HomeMy Public PortalAbout2014CC15050 O'Boyle vs. Town of Gulfstream - Hearing Trial Trabscript 11-29-17 (2)· · · IN THE FIFTEENTH JUDICIAL COUNTY COURT
· · · IN AND FOR PALM BEACH COUNTY, FLORIDA
· · · ·CASE NO.:· 50-2014-CC-015050-XXXX-MB
MARTIN E O'BOYLE,
ASSET ENHANCEMENT INC.,
· · · · · ·Plaintiffs/Petitioners,
vs.
THE TOWN OF GULFSTREAM,
· · · · · ·Defendant/Respondent.
____________________________________/
· · · · · · · · PROCEEDINGS BEFORE
· · · · · · HONORABLE DANA M. SANTINO
DATE:· NOVEMBER 29, 2017
TIME:· 1:37 - 4:04 P.M.
Page 2
· · · · · · · · · · I N D E X
NOVEMBER 29, 2017
ROBERT SWEETAPPLE, ESQ.
· · · · · · · · · DIRECT· CROSS· REDIRECT· RECROSS
·By Ms. O'Connor· · 65
·By Mr. Rivas· · · ·(No questions.)
· · · · · · · · ·E X H I B I T S
· · · · · · · · ·Identified· · Admitted
Joint Exhibit Number 1· · · · · 9· · · · · ·22
(A public records request.)
Joint Exhibit Number 2· · · · · 9· · · · · ·22
(A standard form of
acknowledgment.)
Joint Exhibit Number 3· · · · ·10· · · · · ·22
(A response to public records
request.)
Joint Exhibit Number 4· · · · ·25
(An invoice.)
Plaintiff's Exhibit Number 1· · 21· · · · · 22
(Answers to interrogatories.)
Page 3
· · · · ·APPEARING ON BEHALF OF PLAINTIFF:
· · · · · ·Robert Rivas, Esquire
· · · · · ·SACHS SAX CAPLAN, PL
· · · · · ·6111 Broken Sound Parkway Northwest
· · · · · ·Suite 200
· · · · · ·Boca Raton, Florida 33487
· · · · · ·Jonathan R. O'Boyle, Esquire
· · · · · ·William F. Ring, Jr., Esquire
· · · · · ·THE O'BOYLE LAW FIRM, PL
· · · · · ·1286 West Newport Center Drive
· · · · · ·Deerfield Beach, Florida 33442
· · · · ·APPEARING ON BEHALF OF DEFENDANT:
· · · · · ·Joanne M. O'Connor, Esquire
· · · · · ·JONES, FOSTER, JOHNSTON & STUBBS
· · · · · ·505 South Flagler Drive, Suite 1100
· · · · · ·West Palm Beach, Florida 33401
· · · · · ·Edward C. Nazzaro, Esquire
· · · · · ·TOWN OF GULF STREAM
· · · · · ·100 Sea Drive
· · · · · ·Gulf Stream, Florida 33483
· · · · · · · · · · · - - -
· · · · · ·BE IT REMEMBERED that the following
proceedings were taken in the above-styled cause
before Honorable Dana M. Santino at the Palm Beach
County Courthouse, 205 North Dixie Highway, Room
6A, in the City of West Palm Beach, County of Palm
Beach, State of Florida, on Wednesday, the 29th
day of November, 2017, to wit:
· · · · ·THE COURT:· Okay.· We're slated for a
· · three-hour non -- three-and-a-half hour
· · non-jury trial today.· Are we going to stick
· · to that timeline?
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· · ·MS. O'CONNOR:· I don't think we'll need
that much time, Your Honor.
· · ·THE COURT:· Okay.· Is that the feeling on
both sides?
· · ·MR. RIVAS:· We think the case should take
no more than an hour.· But --
· · ·THE COURT:· Okay.
· · ·MR. RIVAS:· -- we don't know what the --
· · ·THE COURT:· Listen, that is my hope, too.
I just want to make sure that we have enough
time, under the circumstances.· I read
through everything, so I just want to make
sure.· All right.
· · ·I do have a court reporter there.· How
are you?
· · ·THE REPORTER:· Fine, thank you.· How are
you?
· · ·THE COURT:· Why don't you proceed.
· · ·MR. RIVAS:· You want us to make our
appearances for the court reporter?
· · ·THE COURT:· Absolutely.· And what I'm
going to do, please do not think I am not
paying attention.· I take my notes on
computer.· So I will be doing that while you
guys are presenting your cases and your
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witnesses and the testimony.· Okay?
· · ·MR. RIVAS:· Very good, Your Honor.
· · ·THE COURT:· Thank you.
· · ·MR. RIVAS:· Robert Rivas for the
plaintiff.· With me is my co-counsel,
Jonathan O'Boyle.· And these tables are
small, but the corporate representative of
Asset Enhancement, Inc. is William Ring.
He's vice president.
· · ·THE COURT:· Okay.
· · ·MS. O'CONNOR:· Good afternoon, Your
Honor.· Joanne O'Connor with Jones, Foster,
Johnston and Stubbs for the Town of Gulf
Stream.· And with me is the town staff
attorney, Trey Nazzaro, and also, our one
witness we'll be calling is Robert
Sweetapple.
· · ·THE COURT:· Okay.· Perfect.· Thank you
very much.
· · ·And Mr. Sweetapple, you're going to be
the only witness, I think, that's going to be
presenting any sort of -- and the corporate
rep.· As you come up -- you're probably pros
at this -- we're going to swear you in and
then we'll take it from there.· There will be
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a direct and a cross and maybe redirect,
limited to costs, et cetera, so...· Okay?
· · ·Okay.· You may proceed.
· · ·MR. RIVAS:· Shall I?
· · ·THE COURT:· Are you going to be
presenting openings?· How are you going to --
· · ·MS. O'CONNOR:· I would like to, Your
Honor.
· · ·MR. RIVAS:· In presenting an opening, I'd
like the Court's permission to do some of the
evidence by presenting the joint exhibits so
I can walk Your Honor through the matters in
the case all at one time instead of having an
opening and then having to separate those
things out.
· · ·THE COURT:· Sure.· I mean if that's going
to be an efficient use of time, as long as
there's no objection.
· · ·MS. O'CONNOR:· No objection, Your Honor.
And actually, I just spoke with Mr. Rivas and
they dropped Count 2 over the weekend, so
we're now here before you on Count 1, which
is limited to the redaction issue.· And I do
have a highlighted copy of the invoice at
issue, that may be helpful for you and for
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the witnesses that are going to follow along.
· · ·THE COURT:· Have you seen the --
· · ·MR. RIVAS:· Yes.
· · ·THE COURT:· Okay.· And no objection?
· · ·MR. RIVAS:· There's no problem with that.
· · ·THE COURT:· Okay.· Perfect.
· · ·MR. RIVAS:· It's just a demonstrative
aid.
· · ·THE COURT:· Okay.· That's fine.
· · ·MR. RIVAS:· Thank you, Your Honor.
Robert Rivas for the plaintiff.· As Your
Honor, I'm sure, knows, Florida is regarded
across the country as the number one state in
the union in terms of its commitment to
government in the sunshine, that is to say
the Public Records and Open Meeting Laws.
The people of this state hold open government
so dear that they have put the right of
access to public records and open meetings in
the constitution and provided that these
provisions are self-executing.
· · ·The Public Records Law, as the background
essential rule of law governing everything
about a case is that it's to be read broadly,
in favor of open government.· There are
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countless cases that recite this.· And any
exemption from public records, from access --
public access to records is to be construed
narrowly and with any uncertainty about
enforcement to be interpreted in favor of
openness.· Just as in baseball, the tie goes
to the runner, while in the public records
enforcement, the tie goes to the public
record requester.
· · ·The particular case before the Court
today involves a public records request made
on December 17th, 2014 by the corporation
Asset Enhancement, Inc.· I may sometimes call
it AEI for short.· We'll now offer to the
Court, so that I can combine, sort of,
opening and a bit of the evidence, what we've
agreed is going to be Joint Exhibit 1.
· · ·THE COURT:· Have they been premarked?
· · ·MR. RIVAS:· It's -- may I?
· · ·THE COURT:· Yes.
· · ·MR. RIVAS:· That's the public records
request.· It's very simple.· It was provided,
there's no dispute about most of the facts --
and I'll let you know when I get to something
that's disputed -- but it was provided on
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December 17 by the corporation to the town.
· · ·(A public records request was marked for
identification as Joint Exhibit Number 1.)
· · ·MR. RIVAS:· The public records request,
Joint Exhibit 1, basically asks for an
invoice from Robert Sweetapple that was
rendered by Robert Sweetapple as outside
counsel for the -- to the Town of Gulf
Stream.· Then, as now, Mr. Sweetapple served
as outside counsel for the town.
· · ·Two days later, the town sent AEI a
standard form of acknowledgment, they use all
the time, of the public records request and
basically, it says, "Will use best efforts to
get back to you about this public records
request within a reasonable length of time."
And we've agreed to offer this to the Court
as Joint Exhibit 2.
· · ·(A standard form of acknowledgment was
marked for identification as Joint Exhibit
Number 2.)
· · ·MR. RIVAS:· You want to give Ms. O'Connor
copies in case she wants to double check it.
· · ·MR. O'BOYLE:· Sure.
· · ·THE COURT:· Thank you.
Page 10
· · ·MR. RIVAS:· Joint Exhibit 2.· On January
6th of 2015, AEI received a response to the
public records request.· The response, we've
agreed, is going to be given to the Court as
Joint Exhibit 3 without objection.
· · ·THE COURT:· This was the town's response,
you stated?
· · ·MR. RIVAS:· This is the town's response.
· · ·(A response to public records request was
marked for identification as Joint Exhibit
3.)
· · ·MR. RIVAS:· Joint Exhibit 3 reflects the
town told AEI that the responsive records
were posted online.· That's perfectly okay,
that's a lawful way to respond.· We've been
online, pulled down the documents.· There's
also no issue about the length of time the
town took.· There's no evidence and nothing
to suggest in this case that the town was
nagged about how long it was taking, it was
20 days from the day that the documents were
requested until the day that they were
produced.
· · ·AEI never urged the town to hurry before
the response was received.· AEI never
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complained about it in this litigation as to
the length of time it took to respond.· Time
is not of the essence in this case and it's
not an issue in this litigation.
· · ·Under Section -- I will get to 4 in just
a few minutes -- but under Section 119.07 of
the Public Records Law, when an agency
withholds a public record from public
disclosure, making it available to a
requester, because it's exempt from
disclosure, the document categorically is
exempt or because it contains something
specific in it, let's just say it's got a
social security number, that's exempt from
disclosure.· The town would be obligated to
produce the rest of the document, redact the
social security number.
· · ·I don't think there's any dispute about
what I'm saying here, generally speaking,
about how this rule of law works.· The
town -- so the town can redact things.· And
when the town -- when an agency in Florida
responds to a public records request, the
agency is required to answer by including a
statement as to the explanation for any
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redactions, any documents that are withheld
from disclosure because they're categorically
exempt.· That's not an issue in this case.
The only issue in this case -- this is really
narrow.· The only issue in this case is the
three black-marked redactions that you see in
Joint Exhibit 3.
· · ·The town produced the invoice that it
received with reference to the pertinent time
frame under the request from Mr. Sweetapple
and the town, in its cover letter, which is
within Joint Exhibit 3.· Identified the
statutory authorization for the redaction as
being Section 119.071(1)(d).· Let me give
Your Honor a copy of a little handout we've
made.· It's got the three --
· · ·THE COURT:· Is this demonstrative?
· · ·MR. RIVAS:· Yes.· It's just the law.
These laws have got so many provisions I
thought it would be helpful just to visually
see something that's very succinctly --
· · ·THE COURT:· Is there any objections?
· · ·MS. O'CONNOR:· No objection, Your Honor.
· · ·MR. RIVAS:· -- just succinctly includes
nothing but the relevant passages.· So that's
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what those are.· The -- will be occupied in
this proceeding with those provisions.
· · ·The town's public records response said,
at the end of the cover page to Joint Exhibit
3, "We consider this matter closed."· So the
town said, we're done complying with this
particular public records request.· This is
what you got.· Count 1 of the amended
complaint was filed a few days later.
· · ·Now, there was another count, a Count 2,
which we filed voluntary dismissal of a
couple of days ago.· That complained that
certain documents of another public --
different public records request were not
produced, have never been produced.· We've
voluntarily dismissed that count so as to
reduce the entire claim, the entire case to
those three redactions.
· · ·The essence of our showing at this final
hearing is that the three redactions are
improper under Section 119.07(1)(d).· And let
me talk for a minute about the law applicable
to that particular subsection.· People often
refer to it as the attorney/client privilege
exemption.· They often refer to it as the
Page 14
work product exemption, or both.· It has
certain similarities to the attorney/client
privilege and the work product exemption.
And it's recognizable as being something
similar or something that is intended
to import those concepts into the Public
Records Law and to create an exemption.· But
it's important to understand that in many
cases, going back to the '70s, the Supreme
Court of Florida and all the district courts
of appeal of Florida have agreed the
legislature, in enacting the Public Records
Law, is the client of every lawyer in the
state who represents every state agency.· As
a result, the legislature has the power to
waive the attorney/client privilege and the
work product doctrine.· The legislature did
waive it in enacting the Public Records Law.
· · ·A public record cannot be withheld on the
basis of the attorney/client privilege itself
or the work product doctrine itself.· The
public record can only be withheld under the
terms of this statutory exemption, which is
not the same thing as the attorney/client
privilege.· As Your Honor knows, the
Page 15
attorney/client privilege is constantly
evolving, being tested against different
factual situations, weird wrinkles and facts,
attempts to withhold things in litigation.
