Adelman et al v. Boy Scouts of America et al

Filing 217

Plaintiff's MOTION to Compel Appearance of U.S. Park Service Employees for Deposition by Howard Adelman, Judith Sclawy-Adelman. Responses due by 6/20/2011 (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 1c, # 4 Exhibit 1d, # 5 Exhibit 1e, # 6 Exhibit 1f, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Exhibit 11, # 17 Exhibit 12, # 18 Exhibit 13, # 19 Exhibit 14)(Peltz, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 10-CV-22236-ASG/GOODMAN
HOWARD ADELMAN AND JUDITH SCLAWY
as Co-Personal Representatives of the
ESTATE OF MICHAEL SCLAWY-ADELMAN,
Plaintiffs,
v.
BOY SCOUTS OF AMERICA;
THE SOUTH FLORIDA COUNCIL INC.,
BOY SCOUTS OF AMERICA; PLANTATION
UNITED METHODIST CHURCH; HOWARD
K. CROMPTON, Individually, and
ANDREW L. SCHMIDT, Individually,
Defendants.
/
MOTION FOR JUDICIAL REVIEW OF DENIAL OF TOUHY REQUESTS AND TO
COMPEL APPEARANCE OF U.S. PARK SERVICE EMPLOYEES FOR DEPOSITION
COME NOW the Plaintiffs, HOWARD ADELMAN AND JUDITH SCLAWY, as CoPersonal Representatives of the ESTATE OF MICHAEL SCLAWY-ADELMAN, by and through
their undersigned attorneys and file their Motion for Judicial Review of the Department of Interior’s
Denial of their Touhy Requests and further move this Honorable Court for the entry of an order
Compelling the Attendance at Deposition of U.S. Park Service Employees and would respectfully
show the Court as follows:
Background
This case arises from the death of 17 year old Michael Sclawy-Adelman during a 20 mile
Boy Scout of America merit badge hike on May 9, 2009 in the Big Cypress Preserve. The hike was
being led by Scout Masters Howard Crompton and Andrew Schmidt. After Michael exhibited a
progression of continually worsening heat symptoms, the leaders stopped to rest at a clearing at
approximately the 15-mile point of the hike. Approximately 1½ hours later, Michael stopped
breathing and was unable to be resuscitated, following which a 911 call was eventually made.
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According to the Collier County Medical Examiner, the probable cause of Michael’s death was heat
stroke as temperatures reached 100 degrees in the Preserve during the course of the hike, as
indicated in the National Park Service [hereinafter “NPS”] Report.
Four Park Service Rangers participated in a formal investigation into the circumstances
surrounding Michael’s death. This investigation included interviews with the two Scout Leaders
(Crompton and Schmidt), the compilation of weather data for the Preserve, various observations
and findings of the Rangers and other related matters. As part of their investigation, the Rangers
also downloaded Crompton’s GPS, which he had bought on the hike and then prepared a map with
selected coordinates tracing the progress of the hike. A copy of the relevant portions of the NPS
Report, which was originally produced in response to a Freedom of Information Act request, is
attached hereto as Exhibit “1.” The conclusion of the NPS as reflected in its Report was that the
primary cause of Michael’s death was due to the “heat” and that contributing factors, included
“errors in judgment” and “insufficient equipment [and] experience.”
During the course of discovery in this case, the Defendants Crompton and Schmidt have
denied making a number of significant statements concerning the events occurring during the hike,
which are attributed to them by the Rangers in their Report. They have also challenged other
portions of the Report, such as the weather data showing the extreme heat in the Preserve, while
also contesting the admissibility of significant portions of the report.
In addition, the Defendants have also formally plead the U.S. Park Service as a Fabre
defendant in their Answers, contending that the NPS was negligent in issuing a permit to use the trail
on the day of Michael’s death, by failing to warn the Scouts of the environmental conditions on the
trail, in failing to timely respond to the 911 emergency call following Michael’s collapse and by
“tamper[ing] with [Cromptons] GPS device and removing valuable data from the GPS device when
they downloaded information from it.” See Amended Answer of Crompton and Schmidt attached
as Exhibit “2” hereto.
Touhy Requests
Pursuant to the provisions of 43 C.F.R. §2.80 et seq., the Plaintiffs made an initial formal
“Touhy request” on February 7, 2011 upon the Department of Interior [hereinafter “DOI”] and NPS

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to depose the four Park Rangers who had performed the investigation into Michael’s death1: (1)
Chief Ranger Edward Clark, (2) Ranger Gary Shreffler, (3) Ranger Wynn Carney and (4) Ranger
Drew Gilmour. See Exhibit “3" hereto. As reflected by both the Plaintiffs’ original and
supplemental Touhy requests, the purpose of the requested depositions was limited to inquiry of a
factual nature regarding the actions taken by the Rangers, their observations and the statements made
to them as well as the circumstances surrounding the GPS download. The DOI was expressly
advised that the depositions were not intended to seek expert testimony or conclusions.2 The Touhy
requests further indicated that the depositions would be used to preserve the Ranger’s testimony, so
that they would not need to be called to testify to trial. Nevertheless, on March 1, 2011 the DOI sent
a letter denying the Plaintiffs’ original request, which is attached as Exhibit “4" hereto.
The gist of the DOI’s denial of the Plaintiffs’ initial request was that the NPS Report was
sufficient to provide the information sought by the Plaintiffs, since it constituted a “complete record
of the incident and our subsequent investigation, and included detailed statements of each employee
who directly participated in response and investigation.” The DOI’s response also indicated that it
was concerned that allowing the witnesses to testify
“could detrimentally effect the Preserve’s relationship with at least one
Defendant, the Boy Scouts of America, with which National Park Service has
partnered in the past and hopes to continue to do so in the future.”
See Exhibit “4.” The DOI further asserted that the affirmative defenses naming the NPS as a Fabre
defendant raised by the Defendants was without merit as “the performance of the Preserve
employees in connection with the incident was beyond reproach,” thereby, making it unnecessary
for them to produce testimony in order to respond to the matters asserted in the affirmative defenses.
See Exhibit “4.”
On March 4, 2011, the Plaintiffs supplemented their previously filed Touhy request to point
out a number of matters, which were overlooked by the DOI in its letter of March 1, 2011 and to

