EFTA00177847.pdf

II. ARGUMENT The work product doctrine is "an intensely practical one, grounded in the realities of litigation in our adversary system." United States'. Nobles 422 U.S. 225, 238 (1975).. Relying on Sporck Peil, 759 F.2d 312 (3d Cir. 1985), and its progeny, Plaintiff contends that the compilation of non-privileged documents by attorneys is "opinion work product," and seemingly asserts that the documents themselves, and not just the compilation, can be kept from the defense. These sweeping claims, belied as they are by the record in this case, should be rejected. A. The Supposedly Unassailable Sporck Plaintiff's Memorandum makes it appear as though the principle announced in Sporck has been accepted as gospel throughout the federal court system. Nothing could be further from the truth. Not only was Sporck a 2-1 decision with a strong dissent, later cases and commentators have criticized its expansion of the work product doctrine. In Sporck, a civil securities fraud case, the attorney for the plaintiff deposed a defendant and requested the "identification and production" of documents that the defendant's attorney had used to prepare the defendant for the deposition. 759 F.2d at 313-14. The documents in question, which were not themselves protected from disclosure, had "previously been produced" to the plaintiff. Ad. at 314-15. The defendant's attorney refused to comply with the request, and sought mandamus relief on work product grounds when the district court ordered disclosure and production. A divided panel of the Third Circuit granted the petition, holding that the district court EFTA00177847 "should not have ordered the identification of the documents selected by [defense] counsel." Id.: at 315 (emphasis added). See also id. (agreeing with the defendant that "the identification of the documents as a group must be prevented to protect defense counsel's work product") (emphasis added). The majority ruled that the "selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product," explaining that without such work product protection an attorney might "forego[ ] a sifting of the documents." Id, at 316, 317. Judge Seitz dissented. He was "convinced that [the majority's] ruling [was] an impermissible expansion of the work product doctrine at the expense of legitimate discovery." II at 319. He pointed out that the documents in question were not themselves covered by the doctrine and "had already been produced by the defendants." a Attacking the majority's belief that the litigation strategy of the defendant's attorney would be revealed by identification of the documents used to prepare for the deposition, Judge Seitz explained: The problem with [this] theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that a witness looked at a document is that someone thought that the document, or some portion of the EFTA00177848  document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the lawyer's opinion work product. Id. at 319. See also id, at 320 ("Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it."). Finally, Judge Seitz criticized the majority's characterization of the compilation as opinion work product, saying that at most it would be fact work product. Sporck has not, contrary to Plaintiffs implication, been universally accepted.' In In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994), a case presenting facts very similar to those here, a district court in New York refused to follow Sporck. The government in that case executed a search warrant at a law firm's offices to obtain evidence concerning one of the firm's corporate clients and its two principals. The materials taken during the search were provided to a taint prosecutor who was not involved in the underlying grand jury investigation. Isis at 56-57. The firm and its client filed a motion for return of the documents on work product and attorney-client privilege grounds. In support of the motion, one of the firm's attorney's submitted an affidavit (which the district court accepted as true) explaining that 14 of the cartons taken had been "'segregated by [him] as part of a confidential, attorney-directed investigation into Even one of the appellate decisions adopting Sporck involved a divided panel. See In re Allen, 106 F.3d 582 (4th Cir. 1997) (2-1 decision). EFTA00177849 possible illegal activity within and against [the corporate client]." a at 57. The investigation was begun "in preparation for litigation, including possible civil claims against . . . former employees and contractors of the corporate client, as well as defending against governmental claims and any federal criminal investigation of the corporate client." a The district court refined to extend the work product doctrine to the compilation of non-privileged materials: This court declines to extend the concept of work product so far as to protect otherwise non-privileged corporate documents, simply because the lawyer has separated and arranged them in a manner convenient to his