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Filing # 102276960 E-Filed 01/27/2020 02:39:18 PM
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY, FLORIDA
CIVIL DIVISION
GALE ARLEDGE and
TERRANCE ARLEDGE,
her husband,
Plaintiffs, CASE NO: 01-2018-CA-004032
v.
13™ STREET HOME SALES, LLC,
Defendant.
13 STREET HOME SALES, LLC’S RESPONSE IN OPPOSITION TO
MOTION TO COMPEL INSPECTION
The Defendant, 137! STREET HOMES SALES, LLC (hereinafter “Defendant”), hereby
responds to Plaintiffs’ Motion to Compel Inspection and Examination of Defendant’s Computer
Systems dated January 14, 2020 (hereinafter “Motion to Compel”), and states as follows:
BACKGROUND
This is an action which arises from an accident which occurred on September 20, 2017, in
Alachua County, Florida. On that date, the Plaintiff, GALE ARLEDGE, was on Defendant’s
premises for the purpose of viewing mobile homes; Defendant is a new and used manufactured
home dealer. GALE ARLEDGE asserts she was injured on Defendant’s premises when her foot
crossed through the floor or a restroom,! and that she has suffered damages flowing therefrom. In
addition, her spouse, TERRANCE ARLEDGE, has filed a loss of consortium claim. For the sake
of brevity, GALE and TERRANE ARLEDGE shall be referred to herein as “Plaintiffs.”
' There is a dispute between the parties as to whether the location wherein the accident occurred was a storage room
open only to employees, or a restroom open to the public. For the sake of simplicity, Defendants shall refer to the
location of the accident as a restroom.
"2018 CA 004032" 102276960 Filed at Alachua County Clerk 01/27/2020 02:39:30 PM ESTARGUMENT AND INCORPORATED MEMORANDUM OF LAW
I. The Plaintiffs mischaracterize the corporate representative’s deposition testimony;
signs and computer systems were not designated areas of testimony for deposition.
On August 5, 2019, the Plaintiffs filed their Notice of Taking Deposition Duces Tecum.
The Notice did not specify a date and time for a deposition. Rather, the Notice specified the
designated areas of testimony for Defendant’s corporate representative pursuant to Fla. R. Civ. P.
1.310(b)(6). For the Court’s ease of reference, a true and correct copy is attached and incorporated
herein as Exhibit A.
Plaintiffs’ Notice of Taking Deposition Duces Tecum dated August 5, 2019, listed the
designated areas of testimony as follows:
(a) Defendant’s written policies on safety to patrons, including employee handbooks and
standard operating procedures;
(b) evidence of safety inspections, including logs, checklists, or safety sweeps of the subject
restroom, and its surrounding flooring;
(c) the reporting of patron injuries; training materials, policies and procedures for the
maintenance, inspection, and repair of the subject restroom, and its surrounding flooring;
(d) preservation of CCTV or other types of surveillance video footage; and
(e) any contracts, subcontracts, invoices, repair logs, or other documentation evidencing any
work performed on the subject restroom and its surrounding flooring.
Notably, the Notice of Taking Deposition Duces Tecum dated August 8, 2019 did not include the
creation of any signs or the Defendant’s computer system and corresponding computers.
On October 15, 2019, Plaintiffs filed a second Notice of Taking Deposition Duces Tecum.
The second Notice of Taking Deposition Duces Tecum provided the date and time for the
deposition of the corporate representative for the Defendant. The Notice of Taking Deposition
Duces Tecum dated October 15, 2019, designated the same areas of testimony as the Notice of
Taking Deposition Duces Tecum dated August 5, 2019. A true and correct copy of the Notice of
Taking Deposition Duces Tecum dated October 15, 2019 is attached and incorporated herein as
Exhibit B.
The deposition of the corporate representative for the Defendant took place on November
19,2019. Jason Brent Wainwright (hereinafter “Wainwright”), the corporate representative for
the Defendant, testified for almost three (3) hours. During the course of the deposition,Wainwright was asked a variety of questions regarding the Defendant’s computer systems and the
creation of a sign which may have been on the door of the restroom wherein the accident occurred.
The Defendant’s computers, computer system(s), and creation of a sign which may have been on
the door of the restroom wherein the accident occurred were not specified as areas of testimony.
and Wainwright stated on multiple occasions that he did not have the requisite knowledge to
provide substantive answers as to those matters:
Specifically, with regard to the creation of signage, Wainwright testified as follows:
Q Okay. And if we were to ask regarding sign that's depicted in Number 7A and B, your or
Erika's computer for when this specific sign was comprised or created, what date would
we find?
A [don't know.
Q_ Okay. Is it -- would it have been after the incident?
A Idon't recall. This is two years ago. We had signage on the door.
(Deposition of Wainwright, page 105, line 21 to page 106, line 5.).?
As to the issue of the Defendant’s computer system, Wanwright testified as follows:
Q Do you have the same computers in place you had back in 2017 when this incident
occurred?
A We should. J’m not certain on that because we periodically update computers. I don't
know the ages of which ones or where they're at.
(Deposition of Wainwright, page 133, line 12 to line 17).3 Simply stated, Wainwright testified,
when questioned about topics not included in the designated areas of testimony, that he did not
know.
Following Wainwright’s deposition, counsel for the Plaintiffs contacted undersigned
counsel to request an examination of Defendant’s computers. As set forth in Plaintiffs’ Motion to
Compel, Plaintiffs wish to search Defendant’s computers for a sign or signs for the restroom door
created on said computer system.
On December 26, 2019, undersigned counsel authored correspondence to Plaintiffs’
counsel, pointing out that the questions asked of Wainwright were outside the scope of the
corporate representative designations, and suggesting there were less intrusive methods for the
? It is this exact deposition testimony that Plaintiffs cite in their Motion to Compel ({14) as evidence of
Wainwright’s “evasiveness” or “unwillingness” to testify.
3 Once again, this is the exact deposition testimony that Plaintiffs cite in their Motion to Compel (415) as evidence
of Wainwright's “evasiveness” or “unwillingness” to testify.Plaintiff to obtain the information the Plaintiffs seek. A true and correct copy of that
correspondence is attached and incorporated herein as Exhibit C.
On January 14, 2020, Plaintiffs filed the Motion to Compel, wherein the Plaintiffs
repeatedly argue that Wainwright was “unable or unwilling” to testify about the Defendant’s
computer system and sign creation. Defendant would assert that this phrasing is misleading and
incompatible with the facts. The topics of computer systems and sign creation were never areas
regarding which Wainwright was prepared to testify, because the Plaintiff did not notice those
topics for the corporate representative’s deposition.
Pursuant to Fla. R. Civ. P. 1.310(b)(6), “a party may name as the deponent a public or
private corporation, a partnership or association, or a governmental agency, and designate with
reasonable particularity the matters on which examination is requested. The organization so named
shall designate one or more officers, directors, or managing agents, or other persons who consent
to do so, to testify on its behalf and may state the matters on which each person designated will
testify. The persons so designated shall testify about matters known or reasonably available to the
organization.” Id.
As explained in Sybac Solar, GMBH v. 6th Street Solar Energy Park of Gainesville, LLC.
217 So.3d 1068, 1071 (Fla. 2d DCA 2017), “[t]he substance of this rule was taken from an
amendment to Federal Rule of Civil Procedure 30(b)(6), which is rule 1.310(b)(6)'s federal
counterpart. Under these rules, the party seeking to depose a witness must describe the subject for
examination with reasonable particularity. The corporation must then produce a witness to testify
regarding this subject matter.” Id. (emphasis supplied, internal citation omitted).