1

A request was also made to depose EMT Armando Pena, who had attended to Michael
as part of the emergency helicopter response. It was subsequently learned, however, that Mr.
Pena was no longer employed by the U.S. Park Service.
2

The DOI conceded in its denial that based upon the Plaintiff’s Touhy request “these
individuals are not being asked to testify as expert witnesses . . .” See Exhibit “4,” p.1.
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further provide additional information based upon new developments that had occurred, subsequent
to the filing of the initial request. A copy of this supplement is attached as Exhibit “5" hereto.
Pursuant to discussions with counsel representing the DOI and NPS, additional supplements were
provided by written communications dated March 9, 2011, March 11, 2011 and March 21, 2011,
copies of which are attached as Composite Exhibit “6.”
These written supplements to the initial Touhy request,3 which were solicited by the DOI’s
counsel, set forth a number of new matters, which had arisen following the service of the initial
Touhy request. One of the more significant new developments was the fact that during a subsequent
court ordered download of Crompton’s GPS by Defendant’s expert, it was determined that all of the
time data from the tracking of the hike was now “missing” and no longer on the GPS. See Exhibit
“7.” The Rangers had taken possession of Crompton’s GPS immediately following the hike and
subsequently downloaded the data, which should have identified the longitude, latitude, time and
altitude for each tracking point.
Although the NPS did not produce the downloaded data itself pursuant to the parties original
FOIA requests, it did produce as part of its Report, several maps of the Preserve with the GPS
tracking points superimposed on the maps.4 See Exhibit “1.” Because of the volume of tracking
points identified on the maps, the NPS only posted the data (longitude, latitude and time) for several
selected points that were most relevant. Nevertheless, the fact that the NPS maps contained some
time data clearly demonstrated that time data was obtained during their download.
At the time of the recent Court ordered download, however, all of the time data was gone.5

3

In these supplements, the Plaintiffs also offered to work with the DOI to reduce the
number of employees called and to otherwise limit any inconvenience to NPS.
4

The tracking points are represented by the blue dots on the maps, which form part of
Exhibit “1.”
5

On March 17, 2011, Magistrate McAliley entered an order granting the Plaintiff’s
Motion to Compel a report from Forensic Laboratory, the Defendant’s expert which performed
the Court ordered download and to thereafter depose the appropriate representative of the
company. [D.E.169]. The Court ordered report, which has just been produced, does not address
the issue of the missing time data, however, the deposition of Defendant’s expert is scheduled for
June 3, 2011. In a prior joint conference between Mr. Daniel, the expert, and counsel for both
the Plaintiffs and Defendants, he confirmed that there was no time data on Crompton’s GPS at
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Subsequent to the NPS download, the GPS had been returned to Crompton and/or his counsel, who
are now claiming that the NPS did something in the course of their download to “tamper with the
GPS” and/or otherwise spoliate evidence. See Exhibit “2.” Of course, none of these issues were
in any way addressed by the NPS report.
On April 14, 2011, the NPS performed a download of the data saved on its computer from
its original download of Crompton’s GPS in the presence of counsel for all of the parties. The NPS
produced a CD disk to all of the parties containing a record of all of the downloaded data from this
joint inspection, which shows the time data as well as the longitude and latitude associated with each
tracking point.
A second new development reported in these supplements arose as a result of the depositions
of Crompton and Schmidt, which occurred following the original Touhy request. In his deposition,
Schmidt testified that on the morning of the hike, he had obtained a permit for the group to hike in
the Big Cypress Preserve after purportedly talking to two Rangers and allegedly discussing the
group’s intention to conduct a 20 mile Merit Badge hike that morning. See excerpts of Schmidt’s
depositions, attached as Exhibit “8" hereto, pages 91-100. This so-called permit and Schmidt’s
alleged conversation with the Rangers forms a significant portion of the defendants Fabre
Affirmative Defense naming the NPS. Neither the issuance of the permit nor the reported
conversation with the Rangers is in any manner discussed by the NPS Report.6
In his deposition, the Defendant Crompton was “extremely critical” of the emergency
response from the NPS following his call for assistance, and claimed that it cost Michael any chance
of survival. See excerpts of Crompton’s depositions, attached as Exhibit “9" hereto, pages 82-6.
These claims were also included as part of the “Fabre” defense subsequently asserted by Crompton
and Schmidt in their Amended Answer filed on March 21, 2011. See Exhibit “2.” In addition, both

