Adelman et al v. Boy Scouts of America et al

Filing 259

NOTICE by Andrew L. Schmidt re 252 Order,,,, of Filing Memorandum of Law and Argument in Opposition to Plaintiffs' Motion to Compel Production of E-mails and Compliance with Magistrate's Order [DE 252] (Attachments: # 1 Exhibit 2, # 2 Exhibit 3)(Hasty, Frederick)

66450-3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
HOWARD ADELMAN and JUDITH
SCLAWY-ADELMAN, as Co-Personal
Representative of the Estate of MICHAEL
SCLAWY-ADELMAN,

CASE NO. 10-CV-22236-ASG

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.
____________________________/
DEFENDANT, ANDREW L. SCHMIDT’S MEMORANDUM OF
LAW IN OPPOSITION TO PLAINTIFFS’ MOTION TO
COMPEL PRODUCTION OF E-MAILS AND COMPLIANCE WITH
MAGISTRATE’S ORDER DATED JULY 14, 2011
Plaintiffs moved to compel production of 32 e-mails objected to by Defendant
Schmidt due to privilege, privacy, and relevancy objections. [DE 234]. Prior to the
hearing on July 14th, 2011 before the Honorable Jonathan Goodman, Defendant Schmidt
turned over 10 of the 32 original e-mails objected to by Defendant Schmidt. [DE 243].
Magistrate Goodman ordered Defendant Schmidt to file a post-hearing Memorandum of
Law.

[DE 247 and 251]. In compliance with the Court’s Order, Defendant Schmidt

hereby files this his Memorandum of Law and Argument.

CASE NO. 10-CV-22236-ASG
INTRODUCTION
Plaintiffs served a Notice of Taking Deposition Duces Tecum for the deposition
of Defendant, Andrew L. Schmidt. Defendant Schmidt was requested to bring e-mails to
his deposition on March 7th, 2011. Prior to the deposition commencing, a privilege log
was hand-delivered to counsel for the Plaintiffs, Robert Peltz, Esquire. [DE 161]. The
deposition of Defendant Schmidt commenced at 10:25 a.m. and concluded at 7:21 p.m.
(See Exhibit 1, condensed deposition transcript of Andrew Schmidt). Thirty separate
exhibits or composite exhibits were attached to the deposition, including e-mails which
were produced in compliance with the Plaintiffs’ notice duces tecum. (See Exhibit 2,
including “Schedule A.”)
“Schedule A” of the notice made references to e-mail communications as follows:
1. All non-privileged correspondence, e-mails or other types of communication
between this deponent and South Florida Council.
2. All non-privileged correspondence, e-mails or other types of communication
between this deponent and Boy Scouts of America.
3. All non-privileged correspondence, e-mails or other types of communication
between this deponent and Plantation United Methodist Church.
4. All correspondence, e-mails, or other types of communication between South
Florida Council and/or Troop 111, and/or this deponent and Michael SclawyAdelman or the Plaintiffs in this case.
The first four paragraphs of “Schedule A” therefore requested Defendant Schmidt
to produce “all non-privileged correspondence, e-mails or other types of communication
…”

At the deposition of Defendant Schmidt 30 separate exhibits were produced

including over 45 e-mails before the deposition commenced. Mr. Peltz arrived shortly

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CASE NO. 10-CV-22236-ASG
after 9:00 a.m. and the deposition did not begin until 10:25 a.m. Between 9:15 a.m. and
10:25 a.m., Mr. Peltz was provided our privilege log as well as other documents
responsive to his notice duces tecum. Defendant Schmidt’s privilege log was provided
on a timely basis. The privilege log identified with specific and requisite particularity the
document or documents being asserted as privileged. Schedule A of the notice of taking
deposition specifically requested the Defendant Schmidt to produce all “non-privileged
correspondence, e-mails …” Schedule A did not require all e-mails to be produced but
only those which were “non-privileged.”
Plaintiffs’ Motion to Compel Production from Defendant Schmidt [DE 234] was
filed on June 24th, 2011. The Motion to Compel is untimely under the Local Rules of the
Southern District of Florida. Rule 26.1.(h)(1) states:
“Time for filing. All Motions related to discovery, including but not
limited to Motions to Compel discovery and Motions for Protective Order,
shall be filed within thirty (30) days of the occurrence of grounds for the
Motion. Failure to file a discovery Motion within thirty (30) days, absent
a showing of reasonable grounds for a later filing, may constitute a waiver
of the relief sought.”
Plaintiffs’ Motion [DE 234] makes no such statement of reasonable grounds to
justify filing this untimely Motion to Compel 3 months and 17 days after the privilege log
was delivered. Moreover, counsel for the Plaintiffs did not terminate the deposition of
Defendant Schmidt to seek relief from the Court, nor did Plaintiffs’ counsel continue the
deposition of Defendant Schmidt to seek relief from the Court on the documents found on
the privilege log. Defendant Schmidt complied with Rule 26(b)(5)A by timely filing the
privilege log and properly describing the documents contained therein.