In the instant case, the burden was on the Plaintiffs to describe, with reasonable
particularity, the subjects regarding which they wanted the corporate representative to testify.
Plaintiffs failure to do so and the corporate representative’s resulting inability to testify as to
matters not included in the notice of deposition does not entitle them to an examination of the
Defendant’s computers or computer system.
II. The Plaintiffs’ Motion to Compel is not supported by material facts and is not
supported by the application of Florida law.
In their Motion to Compel, Plaintiffs cites Holland v. Barfield, 35 So.3d 953 (Fla. 5" DCA
2010) as standing for the proposition that a court may order the examination of a party’s computersin situations wherein there is evidence of any destruction of evidence or thwarting of discovery; a
likelihood the information exists on the devices; and no less intrusive means exists of obtaining
the information. In a technical sense, the Plaintiffs are correct that Holland v. Barfield states that
is the standard for ordering an examination of a party’s computers. However, the Plaintiffs did
not indicate that the Second District in Holland was examining a sister court’s decision, Menke v.
Broward County School Board, 916 So.2d 8 (Fla. 4th DCA 2005), and the fact patterns giving rise
to each decision. As such, Defendant would suggest that a more thorough examination of Menke
vy. Broward County School Board and Holland v. Barfield is instructive.
Menke was an administrative law case involving disciplinary proceeding against a high
school teacher accused of exchanging improper e-mails with students and making derogatory
comments regarding school personnel. The administrative law judge presiding over the
disciplinary proceedings entered an order compelling production of all computers in the teacher's
household for purpose of discovery. The Fourth District held the order was erroneous because:
(a) the computers might contain privileged or private information; (b) there was no evidence of
destruction of evidence or thwarting of discovery; (c) the school board did not request an alternate
method of discovery or prove there was no less intrusive way to obtain information, and (d) order
did not permit the teacher to assert privilege or privacy rights of himself or others in the household
prior to disclosure. Id. at 12. The Fourth District explained that “[w]here a need for electronically
stored information is demanded, such searching should first be done by defendant so as to protect
confidential information, unless, of course, there is evidence of data destruction designed to
prevent the discovery of relevant evidence in the particular case. In fact, in the few cases we have
found across the country permitting access to another party's computer, all have been in situations
where evidence of intentional deletion of data was present.” Id.
In Holland, the defendant in a wrongful death suit sought a writ of certiorari quashing the
trial court's order compelling her to produce all computer hard drives and all cell phone SIM cards
in her possession to the representative for the decedent’s estate. Id. at 954. In explaining its
decision to quash the trial court’s order compelling production of the computer hard drives and
cell phone SIM cards, the Second District explained it would quash the order compelling
production of the hard drives and SIM card because there was no evidence of any destruction of
evidence or thwarting of discovery, and the record demonstrated that less intrusive means were
possible. Id. at 955-6.In simple terms, in order to compel an inspection of the Defendant’s computers, the
Plaintiffs must prove evidence of destruction of evidence or thwarting of discovery, and likelihood
the information exists on the devices, and that no less intrusive means exists of obtaining the
information. Every element of the three-prong test must be satisfied.
However, Plaintiff has not proven any of these elements are present in the instant case. In
point of fact, the Plaintiff has not even alleged the necessary elements to satisfy the three-prong
test. Instead, she asserts only in conclusory terms as follows:
Given the inconsistencies in both the testimony and the photographic evidence
regarding the signs, and Defendant’s corporate representative’s evasiveness during
deposition, Plaintiffs have formed a reasonable belief that the sign appearing on the
door to the subject room was actually created and emplaced after Plaintiffs fall,
and that no other similar signs were ever created on Defendant’s computer system
prior to Plaintiff's fall.
Motion to Compel, §21. However, the Plaintiff has cited no appellate decisions which stand for
the proposition that a disagreement between a plaintiff and defendant about the ultimate facts
giving rise to a suit, without more, is sufficient to compel an inspection of the defendant’s computer
system(s). Defendant would suggest to this Honorable Court that no such case law exists in
Florida.
CONCLUSION
The Plaintiffs failed to properly specify the areas of testimony for the corporate
representative of the Defendant, and now seek to capitalize on the corporate representative’s
inability to provide substantive testimony regarding topics which were not specified in the notices
of deposition. Further, the Plaintiffs have moved this Honorable Court for an order compelling
the examination of the Defendant’s computers, but failed to prove the material facts necessary to
establish the need for an examination. The Plaintiff's Motion to Compel is without merit.
4 TA] search might be approved after the requesting party proved (1) evidence of any destruction of evidence or
thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists
of obtaining the information.” Holland at 955 (citing Menke at 12) (emphasis supplied).WHEREFORE, the 13"! STREET HOMES SALES, LLC, requests this Honorable Court
deny Plaintiffs’ Motion to Compel Inspection and Examination of Defendant’s Computer Systems
for the reasons set forth herein, and for further relief as the Court deems in the interests of justice.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served
through the Florida Courts E-filing Portal to: Rebecca H. Cozart, Esq., Ronald E. Sholes, P.A.,
8761 Perimeter Park Blvd., Suite 104, Jacksonville, Florida 32216 at ronsholespa-team4-
eservice@youhurtwefight.com; team20-premises-eservice@youhurtwefight.com, this 27th day of
January 2020.
s/ Carla M. Sabbagh
Michael S. Rywant, Esquire
Florida Bar No.: 240354
Primary email:msrywant@rywantalvarez.com
Secondary: — service@rywantalvarez.com
nginn@rywantalvarez.com
Carla M. Sabbagh, Esquire
Florida Bar No.: 72727
Primary email:csabbagh@rywantalvarez.com
Secondary: — creneke@rywantalvarez.com
Rywant, Alvarez, Jones, Russo & Guyton, P.A.
2440 S.W. 76" Street Ste. 130
Gainesville, FL 32608
(Tel) 352-333-3700 / (Fax) 352-333-3706
Attorneys for Defendant, 13" Street Home Sales,
LLCEXHIBIT AFiling # 93629442 E-Filed 08/05/2019 09:12:20 AM
IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY FLORIDA
CASENO: = 2018-CA-004032
DIVISION: — Circuit Civil
GALE ARLEDGE and
TERRANCE ARLEDGE,
her husband,
Plaintiffs,
v.
13TH STREET HOMES SALES, LLC,
Defendant.
/
PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM
COMES NOW Plaintiffs, GALE ARLEDGE and TERRENCE ARLEDGE, by and
through the undersigned counsel, and pursuant to Fla. R. Civ. P, 1.310(b)(6), gives notice that on
a date, time and location, agreed upon by the parties, but prior to the close of discovery, the
undersigned counsel will take the deposition of the corporate representative; and that
Defendant, 13TH STREET HOMES SALES, LLC, is required to designate and fully prepare
one or more officers, directors, managing partners, agents, or other person(s) who consent to
testifying on behalf of Defendant and whom Defendant will fully prepare to testify regarding
the following designated matters and as to such information that is known or reasonably
available to Defendant’s organization regarding Defendant’s written policies on safety to
patrons, including employee handbooks and standard operating procedures; evidence of |
safety inspections, including logs, checklists, or safety sweeps of the subject restroom, and its
surrounding flooring; the reporting of patron injuries; training materials, policies and
procedures for the maintenance, inspection, and repair of the subject restroom, and itssurrounding flooring; preservation of CCTV or other types of surveillance video footage;
any contracts, subcontracts, invoices, repair logs, or other documentation evidencing any
work performed on the subject restroom and its surrounding flooring. The deposition will be
conducted before Riley Reporting, a Notary Public, or before some other officer authorized by law to
contemporaneously transcribe depositions. Said deposition will continue from day to day until
completed. The deposition will be used for the purposes of discovery, at trial, or any other use permitted
by the Florida Rules of Civil Procedure.