the time of his download.
6

During the April 14, 2001 meeting between the NPS and counsel for the parties, the
NPS produced a sealed evidence bag containing what the Rangers verbally indicated were all of
the permits that were executed on May 9, 2009. The permit allegedly executed by Schmidt was
not included therewith. Nevertheless, in the absence of testimony establishing that the Rangers
had checked the permit boxes, retained all of the permits for that day and preserved them up until
the time of the inspection, there is a lack of context to explain the significance of this evidence.
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Crompton and Schmidt accused the Park Rangers of failing to properly investigate the incident and
in inaccurately reporting crucial verbal statements, which they made during their investigation. See
deposition excerpts attached as Exhibit “8" and “9.” Once again, none of these issues were
addressed in the NPS Report.
On March 25, 2011, the DOI denied the Plaintiffs’ Supplemental Request. A copy of the
correspondence is attached as Exhibit “10" hereto. Although recognizing the validity of a number
of points and arguments raised by the Plaintiffs in challenging the DOI’s original analysis of the
Touhy request, the DOI essentially concluded that while factor 4 was no longer implicated, based
upon factors 1, 5, 6 and 7, the request would again be denied. The basis for these denials are
discussed in more detail below.
Throughout this matter, counsel for the Plaintiff has had numerous discussions with counsel
for the DOI to try to tailor the request for testimony, so that it would be mutually agreeable. In one
final effort, the Plaintiffs again supplemented their Touhy request on April 28, 2011 to further reduce
the number of NPS employees to be deposed and to limit the potential areas of inquiry. A copy of
this Supplement is attached as Exhibit “11.” In response to the DOI’s verbal denial of this last
request, this motion was prepared and finalized because of the running of the discovery period in
this case. Literally, as the Plaintiff was preparing to file this motion, it received a written denial
from the DOI, which is attached as Exhibit “14.” Although this denial concedes that some of the
information requested “is not in any record,” it denies the Plaintiff’s supplemental Touhy request,
with the exception of agreeing to provide an affidavit regarding the GPS download process.7
Accordingly, the DOI’s latest letter does not substantially change the issues discussed herein, other
than to belatedly recognize the validity of a number of the Plaintiff’s arguments.
Following the DOI’s refusal to voluntarily produce its employers for deposition, the
Plaintiffs have issued the subpoenas for the depositions of two of the four Rangers whose testimony
was originally requested and a third who was subsequently identified as having been involved in the

7

The denial letter, dated June 1, 2011 also agrees to provide an affidavit regarding an
unrelated request for information regarding a sign at the beginning of the trail.
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download from Mr. Crompton’s GPS.8
Standard of Review
Although departments of the federal government are permitted to promulgate regulations
regarding employee testimony in civil litigation, Touhy v. Ragen, 340 U.S. 462 (1951), the Eleventh
Circuit has concluded that such regulations may clash with the “Federal Rules of Civil Procedure
[which] strongly favor full discovery whenever possible.” Moore v. Armour Pharmaceutical Co.,
927 F.2d 1194 (11th Cir. 1991). Accordingly, the Eleventh Circuit has concluded that an agency
“cannot put a blanket ban on all requests for testimony.” Moore, 927 F.2d at 1198.
In striking the appropriate balance between the judicial system’s need for full discovery and
the agency’s need to conduct its business, the Eleventh Circuit has looked to both the provisions of
Federal Rule of Civil Procedure 45 (b) and 5 U.S.C §706. In this regard, the Eleventh Circuit has
noted that under Rule 45(b) a court is empowered to “quash or modify [a] subpoena if it is
unreasonable and oppressive.” 5 U.S.C §706 sets forth a number of grounds upon which an
agency’s action can be overturned, including where it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” See 5 U.S.C §706 (2)(A). Based upon facts
before it, the Eleventh Circuit concluded in Moore that the agency’s denial of the Touhy request was
supported under the circumstances. Moore, 727 F.2d at 1198. Nevertheless, the Court’s opinion
makes it clear that such agency’s denials may not be sustained, where they are unsupported by the
evidence and facts in a particular case.
In reversing the DOI’s application of its Touhy rules, the Ninth Circuit in Exxon Shipping
Co. v. United States Department of Interior, 34 F.3d 774 (9th Cir. 1994) expressly relied upon the
Eleventh Circuit’s balancing standard set forth in Moore. The Ninth Circuit concluded that

8

The Plaintiffs have taken this multi-faceted approached, because of the lack of clarity
regarding the precise procedures to be used in challenging an agency’s denial of a Touhy request.
For example, in Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991), the
agency’s action was analyzed in the context of a motion to quash a subpoena, which had been
issued after the agency’s refusal to voluntarily produce its employee for deposition. In Boca
Raton Community Hospital Inc. v. Tenet Healthcare Corp., 2006 WL 1523234 (S.D. Fla.), the
issue arose on an “appeal” of the agency’s denial addressed to the District Court in which the
underlying case was pending. The DOI’s regulations, as set forth in 43 C.F.R. §2.80-§2.90, do
not set forth any procedures for review of its actions in response to a Touhy request.
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Section 301 does not, by its own force, authorize federal agency heads to
withhold evidence sought under a valid federal court subpoena.
34 F.3d at 777. The Ninth Circuit went on to further hold that
neither the statute’s text, its legislative history, nor Supreme Court case law
supports the governments argument that §301 authorizes agency heads to
withhold documents or testimony from federal courts.
34 F.3d at 778 (limitations on state court subpoena and contempt powers stem from the sovereign
immunity of the United States and from the Supremacy Clause, which limitations do not apply when
a federal court exercises its subpoena power against federal officials).
In addition to discussing the Constitutional questions raised by the DOI’s analysis, the Ninth
Circuit went on to hold that
“The government’s argument would also violate the fundamental principle
that “‘the public. . . has a right to every man’s evidence.’”
34 F.3d at 779.
Although recognizing the broad scope of the full discovery allowed by the Federal Rules of
Civil Procedure, the Ninth Circuit also acknowledged that the government had legitimate concerns
regarding the use of its employee resources. As a result, the Ninth Circuit adopted the balancing test
utilized by the Eleventh Circuit in Moore, concluding
Section 301 does not create an independent privilege to withhold government
information or shield federal employees from valid subpoenas. Rather, the
district courts should apply the federal rules of discovery when deciding on
a discovery request made against government agencies, whether or not the
United States is a party to the underlying action. Under the balancing test
authorized by the rules, courts can ensure that the unique interests of the
government are adequately considered.
34 F.3d at 780 (emphasis added). Also see Watts v. S.E.C., 48 2 F.2d 501 (D.C. Cir. 2007)(adopting
the balancing tests enunciated in Moore and Exxon).
Despite the standard enunciated by the Eleventh Circuit in determining the propriety of
Touhy requests, it is clear that the DOI follows its own contradictory standard. In its original denial,
the DOI stated:
“It is the policy of the Department of Interior (Department), of which NPS
is an agency, to not permit its employees to testify either in deposition or at

