that Ms. Nestor provide her own privilege log; Ms. Nestor declined, stating that she was relying on Fidelity’s Privilege Log. However, Fidelity’s privilege log is only current through April 7, 2017, and is now eight months old. The Court should compel Ms. Nestor to provide her own privilege log concerning documents that she provided to Fidelity, and require that the privilege log be updated through the present, pursuant to CBL § 6.2 which states, “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must, at the same time the response to the requested discovery is due, produce a privilege log in compliance with the Court’s separately issued Order Re: Privilege Log” (emphasis in original). C. Nestor’s Burden Objection Is Not Well Founded In Request No. 2 of the Curator’s Third Requests, he asks that Ms. Nestor provide all documents, correspondence, and communications supporting, evidencing or relating to her responses to Plaintiff's First Set of Interrogatories. Ms. Nestor objected to this request on the grounds that it is, “overly broad, unduly burdensome, vague and ambiguous.” As the Magistrate has previously found when overruling similar objections asserted by Plaintiff at the behest of Fidelity, and as other courts in this jurisdiction have found, “[o]bjections which state that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, by themselves, meaningless, and are deemed without merit by this Court. A party properly objecting on these 1Ms. Nestor’s responses to the Curator’s Requests for Production state that the Privilege Log was attached thereto, however it was attached to Ms. Nestor’s Interrogatory Response. ‘00480929.00¢x 7bases must explain the specific and particular ways in which a request is vague, overly broad, or unduly burdensome.” Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla 2007). Because Ms. Nestor has not elaborated on how this request is overbroad and burdensome in her response, the Curator requests that the Court overrule Ms. Nestor’s objection to Request No. 2 of the Third Requests, and direct Ms. Nestor to produce the documents that relate to and support her answers to the Interrogatories. CERTIFICATE OF GOOD FAITH CONFERENCE I hereby certify that on Tuesday, December 5, 2017, counsel for Plaintiff and Ms. Nestor conferred via telephone regarding the foregoing, in a good faith effort to resolve the issues contained in this motion without Court intervention, but were unable to do so. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order overruling Defendant’s objections to Requests No. 1, 2, and 3 of the Curator’s First Requests for Production, compelling her to produce documents in response thereto. Plaintiff further requests that the Court enter an order overruling Ms. Nestor’s objections to Request No. 2 of the Third Request, compelling Ms. Nestor to produce documents in response to the same. To the extent that the Court determines that the attorney-client privilege and the common interest doctrine are applicable, the Curator requests that Ms. Nestor provide an updated privilege log for documents and correspondence that she is withholding based on the claim of privilege, and to grant Plaintiff such additional and further relief as the Court deems just and proper, including, but not limited to, an award of reasonable attorney’s fees and costs. ‘00480929.00¢x 8Dated: December 11, 2017. (00480929,00¢x BAST AMRON LLP Co-Special Counsel for the Curator SunTrust International Center One Southeast Third Ave., Suite 1400 Miami, Florida 33131 Telephone: 305.379.7904 Facsimile: 305.379.7905 Brett M. Amron (FBN 148342) E-mail: bamron@bastamron.com Jeremy S. Korch (FBN 14471) E-mail: jkorch@bastamron.com _ Hayley G. Harrison (FBN 105157) E-mail: hharrison@bastamron.com -And- The Cochran Firm — South Florida Co-Special Counsel for the Curator 657 South Drive, Suite 304 Miami Springs, FL 33166 Telephone: 305.567.1200 Facsimile: 305.856.7747 Scott W. Leeds (FBN 372552) E-mail: swleeds@cochranfirm.com By: /s/ Jeremy S. Korch Brett M. Amron (FBN 148342) Jeremy S. Korch (FBN 14471) Hayley G. Harrison (FBN 105157) Scott W. Leeds (FBN 372552)CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served electronic mail upon the parties listed on the Service list below on this the 11th day of December 2017: William H. Strop Ryan F. Carpenter Attorneys for Fidelity and Deposit Company of Maryland BECKER & POLIAKOFF, P.A. One East Broward Boulevard, Suite 1800 Fort Lauderdale, FL 33301 Telephone: (954) 987-7550 Facsimile: (954) 985-4176 Email: wstrop@bpiegal.com rearpenter@bplegal.com sgill@bplegal.com Geoffrey E. Sherman, Esq. Roy D. Oppenheim, Esq. Jacquelyn K. Trask, Esq. OPPENHEIM PILELSKY, PA Attorneys for Brenda Nestor 2500 Weston Road, Suite 404 Weston, Florida 33331 Phone: (954) 384-6114 Facsimile: (954) 384-6115 E-mail: geoffrey @oplaw.net roy@oplaw.net jtrask@oplaw.net By: (00480929,00¢x /s/ Jeremy S. Korch Jeremy S. Korch, Esq. 10EXHIBIT 1Filing # 54580215 E-Filed 04/03/2017 06:34:12 PM IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. 