HomeMy Public PortalAbout2014-CA-003721 Deposition of Freda De Fosse (01/31/2018)1
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO. 2014-CA-003721
Division AH: Judge Small
STOPDIRTYGOVERNMENT, LLC,
Plaintiff,
v.
TOWN OF GULF STREAM,
Defendant.
- - - - - - - - - - - - - - - x
DEPOSITION OF FREDA DE FOSSE
TAKEN ON BEHALF OF THE PLAINTIFF
Wednesday, January 31,2018
Gulf Stream Town Hall
100 Sea Lane
Gulf Stream, Florida
2:00 p.m. - 3:05 p.m.
Examination of the witness taken before:
Felecia Curreri, Court Reporter
Daughters Reporting, Inc.
101 Northeast 3rd Avenue
Suite 1500
Fort Lauderdale, Florida 33301
2
Fort Lauderdale, Florida 954-755-6401
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1 APPEARANCES:
2 Appeared for the Plaintiff
3 Sach Sax Caplan, P.L.
6111 Broken Sound Parkway NW
4 Suite 200
Boca Raton, Florida 33487
5 BY: ROBERT RIVAS, ESQUIRE
Tel: 561-994-4499
6 Email: robertrivas@comcast.net
7 The O'Boyle Law Firm, PL
1286 W. Newport Center Drive
8 Deerfield Beach, Florida 33442
BY: JONATHAN R. O'BOYLE, ESQUIRE
9 Tel: 754-212-4201
Email: joboyle@oboylelawfirm.com
10
Appeared for the Defendant
11
Jones Foster Johnson & Stubbs, P.A.
12 505 S. Flagler Drive
Suite 100
13 West Palm Beach, Florida 33401
BY: JOANNE M. O'CONNOR, ESQUIRE
14 Tel: 561-659-3000
Email: joconnor@jonesfoster.com
15
Town of Gulf Stream
16 100 Sea Road
Gulf Stream, Florida 33483
17 BY: EDWARD C. NAZZARO, ESQUIRE
Tel: 561-221-9008
18 Email: tnazzaro@gulf-stream.org
19
ALSO PRESENT:
20
Mayor Scott Morgan
21
22
23
24
25
3
Fort Lauderdale, Florida 954-755-6401
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1 INDEX
PAGE
2
Direct Examination
3 By Mr. Rivas 7
4 Certificate of Oath 41
5 Certificate of Reporter 42
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Daughters Reporting, Inc.
1 EXHIBITS
2 PLAINTIFF'S
EXHIBIT DESCRIPTION PAGE
3
A (Public Records Request) 8
4
B (Town's response) 9
5
C (Answers to Interrogatories) 9
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Fort Lauderdale, Florida 954-755-6401
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1 Deposition of FREDA DE FOSSE, taken before
2 Felecia Curreri, Registered Professional Reporter
3 and Notary Public in and for the State of Florida
4 at Large, in the above cause.
5
6 THE COURT REPORTER: Do you swear or
7 affirm that the testimony you are about to
8 give will be the truth, the whole truth, and
9 nothing but the truth?
10 THE WITNESS: I do.
11 MS. O'CONNOR: Good afternoon. Joanne
12 O'Connor on behalf of the Town of Gulf Stream.
13 For the record, the Town is responding to
14 the duces tecum of the amended notice of
15 taking video deposition dated December 21,
16 2017, and pursuant to item two of the duces
17 tecum, the Town is providing a number of
18 documents in full response, with no objections
19 to item two of the duces tecum. The Town is
20 providing hard copy documents, as well as
21 documents on a flash drive, accompanied by a
22 memo that outlines what's on the flash drive.
23 And the Town reserves all objections to item
24 one of the duces tecum as set forth in the
25 Town's pending motion for protective order.
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1 Anything else?
2 MR. RIVAS: There's three.
3 MS. O'CONNOR: I have two.
4 In addition to the items being produced
5 today, in response to number two, all
6 documents the Town relies upon or will rely
7 upon to show it acted in good faith.
8 The Town also, of course, may rely upon
9 and doesn't waive its right to rely upon any
10 documents that have identified as trial
11 exhibits, given that we're in the middle of an
12 ongoing trial.
13 MR. RIVAS: There's no issue with that.
14 MS. O'CONNOR: Great.
15 MR. RIVAS: Would you like to explain the
16 witness' status instead of me asking her --
17 MS. O'CONNOR: Sure.
18 MR. RIVAS: -- the Town is producing this
19 person pursuant to the language of blah, blah,
20 blah, one, two and three?
21 MS. O'CONNOR: Sure.
22 MR. RIVAS: Are you reading the second
23 amended or the first, the one that says
24 amended?