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trial, in litigation to which they United States is not a party.” See
Exhibit “4,” p. 1.
Although, the DOI goes on to indicate that in “very limited circumstances the Department will vary
from this policy,” it is obvious from the responses to the Plaintiff’s requests in this case, that this is
mere window dressing and that there is no real legitimate consideration of even the DOI’s own
stated criteria.
Department of Interior Touhy Criteria
The DOI has adopted nine factors for consideration in responding to Touhy requests, which
are set forth in 43 C.F.R. §2.88. These factors are:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)

The ability to obtain the testimony from another source.
The appropriateness of the testimony under relevant federal law.
The effect on the National Park Services’ ability to conduct its official
business unimpeded.
The effect on the National Park Services’ ability to maintain impartiality in
conducting its business.
The effect on the National Park Services’ ability to minimize the possibility
that it will become involved in issues that are not related to its mission and
programs.
The effect on the National Park Services ability to avoid spending public
employees time for private purposes.
The effect on the National Park Services’ ability to avoid the negative
cumulative effect of granting similar requests.
The effect on the National Park Services’ ability to insure that privileged or
protected matters remain confidential.
The effect on the National Park Services’ ability to avoid an undue burden
on it.

See also Exhibit “4" hereto.
In its initial denial of the Plaintiffs Touhy request, the NPS concluded that factors 2, 3, 8 and
9 were not implicated by the Plaintiffs’ request and accordingly, were not relied upon in its denial.
See Exhibit “4” hereto. In its denial of the Plaintiff’s Supplemental Touhy request, the DOI backed
off of its reliance on factor number 4, concluding that it “does not weigh either for or against
allowing the employees testimony.” See Exhibit “10" hereto. Although the Plaintiffs will focus
their argument on factors 1, 5, 6 and 7, they also believe that factor number 4 deserves some
mention, particularly as it relates to the motivation of the DOI in denying the Plaintiffs’ request.