intended study for one or more legal problems and which reflects his analysis and thoughts concerning the matter which he was investigating. The argument on its face is slightly frivolous because it assumes that this lawyer investigating these documents could detect or perceive something in them or perceived the need to examine them, which was not readily apparent to a skilled special agent. Id, at 58. Moreover, the court explained, "the policy consequences of permitting a client to insulate incriminating corporate documents which otherwise would have to be produced, by handing them over to an attorney who arranges them in some logical or illogical fashion, is simply too drastic to accept." a The court therefore ordered that documents which were not themselves privileged or protected be "turned over to the [prosecutor] in charge of the prosecution of the matter." a Under the holding of Law Offices, the Court in this case should order that the documents in question be turned over to the defense. Like all other privileges against forced disclosure, the work product doctrine should not be "expansively construed" because it is in "derogation of the search for truth." United StatesI, Nixon, 418 U.S. EFTA00177850 683, 710 (1974). Law Offices is not the only case to cast doubt on Sporck. See generally P. Grady, Discovery of Computer System Stored Documents and Computer Based Litigation Support Systems: Why Give Up More Than Necessary, 14 John Marshall J. of Comp. & Inf. Law 523, 551 (1996) (noting that "other courts have not accepted the Third Circuit's position" in Sporck). Even those courts which have found some basis for agreement with Sporck have rejected its broad expansion of the work product doctrine. For example, the First Circuit, in a complex case involving a hotel fire, permitted the pretrial disclosure of lists identifying exhibits to be used in depositions. In re San Juan Dupont Plaza Hotel Fire Litigation 859 F.2d 1007, 1017 (1st Cir. 1988). Although the panel held that the lists constituted fact work product, it criticized Sporck and refused to characterize the lists as opinion work product: "Th[e] [Sporck] reasoning, we suggest, is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event." Id. at 1018? Thus, at most, the compilation of documents by Plaintiff's counsel is fact work product which can be obtained by showing substantial need and undue hardship. Ida at 1015. 2 Several district courts have opted to follow Dupont Plaza instead of Sporck. Sec, Igs, astano I. American Tobacco Co, 896 F.Supp. 590, 596 (E.D. La. 1995); Resolution Trust Corp. I.Heiserman, 151 F.R.D. 367,375 (D. Colo. 1993); Bohannon'. Honda Motor Co„ 127 F.R.D. 536, 539 (D. Kan. 1989); In re Shell Oil Refinery, 125 F.R.D. 132, 133-34 (E.D. La. 1989). EFTA00177851  Similarly, in Gould Inc,. Mitsui Mining & Smelting Co„ 825 F.2d 676, 680 (2d Cir. 1987), the Second Circuit declined to embrace Sporck, explaining that the application of the Sporck principle "depends on the existence of a real rather than speculative concern that the thought processes of . . . counsel in relation to pending or anticipated litigation would be exposed." In this case, given the number of documents involved, it is difficult to see how there can be a "real" danger that the thought processes of Plaintiffs attorneys will be revealed. See also In re Joint Eastern & Southern District Asbestos Litigation, 119 F.R.D. 4, 5-6 (E.D.N.Y. & S.D.N.Y. 1988) (book of photographs, compiled by plaintiff's attorney, showing various forms of asbestos to which plaintiff had been exposed, was discoverable as a fact compilation because it did not reveal attorney's strategy); American Floral Services, Inc.'. Florists' Transworld Delivery Ass'n, 107 F.R.D. 258, 260-61 (N.D. III. 1985) (plaintiff required to reveal identity of two of defendant's employees whom it had interviewed and who apparently had knowledge concerning plaintiff's claim). a. In re Grand July Subpoenas, 959 F.2d 1158, 1167 (2d Cir. 1992) ("With the advent of inexpensive photocopying, it seems likely that most sets of copied documents maintained by law firms will be sufficiently voluminous to minimize disclosure of the attorney's identification of some occasional wheat among the chaff."); In re Shell Oil, 125 F.R.D. at 134 ("it is highly unlikely that Shell will be able to discern the PLC's `theory of the case' or thought processes simply by knowing which 65,000 out of 660,000 documents have been selected for copying"). Criticism of Sporck has not been limited to the judiciary. Commentators have also EFTA00177852 expressed their disagreement with the case. agg K. Waits, Opinion Work Product: A Critical Analysis of Current Law and a New Analytical Framework, 73 Oregon L. Rev. 385, 450 (1994) ("Sporck is wrongly decided[.] Contrary to the assertions in Sporck, . . . the adversary system is not threatened by the revelation of materials that only indirectly reveal an attorney's thinking."); L. Orland, Observations on the Work Product Rule, 