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CASE NO. 10-CV-22236-ASG
After Plaintiffs’ Motion to Compel [DE 234] this Court entered an Order [DE 235]
including the following language:
“…the parties are urged to take additional efforts to resolve their
discovery disputes. The Court’s practice is to award attorney’s fees to the
prevailing party on a Motion to Compel unless a party subject to discovery
has provided substantial justification for his no-production position. If the
parties resolve some or all of their disputes before the hearing, then they
shall timely advise the Court, to avoid unnecessary preparation by the
Court and its support staff.”
Defendant Schmidt in an attempt to narrow the issues and resolve the discovery
disputes and in good faith acting upon this Court’s Order [DE 235] produced 10 of the 32
original e-mails in compliance with this Court’s Order [DE 237] by delivering the 32 emails under seal for in-camera review by noon on July 7th, 2011. Defendant Schmidt
complied by delivering the 32 e-mails for the Court’s in-camera review. By delineating
the 10 that had been produced in an effort to resolve the discovery dispute in compliance
with the Order [DE 235], this Court was advised seven days before July 14th, 2011, the
date of Oral Argument, that only 22 e-mails were at issue. This Court’s Order [DE 237]
appropriately offered Defendant Schmidt the opportunity of this Court conducting an incamera inspection and the opportunity to demonstrate the basis for the privilege and/or
relevancy asserted. Oral Argument was conducted on July 14 th, 2011 at which point in
time this Court instructed the parties to provide additional grounds, authorities, and
memorandum of law to support each side’s position.
Finally, 10 of the 32 e-mails were produced to Plaintiffs’ counsel on July 1 st, 2011.
Of the remaining 22 e-mails which were not produced and which were on the privilege
log created and provided to Mr. Peltz on March 7th, 2011, his Motion to Compel asserts

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CASE NO. 10-CV-22236-ASG
that he has already been able to discover 3 of the 22 e-mails (in the “not produced”)
contained on Defendant Schmidt’s privilege log.
Of the 19 e-mails in dispute, 10 of them involve the topic of whether or not after
Michael Adelman’s death Troop 111 should make a recommendation to local counsel and
the National Boy Scouts of America whether or not Michael should be awarded the rank
of Eagle Scout even though it was clear Michael never completed all of the requirements
to be qualified to become an Eagle Scout. Two of the e-mails are related to returning the
personal property of Michael Adelman from the Collier County Sheriff’s Department
days after his death. One e-mail is to the mother of a Scout who participated in the
subject hike on which Michael Adelman expired. Three e-mails are covered by the workproduct privilege [DE 256] entitled “Notice of South Florida Council’s Joinder.” One email relates to Scouts who signed up for a previous hike which Michael Adelman did not
participate in and the remaining two e-mails relate to personal feelings expressed to or
from the Scout leaders by others unrelated to the Adelman family.

As will be

demonstrated below, all of the e-mails on the privilege log were objected to in good faith.
WORK-PRODUCT EXCEPTION/PRIVILEGE TO E-MAILS 1, 7, 8 AND 9
The South Florida Council, Inc., (SFC) and the Boy Scouts of America (BSA) have
filed a Notice of Joinder in the objection to the production of e-mails 1, 7, 8 and 9 [DE
256] outlining the requirement to report a serious incident to the Council which in turn
relays the information to the National Office of the Boy Scouts of America. By and
through their counsel, SFC and BSA have outlined the procedures and expectations
which are and were in place in May of 2009 at the time of the death of Michael Adelman.

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CASE NO. 10-CV-22236-ASG
As pointed out in the hearing conducted before this Court on July 14th, 2011, Defendant
Schmidt was required to report information about the incident to the offices of SFC/Jeff
Hunt. It is clear from a review of the e-mails in question that there were communications
going back and forth about the procedures and information about the circumstances of the
hike which clearly are in part in anticipation of litigation.

Therefore, the privilege

asserted is work-product to e-mails 1, 7, 8 and 9.
E-mail number 1 even uses the word “incident” and the purpose of the e-mail was
to inform SFC/BSA of information normally transmitted to an entity in anticipation of
litigation, and e-mails 8 and 9 fall in the same category. In order for the work-product
doctrine to apply, a party must show that the “primary motivating purpose” behind the
creation of the document was to aide in possible future litigation. The name of the case is
Fojtasek v. NCL, 262 F.R.D. 650, 656 (S.D. Fla. 2009). As the Notice of Joinder [DE
256) filed by SFC/BSA clearly documents this batch of e-mails is considered information
that is part of the process when serious incidents and/or accidents occur to Boy Scouts
participating in Boy Scout activities. While Defendant Schmidt is a volunteer Scout
leader, the Boy Scouts conduct their business through voluntary Scout leaders such as
Defendant Schmidt.
PRIVACY RIGHTS UNDER ARTICLE 1 § 23 OF THE FLORIDA
CONSTITUTION CREATE AN EXPECTATION/ZONE
OF PRIVACY RIGHTS IN CITIZENS OF FLORIDA
This Court directed undersigned counsel to provide case law concerning the issue
of privacy rights. In 1980 Florida voters approved Article 1 § 23 (not § 8 as mistakenly

