Adelman et al v. Boy Scouts of America et al

Filing 224

Plaintiff's MOTION for Reconsideration re 222 Order on Motion for Reconsideration or Modification of Order on Motion for Reconsideration by Howard Adelman, Judith Sclawy-Adelman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(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.
/
PLAINTIFFS’ MOTION FOR REHEARING OR MODIFICATION OF ORDER ON
MOTION FOR RECONSIDERATION
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 move this Honorable Court for the entry of an Order of Rehearing
on and/or Modification of its Order on Motion for Reconsideration [D.E. 222] and would
respectfully show the Court as follows:
1.

In the Court’s Order on Motion for Reconsideration [D.E. 222] the Court noted that

the billing records from T-Mobile showed that two text messages were sent to the decedent’s cell
phone on the date of the hike (May 9, 2009). This Court went on to further hold:
If it were possible, the Court would direct the telephone expert (Mr. Conrad)
to produce before the parties the substance of these two text messages and
only these two text messages). However, there does not appear to be any

technologically viable way to release only those two messages and not the
other 186 messages. In particular, the parties advised the Court at today’s
hearing that Mr. Conrad cannot determine which text messages were sent on
May 9, 2009.
[D.E. 222].
2.

The Court has made it clear that the basis for its conclusion is that the two text

messages sent on May 9, 2009 are discoverable, however, that the other text messages are not.
Nevertheless, the Court has indicated that it is unaware of any other “technologically viable way to
release only these two messages and not the other 186 messages.”
3.

In its conclusory paragraph, the Court further indicated that it was “willing to

evaluate any good faith motion advocating a different assessment.” It appears that Mr. Conrad’s
entire report was not attached to the Defendant Crompton’s Motion for Reconsideration, which is
why a technologically viable way to separate the two text messages was not clear at the time of the
Court’s Order. A complete copy is attached as Exhibit “2" hereto.
4.

Attached as Exhibit “1" is a copy of the phone record from T-Mobile, which was

discussed in the hearing this morning and which was attached to the Defendant’s Crompton’s
Motion for Consideration as an exhibit. This document shows that there were two text messages
sent to Michael’s phone on May 9, 2009. The T-Mobile records further indicate the phone numbers
of the callers from which these text messages originated: to wit (1) 954-529-2696 and (2) 954-5544668.1
5.

A copy of Mr. Conrad’s entire report is attached as Exhibit “2" hereto. As reflected

therein he was able to identify the phone numbers for each of the text messages, which were sent
to Michael’s phone, but not the dates. Therefore, while it may not be possible to limit the production

1

The Plaintiff has placed an arrow next to the two text messages on Exhibit “1" in
handwriting to assist the Court.

to only the two specific text messages sent on May 9, 2009, it is technologically possible to limit the
production to those text messages originating from the senders of those two text messages by having
Mr. Conrad produce only those text messages originating from the two phone numbers identified
above.
6.

In review of the report prepared by Mr. Conrad, this will reduce the number of text

messages to be produced to only six (6), which will include the two that were sent on May 9, 2009.2
7.

The Plaintiff would further note that it is not necessary to even produce any of the

texts to identify their senders, since that can be done by using the index contained at pages 4 and 5
of Mr. Conrad’s report, which lists a name and phone number.
8.

According to the invitation of the Court contained in its Order on Motion for

Reconsideration [D.E. 222] for the parties to propose alternative technologically feasible methods
of accomplishing the purposes set forth in the Court’s order, the Plaintiff moves this Honorable
Court to modify its order to require Mr. Conrad to produce only those text messages sent from phone
numbers 954-529-3696 and 954-554-4668, which will include the two sent on May 9, 2009.
Dated: June 7, 2011.
Respectfully submitted,

/s/ Robert D. Peltz
ROBERT D. PELTZ (Fla. Bar No. 220418)
E-mail: [e-mail]
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: [phone]
Facsimile:
[phone]
Counsel for Plaintiffs

2

The Plaintiff has indicated the 6 text messages originating from the senders of the two
text messages with handwritten arrows on Exhibit “2" to assist the Court.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 7, 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 or pro se parties identified on the Service List below 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

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

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
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