The Deponent is further commanded to bring with them, at the time and place listed above, the
requested materials outlined in Exhibit “A”, a copy of which is attached herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 5th day of August, 2019 this document was filed using the
Florida Courts E-Filing Portal, This document is being served on all counsel of record by the Florida Courts
E-Filing Portal, pursuant to and in compliance with Fla. R. Jud. Admin. 2.516. The address for Defendant’s
counsel is: Carla Sabbagh, Esq., Rywant, Alvarez, Jones, Russo & Guyton, P.A., 2440 S.W. 76TH Street,
Suite 130, Gainesville, FL 32608; Michael S$. Rywant, Esq., Rywant, Alvarez, Jones, Russo & Guyton,
P.A., 2440 S.W. 76th Street, Suite 130, Gainesville, FL 32608. This Notice was emailed to: Carla Sabbagh
at creneke@rywantalvarez.com and dbulatewicz@rywantalvarez.com, and to Michael S. Rywant at
service@rywantalvarez.com.
s/ Jason A. Gieger
SCOTT BURLEIGH (FL Bar No. 0055486)
REBECCA H. COZART (FL Bar No. 0487570)
JASON A. GIEGER (FL Bar No. 176575)
RONALD E, SHOLES, P.A.
8761 Perimeter Park, Suite 104
Jacksonville, Florida 32216
Ph: (904) 661-3730 Fax: (904) 683-9282
Primary Email: RonSholesPA-Team4-Eservice@Y ouHurtWeFight.com
Attorneys for PlaintiffsExhibit “A”
The following is a list of subjects that the corporate representative brought forth by
Defendant is: (1) expected to have knowledge and familiarity of; and (2) expected to bring
copies of to the deposition.
IMPORTANT: Some of the requested items below may not be specific to 137! STREET
HOME SALES, INC. As such, we are asking that both the subsidiary and parent company
versions of the requested items be proffered by Defendant, in addition to any of those that
are also within the Defendants possession, custody and control.
The "subject incident" refers to the incident occurring on September 20, 2017, as
described in Plaintiff's complaint.
The "subject area" refers to the flooring in the restroom where the subject incident
occurred, as described in Plaintiff's complaint.
1, Copies of any and all written policies, including but not limited to any employee
handbooks and standard operating procedures, relating to the safety of patrons visiting the
building where the subject incident took place. (Scope: in effect at the time of the incident)
2. Copies of any and all safety performance goals in effect at the time of the subject incident.
3. Copies of any safety inspections, including but not limited to logs, checklists, or other
evidence of safety sweeps, which would include the subject area where the incident
occurred, for the five (5) years prior to subject incident until the present.
4. Copies of any and all training materials, policies, and procedures related to the inspection,
maintenance, and repairs of the subject area.
5. Copies of any manuals/procedures/best practices related to creating an incident report when
an event like the subject incident occurs in the subject area. (Scope: those
manuals/procedures/best practices in effect at the time of the subject incident)
6. Copies of any manuals/procedures/best practices related to preserving CCTV or other types
of surveillance video footage following the occurrence of an incident like the subject
incident in the subject area.
7. Copies of any and all reports, documents, memoranda or notes related to the subject
incident.8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs, or other
documentation evidencing any work performed of the subject area for the five (5) years
prior to subject incident until the present.
9, Any and all contracts or agreements between the Defendant and third party relating to the
inspection, construction, maintenance, and repair of subject area, in effect for the five (5)
years prior to the subject incident until the present.
10. Copies of the building plans regarding the original construction of the subject restroom,
and its surrounding flooring.EXHIBIT B_ Filing # 97298910 E-Filed 10/15/2019 01:41:19 PM
IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY FLORIDA
GALE ARLEDGE and
TERRANCE ARLEDGE,
her husband, CASENO: = 2018-CA-004032
DIVISION: _ Circuit Civil
Plaintiffs,
v.
13TH STREET HOMES SALES, LLC,
Defendant.
PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM
COMES NOW Plaintiffs, GALE ARLEDGE and TERRANCE ARLEDGE,
her husband, by and through the undersigned counsel, and pursuant to Fla. R. Civ. P.
1.310(6)(6), on behalf of Plaintiffs herein, the undersigned hereby gives notice that
beginning at 10:00 a.m. on November 19, 2019 at Advantage Court Reporters, 305 NE
Ast Street, Gainesville, FL 32601, the undersigned counsel will take the deposition of
the corporate representative; and that Defendant 13TH STREET HOMES SALES,
LLC is required to designate and fully prepare one or more officers, directors, managing
partners, agents, or other person(s) who consent to testifying on behalf of Defendant and
whom Defendant will fully prepare to testify regarding the following designated matters
and as to such information that is known or reasonably available to Defendant’s
organization regarding Defendant’s standard operating procedures for the safety of
patrons; the reporting of patron injuries; standard operating procedures for
safety/liability/prevention sweeps; incentive based programs related to
accident/incident prevention; the training of employees regarding safety andreporting of patron injuries; standard operating procedures for training, education,
and experience of employees and the supervisory roles of their managers; policies
regarding hiring of any outside employee training services used by Defendant; and
standard operating procedures for risk assessment. The deposition will be conducted
before Advantage Court Reporters, a Notary Public, or before some other officer
authorized by law to contemporaneously transcribe depositions at Advantage Court
Reporters, 305 NE 1st Street, Gainesville, FL 32601. Said deposition will continue
from day to day until completed. The deposition will be used for the purposes of
discovery, at trial, or any other use permitted by Florida Rules of Civil Procedure.
The Deponent is further commanded to bring with them, at the time or place listed
above, the requested materials noted in Exhibit “A”, attached.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that on the 15th day of October, 2019, this document was
filed using the Florida Courts E-Filing Portal. This document is being served on all
counsel of record by the Florida Courts E-Filing Portal, pursuant to and in compliance
with Fla. R. Jud. Admin. 2.516. Opposing counsel is: Michael S. Rywant, Esq. and Carla
M. Sabbagh, Esq., Rywant, Alvarez, Jones, Russo, & Guyton, P.A., Gainesville, FL
32608.
/s/ Rebecca H. Cozart
REBECCA H. COZART (FL Bar No. 0487570)
RONALD E. SHOLES, P.A.
8761 Perimeter Park Blvd., Suite 104
Jacksonville, Florida 32216
Ph: (904) 661-3730 Fax: (904) 683-9282
RonSholesPA-Team4-
Eservice@YouHurtWeFight.com
Attorney for PlaintiffExhibit “A”The following is a list of subjects that the corporate representative brought forth by
Defendant is: (1) expected to have knowledge of; and (2) expected to bring copies of
to the deposition:
1, Copies of any and all written policies, including but not limited to any employee
handbooks and standard operating procedures, relating to the safety of patrons visiting
the building where the subject incident took place. (Scope: in effect at the time of the
incident)
2. Copies of any and all safety performance goals in effect at the time of the subject
incident.
3. Copies of any safety inspections, including but not limited to logs, checklists, or
other evidence of safety sweeps, which would include the subject area where the incident
occurred, for the five (5) years prior to subject incident until the present.
4, Copies of any and all training materials, policies, and procedures related to the
inspection, maintenance, and repairs of the subject area.