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CASE NO. 10-CV-22236-ASG
suggested during the July 14th, 2011 hearing by undersigned counsel) which articulates
the Constitutional Rights of Florida citizens to privacy. Section 23 reads as follows:
Right of Privacy – Every natural person has the right to be let alone and
free from governmental intrusion into his private life except as otherwise
provided herein. This Section shall not be construed to limit the public’s
right of access to public records and meetings as provided by law.
The United States Supreme Court has recognized the right of privacy even before
the Florida Constitutional Amendment was passed in 1980. Therefore, there is a Federal
expectation to the right of privacy which was recognized by Justice Brandeis in Olmstead
v. United States, 277 U.S. 438, 478 (1928). The Florida Supreme Court has articulated a
general discussion of the rights of privacy under the Federal Constitution in an opinion
found at Winfield v. Division of Para Mutual Wagering, 477 So.2d 544 (Fla. 1985)
wherein the Court wrote:
The United States Supreme Court has fashioned the right of privacy which
protects the decision-making or autonomy zone of privacy interest of the
individual. The Court’s decisions include matters concerning marriage,
procreation, contraception, family relationships, child rearing and
education. Roe v. Wade, 410 U.S. 113, 152, 153, (1973). Other privacy
interest enunciated by the Court in Nixon v. Administrator of General
Services, 433 U.S. 425, (1977) and Whalen v. Roe, 429 U.S. 589 (1976)
involved one’s interest in avoiding the public disclosure of personal
matters. 477 So.2d at 546 and 547.
The Florida Supreme Court articulated the concept that the Florida Constitution is
even broader in terms of privacy protection to citizens of Florida in the same opinion in
which the Florida Supreme Court found that by virtue of Article 1 § 23 and the
Constitutional Amendment enacted as the will of the people is a broader right of privacy
than even found under the Federal Constitution. The Court held:

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CASE NO. 10-CV-22236-ASG
“The citizens of Florida opted for more protection from governmental
intrusion when they approved Article 1 § 23 of the Florida Constitution.
This amendment is an independent, freestanding Constitutional provision
which declares the fundamental right to privacy. Article 1 § 23 was
intentionally phrased in strong terms. The drafters of the amendment
rejected the use of the words “unreasonable” or “unwarranted” before the
phrase “governmental intrusion” in order to make the privacy right as
strong as possible. Since the people of this State exercised their
prerogative and enacted an amendment to the Florida Constitution which
expressly and succinctly provides for a strong right of privacy not found in
the United States Constitution, it can only be concluded that the right is
much broader in scope than that of the Federal Constitution.”
Therefore, there is a fundamental right and expectation of privacy under the
Federal Constitution but an even broader fundamental right to privacy under the Florida
State Constitution.
There are numerous examples of cases in which the privacy rights of persons have
been protected. We begin with voluntary blood donors who donated blood to blood
banks in Florida. In Rasmussen v. South Florida Blood Service, Inc., 500 So.2d 533, 535,
(Fla. 1987), their records were not discoverable in litigation against the South Florida
Blood Service simply because a blood recipient had a transfusion that transmitted a
disease through the blood transfusion.

The Supreme Court found that there was a

balancing interest that had to occur between the privacy rights of voluntary blood donors
and the need of the Plaintiff to try to prove a case against the blood service. The Florida
Supreme court in Rasmussen held as follows:
“Moreover in Florida, a citizen’s right to privacy is independently
protected by our State Constitution. In 1980, the voters of Florida
amended our State Constitution to include an expressed right of privacy.
Article 5, § 23, Fla. Const., in approving the Amendment, Florida became
the fourth State to adopt a strong, freestanding right of privacy as a
separate section of its State Constitution, thus providing an explicit textual

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CASE NO. 10-CV-22236-ASG
foundation for those privacy interest inherent in the concept of liberty
which may not otherwise be protected by specific Constitutional
provisions. …Although the general concept of privacy encompasses an
enormously broad and diverse field of personal action and belief, there can
be no doubt that the Florida Amendment was intended to protect the right
to determine whether or not sensitive information about oneself could be
disclosed to others at 536.”
The Plaintiff was prevented from discovering the identity of voluntary blood
donors even though the Plaintiff was intent on trying to determine which voluntary blood
donor had transmitted HIV to the Plaintiff through blood transfusion. In denying the
Plaintiff’s request and balancing the interest of the voluntary blood supply versus the
individual rights of the Plaintiff as a litigant, the Florida Supreme Court concluded that
the “…disclosure sought here implicates constitutionally protected privacy interest.”
Therefore, the very identity of the blood donors was withheld from the Plaintiff under the
privacy rights of the non-litigant voluntary blood donors.
An assisted living facility was named as a Defendant in a wrongful death case.
The issue was whether or not the facility could assert the privacy rights of its employees
when the personnel files of the employees were requested by the Plaintiff. The Florida
Supreme Court in Alterra Healthcare Corp., v. Estate of Shelley, 827 So.2d 936 (Fla.
2002), specifically recognized that in considering relevancy objection to a discovery
request, the trial Court could consider the constitutional rights of third parties who would
be substantially affected by the outcome of the litigation. Citing, Shaktman v. State of
Florida, 553 So.2d 148 (Fla. 1989), the Supreme Court commenting on Article 1 § 23 of
the strong right of privacy in the Florida Constitution held as follows:

