Stelor Productions, v. Silvers

Filing 100

MOTION by Stelor Productions (Attorney ) for protective order preventing unauthorized discovery by defendant; and incorporated memorandum of law (dj, Deputy Clerk) Modified on 01/17/2006

Stelor Productions, v. Silvers

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. 05-80393 CIV HURLEY/HOPKINS STELOR PRODUCTIONS, L.L.C., a Delaware limited liability company, f/k/a STELOR PRODUCTIONS, INC., Plaintiff, vs. STEVEN A. SILVERS, a Florida resident, Defendant. ________________________________________/ PLAINTIFF'S MOTION FOR PROTECTIVE ORDER PREVENTING UNAUTHORIZED DISCOVERY BY DEFENDANT; AND INCORPORATED MEMORANDUM OF LAW Plaintiff Stelor Productions, LLC, by and through undersigned counsel, hereby moves on the following grounds for entry of an order preventing Defendant from conducting unauthorized discovery: INTRODUCTION Silvers seeks to do exactly what Rule 11 and the Courts have cautioned against: turning a request for fees into a second major litigation. Perhaps recognizing his inability to support a fee claim through the voluminous papers already filed ­ including an initial motion (DE#83), a reply (DE#94), a memorandum in opposition to a motion for leave to file sur-reply (DE#97), and weeks later (without court permission or any basis under the rules), another "Supplement" served just yesterday ­ Silvers has now noticed for deposition a member of Stelor's board of directors, Henry Epstein. A true and correct copy of the Notice is attached hereto as Exhibit "A". In correspondence, moreover, Silvers' counsel has announced they "intend to take discovery of each person who has submitted a declaration in support of Stelor." (See Exhibit "B" hereto).

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This is improper and entirely unnecessary. The discovery should not be allowed, and the fees motion should be denied. MEMORANDUM OF LAW Silvers' latest effort to stretch the rules in support of his unfounded fees motion should not be permitted. Just as Silvers ignored the express requirements of Rule 11 to serve (but not file) a motion as an essential prerequisite, he now seeks to ignore the established rule that such sanctions proceedings be limited to the existing record, with discovery "conducted only by leave of court, and then only in extraordinary circumstances." Fed. R. Civ. P. 11, Advisory Committee Notes to 1983 Amendment; Donaldson v. Clark, 819 F.2d 1551, 1561 (11th Cir. 1987) (quoting Committee Notes with approval); Amwest Mortgage Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir. 1991) (noting parties not permitted to conduct discovery in connection with Rule 11 motion); Borowsky v. DePuy, Inc., 876 F.2d 1339, 1340 (7th Cir. 1989) (upholding district court's denial of motion for leave to conduct discovery); Indianapolis Colts v. Mayor & City Council, 775 F.2d 177, 183 (7th Cir. 1985) (district court properly denied request to conduct discovery related to Rule 11 motion); In re Concorde Nopal Agency, Inc. v. Sun Bank/Miami, N.A., 92 B.R. 956, 957 (S.D. Fla. Bankr. 1988) (discovery in connection with Rule 11 motion improper, where leave of court neither sought nor granted). The arrogant response by Silvers' counsel to our good-faith effort to resolve this discovery issue unfairly burdens this Court with needless sniping. Thus, opposing counsel proclaims, "The deposition is appropriate, and you know that." Counsel then warns that "A motion for protective order is simply frivolous and will be met with a motion for additional

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sanctions." (See January 12, 2006 Letter from Gail A. McQuilkin attached hereto as Exhibit "B".) It is beyond argument that such depositions be conducted "only by leave of court, and then only in extraordinary circumstances." Id. Silvers has not even attempted to follow this rule, or make the required showing. Ironically, Silvers' counsel had themselves advised this Court in a paper filed on or about September 12, 2005 following the order of dismissal, that they "cannot proceed to obtain this information [through discovery] under a case which has been dismissed." They stated further that "the Court has no authority, given the lack of subject matter jurisdiction" even to address a discovery dispute between the parties. A true and correct copy of this Response (DE#79) is attached hereto as Exhibit "C". While screaming that Stelor has committed perjury and misrepresented information to the Court, they conveniently seek to do exactly what they themselves previously advised the Court could not be done. It is this type of conduct ­ compared with Stelor's candor in advising the Court no diversity existed ­ that should not be permitted. Stelor invites counsel to join the issue on the high road. As the Seventh Circuit explained in denying a similar attempt to take discovery, "We intend to end this vexatious litigation rather than encourage parties to pursue secondary and patently frivolous litigation over attorneys' fees." Indianapolis Colts, 775 F.2d at 183. That is the appropriate outcome here as well. SILVERS' IMPROPER DOCUMENT REQUEST AND FAILURE TO COORDINATE Silvers also requests production from the director, at the deposition on 10 days' notice, of "[a]ny and all documents relating to Stelor Productions, Inc. and Stelor Productions, LLC." Even were discovery permissible, and it is not, this request is obviously overbroad and Stelor 3

