Kassem v. Martin et al
Filing
173
ORDER granting 165 motion to examine content of Imbriglio's email account; denying 167 motion to dismiss sanction motions; ruling deferred 168 motion in limine regarding attorney and paralegal testimony; denying 169 motion for leave to issue third party subpoena; and granting 170 motion to take witness out of order. See Order for details. Signed by Magistrate Judge Philip R. Lammens on 12/20/2017. (AR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LYNN KASSEM,
Plaintiff,
v.
Case No: 5:15-cv-623-Oc-30PRL
MATT MARTIN
Defendant.
ORDER
The parties have filed a number of motions related to the upcoming hearing on Defendants’
sanctions motions seeking to dismiss Plaintiff’s Complaint and to disqualify Plaintiff’s counsel.
(Docs. 165, 167, 168, 169, 170).
I.
Plaintiff’s motion to dismiss or deny as moot sanctions (Doc. 167)
As an initial matter, the scope and continued viability of the sanctions motions (which were
filed by all of the Defendants) have been called into question with the recent dismissal of the
Connor Defendants, leaving only Plaintiff’s claims against Defendant Matt Martin. Based on the
dismissal, the Court entered an Order on December 8, 2017 directing the parties to confer and
advise the Court regarding the status of the pending motions. (Doc. 160). The parties advised the
Court that the motions were still at issue and that the hearing would proceed. (Doc. 163). But now,
despite that, Plaintiff has more recently filed a motion to dismiss or deny the motions as moot.
(Doc. 167). Plaintiff contends that the motions are mooted by the settlement since they primarily
concern access to Defendant Connor’s email by Plaintiff’s minor daughter and the effect of such
access on the Connor Defendants; and, that although Martin joined in the motions, he has not
sustained any injury from the Connor email access, nor can he establish any future harm.
Plaintiff’s motion to dismiss or deny as moot (Doc. 167) is due to be DENIED. Although
the motions focus primarily on the Connor Defendants (it was Debi Connor’s email that was
breached), the Court is satisfied that Martin has a sufficient interest in issues addressed by the
motions. Indeed, at least one of the emails intercepted and sent by Plaintiff to Ms. Hartnett was
from Connor to Martin. (Doc. 139-4 at 276). Moreover, the Court has the inherent power to sua
sponte sanction parties or counsel for conduct that undermines the judiciary’s ability to achieve
the just, orderly, and expeditious disposition of cases. See Chambers v. NASCO, Inc., 501 U.S. 32,
42-44 (1991); Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205, 1212-13 (11th Cir. 2015);
see also, Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002)
(the Court has power to conduct an independent investigation to determine whether it has been the
victim of fraud); In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) (the Court’s “inherent power
extends to a full range of litigation abuses”). The key to unlocking the Court's inherent authority
to sanction is a finding of bad faith. Chambers, supra, 501 U.S. at 44–45; In re Sunshine Jr. Stores,
Inc., 456 F.3d 1291, 1304 (11th Cir. 2006).
Here, the parties have submitted unrefuted evidence that Plaintiff had access to Defendant
Connor’s personal email for a period of time before and after this litigation was filed, and that
Plaintiff shared intercepted emails with others, including Nicole Imbriglio and Taryn Hartnett
(who is her lawyer’s paralegal). This conduct is sanctionable. See e.g., Eagle Hosp. Physicians,
LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1305-07 (11th Cir. 2009) (affirming district court
exercising inherent authority and striking answer and counterclaim and entering default judgment
as a sanction for improper interception of emails).
Then, Plaintiff’s deposition testimony—in which she attempted to downplay the
significance of the access—was directly at odds with other record evidence. If, in fact, her
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testimony was dishonest, such conduct could also warrant sanctions. Finally, the involvement of
the Chapman Law Group with the Connor email could be sanctionable. On at least four occasions
Plaintiff sent emails from Ms. Connor’s account to Ms. Hartnett. There is some dispute (actually
between Plaintiff’s deposition testimony and Ms. Harnett’s affidavit) as to what actions Ms.
Hartnett took, and when, and whether Mr. Chapman had knowledge of the access.
The hearing is an opportunity for Defendant to tie up any loose ends related to the above
conduct. It is not intended to be a repeat of the exact same evidence that has already been provided
to the Court. There is no need for the parties to elicit duplicative testimony from witnesses who
have already been deposed in this case. Nor does the Court intend to take evidence or hear
argument on purported discovery violations within the ESI discovery period, unless it somehow
bears on the above conduct. The hearing is a show cause hearing as to why sanctions should not
be imposed on Plaintiff and her counsel: Defendant Matt Martin will have an opportunity to
finalize its evidence and argument related to these issues (without the need to present duplicative
or unrelated testimony) and Plaintiff and counsel will have an opportunity to be heard and present
evidence in response.
II.
Defendant’s motion to review content of Imbriglio’s email account (Doc. 165)
In efforts to prepare for the hearing, Defendant Martin seeks leave to review the content of
Nicole Imbriglio’s email account. (Doc. 165). The Court previously allowed specific ESI
discovery including Defendant’s access to Nicole Imbriglio’s telephone and email information.
See Doc. 115 at 14. Plaintiff, through her counsel, has asserted that Imbriglio was part of the
Plaintiff’s litigation team, and therefore, all communication in her email regarding the issues in
litigation is protected by attorney-client privilege.