5. Copies of any manuals/procedures/best practices related to creating an incident
report when an event like the subject incident occurs in the subject area. (Scope: those
manuals/procedures/best practices in effect at the time of the subject incident).
6. Copies of any manuals/procedures/best practices related to preserving CCTV or
other types of surveillance video footage following the occurrence of an incident like the
subject incident in the subject area.
7. Copies of any and all reports, documents, memoranda or notes related to the
subject incident.
8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs,
or other documentation evidencing any work performed of the subject area for the five
(5) years prior to subject incident until the present.
9. Any and all contracts or agreements between the Defendant and third party
relating to the inspection, construction, maintenance, and repair of subject area, in effect
for the five (5) years prior to the subject incident until the present.
10. Copies of the building plans regarding the original construction of the subject
restroom, and its surrounding flooring.EXHIBIT CRYWANT, ALVAREZ, JONES, RUSSO & GUYTON, P.A.
ATTORNEYS AT Law
*Tampa ‘Inverness ¢Gainesville *Orlando
Carla M. Sabbagh REPLY 2440 SW. 76 Street
Attomey at Law TO: Suite 130
csabbagh@rywantalvarez.com Gainesville, FL 32608
December 26, 2019
Via Electronic Mai es.brunet@youhurtwefight.com
James Brunet, Esq.
Ronaid E. Sholes, P.A.
8761 Perimeter Park Bivd., Suite 104
Jacksonville, Florida 32216
Re: Arledge, Gale and Terrance v. 13" Street Home Sales, LLC
Case No: 01-2018-CA-004032
Dear Mr. Brunet:
This follows your most recent correspondence, wherein you requested our client to consent to
a forensic examination of its computers. Specifically, you stated that you wished for a forensic
computer expert to image the storage devices on our client’s computers to determine when “the sign(s)
in question were created,” and mentioned the “signs about which [our] corporate representative
testified.”
I’ve reviewed the depositions of Erika Ashley, Michael Smart, and Brent Wainwright, the
corporate representative. I'll note that Brent Wainwright testified he did not know when the sign in
question were created. However, that was outside the scope of designated areas of testimony in your
Notice of Taking Deposition Duces Tecum. I have enclosed a copy of same herein. As you can see,
there is no mention of signage in the Notice. Neither Erika Ashley nor Michael Smart were asked
when the sign was created. In short, there was no substantive information solicited from Erika Ashley
or Michael Smart regarding the creation of the sign and there was no request for the corporate designee
to prepare to testify regarding the sign. In light of the foregoing, I do not believe a forensic examination j
is required or even appropriate. There are less intrusive methods for the Plaintiffs to obtain the
information the Plaintiffs seek, including, but not limited to, written interrogatories.
As always, you are welcome to reach out should you have any questions or concerns regarding
the foregoing.
Sincerely,
Pi GGL :
Carla M. Sabbagh i
CMS/
Enc: Plaintiffs’ Notice of Taking Deposition Duces Tecum dated 10-15-19
Natoya F. Abei / Lindsay M, Alvarez / Manuel J, Alvarez / Jordan L. Behiman / Norman $. Cannella, Sr. / David D. Cuellar
Amanda R, Dunn / John A. Guyton, II] / Matthew M, Holtsinger / Melissa A. Isabel / Gregory D. Jones / Anthony J. Livingston
Tan J. MacAlister / Amanda J. McDermott / Kerry C. McGuinn, Jr. / Andrew F. Russo / Michael S. Rywant / Carle M. Sabbagh
GAINESVILLE
2440 S.W. 76" Sireet, Suite 130, Gainesville, FL. 32608
Tel: (352)333-3700 Fax: (352)333-3706 Toil Free Statewide: (888) 378-4401
www rywantalvarez.comFiling # 97298910 E-Filed 10/15/2019 01:41:19 PM
IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY FLORIDA
GALE ARLEDGE and
TERRANCE ARLEDGE,
her husband, CASENO: 2018-CA-004032
DIVISION: _ Circuit Civil
Plaintiffs,
v.
13TH STREET HOMES SALES, LLC,
Defendant.
PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM
COMES NOW Plaintiffs, GALE ARLEDGE and TERRANCE ARLEDGE,
her husband, by and through the undersigned counsel, and pursuant to Fla. R. Civ. P.
1.310(6)(6), on behalf of Plaintiffs herein, the undersigned hereby gives notice that
beginning at 16:00 a.m. on November 19, 2019 at Advantage Court Reporters, 305 NE
Ist Street, Gainesville, FL 32601, the undersigned counsel will take the deposition of
the corporate representative; and that Defendant 13TH STREET HOMES SALES,
LLC is required to designate and fully prepare one or more officers, directors, managing
partners, agents, or other person(s) whe consent to testifying on behalf of Defendant and
whom Defendant will fully prepare to testify regarding the following designated matters
and as to such information that is known or reasonably available to Defendant’s
organization regarding Defendant’s standard operating procedures for the safety of
patrons; the reporting of patron injuries; standard operating procedures for
safety/iability/prevention sweeps; incentive based programs related to
accidentincident prevention; the training of employees regarding safety and
i
i
ireporting of patron injuries; standard operating procedures for training, education,
and experience of employees and the supervisory roles of their managers; policies
regarding hiring of any outside employee training services used by Defendant; and
standard operating procedures for risk assessment. The deposition will be conducted
before Advantage Court Reporters, a Notary Public, or before some other officer
authorized by law to contemporaneously transcribe depositions at Advantage Court
Reporters, 305 NE Ist Street, Gainesville, FL 32601. Said deposition will continue
from day to day until completed. The deposition will be used for the purposes of
discovery, at trial, or any other use permitted by Florida Rules of Civil Procedure.
The Deponent is further commanded to bring with them, at the time or place listed
above, the requested materials noted in Exhibit “A”, attached.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 15th day of October, 2019, this document was
filed using the Florida Courts E-Filing Portal. This document is being served on all
counse] of record by the Florida Courts E-Filing Portal, pursuant to and in compliance
with Fla. R. Jud. Admin. 2.516. Opposing counsel is: Michael S. Rywant, Esq. and Carla
M. Sabbagh, Esq., Rywant, Alvarez, Jones, Russo, & Guyton, P.A., Gainesville, FL
32608.
/s/ Rebecca H. Cozart
REBECCA H. COZART (EL Bar No. 0487570)
RONALD E. SHOLES, P.A.
8761 Perimeter Park Blvd., Suite 104
Jacksonville, Florida 32216
Ph: (904) 661-3730 Fax: (904) 683-9282
RonSholesPA-Team4-
Eservice@YouHurtWeFight.com
Attorney for PlaintiffExhibit “A”The following is a list of subjects that the corporate representative brought forth by
Defendant is: (1) expected to have knowledge of; and (2) expected to bring copies of
to the deposition:
1. Copies of any and all written policies, including but not limited to any employee
handbooks and standard operating procedures, relating to the safety of patrons visiting
the building where the subject incident took place. (Scope: in effect at the time of the
incident)
2. Copies of any and all safety performance goals in effect at the time of the subject
incident.
3. Copies of any safety inspections, including but not limited to logs, checklists, or
other evidence of safety sweeps, which would include the subject area where the incident
occurred, for the five (5) years prior to subject incident until the present.
4. Copies of any and al! training materials, policies, and procedures related to the
inspection, maintenance, and repairs of the subject area.
5. Copies of any manuals/procedures/best practices related to creating an incident
report when an event like the subject incident occurs in the subject area. (Scope: those
manuals/procedures/best practices in effect at the time of the subject incident).