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objects to it. As Silvers' counsel has already admitted, they "cannot proceed to obtain this information [through discovery] under a case which has been dismissed." In addition, the

request does not provide the required 30 days' time to respond pursuant to Rule 30(b)(5) and Rule 34. Insofar as the Notice and accompanying request appear to be directed at Mr. Epstein individually, rather than as a director of Stelor, Silvers should not be permitted to compel his attendance at deposition in Miami. Instead, even were Silvers' authorized to notice this

deposition (and he is not), Silvers would properly be required to travel to a location convenient for Mr. Epstein.1 CONCLUSION No discovery should be permitted in connection with Silvers' pending motion for fees. The motion is an arrogant and unfounded attempt to recover fees to which Silvers is not entitled. This dispute has not been decided on the merits, and continues to be hotly litigated by the parties in other forums. The dismissal here, moreover, was triggered by Stelor's own advice to the Court that diversity did not exist. Clearly, Stelor did not conceal that fact; rather, Stelor

promptly disclosed it upon discovery, in two separate papers (DE##'s 74 & 76). When this dispute is ultimately decided on the merits, there will be a prevailing party likely entitled to fees under the applicable agreements. The parties' efforts and resources should be devoted to advancing this ongoing dispute toward a resolution on the merits, not to a collateral and unnecessary satellite litigation regarding an unfounded fees motion.

Counsel also has a conflict with previously scheduled depositions on the date noticed by Silvers, which was not coordinated. 4

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WHEREFORE, Stelor respectfully requests entry of an order preventing Silvers from pursuing unauthorized discovery, and denying his Motion for Fees and Expenses. LOCAL RULE 7.1(A)(3) CERTIFICATION Counsel certifies that they have conferred with counsel for Silvers in a good faith effort to resolve the issues raised in the motion and have been unable to do so. True and correct copies of counsel's correspondence and opposing counsel's response are included as Exhibit "B" hereto. BURLINGTON, WEIL, SCHWIEP, KAPLAN & BLONSKY, P.A. Attorneys for Plaintiff Office in the Grove, Penthouse A 2699 South Bayshore Drive Miami, Florida 33133 Tel: [phone] Fax: [phone] By: /s/ Kevin C. Kaplan Kevin C. Kaplan, Esq. Florida Bar No. 933848 David J. Zack, Esq. Florida Bar No. 641685 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served via electronic mail and U.S. mail on this 13th day of January, 2006 upon the following: Adam T. Rabin, Esq. DIMOND, KAPLAN & ROTHSTEIN, P.A. Trump Plaza 525 S. Flagler Drive, Suite 200 West Palm Beach, Florida 33401 Kenneth R. Hartmann, Esq. Gail M. McQuilkin, Esq. KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon Blvd., 9th Floor Coral Gables, Florida 33134 /s/ Kevin C. Kaplan Kevin C. Kaplan 5

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UNITE D STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

STELOR PRODUCTIONS, L.L.C., a Delaware corporation, f/k/a STELOR PRODUCTIONS, INC., Plaintiff, v. STEVEN A. SILVERS, a Florida resident, Defendant. ___________________________________

Case No. 05-80393-CIV-HURLEY

P L A I N T I F F 'S NOTICE OF VIDEOTAPED D E P O S I T I O N DUCES TECUM OF HENRY EPSTEIN
PLE ASE TAKE NOTICE that the undersigned law firm will take the deposition of the below-named person/entity on the date and at the hour indicated. Name: Date: Time: Locat ion: HENRY EPSTEIN Friday, January 20, 2006 9:30 a.m. Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134

and requires that the deponent bring to the deposition all documents listed on the attached "Exhibit A." The oral examination will be recorded before Esquire Court Reporting and/or any other officer authorized to take depositions in the State of Florida. The deposition is being taken for the purpose of discovery, for use at trial, or both of the foregoing, or for such other purposes as are permitted under the applicable and governing rules.

