Adelman et al v. Boy Scouts of America et al
Filing
227
Renewed MOTION for Reconsideration re 222 Order on Motion for Reconsideration Rehearing or Modification and Accmopanying Memorandum of Law by Howard Adelman, Judith Sclawy-Adelman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Peltz, Robert) Modified Text on 6/9/2011 (ls).
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’ RENEWED MOTION FOR REHEARING OR MODIFICATION OF
ORDER ON MOTION FOR RECONSIDERATION AND
ACCOMPANYING MEMORANDUM OF LAW
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
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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 on June 7, 2011 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
to only the two specific text messages sent on May 9, 2009, it is technologically possible to limit the
1
The Plaintiff has placed an arrow next to the two text messages on Exhibit “1" in
handwriting to assist the Court.
2
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
as having sent text messages on May 9, 2009.
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.
In its Order, this Court further indicated that what was relevant was not the substance
of the text messages, which it has already reviewed in camera, but “the identity of witnesses who
communicated with the decedent on the day of his death.” The Plaintiff would further point out that
it is not necessary to even produce any of the texts to identify their senders, since that can be done
by using the “phonebook contacts” index contained at pages 4 and 5 of Mr. Conrad’s report, which
lists the name and phone number of Michael’s contacts.3 In fact, the first of the two texts (954-5293696) was sent by Sam Kent, a friend of Michaels. Four (4) other texts were sent from Sam’s phone
to Michael’s phone. See Exhibit “2.”
8.
The second text was sent by Howard Adelman (954-554-4668) to his son’s phone at
8:03 p.m. after he did not return from the hike as expected. Mr. Adelman testified to sending this
text on his deposition. See Exhibit “3" hereto. This is only text from Mr. Adelman reflected on Mr.
Conrad’s report.
9.
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
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.
3
The Plaintiff has indicated the two phone numbers on the Phone book Contacts Index
from Michael’s phone with handwritten arrows on Exhibit “2" to assist the Court.
3
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.
Memorandum of Law
As reflected in the Plaintiff’s Motion, this Honorable Court invited the parties in its order
on Motion for Reconsideration [D.E. 222] to propose alternative technologically feasible methods
of accomplishing the purposes set forth in the Court’s order. Pursuant to the Court’s authorization,
the Plaintiff has set forth a technologically feasible method of accomplishing purposes set forth in
the Court’s order, which are to provide the Defendants with the substance of the two texts which
were sent to the Plaintiff’s cell phone during the course of the hike, while at the same time
recognizing the concerns set forth by the Plaintiffs regarding the other texts.
Certification of Compliance with Local Rules and Magistrate’s Discovery Procedures
Undersigned counsel certifies that he has conferred directly with counsel for the Defendants
by phone on at least 3 occasions in a good faith effort to reach an agreement as to the issues set forth
in this motion prior to its filing. Although counsel have actually discussed the issues raised by this
motion in an effort to resolve this dispute as required by the Court’s Discovery Procedures, they
have been unable to reach an agreement on such matters.
Dated: June 9, 2011
Respectfully submitted
/s/ Robert D. Peltz
ROBERT D. PELTZ
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 9, 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 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.
By:
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/s/ Robert D. Peltz
ROBERT D. PELTZ (Fla. Bar No. 220418)
E-mail: peltz@leesfield.com
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: (305) 854-4900
Facsimile:
(305) 854-8266
Counsel for Plaintiffs
SERVICE LIST
IRA H. LEESFIELD
ROBERT D. PELTZ
E-mail: leesfield@leesfield.com
peltz@leesfield.com
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: 305-854-4900
Facsimile: 305-854-8266
Attorneys for the Plaintiffs
WILLIAM S. REESE
WILLIAM SUMMERS
KEVIN D. FRANZ
Email: wreese@lanereese.com
kfranz@lanereese.com
wsummers@lanereese.com
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, Florida 33134
Telephone: 305-444-4418
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:
fhasty@wickersmith.com
WICKER, SMITH, O’HARA, MCCOY, GRAHAM
& FORD, P.A.
2800 Ponce de Leon Blvd.
Suite 800
Coral Gables, Florida 33134
Telephone: 305-448-3939
Facsimile: 305-441-1745
GREG M. GAEBE
Email: ggaebe@gaebemullen.com
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., ESQ.
Email: uperez@uperezlaw.com
Law Office of Ubaldo J. Perez, Jr., P.A.
8181 NW 154th Street, Suite 210
Miami Lakes, FL 33016
Telephone: (305) 722-8954
Facsimile: (305) 722-8956
Co-Counsel for Howard K. Crompton
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