All of that is stripped away.· The only thing
that can lawfully be withheld is that which
is expressly and specifically included within
the terms of Section 119.07(1)(d).· So if we
take to referring to that in these
proceedings at any time as the
attorney/client privilege exemption or the
work product exemption, that's okay, we use
that as a shorthand, but it always has to be
remembered that it's not the same thing; the
exemption is what it is.· It's got the words
in the statute on its face and that's all
that's exempt and it's narrower than the
attorney/client privilege.
· · ·I also want to give Your Honor, as to
complete our case in chief, the -- a copy of
the town's response to AEI's request for
admissions.· They're in the file, there's no
need for them to be authenticated, admitted
as evidence, but I'm going to give Your Honor
a courtesy copy to use during the trial.· But
Page 16
they are, as a matter of law, a part of the
record and the file.
· · ·The -- I don't think we -- if I can just
talk to co-counsel for a second.
· · ·THE COURT:· Okay.· And has opposing
counsel -- I mean, obviously, they're
admissions.· But has she seen what it is that
you're going to be handing to the Court?
· · ·MS. O'CONNOR:· No.
· · ·MR. RIVAS:· It's just the -- we don't --
is there anything other than the admissions
that's not replicated in the answers?· Can we
just give her the answers?· Don't we have the
entire admissions?
· · ·MR. O'BOYLE:· These admissions are
complete.· I mean complete with the answers.
· · ·MR. RIVAS:· I'm going to give Your Honor
the answers, because the -- each answer
includes the question that it's answering.
· · ·THE COURT:· Now, is that demonstrative or
are you admitting that -- it's part of the
record, obviously.· Would you let defense
counsel, please, look at that before --
· · ·MR. RIVAS:· We've given it to her.
· · ·THE COURT:· Is that what she has?
Page 17
· · ·MR. RIVAS:· Yes.
· · ·THE COURT:· Okay.· My apologies.
· · ·MR. RIVAS:· Same thing.· Come to think of
it, there are exhibits attached to the
request.· So just in case they're needed,
I'll give Your Honor the request for
admissions and the response to request for
admissions, first to AEI and then also, the
ones to Marty O'Boyle.
· · ·Oh, they're both here?
· · ·MR. O'BOYLE:· The request.· You should
have both.
· · ·MR. RIVAS:· Okay.· I've given Ms.
O'Connor the one for AEI and I only have --
she doesn't have O'Boyle and I don't have
AEI.· This is O'Boyle, so we can give her a
copy.
· · ·MR. O'BOYLE:· They're all just copies.
· · ·MS. O'CONNOR:· Your Honor, I guess I'm
just not sure why these are pertinent with
Mr. O'Boyle having already dismissed his
claim.
· · ·THE COURT:· Before you hand that over,
can you respond?
· · ·MR. RIVAS:· She's got -- I'm sorry.
Page 18
Here's the other one.
· · ·THE COURT:· Well, are -- but do you want
to respond to Ms. O'Connor's --
· · ·MR. RIVAS:· Yes.
· · ·THE COURT:· -- before I do anything?
· · ·MR. RIVAS:· They're in the file, there
were admissions made by -- by the defendant.
One of them was served by one party, he's
still a party, Count 2 has been dismissed. I
reflected on where he's technically not a
party, but that's something that may have to
be litigated at a fees hearing.· But I think
both parties are still parties, even though
Count 2 has been dismissed.
· · ·And I believe what Ms. O'Connor is
referring to is the fact that Count 2 is
based on the public records request, which on
its face was made by Marty O'Boyle.· And
Count 1 is based on a public records request
which on its face was made by AEI.· Our
position is that these admissions, as to both
parties, are still equally valid at trial
today, having dismissed Count 2 a couple days
ago with Marty O'Boyle still being a party.
· · ·THE COURT:· How is he a party if we
Page 19
dismissed Count 2?· Because AEI is the only
one today going forward in this trial.
Because you are not entitled to fees if he
dismissed your case.
· · ·MR. RIVAS:· That's right.· I'm just not
clear on how he discontinued being a party
because one of the counts -- I mean he was
sued by the town in a counterclaim, he's been
a party to the litigation in every way, in
many ways throughout.· And the fact that
Count 2 is based on a public records request
that he made and Count 1 is not, I don't
think eliminates him as a party.
· · ·THE COURT:· Ms. O'Connor?
· · ·MS. O'CONNOR:· I mean, they're here
representing to the parties that that Count 2
has been dismissed and that they dismissed it
in a procedurally proper manner.· So I would
object to responses to requests for
admissions by a plaintiff that has no pending
claim coming into evidence.
· · ·THE COURT:· And I tend to agree with that
analysis.
· · ·MR. RIVAS:· Okay.· They're just spare
copies of what's in the court record.· If
Page 20
Your Honor wants to just toss the one --
· · ·THE COURT:· I'm going to give you back
the O'Boyle and I have the Asset.· Any
objection -- I'm going to throw this out.
· · ·MR. RIVAS:· That's fine.
· · ·THE COURT:· We will shred.· Any objection
to the Asset Enhancement, Inc.?
· · ·MS. O'CONNOR:· No, Your Honor.
· · ·THE COURT:· Okay.· Thank you.
· · ·MR. RIVAS:· The request for admission --
in the request for admission, the town makes
admissions, which are -- the first request of
the town is the publication to be subject to
Chapter 119; the second request is that the
plaintiff made the request, Joint Exhibit 1,
on December 17th, 2014; the third request is
that Sweetapple, Broeker & Varkas,
Mr. Sweetapple's law firm, has had an ongoing
attorney/client relationship with the town
since spring of 2014.· The fourth request for
admission is that the town has custody and
control of the documents that were requested
by the plaintiff.· The fifth is that the town
paid a November 2014 bill to Sweetapple,
Broeker & Varkas.· And the 18th is that
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Jones, Foster provides attorney services to
the town.
· · ·And then I'll turn to the
interrogatories, which I'd like to offer into
evidence.· If we're going to go
chronologically, they'd be Plaintiff's
Exhibit 1.
· · ·THE COURT:· Do you have an objection, Ms.
O'Connor?
· · ·MS. O'CONNOR:· Just to confirm, these are
answers to Asset Enhancement's
interrogatories?
· · ·MR. RIVAS:· Correct.
· · ·(Answers to interrogatories were marked
for identification as Plaintiff's Exhibit
Number 1.)
· · ·MS. O'CONNOR:· No objection.
· · ·THE COURT:· And then they are -- are they
already marked?
· · ·MR. RIVAS:· No, I didn't...
· · ·THE COURT:· Here, I'll give these to you
and if you will kindly, just because you're
walking back, in case Ms. O'Connor has any.
· · ·MR. RIVAS:· Thank you.
· · ·THE COURT:· And just for the record, I
Page 22
didn't make it clear:· Joint Exhibit 1, Joint
Exhibit 2 and Joint Exhibit 3 have been taken
into evidence.
· · ·(Joint Exhibits 1, 2 and 3 have been
admitted into evidence.)
· · ·And Plaintiff's 1 is now being taken into
evidence.
· · ·(Plaintiff's Exhibit Number 1 was
admitted into evidence.)
· · ·MR. RIVAS:· The interrogatory answers, I
may get into in more detail as the case
progresses, but for now, I'll just leave them
at that.
· · ·Having said all that, the -- the issue
here is that under Section 119.07(1)(g),
there is this exemption for material that is
described as -- I'm sorry -- 119.071 and then
(1)(d)1.; "A public record that was prepared
by an agency attorney, including an attorney
employed or retained by the agency or
employed or retained by another public
officer or agency to protect or represent the
interests of the agency having custody of the
record, or prepared at the attorney's express
direction, that reflects the mental
Page 23
impression, conclusion, litigation strategy,
or legal theory of the attorney or the
agency, and that was prepared exclusively for
civil or criminal litigation or for
adversarial administrative proceedings, or
that was prepared in anticipation of imminent
civil or criminal litigation or imminent
adversarial administrative proceedings, is
exempt," and the rest of the sentence means
from disclosure, even though it's a public
record, it's exempt from disclosure.
· · ·That's the exemption the town is relying
on.· In Section -- subsection 2 -- I'm sorry.
Now we need to go back to the first paragraph
with the one that I gave Your Honor;
119.07(1)(g).· It said that, "In any civil
action in which an exemption to this section
is asserted, if the exemption is alleged to
exist under or by virtue of Section
119.07(1)(d)," -- and then the rest are
irrelevant; several other subsections are
referred to.· But that's the one.· -- "the
public records or part thereof in question
shall be submitted to the Court for an
inspection in camera.· If an exemption is
Page 24
alleged to exist under or by virtue of" --
and then it names a different subsection
that's not pertinent here -- an inspection --
"an in camera inspection is discretionary
with the Court."· I do read that sentence
just to point out that they were perfectly
clear that "shall be" is the first one and
the authors intended that there would be
discretion only in the case of one that is
under this other subsection, not the one
we're under here today.· "If the court finds
that the asserted exemption is not
applicable, it shall order the public record
or part thereof in question to be immediately
produced for inspection or copying as
requested by the person seeking such access."
· · ·This statute is -- we're asking the Court
to enforce it today, even though four months
after the document was produced with the
exemptions, the town produced -- wrote us a
letter and sent us a copy of the stat -- of
the same invoice without the redactions.
· · ·I'm going to give Your Honor Joint
Exhibit 4.· And that's where the town sent
us...
Page 25
· · ·(An invoice was marked for identification
as Joint Exhibit Number 4.)
· · ·MR. RIVAS:· In Joint Exhibit 4, the town,
after the litigation was brought, gave us the
unredacted copies.· And since then, as far as
this count is concerned, the litigation has
proceeded solely to establish that at the
time the town complied with the Public
Records Law, the town violated the exemption
and the controlling -- the terms controlling
the exemption by producing the invoice with
improper redactions.· And with that, the
plaintiff rests.
· · ·I'm -- I'm sorry.· I'll wait until after
I've heard the opening statement of the
defendant.
· · ·THE COURT:· So this is your opening
statement with the submission of exhibits and
we're going to put on your witness after Ms.
O'Connor concludes her opening?
· · ·MR. RIVAS:· At this time, we don't
anticipate calling any witnesses.· I expect
to rest as soon as Ms. -- unless I'm
surprised by something I hear, I expect to
rest as soon as Ms. O'Connor finishes her
Page 26
opening.
· · ·THE COURT:· Okay.· Thank you.
· · ·MR. RIVAS:· Thank you.
· · ·MS. O'CONNOR:· Your Honor, may I approach
and just hand up some law that I've already
handed to --
· · ·THE COURT:· Sure.· Any objection?· You've
had an opportunity to look at this?
· · ·MR. RIVAS:· I'm sure I have.· I just
don't know what it is.
· · ·MS. O'CONNOR:· Just the one page from the
Sunshine Manual and the AGO opinion from
2000.
· · ·MR. RIVAS:· Okay.
· · ·THE COURT:· You have those?
· · ·MR. RIVAS:· Yes.
· · ·THE COURT:· No objection?
· · ·MR. RIVAS:· Those were in your letter --
with your letter to the judge, Ms. O'Connor?
They were in your letter --
· · ·MS. O'CONNOR:· I just handed them to the
judge.
· · ·MR. RIVAS:· Oh.
· · ·THE COURT:· Why don't we do this to be
safe, rather than sorry.· I'm sorry.· Would
Page 27
you mind just handing this over and having
plaintiff counsel look at it so there's no
confusion for the record?
· · ·MR. RIVAS:· All right.
· · ·THE COURT:· Thank you.
· · ·MS. O'CONNOR:· Good afternoon, Your
Honor.· Joanne O'Connor on behalf of the Town
of Gulf Stream, who it is my pleasure to
represent.· This case concerns solely, at
this point, a November 2014 invoice that, as
Mr. Rivas indicated, was produced more than
two-and-a-half years ago in fully unredacted
form.
· · ·The November 2014 invoice was requested
in December 2014, and I think it's important
for you, as you consider the time -- the
limited redactions that were made on this
invoice, to understand the circumstances that
we're facing, the Town of Gulf Stream and
you'll hear about this from Attorney
Sweetapple today.
· · ·The Town of Gulf Stream has about a
thousand residents, a handful of employees
working in town hall and what they were
facing in November and December of 2014 was
Page 28
unprecedented.· In December of 2014, there
were 41 lawsuits pending against the Town of
Gulf Stream.· I believe all of them were
pending in this courthouse.· There were a
dozen public records lawsuits brought by Mr.
O'Boyle or his affiliates, including the
plaintiff here, Asset Enhancement, of which
he is the sole principal.· There were
additional suits that Mr. O'Boyle has brought
against the town regarding alleged civil
rights violations.
· · ·By his own accounts, in the pleading that
he filed against Mr. Sweetapple, he had filed
30 lawsuits against the Town of Gulf Stream
since January of 2015.· In addition to Mr.
O'Boyle, who is joined by another town
resident, Christopher O'Hare, who is filing
dozens of public records lawsuits arising out
of hundreds of public records requests, they
were barraging the Town of Gulf Stream with.
And I say that because -- I'll ask Your Honor
to take judicial notice of all the lawsuits
that were pending against the Town of Gulf
Stream at this time period.· But there was
certainly no reason to believe that these
Page 29
lawsuits would not continue, that additional
litigation would not be imminent at the time
that Mr. Sweetapple completed his time
entries on the invoice at issue.· In fact,
there were four lawsuits that were filed in
September of 2014 alone.
· · ·You'll hear that --
· · ·MR. RIVAS:· Your Honor, I know -- I know
that there's --
· · ·THE COURT:· Wait, wait, wait.· Is this an
objection?
· · ·MR. RIVAS:· Yes.
· · ·THE COURT:· And what's your objection?
What's the legal basis for your objection?