6. Copies of any manuals/procedures/best practices related to preserving CCTV or
other types of surveillance video footage following the occurrence of an incident like the
subject incident in the subject area.
7. Copies of any and all reports, documents, memoranda or notes related to the
subject incident.
8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs,
or other documentation evidencing any work performed of the subject area for the five
(5) years prior to subject incident until the present.
9. Any and all contracts or agreements between the Defendant and third party
relating to the inspection, construction, maintenance, and repair of subject area, in effect
for the five (5) years prior to the subject incident until the present.
10. Copies of the building plans regarding the original construction of the subject
restroom, and its surrounding flooring.
:
Preview
Filing # 102276960 E-Filed 01/27/2020 02:39:18 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA CIVIL DIVISION GALE ARLEDGE and TERRANCE ARLEDGE, her husband, Plaintiffs, CASE NO: 01-2018-CA-004032 v. 13™ STREET HOME SALES, LLC, Defendant. 13 STREET HOME SALES, LLC’S RESPONSE IN OPPOSITION TO MOTION TO COMPEL INSPECTION The Defendant, 137! STREET HOMES SALES, LLC (hereinafter “Defendant”), hereby responds to Plaintiffs’ Motion to Compel Inspection and Examination of Defendant’s Computer Systems dated January 14, 2020 (hereinafter “Motion to Compel”), and states as follows: BACKGROUND This is an action which arises from an accident which occurred on September 20, 2017, in Alachua County, Florida. On that date, the Plaintiff, GALE ARLEDGE, was on Defendant’s premises for the purpose of viewing mobile homes; Defendant is a new and used manufactured home dealer. GALE ARLEDGE asserts she was injured on Defendant’s premises when her foot crossed through the floor or a restroom,! and that she has suffered damages flowing therefrom. In addition, her spouse, TERRANCE ARLEDGE, has filed a loss of consortium claim. For the sake of brevity, GALE and TERRANE ARLEDGE shall be referred to herein as “Plaintiffs.” ' There is a dispute between the parties as to whether the location wherein the accident occurred was a storage room open only to employees, or a restroom open to the public. For the sake of simplicity, Defendants shall refer to the location of the accident as a restroom. "2018 CA 004032" 102276960 Filed at Alachua County Clerk 01/27/2020 02:39:30 PM ESTARGUMENT AND INCORPORATED MEMORANDUM OF LAW I. The Plaintiffs mischaracterize the corporate representative’s deposition testimony; signs and computer systems were not designated areas of testimony for deposition. On August 5, 2019, the Plaintiffs filed their Notice of Taking Deposition Duces Tecum. The Notice did not specify a date and time for a deposition. Rather, the Notice specified the designated areas of testimony for Defendant’s corporate representative pursuant to Fla. R. Civ. P. 1.310(b)(6). For the Court’s ease of reference, a true and correct copy is attached and incorporated herein as Exhibit A. Plaintiffs’ Notice of Taking Deposition Duces Tecum dated August 5, 2019, listed the designated areas of testimony as follows: (a) Defendant’s written policies on safety to patrons, including employee handbooks and standard operating procedures; (b) evidence of safety inspections, including logs, checklists, or safety sweeps of the subject restroom, and its surrounding flooring; (c) the reporting of patron injuries; training materials, policies and procedures for the maintenance, inspection, and repair of the subject restroom, and its surrounding flooring; (d) preservation of CCTV or other types of surveillance video footage; and (e) any contracts, subcontracts, invoices, repair logs, or other documentation evidencing any work performed on the subject restroom and its surrounding flooring. Notably, the Notice of Taking Deposition Duces Tecum dated August 8, 2019 did not include the creation of any signs or the Defendant’s computer system and corresponding computers. On October 15, 2019, Plaintiffs filed a second Notice of Taking Deposition Duces Tecum. The second Notice of Taking Deposition Duces Tecum provided the date and time for the deposition of the corporate representative for the Defendant. The Notice of Taking Deposition Duces Tecum dated October 15, 2019, designated the same areas of testimony as the Notice of Taking Deposition Duces Tecum dated August 5, 2019. A true and correct copy of the Notice of Taking Deposition Duces Tecum dated October 15, 2019 is attached and incorporated herein as Exhibit B. The deposition of the corporate representative for the Defendant took place on November 19,2019. Jason Brent Wainwright (hereinafter “Wainwright”), the corporate representative for the Defendant, testified for almost three (3) hours. During the course of the deposition,Wainwright was asked a variety of questions regarding the Defendant’s computer systems and the creation of a sign which may have been on the door of the restroom wherein the accident occurred. The Defendant’s computers, computer system(s), and creation of a sign which may have been on the door of the restroom wherein the accident occurred were not specified as areas of testimony. and Wainwright stated on multiple occasions that he did not have the requisite knowledge to provide substantive answers as to those matters: Specifically, with regard to the creation of signage, Wainwright testified as follows: Q Okay. And if we were to ask regarding sign that's depicted in Number 7A and B, your or Erika's computer for when this specific sign was comprised or created, what date would we find? A [don't know. Q_ Okay. Is it -- would it have been after the incident? A Idon't recall. This is two years ago. We had signage on the door. (Deposition of Wainwright, page 105, line 21 to page 106, line 5.).? As to the issue of the Defendant’s computer system, Wanwright testified as follows: Q Do you have the same computers in place you had back in 2017 when this incident occurred? A We should. J’m not certain on that because we periodically update computers. I don't know the ages of which ones or where they're at. (Deposition of Wainwright, page 133, line 12 to line 17).3 Simply stated, Wainwright testified, when questioned about topics not included in the designated areas of testimony, that he did not know. Following Wainwright’s deposition, counsel for the Plaintiffs contacted undersigned counsel to request an examination of Defendant’s computers. As set forth in Plaintiffs’ Motion to Compel, Plaintiffs wish to search Defendant’s computers for a sign or signs for the restroom door created on said computer system. On December 26, 2019, undersigned counsel authored correspondence to Plaintiffs’ counsel, pointing out that the questions asked of Wainwright were outside the scope of the corporate representative designations, and suggesting there were less intrusive methods for the ? It is this exact deposition testimony that Plaintiffs cite in their Motion to Compel ({14) as evidence of Wainwright’s “evasiveness” or “unwillingness” to testify. 3 Once again, this is the exact deposition testimony that Plaintiffs cite in their Motion to Compel (415) as evidence of Wainwright's “evasiveness” or “unwillingness” to testify.Plaintiff to obtain the information the Plaintiffs seek. A true and correct copy of that correspondence is attached and incorporated herein as Exhibit C. On January 14, 2020, Plaintiffs filed the Motion to Compel, wherein the Plaintiffs repeatedly argue that Wainwright was “unable or unwilling” to testify about the Defendant’s computer system and sign creation. Defendant would assert that this phrasing is misleading and incompatible with the facts. The topics of computer systems and sign creation were never areas regarding which Wainwright was prepared to testify, because the Plaintiff did not notice those topics for the corporate representative’s deposition. Pursuant to Fla. R. Civ. P. 1.310(b)(6), “a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization.” Id. As explained in Sybac Solar, GMBH v. 6th Street Solar Energy Park of Gainesville, LLC. 217 So.3d 1068, 1071 (Fla. 2d DCA 2017), “[t]he substance of this rule was taken from an amendment to Federal Rule of Civil Procedure 30(b)(6), which is rule 1.310(b)(6)'s federal counterpart. Under these rules, the party seeking to depose a witness must describe the subject for examination with reasonable particularity. The corporation must then produce a witness to testify regarding this subject