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In Shaktman, the Court reasoned that the enactment of this provision “insures that
individuals are able ‘to determine for themselves when, how and to what extent
information about them as communicated to others’” Id. at 150 (quoting from Alan F.
Westin Privacy and Freedom 7 (1967).” There, we spoke of a “zone of privacy into
which not even the government may intrude without invitation or consent” … because
this power is exercised in various degrees by different individuals, the parameters of an
individual’s privacy can be dictated only by that individual. The central concern is the
inviolability of one’s own thought, person and personal action. The inviolability of that
right assures its pre-eminence over ‘majoritarian’ sentiment, and thus cannot be
universally defined by consensus.
While the Supreme Court ruled that the personnel files may be discovered, the
fact of the matter is there was a recognition of the privacy rights of the employees and
their expectation of privacy. The Court there determined that the facility did not have the
standing to assert the privacy rights of the employees.
In this case, Troop 111 is composed of juveniles who are minors and whose
expectation of privacy must be protected. During the deposition of Defendant Schmidt,
the names of the Troop members who received e-mails about the subject hike on which
Michael Adelman expired were identified by Defendant Schmidt and provided to
Plaintiffs. Defendant Schmidt does not feel authorized to invade the privacy rights of
individuals on the Troop Committee who provided personal opinions about whether or
not Michael Adelman should be given the award of an Eagle Scout after his death which
are e-mails 18 and 22-30. These were communications that were considered by the
individuals at the time e-mailing to or from Defendant Schmidt private and confidential
expressions of personal opinions with an expectation that these would not become public.
Moreover, e-mails 15 and 21 are examples of Defendant Schmidt expressing personal
opinions to a confidant which has nothing to do with the allegations of negligence made

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CASE NO. 10-CV-22236-ASG
against Crompton, Schmidt, the South Florida Council, Boy Scouts of America and/or
Plantation United Methodist Church.

Similarly e-mail 21 addressed to Defendant

Schmidt is an expression by a South Florida Council member of emotional support which
clearly was not done for purposes of publication. Once again, e-mail 21 has nothing to
do with the allegations of negligence against the Defendants in this action. E-mail 21 is a
private and confidential expression of personal feelings and/or other sentiments five days
after the death of Michael Adelman. It is curious that Plaintiffs’ counsel insisted on
limiting text messages on Michael Adelman’s phone to be limited to the day before the
hike and the day of the hike which would have been May 8th and May 9th, 2009. Yet,
Plaintiffs’ counsel insists on trying to discover e-mails several days after the death of
Michael Adelman which are the subject of the Motion to Compel.
In Menke v. Broward County School Board, 916 So.2d 8 (Fla. 4th DCA 2005), the
issue was whether a school teacher’s computer could be subpoenaed when the school
teacher was accused of exchanging sexually explicit e-mails with students and making
derogatory comments regarding school personnel. The issue before the Court was an
Administrative Law Judge’s Order to produce all the computers in the petitioner’s
household for examination by an expert witness for purposes of discovery. A protective
Order was filed. The issue then became whether or not the privacy rights of the teacher
or others in the household would be violated by such a disclosure.
E-mail 16 is an e-mail sent to the mother of a scout who participated on the hike
in which Michael Adelman expired. Without divulging the content of the e-mail, clearly
this was intended to be a personal, confidential and private e-mail to the mother, and the

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CASE NO. 10-CV-22236-ASG
content of the e-mail in question, e-mail 16, expresses concern for the wellbeing of the
scout. The scout in question is a minor. The e-mail in question was sent three days after
the death of Michael Adelman. Defendant Schmidt is fulfilling his obligation as an adult
leader to inquire about the condition of the minor scout. Nothing in this e-mail was
intended for public content. This is a private, confidential communication which should
not be subjected to production. Certainly the mother of the scout in question has not
waived any protection of her privacy rights on behalf of her son. In fact, the son has been
deposed by the Plaintiffs for over four hours in this case. Therefore, the e-mail in
question falls under the protection of the zone of privacy and the expectation of privacy
rights of the scout and his family. It would be protected under the Federal Constitution,
but certainly is protected under Article 1, Section 23 of the Florida Constitution.
Just as the victims of sexual abuse are protected from disclosure in the public
even when they are plaintiffs and have filed suit under a pseudonym, the Court denied a
request for the identity of other victims of sexual abuse by a Catholic priest in Favalora
v. Cidaway, 996 So.2d 895 (Fla. 4th DCA 2008) denying a request for the identity of
other victims of alleged sexual abuse. The Court squarely found that the names of other
alleged victims should not be made known in public. That Court cited with approval
Rasmussen v. South Florida Blood Serv., Inc., supra, including the right of privacy. The
same Court determined to cite Alterra v. Shelley, supra, finding that names, addresses and
telephone numbers are forms of identity information that they considered private and
confidential information.

The same would hold true of e-mails without a specific

authorization for release of the information by the senders or recipients of the e-mails or

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CASE NO. 10-CV-22236-ASG
the families who are not litigants to this litigation. They have not authorized Defendant
Schmidt to release the e-mails which are in the batch of documents in the “not to be
produced” e-mails numbering the 22 e-mails which are the subject of the Plaintiffs’
Motion to Compel.
In Publix Supermarkets, Inc. v. Johnson, 959 So.2d 1274 (4th DCA 2007), the
issue was whether or not the names, addresses and telephone numbers of alleged
shoplifters to whom Publix Supermarket counsel had recommended the identities of other
suspected shoplifters which request was denied.