· · ·MR. RIVAS:· This -- she's talking about
evidence that should never be allowed in. I
don't expect it to be allowed in.· It's not
relevant to the case.
· · ·THE COURT:· Okay.· So your legal basis is
relevance?
· · ·MR. RIVAS:· Right.
· · ·THE COURT:· Okay.· What is your response?
· · ·MS. O'CONNOR:· Your Honor, the redactions
at issue go to the litigation strategy and
you're going to hear from Mr. Sweetapple
Page 30
about how these entries, which included
things about references to making settlement
offers relative to some of these pending
cases and relative to appearing as counsel
for the town in additional cases, why that
represented litigation strategy.· So it's
important -- I'm sticking close to the time
period here, November and December 2014;
that's the time period at issue.· And that's
the time period I want to educate the Court
in terms of what Mr. Sweetapple was doing as
counsel for the town at this time so you can
understand what he was putting on his
invoices.
· · ·THE COURT:· Well, and Mr. Sweetapple will
testify to that, --
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· -- I'm presuming.
· · ·MS. O'CONNOR:· Yeah, I'm just
foreshadowing what he's going to testify to.
· · ·THE COURT:· And do you believe that is
relevant?
· · ·MR. RIVAS:· No, Your Honor.
· · ·THE COURT:· As to this particular
invoice?
Page 31
· · ·MR. RIVAS:· As to that particular
invoice, yes.· I believe the statute
requires, Your Honor, to look at the invoice
objectively and define whether or not the
redactions are legitimate.· Testimony about
surrounding circumstances is irrelevant.
It's not necessary to have any of this --
this is why I thought the town -- I thought
the trial should take an hour.· And the town
puts on the case that the town wants to put
on and if we don't know whether the Court's
going to consider it yet, the case could take
days.· I mean, there could be a parade of
witnesses.
· · ·She just now suggested that O'Boyle was
joined by O'Hare.· There's no evidence.
They've tried this over and over again.
There's no evidence in the world that O'Hare
was in any way connected to O'Boyle.
· · ·By the way, she's referring to
Mr. O'Boyle, John O'Boyle's father, not
Jonathan O'Boyle, which we talked about the
O'Boyles so far.
· · ·MS. O'CONNOR:· Your Honor, --
· · ·THE COURT:· Okay.
Page 32
· · ·MS. O'CONNOR:· I'm sorry.
· · ·THE COURT:· Your response?
· · ·MS. O'CONNOR:· My response is, one, in
their own trial memorandum, they indicated
that if we put on no evidence, that they
should somehow win.· Despite the fact that,
we submit, you could look at these redactions
yourself and decide that they certainly
represent work product, protected work
product information.
· · ·But Mr. Sweetapple, in order to explain
to this Court why these limited redactions on
his November 2014 bill constitute his
litigation strategy, certainly needs to
explain to Your Honor what the litigation was
that he was handling and was considered to be
handling.
· · ·One of the entries, he talks about Mayor
Morgan asking Mr. Sweetapple to appear in
additional cases.· Well, what additional
cases?· I need Mr. Sweetapple to explain that
to Your Honor.
· · ·THE COURT:· Well, and before you respond,
I think that this is non-jury trial, so it's
up to the Court to weigh the evidence and
Page 33
consider that which is relevant and not
relevant.· And I think that you will have
ample opportunity to object when the witness
is testifying as to specific answers to
specific questions.
· · ·MR. RIVAS:· Your Honor, I'd like to make
a different, additional objection and move in
limine to prevent all this evidence for a
different basis, if I may.
· · ·THE COURT:· You want to move in limine in
the middle of the trial?
· · ·MR. RIVAS:· I want to move for all of
this evidence that she's proffering right now
to be excluded.
· · ·THE COURT:· Based on?
· · ·MR. RIVAS:· Because last week, we
received these answers --
· · ·THE COURT:· But realize you didn't
proffer --· so now you're -- it's an ore
tenus motion in limine without proper notice
to the opposing counsel, correct?
· · ·MR. RIVAS:· You'll see, when I explain
the facts, why we didn't have an opportunity.
There was discovery outstanding, it was
responded to last week.· In the discovery,
Page 34
the town repeatedly asserted two things to
block our discovery in the requests for
admission and interrogatory answers.· One is
that the information, such as the context --
all of what she just now offered to tell you,
to have Mr. Sweetapple testify to you, the
context, who -- why it was litigation
strategy, all that.· They objected on the
basis that it was within the attorney/client
privilege, and so they didn't answer the
interrogatories.
· · ·And then they went on to say it's
irrelevant because they asserted -- and it's
beyond the scope -- not only irrelevant, but
not even reasonably calculated to lead to the
discovery of admissible information.· Because
the town asserted that the elements of the
cause of action under Chapter 119, in the
trial cause of action, under -- and discovery
in Chapter 119 -- and this is correct, by the
way; it's our position, as well.· The
answer -- or objection to the interrogatory
question.· Discovery in a Chapter 119 matter
is limited to whether the documents
identified in the public records request
Page 35
exist, whether the exemptions -- whether any
statutory exemptions to public inspection of
such documents, the latter being the issue
here.· That's it, those two things.· And it
goes on to say, "Because the request seeks
information beyond these issues, it is over
broad and imposes an unreasonable burden on
the town."· This, we received a week ago.
Last -- late last week.· And before the
trial, I asked whether the town agreed with
this position still and the town did not
intend to put on evidence of any -- I might
have moved in limine, but I -- I believed, in
good faith, that since they've asserted these
objections in these discovery responses that
the town was taking the position that they
took in the discovery responses and the town
would be bound by them and that the town
didn't even -- there wouldn't even be an
argument because the town intended to live by
them because these are the responses that the
town gave.· All of this information is
irrelevant, according to the town's objection
to the responses to the discovery.
· · ·THE COURT:· What's your response?
Page 36
· · ·MS. O'CONNOR:· Several things.· Number
one, we object procedurally to this motion
being made at this time.· Number two, they
certainly were on notice.· I'm not sure what
interrogatory he's reading from, but, Your
Honor, Plaintiff's Exhibit 1, our answer to
interrogatory number 9 -- and by the way,
these interrogatories, this is a
three-and-a-half year old suit, almost
four-year-old suit.· They served us with
interrogatories about 35 days ago so that
they would be due, like, days before this
trial.· I think we asked for a one-day,
two-day extension.· We got them in on file.
· · ·If you look at number 9, which asked us
to identify, with detail, all facts
supporting our first affirmative defense, and
our first affirmative defense, essentially,
was we complied with the statute, this
material is exempt.· We didn't assert
exemptions, we didn't assert any objections
in answering, we cited to the statute.· The
statute that, again, is going to require Your
Honor to determine if these redactions,
"reflect a mental impression, conclusion,
Page 37
litigation strategy or legal theory of the
attorney and was prepared exclusively for
civil or criminal litigation or in
anticipation of imminent civil litigation.
· · ·I don't know how you can do that without
knowing what was the existing litigation,
what litigation was imminent and what were
the litigation strategies that were being
contemplated at the time.· We go on in this
answer, not to object, but to explain exactly
what I've explained to Your Honor here, that
at the time of this invoice and the limited
redactions therein, the town was already
involved in dozens of pending lawsuits by and
between O'Boyle and many of his affiliated
entities, as well as another town resident,
Christopher O'Hare, and we go.· That's
exactly what -- the statement I made in my
opening here.
· · ·They certainly have understood, they even
subpoenaed Mr. Sweetapple themselves for
trial, so I don't understand how they can
claim some kind of prejudice that they
weren't on notice.
· · ·And I don't -- again, they're the ones
Page 38
that have taken the position that we need to
put on evidence to support these exemptions
and that's what we're doing.
· · ·THE COURT:· Okay.· This Court's going to
overrule both objections, based on relevance
and -- I guess there was only a relevance
objection?· And I'm going to deny the
request, the ore tenus motion in limine.
· · ·Proceed.
· · ·MS. O'CONNOR:· Sure.· Your Honor, at the
time, obviously, this is a November 2014
invoice that we're dealing with by the
Sweetapple, Broeker & Varkas law firm.
Attorney Sweetapple has been retained by the
Town of Gulf Stream.· The town counsel had
authorized him to come in and represent them
in these public records lawsuits.· They did
that back in March of 2014.· Mr. Sweetapple
had accepted that representation in April
2014 and he thereafter had begun to appear
not in every public records case, but in
select public records cases.
· · ·Thereafter, he did due diligence -- he
did diligence, he assisted the town in
investigating whether they had defenses or
Page 39
counterclaims that could be brought to these
various public records lawsuits.
· · ·Two months before the request at issue,
in response, we submit, to the town bringing
Mr. Sweetapple into the litigation, Mr.
O'Boyle, again, a principal of Asset
Enhancement, had sued Attorney Sweetapple
individually for slander, conspiracy, and an
entity affiliated with Mr. O'Boyle, The
Citizen's Awareness Foundation, Inc. that
sued Attorney Sweetapple, claiming certain
documents provided to him were confidential,
privileged information.· So there was -- this
was aggressively fought litigation as we come
into the fall of 2014.· And what would appear
is that this request that was made by Asset
Enhancement for Mr. Sweetapple's invoices was
not alone.· Mr. Sweetapple was routinely
getting public records requests coming
through the Town of Gulf Stream for his
invoices.
· · ·So essentially, you have an opponent in
an active pending litigation, dozens of
litigations.· You have an opponent asking for
your attorney invoices that reflect
Page 40
attorney -- what your attorney is doing to
defend the cases.· It was clearly and
transparently an attempt to obtain work
product information, to gather information
regarding the town's strategies for defending
these dozens and dozens of suits that were
pending, and to use it to disadvantage the
town and to advantage Mr. O'Boyle, Asset
Enhancement and the other plaintiffs in these
lawsuits.
· · ·Mr. Rivas explains and outlines the
exemption, the work product and we agree that
it's not an attorney/client privilege, it's
an opinion work product privilege.· There's
three elements that you'll need to find to
support our redactions, which we submit are
all easily found here.· Number one, that
there was a public record prepared by an
agency attorney.· We don't dispute that these
invoices are public records.
· · ·But the question is:· Does this -- does
the redacted language reflect a mental
impression, a conclusion, a litigation
strategy or a legal theory of the attorney or
the agency?· That's the second question.
Page 41
· · ·We assert that the redacted information
clearly constitutes the town's litigation --
references to the town's litigation strategy.
And the third item is that the exempt work
product has to have been prepared exclusively
for civil or criminal litigation, or in
anticipation of imminent civil or criminal
litigation.
· · ·Now, the plaintiff, in their trial
memorandum, tried to suggest that somehow an
attorney bill or invoice is not something
that's prepared exclusively for civil or
criminal litigation.· They did so without any
law in support, and we submit, and I've given
you the government and the Sunshine Manual
from 2017, page 117, which summarizes the
pertinent law and you have the backup
information.
· · ·But if you see in paragraph 1A, attorney
bills and payments are expressly discussed in
terms of the exemption, and in the second
paragraph, the Sunshine Manual cites to a
1985 attorney general opinion talking about
if the bills and invoices contain some exempt
work product; i.e., mental impressions,
Page 42
conclusions, litigation strategy or legal
theories, the exempt material may be deleted
and the remainder disclosed.
· · ·And again, in the Herskovitz versus Leon
County case, they talk, obviously, of an
entry in a billing statement which identifies
the specific legal strategy to be considered
or puts a specific amount of settlement
authority received from the client would fall
within the exemption.
· · ·By contrast, Your Honor, there's cases
that say, such as the Smith and Williams'
cases, that, you know, a municipality is not
entitled to just wholesale redact the entire
invoice.· Can't withhold it, can't wholesale
redact it.· Things like how much
Mr. Sweetapple is charging per hour, how many
hours he works on a particular task or not,
work product in the context of Section 119.
And that's not what was redacted here.
· · ·So again, there's -- we submit there is
no law supporting their position that somehow
the attorney invoice, an invoice by an
attorney who solely handles litigation, was
not prepared exclusively for civil
Page 43
litigation.
· · ·We -- Section 119.07(1)(d) required the
town to redact that portion to which an
exemption has been asserted.· Let me hand
that up to Your Honor, because I'm not sure
that was part of what was provided.
· · ·THE COURT:· That's -- which
one exactly --
· · ·MS. O'CONNOR:· Let me hand it up.· I'm
not sure if he has, if that's okay.
· · ·THE COURT:· Has opposing counsel seen
this?
· · ·MS. O'CONNOR:· He has it, as well.
· · ·MR. RIVAS:· Which is it?
· · ·MS. O'CONNOR:· It's the Statute 119.07 --
· · ·THE COURT:· The Statute and (d) and then
(e) are highlighted; 119.07 (d) and then (e).
· · ·MR. RIVAS:· Okay.
· · ·THE COURT:· Are you sure?· Okay.· No
objection.
· · ·MS. O'CONNOR:· So, Your Honor, once the
exempt work product is identified, then the
municipality shall redact that portion of the
record to which an exemption has been
asserted and produce the remainder.· And
Page 44
that's what happened here.
· · ·Also, under (1)(e), the town has to
identify the statutory citation to the
exemption created by a statute.· We did both
of those things; we redacted the portion of
the record to which the exemption was
asserted and validly applied, we produced the
remainder, timely, for inspection, as Mr.
Rivas has conceded.· We identified
119.071(1)(d) as the statutory basis of our
exemption.· And also, in our cover letter, at
Exhibit 3, we told them -- we reiterated the
basis of the exemption and who the parties
were to the litigation addressed.
· · ·I want to talk about the limited
redactions.· Again, you'll hear the scope of
the litigation that the town was facing at
the time that Mr. Sweetapple was representing
them in November of 2014.· His invoice has 45
entries.· Only three of them were redacted,
and even then, they were only partially
redacted.· What we're talking about here are
a total of 15 words.· This is not a case of a
municipality trying to avoid public
disclosure of public records.