25 MS. O'CONNOR: I'm reading the amended.
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1 You have a second amended?
2 MR. RIVAS: Yes, there's a second amended.
3 The language of those provisions are the same,
4 so it doesn't matter. That's just for your
5 information.
6 MS. O'CONNOR: With me today to testify on
7 behalf of the Town of Gulf Stream and as its
8 representative pursuant to Florida Rules or
9 Civil Procedure 1.310(b)6 is Ms. Freda De
10 Fosse who's a former Town employee. She was
11 an employee for the Town during the pertinent
12 periods that this request was made and Ms. De
13 Fosse is designated with respect to the three
14 subject matter areas designated on the second
15 amended notice issued by the plaintiff.
16 MR. RIVAS: Very good. Thank you.
17 Off the record.
18 (Discussion held off the record).
19 DIRECT EXAMINATION
20 BY MR. RIVAS:
21 Q. Good afternoon, Ms. De Fosse. Thank you
22 for coming. I'm Robert Rivas. We introduced
23 ourselves a little while ago. I'm going to go
24 expeditiously as possible through some questions
25 and try to complete this as quickly as we can.
8
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1 A. Okay.
2 Q. So, you know, sometimes there are little
3 speeches made at the beginning about how to conduct
4 yourself and I do take it for granted that you have
5 undoubtedly had deposition processes explained to
6 you by your lawyer and you don't need me to tell
7 them to you again.
8 A. Okay. Thank you.
9 Q. And you've been sworn?
10 A. Yes.
11 Q. And I want to just start by getting
12 oriented to the fact that we're here regarding what
13 is Joint Exhibit 2 at the trial of this case. It
14 is a public records request dated February 8th,
15 2014.
16 MR. RIVAS: I'm going to ask that this be
17 marked as Exhibit A.
18 (Plaintiff's Exhibit A, was marked for
19 identification.)
20 MR. RIVAS: Maybe we should also pause to
21 just explain for the record the interrogatory
22 answer we've just resolved and clarified in
23 the Town's interrogatory answers served today
24 -- served yesterday. In question one, I'm
25 sorry, question number two, on Page 3, it
9
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1 refers to PRR, which stands for public records
2 request 13-305 and that's referred to
3 elsewhere and each time, that's a
4 typographical error, and it time it should say
5 315. When I first read it, I couldn't
6 understand how 305 related and that's been
7 clarified and so everybody, for all purposes,
8 can take for granted that really says 13305 --
9 315 in the interrogatory answers.
10 Is that accurate, Ms. O'Connor?
11 MS. O'CONNOR: Correct.
12 MR. RIVAS: Good.
13 BY MR. RIVAS:
14 Q. So then I want to show you and mark as
15 Exhibit B for this deposition a document that is
16 under a cover that says Exhibit 3. It's joint
17 trial Exhibit 3 of the trial of this case. This
18 will be Exhibit B. Then we'll mark as Exhibit C
19 the answers to interrogatories that I just referred
20 to.
21 (Plaintiff's Exhibit B, was marked for
22 identification.)
23 (Plaintiff's Exhibit C, was marked for
24 identification.)
25 BY MR. RIVAS:
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1 Q. Exhibit A is the public records request
2 that we're here on today, correct?
3 A. I assume so. That's what you gave me.
4 Q. Can you confirm it of your own knowledge
5 while looking at it?
6 A. I don't have the lawsuit to compare it to,
7 but I'm assuming this is what it's regarding. I
8 will go with that.
9 Q. Can you confirm if Exhibit B is the Town's
10 response for that?
11 A. Exhibit B is this? Yes.
12 Q. Okay.
13 MS. O'CONNOR: Without the attachments.
14 THE WITNESS: Without the attachments, but
15 just the cover sheet.
16 BY MR. RIVAS:
17 Q. I want to begin by asking you in response
18 to that public records request, what did the Town
19 do in its efforts to respond to it?
20 A. We contacted or I contacted Commissioner
21 Ganger and asked him for all of his email or text
22 message communications that he had. I provided him
23 a copy of this so that he would know what dates
24 were from the November 1st to February 8th of 2014
25 -- November 1st of 2012 to February 8th of 2014, as
11
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1 we did not have access to his email, they did not
2 have town emails, so the only emails or text
3 messages he would have had was on his private
4 equipment.
5 Q. And it's my understanding that he doesn't
6 text message?
7 A. That's what he told me.
8 Q. And so text messages are not involved in
9 this in any way?
10 A. Correct.
11 Q. We're only talking about emails?
12 A. Yes.
13 Q. And they are always to and from the email
14 address?
