Adelman et al v. Boy Scouts of America et al

Filing 230

ORDER granting 227 Motion for Reconsideration. Signed by Magistrate Judge Jonathan Goodman on 6/15/2011. (eg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-22236-CIV-GOLD/GOODMAN

HOWARD ADELMAN and
JUDITY SCLAWY, as
Co-Personal Representatives of THE
ESTATE OF MICHAEL SCLAWY-ADELMEN,

Plaintiffs,
vs.
BOY SCOUTS OF AMERICA, et al
Defendants.
___________________________________/
ORDER ON PLAINTIFFS’ RENEWED MOTION FOR REHEARING
This Cause is before the Court in connection with Plaintiffs’ Renewed Motion for
Rehearing or Modification (DE# 227). This motion is the latest in a series of motions
concerning text messages located on Michael Adelman’s cellular telephone. The Court
has considered the motion and the Defendants’ response.
For the reasons outlined below, the motion is GRANTED and this Court’s earlier
Order (DE# 222) is modified to limit the text messages which will be produced by the
telephone expert who downloaded the 188 text messages from the decedent’s cellphone.
Given the parties’ considerable interest in the text messages (as evidenced by the
motions, memoranda, motions for rehearing and for reconsideration), the Court again
today reviewed the substance of each and every text message which the telephone expert
filed under seal. My additional review confirmed the conclusion I reached the first time I
reviewed the text messages: the substance of the text messages is not relevant and is not
discoverable.
The contents of the text messages do not relate to the factual issues identified by
Defendants as potential factual issues or as relevant to possible defenses.
They do not, for example, demonstrate or suggest that Michael Adelman was
reluctant to go on the hike. They do not state or imply that Michael Adelman was

complaining about any physical distress before or during the hike. They do not relate to
Michel Adelman’s preparation or lack of preparation for the hike and they do not discuss
his plans to hydrate himself (or not to hydrate himself) before the hike.
Likewise, they do not reveal his state of mind about the hike immediately before
or during the hike. They do not in any way reveal that Michael was cajoled, pressured,
coerced, convinced or tricked into going on the hike. They do not in any way suggest
that Michael’s parents (or anyone else, for that matter) insisted that he go on the hike, nor
do they suggest or imply that Michael had a disagreement with his parents about going on
the hike. They do not mention his physical abilities to handle the hike and they do not
discuss any questions which his parents or friends had about his conditioning.
Instead, the text messages are merely the type of messages one would ordinarily
expect to find on a 17-year-old high school student’s cellphone. They concern the prom,
classes, textbooks, girls, dating and similar subjects. Simply stated, and as demonstrated
during my first review of these emails, the text messages themselves do not relate to the
claims or defenses which the parties have asserted in the case.
Nevertheless, as explained in the Court’s earlier Order (DE# 222), the identities of
those persons who sent text messages to Michael on May 8-9, 2009 are relevant for
discovery purposes.
The parties have advised the Court that two text messages were sent to Michael
Adelman on the day of the hike (May 9, 2009). Based on the comments about technical
limitations of message retrieval at the hearing, the Court was led to believe that the only
way for Mr. Conrad to release these two text messages would be to release all 188 of
them. Therefore, the Court directed Mr. Conrad to produce the information concerning
all 188 text messages as the only viable way to produce the information about the two
relevant text messages sent during the hike.
However, in their motion for rehearing, Plaintiffs have explained that Mr. Conrad
can produce the information about the two text messages by producing the text messages
originating from the senders of the two text messages in question. Under this modified
approach, Mr. Conrad would produce the information for only six (6) text messages, not
all 188. According to Plaintiffs’ motion and accompanying exhibits, Mr. Conrad will be
able to narrow the production by using T-Mobile phone records (which identify the

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phone numbers of the phones from which the two text messages were sent: 954-529-2696
and 954-554-4668). Basically, these phone records enable Mr. Conrad to narrow the
potential universe of text messages necessary to insure production of information about
the two text messages from 188 to 6.
Mr. Conrad is ordered to turn over to the parties the SMS files and History for the
six text messages originating from the two telephone numbers listed above (and which
were withheld from his earlier report) by June 22, 2011 at 12:00 p.m.
The Court also fully expects that defense counsel will exercise care and discretion
with the information once produced.

Defense counsel expressly and unequivocally

represented to the Court that he and his clients would treat the information with
appropriate confidentiality and discretion. Defendants and their counsel shall not use the
text message information for any purpose other than this case.
If Plaintiffs believe that Defendants or their counsel have misused the information
from the six text messages which Mr. Conrad will produce, then they may seek
immediate relief from this Court. But given defense counsel’s commitment to use care
and discretion, the Court would be surprised if this type of concern ripened into an actual
issue.
DONE AND ORDERED in Chambers, at Miami, Florida, this 15th day of June,
2011.

Copies furnished to:
Hon. Alan S. Gold
Counsel of Record

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