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GENERAL JURISDICTION
DIVISION
CASE NO.: 562012
CA 001461
Plaintiff,
vs.
ORIGINAL
ORDER ON PLAINTiFF'S
MOTION TO DETERMINE
CONFIDENTIALITY
OF COURT
RECORDS
Defendants.
----------------------------~/
THIS
Confidentiality
CAUSE
came
before
the
Court
on
Plaintiff's
Motion
to
Determine
of Court Records, the Court having heard argument from counsel and
The Plaintiff's motion is based upon Rule 2.420, Fla. R. Jud. Admin. and requests
an order requiring that all pleadings,
relating to certain
documents claimed to be privileged be filed under seal. At the hearing, the Court
directed the parties to maintain the status quo pending an order on this motion.
2.
At the hearing, both Plaintiff and Defendant discussed other pending motions and
materials that impact directly on the Court's ruling on this matter. These matters
included two Motions for Protective Orders filed by the Plaintiff (which the Court
ruled upon in a separate order) and Plaintiff's Motion in Limine and Motion to
Disqualify Ice Legal, P.A., and Defendants, Rolle's, Opposition to the Motion in
Limine and to Disqualify. While this Court did not rule on the Motion in Limine and
to Disqualify (in that neither were noticed for hearing) the content and arguments
made in the motion and opposition, as well as both counsels' discussion of same,
assisted the Court in ruling on this motion.
3.
Rule 2.420, Fla. R. Jud. Admin., provides a specific framework for identifying
confidentiality of court records, see Rule 2.420(c}{9), and procedure to request a
determination of court records in non-criminal cases, see
Rule 2.420(e).
Defendants raise and Plaintiff admits that it failed to include the requisite signed
certificate in its motion that "the motion is made in good faith and is supported by
a sound factual and legal basis."
technicality, but in fact the rule states it is a requirement and thus by definition
cannot be a mere technicality.
4.
Plaintiff identified the four documents at the hearing and in its Motion in Limine
which it claims contain privileged and confidential information which was
inadvertently produced.
5.
Defendants and Ice Legal, P.A.'s counsel in their response to the Motion in Limine
and at the hearing provided documents which on their face reflect that Ice Legal,
2
P.A. ("Ice") was provided exhibits through email by Plaintiffs counsel, Quintairos
Law Firm, on December 31, 2013 which also contained the four documents at
issue. Due to change of counsel, the case was continued, and re-set on a number
of occasions. The Clarfield Law Firm replaced the Ouintairos Law Firm in July of
2014 as reflected in the docket.
6.
Ice represents that it discovered for the first time on February 18, 2015 in preparing
for the re-set trial that it may have received inadvertently disclosed materials, and
that it complied with Rule 1.285, Fla. R. Civ. P. and R. Regulating Fla. Bar4-4.4(b),
in advising both the Ouintairos firm and thereafter the Clarfield firm of this fact.
Emails to and from Ice and Plaintiff's law firms dated February 18 and 19, 2015
were provided to the Court and support Ice's representations.
7.
Neither the Ouintairos firm nor the Ciarfield firm filed any written notice or
assertion, after having been provided notice by Ice, of any privilege within the 10day period, and in fact, the first claim of privilege by Plaintiff was only filed May 28,
2015, over three months later.
8.
in that no timely claim of privilege was asserted by the Plaintiff, Defendant through
its counsel (as represented to the Court) provided the documents to the Daily
Business Review (DBR) and the New York Times. The DBR published an article
on May 20, 2015 entitled "Ocwen Lawyer Accused of Using Script to Coach RobeWitnesses" referencing the now claimed privilege documents and publishing
several portions of one of the four documents. The DBR has also published other
articles dealing with this case, including a retraction of a comment made by the
Ouintairos firm wherein the Ouintairos firm stated that after making its initial
comment it had determined that Ice had followed the Florida Rules of Civil
Procedure and the Florida Rules of Professional Responsibility.
9.
Ice's counsel also represented to. the Court that as a result of the initial article,
numerous attorneys requested copies of the documents, and as a result, Ice
posted the documents on its website so that they could be accessed.
Ice
estimated that over 50 attorneys and/or law firms obtained the materials, and
obviously these materials have been or could continue to be distributed by others.
The Court was also advised that as soon as the Plaintiff filed a belated 1.285
notice, and without judicial decree, Ice removed the four documents from its
website and advised the newspapers and attorneys whom Ice knew had the
materials that the Court would be hearing matters associated with a request
relating to restricting access to or about these documents. However, neither the
newspapers nor the other attorneys who have possession of these documents are
parties to this action nor does this Court have jurisdiction over them.