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Factor 1 - Ability to Obtain the Testimony from Another Source
In reviewing the DOI’s analysis of this factor, there are two totally distinct areas of proposed
testimony. One relates to matters that are clearly not mentioned or discussed in any manner in the
Park Service Report. The other area involves information that is contained within the Park Service
Report, but has been attacked by Crompton and Schmidt as being inaccurate or by their counsel as
being inadmissible. Since each involves different considerations, they will be discussed separately.
A. Areas Not Addressed by NPS Report
The areas of proposed testimony not addressed in any manner in the Park Service Report
include:
(1) The GPS download and claimed spoliation of evidence.
As previously discussed, the Rangers took possession of Crompton’s GPS immediately
following the hike and subsequently downloaded the data, which should have identified the
longitude, latitude, time and altitude for each tracking point. In its report, the NPS did not produce
the downloaded data, but only several maps of the Preserve with the GPS tracking points
superimposed on the maps. Due to the volume of tracking points identified on the maps, the NPS
only posted the data (longitude, latitude, time) for several selected points that were most relevant.
Nevertheless, the fact that the NPS maps contained some time data, clearly shows that time data was
obtained during their download.
Following the NPS download, it eventually returned the GPS to Crompton and/or his
attorneys. Subsequently, during a court ordered download of the data conducted in Raleigh, North
Carolina by the Defendant’s expert Lars Daniel, all of the “time data” was gone. While the
download produced data for the longitude, latitude and altitude, there was absolutely no “time data”
for the track of the GPS covering the subject hike.
In the Amended Answer subsequently filed by Crompton and Schmidt, it is averred that:
The NPS tampered with [Crompton’s] GPS device and removed valuable
data from the GPS device when they downloaded information from it. This
was an unauthorized destruction and spoliation of evidence.
See Exhibit 2, Second Affirmative Defense. None of these issues are addressed in any manner by
the Park Service Report.
As discussed above, on April 14, 2011, the NPS performed a download of data from its
computer, which counsel for the DOI indicated contained the original downloaded GPS information
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obtained by the Rangers. Copies of the data from this download were produced by CD to counsel
for the parties who were present at the time. Nevertheless, the CDs were unaccompanied by any
type of verification, documentation or authentication.
The data received from the NPS on April 14, 2011 shows the missing “time data,” which was
not present on the GPS at the time that it was downloaded by Defendant’s expert. Nevertheless,
there is no explanation presented by the NPS as to where and how the “time data” disappeared
leading up to the court ordered download in Raleigh. Accordingly, the parties are entitled to
determine the reasons behind the missing data and whether there have been any attempts by any of
the parties to spoliate evidence.
(2) The Park Permit and the Rangers’ reported discussions with Schmidt.
Another area on which the NPS Report is silent is the issuance of the so-called Park Permit
to Schmidt and the Rangers reported discussions with him at the beginning of the hike. As noted
above, the Defendants have formally plead the U.S. Park Service as a Fabre defendant in their
Answers, contending that the Park Rangers were negligent in issuing a permit to use the trail on the
day of Michael’s death and by failing to warn the Scouts of the environmental conditions on the
trail. See Exhibit “2" hereto. The NPS report does not address either the “permit” issue, nor the
purported discussions between Schmidt and the Park Rangers in any manner.
Although the DOI has made statements in its denial letter (See Exhibit 10), which would tend
to contradict these issues, such statements contained in a letter obviously do not arise to the level
of actual evidence. In order to produce evidence to respond to these claims, the Plaintiffs obviously
need the opportunity to depose the Park Rangers involved on these specific points.
For example, during the April 14, 2011 meeting between the NPS and counsel for all the
parties, the Park Rangers produced a “permit” for the day of the hike, which it was verbally
represented constituted the only permit executed that day. Also see Exhibit 10. The permit
produced by the Rangers had been executed by another group and not by Schmidt or Crompton.
Likewise, the Rangers produced a hiking “sign in sheet” for the trail, which although executed by
the group filling out the permit, was not filled out by Schmidt and Crompton.
In order to establish the significance of these papers, the Plaintiffs need to be able to present
the testimony of the Park Service explaining:
A description of the backcountry use permit process at the Big Cypress
Preserve, the purpose for requesting the execution of such permits by hikers,
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the Park Services retention of all backcountry use hiking permits which had
been filled out and deposited on May 9, 2009 at the Big Cypress Preserve and
their storage and retention up until the date of the inspection by the parties
on April 14, 2011, the location in storage of the “hiking log” for the Big
Cypress Preserve for May 9, 2011 and its storage and retention from the date
of Michael’s death up until the inspection by the parties on April 14, 2011.
See Supplement Touhy request Exhibit “11.”
The importance of these matters also goes beyond the simple issue of the so-called Park
Permit, but to the credibility of the Defendants Crompton and Schmidt as well as whether there have
been misrepresentations made to the Court.
(3) The timeliness and appropriateness of the NPS emergency response.
As part of the Defendants’ Fabre affirmative defense, the Defendants Crompton and Schmidt
have asserted that the emergency response to Crompton’s belated 911 call for assistance was
untimely, inadequate and negligent and that such actions “caused or contributed the cause of death
of Michael Adelman.” See Exhibit “2.” Since the NPS Report does not address these issues in any
fashion, it is obviously extremely important for the parties to be able to obtain testimony from the
Park Rangers regarding the circumstances surrounding the 911 call, the efforts which were taken
to locate Michael and whether the Rangers in fact acted appropriately. The conclusion of the DOI
in its denial letter that “it is our contention that the performance of the Preserve employees in
connection with the incident was beyond reproach,” hardly constitutes admissible evidence that can
be used at trial. See Exhibit “4,” p.2.
B. Areas in Report Challenged By Defendants
The second area of testimony relates to statements and/or other factual matters referred to
in the Park Service Report, but which have been challenged by the Defendants based upon a claimed
lack of proper predicate. The Plaintiff seek to depose the Rangers to supply any necessary predicate
to meet these objections. As to these matters, the DOI expresses the rather naive view that the NPS
report
“contain[s] the same evidence that our employees would give at the
deposition. They represent the Preserves complete record of the incident and
our subsequent investigations, and include detailed statements of each
employee who directly participated in the response and investigation. We do
not believe that anything the employees could say at deposition could add to
these records.”
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See Exhibit “4" hereto.
As pointed out in the Plaintiffs’ Supplemental Touhy request, this statement is
unsubstantiated by either the law or the facts applicable to this matter. There is in fact considerable
critical information and evidence in this case, which is exclusively within the possession of the NPS
and Park Rangers that is not addressed or even mentioned in the Park Service Report. Therefore,
even to the extent that the entire Park Service Report is considered to be admissible, it fails to
address a number of critical issues for which there is simply no alternative testimony or evidence
available to the Plaintiff and other parties.
(1) Weather Data
One such highly critical issue relates to the weather data produced by the NPS as part of its
Report. See Exhibit “1.” This data, which shows rising temperatures throughout the day reaching
100 degrees at 2:00 p.m. is contained on a sheet of paper without any additional information as to
its source or derivation. Defendant’s counsel have made it clear in depositions that they intend to
object to admissibility of this data and other portions of the Report. Accordingly, the Plaintiff’s
need to question the Rangers to authenticate and explain the source of this single sheet of paper.
(2) Statements Challenged by Schmidt and Crompton
Critical statements which were attributed by the NPS report to the Defendants Crompton and
Schmidt have been denied by the Defendants in their depositions taken on March 7 and 8th of this
year. Although the Park Rangers took a brief written statement of Crompton, the great majority of
statements contained in their report were from verbal conversations with the two Scout Leaders.
Both Crompton and Schmidt have complained in their depositions that the Park Rangers did not take
notes or otherwise contemporaneously record their verbal statements. As such, they have challenged
their accuracy. See excerpts from the deposition of Howard Crompton attached as Exhibit “8"
hereto.
The NPS Report is completely silent as to these issues. Other than the single brief written
statement taken of the Defendant Crompton, there is no indication as to whether the Rangers took
notes, recorded the statements or otherwise verified the information provided. Accordingly, this
information can only be supplied by the direct testimony of the Park Rangers.
Specifically, the following statements attributed to Crompton and Schmidt and the NPS
Report have been challenged by the Defendants on those grounds:
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1.