29 Gonzaga L. Rev. 281, 298 (1993-94) ("No opinion has been found that explains why the [Sporck] selection and compilation exception . . . should be carved out for preferential treatment."). For the reasons set forth in Judge Seitz's dissent and the decision in Law Offices, this Court should reject Sporck as an unwarranted expansion of the work product doctrine. After all, "pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice." Fisher,. United States, 425 U.S. 391, 403-04 (1976) (addressing attorney-client privilege). Accord Shelton American Motors Corp, 805 F.2d 1323, 1328 (8th Cir. 1986) ("AMC does not contend that the documents themselves, prepared by other departments for the purpose of analyzing AMC vehicles, are protected as work product simply because those documents now may be in the possession of AMC's litigation department."). B. The Limitations on $porck Sporck does not, in any event, go as far as Plaintiff needs it to in order to shield the EFTA00177853 documents at issue from the taint team. Although Plaintiff says that Sumli controls, it fails to acknowledge significant factual differences between this matter and Sporck. First, in Spsicic, unlike here, the party seeking the list of certain documents already had the documents themselves in its possession because they had previously been produced. 759 F.2d at 314, 319. Indeed, the sine qua non of Sporck and its progeny is the protection of the list or index of the selected documents because the documents themselves are already in the hands of the opposition or can be obtained by normal legal channels. See Waits, Opinion Work Product, 73 Oregon L. Rev. at 450 n. 229 ("by definition in document selection cases like Sporck the opponent already possesses the documents").3 When the Court reviews the documents in camera, it will see that they include original documents which must be turned over to the government. ,Se Law Offices, 153 F.R.D. at 59 (lawyer cannot secure work product protection by highlighting an original corporate document that is not otherwise privileged). Thus, at least with respect to those original documents, the defendant does not have possession of them. The necessary predicate does not exist, and Sporck is not triggered. See Gould, 825 F.2d at 680 ("the equities may not favor the application of the Sporck exception if the files from which the documents had been culled . . . were not otherwise available . . . or were beyond 3 Plaintiffs own cases recognize that the compiled documents must be in the possession of, or available to, the opposing party. age, a, In re Allen, 106 F.3d at 608 (adoption of Sporck "does nat protect [the] personnel records from disclosure, just [the attorney's] selection and arrangement of them"); James Julian. Inc. I. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) ("Julian does not object to the defendants obtaining the documents contained in the binder[.]"). EFTA00177854 reasonable access"). And, as noted above, the compilation of documents is at most fact work product which can be obtained upon a showing of substantial need and undue hardship. The defendant can and will make that showing at the evidentiary hearing if and when Plaintiff meets its initial work product burden. C. Plaintiff's Burden and the Need for an Evidentiary Hearing Plaintiff, as the party asserting the protection of the work product doctrine, has the burden of establishing its elements. Sgg, g4, Hodges. Grant & Kaufmann I. U.S. Government. Dept. of the Treasury, 768 F.2d 719, 721 (5th Cir. 1985). Plaintiff has provided a general privilege log and an affidavit, but those submissions, under the circumstances, are insufficient to establish the applicability of the work product doctrine. The log describes only broad categories of documents, and the supporting affidavit completely fails to explain which attorneys compiled which documents. For reasons explained below, those particular facts are critical to the work product analysis in this case. Without those facts, the defendant cannot intelligently determine which of Plaintiff's claims have merit. "'Without identification of the documents, the party against whom the privilege is claimed is completely unable to challenge the validity of th[e] claim." Smith Logansport Community School Corp., 139 F.R.D. 637, 648 (N.D. Ind. 1991) (citation omitted). Plaintiff simply has not carried its burden of establishing its entitlement to work product protection. a. Rabushka I. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) ("Crane met its burden of providing a factual basis for asserting the [attorney-client and work product] privileges when it produced a detailed privilege log EFTA00177855 stating the basis of the claim privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel.") (emphasis added). The Court "must require [Plaintiff] to assert [work product] with a document-by- document explanation as to why the [doctrine] shields the document from the [warrant's] reach. The [Court] must then determine the validity of each assertion -- either by conducting a hearing or inspecting the documents in camera." In re Grand Jury Subpoena, 831 F.2d 225, 228 (11th Cir. 1987) (attorney-client privilege case). Whatever process the Court chooses, it must permit the defendant to participate and meaningfully litigate the applicability of the work product doctrine. In this vein, we point out that, even if Sporck is followed, Plaintiff's work product theory flounders with respect to at least certain of the categories of documents set forth in the privilege log. Contrary to Plaintiff's suggestion, even the most generous interpretations of the work product doctrine do not protect the selection of materials by a client; the doctrine protects attorney work product. age, Bloss I. Ford Motor Co. 126 A.D.2d 804, 805, 510 N.Y.S.2d 304 (N.Y.App.Div. 1987) (documents which could have been prepared by a layman not entitled to work product protection). In any event, Plaintiff has no standing to assert any work product protection on behalf of an unidentified third party or his/her unidentified counsel. See, e.g., Bohannon 127 F.R.D. at 53940 ("work product status does not apply to documents submitted to or received from a third party"). The fact that computer printouts -- routine printouts available from the Plaintiff's EFTA00177856  D. Plaintiff's Failure to Establish Confidentiality and Lack of Waiver "[W]hen an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of his client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection." In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981). Under the circumstances, any claim of privilege or work product cannot be accepted without further evidentiary substantiation. See United States'. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996) (where the allegations against one party could not subject another to civil or criminal liability, joint defense privilege is inapplicable), cert. denied, 117 S. Ct. 1842 (1997); Sheet Metal Workers International Association'. Sweeney, 29 F.3d 120, 124-25 (4th Cir. 1994) (any privilege arising from engaging in joint defense requires, as a threshold matter, a legitimate common interest about a legal matter); km Bevil!. Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) (proponent bears burden of producing evidence establishing privilege). If Plaintiff is going to use the purported joint defense agreement as a weapon in its arsenal, it must be produced to the defendant so that its breadth and applicability can be fairly litigated. EFTA00177857 database that are routinely produced in the course of operating Plaintiff's business -- were made available to and used by attorneys does not protect them from disclosure or turn them into work product. See Santiago i Miles, 121 F.R.D. 636, 642 (W.D.N.Y. 1988) (no work product protection where, although computer reports may have been prepared with pending litigation in mind, the primary motivation behind the creation of such reports was for use in the normal course of business); Colorado ex rel. Woodard Schmidt-Tiago Construction Co„ 108 F.R.D. 731, 734-35 (D. Cob. 1985) (absent additional evidence, no work product protection for readouts from computer program established for use in regular course of business); Fauteck Montgomery Ward & Co., 91 F.R.D. 393, 398-99 (N.D. Ill. 1980) (ordering disclosure of personnel records from computer database where counsel merely raised conclusory claim that the database formulation "entail[ed] numerous strategic legal decisions"). Plaintiff must of course meet its burden with respect to each of the categories of documents it claims are work product. Yet several of the categories it claims are work product have been denied such status. This is the case with training and attendance sheets, see. e.g., Burton I R.J. Reynolds Tobacco Co„ 170 F.R.D. 481, 486 (D.Kan. 1997) (document evidencing attendance of two company employees at meeting not work product under Kansas law), and with Congressional subcommittee testimony, see. e.g„ LaMorte I. Mansfield, 438 F.2d 448, 451-52 (2d Cir. 1971) (any privilege which may exist for testimony given at non-public SEC hearing belongs to SEC, and argument that transcripts were work product was meritless). EFTA00177858  EL—AD RESIDENCES AT MIRAMAR CONDO. i MT. HAWLEY 1257 Clina 716 PSupp.2d 1257 (S.D.Fla. 2010) seeks declaratory relief pursuant to (2) ancillary proceeding to sanction former state or federal law. co-counsel was not warranted. 8. The Clerk is directed to send a copy Motions granted in part and denied in of this Amended Order to the Clerk Part of the Judicial Panel on Multidistrict Litigation. 1. Federal Civil Procedure 4=331 9. The Final Judgment previously is- Condominium association's former at- sued in the Aurelius Action, see Case torneys had right to intervene in associa- No.: 10-CV-20236, [DE 531 (S.D. tion's present action against insurers, Fla. May 28, 2010), is hereby VA- stemming from coverage dispute over CATED. hurricane damage, for limited purpose of protecting privileged communications; dis- closure of attorneys' privileged communi- cations with former co-counsel would have harmed attorneys in ongoing litigation. Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.App.(2006 Ed.). 2. Federal Courts a=21 EL-AD RESIDENCES AT MIRAMAR Ancillary proceeding to sanction for- CONDOMINIUM ASSOCIATION, mer attorneys' former co-counsel was not INC., a Florida not-for-profit corpora- warranted in action brought by condomini- tion, Plaintiff, um association against insurers, stemming from coverage dispute over hurricane dam- MT. HAWLEY INSURANCE COMPA- age, since court already had all necessary NY, a foreign corporation, and West- claims before it to resolve sanctioning is- chester Surplus Lines Insurance sue, and had ability to manage its proceed- Company, a foreign corporation, De- ings, vindicate its authority, and effectuate fendants. its decrees without extending its jurisdic- tion. Case No. 09-60723-CIV. United States District Court, S.D. Florida. Keith Jeffrey Lambdin, Katzman Gar- June 2, 2010. finkel Rosenbaum, John David Mallah, Background: Condominium association Maitland, FL, for Plaintiff. brought action against insurers, stemming from coverage dispute over hurricane dam- Bradley Ryan Weiss, Benson Mucci & age. Association's former attorneys moved Associates LLP, Thomas E. Tookey, Coral Springs, FL, Brian E. Sims, Michael D. to intervene and for ancillary proceeding. Prough, William C. Morison, Morison Hol- Holdings: The District Court, Chris McA- den Derewetzky & Prough LLP, Walnut liley, United States Magistrate Judge, held Creek, CA, Cortland C. Putbrese, Morison that: Holden Derewetzky & Prough, LLP, Rich- (1) intervention as of right was warranted, mond, VA, Daniel Howard Coultoff, La- and tham, Shuker, Barker, Eden & Beaudine, EFTA00177859 1258 716 FEDERAL SUPPLEMENT, 2d SERIES LLP, Orlando, FL, Scott Michael Janow- Condominium Association ("Enclave"), also itz, William S. Berk, Melissa M. Sims, retained KGR to bring suit against Mt. Berk Merchant & Sims PLC, Coral Ga- Hawley and a different excess insurer, bles, FL, for Defendants. General Star Indemnity Company.' In March of this year, while this litigation OMNIBUS ORDER was on-going, the law firm of KGR broke up, with some of its attorneys, led by CHRIS McALILEY, United States Daniel S. Rosenbaum, forming the firm Magistrate Judge. Rosenbaum Mollengarden Janssen & Sir- Pending before the Court are the follow- cusa ("RMJS"), and others, principally ing related motions: (1) Request for Judi- Alan Garfinkel and Leigh Katzman, form- cial Inquiry [DE 103]; (2) Motion for Pro- ing Katzman Garfinkel & Berger ("KGB"). tective Order [DE 122]; (3) Motion to The break-up of KGR has been acrimoni- Intervene [DE 126]; (4) Motion to Con- ous and has led to litigation between the vene Ancillary Proceedings [DE 180]; and former law partners. The motions now (6) Motion for Hearing on Motion to Con- before this Court arise, in large measure, vene Ancillary Proceedings [DE 132].' from heated disputes between Rosenbaum The Honorable Adalberto Jordan has re- on the one hand, and Garfinkel and Katz- ferred the motions to me for resolution, man on the other. and for the reasons stated below the Mo- tion to Intervene is granted, and the other Immediately following the breakup of motions are denied. KGR, Rosenbaum's law firm, RMJS, en- tered appearances on behalf of both Resi- I. BACKGROUND dences and Enclave. Thereafter, on April This and a related ease arise from an 8, 2010, RMJS filed a Request for Judicial insurance dispute over damage allegedly Inquiry in this, the Residences case' that caused by Hurricane Wilma to two condo- can be summarized as follows. Before the minium complexes. The Plaintiff in this formation of KGR, Garfinkel had a law case, El—Ad Residences at Miramar Con- firm called the Garfinkel Trial Group dominium Association ("Residences"), re- ("GTG"), which hired a consulting firm, tained the law firm of Katzman Garfinkel Hunter R Contracting LLC ("Hunter R") Rosenbaum LLP ("KGR") to represent it and TSSA Storm Safe Inc. ("TSSA"), to in its claim against its primary property perform insurance estimates. Kenneth casualty insurer, Mt. Hawley Insurance Remain was a member of Hunter R. After Company ("Mt. Hawley") and its excess several years of this consulting relation- insurer, Westchester Surplus Lines Insur- ship, GTG terminated Hunter R and ance Company ("Westchester') (collective- TSSA, which led to litigation between ly, "Defendants"). The other condomini- them over monies owed. These disputes um complex, El—Ad Enclave at Miramar spilled over into a number of ongoing law- I. Defendant, Westchester Surplus Lines In- 2. The "Enclave case" is filed with this Court surance Company, filed a Motion for Ex- as Case No. 09-60726-CIV-30ltDAN/MCALI- tension of Time to Respond to Motion to LEY. Convene Ancillary Proceedings [DE 146]. 