Bernath v. Seavey

Filing 216

ORDER granting in part and denying in part 213 Attorney Eric Leckie and Invictus Law's Emergency Motion for Leave to File Under Seal. See Order for details. Signed by Magistrate Judge Carol Mirando on 5/8/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.

Case No: 2:15-cv-358-FtM-99CM

MARK CAMERON SEAVEY,
Defendant.
ORDER
This matter comes before the Court upon review of the Attorney Eric Leckie
and Invictus Law’s Emergency Motion for Leave to File Under Seal (Doc. 213) filed
on May 5, 2017. On May 8, 2017, Defendants filed a response in opposition. Doc.
215.

On May 1, 2017, the Court ordered attorney Eric Leckie to file a verified

affidavit stating whether he:
a. Drafted the Notice of Motion and Motion to Appear Pro Hac Vice and
Request Waiver of Local Counsel that was filed on April 19, 2017 (the
“Pro Hac Vice Motion”);
b. Signed the Pro Hac Vice Motion;
c. Authorized any other individual to sign the Pro Hac Vice Motion on
his behalf;
d. Reviewed the Pro Hac Vice Motion; or
e. Filed the Pro Hac Vice Motion.

Doc. 209 at 3.

The Court further ordered attorney Leckie to advise the Court

whether he represents Plaintiff in this action. Id. at 4. In his “emergency” motion, 1
attorney Leckie seeks to file the verified affidavit under seal because compliance with
the Court’s May 1, 2017 Order will require divulgement of attorney-client privileged
communications between attorney Leckie and Plaintiff. Doc. 213 at 2. Attorney
Leckie states that pursuant to Rule 4-1.6, Rules Regulating the Florida Bar, Plaintiff
has not given informed consent. Id. at 4. Defendants state they would not have
opposed a limited redaction of attorney Leckie’s affidavit; however, they oppose the
broad relief requested, and also state that it is necessary for them to view attorney
Leckie’s affidavit in order to substantiate their motion for sanctions and attorney’s
fees related to the Pro Hac Vice motion and other pro se filings by Plaintiff. Doc. 215
at 3, 7-8.
Pursuant to Local Rule 1.09(a),
[u]nless filing under seal is authorized by statute, rule, or order, a party
seeking to file under seal any paper or other matter in any civil case
shall file and serve a motion, the title of which includes the words
“Motion to Seal” and which includes (i) an identification and description
of each proposed for sealing; (ii) the reason that filing each item is
necessary; (iii) the reason that sealing each item is necessary; (iv) the
reason that a means other than sealing is unavailable or unsatisfactory
to preserve the interest advanced by the movant in support of the seal;
(v) a statement of the proposed duration of the seal; and (vi) a
memorandum of legal authority supporting the seal. The movant shall

The term “emergency” on the title of a pleading should be used only in extraordinary
circumstances, when there is a true and legitimate emergency. When a pleading is labeled
as an “emergency,” the Court is compelled to immediately divert its attention from other
pending matters and to focus on the alleged emergency. Here, there is no pending threat of
immediate or irreparable harm to cause this motion to be designated as an emergency.
While the Court recognizes attorney Leckie’s concern and appreciates his attempt to comply
with the deadlines set forth the Court’s Order, an impending deadline is not an emergency.
1

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not file or otherwise tender to the Clerk any item proposed for sealing
unless the Court has granted the motion required by this section.
M.D. Fla. Rule 1.09(a). Here, attorney Leckie has complied with Local Rule 1.09(a).
Upon review of the motion and relevant authority, however, the Court finds
that attorney Leckie should be able to respond to the Court’s order without
necessarily divulging any attorney-client communications.

Specifically, attorney

Leckie should be able to answer in the affirmative or in the negative, without detailed
explanations, whether he drafted, signed, reviewed, or filed the Pro Hac Vice Motion.
To the extent attorney Leckie finds it necessary to divulge any attorney-client
privileged communications in responding to the remaining directives in the Court’s
Order, the Court will grant the motion in part. See Harling v. Ado Staffing, Inc., No.
3:13-cv-1113-J-34JRK, 2014 WL 12621226 (M.D. Fla. Jan. 23, 2014) (holding that
certain paragraphs in the plaintiff’s complaint contained the plaintiff’s conversations
with counsel, and ordering that those paragraphs be redacted from the documents
filed in the public record, with unredacted versions of the documents filed under seal);

U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-CV-1002-ORL-31, 2013
WL 1233699, at *2 (M.D. Fla. Mar. 27, 2013) (holding that good cause existed to
permit a deposition transcript containing attorney-client privileged communications
be filed under seal because those circumstances “outweigh[ed] the public’s right of
access.”).

Once the Court reviews the sealed affidavit, it may make additional

findings of whether the communications are protected by the attorney-client privilege
and enter an appropriate order regarding the extent and/or duration of the seal.

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ACCORDINGLY, it is hereby
ORDERED:
1. Attorney Eric Leckie and Invictus Law’s Emergency Motion for Leave to
File Under Seal (Doc. 213) is GRANTED in part and DENIED in part.
2. Attorney Leckie shall file an affidavit in the public record responding to the
Court’s May 1, 2017 Order and redact any portions in the affidavit that
contain attorney-client communications with Plaintiff.

Attorney Leckie

shall simultaneously file the unredacted affidavit under seal.
DONE and ORDERED in Fort Myers, Florida on this 8th day of May, 2017.

Copies:
Counsel of record

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