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Respectfully submitted this 10th day of January, 2006.
s/ GAIL A. MCQUILKIN Kenneth R. Hartmann (Fla. Bar #664286) G a i l A. McQuilkin (Fla. Bar #969338) K O Z Y A K TROPIN & THROCKMORTON, P.A. 25 25 Ponce de Leon, 9 t h Floor M i a mi , Florida 33134 T : 305-372-1800 / F: 305-372-3508

A d a m T. Rabin (Fla. Bar #985635) D IM O N D KAPLAN & ROTHSTEIN, P.A. 5 2 5 S. Flagler Drive, Trump Plaza, Suite 200 W e s t Palm Beach, Florida 33401 T : 561-671-2110 / F: 561-671-1951

=================================================================== CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 10th day of January, 2006, via first class mail and e-mail on the following: Kevin C. Kaplan, Esq. Burlington Weil Schwiep Kaplan & Blonsky 269 9 S. Bayshore Drive, Penthouse, Miami, Florida 33133 E-mail: [e-mail]

s/ GAIL A. MCQUILKIN
33 39 /10 3/2 61 55 6.1

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EXHIBIT A
DEFINITIONS F o r the purposes of this subpoena of documents, the following words will have the meaning i n d i ca t e d below: 1) "D ocum ent" or "documents" shall mean any kind of written, typed, recorded, or graphic m a t t e r , however produced or reproduced, of any kind or description, whether sent or received, including o r ig in a ls , non-identical copies and drafts and both sides thereof, and including but not limited to: papers, b o o k s, letters, correspondence, telegrams, bulletins, notices, cards, announcements, instructions, charts, m a n ua l s, brochures, schedules, cables, telex or facsimile messages, memoranda, notes, notations, a c c o u n t a n t s ' working papers, transcriptions, minutes, agendas, reports and recordings of telephone or o t h er conversations, of interviews, of conferences or of other meetings, affidavits, statements, summaries, o p i n io n s , seconds, reports, studies, analyses, evaluations, contracts, agreements, journals, statistical r ec or d s , desk calendars, rolodex cards, appointment books, diaries, lists, tabulations, sound recordings, comp uter printouts, data processing input and output, microfilms, all other records kept by electronic, p h o t o g r a p h i c or mechanical means, and things similar to any of the foregoing, whether or not in printout f o rm , and any other documents as defined in the Federal Rules of Civil Procedure. These terms shall also m e a n copies of documents even though the originals are not in your possession, custody or control; every c o p y of a document which contains handwritten or other notations or which otherwise does not duplicate t h e original of any other copy; and all attachments to any document. 2) " P o s s e s s i o n , custody or control" of documents means documents within your actual or c o n s t r u c t i v e possession, custody or control or within the right of possession, custody or control of any of y ou r departments, officers, directors, shareholders, employees, contractors, representatives, consultants, a g en t s or attorneys. 3) " A n d " as well as "or" shall be construed both disjunctively and conjunctively so as to b r in g within the scope of each of these requests any information that otherwise might be construed to be o u t s i d e the scope of any request. 4) " Y o u " and "Your" shall mean the subpoenaed entity and shall include any partner, a d m i n i s t r a t o r , consultant, principal, attorney, employee, shareholder, director, officer, agent or r e p r e s e n t a t i v e of the subpoenaed entity or any other person acting under the control or supervision of any of the subpoenaed entity or in concert or association with any of the subp oen aed entity. INSTRUCTIONS 1) A l l documents produced for inspection shall be produced as they are kept in the usual c o ur s e of business or shall be organized and labeled in a manner that clearly identifies and indicates that t h e documents are being produced in response to the particular categories or requests. 2) If any documents or categories of documents called for cannot be produced in full or in p a r t , the subpoenaed entity shall state in writing the reasons for their inability to produce all or any p o r t io n of the documents or categories of documents called for, and serve those reasons on the Plaintiff at the time required for response.

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3) I f any document or category of documents requested has been destroyed or believed to be d e s t r o y e d , please set forth the contents of the document, the date of such destruction and the name of the p e r s o n s who conducted, authorized and directed such destruction. 4) A word in the singular tense used in this request may be read in its plural tense if such is a p p r o p r i a t e in the context in which it is used, and vice versa, and the use of one gender shall include the other. 5) T h i s request is a continuing one. If after producing documents, you become aware of any f u rt h er documents responsive to this request, you are requested to produce such additional documents.

DOCUMENTS REQUESTED
1. Any and all documents relating to Stelor Productions, Inc. and Stelor Productions, LLC.

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Gail A. McQuilkin, Esq.
[e-mail] | 305.377.0656

Via Email: [e-mail] January 12, 2006 Kevin C. Kaplan, Esq. Burlington Weil Schwiep Kaplan & Blonsky, P.A. 2699 S. Bayshore Drive, Penthouse A Miami, Florida 33133 Re: Dear Kevin: The deposition is appropriate, and you know that. The decision to award attorneys' fees is based on evidentiary submissions. You have filed the declaration of Mr. Epstein in connection with Stelor's opposition to our fees request, and accordingly we are entitled to cross-examine him on his statements, and seek other discovery from him that goes to his credibility. And, to the extent time allows before a Report and Recommendation issues, we intend to take discovery of each person who has submitted a declaration in support of Stelor. A motion for protective order is simply frivolous and will be met with a motion for additional sanctions. Sincerely, Deposition of Henry Epstein

Gail A. McQuilkin
3339/101/261653.1

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