On page 1276, the Court held as

follows:
Further, these correspondence implicate privacy interests
for the non-party suspected shoplifters. Article 1, Section
23, Florida Constitution, affords Floridians the right of
privacy and ensures that each person has the right to
‘determine for themselves when, how and to what extent
information about them is communicated to others.’
Shaktman v. State, 553 So.2d 148, 150 (Fla. 1989). Names,
addresses and telephone numbers are forms of identity
information that can be considered private and confidential
information. See, Alterra, 827 So.2d 936. When a party
seeks private or confidential information, courts must
require the party seeking the information to “make a
showing of necessity which outweighs the countervailing
interest and maintain the confidentiality of such
information.” Higgs v. Kampgrounds of Am., 526 So.2d
980, 981 (Fla. 3rd DCA 1988). This court has noted the
release of names and telephone numbers, where irrelevant,
would be an invasion of privacy for the third parties.
Haywood v. Samai, 624 So.2d 1154 (Fla. 4th DCA 1993).
E-mails 19 and 20 relate to efforts by Defendant Schmidt to retrieve the personal
property acquired after Michael’s death by the Collier County Sheriff’s Department and
making arrangements to have that returned to the Adelman family. E-mails 19 and 20 are

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CASE NO. 10-CV-22236-ASG
e-mailed four days after Michael Adelman’s death. There is one recipient and one sender
of each of the e-mails. The sender of the e-mail in 19 was a committee troop member.
Nothing in 19 or 20 was intended for publication. There was an expectation of privacy
and confidentiality about the communications.

The sender of e-mail 19 has not

authorized release of the information to the public. Neither 19 nor 20 are relevant,
material or germane to the allegations of negligence made against the Defendant in this
action. Defendants rarely have much to say about being hauled into Court. I doubt that
they somehow waive all or most of their privacy privileges simply because someone –
justifiably or not – files suit against them. Brown v. Advantage Engineering, Inc., 960
F.2d 1013, at 1017 (11th Cir. 1992). E-mails 19 and 20 it is submitted are as irrelevant as
the text message which this Court described in [DE222] when reviewing the 188 text
messages and determining that the text messages do not relate to the claims or defenses
which the parties have asserted in this case. Similarly, e-mails 19 and 20 do not relate to
the claims or the defenses which the parties have asserted in this case. [DE230].
Other examples of the protection of the right of privacy particularly for
involvement of third parties or their identities is found in Westco, Inc. v. Scott Lewis
Gardening and Trimming, Inc., 26 So.3d 620 (Fla. 4th DCA 1010) and the records of
residents in a nursing home, Age Institute of Florida, Inc. v. McGriff, 884 S0.2d 512 (Fla.
2d DCA 2004). When confidential information is sought from a non-party through
discovery, the trial court must determine whether the requesting party establishes a need
for the information that outweighs the privacy rights of the non-party. Westco, supra.
The appellate court in Westco sent the trial court an order to conduct a hearing to balance

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the equities between the need for confidentiality in disclosure and to conduct an in
camera review of the documents at issue in that case. In Westco, a non-party claimed
privilege under confidentiality invasion of the right of privacy and challenged a trial
court’s order compelling it to produce an asset purchase agreement.
Other examples of the application of the right of privacy and the expectation of
privacy and confidentiality is found in Berkley v. Eisen, 699 So.2d 789 (Fla. 4th DCA
1997), holding that non-party investors have constitutional protected right of privacy in
their telephone numbers which outweigh the need of suing investors to obtain such
information through discovery. That court specifically found that an order compelling
discovery constitutes state action that may impinge on constitutional rights including the
constitutional right of privacy. Citing South Florida Blood Service, Inc. v. Rasmussen,
467 So.2d 798, 803 (Fla. 3rd DCA 1985) that the potential for invasion of privacy is
inherent in the litigation process. This Court must conduct a balancing test to determine
the need for the information versus the privacy rights of the persons who are not litigants
to the action, have not authorized release of information which is otherwise protected
under Article 1, Section 23, and have not indicated an authorization to release such
information to Defendant Schmidt. In Delta Health Group, Inc. v. Williams, 780 So.2d
337 (Fla. 5th DCA 2001) the defendant objected to an interrogatory which sought the
names and addresses of non-parties on the basis of being confidential and privileged as it
pertained to those non-parties. The Court stated that the plaintiff had not shown there
was an overriding need for such information that would override the privacy right of nonparties. Therefore, the court in Delta Health Group, Inc. specifically found that there was

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confidential and privileged information in possession of the defendant of non-parties
which was not required to be disclosed to the plaintiff even though the plaintiff asked for
the information to be disclosed.

See, Community Psychiatric Centers of Florida v.

