Adelman et al v. Boy Scouts of America et al

Filing 265

Plaintiff's MOTION Motion for Entry of Order on Plaintiff's Motion for Judicial Review of Denial of Touhy Request by Howard Adelman, Judith Sclawy-Adelman. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 2, # 3 Exhibit 3)(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 ENTRY OF ORDER ON
PLAINTIFFS’ MOTION FOR JUDICIAL REVIEW OF DENIAL TOUHY REQUEST
COME NOW the PLAINTIFFS, HOWARD ADELMAN AND JUDITH SCLAWY as CoPersonal Representatives of the ESTATE OF MICHAEL SCLAWY-ADELMAN, by and through
their undersigned counsel and hereby move this Honorable Court for the entry of the Order attached
as Exhibit “1" on Plaintiffs’ Motion for Judicial Review of Denial of Touhy request and would
respectfully show the Court as follows:
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
National Park Service [hereinafter “NPS”] to depose various Park Rangers, who were involved in
the investigation into Michael Adelman’s death. [D.E. 217-8]. This formal request identified
specific Park Rangers and the testimony sought from them.
Subsequently, the DOI denied the Plaintiffs’ Touhy request [D.E. 217-9]. Thereafter, the
Plaintiffs’ engaged in numerous discussions with counsel for the DOI in an effort to reach an

Adelman v. BSA et al.
Case No.: 10-CV-22236-ASG/Goodman
Page 2
agreement concerning the scope of depositions of their employees. As part of this ongoing process,
which extended over many months, the Plaintiffs also filed a series of supplemental formal Touhy
requests specifically defining the scope of the proposed inquiry. [D.E. 217-10, D.E. 217-11 and D.E.
217-16].
After these discussions broke down, the Plaintiff filed their Motion for Judicial Review of
the Denial of Their Touhy Requests on June 2, 2011. [D.E. 217]. In response, this Honorable Court
issued its order on the same date [D.E. 218], providing in part:
Although the motion and exhibits demonstrate that Plaintiffs’’ counsel and
the DOI have had numerous communications about the so-called Touhy
regulations, and their application to this case, the Court is requiring counsel
for Plaintiffs and DOI to again confer in an attempt to avoid significant
additional motion practice. Although the motion seeks relief against the DOI,
the Defendants may also submit a response (either in support of or in
opposition to) the motion.
As a result of the continuing negotiations between Plaintiffs’ counsel and the U.S. Attorneys
Office, which had appeared on behalf of the DOI, a tentative agreement was reached to produce 4
witnesses for deposition regarding the areas covered by Plaintiffs’ Touhy requests. Counsel for the
Defendants were advised of this tentative agreement by correspondence attached hereto as Exhibit
“2.” At that time, counsel for the Plaintiffs further requested that defense counsel provide dates that
they were available for these depositions.
Subsequently, counsel for the Plaintiff and the DOI reached an agreement on the final
wording for the order on August 1, 2011, which was thereafter sent to counsel for the Defendants
on that date. See Exhibit “3.” It was further indicated that pursuant to this Court’s prior order, that
the Plaintiffs and DOI intended to submit the order on the following day, however, wanted to provide
counsel for the parties with the opportunity to assert any comments.
Subsequently, undersigned counsel received an objection from counsel representing two of
the Defendants regarding the concern that the order might impact upon recent pending requests made
by said Defendants for information, documents and testimony directed to the National Park Service
and DOI. Following discussions with defense counsel, these concerns were addressed by the

Adelman v. BSA et al.
Case No.: 10-CV-22236-ASG/Goodman
Page 3
addition of paragraph 5 to the proposed order with the agreement of counsel for the DOI. No other
objections have been transmitted to Plaintiffs’ counsel.
The proposed order submitted by the Plaintiffs does not prejudice any of the Defendants from
pursuing their own requests and merely acts to resolve the Touhy request filed by the Plaintiffs.
There is also nothing in the order which prevents the Defendants from attending the depositions and
participating fully within the scope of the testimony reached to by the DOI.
WHEREFORE, the Plaintiffs’ move this Honorable Court for the entry of the order attached
hereto.
Dated: August 2, 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

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 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 or pro se parties 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

Adelman v. BSA et al.
Case No.: 10-CV-22236-ASG/Goodman
Page 4

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
AMANDA A. KESSLER
Email: [e-mail]
Assistant United States Attorney
Court Assigned No: A5501293
99 N.E. 4th Street, Suite 326
Miami, Florida 33132
Tel: [phone]
Fax: [phone]
Counsel for United States of America