Page 45
· · ·This is a case where a municipality --
frankly, I think the town probably could have
been much more aggressive than it was in this
invoice.· These redactions were strictly
construed by the town, very limited in terms
of the opinion, work product and the
litigation strategy that was redacted here.
· · ·There's three redactions at issue and
you'll hear about them from Mr. Sweetapple.
The first one involves a reference on page 2
of the invoice to a New Jersey counsel.
You'll hear from Mr. Sweetapple about his
discovery of the fact that Mr. O'Boyle had a
lengthy history with the town of Longport,
New Jersey.· There's a nearly identical
pattern of abuse of the Public Records Law
resulting in litigation there.· And the fact
that the town was investigating that conduct,
speaking to New Jersey counsel was part and
parcel of the town's strategy of discovering
information that could be used in defense of
these cases.· And certainly, disclosure of
the fact that New Jersey counsel had been
consulted would have immediately tipped
Mr. O'Boyle off to that strategy.
Page 46
· · ·MR. RIVAS:· That is -- Your Honor, I
object on the basis that I'm asking the Court
to enforce an estoppel against the town
putting on this information.· That exact
question is in the interrogatories and
there's a long two paragraphs explaining why
it's objectionable; because it's
attorney/client privileged information and
because it's irrelevant to the litigation.
· · ·THE COURT:· Okay.· Bear with me and point
me in the direction of where you're --
· · ·MR. RIVAS:· If you look at the
plaintiff's first set of interrogatories to
the defendant, --
· · ·THE COURT:· Is that -- okay.
· · ·MR. RIVAS:· -- Asset Enhancement, --
· · ·THE COURT:· Which question?
· · ·MR. RIVAS:· -- question number 19. I
just jumped to my feet at this moment,
because it's the clearest example, I mean
it's unusually clear.· All this stuff is
prohibited by the interrogatory answers if
the Court enforces an estoppel against the
town changing its position --
· · ·THE COURT:· Okay.
Page 47
· · ·MR. RIVAS:· -- at trial.
· · ·THE COURT:· Please walk me through it so
I can give you what you want.
· · ·MR. RIVAS:· This precise one, it said --
the question was -- the question in 19:· "Who
was the New Jersey counsel?"· It says -- the
words, "NJ counsel" are redacted from the
invoice.
· · ·THE COURT:· Okay.· Where are you? I
don't --
· · ·MR. RIVAS:· In the answers to
interrogatories, the plaintiff's first set of
interrogatories.
· · ·THE COURT:· Okay.· I have the admissions.
Where are the interrogatories?· Is that --
okay.· My apologies.· Here it is.
· · ·MR. RIVAS:· No problem.· Asks that -- and
these are the interrogatories served by Asset
Enhancement on the town, answered last week.
Question 19:· "Who was the NJ counsel" --
those are the exact words redacted -- "listed
in the 11/10/2014 redaction?· See attached
billing records as Exhibit A."· Answer:
"Objection.· The town objects on the grounds
that the request seeks information protected
Page 48
by the attorney/client and work product
privileges.· The town further objects because
it seeks information that is not reasonably
likely to lead to discoverable information."
· · ·And by the way, I renew my relevance
objection because the town asserts that it is
irrelevant.· Not only irrelevant, but beyond
the scope of discovery with the loser
standard.· Discovery -- goes on to say,
"Discovery in a Chapter 119 matter is limited
to whether the documents identified in the
public records request exist, whether the
documents sought are public records and
whether there are any statutory exemptions to
public inspection of such documents."
· · ·Now, this is not in the abstract.· It's
in response to the precise question that
counsel is now representing to the Court in
opening statement that Mr. Sweetapple's going
to testify, about who was the New Jersey
counsel, why was it exempt under the public
records -- public disclosure, on grounds that
it was litigation strategy.· The exact matter
at issue in this litigation.· And the answer
is that it's not only irrelevant, but beyond
Page 49
the scope of discovery.
· · ·If you look at question 8 of the request
for admissions, the one Your Honor had in
your hand a second earlier, it requests --
request number 8, I guess rather than a
question -- admit that the redaction --
redacted phrase "NJ counsel" in the 11/10/14
billing entry on Exhibit B, which is the
invoice in question here, refers to New
Jersey attorney David W. Sufrin, Esquire.
That's who she's talking about.· That's who
she's now saying she's going to have
Mr. Sweetapple come and testify to the Court
about.
· · ·In response to her request for admission,
the town says, "Objection on the grounds that
the discovery seeks information that is not
likely to lead to the discovery of admissible
evidence."· And it goes on to recite the
whole -- it contends -- which we agree, it's
a correct statement of the law -- discovery
is limited to whether the documents are
public records and whether there are any
statutory exemptions to public -- sorry --
inspection of public documents, the latter
Page 50
being the issue here.· Because the request
for admissions seeks information beyond these
issues, it is over broad and imposes an
unreasonable burden on the town.· The town
further objects," the last sentence, "as the
request seeks information protected by the
work product and/or attorney/client
privileges.· Again and again, in response to
the exact things Ms. O'Connor is now saying
Mr. Sweetapple is going to testify about.
· · ·And I appreciate this time because this
is a bigger issue than just one objection,
because it can affect the course of the
trial.· And it needs to be fully aired.
These responses assert objections that are,
in part, correct, and it is irrelevant, so
relevance is another objection.· But the
estoppel thing, it's just wrong for a party
to serve an answer to an interrogatory that
objects on these bases and then represent to
the Court at the start of the trial that
they're going to put on a witness to prove
these exact things.
· · ·The reason we subpoenaed Mr. Sweetapple,
and it's been suggested to you that we must
Page 51
have anticipated that we were going to use
this information.· No.· The reason we
subpoenaed Mr. Sweetapple to be here today is
in case our objections were overruled, in
case Your Honor went down that road and
decided to let them do that and put on
evidence and maybe they'd even use a
different witness to put on the same
evidence, we wanted to be prepared to rebut
it by questioning Mr. Sweetapple, again,
extending the trial, making the trial into
something much more complex than it is,
something that's going to take longer than it
should take, when it's about three simple
redactions.
· · ·And on the face of the redactions, maybe
we can put the arguments about the redactions
up front in order to shorten the trial.
Because on the face of the redactions and the
face of the bills, it is preposterous to
suggest that these three redactions are
proper.· They're -- they're the same
information as disclosed in many other places
in the same invoices.· The information is
just not -- it just can't possibly qualify
Page 52
objectively under the standard of the
statute.
· · ·THE COURT:· Your response?
· · ·MS. O'CONNOR:· Yes, Your Honor.· These
are good lawyers on the other side that know
how to ask a question in an interrogatory and
a request for admission.· And if you look
carefully, the question to which we objected
was, "Who was the New Jersey counsel?" I
haven't said anything about who that person
was, I don't expect Mr. Sweetapple to testify
to it, the town hasn't waived privilege as to
that information.· Again, this is
aggressively hard-fought litigation.
· · ·There's no reason that Your Honor can't
hear testimony, in fact, needs to hear
testimony from Mr. Sweetapple as to why
having a conversation with a New Jersey
lawyer represented litigation of a
strategy -- litigation strategy of the town.
Doesn't matter who that lawyer is, Mr.
Sweetapple can testify as to why the facts
that he felt it necessary to speak with a
lawyer in New Jersey represents the town's
litigation strategy that was protected by the
Page 53
work product privilege.· Doesn't matter who
the individual was and that's what both of
these questions ask.
· · ·THE COURT:· What is your response to
that?· Because immediately upon your
objection when we were going down that road,
that's what I thought about.· Who cares who
it is?· If this Court's to determine whether
or not it falls within the exemption under
the statute, how can we not take that into
consideration?· Not who it is, but the
purpose of the conversation.
· · ·MR. RIVAS:· Because the -- it's
impossible to talk about what happened in New
Jersey without disclosing the identity of the
attorney, and without expanding the trial
into a sub-trial on an issue that shouldn't
be here.
· · ·The guy, Sufrin, and Mr. Sweetapple
conspired to commit a crime and to obtain --
· · ·THE COURT:· How exactly is that relevant?
· · ·MR. RIVAS:· Because that's why he
redacted the name -- the reference to the New
Jersey attorney.· He thought that it would be
really harmful to him, in personal litigation
Page 54
that was underway at the time -- see, this is
how broad it's going to get if we have to go
back and forth trying to explain the
surrounding circumstances.
· · ·He thought that if Mr. O'Boyle knew who
the New Jersey attorney was then he would
suddenly connect up the fact that Mr. Sufrin
and Mr. Sweetapple had committed offenses for
which -- very serious offenses to obtain
illegal, confidential medical information
about Mr. O'Boyle.· He didn't want
Mr. O'Boyle to come into possession of the
realization that that's what he was up to at
the time.
· · ·And identity of the lawyer in New Jersey,
the name of the lawyer in New Jersey, there's
only one lawyer in New Jersey this could
refer to and it's indispensable to the
explanation of the story.
· · ·THE COURT:· What's your response?
· · ·MS. O'CONNOR:· Respectfully, I submit
that Mr. Rivas is the one delaying this case.
We're just planning to put on evidence that
the town's litigation strategy was to reach
out to a lawyer in New Jersey who had had a
Page 55
prior experience, under the Public Records
Act, with Mr. O'Boyle.· So I mean, I guess we
have to see what he will -- you know, I don't
think my questions will open the door to a
cross-examination of the type that he's
discussing, but we can deal with it then.
But this is...
· · ·MR. RIVAS:· If I can make one final
comment, Your Honor.· If the name of the
lawyer is not relevant to the strategy, then
the whole thing wouldn't be redacted under
the statute.· I mean, what difference does it
make if he spoke to a New Jersey lawyer?· If
they don't realize who it is that we're going
to connect it up with, just any New Jersey
lawyer -- the idea that they can skate past
this issue by the subterfuge of saying, oh,
he didn't ask the name.
· · ·THE COURT:· But you're asking for
something personal to Mr. O'Boyle.· This is a
public records request, presumably from
somebody not related to Mr. O'Boyle at all
and the town is strategizing in their civil
litigation and you're connecting the dots. I
don't know --
Page 56
· · ·MR. RIVAS:· The town is going to -- I'm
sorry, I didn't mean to interrupt.· I thought
that that last sentence, you were done.
· · ·THE COURT:· Go ahead.
· · ·MR. RIVAS:· The town is going to try to
tell you the broader context of why the words
New Jersey -- NJ lawyer were, in fact,
connected to litigation strategy.· That door
opens us to show the words, New Jersey lawyer
were not connected to litigation strategy,
but were deleted for reasons that were not
legitimate under the Public Records Law and
because of Mr. Sweetapple's personal interest
in assuring that this information didn't come
out.· It's -- that's -- that's why it's a
rabbit trail that the Court ought to not let
the town go down.
· · ·THE COURT:· What's your response to the
argument that if you're going to show one
particular strategy, they have to essentially
negate it?
· · ·MS. O'CONNOR:· Well, he would have had to
know that.· That's our burden.· They've
indicated our burden is to show you that this
represents -- that this redacted information
Page 57
represents a litigation strategy or a mental
impression or conclusion.· It's right there
in the statute.· That's our burden to show.
What we're submitting here is that we don't
need to explain who the individual lawyer
was.· In fact, I think he just said if we had
not redacted New Jersey counsel, they would
have known that it's a small handful of
people who it could have been.
· · ·And so I mean, if he -- if he needs to
defend his case by putting on evidence that
this is not pertinent to the town's
litigation strategy, I don't see how he
wasn't on notice of that fact.· So that's our
burden.
· · ·THE COURT:· And your response to that?
· · ·MR. RIVAS:· All of this just illustrates
why the legislature, in the next paragraph of
that statute, it says why the statute is
there, the town's going to redact things and
it can't be questioned so courts ought to do
in camera inspections.· The in camera
inspection provision doesn't say anything
about allowing evidence from either side
before the in camera inspection takes place.
Page 58
· · ·The decision whether the redactions were
proper is supposed to be made by the Court in
camera.· Here, it's altered a little bit
because it's not necessary, because we've got
the unredacted documents.· So Your Honor
doesn't need to go look at them in camera.
But the principle still applies, that the
attorney's fees are to be awarded if the
redaction was improper.· And as a
consequence, if the Court had done an in
camera inspection, there wouldn't be any
evidence at the trial from the town as to
why.
· · ·THE COURT:· And how is this Court
supposed to determine whether it was or was
not an exempt -- part of the exempt --
exemption permitted in the statute without
any evidence put on by defense counsel to
that very thing?
· · ·MR. RIVAS:· Because --
· · ·THE COURT:· How would you, as plaintiff,
came here today -- how did you expect defense
to put on their case --
· · ·MR. RIVAS:· Their --
· · ·THE COURT:· -- to prove the exemption
Page 59
applies?
· · ·MR. RIVAS:· Our first threshold argument
is that the defense doesn't get to put on a
case.· The defense has to allow the Court to
look at the documents and decide, without any
extrinsic evidence, whether or not the -- the
statute provides that the redacted material
has to reflect a litigation strategy.· It
doesn't use a word that allows the Court to
approve of a redaction because there's a
reference to some little thing.· If the
reference to NJ counsel doesn't reflect the
litigation strategy, then it can't be
redacted.
· · ·Moreover, the references to the lawyer --
to the NJ -- one of the things that's so
ridiculous about it is that every one of the
supposedly redactable references in this
invoice is referred to elsewhere in the
invoice.· The invoice itself contains proof
that there's no legitimacy or that it's -- if
it were attorney/client privilege, it would
be deemed to be waived.· The same information
is available elsewhere in the same document.