15 A. Yes. As we sit here, I couldn't tell you
16 what his email address is.
17 Q. rwganger@bellsouth.net?
18 A. Sounds right.
19 Q. Is it your recollection there's only one
20 email address that we're talking about rather than
21 more than one?
22 A. Yes, as far as I know there's only one.
23 Q. We're all square on that.
24 Did you ask anybody else for anything?
25 A. No, I wouldn't because this was based on
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1 his communications, not anybody else's. He's the
2 only one I would have gone to.
3 Q. Did you personally go to any files or
4 records of the City to search for the City's copies
5 of the same documents?
6 A. No.
7 Q. Why wouldn't you have done that?
8 A. Because the request was specific to
9 Commissioner Ganger and so I went right to the
10 source.
11 Q. But if the request asks for copy of all
12 communications sent by or received by Commissioner
13 Ganger for a certain period, wouldn't there be
14 copies of some substantial number of them in the
15 City's email messages?
16 A. I didn't -- I didn't read it that way.
17 When I received this, I took it as sent or received
18 by Commissioner Ganger, from his computer, not
19 anything from anywhere else. So he would know what
20 he received or what he sent because it's on his
21 computer, not on ours, not on anything in the
22 Town's, so I went to him to say what have you
23 received or what have you sent from your email
24 account.
25 Q. But if he sent an email or received an
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1 email, if he sent an email to the mayor or to you
2 at the city manager or he received an email from
3 you or the city manager, the same email would be on
4 the City's server, wouldn't it?
5 A. Very possibly, but I went to the source
6 where it was -- the common source where it was to
7 come and go to try and get the answers to this
8 request, you know, officially and as quickly as
9 possible. So it only talked to him and to his
10 communications, so I saw no reason to go looking
11 elsewhere at that point for his communications.
12 Just as I did with any of the others that ask for
13 the same type of thing from, you know, other
14 commissioners.
15 Q. What about to the extent it asks for
16 communications of the town manager, from the town
17 manager?
18 A. It doesn't ask for that.
19 Q. Well, it says all communications.
20 A. Sent or received by Robert W. Ganger.
21 Q. And if he received one that was sent by
22 the city manager, it's in the City's file in the
23 City's computer as email from the city manager?
24 A. It would also be in Mr. Ganger's, so I
25 went to the main source that it was asked of, which
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1 was Mr. Ganger's. We had hundreds of requests
2 going on, so I tried to be as efficient as I could
3 by going to the sources rather than spinning my
4 wheels looking all over the Town for things that
5 may or may not exist.
6 Q. Let me ask you to look at the answer to
7 question two on Page 3 of the interrogatory
8 answers.
9 A. What am I looking at?
10 Q. Page 3, question two.
11 A. Question two. Okay.
12 Q. Since you are a different person from the
13 person that actually signed this, I just want to
14 ask you. If you look at -- it says answer and it
15 says the request at issue and then it goes on.
16 A. Right.
17 Q. Skip to the second sentence.
18 A. In the first paragraph?
19 Q. In the first paragraph.
20 A. Okay.
21 Q. Of question two's answer. "As the initial
22 acknowledgment sent to plaintiff indicates --
23 A. Right.
24 Q. -- the Town understood the request to seek
25 Ganger communications 11-1-12 through 2-7-14."
15
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1 A. Yes.
2 Q. Can you explain what you mean by that?
3 A. That's what I would have -- that's what I
4 took the request to be when I received it, that it
5 was provide a copy of all communications sent to or
6 received by -- sent by or received by Commissioner
7 Ganger, Robert Ganger.
8 Q. Okay. But there's a separate question
9 there and that is, you say this interrogatory
10 answer says, "as the initial acknowledgment sent to
11 the plaintiff indicates --"
12 A. Right. When I sent the acknowledgment,
13 which is this one, it says the public records
14 request, Ganger communications.
15 MS. O'CONNOR: Can you identify that
16 exhibit for the record?
17 THE WITNESS: What did they mark this as?
18 MS. O'CONNOR: A.
19 THE WITNESS: It's on Exhibit A, the sheet
20 or the page says regarding public records
21 request, Ganger communications 11-1-12 through
22 2-7-17.
23 BY MR. RIVAS:
24 Q. And it's replicated on Exhibit B, the
25 Town's response, pretty much the same?
16
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1 A. Yes.
2 Q. And I'm just going to describe for the
3 record for anybody who's following this and looking
4 at the document, it's the part in bold face that
5 says, re public records request. I'm reciting this
6 because Ms. De Fosse held it up and pointed to it.