Ranger Wynn Carney indicates in his Supplemental Narrative that
“H. Crompton stated that at approximately 1300 hours they
made it to Ten Mile Camp [the half way point] and stopped
for lunch, but none of the hikers ate much because they were
all extremely hot. I asked H. Crompton how much food
Sclawy-Adelman ate and he advised that he did not know.”

Ranger Gary Shreffler likewise indicated in his Narrative that
“Crompton replied that they stopped for lunch around 10 Mile Camp but
everyone was really hot and didn’t want to eat anything.”
On his deposition, Crompton denied making these statements and claimed that he observed
Michael eat during this time. See Exhibit “9," pp. 117-125. The statements contained in the Report
are significant, since they clearly show that Michael was beginning to show signs of heat exhaustion
and heat stroke, which continued to progress until his death.
2.

Gary Shreffler reported in his Narrative that Crompton had advised him that

after the group had finished lunch, they began the hike back toward the beginning of the trail after
which Michael
“had begun to stumble some so they stopped to drink some water and
rest.”
See Exhibit 1. On his deposition, Schmidt denied that Michael began to stumble or become dizzy
before they had stopped at the clearing. See Exhibit 8, pp. 168-170. Once again, this is significant,
since stumbling, dizziness and incoherence are all signs and symptoms of progressively worsening
heat stroke.
3.

In Wynn Carney’s Supplemental Narrative, he indicates that Schmidt advised him

that
“The reason he had separated from the party was to get more water
because they were out. . . Schmidt appeared to be exhausted, so I
gave him some water. I asked Schmidt where Sclawy- Adelman and
H. Crompton were located. Schmidt advised me that they were on
the Florida Trail, just south of mile marker 12 . . . I asked Schmidt the
condition of Sclawy-Adelman when [he] the part of the incident area
and he advised that Sclawy-Adelman was overheated, breathing
(unresponsive).
See Exhibit “1.” On deposition, however, Schmidt expressly denied making these statements. See
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Case NO.: 10-CV-22236-ASG/GOODMAN

Exhibit “8,” pages 204-10. Schmidt also denied having left Crompton and Michael in order to get
assistance, since he testified that he did not feel that Michael was in any type of life threatening
emergency condition at the time. See Exhibit 8, pp. 187-194. In addition, the statement that Michael
was just south of mile marker 12, rather than at mile marker 15 as he testified on his deposition, goes
to the issue of whether it was Crompton and Schmidt who were responsible for any dealings by
misleading to the rescuers as to his true location.
4.

In Wynn Carney’s Supplemental Narrative, he further indicated:
I asked H. Crompton and Schmidt to tell me what happened on the
Trail when they noticed Sclawy-Adelman showing signs of
exhaustion. H. Crompton advised me that approximately 15:30 hours
and near mile 15 of the hike, Sclawy-Adelman began stumbling. H.
Crompton stated that he advised Sclawy-Adelman to sit down and
rest giving him water to drink, a damp towel to cool him off. H.
Crompton advised that he told [the other scouts] to continue the hike
down the trail to get more water back at Oasis.

See Exhibit “1.” Both Crompton and Schmidt, however, have denied making these statements to the
Rangers. Instead, they have testified that the two other Scouts, Kris Leon and Chase Crompton, the
Defendant’s son, were getting bored and asked if they could finish the hike on their own. Schmidt
and Crompton both testified that they told the Scouts that they could go ahead on their own, even
though they were only 12 or 14 years of age and were out in the middle of the great Cypress
Preserve, where none of them had ever hiked before. See Exhibit 8, pp. 172-192.
C. Inability to Obtain Testimony from Other Sources
It is clear from the foregoing that the Plaintiff will be unable to obtain testimony on these
important issues from other sources. Michael is dead. The two adult leaders are both Defendants
in this case. One of the two surviving Scouts is the son of one of these Defendants. The only
remaining Scout, who is still active in the Troop is clearly an adverse witness. Not only did he show
up at his deposition with defense counsel in tow, but has met repeatedly with Defendants’ counsel,
while refusing to meet with Plaintiff’s counsel. Perhaps even more significantly, however, under
his version of the events given during his deposition, he and Chase Crompton left the Group at mile
13 of the hike, after Michael had wandered off the trail into the overgrown bush9 and claims not to

9

The Medical Examiner testified that Michael’s body was filled with numerous
scratches and cuts, consistent with having wandered off of the trail into the dense surrounding
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Case NO.: 10-CV-22236-ASG/GOODMAN