10.
It is
clear from the record in front of this Court that the four documents in question
are now in the public domain, and that this Court, in this case only, does not have
the ability nor the power to fashion an order that, should it be determined in a
subsequent hearing that the documents are privileged (which the Court has not
yet determined), would prevent or restrict their circulation.
11.
At the outset, Florida law has long recognized and held that "all trials, civil and
criminal, are public events and there is a strong presumption of public access to
these proceedings and their records." Bainter v. League of Women Voters of
Florida, 150 So. 3d 1115, 1119 (Fla. 2014) {citing Barron v. Fla. Freedom
Newspapers,
lnc., 531 So. 2d 113, 114 (Fla. 1988)). The test for the seating of
court proceedings and records in Florida is set forth in Barron. See BOO Seidman,
LLP v. Banco Espirito Santo lniem., Ltd., 34 Fla. L. Weekly 0739 (Fla. 3d DCA
Apr. 8, 2009). As such, this Court is bound to follow
12.
Betton.'
Indeed. Fla. R. Jud. Admin. 2.420 was adopted to incorporate the holding in Barron. See Fla. R. Jud.
Admin. 2.420 committee's notes; see also In re Amendments to Florida Rule of Judicial Admin. 2.420Sealing of Court Records & Dockets, 954 So. 2d 16 (Fla. 2007).
In Lifecare lnietn., Inc. v. Barad, 573 So. 2d 1044 (Fla. 3d DCA 1991), the Third
District analyzed Barron in determining whether it was appropriate for a trial court
to deny a motion to unseal records that had already been disclosed in the public
domain prior to being sealed. The court reasoned:
[P]rior to August 18, 1988 [the date the records were sealed], all
documents filed in the court file were open and accessible to the
public, unless specifically filed under seal pursuant to the January
26, 1988 order. The effect of the August 18, 1988 order was to
seal documents which had previously been in the public domain.
We see no reason why the documents which were in the public
domain prior to August 18, 1988 should not be returned to the
public domain at this time.
Accordingly, the court file for the period prior to August 18, 1988
is to be unsealed with respect to those documents which were
filed in the public record and were open and accessible to the
public.
Id. at 1046. Similarly, in Romero, the Eleventh Circuit persuasively articulated that
sealing documents, the substance of which had already been reported by the
Miami Herald, could not remedy any of the highly unlikely harms that could be
caused by pretrial publicity. 480 F.3d 1243, 1247 (11th Cir. 2007).
14.
the hearing
Civ.P.
1.285, which this Court must now follow. Second, Smith is a federal case and is
merely persuasive
332 So. 2d 333 (Fla. 1976) ("Even though lower federal court rullnqs may be in
some instances persuasive, such rulings are not binding on state courts."). Third,
the facts in Smith are inapplicable
Plaintiffs counsels, the Quintairos law firm and the Clarfield law firm, were notified
by Ice as to the disclosure of potentially privileged material and both law firms failed
to "immediately
at 1575. Accordingly,
15.
Under the Berron decision and other relevant Florida case law, and in considering
the criteria set forth in Rule 2.420(e), Fla. R. Jud. Admin., the Court finds that the
Plaintiff has failed to carry its heavy burden to justify the relief sought by the Plaintiff
in this Motion, and therefore
Plaintiffs
Motion is DENIED.
documents are in the public domain and the "horse has long left the barn" prevents
the Court from fashioning the relief sought in Plaintiff's motion. Accordingly,
Motion To Deem Confidentially
DONE and ORDERED
a
.
June, 2015.
U-J~~
Honorable William L. Roby
Circuit Judge
the
day of
561-713-1400
Q!eadin~@..QQlw.com
David Schneid, Esq.
813-229-3333
813-229-5946
mcolgan@babc.com
Thomas Erskine Ice
ICE LEGAL, P.A.
1015 N. State Road 7, Suite C
Royal Palm Beach, FL 33411
561-729-0530
servic~@lgelegal. com
service 1@icelegal.com
service2@ice!egal.com
Robert D. Critton, Jr.
CRITTON, LUTTIER & COLEMAN, LLP
303 Banyan Blvd., Suite 400
West Palm Beach, FL 33401
Phone (561) 842-2820
Fax (561)-844-6929
Primary Emai!: rcritton@lawcic.com
Secondary Emaif: icbristow@iawcic.com.
czaguirre@bc!cfaw.com