3. The motion is fully titled Request for Judi- Because the Court denies the Motion to cial Inquiry Into Perjury, and Potential Subor- Convene Ancillary Proceedings is denied, nation of Perjury and Witness Tampering. Westchester's Motion is moot. IDE 103]. EFTA00177860  EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 1259 CIloas716 F.Supp.2d 1257 (S.D.FIa. 2010) suits filed in state and federal courts, be- for Judicial Inquiry, which he did." tween condominium associations repre- Rosenbaum basically restated what is sum- sented by GTG and or the consultants, and marized above, and was more clear about the various insurers they had sued. Ro- his concern that his former partners may main was deposed in a number of those have paid Romain to change his testimo- lawsuits and testified that Garfinkel, GTG ny.' Rosenbaum also disclosed that he and the consultants had engaged in a had brought his concerns to the U.S. At- scheme to generate falsely high insurance torneys Office. As for the inquiry he claims, that Garfinkel had received kick- wants this Court to undertake, Rosenbaum backs from the consultants, and that Gar- suggested that the Court hold hearings finkel, through others, had an improper and take testimony from everyone in- ownership interest in Hunter R. At a volved: the various attorneys and consul- March 30, 2010 deposition taken in several tants and possibly the Plaintiffs them- cases, including this case and the Enclave selves. He believes that a fraud has been case, Romain recanted these claims of worked upon this and many courts and wrongdoing. RMJS asserts that Romain's that this Court should look beyond the conflicting sworn testimony demonstrates issues in this case and inquire into improp- that Romain has committed perjury, either er conduct in similar cases filed in other at his earlier depositions, or at the March divisions of this Court and in various state 30th deposition, and in its Request RMJS courts. In the end, Rosenbaum would asks this Court to conduct an inquiry into have this Court determine whether Gar- this perjury as well as possible fraud and finkel and Katzman and the consultants unethical conduct by Romain, Garfinkel, engaged in improper conduct before this and possibly others. or other courts, although he was not clear Several days after RMJS filed the Re- what remedies this Court might order. quest for Judicial Inquiry, Residences Having heard from Rosenbaum, I asked again changed counsel: Garfinkel's and the other parties to file written responses Katzman's new firm, KGB, filed a notice of to the Request, and offer their opinions appearance on Residence's behalf, and whether a judicial inquiry is appropriate Rosenbaum's firm, RMJS, withdrew as and necessary. counsel. RMJS continues to represent Enclave, in Case No. 09-60726-CIV-JOR- The Defendants in both the Residences DAN. and Enclave case filed a memorandum in The Motion for Judicial Inquiry was support of this Court convening a broad filed a few days before a discovery confer- judicial inquiry. (DE 121]. In that docu- ence I had scheduled for April 16, 2010. 1 ment Defendants provide considerable de- took the opportunity, at the start of that tail about evidence collected, in a number hearing, to ask Rosenbaum to answer of cases, of an unethical relationship be- some questions I had about his Request tween Garfinkel and Hunter R and Ro- 4. The transcript of that discovery conference have to worry about Ken Roman If this is an has been filed at DE 119. issue because we can pay him off and he will recant his testimony,' and at that point maybe 5. Rosenbaum Included the following informa- there is 18, 20 people In the room and I said, tion he gave the Court. At a time when 'That's outrageous. There would be no way difficulties had arisen between Rosenbaum that you could ever do that or that we could and his partners Garfinkel and Katzman, and ever permit that.'" (DE 119, pp. 14—I5). they were discussing disassociating from one another, Katzman allegedly said: "'You don't EFTA00177861 1260 716 FEDERAL SUPPLEMENT, 2d SERIES main, which Defendants maintain is di- GTG and its former consultants Hunter R rectly relevant to their defense that the and Romain, characterizes Romain's accu- insurance policies have been voided by sations against Garfinkel as false, and Plaintiffs' fraud. Defendants acknowledge claims the defendant insurers have unfair- that there are procedural mechanisms in ly seized upon these allegations to try to place that allow this Court to address defeat the plaintiffs' legitimate claims and these issues in this case as needed, but have engaged in a campaign to smear Gar- nevertheless argue that a broad inquiry finkel's reputation. The Motion calls that cuts across case lines is warranted, Rosenbaum a liar [DE 122, p. 17] and because Garfinkel and others have "creat- makes a series of disparaging accusations ed a fraud upon the judicial process" against him about matters that bear on the throughout this District. [DE 121, p. 12]. personal dispute between the former law Defendants identify twelve