have witnessed any of the following events thereafter. See excerpts of deposition of Kris Leon,
Exhibit “12, pp. 87-100.
Throughout this rather lengthy process, the Plaintiff has repeatedly pointed out to the DOI
the need to obtain specific testimony and its unavailability from other sources. See Exhibits 3, 5,
6 and 11. The DOI’s response has been not only naive and unrealistic, but completely fanciful and
irrational. Instead of referring to facts and evidence or even making a token effort at responding to
the specific points raised by the Plaintiff, the DOI has merely set forth platitudes, such as its
“contention that the performance of the Preserve employees in connection with the incident was
beyond reproach,” as its so-called legal analysis. See Exhibit 4.
Such a lack of grasp of the legal system is even more apparent in the DOI’s second written
denial, Exhibit 10. Although acknowledging, on page 3, that:
you have, in turn, suggested that the original records did not adequately
address Defendants’ allegations of negligence on the part of NPS and
concerns about spoliation of the GPS evidence.
To the extent that this might be true, we believe that the additional records
described above-the standard operating procedures for permit issuance, the
permit, the trail head log and the GPS download-contains sufficient factual
information to address these allegations.
. . . as to answering allegations that the response of NPS employees was
unreasonable, or that the NPS misrepresented statements of individuals
Defendants during the investigation of the incident, we do not see how the
testimony of the individuals would be more valuable in the records
themselves.
Contrary to the DOI statements, the so-called “trail permit issuance procedures,” which the
DOI produced do nothing to answer any of these questions.
In fact, the only mention they contain of hiking permits are:
Section 1.5
. . . (a)(2)(a) All back country users, including ORV users, hunters, hikers,
bicyclist and boaters must possess a backcountry use permit when in the
backcountry.
brush. Both the Scouts and leaders have testified that the trail was well cleared and that one
would not have encountered any brush, which would have resulted in cuts or scratches, so long
as one stayed on it.
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Case NO.: 10-CV-22236-ASG/GOODMAN

Section 1.6
. . . the following activities require a permit . . .
. . . Backcountry permit.
See Exhibit 13.
Likewise, while the recent GPS data provided by the Park Service contains the information
which was “missing” from the prior Court ordered download, it does nothing whatsoever to explain
when, how and where the data taken directly from Crompton’s GPS “went missing,” or to
authenticate it.
Factor 5 - Effect on NPS Ability to Minimize the Possibility of
Involvement on Issues Unrelated to Mission and Programs
Although this litigation involves a dispute between private parties, each of the Defendant’s
have named the National Park Service as a Fabre Defendant, accusing it of negligence in issuing a
permit to use the trail on the day of Michael’s death, failing to warn the Scouts of the environmental
conditions on the trail, failing to timely respond to the 911 emergency call following Michael’s
collapse and by tampering with Crompton’s GPS and removing valuable data from it. See Exhibit
“2.”
Accordingly, the Defendants have not only named the National Park Service as a Fabre
Defendant, but challenged the ability and competency of its Rangers to perform their core functions.
Assuming that the Court allows the Fabre defenses to remain at the time of trial, the jury will
thereafter be asked to render a written verdict, which will pass upon the competence and integrity
of the Park Rangers in the performance of their official job duties. The mere fact that the DOI
blighly “contend[s] that the performance of the Preserve employees in connection with the incident
was beyond reproach,” is meaningless and of no evidentiary value. Regardless of the DOI’s
“contention,” the jury will be asked to analyze the actual evidence to determine whether the Rangers
performed their official job duties with competence and integrity. At the end of the trial, if the jury
should attribute any negligence for Michael’s death to the NPS, this will constitute a publicized
public proclamation that the Rangers did not perform their job duties and responsibilities
competently and properly. The DOI’s unsupported statement that the proposed testimony is not
related to the mission and programs of the NPS is therefore completely without foundation in fact,
law or logic.
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Case NO.: 10-CV-22236-ASG/GOODMAN

In further assessing this factor, it is important to keep in mind that the NPS assumed the role
of investigating the facts surrounding this incident, which occurred on its property. The proposed
inquiry is therefore directly related to and limited to the specific obligations undertaken by the NPS
in investigating this accident. Thus, this is not a circumstance, such as in Moore, where the agency
was performing research on a scientific project and was sought to be called in to act as an expert in
litigation having nothing whatsoever to do with the agency’s work. Here, the NPS undertook the
obligation to investigation Michael’s death and the Plaintiff is only seeking to inquire into the
results of this investigation, which was performed in the course and scope of their agency duties.
Factor 6 - Effect on NPS’ Ability to Avoid Spending Public
Employee’s Time for Private Purposes
As reflected in the Plaintiff’s final modified Touhy request, the Plaintiff has requested the
opportunity to depose three employees on very specific and extremely limited areas. See Exhibit
“11.” It is hard to imagine that each deposition could possibly last even several hours due to the
extremely limited scope of proposed inquiry. To further reduce the impact upon the NPS, the
Plaintiff has indicated in its Touhy requests that it will take the depositions at a time and place of the
Park Services’ selection and that the purpose of the depositions will be to preserve the testimony for
trial, so that the witnesses will not be called upon again to testify. The Plaintiff has even offered to
pay for the Rangers time in testifying. Therefore, the impact on the NPS is extremely slight at most.
In fact, the negligible nature of this impact is evidenced by the DOI’s own analysis. Factor
3 consists of “the effect on the National Park Services’ ability to conduct its official business
unimpeded.” Under its own analysis, the NPS concluded that this factor was not even implicated
by the Plaintiff’s request.
Similarly, Factor 9 of the DOI criteria is an analysis of “the effect on the National Park
Services’ ability to avoid an undue burden on it.” Once again, in performing its analysis, the DOI
has concluded that this factor would not be impacted by the Plaintiff’s request. Therefore, the DOI
has recognized as part of its own analysis that the Plaintiff’s request would not pose an undue burden
on it or in any way impede its ability to conduct its official business. Accordingly, the time which
would be spent by employees for private purposes is negligible at most and by the DOI’s own
analysis have no impact on the NPS.