matter.” Id. (emphasis supplied, internal citation omitted). In the instant case, the burden was on the Plaintiffs to describe, with reasonable particularity, the subjects regarding which they wanted the corporate representative to testify. Plaintiffs failure to do so and the corporate representative’s resulting inability to testify as to matters not included in the notice of deposition does not entitle them to an examination of the Defendant’s computers or computer system. II. The Plaintiffs’ Motion to Compel is not supported by material facts and is not supported by the application of Florida law. In their Motion to Compel, Plaintiffs cites Holland v. Barfield, 35 So.3d 953 (Fla. 5" DCA 2010) as standing for the proposition that a court may order the examination of a party’s computersin situations wherein there is evidence of any destruction of evidence or thwarting of discovery; a likelihood the information exists on the devices; and no less intrusive means exists of obtaining the information. In a technical sense, the Plaintiffs are correct that Holland v. Barfield states that is the standard for ordering an examination of a party’s computers. However, the Plaintiffs did not indicate that the Second District in Holland was examining a sister court’s decision, Menke v. Broward County School Board, 916 So.2d 8 (Fla. 4th DCA 2005), and the fact patterns giving rise to each decision. As such, Defendant would suggest that a more thorough examination of Menke vy. Broward County School Board and Holland v. Barfield is instructive. Menke was an administrative law case involving disciplinary proceeding against a high school teacher accused of exchanging improper e-mails with students and making derogatory comments regarding school personnel. The administrative law judge presiding over the disciplinary proceedings entered an order compelling production of all computers in the teacher's household for purpose of discovery. The Fourth District held the order was erroneous because: (a) the computers might contain privileged or private information; (b) there was no evidence of destruction of evidence or thwarting of discovery; (c) the school board did not request an alternate method of discovery or prove there was no less intrusive way to obtain information, and (d) order did not permit the teacher to assert privilege or privacy rights of himself or others in the household prior to disclosure. Id. at 12. The Fourth District explained that “[w]here a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case. In fact, in the few cases we have found across the country permitting access to another party's computer, all have been in situations where evidence of intentional deletion of data was present.” Id. In Holland, the defendant in a wrongful death suit sought a writ of certiorari quashing the trial court's order compelling her to produce all computer hard drives and all cell phone SIM cards in her possession to the representative for the decedent’s estate. Id. at 954. In explaining its decision to quash the trial court’s order compelling production of the computer hard drives and cell phone SIM cards, the Second District explained it would quash the order compelling production of the hard drives and SIM card because there was no evidence of any destruction of evidence or thwarting of discovery, and the record demonstrated that less intrusive means were possible. Id. at 955-6.In simple terms, in order to compel an inspection of the Defendant’s computers, the Plaintiffs must prove evidence of destruction of evidence or thwarting of discovery, and likelihood the information exists on the devices, and that no less intrusive means exists of obtaining the information. Every element of the three-prong test must be satisfied. However, Plaintiff has not proven any of these elements are present in the instant case. In point of fact, the Plaintiff has not even alleged the necessary elements to satisfy the three-prong test. Instead, she asserts only in conclusory terms as follows: Given the inconsistencies in both the testimony and the photographic evidence regarding the signs, and Defendant’s corporate representative’s evasiveness during deposition, Plaintiffs have formed a reasonable belief that the sign appearing on the door to the subject room was actually created and emplaced after Plaintiffs fall, and that no other similar signs were ever created on Defendant’s computer system prior to Plaintiff's fall. Motion to Compel, §21. However, the Plaintiff has cited no appellate decisions which stand for the proposition that a disagreement between a plaintiff and defendant about the ultimate facts giving rise to a suit, without more, is sufficient to compel an inspection of the defendant’s computer system(s). Defendant would suggest to this Honorable Court that no such case law exists in Florida. CONCLUSION The Plaintiffs failed to properly specify the areas of testimony for the corporate representative of the Defendant, and now seek to capitalize on the corporate representative’s inability to provide substantive testimony regarding topics which were not specified in the notices of deposition. Further, the Plaintiffs have moved this Honorable Court for an order compelling the examination of the Defendant’s computers, but failed to prove the material facts necessary to establish the need for an examination. The Plaintiff's Motion to Compel is without merit. 4 TA] search might be approved after the requesting party proved (1) evidence of any destruction of evidence or thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists of obtaining the information.” Holland at 955 (citing Menke at 12) (emphasis supplied).WHEREFORE, the 13"! STREET HOMES SALES, LLC, requests this Honorable Court deny Plaintiffs’ Motion to Compel Inspection and Examination of Defendant’s Computer Systems for the reasons set forth herein, and for further relief as the Court deems in the interests of justice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served through the Florida Courts E-filing Portal to: Rebecca H. Cozart, Esq., Ronald E. Sholes, P.A., 8761 Perimeter Park Blvd., Suite 104, Jacksonville, Florida 32216 at ronsholespa-team4- eservice@youhurtwefight.com; team20-premises-eservice@youhurtwefight.com, this 27th day of January 2020. s/ Carla M. Sabbagh Michael S. Rywant, Esquire Florida Bar No.: 240354 Primary email:msrywant@rywantalvarez.com Secondary: — service@rywantalvarez.com nginn@rywantalvarez.com Carla M. Sabbagh, Esquire Florida Bar No.: 72727 Primary email:csabbagh@rywantalvarez.com Secondary: — creneke@rywantalvarez.com Rywant, Alvarez, Jones, Russo & Guyton, P.A. 2440 S.W. 76" Street Ste. 130 Gainesville, FL 32608 (Tel) 352-333-3700 / (Fax) 352-333-3706 Attorneys for Defendant, 13" Street Home Sales, LLCEXHIBIT AFiling # 93629442 E-Filed 08/05/2019 09:12:20 AM IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY FLORIDA CASENO: = 2018-CA-004032 DIVISION: — Circuit Civil GALE ARLEDGE and TERRANCE ARLEDGE, her husband, Plaintiffs, v. 13TH STREET HOMES SALES, LLC, Defendant. / PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM COMES NOW Plaintiffs, GALE ARLEDGE and TERRENCE ARLEDGE, by and through the undersigned counsel, and pursuant to Fla. R. Civ. P, 1.310(b)(6), gives notice that on a date, time and location, agreed upon by the parties, but prior to the close of discovery, the undersigned counsel will take the deposition of the corporate representative; and that Defendant, 13TH STREET HOMES SALES, LLC, is required to designate and fully prepare one or more officers, directors, managing partners, agents, or other person(s) who consent to testifying on behalf of Defendant and whom Defendant will fully prepare to testify regarding the following designated matters and as to such information that is known or reasonably available to Defendant’s organization regarding Defendant’s written policies on safety to patrons, including employee handbooks and standard operating procedures; evidence of | safety inspections, including logs, checklists, or safety sweeps of the subject restroom, and its surrounding flooring; the reporting of patron injuries; training materials, policies and procedures for the maintenance, inspection, and repair of the subject restroom, and itssurrounding flooring; preservation of CCTV or other types of surveillance video footage; any contracts, subcontracts, invoices, repair logs, or other documentation evidencing any work performed on the subject restroom and its surrounding flooring. The deposition will be conducted before Riley Reporting, a Notary Public, or before some other officer authorized by law to contemporaneously transcribe depositions. Said deposition will continue from day to day until completed. The deposition will be used for the purposes of discovery, at trial, or any other use permitted by the Florida Rules of Civil Procedure. The Deponent is further commanded to bring with them, at the time and place listed above, the requested materials outlined in Exhibit “A”, a copy of which is attached herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 5th day of August, 2019 this document was filed using the Florida Courts E-Filing Portal, This document is being served on all counsel of record by the Florida Courts E-Filing Portal, pursuant to and in compliance with Fla. R. Jud. Admin. 