7 A. Oh, I'm sorry.
8 Q. It's okay. Re public records request.
9 It's in bold face. Ganger communications, 11-1-12
10 through 2-7-14. You believe, it's your testimony
11 that this indicates that the Town understood the
12 request to seek, quote, Ganger communications,
13 11-1-12 through 12-7-14?
14 A. Yes, 2-7-14.
15 Q. 2-7-14. And you think that a reader who
16 reads this is going to understand that this line,
17 which appears to, you know, re lines are also
18 condensed.
19 A. Right.
20 Q. Is it your testimony that you believe that
21 that line would be understood by a reasonable
22 reader to obliterate the fact that the public
23 records request, which is quoted right next to it,
24 says a copy of all communications and public
25 records as defined by Chapter 119, it doesn't just
17
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1 say Ganger communications?
2 A. I don't know what another reasonable
3 person would think. That is what I thought at the
4 time.
5 Q. Okay. Did you think the word
6 communications was understood in your re line, that
7 the word communications was limited to emails?
8 A. Based on the remainder of the request
9 where he said the above request shall also include
10 text messages and emails from private accounts and
11 the only email account he had was his private
12 account.
13 Q. And you think that that sentence limited
14 the word communications to emails?
15 A. Yes. In reading the rest of the request,
16 that's the way I took it at the time.
17 Q. Okay. Because of the fact that that
18 sentence is in the text of the request?
19 A. Yes.
20 Q. Now, if you'll turn to the next page.
21 A. On the interrogatory?
22 Q. Right.
23 A. Okay.
24 Q. I'm sorry, I was starting to follow my
25 outline and ask you about something being wrong
18
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1 where it refers to PRR 13305 because it wouldn't
2 contain any email communications with Ganger 305.
3 It's 315. We've now clarified.
4 A. Clarified that it's 315. Okay.
5 Q. What 315 is and what 13238, each of those
6 requested emails from or communications or
7 documents from Mr. Ganger, right?
8 A. Without the log, I couldn't tell you.
9 MS. O'CONNOR: Do you have the notebook I
10 gave you?
11 MR. RIVAS: Yes.
12 MS. O'CONNOR: It's in there.
13 MR. RIVAS: Can you find it? I would have
14 to figure out to -- -
15 MS. O'CONNOR: Where is that other copy I
16 gave you, Jon?
17 MR. O'BOYLE: It was right underneath it.
18 MS. O'CONNOR: Which one, the first that
19 asks for 238?
20 MR. RIVAS: Both of them.
21 MS. O'CONNOR: This is 238 and 363 and
22 315.
23 MR. RIVAS: What's 363? Is there a 363
24 referred to?
25 MS. O'CONNOR: No, I don't think so.
19
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1 BY MR. RIVAS:
2 Q. Okay. Public records request 238 as
3 referenced in the interrogatory answer requests
4 five most recent emails containing a public record
5 and sent from any email account used by Robert W.
6 Ganger for public purpose. You'll agree that only
7 asks for five emails?
8 A. Five most recent, is that what it asked
9 for?
10 Q. Yes.
11 A. Yes.
12 Q. That would be only a very small part of
13 what the public records request pertinent in this
14 case will be asking for, correct?
15 MS. O'CONNOR: Objection.
16 You can answer.
17 BY MR. RIVAS:
18 Q. She's going to say that a lot. If she
19 turns to you and says, I'm instructing you not to
20 answer the question, then you have to stop.
21 A. Okay. Now I've forgotten what you've
22 asked me. Yes, it's only five, yes.
23 Q. So that be --
24 A. That's limited.
25 Q. Yes, that would be very little help, but
20
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1 if we look at 315, it says, "any and all documents,
2 files, photos, folders." I'm talking a little fast
3 because court reporters hate it when you read --
4 "or other material in digital form that can be
5 reasonably considered a public record, which is
6 located on any and all computers in the personal
7 possession of or the personal control of
8 Commissioner Robert Ganger."
9 So let me see if I understand your
10 testimony correctly. Since this, at least,
11 overlapped or contained many things that were
12 requested in the one in this case, you already had
13 them. They were previously produced to you and so
14 you put them in the Ganger answer?
15 A. In response to this request? This is
16 several years ago. Okay. So this is --
17 MS. O'CONNOR: 315.
18 THE WITNESS: So this came in after -- no,
19 before this request.
20 BY MR. RIVAS:
21 Q. Only a month before.
22 A. Only a month before when we had 300 plus
23 requests coming through.
24 Q. Well, that's not true, according to your
25 log. The log doesn't say that. The log shows that
21
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1 there are much fewer than that.
