In re: Rothstein Rosenfeldt Adler, P.A. et al

Filing 50

ORDER granting 36 Motion to Revise the Order of Judge Ray; granting 37 Motion to Seal; denying 42 Motion for Hearing; denying 45 Motion for Access to Government's Ex Parte Submission. See Order for details. Signed by Judge James I. Cohn on 9/6/2011. (prd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-61338-CIV-COHN
In Re: ROTHSTEIN ROSENFELDT ADLER, P.A.,
Debtor.
________________________________________/
ORDER GRANTING GOVERNMENT’S MOTION TO REVISE ORDER OF JUDGE
RAY SETTING THE PROTOCOL FOR DEPOSITION OF SCOTT ROTHSTEIN
ORDER DENYING MOTION FOR HEARING
ORDER DENYING MOTION FOR ACCESS TO THE GOVERNMENT’S
MEMORANDUM
THIS CAUSE is before the Court upon the Government’s Motion to Revise the
Order of Bankruptcy Judge Ray Setting the Protocol for Deposition of Scott W.
Rothstein [DE 36], the Government’s Ex Parte Submission in support of motion [filed
under seal at DE 38], the Opposition Memoranda of Platinum Partners Value Arbitrage
Fund LP (“Platinum”) [DE 40], Gilbraltar Private Bank & Trust [DE 41], TD Bank
N.A.[DE 43/46], the Razorback Victims’ Limited Joinder in Opposition [DE 44], TD
Bank’s Motion for Access to the Government’s Ex Parte Submission [DE 45], the
Razorback Victims’ Limited Joinder in TD Bank’s Motion [DE 47] and Gilbraltar’s Motion
for Hearing [DE 42]. The Court has carefully considered all of the filings in this matter,
and is otherwise fully advised in the premises.
Scott Rothstein (“Rothstein”), the central figure in a criminal action brought by the
United States of America regarding fraudulent activities undertaken by Rothstein while
he controlled the now bankrupt law firm of Rothstein, Rosenfeldt & Adler, P.A. (“RRA”),
is sought to be deposed in various civil actions pending in federal and state courts. The
bankruptcy court-appointed Trustee for RRA, plaintiff victims, and defendants in

separate actions brought by the Trustee and fraud victims all seek to examine or
depose Rothstein regarding his knowledge of events related to the operations of RRA
and those civil actions. The parties filed motions to depose Rothstein in the RRA
bankruptcy proceeding, resulting in a Bankruptcy Court Order certifying the Order to this
Court for its approval, as Rothstein is currently serving a fifty (50) year sentence
imposed by this Court in Case No. 09-60331-CR. After the United States Government
moved to stay any deposition of Rothstein for a period of at least six months, the Court
granted the motion, and ordered that the examination/deposition of Scott Rothstein
shall take place commencing December 12, 2011, under the protocol described in
Judge Ray’s proposed Writ, except as modified by this Court in a future order.1 The
Court did allow the Government time to file specific objections to portions of that Order.
The Government has moved to eliminate the videotaping of the deposition based
upon matters of security. In its sealed filing, which the Government states must be
sealed by law, it supports its motion by stating that Rothstein is in a form of protective
custody because of his participation in a law enforcement investigation.2 The
Government cites to 18 U.S.C. § 3521 to support its argument, but does not cite to case
law.
The private parties that seek to depose Rothstein all oppose the Government’s
motion to eliminate videotaping of the deposition. They contend that the Government

1

For the full background of this action, please see the Court’s Order dated July
1, 2011 [DE 32].
2

This statement by the Court effectively summarizes the Government’s sealed
filing, without revealing anything not already in the public record.
2

has failed to show good cause and specific identification of serious harm if videotaping
is not allowed. Fanelli v. Centenary Coll., 211 F.R.D. 268, 270 (D.N.J. 2002)(citing
Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir. 1994). In Fanelli, a magistrate
judge denied a plaintiff’s motion to exclude videotaping of her deposition on the basis
that her medical condition of “anxiety” would be worsened. The private parties assert
that videotaping of depositions has become routine and imparts critical non-verbal
credibility information that juries in the various civil actions should be able to view.3
Upon a review of all the filings of this matter, the Court concludes that the
Government has shown good cause and specifically identified a serious harm to justify
elimination of videotaping of Rothstein’s deposition. Videotaping or photographing of a
protected person would create a security risk and jeopardize the safety of the protected
person, as well as the potential undermining of the protection program with regard to
future participants. The Government’s specific information in this case is filed under
seal for security reasons that are unusual in nature yet significant enough to warrant
this relief. Under the appropriate balancing test, the need for the private parties to
videotape Rothstein is outweighed by the security concerns raised by the Government.
The Court recognizes that this ruling will leave many unsatisfied, as it does not
reveal the Government’s specific reasons. There are rare occasions in our otherwise
open society that certain information should not be publicly available. The Court can

3

The private parties also seek access to the Government’s sealed filing based
upon the public’s right to access to judicial proceedings. Chicago Tribune Co. v.
Bridgestone/Firestone Inc., 263 F.3d 1304, 1311 (11th Cir. 2001). The United States
Court of Appeals for the Eleventh Circuit stated that a district court must balance public
access with the competing interests of the parties when deciding access to a particular
document. Id.
3

only hope that the litigants in the matter can understand that the Court does not reach
this decision lightly, and has seriously considered all of the arguments before it.4
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Government’s Motion to Revise the Order of Bankruptcy Judge Ray Setting
the Protocol for Deposition of Scott W. Rothstein [DE 36] is hereby GRANTED;

2.

Paragraphs 4, 7 and 14 of Judge Ray’s Order shall be modified to eliminate
videotaping of the deposition;

3.

TD Bank’s Motion for Access to the Government’s Ex Parte Submission [DE 45]
is hereby DENIED;

4.

Gilbraltar Bank’s Motion for Hearing [DE 42] is hereby DENIED;

5.

By September 12, 2011, all parties, including the Government, shall file a joint
proposed Writ of Habeas Corpus Testificandum.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, on this 6th day of September, 2011.

Copies provided to:
Counsel of record on CM/ECF

4

In its discretion, the Court declines to hold a further hearing in this matter.
4