2.516. The address for Defendant’s counsel is: Carla Sabbagh, Esq., Rywant, Alvarez, Jones, Russo & Guyton, P.A., 2440 S.W. 76TH Street, Suite 130, Gainesville, FL 32608; Michael S$. Rywant, Esq., Rywant, Alvarez, Jones, Russo & Guyton, P.A., 2440 S.W. 76th Street, Suite 130, Gainesville, FL 32608. This Notice was emailed to: Carla Sabbagh at creneke@rywantalvarez.com and dbulatewicz@rywantalvarez.com, and to Michael S. Rywant at service@rywantalvarez.com. s/ Jason A. Gieger SCOTT BURLEIGH (FL Bar No. 0055486) REBECCA H. COZART (FL Bar No. 0487570) JASON A. GIEGER (FL Bar No. 176575) RONALD E, SHOLES, P.A. 8761 Perimeter Park, Suite 104 Jacksonville, Florida 32216 Ph: (904) 661-3730 Fax: (904) 683-9282 Primary Email: RonSholesPA-Team4-Eservice@Y ouHurtWeFight.com Attorneys for PlaintiffsExhibit “A” The following is a list of subjects that the corporate representative brought forth by Defendant is: (1) expected to have knowledge and familiarity of; and (2) expected to bring copies of to the deposition. IMPORTANT: Some of the requested items below may not be specific to 137! STREET HOME SALES, INC. As such, we are asking that both the subsidiary and parent company versions of the requested items be proffered by Defendant, in addition to any of those that are also within the Defendants possession, custody and control. The "subject incident" refers to the incident occurring on September 20, 2017, as described in Plaintiff's complaint. The "subject area" refers to the flooring in the restroom where the subject incident occurred, as described in Plaintiff's complaint. 1, Copies of any and all written policies, including but not limited to any employee handbooks and standard operating procedures, relating to the safety of patrons visiting the building where the subject incident took place. (Scope: in effect at the time of the incident) 2. Copies of any and all safety performance goals in effect at the time of the subject incident. 3. Copies of any safety inspections, including but not limited to logs, checklists, or other evidence of safety sweeps, which would include the subject area where the incident occurred, for the five (5) years prior to subject incident until the present. 4. Copies of any and all training materials, policies, and procedures related to the inspection, maintenance, and repairs of the subject area. 5. Copies of any manuals/procedures/best practices related to creating an incident report when an event like the subject incident occurs in the subject area. (Scope: those manuals/procedures/best practices in effect at the time of the subject incident) 6. Copies of any manuals/procedures/best practices related to preserving CCTV or other types of surveillance video footage following the occurrence of an incident like the subject incident in the subject area. 7. Copies of any and all reports, documents, memoranda or notes related to the subject incident.8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs, or other documentation evidencing any work performed of the subject area for the five (5) years prior to subject incident until the present. 9, Any and all contracts or agreements between the Defendant and third party relating to the inspection, construction, maintenance, and repair of subject area, in effect for the five (5) years prior to the subject incident until the present. 10. Copies of the building plans regarding the original construction of the subject restroom, and its surrounding flooring.EXHIBIT B_ Filing # 97298910 E-Filed 10/15/2019 01:41:19 PM IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY FLORIDA GALE ARLEDGE and TERRANCE ARLEDGE, her husband, CASENO: = 2018-CA-004032 DIVISION: _ Circuit Civil Plaintiffs, v. 13TH STREET HOMES SALES, LLC, Defendant. PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM COMES NOW Plaintiffs, GALE ARLEDGE and TERRANCE ARLEDGE, her husband, by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.310(6)(6), on behalf of Plaintiffs herein, the undersigned hereby gives notice that beginning at 10:00 a.m. on November 19, 2019 at Advantage Court Reporters, 305 NE Ast Street, Gainesville, FL 32601, the undersigned counsel will take the deposition of the corporate representative; and that Defendant 13TH STREET HOMES SALES, LLC is required to designate and fully prepare one or more officers, directors, managing partners, agents, or other person(s) who consent to testifying on behalf of Defendant and whom Defendant will fully prepare to testify regarding the following designated matters and as to such information that is known or reasonably available to Defendant’s organization regarding Defendant’s standard operating procedures for the safety of patrons; the reporting of patron injuries; standard operating procedures for safety/liability/prevention sweeps; incentive based programs related to accident/incident prevention; the training of employees regarding safety andreporting of patron injuries; standard operating procedures for training, education, and experience of employees and the supervisory roles of their managers; policies regarding hiring of any outside employee training services used by Defendant; and standard operating procedures for risk assessment. The deposition will be conducted before Advantage Court Reporters, a Notary Public, or before some other officer authorized by law to contemporaneously transcribe depositions at Advantage Court Reporters, 305 NE 1st Street, Gainesville, FL 32601. Said deposition will continue from day to day until completed. The deposition will be used for the purposes of discovery, at trial, or any other use permitted by Florida Rules of Civil Procedure. The Deponent is further commanded to bring with them, at the time or place listed above, the requested materials noted in Exhibit “A”, attached. CERTIFICATE OF SERVICE J HEREBY CERTIFY that on the 15th day of October, 2019, this document was filed using the Florida Courts E-Filing Portal. This document is being served on all counsel of record by the Florida Courts E-Filing Portal, pursuant to and in compliance with Fla. R. Jud. Admin. 2.516. Opposing counsel is: Michael S. Rywant, Esq. and Carla M. Sabbagh, Esq., Rywant, Alvarez, Jones, Russo, & Guyton, P.A., Gainesville, FL 32608. /s/ Rebecca H. Cozart REBECCA H. COZART (FL Bar No. 0487570) RONALD E. SHOLES, P.A. 8761 Perimeter Park Blvd., Suite 104 Jacksonville, Florida 32216 Ph: (904) 661-3730 Fax: (904) 683-9282 RonSholesPA-Team4- Eservice@YouHurtWeFight.com Attorney for PlaintiffExhibit “A”The following is a list of subjects that the corporate representative brought forth by Defendant is: (1) expected to have knowledge of; and (2) expected to bring copies of to the deposition: 1, Copies of any and all written policies, including but not limited to any employee handbooks and standard operating procedures, relating to the safety of patrons visiting the building where the subject incident took place. (Scope: in effect at the time of the incident) 2. Copies of any and all safety performance goals in effect at the time of the subject incident. 3. Copies of any safety inspections, including but not limited to logs, checklists, or other evidence of safety sweeps, which would include the subject area where the incident occurred, for the five (5) years prior to subject incident until the present. 4, Copies of any and all training materials, policies, and procedures related to the inspection, maintenance, and repairs of the subject area. 5. Copies of any manuals/procedures/best practices related to creating an incident report when an event like the subject incident occurs in the subject area. (Scope: those manuals/procedures/best practices in effect at the time of the subject incident). 