2016-21099-CA-40 PHILIP VON KAHLE, CURATOR, on behalf of THE GOVENOR OF FLORIDA, for the use and benefit of the ESTATE OF VICTOR POSNER, and for all other interested parties, Plaintiff, ve FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Defendant and Third-Party Plaintiff, ve BRENDA D. NESTOR, Third-Party Defendant. / / THIRD-PARTY DEFENDANT BRENDA NESTOR ANSWER AND AFFIRAMATIVE DEFENSES TO FIDELITY’S THIRD-PARTY COMPLAINT COMES NOW, the Third-Party Defendant, BRENDA D. NESTOR (Nestor), by and through the undersigned attorney, and hereby files her Answer and Affirmative Defenses to Fidelity and Deposit of Maryland’s (Fidelity) Third-Party Complaint as follows: 1. Without knowledge and demand strict proof thereof as to paragraphs 1, 2, 11 and 16. 2. Admit as to paragraphs 3, 5, 6, 7, 8, 9, 10, 13, and 15. 3. Denied as to paragraphs 4, 17,22 and 31. 4. Without knowledge as to paragraphs 1, 2, 11, 12, 16, 19, 20, 23, 24, 25, 26, 28, 30, 32, 33, and 34,5. As to paragraphs 18, and 27 Defendant Nestor reaver and realleges paragraphs 1 through 17 as if set forth herein. 6. As to paragraph 21 and 29, Defendant Nestor’s denies responsibility and is without knowledge as to Fidelity being without fault. 7. As to paragraph 14, Defendant Nestor denies said allegations in that Fidelity through its counsel requested Nestor to cooperate in litigation against the Curator. AFFIRMATIVE DEFENSES i As a result of the “special relationship” alleged by the Third Party Plaintiff it is equitably estopped from asserting a claim against the Third Party Defendant, which is repugnant to the defenses raised in the pleadings filed by a third party Plaintiff in the claim with the curator. 2. The Third Party Plaintiff has waived any claims against Third Party Defendant by the defenses it has raised in its answer to the Complaint filed by the Plaintiff Curator, 3. The Third Party Plaintiff is estopped from asserting a claim against the Third Party Defendant based on the common defense doctrine to the Complaint by the Plaintiff Curator as a result of information given to it’s counsel by the Third Party Defendant. Respectfully Submitted, LAW OFFICES OF DAVID M. GOLDSTEIN, P.A. Special Appearance for Third-Party Defendant 1125 NE 125" Street, Suite 302 North Miami, FL 33161 Primary email: david@idmygpa.com David M. Goldstein, Esq. Florida Bar No.: 156003 CERTIFICATE OF SERVICE | HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the 2Courts and served to counsel of record by using the online ePortal system this 3" day of April, 2017. By: __ 4s/ David M. Goldstein David M. Goldstein woEXHIBIT 2IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY, FLORIDA PHILIP VON KAHLE, CURATOR, on behalf of THE GOVERNOR OF FLORIDA, for the use and benefit of the ESTATE OF VICTOR POSNER, and for All Other Interested Parties, Plaintiff, Vv FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Defendant Vv. BRENDA D. NESTOR, Third-Party Defendant/Cross-Claim Plaintiff, Vv PHILIP VON KAHLE, individually, MICHAEL MOECKER AND ASSOCIATES, INC., MOECKER REALTY AUCTIONS, LLC d/b/a SVN MOECKER REALTY AUCTIONS, and MOECKER REALTY, INC. Cross-Claim Defendants. / CASE NO.: — 2016-021099-CA-01 DIVISION: 40 FL BAR NO: 0092109 THIRD-PARTY DEFENDANT, BRENDA NESTOR’S AMENDED RESPONSE AND OBJECTIONS TO PLAINTIFF’S FIRST REQUEST FOR PRODUCTION Third-Party Defendant/Cross-Claim Plaintiff, Brenda Nestor, (“Nestor or the “Third Party Defendant”), by and through the undersigned, files her amended responses and objections to the Plaintiff, Philip von Kahle, as Curator’s (“von Kahle” or the “Curator”), First Request for Production, as follows: GENERAL OBJECTIONS 1, Nestor objects to the Requests for Production to the extent that they seek information protected by the attorney-client privilege, the work-product doctrine, or any other privilege, protection or immunity applicable under the governing law2. Nestor responds to each Request for Production based on information and documentation available as of the date hereof and reserves the right to supplement and amend these responses as necessary. 