These redaction are utterly random.· And it's
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on the face of the document itself.
· · ·THE COURT:· What is your response to the
fact -- to the assertion that you have no
right to put on any evidence or defense with
respect to today's hearing?
· · ·MS. O'CONNOR:· Sure.· I would refer Your
Honor to their own trial memorandum that they
submitted, I believe, yesterday on page 7.
It's a "gotcha," basically, claim, that under
chapter -- at the top of page 7 of their
trial brief, under Chapter 119, when an
agency claims exemption from disclosure, they
bear the burden of proving the right to the
exemption.· That means if both plaintiff and
defendant present no evidence, plaintiff will
be the prevailing party.· So clearly, they're
taking contradictory positions, their trial
brief directly contemplates that evidence
needs to be presented to Your Honor to
support the exemptions.
· · ·THE COURT:· Okay.· I'm going to overrule
the objection.
· · ·Proceed.
· · ·MS. O'CONNOR:· Okay.· Thank you.· Your
Honor, the next -- just briefly -- the next
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exemption is at page 3 of the invoice.· The
words, "settlement offer," Mr. Sweetapple
will testify that this relates to his
settlement offer the town was considering in
November of 2014 to Christopher O'Hare.
Again, he was one of the other town residents
who has been barraging the town with public
records requests and lawsuits.· The fact that
the town was considering a settlement offer
reflected the strategy to defend and resolve
those cases with Mr. O'Hare and to
potentially obtain Mr. O'Hare's agreement to
testify against Mr. O'Boyle on an imminent,
to-be-filed RICO litigation that the town did
file in February of 2015.
· · ·The final redaction is also on page 3, at
the November 19th entry, and it's a reference
to additional cases Mayor Morgan has asked R.
Sweetapple to appear in.· This entry reflects
a shift in the town's litigation strategy to
take a more aggressive stand for Mr.
Sweetapple to appear in additional cases.
And he'll discuss what that meant, that this
was actually done in January, late January
2015, after this invoice was produced.
Page 62
· · ·The town did file counterclaims,
including in this case against Mr. O'Boyle,
based on information that Mr. Sweetapple had
been gathering in his role as outside counsel
for the town.
· · ·And with that, we conclude our opening.
· · ·THE COURT:· Okay.· Thank you.
· · ·Mr. Rivas, do you want to call your
witness or are you going to call a witness?
· · ·MR. RIVAS:· We have no witnesses, Your
Honor.
· · ·THE COURT:· Okay.
· · ·MR. RIVAS:· The plaintiff rests.
· · ·THE COURT:· Okay.· Defense, your witness?
· · ·MS. O'CONNOR:· Yes.· Your Honor, first, I
have an amended request for judicial notice
that was filed previously with the Court.· If
I may approach.· And by this amend --
· · ·MR. RIVAS:· I object to the Court taking
judicial notice of these matters.
· · ·THE COURT:· What's the proper procedure
for judicial notice?
· · ·MR. RIVAS:· The proper procedure for
judicial notice is that they have to provide
the Court and opposing counsel reasonable
Page 63
time in advance with everything that's
necessary to enable the Court and the
opposing counsel to decide whether these
things can genuinely be disputed.
· · ·This is nothing but a list of cases.
There's no reason on the face of this
document to acknowledge that the docket of
the circuit court for this circuit reflects
that all these cases exist.· There's no
information about what's in them, what they
say, how they relate.· The first one is
Christopher O'Hare versus Town of Gulf
Stream.· It doesn't involve any of the
parties to this case.· It goes on and on
about Christopher O'Hare.· What are these
cases about?· What do they mean and why are
they relevant?· It's -- none of this is -- a
list of cases simply can't be a legitimate
source of -- an appropriate application
of judicial --
· · ·THE COURT:· Of judicial notice.
· · ·MR. RIVAS:· -- notice.
· · ·THE COURT:· Okay.· I tend to agree with
that analysis.· I think that your witness can
testify to the -- these cases or the nature
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· · of these cases and how it lends itself to the
· · litigation strategy.
· · · · ·MS. O'CONNOR:· Your Honor, the town calls
· · Robert Sweetapple.
· · · · ·THE COURT:· Mr. Sweetapple, would you
· · raise your right hand?
THEREUPON,
· · · · · · · ·ROBERT SWEETAPPLE,
having been first duly sworn by the Court, the
witness testified as follows:
· · · · ·THE WITNESS:· I do.
· · · · ·THE COURT:· Thank you.
· · · · ·MS. O'CONNOR:· Your Honor, may I approach
· · and provide Mr. Sweetapple a copy of the
· · highlighted invoice?
· · · · ·THE COURT:· Sure.· Has the defense [sic]
· · counsel taken a look at that?
· · · · ·MS. O'CONNOR:· Yes.
· · · · ·MR. RIVAS:· Is that the one you
· · highlighted with yellow?
· · · · ·MS. O'CONNOR:· Yes.
· · · · ·MR. RIVAS:· Yes, Your Honor, that's fine.
· · · · ·THE COURT:· Okay.
Page 65
· · · · · · · ·DIRECT EXAMINATION
BY MS. O'CONNOR:
· · Q.· ·Mr. Sweetapple, could you please state
your name for the record?
· · A.· ·Robert Sweetapple.
· · Q.· ·And how are you employed?
· · A.· ·I am an attorney, practicing law in the
state of Florida.
· · Q.· ·Okay.· And can you give the Court, just
briefly, your education?
· · A.· ·Well, I'm a local boy.· I graduated from
Nova High School in 1972, I graduated from Colgate
University in 1976 and from the University of
Florida Law School in 1979.
· · Q.· ·When were you admitted to the Florida
Bar?
· · A.· ·May of 1980.
· · Q.· ·Do you have any board certifications?
· · A.· ·Yes.· I'm Board Certified as a civil
trial lawyer and I'm also Board Certified as a
business litigator.
· · Q.· ·Do you have any other ratings or
certifications?
· · A.· ·I've been AV rated since, I believe, 1984
or 1985.
Page 66
· · Q.· ·Can you describe for the Court the nature
of your practice?
· · A.· ·All I've ever engaged in, since 1980, is
litigation.· I did some complex criminal
litigation up to 1984, but since that time, my
practice has exclusively been in civil litigation.
· · Q.· ·Thank you.· Directing your attention to
November 2014, was there a point in time where you
came to represent the Town of Gulf Stream?
· · A.· ·Yes.· I was retained in or about April of
2014 to represent the town with regard to an
inundation of public records requests that were
being filed by Martin O'Boyle and Christopher
O'Hare and their corporations and alter egos, all
being filed, with few exceptions --
· · · · ·MR. RIVAS:· Objection.· Predicate for his
· · knowledge of any of those facts he just now
· · stated.· He has no personal knowledge of
· · those things.
· · · · ·THE COURT:· Okay.· Sustained.
BY MS. O'CONNOR:
· · Q.· ·Did you represent the Town of Gulf Stream
in any pending public records litigation?
· · A.· ·Yes, I did.
· · Q.· ·Okay.· Do you recall, when you first were
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brought on to represent the town, how many
lawsuits were pending against it in the spring of
2014?
· · · · ·MR. RIVAS:· Objection.· Irrelevant.
· · · · ·THE COURT:· What was the question?
· · Your -- could repeat the question?
· · · · ·MS. O'CONNOR:· How many -- do you recall
· · how many pending public records lawsuits
· · there were against the town when you were
· · brought in to represent it in the spring of
· · 2014?
· · · · ·THE COURT:· Rephrase the question as to
· · how many he was personally involved with.
· · · · ·MS. O'CONNOR:· Sure.
· · · · ·THE COURT:· Is there an -- objection
· · over -- sustained -- pardon me.· Any
· · objection to rephrasing the question?
· · · · ·MR. RIVAS:· It would still be irrelevant
· · what -- how does the number of lawsuits he
· · was hired to represent the town in relate to
· · the redaction?
· · · · ·MS. O'CONNOR:· If I may, Your Honor?· One
· · of the redactions at issue talks about Mayor
· · Morgan requesting Mr. Sweetapple to appear in
· · additional cases.· Actually, if you look at
Page 68
· · the interrogatories, it's one of the
· · questions that they asked us in the
· · interrogatory in terms of -- I think you need
· · to understand how many cases there were
· · pending and how many he was handling at the
· · beginning and whether he started to handle
· · more as time went on, to understand the
· · redaction and what the strategy was in
· · November of 2014.
· · · · ·THE COURT:· Overruled.
· · · · ·THE WITNESS:· There were dozens of public
· · record lawsuits brought against the town by
· · Jonathan O'Boyle's law firm.
· · · · ·THE COURT:· How many were you, sir,
· · specifically involved in?
· · · · ·THE WITNESS:· I was hired to represent
· · the town with regard to all of the public
· · records litigation in April.· However, we
· · agreed that I would only appear in certain
· · cases in the beginning as counsel of record.
· · However, I was hired with regard to the
· · entire problem that existed at that time.
· · · · ·THE COURT:· Okay.
BY MS. O'CONNOR:
· · Q.· ·And can you describe, just briefly, for
Page 69
the Court what you did over the next six months,
leading up to this November 2014 invoice in terms
of representing the Town of Gulf Stream on --
· · · · ·MR. RIVAS:· Objection.
BY MS. O'CONNOR:
· · Q.· ·-- the public records lawsuits?
· · · · ·MR. RIVAS:· Objection.· Irrelevant.
· · · · ·THE COURT:· How am I -- how is this Court
· · supposed to understand the mental impression
· · of the counsel that was representing the town
· · in order to determine if this is an exemption
· · under the statute?
· · · · ·MR. RIVAS:· The question, as I see it,
· · about relevance, is how does the background
· · of things that took place over the months
· · before he made the redactions explain why he
· · made the redactions?· And they're not --
· · they're -- they're going to try to take the
· · Court down this thing that they were so
· · busy -- that's all it's about -- they were so
· · busy that they couldn't do things right.
· · · · ·THE COURT:· No.· I think their argument
· · is not that they were so busy they couldn't
· · do anything right.· I think their argument,
· · as I understand it, is it was exempt.
Page 70
· · ·MR. RIVAS:· No, they're arguing that they
incorrectly -- that if they over-redacted or
that the things that they redacted were
within the scope of the -- of the exemption
because of things that are not logically
related to explaining why they're within the
scope of the exemption.· They're using a
contorted reasoning to explain the exemption,
the assertion of the exemption.
· · ·THE COURT:· Overruled.· Because I don't
know any other way this Court is able to
determine whether or not the redactions were,
in fact, exempt without understanding why the
entries were made on the statements in the
first place.
· · ·Proceed.
· · ·THE WITNESS:· All right.· If I may, the
first area of inquiry that I delved into was
the fact that a number of the cases I
reviewed showed they were filed by Martin
O'Boyle's son's law firm, which was an
out-of-state law firm, and that Jonathan was
not a Florida lawyer.· I also noted a number
of the cases were filed before that entity --
by the O'Boyle Law Firm before it was even
Page 71
· · formed in Florida.· And I moved to disqualify
· · the O'Boyle Law Firm from the case, or more
· · than one case, I can't remember.
· · · · ·And in June, out of the blue, I was
· · contacted by a man named Joel Chandler --
· · · · ·MR. RIVAS:· I think this is beyond the
· · scope of the question.
· · · · ·THE COURT:· And how is what he's going to
· · tell me Joel Chandler told him not hearsay?
· · · · ·THE WITNESS:· I'm not going to offer
· · hearsay, Your Honor.· I'll avoid that.
· · · · ·THE COURT:· Okay.
· · · · ·THE WITNESS:· So Mr. Chandler --
· · · · ·THE COURT:· I'm sorry.
· · · · ·MR. RIVAS:· This is becoming a narrative.
· · · · ·THE COURT:· Okay.· Why don't we --
· · exactly.· Sustained.
· · · · ·Why don't you wait for a question.
· · · · ·THE WITNESS:· Okay.
· · · · ·THE COURT:· And we can go down that road.
· · · · ·THE WITNESS:· I will.
BY MS. O'CONNOR:
· · Q.· ·Mr. Sweetapple, describe for the Court,
if you can, what the town's litigation strategy
was, leading up to the fall of 2014, from the
Page 72
time --
· · A.· ·Based on -- based on information and
documents I received from what I would
characterize as a whistleblower for a company
controlled by Mr. O'Boyle, by the name of CAFI,
the town began to investigate, through my office
and through other counsel that were retained
thereafter, including Mr. Richman of the Richman
Greer Firm, the possibilities of a counterclaim
that I would bring for bad faith conduct as well
as a RICO case that would be brought, based on a
pattern of filing public records requests
throughout the state of Florida for the purpose of
shaking down governments and state contractors to
obtain attorneys' fees, rather than having to
defend public records cases.· Even so, that was
the context of how I was doing my work.
· · Q.· ·Let me ask you this:· You indicated that
there were dozens of public records lawsuits
pending at the town when you first were retained
in the spring of 2014.· Was that still the case in
November of 2014 when you completed the invoice at
issue in this case?
· · A.· ·No.· As a result of whatever, I can't
speculate, the O'Boyle Law Firm, on behalf of Mr.
Page 73
O'Hare and Mr. O'Boyle, almost doubled the number
of lawsuits.· I believe there were over 40
lawsuits and then that doesn't include the federal
cases that were launched against me and the mayor
and the state cases that were launched against me
and you and the mayor and whatnot.· But there were
probably close to 50 cases.· And I believe about
40 of them, in November, were public records
cases.· But I'd need to see the docket to be sure.
It was a moving number, obviously.
· · Q.· ·Mr. Sweetapple, I've given you a
demonstrative copy of the November 2014 invoice at
issue.· Do you see that?
· · A.· ·I do.