Bevelacqua, 673 So.2d 948 (Fla. 4th DCA 1996) (holding that the plaintiff’s need for the
identity of patients who witnessed an accident at the defendant’s psychiatric facility
would not outweigh the right of privacy of those non-party patients).
A similar result was reached in Colonial Medical Specialties of South Florida,
Inc. v. United Diagnostic Laboratories, Inc., 674 So.2d 923 (Fla. 4th DCA 1996), holding
in a breach of contract action that the plaintiff did not meet its burden to show the need
for the address and telephone numbers of approximately 300 patients of the defendant’s
medical office would override the privacy rights of those non-party patients and therefore
the discovery was denied on the basis of the privacy rights of the non-party patients. All
of these cases stand for the proposition of the recognition of the right of privacy and the
entitlement to confidentiality and an expectation of privacy by non-litigants to actions.
Defendant Schmidt was deposed from 10:25 a.m. until 7:21 p.m. During the
course of his deposition, he provided e-mails, he provided other documents in compliance
with the notice duces tecum, he produced documents in response to the Plaintiff’s request
for the production of documents (for which there has been no dispute nor any motion to
compel filed against Defendant Schmidt) and the identity of scouts invited to go on this
subject hike, and hundreds of troop documents have already been produced by Plantation
United Methodist Church.

Far more e-mails were produced than objected to by

Defendant Schmidt. As Schedule A indicated in the Notice or Taking Deposition to

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Defendant Schmidt, all “non-privileged communications, e-mails….”

Florida courts

recognize the privacy rights and expectation of confidentiality by third parties who are
not litigants in the action, have not asserted a claim or defense in the action, and are
thrust into the vortex of discovery disputes simply by being a parent of a scout involved
in the troop such as Troop 111.
Perhaps the best example of the assertion of the protection of the privacy of an
individual and his family comes from Mr. Peltz. We reference the Court to [DE 182]
page two of six, paragraph five, wherein Mr. Peltz wrote as follows:
At the hearing on the Defendants’ Motion directed to the
inspection of Michael’s cell phone, counsel for Compton
and Schmidt requested the Court permit the examination
and analysis of the cell phone for an extensive period of
time. The Plaintiffs objected to this request on a variety of
grounds, including that it was not reasonably calculated to
lead to the discovery of admissible evidence and
constituted an invasion of privacy of Michael as well as
his family as friends. The Court agreed and narrowed
the inspection to the two day period of May 8th and May
9th, 2009
While Mr. Peltz advocated that Michael’s privacy rights, his family’s privacy
rights and the privacy rights of his friends must be protected and must be limited to the
two day period of the day before and the day of the hike, Mr. Peltz has moved to compel
e-mails from third persons more than two days after the hike whose e-mails have nothing
to do with the allegations of negligence made against the Defendants and yet he seeks to
have unlimited access to thoughts, personal opinions, expressions, expressions of
sentiment, comfort and condolence to the Defendants in this case. The Plaintiffs wish to
compel and wish to invade the privacy and confidential communications of third persons

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who stand in the same shoes as Michael’s family and/or friends by discovering irrelevant
and otherwise clearly confidential expressions of personal feeling, sentiments, thoughts,
emotions and opinions such as whether or not posthumously the Boy Scouts could over
look his failure to complete all of his requirements to obtain the rank of Eagle Scout and
still be awarded an Eagle Scout rank after his death. Such expressions of personal
interest or opinions do not bear on the claims or the defenses of the allegations of
negligence against the Defendants in this case. Just as Justice Edmondson opined in
Brown v. Advantage Engineering, supra, the Defendants do not waive all or most of their
privacy privileges simply because someone – justifiably or not – filed suit against them.
As for the decisions held, Florida is the fourth state as of 1980 to adopt a state
amendment for the right of privacy. California did it in 1974 by passing Article I §1
which states: “All people are by nature free and independent and have inalienable rights.
Among those are enjoying and defending life and liberty, acquiring, possessing and
protecting property, and pursuing and obtaining safety, happiness, and privacy.”
California refers to its “qualified constitutional privacy privilege” that blocks civil
discovery that impinges upon privacy concerns of recipients of discovery demands. Britt
v. Superior Court (1978) 20 Cal. 3d 844.

Examples of this constitutional privacy

privilege are found in decisions such as Hinshaw v. Superior Court, 51 Cal. App. 4th 233
(a party’s confidential settlement with a non-party); Estate of Gallio (1995) 33 Cal. App.
4th 592 (involving a person’s living will); Lantz v. Superior Court, (1994) 28 Cal. App.
4th 1839 (involving medical records); Harding Lawson Association v. Superior Court,
(1992) 10 Cal. App. 4th 7 (involving third party personnel records); Denari v. Superior

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CASE NO. 10-CV-22236-ASG
Court, (1989) 215 Cal. App. 3d 1488 (involving names and addressees of fellow
arrestees); Binder v. Superior Court, (1987) 196 Cal. App. 3d 1893 (involving
photographs of defendants non-party patients); and Mitchell v. Superior Court, 37 Cal.
3d 268 (involving a reporter’s sources of information).

