PayCargo, LLC v. Galbreath

Filing 190

ORDER striking 167 Motion to Disqualify Counsel; granting in part and denying in part 169 Motion to Strike. Signed by Chief Magistrate Judge Edwin G. Torres on 1/10/2022. See attached document for full details. (elk)

Case 1:20-cv-22885-KMW Document 190 Entered on FLSD Docket 01/10/2022 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-CV-22885-WILLIAMS/TORRES
PAYCARGO, LLC,
Plaintiff,
v.
PAVEL GALBREATH, et al.,
Defendants.
_______________________________________/
ORDER ON PLAINTIFF’S MOTION TO STRIKE
DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S CO-COUNSEL
This matter is before the Court on Plaintiff PayCargo, LLC’s (“PayCargo”)
motion to strike Defendant Pasha Probiv’s (“Probiv”) motion to disqualify PayCargo’s
co-counsel Jason Weber.
22, 2021.
passed.

[D.E. 169].

Probiv responded in opposition on November

[D.E. 171]. PayCargo has not filed a reply, and the time to do so has since
Therefore, PayCargo’s motion is now ripe for disposition.

After careful

consideration of the filings and relevant authorities, and for the reasons discussed
below, PayCargo’s motion to strike is GRANTED in part and DENIED in part, and
Probiv is given leave to file an amended motion to disqualify PayCargo’s co-counsel
Jason Weber under seal. 1
I.

BACKGROUND

On July 13, 2020, PayCargo filed its initial complaint against Probiv, which

On July 15, 2020, the Honorable Kathleen M. Williams referred all nondispositive pretrial motions to the undersigned for disposition. [D.E. 4].

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alleged various claims concerning breach of contract and misappropriation of trade
secrets.

[D.E. 1].

In light of the litigation’s confidential nature, this Court entered

a stipulated protective order that provides, in relevant part:
Deposition testimony (even where not yet transcribed) and any
accompanying exhibits shall be deemed “ATTORNEYS’ EYES ONLY”
prior to transcription and for a period of fourteen (14) calendar days
after the transcription of said deposition, but said designation will
expire at the conclusion of that fourteen-day period unless Defendants
or Plaintiff designate portions of said testimony as “CONFIDENTIAL”
or “ATTORNEYS’ EYES ONLY” by letter or e-mail to the other parties.
[D.E. 135 at 4].
On November 1, 2021, Probiv, who represents himself in this lawsuit, deposed
Olivier Carissimo, one of PayCargo’s current agents and/or employees (“Carissimo”).
Pursuant to the stipulated protective order, Carissimo’s deposition testimony was
automatically deemed “ATTORNEYS’ EYES ONLY” until 14 days after transcription,
which occurred on November 5, 2021.

Therefore, at a minimum, Carissimo’s

deposition should have avoided public scrutiny until November 19, 2021.
Despite the terms of the stipulated protective order, Probiv filed excerpts from
Carissimo’s deposition on the public docket on November 15, 2021.

[D.E. 167-1].

In

Probiv’s view, these excerpts from Carissimo’s deposition support his motion to
disqualify PayCargo’s co-counsel Jason Weber (the “Disqualification Motion”).
167].

[D.E.

Probiv also filed an arrest record from 2019, which PayCargo believes to have

been expunged under Florida law and which, therefore, presents a different set of
privacy concerns.

[D.E. 167-1].

Nevertheless, Probiv, who acknowledged in his
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Local Rule 7.1 certification that PayCargo instructed him to file the Disqualification
Motion and its exhibits under seal, apparently failed to comply with the stipulated
protective order by filing the Disqualification Motion, along transcripts from
Carissimo’s deposition, on the public docket before the expiration of the automatic
“ATTORNEYS’ EYES ONLY” designation. [D.E. 167, ¶ 23].
PayCargo then promptly moved to strike the Disqualification Motion from the
docket [D.E. 169] and to seal its contents pending resolution of the motion to strike
[D.E. 170].

As part of its motion to strike the Disqualification Motion, PayCargo also

asked the Court to enter an Order to Show Cause against Probiv regarding why he
violated the stipulated protective order.

[D.E. 169 at 3].

Soon thereafter, Judge

Williams ordered the sealing of the Disqualification Motion and its exhibits [D.E.
167], the motion to strike [D.E. 169], the motion to seal [D.E. 170], and Probiv’s
response in opposition to PayCargo’s foregoing motions [D.E. 171].
II.

[D.E. 179].

ANALYSIS

Without reaching the merits of Probiv’s Disqualification Motion, the Court
finds that Probiv’s filing of the unredacted Disqualification Motion, which attached
excerpts from Carissimo’s deposition, on the public docket prior to the expiration of
the 14-day “ATTORNEYS’ EYES ONLY” hold was a violation of the stipulated
protective order.

As such, it should be stricken from the record of this case.

But whether Probiv should be sanctioned for this obvious error is another
matter that necessitates an observation regarding the current stay order.
3

[D.E.

Case 1:20-cv-22885-KMW Document 190 Entered on FLSD Docket 01/10/2022 Page 4 of 5

181].

On November 9, 2021, PayCargo filed a motion to voluntarily dismiss the case

without prejudice.
23, 2021.

[D.E. 163].

Defendants responded in opposition on November

[D.E. 172; 173; 174].

Accordingly, on November 29, 2021, with the

exception of PayCargo’s reply, Judge Williams stayed all remaining pretrial deadlines
pending the resolution of PayCargo’s motion to dismiss.

[D.E. 181].

If it is necessary after PayCargo’s pending motion to dismiss is resolved, Judge
Williams intends to enter a separate order setting forth amended deadlines.
181].

[D.E.

In light of the fact that, as of this writing, all pretrial deadlines are stayed,

the Court declines to enter an Order to Show Cause regarding Probiv’s violation of
the stipulated protective order.

Instead, the Court will grant Probiv leave to file an

amended Disqualification Motion under seal.
If Probiv chooses to file an amended Disqualification Motion under seal,
PayCargo’s response will be subject to the current stay order [D.E. 181]. Accordingly,
if the resolution of PayCargo’s pending motion to dismiss necessitates lifting the
current stay, PayCargo’s response to Probiv’s amended Disqualification Motion will
be due 14 days after the stay is lifted.

Moreover, should Probiv file an amended

Disqualification Motion, his failure to file it under seal will result in sanctions
regardless of his beliefs concerning the confidentiality of certain content contained
therein.
III.

CONCLUSION

For the foregoing reasons, the Court ORDERS that PayCargo’s motion to
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strike be GRANTED in part and DENIED in part:
A.

PayCargo’s motion to strike Probiv’s Disqualification Motion is
GRANTED. The Clerk is instructed to strike [D.E. 167] from the record.

B.

PayCargo’s motion for an Order to Show Cause against Probiv regarding
his failure to abide by the stipulated protective order when filing his
Disqualification Motion is DENIED.

C.

Probiv has leave to filed an amended Disqualification Motion under seal.
Although he is not required to file such a motion, his failure to file it
under seal – should he choose to do so – will result in sanctions.

D.

If

necessary,

PayCargo

may

respond

to

Probiv’s

amended

Disqualification Motion up to 14 days after the stay imposed by [D.E.
181] is lifted by Judge Williams.

If such a response is warranted,

PayCargo has leave to file its response under seal.
E.

If necessary, Probiv may reply to PayCargo’s response in opposition to
his amended Disqualification Motion within seven days of the filing of
PayCargo’s response.

If such a reply is warranted, Probiv has leave to

file his reply under seal.
DONE AND SUBMITTED in Chambers at Miami, Florida this 10th day of
January, 2022.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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