· · Q.· ·And do you recognize that as an invoice
of your law firm?
· · A.· ·Yes, I do.
· · Q.· ·Okay.· And can you explain to the Court
how the various -- the -- there's a number of
columns on the invoice, one of which includes
description.· Can you explain to the Court how the
information in the column or description gets on
the invoice?
· · A.· ·Yes.· Now that I am no longer a complete
dinosaur, I do not fill out time slips.· My
Page 74
daughter, who is my associate, made us get a
Rocket Matter program and I type in my time in my
iPhone.· So now, they -- then it's edited, because
my typing is not very impressive, or my thumbs are
too large.· But I'm the originator of any language
on the bill that has "RS" to the left of it.
· · Q.· ·Do you recall that a request -- a public
records request was made for this invoice of your
law firm?
· · A.· ·I do, because you contacted me to discuss
it when that occurred.
· · Q.· ·Have -- either before or after the public
records request for this invoice, have public
records requests been made for other invoices that
you prepared for work you had done for the Town of
Gulf Stream?
· · A.· ·That's my recollection, yes.
· · Q.· ·Let's take a look at the items that were
redacted.· On the bottom of page 2, do you see the
reference to "New Jersey counsel"?
· · A.· ·I do.
· · Q.· ·Can you explain to the Court how that
reference to New Jersey counsel reflected the
litigation strategy of the town in November of
2014?
Page 75
· · A.· ·Yes.· I became aware that Mr. O'Boyle had
engaged in largely the same scheme --
· · · · ·MR. RIVAS:· Objection.· Hearsay.
· · Predicate.
· · · · ·THE COURT:· I -- sustained.
BY MS. O'CONNOR:
· · Q.· ·Did there come a time where, as counsel
for the Town of Gulf Stream, you were looking at
Mr. O'Boyle's conduct in the state of New Jersey
to aid in the defense of the litigation that was
being brought against the town?
· · A.· ·Yes.· I did that, and in fact, the
specific allegations that I learned were
thereafter incorporated into counterclaims filed
in the state court and were incorporated into a
federal racketeering lawsuit for the style in
January of 2015.
· · Q.· ·And were those counterclaims in that
federal racketeering lawsuit imminent to be filed,
like, were you working on them in November of
2014?
· · A.· ·In 2014, I was investigating facts
related to the public records abuses that were
occurring and I was communicating everything that
I learned to Mr. Richman, who was investigating
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the racketeering lawsuit and representing -- and
he represented the town on the racketeering
lawsuit.
· · Q.· ·If you could turn to the top of page 3.
Do you see the highlighted reference to
"settlement offer"?
· · A.· ·Yes, I do.
· · Q.· ·What was the settlement offer to which
this entry refers?
· · A.· ·Well, that entry, as you can see, shows
that I was talking --
· · · · ·MR. RIVAS:· Your Honor, I just want to
· · renew my objection.· This is exactly what
· · they refused to answer in the interrogatories
· · and admitted in the admissions.· It's just
· · wrong for the town to --
· · · · ·THE COURT:· Point the Court to the
· · interrogatory you're referring to.
· · · · ·MR. RIVAS:· Interrogatory answer number
· · 10.· Admissions, I'm sorry.· Request for
· · admissions number 10.· Request for admissions
· · says, --
· · · · ·THE COURT:· Okay.· Go ahead.
· · · · ·MR. RIVAS:· -- "Admit that the 11/12/14
· · entry on Exhibit B," which redacted the term
Page 77
settlement offer, "referred to a settlement
offer extended to Marty O'Boyle."· Instead of
saying, no, it did not, which seems to be the
answer we're hearing now, it was something
else.· The answer was, "Objection.· The town
objects to this request on the grounds" --
and so forth.· Same grounds that I read to
Your Honor before.· It's a standard paragraph
that appears in response to many, many of the
interrogatory answers and requests for
admission on these exact same questions.
· · ·THE COURT:· Okay.· Ms. O'Connor, what's
your response to that?
· · ·MS. O'CONNOR:· My response is that in the
interrogatory answers that were filed a day
or two later, to the extent the town asserted
a privilege objection, it was waived because
we answered and provided them the responsive
information.
· · ·If I could have just a moment...
· · ·THE COURT:· In the interrogatories?
· · ·MS. O'CONNOR:· Correct.
· · ·MR. RIVAS:· Which one, may I ask?
· · ·MS. O'CONNOR:· I'm looking.
Interrogatory answer number 25, answer:· "The
Page 78
settlement offer referenced in the 11/12/2014
billing entry likely referred to a settlement
offer to Christopher O'Hare regarding public
records litigation."
· · ·THE COURT:· Mr. Rivas?
· · ·MR. RIVAS:· I don't see them withdraw --
that doesn't withdraw the answer to the
objections that are posed to the request for
admissions in it.· It says, "likely
referred," as if I couldn't rely on that
because I can't even know whether that's
really what it referred to.· And now, they
know what it refers to instead of, like in
the interrogatory, saying that -- it's
suggesting that they didn't know for sure
what it referred to.· But this request for
admissions is primarily what I stand on in
the estoppel argument.
· · ·THE COURT:· Okay.· And what is your
argument to stating "likely referred to a
settlement offer"?
· · ·MS. O'CONNOR:· I think that's an issue of
credibility that he can ask Mr. Sweetapple on
cross-examination.
· · ·THE COURT:· Okay.· I will over -- I'm
Page 79
· · sorry -- overrule the objection -- my
· · apologies -- and ask you to continue.· And
· · you're going to have ample opportunity to
· · cross examine.
· · · · ·MR. RIVAS:· Thank you, Your Honor.
· · · · ·THE WITNESS:· What's the pending
· · question?· I'm sorry.
BY MS. O'CONNOR:
· · Q.· ·What is the settlement offer to which
this entry refers, as you recall?
· · A.· ·I can tell you, unequivocally, I don't
have any doubt as to who it was extended to,
because there's only one person at this time I was
trying to get to settle with the town, and that
was Mr. O'Hare.· And the reason I was concerned
about my litigation strategy here is, in this
specific reference, where I'm talking about the
RICO case, there's a mention of the settlement
offer.· I was negotiating with an attorney by the
name of Mark Hanna for the purpose of getting Mr.
Christopher O'Hare, who was represented by
Jonathan O'Boyle and his law firm, to flip and to
testify against Martin O'Boyle in the RICO case.
And I was -- I had already had a private
settlement conference with Mr. Hanna at my office
Page 80
with a signed confidentiality agreement.· And I
was instructed by the town to accelerate those
efforts prior to the filing of the case.
· · · · ·So I had gotten authority to negotiate
and make a settlement offer to Mr. O'Hare in hopes
that he would settle certain of the Hanna cases
and then get paid his fees with regards to those
cases, but also testify with regard to the use of
runners and the splitting of attorneys' fees for
plaintiffs and other bad acts, including a
windfall profit scheme where more than the fees
that were incurred were being charged to
governments.
· · · · ·And unfortunately, I was unable to obtain
that cooperation, however, since that time, Mr.
O'Hare has dismissed all of his cases against the
town based on the settlement that occurred after a
bad faith final judgment entered by the Honorable
Thomas Barkdull against him.
· · Q.· ·Mr. Sweetapple, let's look at the final
redaction, November 19th, 2014.· Do you see the
highlighting, "additional cases Mayor Morgan has
asked R. Sweetapple to appear in"?· You had
indicated that at the onset of your representation
of the town, you had formally appeared in only
Page 81
select cases; is that right?
· · A.· ·That's correct.
· · Q.· ·Okay.· To what does this entry about
appearing in additional cases refer?
· · A.· ·That I was asked to appear in all cases,
and also, the strategy was to take all the
information that I had learned and to prepare from
the defenses and counterclaims in certain cases
setting forth the bad faith conduct of the
plaintiffs as the defense.
· · · · ·And if you look, you'll see that, in
fact, over the month of December of '14, including
the Christmas holidays, I worked with my associate
and prepared an extensive counterclaim involving
bad faith and also declaratory judgment with
regard to the alleged not-for-profit entity
controlled by the O'Boyles, known as CAFI, and
filed those in January of 2015.· And obviously, I
did not want -- I did not want the opponents who
were looking at these bills to know that I was
going to be appearing on all of the cases and that
I was preparing other pleadings.
· · · · ·There were also discussions at that time
about the likelihood that the RICO case would be
filed.· So basically, this redaction, like the
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others, would have let the opposition know what I
was in the midst of doing and what I was thinking
and what I was planning on doing.
· · Q.· ·You indicated that in this time, November
2014, there were about more than 40 lawsuits
pending against the town; is that right?
· · A.· ·Yes.
· · Q.· ·But you had only appeared in a select
number of cases.· Who was representing the town in
all those others cases?
· · A.· ·Your firm represented the town in all of
the cases and I became co-counsel.· Your firm is
the town attorney, as well.· And I believe Mr.
Hochman's firm, at some point, was representing
the town on many of those cases and ultimately
came into some of the public records cases.
Because of the abundance of the cases, it's been
impossible for any one firm to handle all the
litigation.
· · · · ·MR. RIVAS:· Objection.· Move to strike.
· · · · ·THE COURT:· Sustained.
BY MS. O'CONNOR:
· · Q.· ·Did the mayor asking you to appear in
additional cases at this time, in November 2014,
reflect a change in the town's litigation
Page 83
strategy?
· · A.· ·Yes, it did.
· · · · ·MS. O'CONNOR:· One moment, Your Honor.
· · No more questions.
· · · · ·THE COURT:· Mr. Rivas, any cross?
· · · · ·MR. RIVAS:· Could we ask the Court to
· · take a break?
· · · · ·THE COURT:· Sure.· How much time do you
· · need?
· · · · ·MR. RIVAS:· Just five minutes.
· · · · ·THE COURT:· Sure.· Yeah.· Absolutely.
· · · · ·MR. RIVAS:· May save some time.
· · · · ·THE COURT:· Yes.· No worries.· Sure.· Why
· · don't we take a five-minute recess and I'll
· · go back, too.· Okay?
· · · · ·(Brief recess.)
· · · · ·THE COURT:· Mr. Rivas, cross?
· · · · ·MR. RIVAS:· We have no questions for this
· · witness, Your Honor.
· · · · ·THE COURT:· Okay.· You're free to step
· · down.
· · · · ·THE WITNESS:· Thank you.
· · · · ·THE COURT:· Sure.· Do you wish the Court
· · to release the witness or do we want to keep
· · him around?· I don't know if you have
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someplace else to be.
· · ·THE WITNESS:· If I could head back to the
office, that would be great.
· · ·THE COURT:· It's up to counsels.
· · ·MR. RIVAS:· We have no objection.
· · ·MS. O'CONNOR:· That's fine.
· · ·THE COURT:· Do you have any other
witnesses?
· · ·MS. O'CONNOR:· No, Your Honor.
· · ·THE COURT:· None.· Okay.
· · ·Mr. Rivas, do you have a closing?
· · ·MR. RIVAS:· Yes, Your Honor.
· · ·In the trial brief, when we referred to
the burden being on the town to justify
exemptions, in context, that was before the
argument -- the subsection before the
argument began about these particular
redactions.· It was talking, generally, about
the government and the Sunshine Law, the
Public Records Law.· The Public Records Law
always puts the burden on the defendant.· And
that's all I was saying in that context.· We
submit that the redactions should be examined
by the Court and considered by the Court in
context and the answer to the question about
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whether they revealed -- whether they reflect
litigation strategy is these redactions don't
reflect anything that actually tells any
litigation strategy.
· · ·The exemption does not say that a town
may redact any information that makes
reference to something that the other side
might figure out is a litigation strategy or
might -- it's got to reflect the litigation
strategy in order to be exempt.
· · ·I need to back up.· Because our first
position is that under the statute, the
document has to be prepared exclusively for
litigation strategy.· And this document was
prepared as an invoice.· Many, many lawyers,
and I think some in this room, know when they
work for a municipal government that their
invoices are subject to examination as public
records and so they carefully don't put
anything in there that's useful because of
the arguments that will arise from it and
they produce invoices entirely without
redactions if they're accustomed to working
for government agencies.
· · ·We submit that the proper interpretation
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of the law is that because an invoice is not
prepared exclusively for the litigation
strategy, but is to the contrary, prepared
primarily to send an invoice to the town,
which every lawyer sending the invoice to the
town knows there's a question of whether it's
going to be fully disclosed or whether he'll
have an opportunity to redact it, a prudent
lawyer doesn't put attorney/client privileged
information, useful attorney/client
privileged information in there.
· · ·And the only cases -- there's only two
sources of authority that I know of for the
invoices of a lawyer, who works for an
agency, to be held for this exemption to
apply to references so that references can be
redacted.· One of them -- one source of
authority is an attorney general's opinion
that said that -- which I'm just urging the
Court to hold that the attorney general's
office is wrong.· Because it's interpreting
the statute incorrectly.· It's just an
attorney general's opinion.
· · ·The second case is from a circuit court
judge in Tallahassee, the very well-respected
Page 87
Terry Lewis, who mentioned it in dicta.· I'm
going to give Your Honor a copy of the case
that the -- that the town sent you last week
in the town's large package of cases and
trial memorandum.
· · ·THE COURT:· Uh-huh.
· · ·MR. RIVAS:· It's called Barbara
Herskovitz versus Leon County.
· · ·THE COURT:· Okay.
· · ·MR. RIVAS:· This is the other authority
with the idea that an agency of Florida can
redact bills.· It doesn't directly address
how it can redact bills if the bills are not
exclusively prepared for litigation strategy.
But nonetheless, it says on page 4, subpart
9(b), the last paragraph,
"Attorney/client/work product:· The
attorney/client or work product exemption has
been properly raised for the most part.· Each
of the separate files contain a significant
amount of correspondence by attorneys, which
invariably discusses a legal theory, a mental
impression or strategy concerning a case."