2 MS. O'CONNOR: This request came in
3 October of 2013, just to be clear. This is
4 the response.
5 THE WITNESS: Okay. All right. So
6 whatever we produced, I mean, I would have to
7 go through and see what all the production
8 was, but I'm assuming it's all here. So it's,
9 what, 20 documents? Is that what that all
10 means, the tabs? So, okay, yes, I produced 20
11 documents or obtained 20 emails from
12 Mr. Ganger in response to this request which
13 is whatever number it is because it's not on
14 here. 315. PRR 13315.
15 BY MR. RIVAS:
16 Q. What I'm just trying to clarify is, did
17 you get Mr. Ganger to add additional ones to it and
18 give you a set of copies including the ones in 305
19 or did you get the ones in 315 -- I keep
20 misspeaking, if I ever say 305 --
21 A. You mean 315, okay, I'll try to remember
22 that.
23 Q. And did you put them together in your
24 office and send them together or did you rely on
25 Mr. Ganger to give them to you?
22
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1 A. No, I would have relied on him to give
2 them to us. Again, we don't have access to his
3 private email and then would have sent them on.
4 Q. This took place on January 10, 2014, so it
5 was approximately a month before you fulfilled the
6 public records request at issue in this case,
7 correct?
8 A. Okay. Yes.
9 Q. So he had already produced them to you?
10 A. Yes.
11 Q. A month earlier?
12 A. Yes.
13 Q. This is subtle. I'm asking you, did you
14 put the ones that he had given you a month earlier
15 in a stack and then add the ones that he gave you
16 in February 2014 to that stack and then produced
17 all of those or did you say to him --
18 A. No, I said to him, here is this new
19 request. Forget this one even happened. Here's a
20 new request. Give me, between those dates, because
21 that particular request had specific date range
22 that it wanted. So give me those, just those in
23 that date range, and he would have forwarded those
24 to us and then we would have used those in the
25 response. I didn't go back to this to get
23
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1 information on a new request.
2 Q. So is the interrogatory answer wrong?
3 MS. O'CONNOR: Let her read it.
4 THE WITNESS: "I contacted the
5 commissioner and notified him of the request
6 and asked him to review his email account
7 again to determine if he possessed any
8 additional responsive records."
9 BY MR. RIVAS:
10 Q. Look at the last paragraph of answer
11 number two on Page 4.
12 MS. O'CONNOR: Last sentence you mean?
13 THE WITNESS: "Mr. Ganger having advised
14 he had no responsive records not previously
15 produced to the Town in response to PRR 13,"
16 which is 315, even though it says 305 here,
17 "the Town identified those communications that
18 fell within the requested time period and
19 produced those 18 communications to the
20 plaintiff."
21 Okay. So I apologize. I guess that's
22 what I did then. But I did ask him to recheck
23 to make sure that we hadn't missed anything.
24 BY MR. RIVAS:
25 Q. So you believe --
24
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1 A. I must have gone -- based on the
2 interrogatory, again, you are asking me to go back
3 to a time where I don't, you know, I've moved on
4 with my life.
5 Q. I'm not asking you that.
6 A. But, yeah, reading that, based on the
7 interrogatory, then, yes, I would agree with you.
8 But I did ask him, freshly asked him when the new
9 request came in to check, and then based on this,
10 he would have told me no, there's nothing else
11 beyond what I gave you a month ago. So then we
12 could have gone back and just picked, I guess there
13 were 18 communications out of that 20 that fell
14 within that date range, that they had requested,
15 and we just reproduced those.
16 Q. What you are saying is that you feel that
17 you had previously remembered something a little
18 different and now you say the interrogatory answer
19 is the accurate version, you feel that the
20 interrogatory answers are more accurate?
21 A. Is correct, yes, that would make more
22 sense to me, now in thinking about it, but it does
23 say that I did ask him because I would have always
24 gone back to the party, whoever it was, just to
25 make sure that we didn't have anything come up that
25
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1 we didn't catch the first time around.
2 Q. Okay. Any documents in response to PRR
3 315 not also be responsible for the one in this
4 case?
5 A. The date range.
6 Q. What about the date range?
7 A. Well, this one didn't have a date range.
8 The request that we're talking about in the lawsuit
9 had a specific date range. So, two of those 20
10 that were produced for 315 would not have applied
11 to the new request.
12 Q. So they would have had to have been prior
13 to 11-1-12, is that what you are saying?
14 A. Yeah, whatever the date is, yes.
15 Q. You'll agree that the only part of the
16 range that would be -- the one that would be
17 outside the other is that there was a beginning
18 date?
19 A. Yes, there was a beginning date and was
20 there an ending date also? Well, the date of the
21 request. Right, right. So, yes, it would have
22 just been anything prior to.