6. Copies of any manuals/procedures/best practices related to preserving CCTV or other types of surveillance video footage following the occurrence of an incident like the subject incident in the subject area. 7. Copies of any and all reports, documents, memoranda or notes related to the subject incident. 8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs, or other documentation evidencing any work performed of the subject area for the five (5) years prior to subject incident until the present. 9. Any and all contracts or agreements between the Defendant and third party relating to the inspection, construction, maintenance, and repair of subject area, in effect for the five (5) years prior to the subject incident until the present. 10. Copies of the building plans regarding the original construction of the subject restroom, and its surrounding flooring.EXHIBIT CRYWANT, ALVAREZ, JONES, RUSSO & GUYTON, P.A. ATTORNEYS AT Law *Tampa ‘Inverness ¢Gainesville *Orlando Carla M. Sabbagh REPLY 2440 SW. 76 Street Attomey at Law TO: Suite 130 csabbagh@rywantalvarez.com Gainesville, FL 32608 December 26, 2019 Via Electronic Mai es.brunet@youhurtwefight.com James Brunet, Esq. Ronaid E. Sholes, P.A. 8761 Perimeter Park Bivd., Suite 104 Jacksonville, Florida 32216 Re: Arledge, Gale and Terrance v. 13" Street Home Sales, LLC Case No: 01-2018-CA-004032 Dear Mr. Brunet: This follows your most recent correspondence, wherein you requested our client to consent to a forensic examination of its computers. Specifically, you stated that you wished for a forensic computer expert to image the storage devices on our client’s computers to determine when “the sign(s) in question were created,” and mentioned the “signs about which [our] corporate representative testified.” I’ve reviewed the depositions of Erika Ashley, Michael Smart, and Brent Wainwright, the corporate representative. I'll note that Brent Wainwright testified he did not know when the sign in question were created. However, that was outside the scope of designated areas of testimony in your Notice of Taking Deposition Duces Tecum. I have enclosed a copy of same herein. As you can see, there is no mention of signage in the Notice. Neither Erika Ashley nor Michael Smart were asked when the sign was created. In short, there was no substantive information solicited from Erika Ashley or Michael Smart regarding the creation of the sign and there was no request for the corporate designee to prepare to testify regarding the sign. In light of the foregoing, I do not believe a forensic examination j is required or even appropriate. There are less intrusive methods for the Plaintiffs to obtain the information the Plaintiffs seek, including, but not limited to, written interrogatories. As always, you are welcome to reach out should you have any questions or concerns regarding the foregoing. Sincerely, Pi GGL : Carla M. Sabbagh i CMS/ Enc: Plaintiffs’ Notice of Taking Deposition Duces Tecum dated 10-15-19 Natoya F. Abei / Lindsay M, Alvarez / Manuel J, Alvarez / Jordan L. Behiman / Norman $. Cannella, Sr. / David D. Cuellar Amanda R, Dunn / John A. Guyton, II] / Matthew M, Holtsinger / Melissa A. Isabel / Gregory D. Jones / Anthony J. Livingston Tan J. MacAlister / Amanda J. McDermott / Kerry C. McGuinn, Jr. / Andrew F. Russo / Michael S. Rywant / Carle M. Sabbagh GAINESVILLE 2440 S.W. 76" Sireet, Suite 130, Gainesville, FL. 32608 Tel: (352)333-3700 Fax: (352)333-3706 Toil Free Statewide: (888) 378-4401 www rywantalvarez.comFiling # 97298910 E-Filed 10/15/2019 01:41:19 PM IN THE CIRCUIT COURT OF THE EIGHT JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY FLORIDA GALE ARLEDGE and TERRANCE ARLEDGE, her husband, CASENO: 2018-CA-004032 DIVISION: _ Circuit Civil Plaintiffs, v. 13TH STREET HOMES SALES, LLC, Defendant. PLAINTIFFS’ NOTICE OF TAKING DEPOSITION DUCES TECUM COMES NOW Plaintiffs, GALE ARLEDGE and TERRANCE ARLEDGE, her husband, by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.310(6)(6), on behalf of Plaintiffs herein, the undersigned hereby gives notice that beginning at 16:00 a.m. on November 19, 2019 at Advantage Court Reporters, 305 NE Ist Street, Gainesville, FL 32601, the undersigned counsel will take the deposition of the corporate representative; and that Defendant 13TH STREET HOMES SALES, LLC is required to designate and fully prepare one or more officers, directors, managing partners, agents, or other person(s) whe consent to testifying on behalf of Defendant and whom Defendant will fully prepare to testify regarding the following designated matters and as to such information that is known or reasonably available to Defendant’s organization regarding Defendant’s standard operating procedures for the safety of patrons; the reporting of patron injuries; standard operating procedures for safety/iability/prevention sweeps; incentive based programs related to accidentincident prevention; the training of employees regarding safety and i i ireporting of patron injuries; standard operating procedures for training, education, and experience of employees and the supervisory roles of their managers; policies regarding hiring of any outside employee training services used by Defendant; and standard operating procedures for risk assessment. The deposition will be conducted before Advantage Court Reporters, a Notary Public, or before some other officer authorized by law to contemporaneously transcribe depositions at Advantage Court Reporters, 305 NE Ist Street, Gainesville, FL 32601. Said deposition will continue from day to day until completed. The deposition will be used for the purposes of discovery, at trial, or any other use permitted by Florida Rules of Civil Procedure. The Deponent is further commanded to bring with them, at the time or place listed above, the requested materials noted in Exhibit “A”, attached. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 15th day of October, 2019, this document was filed using the Florida Courts E-Filing Portal. This document is being served on all counse] of record by the Florida Courts E-Filing Portal, pursuant to and in compliance with Fla. R. Jud. Admin. 2.516. Opposing counsel is: Michael S. Rywant, Esq. and Carla M. Sabbagh, Esq., Rywant, Alvarez, Jones, Russo, & Guyton, P.A., Gainesville, FL 32608. /s/ Rebecca H. Cozart REBECCA H. COZART (EL Bar No. 0487570) RONALD E. SHOLES, P.A. 8761 Perimeter Park Blvd., Suite 104 Jacksonville, Florida 32216 Ph: (904) 661-3730 Fax: (904) 683-9282 RonSholesPA-Team4- Eservice@YouHurtWeFight.com Attorney for PlaintiffExhibit “A”The following is a list of subjects that the corporate representative brought forth by Defendant is: (1) expected to have knowledge of; and (2) expected to bring copies of to the deposition: 1. Copies of any and all written policies, including but not limited to any employee handbooks and standard operating procedures, relating to the safety of patrons visiting the building where the subject incident took place. (Scope: in effect at the time of the incident) 2. Copies of any and all safety performance goals in effect at the time of the subject incident. 3. Copies of any safety inspections, including but not limited to logs, checklists, or other evidence of safety sweeps, which would include the subject area where the incident occurred, for the five (5) years prior to subject incident until the present. 4. Copies of any and al! training materials, policies, and procedures related to the inspection, maintenance, and repairs of the subject area. 5. Copies of any manuals/procedures/best practices related to creating an incident report when an event like the subject incident occurs in the subject area. (Scope: those manuals/procedures/best practices in effect at the time of the subject incident). 6. Copies of any manuals/procedures/best practices related to preserving CCTV or other types of surveillance video footage following the occurrence of an incident like the subject incident in the subject area. 7. Copies of any and all reports, documents, memoranda or notes related to the subject incident. 8. Copies of any and all contracts, subcontracts, invoices, work orders, repair logs, or other documentation evidencing any work performed of the subject area for the five (5) years prior to subject incident until the present. 9. Any and all contracts or agreements between the Defendant and third party relating to the inspection, construction, maintenance, and repair of subject area, in effect for the five (5) years prior to the subject incident until the present. 10. Copies of the building plans regarding the original construction of the subject restroom, and its surrounding flooring. :