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Case NO.: 10-CV-22236-ASG/GOODMAN

Moreover, as discussed under Factor 5, the proposed testimony also relates to the NPS’
mission and programs. Therefore, not only will the ultimate time be extremely negligible, but to the
extent that it supports the NPS’ mission and programs, it cannot even be said to have a purely private
purpose.
Factor 7 - Effect on NPS Ability to Avoid Negative
Cumulative Effect of Granting Similar Request
Unlike the situation in Moore, which involved claims of defective medications used to treat
what the Court described as “an epidemic,” this case involves a single, isolated, specific, discrete
event. There has not even been a suggestion by the DOI that similar events are occurring either at
Big Cypress Preserve or at its other parks. There have been simply no facts presented to support the
conclusion that by providing limited testimony in an isolated case of this nature will somehow
subject the NPS to a barrage of requests for its employees to testify. Therefore, the conclusion that
there will be “similar requests in the future,” “the cumulative effect of which would be significant”
is purely illusory and without any factual basis.
Factor 4
Initially, the Park Service indicated in its original denial that it was concerned that its
“relationship with at least one Defendant, The Boy Scouts of America, with which NPS was
partnered in the past and hope to continue to do so in the future” would be detrimentally affected.
This concern is totally misplaced. Every citizen in our country has a right to a fair trial,
which requires the ability to present all of the evidence in a case that is relevant and admissible
under the evidentiary rules. They should not be denied that right because of a relationship between
one of the parties and a witness. This is even more true, when the witness is an agency of the United
States Government, which is required to act on behalf of all of the citizens, and not merely a selected
few.
Although the DOI subsequently retreated from this position when they were called out on
it, the original position which it took is clearly relevant to its motivation in denying the Plaintiff’s
request.
Conclusion
Regardless of whether one utilizes the standards set forth in Federal Rule Civil Procedure
45 or 5 U.S.C. §706, it is clear that the DOI’s denial of the Plaintiff’s Touhy request must be
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Case NO.: 10-CV-22236-ASG/GOODMAN

reversed.
In this Circuit, an agency’s action is considered to be arbitrating and capricious, if the agency
relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so
impossible that it could not ascribed to a difference in view or the product
of agency expertise.
United States of America v. Walker, 2009 WL 2611522 (M.D. Ga. 2009)(overturning agency denial
of Touhy request)(quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d at 1257,
64 (11th Cir. 2009). As found by the Court in the Walker case, an agency’s “unsubstantiated and
subjective belief that [it’s employee] possess no relevant information [is] arbitrary and capricious,”
where there is clearly evidence before the Court to the contrary. The discretion afforded to agencies
in assessing Touhy factors does not mean that Courts are required to accept explanations for agency
decisions “that run counter to the evidence before the agency,” or are “implausible.” Walker, 2009
WL 2611522 at *3.
Additional Claim for Relief
Additionally, the Plaintiff moves this Honorable Court for the entry of an order finding that
the portions of the NPS report which are attached hereto as Exhibit “1" will be admissible into
evidence at the trial of this cause. The denial of this request would serve as a further ground for the
overruling of the DOI’s denial of the Plaintiff’s Touhy request.

Dated: June 2, 2011.
Respectfully submitted,

/s/ ROBERT D. PELTZ
ROBERT D. PELTZ (Fla. Bar No. 220418)

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Case NO.: 10-CV-22236-ASG/GOODMAN

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 2, 2011, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record identified on the attached Service List in the manner
specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some
other authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.

/s/ Robert D. Peltz
ROBERT D. PELTZ
E-mail: [e-mail]
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: [phone]
Facsimile:
[phone]
Counsel for Plaintiffs

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Case NO.: 10-CV-22236-ASG/GOODMAN

SERVICE LIST
IRA H. LEESFIELD
ROBERT D. PELTZ
E-mail: [e-mail]
[e-mail]
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: [phone]
Facsimile: 305-854-8266
Attorneys for the Plaintiffs

WILLIAM S. REESE
WILLIAM SUMMERS
KEVIN D. FRANZ
Email: [e-mail]
[e-mail]
[e-mail]
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, Florida 33134
Telephone: [phone]
Facsimile: 305-444-5504
Attorneys for Boys Scouts of America and
The South Florida Council, Inc.; Boy Scouts
of America

FREDERICK E. HASTY, III
Email:
[e-mail]
WICKER, SMITH, O’HARA, MCCOY, GRAHAM
& FORD, P.A.
2800 Ponce de Leon Blvd.
Suite 800
Coral Gables, Florida 33134
Telephone: [phone]
Facsimile: 305-441-1745

GREG M. GAEBE
Email: [e-mail]
GAEBE, MULLEN, ANTONELLI & DIMATTEO
420 South Dixie Highway, 3rd Floor
Coral Gables, FL 33146
305-667-0223
305-284-9844 – Fax
Attorneys for Plantation United Methodist
Church

Attorneys for Howard K. Crompton and
Andrew L. Schmidt
UBALDO J. PEREZ, JR., P.A.
Email:
[e-mail]
Law Office of Ubaldo J. Perez, Jr., Esq.
8181 NW 154th Street, Suite 210
Miami Lakes, Florida 33016
Telephone: [phone]
Facsimile: 305-722-8956

HORACE CLARK
Email: [e-mail]
MICHAEL STEVENS
Email: [e-mail]
Regional Solicitor
Office of the Regional Solicitor
Southeast Region
75 Spring Street, S.W., Suite 304
Atlanta, GA 30303

Co-Counsel for Howard K. Crompton

22