23 Q. So there would be a window of new
24 documents between the date of PRR 315 from that to
25 February 7, 2014, plus you'd be removing documents
26
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1 that were older than 11-1-12?
2 A. Well, I would have removed the documents
3 and when I asked Mr. Ganger if there was anything
4 else, that was when I would have expected, had
5 there been anything, he would have provided them to
6 me, but he said, his response was no, I don't have
7 anything else. You know, that was it from a month
8 ago. So, okay, that's what we have.
9 Q. He said he didn't have --
10 A. He said, according to the interrogatory,
11 because I have to go back to that --
12 Q. This will be a lot easier and for your
13 benefit if you wait for me to finish the question
14 before you start to answer.
15 A. I'm sorry.
16 Q. So what he said suggests that there were
17 no emails between the date of PRR 315 and the date
18 of the one at issue in this case?
19 A. Correct.
20 Q. There were no additional emails in that
21 window?
22 A. Correct.
23 Q. And he felt he had already produced every
24 document from prior to 315, so there was nothing
25 more to produce?
27
Fort Lauderdale, Florida 954-755-6401
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1 A. Correct.
2 Q. Then you must have removed from the pool,
3 if you removed two documents, they had to be two
4 documents that predated 11-1-12.
5 A. Yes.
6 Q. Correct?
7 A. That's what I would imagine based on -- I
8 haven't gone through them, but yes.
9 Q. Just logic of the dates?
10 A. Correct.
11 Q. Okay. I think I've already asked this and
12 I apologize. You didn't, yourself, search anywhere
13 in any Town of Gulf Stream records and you didn't
14 ask anybody else to look in their files or anybody
15 else to look at anything?
16 A. No.
17 Q. As you sit here now, do you believe that
18 the Town made any mistakes in responding to this
19 public records request?
20 A. I don't think there were any intentional
21 mistakes. Could there have been a mistake? Of
22 course. Anybody could make a mistake.
23 Q. Well, do you know of any mistakes?
24 A. Not off the top of my head, but I wasn't,
25 you know, I'm here now versus what was going on in
28
Fort Lauderdale, Florida 954-755-6401
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1 2013 and '14.
2 Q. You don't think there was a mistake to
3 reduce a request for email or for communications in
4 public records to a request that excluded public
5 records and included only emails as opposed to
6 other communications?
7 A. It may have been, but it wasn't
8 intentional at the time. We can all look back and
9 see, you know, well, no, maybe I could have read
10 that different or maybe I could have done that
11 different, but there was no intention to do that,
12 certainly. I took that to be electronic
13 communications. That's what we were getting
14 hammered for and we were getting the lawsuits based
15 on getting stuff out quickly and getting it done.
16 So it was, you know, a matter of proficiency to
17 just go, okay, I can go right to the source. I
18 sought out Mr. Ganger. I got his emails because
19 that's what I focused in on was the emails, because
20 we knew he didn't text, and that's what we
21 produced. And had anybody questioned it at the
22 time, I certainly would have gone back and gave it
23 a second look.
24 Q. Who could conceivably have questioned it?
25 A. The person that was receiving the
29
Fort Lauderdale, Florida 954-755-6401
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1 information, if they didn't think that we gave them
2 everything that was there. They had certainly done
3 it before, so --
4 Q. Other than what you testified to so far,
5 I'm not asking you to just repeat things, but can
6 you remember anything else that you said or that
7 you or Ganger said in your conversation, Mr. Ganger
8 said in your conversations with each other about
9 this? And I realize how long ago it was.
10 A. No, I don't.
11 Q. You've told all the details you can think
12 of with the history of your conversations with him
13 about this?
14 A. Yes.
15 Q. And it is your testimony that you gave him
16 a copy of the public records request?
17 A. Yes, the sheet that we received.
18 Q. Now, we're going to save a little time
19 here, but I just want to double-check something
20 that I'm taking for granted and skip over and
21 eliminate many questions because of it.
22 You didn't produce any public records
23 where the request says please produce all
24 communications and public records, because you --
25 well, how would you word it?
30
Fort Lauderdale, Florida 954-755-6401
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1 A. In response to this particular request?
2 Q. Yes.
3 A. I just -- when I got the request, my focus
4 went to communications, emails, text messages.
5 Those type of things. I did not take public
6 records anything beyond the scope of that at the
7 time.
8 Q. Okay. So it follows that you would not --
9 didn't produce and wouldn't even have thought of
10 producing agendas, for example?