In all of these cases, the

California courts interpreting and construing the state right to privacy recognized there is
a constitutional privacy privilege. The analogy to Florida is that Florida courts construe
and apply the provisions of Article 1, Section 23 by treating the privacy rights as a
privilege as has been amply demonstrated in the decisions and authorities cited above.
That is why in-camera inspection of documents, balancing of competing interests,
protection of the identities of persons who are third parties and non-litigants occur in a
variety of contexts such as protecting the identity of sexual abuse victims, the names and
identities of voluntary blood donors, the telephone numbers and/or addresses of
employees, the protection of the medical records linked to specific patients, the protection
of users of the computer in a family home even when a family member is charged with
sending pornography over the internet, and the other examples cited above. There is a
recognized expectation or zone of privacy under both the Federal and Florida
Constitutions which is recognized in decisional law. Delineating the zone of privacy
protected by the Florida Constitution begins with the subjective expectations of the
individual which are protected provided they are not spurious or false. Mozo v. State, 632
So.2d 623, 632-633 (Fla. 4th DCA 1994), affirmed at 655 So.2d 1115 (Fla. 1995).
In summary, Plaintiffs’ counsel asserts that Michael and his family and his friends
have an expectation of privacy. Defendant Schmidt asserts that he too has an expectation

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CASE NO. 10-CV-22236-ASG
of privacy even though he is a party Defendant. He also asserts that the parents and
Scouts who are not litigants have an expectation of privacy as well as Volunteers who
serve Troop 11 as Committee Members and/or as Adult Leaders have the same
expectation of privacy and should be treated with equal fundamental rights of privacy
guaranteed by Article 1, Section 23 of the Florida Constitution.
E-mails 31 and 32 were objected to on the basis of relevancy, materiality,
confidentiality and privacy. Under Rule 26(b), the scope of discovery
permits parties to “obtain discovery regarding any non-privileged matter
that is relevant to any parties’ claim or defense - including the existence,
description, nature, custody, condition and location of any documents and
other tangible things and the identity and location of persons who know of
any discoverable matter. …Relevant information need not be admissible
at the trial if discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”
The Plaintiffs have consistently objected to producing communications of text
messages belonging to Michael Adelman and/or his communicators/friends limited to the
day before the hike and the day after the hike. The Plaintiffs have consistently argued
that the relevant time period would not even include the Scout meeting that happened on
Wednesday evening before the Saturday morning hike on which Michael Adelman
expired.
In the “Schedule A” the Plaintiffs did not ask for e-mails from the 10 mile hike
performed in April of 2009 specifically. Defendant Schmidt filed his objections and
privilege log which is the subject of Plaintiffs’ Motion to Compel.

A review of

“Schedule A” paragraph 4 asks for communications to Troop 111 and/or Michael
Adelman. In an abundance of caution because of the over-breadth of the request to
Defendant Schmidt a decision was made to place e-mails 31 and 32 on the privilege log

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CASE NO. 10-CV-22236-ASG
rather than simply not producing the documents at all. Upon information and belief
Michael Adelman did not go on the 10 mile hike on April 4th, 2009. Therefore, e-mails
31 and 32 are not relevant and/or material to “Schedule A” and to the notice propounded
to Defendant Schmidt. Almost all of the paragraphs on “Schedule A” relate to the May
9th hike. Paragraph 7 requests all documents, materials, or tangible things which this
deponent and/or Plantation United Methodist Church and/or South Florida Council and/or
Boy Scouts of America sent or caused to be sent to members or parents of members of
Troop 111. Again, Michael Adelman’s e-mail address is not on e-mail 31 or 32. But
because of the over-breadth of the request, Defendant Schmidt filed a privilege log and
objected to producing e-mails 31 and 32. It is the position of Defendant Schmidt that emails 31 and 32 are not subject to being relevant and material to the allegations
pertaining to the hike that occurred on May 9th, 2009.
Plaintiffs’ counsel states in his Motion to Compel that he obtained e-mail 31
“through discovery” but is unknown how he obtained the e-mail in question.
Nonetheless, the objection was made because the request was overbroad and not time
specific consistent with all the other requests in “Schedule A” and consistent with the
limited timeframe found in “Schedule A.” E-mails 31 and 32 are not relevant to the
claims against the Defendants in this case. It should be pointed out that no expert witness
disclosure including opinions of experts were made as of March 7th, 2011 when the
objections and the privilege log were created.
It is up to the Court to determine when an objection is made whether or not the
information is relevant to the parties’ claims and defenses or at least “reasonably

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CASE NO. 10-CV-22236-ASG
calculated to lead to the discovery of admissible evidence.” City of Walthan v. U.S.
Postal Service, 11 F.3rd 235, 243 (1st Cir. 1993). The over-breadth of paragraph 7 in
“Schedule A” is obviously burdensome and oppressive.

In making a ruling to an

objection, the Court need not address the other requirements of Rule 26 if the party
seeking the discovery “cannot demonstrate the relevance of the information sought”
because “relevance serves as the gate through which all discovery requests must pass.”
Stern v. O’Quinn, 253 FRD 663, 670 (Southern District of Florida 2008).
The April 4th, 2009 hike was a 10 mile hike in a different location and Michael
Adelman did not agree to go on the hike.