witnesses who partners, starting with Rosenbaum's "fi- should testify, and ask the Court to sub- nancial misconduct" when he allegedly di- poena years worth of bank and accounting verted $700,000 from the KGR bank ac- records from Garfinkel and a list of people count into a personal account. Within that associated with him. context, the Motion charges that Rosen- Residences, by that time represented by baum filed the Request for Judicial Inqui- Garfinkel's and ICatzman's new law firm, ry, and spoke in support of that Request at filed a response in opposition to the Re- the April 16th hearing, not for any legiti- quest [DE 127], It argues that it would mate purpose, but only to gain an advan- be improper for this Court to take on an tage in his on-going dispute with Garfinkel investigative role and suggests that a and Katzman over the division of their fees broad judicial inquiry would open "an evi- and clients. dentiary Pandora's box." (DE 127, p. 9]. According to the Motion, Rosenbaum Notably, they assert that "(n)othing has served as counsel not only for Residences, transpired before this Court that would but was also counsel to Garfinkel and was implicate any inherent authority the Court part of a Joint Defense Team ("JDT') might have to punish or order further comprised of an unnamed list of "persons action taken with respect to misconduct it sued and/or affected by" the claims observes." Ltd., p. 7]. It urges that the brought by Hunter R, Remain, and TSSA. issues raised by the Request, and at the [DE 122, p. 7). The Motion charges that in April 16 hearing, can be addressed as the Request for Judicial Inquiry and at the needed in the normal course of this litiga- April 16th hearing, Rosenbaum disclosed tion. privileged information gained as part of Shortly after the April 16 hearing, Resi- those representations, and did so without dences filed a Motion for Protective Order his clients' authorizations. The Motion Enjoining Daniel Rosenbaum from Fur- also accuses Rosenbaum of giving the ther Violating Attorney—Client Privilege to Court this information in a manner ad- Advance His Own Interests. [DE 122]. verse to his former client Residences. While the Motion is filed in the name of Residences, it mostly sets forth a series of Resting on these accusations, the Mo- accusations that are personal to Garfinkel. tion asks this Cunt to use its inherent au- The Motion recounts the disputes between thority to enter a "protective order" that 6. Many of the assertions in that response have filed, and which are summarized elsewhere in been repeated in other pleadings they have this Order. EFTA00177862  EL-AD RESIDENCES AT MIRAMAR CONDO. I. MT. HAWLEY 1261 Chess 716 F.Supp.2d 1257 2010) enjoins Rosenbaum from further disclo- add that Rosenbaum has cross-noticed sures of privileged communications. Re- Garfinkel's deposition in this and another markably, it goes much further and asks case, and predict he will use the deposition this Court to enjoin Rosenbaum from "ap- to "gain leverage in the partnership disso- pearing in any case or taking any action lution and to harass Garfinkel." [DE 126, adverse to Alan Garfinkel or any of his p. 2]. former clients in any case where the alle- A few days later, Garfinkel and Katzman gations of Ken Romain are, directly or in- filed yet another motion: Motion to Con- directly, at issue." [DE 122, pp. 17-18]. vene Sealed Ancillary Proceedings for In- Such broad injunctive relief—on its face— junctive Relief, Sanctions, and Potential is excessive, as it surely would bar Rosen- Attorney Disqualification [DE 130].' They baum from participating in the judicial dis- repeat their accusations about Rosenbaum, solution proceedings with his former part- and again charge that in the Request for ners. Judicial Inquiry, and at the April 16th The Defendant insurance companies hearing, he disclosed privileged informa- to his filed oppositions to the Motion for Protec- tion, and made statements adverse in violation of tive Order. [See DE 129, 133]. In those former client Residences Professionalism 4-1.6, papers the Defendants point out, inter Florida Bar Rule of ask this Court aria, that Rosenbaum is neither a party to 4-1.9(b)-(c), and they again to invoke its inherent power to discipline this lawsuit, nor an attorney of record, that Rosenbaum. What's new is the way in discovery is closed and, in any event, no which Garfinkel and Katzman ask the discovery is pending involving Rosenberg. Court to accomplish this: they would have Although styled a motion for protective this Court convene an ancillary proceeding order, Defendants rightfully point out that entirely under• it is better understood as a motion for that would be conducted seal, the sole focus of which would be injunctive relief against someone who is Rosenbaum' s alleged misconduct, that not a party to this lawsuit Defendants adjudicate whether Rosenbaum vio- also raise a number of good arguments would Bar Rules of Professional that question whether information