11 A. No, not in response to that.
12 Q. And you probably would acknowledge that in
13 that window of time, if you add up agendas and
14 reports and draft ordinances and everything in an
15 agenda package, plus other stuff that goes back and
16 forth to commissioners, there would be at least
17 hundreds, and probably thousands, of documents in
18 that window of time?
19 A. There could have been.
20 Q. They were not produced and I'm not being
21 critical.
22 A. No, I understand.
23 Q. To understand your position, they were not
24 produced because you didn't believe they were
25 within the scope of the public records request?
31
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1 A. Correct.
2 Q. So we don't need to ask you about all
3 those questions. You didn't make an individualized
4 decision with respect to any of them if they
5 weren't covered, you just didn't look for them
6 because you believed that they were categorically
7 not covered?
8 A. Correct.
9 Q. To the best of your knowledge -- well, do
10 you know whether the Town at this time has ever
11 produced all of the documents that are actually
12 requested by the public records request?
13 A. I do not know what they've produced since
14 I left.
15 Q. Are you aware of the -- without revealing
16 any attorney/client communications, just in your
17 own mind, do you understand what we call the
18 pleading of the affirmative defense of good faith?
19 A. I got no idea. What does that mean?
20 Q. If I ask you -- let me just ask you and
21 see.
22 A. Okay.
23 Q. Well, what is your view, what is the
24 Town's view of what the affirmative defense of good
25 faith means in this context?
32
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1 MS. O'CONNOR: Objection; calls for a
2 legal conclusion. You can show her the
3 defense. She's seen it.
4 THE WITNESS: Okay. I don't know what
5 you're -- I apologize if I sound stupid, but I
6 don't understand what you are asking me. I
7 don't know what those words mean, affirmative
8 defense, put together in legal terms. I have
9 no idea what that means.
10 BY MR. RIVAS:
11 Q. To shorten it, the Town is asserting that
12 your response to the public records request was
13 made in good faith.
14 A. Yes.
15 Q. You believe that's true?
16 A. Yes.
17 Q. Why do you believe that's true?
18 A. Because I did it.
19 Q. Well --
20 A. I had no reason not to do it the way I did
21 it.
22 Q. But what is your understanding of the
23 meaning of good faith?
24 A. That you do your best. You do everything
25 you can to do it correctly and, again, not that
33
Fort Lauderdale, Florida 954-755-6401
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1 we're perfect, but you do your very best to follow
2 the law and the rules and get people what they ask
3 for in this case, or in any case. I mean, that was
4 all I intended -- ever intended to do was whatever
5 they ask for, let's get it to them.
6 Q. And when you sent the letter, Exhibit 2,
7 the letter forwarding the records --
8 A. Yes.
9 Q. -- at that time, did you believe you were
10 finished with responding to that public records
11 request?
12 A. Yes.
13 Q. There was no question about whether you
14 needed to go back and look for more or needed more
15 time?
16 A. No.
17 Q. You didn't need more time?
18 A. I would not have gone back to reconsider
19 because we're busy moving on with everything else,
20 you know, other requests and other lawsuits and
21 other interrogatories, on top of my regular job,
22 which was the building department. So, you know,
23 it wasn't the only thing we were doing.
24 Q. Did anybody from the requester,
25 Stopdirtygovernment, you know that to be basically
34
Fort Lauderdale, Florida 954-755-6401
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1 Marty O'Boyle?
2 A. Yes.
3 Q. Did Marty or anybody from his shop put
4 pressure on you before you responded on February 19
5 saying we really insist that you work faster on
6 this, we need this back quickly?
7 A. To that particular request?
8 Q. Yes.
9 A. No, only in that they, you know, they just
10 had a lot of requests coming in, you know, and a
11 lot of lawsuits pertaining to how quickly we were
12 producing things and there was only four of us in
13 the whole building, so we were doing what we could
14 to keep up with it.
15 Q. When you say a lot of lawsuits, you are
16 not suggesting, are you, that Marty O'Boyle or any
17 of his entities ever filed a lawsuit saying that
18 records weren't produced fast enough?
19 A. I don't know if Mr. O'Boyle, Mr. O'Hare or
20 anybody else, but I know there were lawsuits that
21 pertained to our producing records in a --
22 Q. More expeditiously?
23 A. Thank you, yes, more expeditiously.
24 Q. But you don't know of any that you can say
25 you are aware were filed by Marty O'Boyle or any
35
Fort Lauderdale, Florida 954-755-6401
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1 entity associated with him?
2 A. No, I can't say that. I would have to go
3 back and look at the 18 or 20 lawsuits that had
4 been filed at that point.
5 Q. Did you ever think about asking for a
6 clarification of the meaning of the public records
7 request?