And it's referring to things besides bills at
this point.· It says, "There are also
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handwritten and typed notes of attorneys
concerning mental impressions of various
aspects of the case.· Although portions of
correspondence may contain material that
would not fall within this exemption, it is
difficult and impractical to produce the
correspondence with the exempt portions
redacted as the same as integral to the
entire matter."
· · ·And I've read that paragraph, although it
doesn't refer to attorney invoices, because
the next paragraph refers back to that.· It
says, "The same cannot be said for legal
bills.· Although some portion of the
statements for services rendered arguably
suggest strategy, mental impressions, et
cetera, the overwhelming majority of the
specific entries on the bills do not.
· · ·"Strictly for illustrative purposes, I
note that the 10/29/96 statement regarding WB
was six pages long.· Of the 15 entries on
page 1, four might be considered as falling
within the exemption.· On page 2, of 25
entries, three might be valid.· On page 3, of
24 entries, none would be considered valid.
Page 89
On page 4, of 22 entries, only two would be
considered valid.· On page 5, of 25 entries,
none were valid.· And on page 6, of five
entries, none were valid.
· · ·"Obviously, an entry on a statement,
which identifies a specific litigation
strategy to be considered or puts a specific
amount of settlement authority received from
the client would fall within the exemption."
· · ·Now, that statement of what he considers
to be obvious would be units accepted by the
attorney general and the one we asked the
Court to hold as not correct.
· · ·On the other hand, a notation that the
file was opened or that a letter was sent to
opposing counsel would not.· And I think
under that general discussion, you'd find
that all these exemptions are not exempt.
But you skip down and notice that even where
he referred to, "some might be," skip down to
the ordered and adjudged paragraph, the
decreedal [sic] clause on page 6, it says,
"The county shall produce for examination by
a plaintiff within ten days of this order,"
other things, but then it says, "all legal
Page 90
bills or statements for legal services
rendered contained in those files produced to
me for review."· He sustained the objection
as to zero entries on the invoices.· So the
reference to whether it's obvious that
invoices could be the subject of a redaction
under the exemption is really that he found
that even if they could be, none of these
were valid exemption -- validly redactable
under the statute.
· · ·Then we look to the redactions on these
invoices.· "RS conference with NJ counsel.
RS on 11/10/14."· "RS," that would be Robert
Sweetapple.· "Conference with NJ counsel."
NJ counsel is redacted.· Email.· I mean, on
its face, this does not reveal any -- I
shouldn't use the word reveal.· The statute
uses the word reflect.· This -- these two
words do not reflect any litigation strategy.
The statute would have to be rather than a
narrow interpretation, a broad interpretation
would have to be applied in which the Court
would have to say, well, if counsel can
suggest a reason why the use of two
particular words might disclose something to
Page 91
this particular requester that the town
didn't want him to know, then we'll sustain
the redaction.· That's what you have to --
that's how you have to interpret it.· These
words don't reflect any strategy, any --
anything that's within the exemption.· If you
look at the one on the entry on 11/20, --
· · ·THE COURT:· 11/12?
· · ·MR. RIVAS:· I'm skipping down.
· · ·THE COURT:· 11/19?
· · ·MR. RIVAS:· No.· I'm sorry.
· · ·Okay.· Skip down to 11/12 and there's the
one that refers to regarding settlement offer
and strategy on RICO suit.· It has been
depicted to you, in Mr. Sweetapple's
testimony, that the RICO suit itself, which
had not been filed at this time, it was -- it
was filed in March -- that's not in
evidence -- but it was filed in March of
2015, after this redaction took place.· And
he has suggested to you in his testimony that
the reason this needed to be redacted is
because of the disclosure of the very fact of
the RICO suit.· That's not true.· The fact of
the RICO suit is referred to a number of
Page 92
times in the invoice, other times.· And then
it says, "and strategy on RICO suit."· It
just refers to "settlement offer" without
even making clear whether the town had
received the settlement offer.· It just says,
"regarding settlement offer."· Whether the
town had received a settlement offer, whether
the town was considering the making of a
settlement offer, what case it was in.· Well,
it does make clear that it's the RICO suit,
but the only words that are redacted are
"settlement offer."· Those words don't
disclose a litigation strategy.
· · ·If you look at the way that Judge Lewis
interprets the statute, he would say that's
no more revealing than saying TC with
opposing counsel; telephone -- we use that
shorthand in my firm -- telephone conference
with opposing counsel.· The existence of a
settlement offer, it has not been established
that the very -- by his testimony -- anywhere
that the very existence of a settlement offer
in this context would have revealed any
litigation strategy.· If you look at the
entry on 12/13, the next entry after the
Page 93
redaction, --
· · ·THE COURT:· 11/13?
· · ·MR. RIVAS:· I'm sorry, 11/13 -- it says,
"RS meet with law clerk regarding settlement
proposal and strategy."· That's not redacted.
My point is that if you think of these as
analogous to the attorney/client privilege,
it was waived.· The exemption itself was
waived with reference to the settlement
proposal.· It appears elsewhere in here
without being redacted.
· · ·"Initial review of NJ transcript and
witness conference, revise motion."· When it
says, "initial review of NJ transcript," it's
clear that RS is investigating looking into
something about something in NJ.· So
elsewhere, when he redacts NJ counsel on
11/10/14, he says, "RS conference with NJ
counsel," that doesn't reveal anything except
something that's plain on the face of the
invoice and the unredacted passages.
· · ·Again, I submit, it doesn't reveal --
doesn't reflect a strategy, but in any event,
it -- to the extent it reflects that he's
investigating something in New Jersey, he's
Page 94
referred to it elsewhere.
· · ·Then on 11/19/14, "RS receipt and review
of emails.· Conference with Joanne O'Connor
and Law Clerk Reed" [phonetic], and the
following words are redacted:· "Additional
cases Mayor Morgan has asked R. Sweetapple to
appear in."· And then, "and strategy" are
left in.· So the idea here, it's been
testified to, that Mayor Morgan has asked R.
Sweetapple to appear in other cases is said
to be a litigation strategy.· In a government
agency, that's not a litigation strategy.
And it proves it in the entry on 11/18/2014,
if you look just above the one that's
redacted there, it says, "Prepare, travel and
attend hearing, meeting with Joanne O'Connor,
conference with Scott Morgan, meet David
Vitale regarding R. Sweetapple attendance
on" -- there's something wrong here -- "all
letter O'Boyle and O'Hare matters."
· · ·THE COURT:· You're referring to 11/18,
the first 11/18?
· · ·MR. RIVAS:· Right.· If you look at the
one on -- right, Your Honor.· If you -- you
found the one I was looking for.· If you look
Page 95
at the top one, 11/18, it says, "Work on
lawsuits, review pending cases to appear."
So settlement discussion -- just above that,
"Conference w/Jerry Richman, re:· Berger
settlement conference."· There's a
reference -- excuse me, I'm having trouble
finding -- I thought there was a reference to
the fact that the city had approved on a date
in March --
· · ·MR. O'BOYLE:· In the interrogatories.
· · ·MR. RIVAS:· That's what it is.
· · ·If you look at the interrogatory
answers -- yeah.· In response to
interrogatory number 24, after making the
same objections -- and I renew my -- I urge
the Court to strike the testimony about all
the things that were the subject of these
objections, but in response to the question
about the reference to appearing in other
cases, it says, on the page after the first
page, at the top of the page, before
paragraph -- question 25 begins, it says,
"Subject to and without waiving its
objections, the town responds that the town
commission, on or about April 2014, had
Page 96
authorized Attorney Sweetapple to make
appearances in all public records cases and
to set his rate of compensation for this
matter."· That's not confidential.· It was
disclosed, the fact that he said that -- his
testimony was that he was going to -- he was
authorized to appear in all of them, had
appeared in some of them, but it was supposed
to be unknown that he was going to appear in
all of them.· The only distinction he made
was that it was not known and thus it was a
confidential litigation strategy that he was
going to appear in all of them.· And this
discloses that, in fact, the town put it on
the public record, in April 2014, that he was
going to appear in all of them.
· · ·I submit that we look at these
redactions, paragraph -- question 20 of the
interrogatories:· "What were the additional
cases in the 11/19/14 redaction that Mayor
Morgan asked Robert Sweetapple or his firm to
appear in?"· And it refers to the billing
invoices.· Answer:· "Certain additional
public records cases pending against the town
in which Robert Sweetapple had not previously
Page 97
appeared, as authorized, in the March 28th,
2014 special meeting of the town commission."
It had been authorized publicly as far back
as March 28th, 2014 that he was going to
appear in all the public records cases.
· · ·These redactions are as near to random as
redactions can be.· The town has tried, and I
resisted the urge to try to counter these
statements and implications that there's
something -- that the reason for this lawsuit
is something suspicious about the O'Boyles'
conduct regarding multiple lawsuits and
public records requests.
· · ·The argument has been made that the Court
should consider that the town was subject to
multiple lawsuits and public records
requests.· There's nothing in any of the
evidence that was put on to suggest that the
other lawsuits somehow caused the town to be
unable to properly respond or to break down
or to be too busy to properly respond, and
that's the implication that they're making.
They've asked the Court to take some kind of
sympathy when, in fact, the only evidence
shows that Mr. Sweetapple sat at his office,
Page 98
wielded a magic marker and made some utterly
random, absurd redactions as being exempt
under the statute.· Redactions that are not
even consistent with the other things that he
didn't redact if they were legitimate
litigation strategy matters.
· · ·And the town is asking you in the
argument to put a gloss on the statute that
as if there's some kind of an agency -- some
kind of an exemption that says if an agency
doesn't appreciate its opposing counsel
seeing its bills, then it's okay to
over-redact the bills in the Public Records
Law should -- instead of being enforced
broadly and exemptions being held narrowly,
the Public Records Law should be read the
other way around, because opposing counsel is
trying to find out information.
· · ·Your Honor, opposing counsel finds out
information about agency litigation
strategies every day in Florida.· Agencies in
litigation in Florida have standing public
records requests to send to all their -- to
their opposing counsel, all of their -- their
invoices.· They all have to follow the same
Page 99
law.· If after a generation of this law being
in place the way it is, the legislature had
felt that that was something that was really
bad and that could justify some kind of
change in the law, it would have been done.
And it's never been done.
· · ·They're looking for a judicial approach
here that there's a law that says usually the
law favors openness, but if opposing counsel
seeks attorney invoices, then the law doesn't
favor openness anymore.· The exemptions
should be read broadly to give downright
implausible interpretations to the meaning of
litigation strategy, and also to ignore the
fact that the statute says the -- the statute
says that in order to be exempt, the redacted
material has to reflect a litigation
strategy.· That's an important word because
it has to show -- it has to -- we provided in
the trial brief -- you know, I don't think
we've ever given Your Honor a courtesy copy
of our trial brief.· May I give it to you
now?
· · ·THE COURT:· Yes.
· · ·MR. RIVAS:· It was just filed yesterday.
Page 100
· · ·THE COURT:· It's not on the docket, so I
couldn't look for it.
· · ·MR. RIVAS:· Here it is.· Dictionary
definition of "reflect," and it is to say --
to, you know, to show something, not just to
hint at it or to provide a clue that somebody
might interpret correctly to make them guess
a litigation strategy.· It says in the law,
in 119.071, subparagraph (1) -- I always say
that so slowly because there's a 119.07,
subparagraph (1), and there's a separate
119.071, subparagraph (1).· But in the one
that's 071, subparagraph (1), in subsection 2
there, at that bottom of that page we made,
Your Honor, it says in the second paragraph,
when asserting your right to withhold a
public record, pursuant to this paragraph,
the agency shall identify the potential
parties to any such criminal or civil
litigation or adversarial or administrative
proceedings.
· · ·That takes us back to Joint Exhibit 3.
When the town responded to the public records
request, it says in the response, which
properly attempted to set forth the answer to
Page 101
the question about who was involved in the
imminent or existing litigation --
· · ·THE COURT:· Is that -- you're talking
about the interrogatories or the answers?
· · ·MR. RIVAS:· Exhibit 3, the town's written
response to --
· · ·THE COURT:· Got it.
· · ·MR. RIVAS:· -- the public records
request.
· · ·THE COURT:· Okay.
· · ·MR. RIVAS:· It says, "The redaction,"
referring to what the settlement offer was,
it says, "The redaction relates, depending on
reasonably anticipated litigation, imminent
litigation involving the town, William
Thrasher, Garrett Moore, Scott Morgan and
Robert Sweetapple."· This is in the response
to the thing that attaches the redacted
document.· That -- they can't seriously
suggest that anything about this is
confidential when it's in their cover letter
and then redact a reference to the settlement
offer.
· · ·"And Martin O'Boyle and entities
controlled or affiliated by him are Scott
Page 102
Morgan and Robert Sweetapple on the one hand
and Martin O'Boyle and entities controlled or
affiliated with him, including, but not
limited to" -- and it names a bunch of
companies.· It also names Christopher O'Hare.
· · ·And then, in response to AEI's
interrogatory, question 25 of AEI's
interrogatory, it says, "What was the
settlement offer that was referred to in the
11/12/2014 redacted bills attached hereto as
Exhibit A?"· And the answer is, "The
settlement offer referenced in the 11/12/2014
billing entry likely refers to a settlement
offer to Christopher O'Hare regarding public
records litigation."· So they've given you
now two different explanations of what the
settlement offer was.
· · ·Mr. Sweetapple attempted to tie them
together by saying he was actually
negotiating with O'Hare for him to flip and
all that.· But that makes one or the other of
these wrong.· And it suggests that the Court
ought to not give any credibility to the
town's testimony regarding the exemption that
referred to the settlement offer.
