Newman v. Sun Capital, Inc. et al

Filing 347

ORDER granting 346 Plaintiff's Motion to Extend Order Governing the Use of Confidential Discovery Information Dated March 18, 2010 [D.E. 178]. Signed by Magistrate Judge Carol Mirando on 4/19/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL S. NEWMAN, as Receiver for
Founding Partners Capital
Management Company; Founding
Partners Stable-Value Fund, L.P.;
Founding Partners Stable-Value
Fund, II, L.P.; Founding Partners
Global Fund, Ltd. and Founding
Partners Hybrid-Value Fund, L.P.,
Plaintiff,
v.

Case No: 2:09-cv-445-FtM-29CM

SUN CAPITAL, INC., SUN
CAPITAL HEALTHCARE, INC.
and HLP PROPERTIES OF PORT
ARTHUR, LLC,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff's Motion to Extend
Order Governing the Use of Confidential Discovery Information Dated March 18,
2010 [D.E. 178] (Doc. 474) filed on March 13, 2017.

Defendants have not filed a

response to this motion, and their time to do so has expired.

Defendants’ non-

response to the present motion creates a presumption that the motion is unopposed.

Great Am. Assur. Co. v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL 195526,
at *3 (M.D. Fla. Jan. 23, 2012).
On July 14, 2009, Plaintiff filed this action in his capacity as the appointed
Receiver for various companies including Founding Partners Capital Management

Company.

Doc. 1 at 1.

On March 18, 2010, then United States Magistrate Judge

Sheri Polster Chappell entered an Order Governing the Use of Confidential Discovery
Information (“Order”).

Doc. 178.

The Order’s Paragraph 4 specifically states that:

Confidential Discovery Material (including Highly Confidential
material) may be used only for the purposes of this Action, the SEC
action to which it is ancillary (no. 2:09- cv-229) (“the SEC Action”)
(including for appropriate reports to the Court by the Receiver in the
SEC Action), and any other action brought by the Receiver pursuant to
the Order Appointing Replacement Receiver entered in the SEC Action
for which such information is reasonably necessary (a “Receiver
Action”), provided that in the event of such Receiver Action, the Receiver
shall specifically apply to the Court to extend this Order to said Receiver
Action after giving notice to the Defendants and any non-parties
providing information under the protections of this Order of his
intention to do so. Such material shall not be used for any other
purpose, including, without limitation, any business or commercial
purpose or any other litigation or proceeding, except for a business
resolution of this Action between the Parties to this Action or a Receiver
Action; provided, however, that the foregoing shall not apply to
Discovery Material that properly is or becomes part of the public record.

Id. at 4.
Under Paragraph 4, Plaintiff seeks that the Court permit the use of
confidential discovery information in a related action initiated by Plaintiff, Daniel

Newman v. Ernst & Young, LLP and Mayer Brown, LLP, in the Circuit Court of the
17th Judicial Circuit in and for Broward County, Florida (the “Receiver Action”).
Doc. 346 at 1.

Plaintiff provides a copy of the Order Governing the Use of

Confidential Discovery Information entered on December 9, 2016 in the Receiver
Action, which provides:
discovery and other proceedings in this Action will necessarily involve
the production and use of certain documents and information produced
pursuant to the SEC Action Confidentiality Order and/or the Sun
Capital Confidentiality Order, and other documents and information of

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a similar nature to the documents and information subject to the SEC
Action Confidentiality Order and/or Sun Capital Confidentiality
Order[.]
Doc. 346-1 at 2. Plaintiff also argues that he provided the requisite notice to Ernst
& Young and the Sun Capital entities.

Doc. 346 at 3.

Because Plaintiff alleges that he provided the requisite notice under
Paragraph 4 of the Order, and Defendants did not file an opposition to the request
relief, the Court will grant the present motion and extend the Order to permit the use
of confidential discovery information in the Receiver Action.

Doc. 346 at 3.

ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff's Motion to Extend Order Governing the Use of Confidential

Discovery Information Dated March 18, 2010 [D.E. 178] (Doc. 474) is GRANTED.
2.

The Order Governing the Use of Confidential Discovery Information (Doc.

178) is extended to permit the use of confidential discovery information in Daniel

Newman v. Ernst & Young, LLP and Mayer Brown, LLP, Case No. 10-49061, filed in
the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida.
DONE and ORDERED in Fort Myers, Florida on this 19th day of April, 2017.

Copies:
Counsel of record

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