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Defendants had their ESI expert review the emails, and prepare, prior to delivering the
emails to Defendants, a privilege log which identified and removed material which might be
subject to the claimed attorney-client privilege. The remaining emails were then segregated and
forwarded to defense counsel, who ceased review of the documents after discovering other
potentially privileged communications. Defense counsel then returned all of the emails to the ESI
expert. Mr. Chapman was advised of the turn of events and was provided with (at least a majority
of) the emails. To date, Defendants have not reviewed the email.
While Mr. Chapman may assert the privilege on behalf of Plaintiff, the privilege belongs
to the client, and the client has the sole power to waive it. Under Florida law, a party asserting an
attorney-client communication privilege must establish its applicability, including that the
privilege was not waived. Batchelor v. Geico Casualty Company, 142 F.Supp.3d 1220, 1243 (M.D.
Fla. 2015). In order to remain privileged, a communication must be made in confidence and kept
confidential. Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003). Disclosure of privileged
communications to a person outside the attorney-client relationship waives the protection of the
privilege.
At her deposition on October 3, 2017, Plaintiff testified that she did not use Nicole
Imbriglio as her agent in relation to this litigation, and that Nicole Imbriglio was never asked to
participate or do investigations as part of the litigation process, nor to gather information that was
relevant to the litigation. (See Doc. 165 at 3-8). While Plaintiff argues that Defendant cherrypicked excerpts from the deposition, Plaintiff has failed to identify any specific testimony that
supports the claimed privilege.
As such, Plaintiff has failed to meet her burden to show that Plaintiff’s communications
with Imbriglio were subject to attorney-client privilege, and thus, any information she received is
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not protected as she was not a part of her litigation team. Once the communications were shared
or communicated to Imbriglio, as a non-protected third party, the privilege as to that information
was at the very least waived by the Plaintiff.
Likewise, Plaintiff’s general assertion that the Imbriglio email contains confidential
business information is unavailing. Of course, the parties can protect the further dissemination of
any confidential business information with an agreed upon protective order.
Accordingly, Defendant’s motion (Doc. 165) is GRANTED. Plaintiff has failed to
establish that the emails in Imbriglio’s account are protected by Plaintiff’s attorney-client
privilege, and Plaintiff’s disclosure to Imbriglio waived any privilege, thus, the emails may be
reviewed by Defendant. To the extent those emails are now exclusively in the custody of Plaintiff,
her counsel, or their expert, they shall be immediately turned back over to Defendant Martin.
III.
Plaintiff’s motion regarding attorney and paralegal testimony (Doc. 168)
Defendant has listed Mr. Chapman and Ms. Hartnett as witnesses for the hearing.
(Doc. 161). Plaintiff now seeks to limit their testimony. (Doc. 168). The Court will carry this
motion with the case and resolve any challenges at the hearing. The Court contemplates, that at a
minimum, Defendant will be entitled to question Ms. Hartnett regarding her receipt and handling
of the Connor emails; and to question Mr. Chapman regarding his knowledge of the Connor email.
He is ultimately responsible for how his firm communicates with its client. It appears, at a
minimum, he either failed to create a communication structure in his firm to alert him of
misconduct communicated to his employees (in this case his paralegal) by his client, or such a
structure existed but some breakdown of it occurred. Notably, there is also testimony that he
actually knew of the misconduct and argument can be made that information contained in the
emails formed the basis for several counts of the complaint.
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IV.
Plaintiff’s motion for leave to issue third party subpoena (Doc. 169)
Plaintiff seeks to serve a third party subpoena for the bank records of Imbriglio to explore
her financial ties to Martin. Plaintiff argues that the subpoena is necessary “to ascertain the scale
and scope of the relationship between Imbriglio and Defendant Martin and to determine how the
lawsuit might financially affect Imbriglio, should the Martin Defendants be faced with a large
verdict against the Martin Defendants.” (Doc. 169 at 4). However, Plaintiff has already deposed
Martin and Imbriglio and has had the opportunity to explore their ongoing business relationship
and any underlying bias. The Court is unpersuaded that the additional information that might be
gleaned from the bank records are necessary to resolve the sanctions motions. Accordingly,
Plaintiff’s motion (Doc. 169) is DENIED at this time. This, however, does not preclude Plaintiff
from reissuing the subpoena, if and when, the stay on discovery is lifted.
V.
Plaintiff’s motion to take witness out of order (Doc. 170)
Plaintiff has filed a motion to allow Professor Keith Rizzardi to present and complete his
testimony on January 8, 2018. (Doc. 170). Defendant has no opposition so long as Professor
Rizzardi is not the first witness.
Upon due consideration, Plaintiff’s motion (Doc. 170) is GRANTED with the caveat that
Plaintiff should carefully consider whether Professor Rizzardi’s testimony will be helpful. As
discussed above, the Court intends to focus the hearing on whether sanctions should be imposed
for (1) Plaintiff’s access and dissemination of the Connor email; (2) Plaintiff’s seemingly
untruthful deposition testimony; and (3) the Chapman Law Group’s knowledge and involvement
with the Connor email.
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DONE and ORDERED in Ocala, Florida on December 20, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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