As this Court held in Great Lakes

Transportation Holding, LLC v. Yellow Cab Service Corp., 2011 WL 465507 (S.D. Fla.),
when a person from whom discovery is sought challenges the relevance of the requested
information, the Court must determine whether the information is relevant to the parties’
claims and defenses or at least reasonably calculated to lead to the discovery of
admissible evidence. Plaintiff’s Motion to Compel asserts that the information is relevant
but it does not make the case for it other than making a bold assertion that it is relevant.
The Defendants contend that this information about the prior hike is not relevant and is
up to the Court to make such a determination whether or not it is or is not relevant, just
like this Court determined which issues were or were not relevant in terms of the 188 text
messages as found in this Court’s Order [DE 230]. It is up to the Court to make a
determination once the objection on relevancy and materiality has been made. There are
genuine issues of dispute concerning the scope of discovery, the relevance and

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CASE NO. 10-CV-22236-ASG
materiality of e-mails 31 and 32, and in the final analysis how e-mails 31 and 32 are
relevant to the claims asserted against the Defendants in this case.
ATTORNEY’S FEES AND SANCTIONS
The Court has requested the parties to address the issue of attorney’s fees and/or
sanctions. As it has been demonstrated, the privacy rights of the individuals involved and
the amount of production of evidence and documents not objected to by Defendant
Schmidt clearly indicate good faith on the part of undersigned counsel representing
Defendant Schmidt. Plaintiffs’ Motion to Compel violates the local Rules because it was
untimely and does not have a Memorandum of Law in violation of the local Rules. Rule
7.1(a)(1) requires a Memorandum of Law. As outlined above, the Motion to Compel
itself is untimely under local Rule 26.1(h)(1). Nor did the Motion to Compel comply
with Rule 26 by explaining good cause to permit the Motion to Compel be filed three
months and 17 days after the objections and privilege log was filed to excuse why within
30 days the Plaintiffs did not move for this relief. The objections and privilege log were
provided to Plaintiffs’ counsel on March 7th, 2011 before the deposition of Defendant
Schmidt. Plaintiffs’ counsel maintains that the objections and the privilege log on its face
does not have valid basis for the objections and privileges asserted.
A fair reading of the matters in dispute clearly indicate bona fide disputes on the
scope of discovery, the timing of the discovery, and the existence of the rights of third
parties who are not litigants to this action and whose privacy rights are fundamental
rights which cannot be violated in the State of Florida. In Stores v. Island Water
Association, 2011 WL 174 2003 (M.D. Fla.), the Defendant withheld documents on the

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CASE NO. 10-CV-22236-ASG
basis of privilege. The Magistrate ruled that the documents were not privileged. Even
though the Magistrate granted six of Plaintiff’s Motions to Compel, she denied Plaintiff’s
request for costs and attorney’s fees.
Here, there was no prayer for attorney’s fees made by Plaintiffs in Plaintiffs’
Motion to Compel. Nor did Plaintiffs ask for sanctions in their Motion to Compel.
Before the hearing on July 14th and after receiving the Court’s initial Order, Defendant
Schmidt released 10 e-mails in an attempt to resolve the discovery disputes with
Plaintiffs. In spite of the fact that the Plaintiffs assert they sent e-mails to request all of
the objected to documents, at no time did the Plaintiffs demonstrate any willingness to
accept anything less than all documents objected to in this case on our objections and/or
privilege log. The fact of the matter is there is ample demonstrated basis for each
objection that was made both in law and in fact and such objections were made in good
faith. It is the duty of the Magistrate Judge to rule on discovery matters which is why the
Parties have consented in part to the use of a Magistrate to handle discovery disputes.
Because there are genuine issues of disputed facts and law, it is submitted this
Court should make an appropriate ruling on the objections and the privilege log, but this
Court should not sanction either the Plaintiffs for filing an untimely a Motion to Compel
without a Memorandum of Law, nor sanction the defense because the defense timely and
appropriately filed objections and a privilege log.
The Court has directed undersigned counsel to produce the e-mails sent to
undersigned counsel by Plaintiffs’ counsel which are attached as a separate Exhibit.

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WE HEREBY CERTIFY that on July 29th, 2011, I electronically filed the
foregoing with the Clerk of the Courts by using the ECF system, which will send a notice
of electronic filing to the parties on the attached service list. I further certify that I mailed
the foregoing document and the notice of electronic filing by first-class mail to the
following non-ECF participants:

Respectfully submitted,

/s/ Frederick E. Hasty III
Frederick E. Hasty III, Esquire
Florida Bar No. 260606
WICKER, SMITH, O’HARA,
McCOY & FORD, P.A.
Attorneys for Howard K. Crompton and
Andrew L. Schmidt
2800 Ponce de Leon Boulevard, Suite 800
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]

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CASE NO. 10-CV-22236-ASG
Service List
Ira H. Leesfield, Esquire
Leesfield & Partners, P.A.
2350 South Dixie Highway
Miami, FL 33133
Robert D. Peltz, Esquire
Leesfield & Partners, P.A.
2350 South Dixie Highway
Miami, FL 33133
William S. Reese, Esquire
Lane, Reese, Summers, Ennis & Perdomo
Douglas Centre, Suite 304
2600 Douglas Road
Coral Gables, FL 33134
Greg M. Gaebe, Esquire
Gaebe, Mullen, Antonelli, Esco & DiMatteo
420 South Dixie Highway, 3rd Floor
Coral Gables, FL 33146
William L. Summers, Esquire
Lane, Reese, Summers, Ennis & Perdomo
2600 Douglas Road, Suite 304
Coral Gables, FL 33134
Ubaldo J. Perez, Jr., Esquire
Law Office of Ubaldo J. Perez, Jr., P.A.
8181 N.W. 154 Street, Suite 210
Miami Lakes, FL 33016
Horace Clark, Esquire
U.S. Department of the Interior
Office of the Regional Solicitor
Southeast Region
75 Spring Street, S.W., Suite 304
Atlanta, GA 30303

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