Page 103
· · ·In sum, Your Honor, whether you look at
those exemptions objectively or consider the
additional evidence that exemptions that
are -- the redactions are still the
redactions.· None of the testimony has
changed the fact that the redactions do not
reflect the litigation strategy.· The
redactions do not reflect the litigation
strategy if the understanding of the meaning
of the exemptions is construed narrowly in
favor of public disclosure, as they should
be.· And for that reason, we urge the Court
to hold that the redactions were made
improperly.· And that's the standard.· The
statute says if the redactions were improper,
under the terms of the statute, then the
Court should find against the town.
· · ·We urge the Court to hold that the
redactions were made improperly within the
meaning of that term as it's used in Chapter
119, the Public Records Law, regarding this
particular exemption.
· · ·Thank you, Your Honor.
· · ·THE COURT:· Thank you.
· · ·MR. RIVAS:· Any questions?
Page 104
· · ·THE COURT:· No, not at all.· You've
walked me through it very clearly.· Thank
you.
· · ·MR. RIVAS:· Thank you.
· · ·THE COURT:· Okay.
· · ·MS. O'CONNOR:· Thank you, Your Honor and
thanks for your attention to the time you've
given us this afternoon.
· · ·Mr. Rivas' argument seems to be that
since the town was, frankly, so diligent in
redacting this invoice such that it only
redacted 15 words out of a 45-entry invoice
at a time when there were 40 or so pending
lawsuits swirling around in which
Mr. Sweetapple was involved with, that we
somehow -- somehow the words that we did
redact can't reflect litigation strategy.
Apparently he thinks we should have redacted
more because then it would have reflected
litigation strategy.
· · ·That, combined with his arguments that
every municipal lawyer knows that you
shouldn't put anything useful in a bill, that
that's somehow prudent, we disagree.· Our
clients are entitled to know what we're
Page 105
billing them for and the time spent.· And
frankly, there is no such thing as a standing
public records request.· I have never heard
of opposing counsel making requests like
those that have happened here where you're in
the middle of heated litigation and dozens of
lawsuits and you're getting repeated public
records request for your invoices.· And
again, transparent effort to find out what
your work product and what your litigation
strategy is.
· · ·Responding to their first point that
somehow an attorney invoice is not something
prepared exclusively for litigation:
Mr. Sweetapple testified he only does
litigation.· The evidence before this Court
is that he only represented the town in
litigation matters; litigation matters which
were pending at the time of this invoice and
litigation matters such as the counterclaim,
the federal RICO suit that he referenced that
were imminent at the time of this lawsuit.
· · ·Mr. Rivas would encourage this Court not
to follow the attorney general opinion,
there's no basis for not doing that.· Not
Page 106
only did the attorney general, as the
Sunshine Manual excerpt we've given you
indicates, both in 2000 and earlier in 1985,
the attorney general expressly recognized the
bill and invoices of outside attorneys may
contain exempt work product and that if that
exempt work product contained mental
impressions, conclusions, litigation
strategy, or legal theories, that material
may be deleted and the remainder disclosed.
· · ·Even in the Herskovitz case that is
referenced in the Sunshine Manual for the
proposition that, "Obviously, an entry on a
billing statement which identifies a specific
legal strategy to be considered or for the
specific amount of settlement authority
received from the client would fall within
the exemption.· Mr. Rivas already said this
was in dicta, but then somehow tries to
convince the Court that the Herskovitz court
sustained an objection to a work product
exemption.· That is not the case.
· · ·If you look at page 6, page 6 of that
order, the court actually asked for counsel
to submit the bills to him for review.· He
Page 107
did not sustain the objection.· And earlier,
on page 5, in the first full paragraph, "The
court expressly recognizes some portion of
the statements for services rendered arguably
suggest strategy, mental impressions, et
cetera, the overwhelming majority on this
particular bill did not."· And actually, if
you look at this, he's talking about a
six-page invoice with 15 entries, four might
be considered as falling within the
exemption.
· · ·We have a multiple-page invoice with 45
entries and we're talking about three that
were partially redacted.· Certain select
words that reflect that when tied together
with the rest of the those words would have
reflected the litigation strategy.
· · ·And again, the last paragraph on page 5
of the Herskovitz opinion, before Section C,
"Obviously, an entry on the statement which
identifies the specific legal strategy to be
considered, et cetera, would fall within the
exemption."· And that's what the Sunshine
Manual, that's used as a guide to municipal
lawyers around the state, quotes Herskovitz
Page 108
for the proposition asserted.· So that's a
red herring.
· · ·We'd submit that an attorney invoice and
Mr. Sweetapple's contemporaneous time entries
while he's working on pending litigation and
imminent litigation for the town somehow was
not prepared exclusively for litigation.
· · ·In terms of whether these -- the extent
to which these entries reflect litigation
strategy, Mr. Rivas has emphasized "reflect"
several times.· I submit that that reflecting
litigation strategy is exactly what these
entries do.· Beginning with the first entry,
regarding New Jersey counsel, I think Mr.
Rivas indicated to you that it would have
been clear to his client who New Jersey
counsel was if it had not been redacted.
· · ·As to the entry regarding the settlement
offer, Mr. Sweetapple did not say that the
reference to the settlement offer was
redacted because it would somehow disclose
the RICO suit.· You can look at the invoice
and see we didn't hide the fact that we were
considering a RICO suit.· The reason Mr.
Sweetapple explained why this particular
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reference to settlement offer on the November
12 entry was redacted is because it's in the
context of a discussion about strategy on the
RICO suit.· And so disclosure of the fact
that you're considering a settlement offer
relative to the RICO suit discloses your
litigation strategy.
· · ·Mr. Rivas suggested that somehow the
response to the interrogatory that this entry
likely reflected a settlement offer to
Christopher O'Hare on the public records suit
somehow conflicts with Mr. Sweetapple's
testimony.· That is not true.· He only -- Mr.
Sweetapple testified the only leverage the
town had at the time to get Mr. O'Hare to
flip was a settlement offer to be made,
relative to his pending public records suits.
Those were the only suits that were pending.
So the idea is we're going to consider
continuing to try to make a settlement offer
to Mr. O'Hare so that he might, on his public
records suits, say, let's resolve these
public records suits.· You kind of join
forces with us and we can, you know, enlist
you to testify against Mr. O'Boyle.
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· · ·So the final -- the final entry relates
to additional cases Mayor Morgan has asked R.
Sweetapple to appear in.· And Mr. Rivas tried
to suggest that there was somehow a waiver
because there were references in the November
18 entries to the fact that the town had
authorized Mr. Sweetapple to appear in all
public records cases.· And that's important.
· · ·We don't dispute -- our interrogatories
say, Mr. Sweetapple says, yes, back in the
spring of 2014, the town council authorized
him to appear in all public records cases.
They did not, as Mr. Rivas suggested to this
Court, direct him to go ahead and appear in
all those cases.· And he testified, he
explained the strategy was that he would
begin by appearing in select cases as he
developed more information regarding the
cases, there was a change in strategy in
November 2014, and it's reflected
specifically by the November 19th entry.
· · ·And if you kind of follow them down, you
can see, sure, he's looking at cases that he
had been authorized to appear in, but what's
different about the entry on the 19th is that
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here, you have Mayor Morgan asking Attorney
Sweetapple to appear in additional cases.
Affirmatively, it reflects to the town's
opponent at the time that there's a shift in
strategy, the town is going to become more
aggressive, Mr. Sweetapple will be appearing
in more cases on the town's behalf.· And he
testified that that's litigation strategy and
there was no testimony to rebut that.
· · ·I'd also submit that this waiver you'll
see in their trial brief, I'll submit, is
also a red herring.· If they thought it was
such a strong argument, you'd find it in
their trial brief.· It's not.· It also was
not asserted as a reply to our affirmative
defense.
· · ·Finally, plaintiff takes issue with the
evidence that we presented about the
overwhelming number of public records
lawsuits that we were facing at the town at
the time.· And again, suggests, and I think
Your Honor kind of understood at least what
our position is, but plaintiff seems to be
suggesting, well, it doesn't really matter
that there were so many public records
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lawsuits swirling about because this isn't
about, you know, delay or that they didn't
answer it timely.· But the real implication,
from our perspective, is that there was a
shift in the town's litigation strategy
that's reflected in the selected words that
we redacted from this invoice:· Number one,
the idea that a settlement offer would be
made to Mr. O'Hare, relative to the
imminently-to-be-filed RICO suit, imminent
litigation at the time.· Number two, that the
town was reaching out to New Jersey counsel
to explore information that that informant,
consultant, might have on the town's
opponent, Mr. O'Boyle, in this litigation.
In third and finally, the shift in litigation
strategy of the town whereby Mr. Sweetapple
is going to become more active and involved
in more cases, which came to pass, as he
indicated.
· · ·And with that, we'd ask, again, that in
light of the significant amount of litigation
pending against the town at the time, the
fact that this November 2014 invoice had 45
entries, only 15 -- or only 45 entries, only
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three of which had even a partial redaction,
comprised of 15 words, the evidence before
you is that they reflected litigation
strategy and they were properly withheld as
exempt.
· · ·MR. RIVAS:· May I?
· · ·THE COURT:· Sure.
· · ·MR. RIVAS:· Just very briefly, Your
Honor, in reply.
· · ·If you can't look at the redaction --
· · ·THE COURT:· Really quick.· Do you have an
objection to -- I mean, what --
· · ·MS. O'CONNOR:· Oh, yeah.
· · ·THE COURT:· -- why -- are we going to
have three, four, five closings?
· · ·MR. RIVAS:· I've always --
· · ·MS. O'CONNOR:· We would object.· We would
object, Your Honor.
· · ·MR. RIVAS:· -- I've always understood
that all oral argument normally goes:
Appellant, plaintiff, whoever's first,
answer --
· · ·THE COURT:· So then do we have defense
counsel come up with a reply to your reply
and then --
Page 114
· · ·MR. RIVAS:· No, Your Honor.· It's just
that's the routine that I've experienced --
· · ·MS. O'CONNOR:· Your Honor, --
· · ·MR. RIVAS:· -- accustomed to is that
there is an argument, and an answer, and then
a brief reply.· Period.
· · ·THE COURT:· And then will defense counsel
have an opportunity to briefly reply?
· · ·MR. RIVAS:· No.
· · ·MS. O'CONNOR:· Your Honor, --
· · ·MR. RIVAS:· Because that's not in the
scheme.· There's normally a reply by the
plaintiff.
· · ·MS. O'CONNOR:· We'd object.· I don't
think there normally is a reply to a closing,
but I'd also point out that they've conceded
that it's our burden on this redaction issue.
And frankly, we probably should have gone
first in terms of closing as the party that
has the burden of proof on this issue.
· · ·THE COURT:· I don't agree that you have a
right to reply on closing.· I do think you
had your closing first and it's not --
there's no sandwiching going on here.· It's a
civil matter here, so I agree with defense
Page 115
counsel on that.
· · ·MR. RIVAS:· May I give Your Honor a
proposed order?
· · ·THE COURT:· Sure.
· · ·MR. RIVAS:· And unless you were going to
ask us to prepare more detailed proposals and
submit them, which we'd be happy to do.
· · ·THE COURT:· Do you have a proposed order,
--
· · ·MS. O'CONNOR:· I do not, Your Honor.
· · ·THE COURT:· -- by any chance?
· · ·I would like something that's more --
based on -- from what my position is, I think
it's pretty clear-cut, the arguments that
have been made here today, as far as
Mr. Rivas' position that strictly is at the
time the town responds with redactions at the
time they violated.· Period, end of story.
That's the position that I understand.· Is
that correct?
· · ·MR. RIVAS:· Yes, Your Honor.
· · ·THE COURT:· Okay.· And then
alternatively, defense's argument states that
it's their burden to prove that it rises to
the level of exemption and it rises to the
Page 116
level of a reflection or mental impression of
a legal strategy.· Correct?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· What I'd like to do, if you
would, is based on what you've provided to
the Court as your positions and your argument
is something a bit more, you know, with maybe
the case law supporting it, et cetera.· I'll
give you plenty of time.· Is ten days enough?
· · ·MR. RIVAS:· We'd want to order the
transcript first.
· · ·THE COURT:· In order to prepare -- you
gave me an order that was not --
· · ·MR. RIVAS:· Detailed.
· · ·THE COURT:· So you want to order the
transcript before you prepare an --
· · ·MR. RIVAS:· May I ask the court reporter
how long will it take to get a transcript?
· · ·(Discussion held off the record.)
· · ·MR. RIVAS:· Ten days is fine, then.
· · ·THE COURT:· Okay.· Well, today is only
Wednesday, so that doesn't give you much
time.· I'll give you 15 days.
· · ·And please provide it to both sides so
this way we can have the benefit to both
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sides of the transcript.· And I would like
competing orders.· They don't have to be
voluminous, just in order to provide the
Court with the authority to rule as you are
requesting.· Okay?· Thank you very much for
your professionalism and the arguments and --
they were excellent.· And I apologize --
we're off the record.
· · ·(Proceedings concluded at 4:04 p.m.)
Page 118
THE STATE OF FLORIDA )
COUNTY OF PALM BEACH )
· · · · ·I, TRUDY MCCLELLAN, F.P.R., do hereby
certify that I was authorized to and did
stenographically report the foregoing proceedings
and that such transcription, Pages 1 through ^
herein is a true and accurate record of my
stenographic notes.
· · · · ·I further certify that I am not a
relative, employee, attorney or counsel of any of
the parties, nor a relative or employee of such
attorney or counsel, nor financially interested,
directly or indirectly, in this action.
· · · · ·Dated this 1st day of December, 2017.
· · · · · · · · · · ______________________________
· · · · · · · · · · TRUDY MCCLELLAN, F.P.R.