3 Nestor, through her Responses and Objections to Defendants’ Request for Production, does not waive and reserves her right to challenge the relevancy, materiality, or admissibility of the information or documents. RESPONSES TO FIRST REQUEST TO PRODUCE REQUEST NO. 1: Any and all documents, correspondence, and communications supporting, evidencing or relating to your Third Affirmative Defense RESPONSE: Nestor objects to the request on the grounds that it calls for the production of documents, communications or correspondence which are covered by attorney-client privilege pursuant to the joint defense privilege or common interest exception and thus are not subject to disclosure to third parties. The very nature of Nestor’s Third Affirmative Defense is her assertion that Fidelity is estopped from pursuing claims against her based on said doctrine, and her participation and cooperation with Fidelity’s defense to the Curator’s Complaint against Fidelity. As such, communications and correspondence between Fidelity’s counsel, Nestor and Nestor’s counsel, including information exchanged between them during the course of litigation of this matter are protected by the extension of the attorney-client privilege provided by the common interest or joint defense doctrine. See Volpe v. Conroy, Simberg & Ganon, P.A., 720 So. 2d 537 (Fla. 4th DCA 1998) (“where [] co-parties communicate regarding issues of common interest to their joint defense to adequately prepare their case, the sharing of information with their co-parties’ attorneys implies no waiver of the privilege”). Given that the defense is asserted to Fidelity’s Third-Party Complaint against Nestor and not to any claims pertaining to the Curator’s Complaint against Fidelity, there is no basis for the Curator to assert that it is entitled to disclosure of such privileged information, nor is it necessary for or relevant to the prosecution of the Curator’s claims against Fidelity. Moreover, Fidelity previously provided its Amended Privilege Log (attached hereto as Exhibit A) which encompasses and asserts such privilege to the documents requested by the Curator that are otherwise responsive to this Request. REQUEST NO. 2: Any and all documents, correspondence, and communications relating to information provided by Nestor to Fidelity as referenced in your Third Affirmative Defense. RESPONSE: Nestor objects to the request on the grounds that it calls for the production of documents, communications or correspondence which are covered by thejoint defense privilege or common interest exception and thus are not subject to disclosure to third parties. The very nature of Nestor’s Third Affirmative Defense is her assertion that Fidelity is estopped from pursuing claims against her based on said doctrine, and her participation and cooperation with Fidelity’s defense to the Curator’s Complaint against Fidelity. As such, communications and correspondence between Fidelity’s counsel, Nestor and Nestor’s counsel, including information exchanged between them during the course of litigation of this matter are protected by the extension of the attorney-client privilege provided by the common interest or joint defense doctrine. See Volpe v. Conroy, Simberg & Ganon, P.A., 720 So. 2d 537 (Fla. 4th DCA 1998) (“where [] co-parties communicate regarding issues of common interest to their joint defense to adequately prepare their case, the sharing of information with their co-parties’ attorneys implies no waiver of the privilege”). Given that the defense is asserted to Fidelity’s Third-Party Complaint against Nestor and not to any claims pertaining to the Curator’s Complaint against Fidelity, there is no basis for the Curator to assert that it is entitled to disclosure of such privileged information, nor is it necessary for or relevant to the prosecution of the Curator’s claims against Fidelity. Moreover, Fidelity previously provided its Amended Privilege Log (attached hereto as Exhibit A) which encompasses and asserts such privilege to the documents requested by the Curator