Rosen- lated the Florida the process they would baum disclosed was in fact protected by Conduct, and in from filing privilege. They also specifically deny that have the Court bar Rosenbaum Motion. In the end, Rosenbaum has given them "any informa- a response to the Court discipline tion pertaining to his representation of Garfinkel would have this Rosenbaum for breach of his ethical obli- [Plaintiffs] or other former or current gations, enjoin him from further miscon- clients." [DE 133, p. 3]. duct, and disqualify defense counsel from Perhaps recognizing the procedural representing their clients in this case, be- flaws inherent in Residences' Motion for cause they have received (unidentified) in- Protective Order, a few days after they formation protected by the attorney-client filed that Motion, Garfinkel and Katzman privilege and work product doctrine. filed their Motion to Intervene to Ensure Preservation of Privilege. [DE 126]. Ii. ANALYSIS They ask to intervene in this case, individ- ually, to protect their personal interests, A. Motion to Intervene including what they claim were privileged [11 Both Garfinkel and Katzman assert communications with Rosenbaum. They their right, pursuant to Rule 24(a), F.R. 7. They request a hearing on that Motion. [DE 132]. EFTA00177863 1262 716 FEDERAL SUPPLEMENT, 2d SERIES Civ. P., to intervene in this action "for the (1st Cir.2001) ("Colorable claims of attor- limited purpose of protecting the various ney-client and work product privilege [are] privileges, and to respond to the personal .. . a textbook example of an entitlement attacks made upon them individually by to intervention as of right."); United Rosenbaum." [DE 125, p. Garfinkel Stalest. AT & T Co., 642 F.2d 1285, 1292 and Katzman will be permitted to inter- (D.C.Cir.1980); Sackman I. Liggett vene for the former purpose, but not the Group, Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y. latter•. 1996). According to the Motion to Intervene, In allowing intervention, this Court and Katzman have not Rosenbaum served as counsel for Garfink- notes that Garfinkel d that Rosenbaum in fact el "in the matter which Romain filed demonstrate as their lawyer, or that he has or against Garfinkel[,]" and their communica- served any of their privileged com- tions in this respect were protected by the will disclose While they have complained attorney client privilege. Id The Motion munications. mightily that Rosenbaum has already further asserts that Rosenbaum, as part of disclosures, Garfinkel the Joint Defense Team represented his made unauthorized and Katzman have not identified for this former law firm, KGR, and by association Court which of Rosenbaum' s statements in its partner, Katzman, and that disclosure the Request for Judicial Inquiry, or at the of their privileged communications would April 16 healing, they claim are privileged. harm Garfinkel and Katzman in on-going Moreover, Katzman's assertion of privilege litigation. [DE 126, p. 3].3 is particularly attenuated: he claims that Rule 24(a) reads as follows: Rosenbaum, as part of the JDT, represent- (a) Intervention as of Right. Upon ed their former law firm, and that as a timely application anyone shall be per- partner in the firm Katzman personally mitted to intervene in an action: claims a privilege as to his statements to (2) When the applicant claims an inter- Rosenbaum. Further, to the extent Katz- est relating to the property or transac- man contends that the statement Rosen- tion which is the subject of the action baum attributed to him, and repeated at and he is so situated that disposition of the April 16 hearing ("You don't have to the action may as a practical matter worry about Ken Romain if this is an issue impair or impede his ability to protect because we can pay him off and he will that interest, unless the applicant's in- recant his testimony") was a privileged terest is adequately represented by ex- communication, it would appear to fall isting parties. squarely within the crime-fraud exception The law in this Circuit, and others, is clear, to that privilege. In this and other cir- that this Court must allow intervention by cuits, Garfinkel and Katzman need not set a client "in the first instance ... as soon forth this proof before they intervene. See as the [attorney-client] privilege issued is In re Grand Jury Proceedings (Freeman), raised." In re Grand Jury Matter (ABC 708 F.2d at 1576 (intervention should have Coeµ), 736 F.2d 1330, 1881 (11th Cir.1984), been allowed "once the claim of attorney- (quoting In re Grand Jury Proceedings client privilege ... surfaced."); In re (Freeman), 708 F.2d 1571, 1575 (11th Cir. Grand Jury Matter (ABC Corp.), 735 F.2d 1983)); see also In re Grand Jury Subpoe- at 1331 (the extent of the attorney-client na (Newparent, Inc.), 274 F.3d 663, 670 privilege, and the possibility of unautho- 8. The Motion does not specifically identify what ongoing litigation It refers to. EFTA00177864  EL-AD RESIDENCES AT MIRAMAR CONDO. . Mt HAWLEY 1263