Stelor Productions, v. Silvers

Filing 103

MOTION by Stelor Productions (Attorney ) to strike [99-1] supplement to (dj, Deputy Clerk)

Stelor Productions, v. Silvers

Doc. 103

Case 9:05-cv-80393-DTKH

Document 103

Entered on FLSD Docket 01/18/2006

Page 1 of 7 Jan 17 2006

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 TO STRIKE DEFENDANT'S "SUPPLEMENT" Silvers' Supplement in Support of Motion for Attorneys' Fees and Expenses, and Sanctions should be stricken. Silvers has already filed an initial motion (DE#83), a reply (DE#94), and a memorandum in opposition to a motion for leave to file sur-reply (DE#97). He should not be permitted to file yet more papers, in disregard of the applicable rules of procedure. See Local Rule 7.1.C. This is especially so, given the content of the Supplement, which is an incredible effort by Silvers to support an unfounded accusation of perjury with a fragment of hearsay from some unidentified proceeding by a witness who herself admits she has lied! Thus, Silvers ­ yet again ­ seeks to label Mr. Esrig a "perjurer". Without any legitimate substantiation, Silvers contends that Mr. Esrig somehow forced Rebecca Gardner ­ an apparently disgruntled former employee of Stelor ­ to lie to the police in connection with the Police Report submitted by Stelor with its Sur-Reply (another copy of which is attached as Exhibit "A" hereto). Of course, the purpose of the Police Report was to document Stelor's claim that a former employee, Michael Sagan, stole documents and information from Stelor that have apparently ended up in the hands of Silvers' counsel. The Police Report also "reports" that Mr. Sagan

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threatened other Stelor personnel, including Mr. Esrig. The point of Stelor's inclusion of the Police Report, though, was to evidence Sagan's theft of documents. The death threats are clearly far afield from the issues in this case. Nevertheless, Silvers files his supplement, alleging that Mr. Esrig "told" Ms. Gardner to lie about the death threats. The support for that assertion by Silvers is a fragment of a transcript from some unidentified proceeding, in which Ms. Gardner purportedly claims she never told the police what appears on the report regarding the death threats. She thus seeks to disavow the express description in the Police Report by a Montgomery County, Maryland Police Officer of the death threats she told the officer Mr. Sagan had made, threatening to "kill her and the Esrigs." This unauthenticated transcript of hearsay testimony by a woman claiming she never said what a Police Officer reports she said is hardly credible. Certainly, that does not support the strongly-worded assertion by Silvers that Mr. Esrig is a "perjurer". Rather, it suggests that Silvers is improperly relying on inconsistent statements and stolen information from disgruntled former employees of Stelor. In fact, although Silvers fails to point this out, this fragment of a transcript actually supports Mr. Esrig's testimony that documents were stolen by Mr. Sagan. Thus, this woman admits in the transcript that she "had noticed that Mr. Sagan was making a disk at his computer . . . . he was copying his hard drive onto a disk." Transcript at 257:21-285:1, :8. She knew that was wrong, moreover, and describes how she immediately reported it to Mr. Esrig. Id. Indeed, she admitted that it was reasonable for Stelor to prevent further unauthorized copying of its files by changing computer passwords. Id. 263:8-16. She also admits that she did make the statement

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to the Police Officer, as contained in the Report, that Mr. Sagan was downloading files and should not have been. Id. at 265:7-18. CONCLUSION It should be clear by now that Silvers' cries of perjury are entirely unfounded. Silvers' elaborate efforts to support his bogus claims of perjury simply highlights the weakness of his underlying claim for fees and sanctions. He knows that unless he can inflame this Court, the claim for fees will fail. There is no perjury; Mr. Esrig has not lied. Silvers' ceaseless campaign to discredit Mr. Esrig should be put to a stop. The Supplement should be stricken, and Silvers' motion for fees and sanctions should be denied. BURLINGTON, WEIL, SCHWIEP, KAPLAN & BLONSKY, P.A. Attorneys for Plaintiff 2699 South Bayshore Drive, PH 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

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served via electronic mail and U.S. mail on this 17th day of December 2005 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

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