that are otherwise responsive to this Request. REQUEST NO. 3: Any and all documents, correspondence, and communications supporting, evidencing or relating to your Affirmative Defenses RESPONSE: Nestor asserts that the Affirmative Defenses filed by Fidelity to the Complaint, Amended Complaint and Second Amended Complaint by the Curator against Fidelity as well as any documents produced or relied upon by Fidelity in support of such Affirmative Defenses are the documents that support, evidence or relate to Nestor’s First and Second Affirmative Defenses and are either available in the Court Records of this case, or have already been produced between the Curator, Fidelity, and third-parties pursuant to subpoenas issued by Fidelity or the Curator in this case. As such, the Curator is already in possession, custody and control of such documents, having either received them from Fidelity in discovery, from third-parties pursuant to subpoena duces tecum for production, or from the Estate records already in the Curator’s possession, custody and control. Nestor objects to producing any correspondence or communications to the extent that they are covered by attorney-client privilege, work product doctrine and the joint defense doctrine/common interest exception as set forth in her Response to Interrogatory 2, supra. Nestor re-asserts her Response to the First Request as it pertains to her Third Affirmative Defense.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Responses to First Request for Production has been served to all parties identified on the attached Service List in the manner specified on this 29th day of November, 2017 OPPENHEIM PILELSKY, PA Attorneys for Third-Party Defendant, BRENDA D. NESTOR By: /s/Roy D. Oppenheim Roy D. Oppenheim, Esq Florida Bar No.: 710016 E-mail: roy@oplaw.net Geoffrey E. Sherman, Esq Florida Bar No.: 0060432 E-mail: geoffrey @oplaw.net Jacquelyn K. Trask, Esq. Florida Bar No.: 0092109 E-mail: jtrask@oplaw.net 2500 Weston Road, Suite 404 Weston, Florida 33331 Phone: (954) 384-6114 Facsimile: (954) 384-6115 Service E-mail service@oplaw.net; geoffrey@oplaw.net: roy@oplaw.net; jtrask@oplaw netSERVICE LIST PHILIP VON KAHLE, CURATOR, ON BEHALF OF THE GOVERNOR OF FLORIDA, FOR THE USE AND BENEFIT OF THE ESTATE OF VICTOR POSNER, AND FOR ALL OTHER INTERESTED PARTIES V_ FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ET AL. CASE NO.:; —2016-021099-CA-40 Sent via E-mail to: Brett M. Amron, Esq. Jeremy S. Korch, Esq. Hayley G. Harrison, Esq. BAST AMRON LLP Co-Special Counsel for the Curator SunTrust International Center One Southeast Third Ave., Suite 1400 Miami, Florida 33131 E-mail to: bamron@bastamron.com; jkorch@bastamron.com; hharrison@bastamron.com Scott W. Leeds, Esq. The Cochran Firm — South Florida Co-Special Counsel for the Curator 657 South Drive, Suite 304 Miami Springs, FL 33166 E-mail to: swleeds@cochranfirm.com William H. Strop, Esq Ryan F. Carpenter, Esq. BECKER & POLIAKOFF, P.A., Attorneys for Fidelity and Deposit Company of Maryland One East Broward Boulevard, Suite 1800 Fort Lauderdale, Florida 33301 E-mail to: wstrop@bplegal.com; rcarpenter@bplega.com; sgill@bplegal.com Philip von Kahle, 2440 Riverlane Terrace, Ft. Lauderdale, FL 33312 Michael Moecker and Associates, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315 Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty Auctions, c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315 Moecker Realty, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315EXHIBIT 3IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY, FLORIDA PHILIP VON KAHLE, CURATOR, on behalf of THE GOVERNOR OF FLORIDA, for the use and benefit of the ESTATE OF VICTOR POSNER, and for All Other Interested Parties, Plaintiff, Vv FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Defendant Vv. BRENDA D. NESTOR, Third-Party Defendant/Cross-Claim Plaintiff, Vv PHILIP VON KAHLE, individually, MICHAEL MOECKER AND ASSOCIATES, INC., MOECKER REALTY AUCTIONS, LLC d/b/a SVN MOECKER REALTY AUCTIONS, and MOECKER REALTY, INC. Cross-Claim Defendants. / CASE NO.: — 2016-021099-CA-01 DIVISION: 40 FL BAR NO: 0092109 THIRD-PARTY DEFENDANT, BRENDA NESTOR’S AMENDED RESPONSE AND OBJECTIONS TO PLAINTIFF’S THIRD REQUEST FOR PRODUCTION Third-Party Defendant/Cross-Claim Plaintiff, Brenda Nestor, (“Nestor or the “Third Party Defendant”), by and through the undersigned, files her amended responses and objections to the Plaintiff, Philip von Kahle, as Curator’s (“von Kahle” or the “Curator”), Third Request for Production, as follows: GENERAL OBJECTIONS 1, Nestor objects to the Requests for Production to the extent that they seek information protected by the attorney-client privilege, the work-product doctrine, or any other privilege, protection or immunity applicable under the governing law2. Nestor responds to each Request for Production based on information and documentation available as of the date hereof and reserves the right to supplement and amend these responses as necessary. 3 Nestor, through her Responses and Objections to Defendants’ Request for Production, does not waive and reserves her right to challenge the relevancy, materiality, or admissibility of the information or documents. AMENDED RESPONSES TO THIRD REQUEST TO PRODUCE REQUEST NO. 1: Any and all documents used by you to prepare your responses to the Plaintiff’ s First Set of Interrogatories. RESPONSE: None other than those specifically listed and identified as public records readily available to the Curator in response to each specific Interrogatory or attached to the Interrogatory Responses as Exhibits. REQUEST NO. 2: Any and all documents, correspondence, and communications supporting, evidencing or relating to your responses to the Plaintiff's First Set of Interrogatories. RESPONSE: Nestor objects to this request as framed on the grounds that it is overly broad, unduly burdensome, vague and ambiguous. Subject to and without waiving such objections, the documents responsive to this request are either (1) specifically identified in the Interrogatories as being public records readily available to the Curator in response to each specific Interrogatory, (2) identified in Nestor’s Amended Responses to the First Request for Production and Second Request for Production by the Curator which are already in the Curator’s possession, custody and control, or (3) subject to attorney- client privilege, work product doctrine and the joint defense/common interest exception as set forth on the Amended Privilege Log provided by Fidelity that was attached as Exhibit A to Nestor’s Amended Responses to the Curator’s First Request for Production to Nestor.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Responses to Third Request for Production has been served to all parties identified on the attached Service List in the manner specified on this 29th day of November, 2017 OPPENHEIM PILELSKY, PA Attorneys for Third-Party Defendant, BRENDA D. NESTOR By: /s/Roy D. Oppenheim Roy D. Oppenheim, Esq Florida Bar No.: 710016 E-mail: roy@oplaw.net Geoffrey E. Sherman, Esq Florida Bar No.: 0060432 E-mail: geoffrey @oplaw.net Jacquelyn K. Trask, Esq. Florida Bar No.: 0092109 E-mail: jtrask@oplaw.net 2500 Weston Road, Suite 404 Weston, Florida 33331 Phone: (954) 384-6114 Facsimile: (954) 384-6115 Service E-mail service@oplaw.net; geoffrey@oplaw.net: roy@oplaw.net; jtrask@oplaw.netSERVICE LIST PHILIP VON KAHLE, CURATOR, ON BEHALF OF THE GOVERNOR OF FLORIDA, FOR THE USE AND BENEFIT OF THE ESTATE OF VICTOR POSNER, AND FOR ALL OTHER INTERESTED PARTIES V_ FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ET AL. CASE NO.:; —2016-021099-CA-40 Sent via E-mail to: Brett M. Amron, Esq. Jeremy S. Korch, Esq. Hayley G. Harrison, Esq. BAST AMRON LLP Co-Special Counsel for the Curator SunTrust International Center One Southeast Third Ave., Suite 1400 Miami, Florida 33131 E-mail to: bamron@bastamron.com; jkorch@bastamron.com; hharrison@bastamron.com Scott W. Leeds, Esq. The Cochran Firm — South Florida Co-Special Counsel for the Curator 657 South Drive, Suite 304 Miami Springs, FL 33166 E-mail to: swleeds@cochranfirm.com William H. Strop, Esq Ryan F. Carpenter, Esq. BECKER & POLIAKOFF, P.A., Attorneys for Fidelity and Deposit Company of Maryland One East Broward Boulevard, Suite 1800 Fort Lauderdale, Florida 33301 E-mail to: wstrop@bplegal.com; rcarpenter@bplega.com; sgill@bplegal.com Philip von Kahle, 2440 Riverlane Terrace, Ft. Lauderdale, FL 33312 Michael Moecker and Associates, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315 Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty Auctions, c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315 Moecker Realty, Inc., c/o Michael P. Phelan as Registered Agent, 1883 Marina Mile Blvd., Suite 106, Ft. Lauderdale, FL 33315