8 A. This particular one, no.
9 Q. We may end this sooner than I thought, if
10 you'll give me maybe a five, ten-minute break.
11 A. I'll be happy to give it to you.
12 (A brief recess was taken, after which the
13 following proceedings were had:)
14 MR. RIVAS: We will go back on the record
15 and I'll be very brief.
16 BY MR. RIVAS:
17 Q. In the years, just to narrow down, say,
18 2013 and '14, did you ever have a situation where
19 you had a public records request -- I mean, the
20 Town.
21 A. I got you.
22 Q. And you felt that you could -- it was
23 difficult to find all the documents and you would
24 like more time and so you contacted the requester
25 and said, is it okay with you if I take another
36
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
1 month or another week or whatever you need? Did
2 you ever do that?
3 A. I don't recall ever doing that,
4 specifically asking them if we could have more
5 time. I don't remember ever doing that.
6 Q. Do you remember ever having a situation
7 where a public records request was before you to be
8 answered and you really weren't sure, just to
9 digress for a minute, you didn't feel any
10 uncertainty about this lawsuit?
11 A. No.
12 Q. But you got some other one in some other
13 case during that two-year period, when you feel
14 like the request had language in it that you really
15 thought was ambiguous and you wished you could
16 clarify what they are looking for. Did you ever
17 contact them and ask them to send you another
18 communication, clarifying what they meant?
19 A. I believe we did that a couple of times.
20 I would have to go back to the log and look
21 specifically, but it seems like I recall that we
22 may have done that a couple of times when it was
23 just, kind of, not clear what they were looking for
24 and so we wanted to make sure.
25 Q. When it was not intelligible?
37
Fort Lauderdale, Florida 954-755-6401
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1 A. Maybe.
2 Q. That was very rare?
3 A. Yes, it was rare.
4 Q. I'm going to revisit something I've
5 already asked you about, but when you put re at the
6 top of a letter, especially if in context you
7 follow the re line, as you've done here with the
8 whole public records request, it's your belief that
9 a reasonable person who receives your response is
10 going to look at the re line and think that you've
11 asserted that the public records request that's
12 quoted below is altered by your re line?
13 A. Altered by my re line?
14 Q. It's revised somehow to conform to your re
15 line?
16 MS. O'CONNOR: Objection to form.
17 THE WITNESS: I don't think so. I mean,
18 again, I can't speak for how somebody else
19 would have read that. That wasn't how I
20 interpreted it when I did it. It wasn't my
21 intent to minimize the request in any way, so
22 I can't speak for how someone else would have
23 interpreted it.
24 BY MR. RIVAS:
25 Q. But you'll agree that a re line is
38
Fort Lauderdale, Florida 954-755-6401
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1 necessarily an extreme condensation of what it's
2 referring to?
3 A. Well, it can be, depending upon what it's
4 referring to but, yeah, it's just a brief.
5 Q. How could it not be, if it's everything
6 that it's referring to, then there's nothing else
7 to put below it?
8 MS. O'CONNOR: Objection.
9 THE WITNESS: I guess. I don't
10 necessarily agree with you, because it just
11 depends on what the request was. If the
12 request was a one line request, it could be
13 the same thing in regards to. It was the
14 format that we were using. It didn't
15 necessarily mean a condensed version.
16 BY MR. RIVAS:
17 Q. As you sit here today, are you aware of
18 whether there were any -- in answering this
19 question, let me digress first and say, I'm not
20 asking about the question of agendas and public
21 records as this public records requested and I'm
22 also giving you the benefit of the doubt that you
23 believe the words communications could properly be
24 reduced to emails because of the clarification at
25 the end of the letter, so I'm just asking you now
39
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
1 about email communications.
2 A. Okay.
3 Q. Are you aware of whether there were any
4 email communications that were not produced on
5 February 19th, 2014 that should have been produced?
6 A. No.
7 Q. As far as you know, as you sit there now,
8 you don't know of any emails that weren't produced
9 that were within the scope of the public records
10 request?
11 A. No, nobody has made me aware that there
12 was not.
13 Q. If I showed you five or ten or more?
14 A. You would have to show them to me. I
15 don't know. As far as I knew, that was complete at
16 that time.
17 Q. And you've never --
18 A. And nobody has told me anything different.
19 Q. How long did you continue to work for the
20 Town? I mean, when did you leave?
21 A. I left in May of 2014.
22 Q. So I guess it's obvious that through the
23 date that you left, nobody had ever suggested that
24 there was a need to go back and look for additional
25 records to respond to that public records request
40
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1 because some were left out?
2 A. No.
3 Q. Do you have any strong feelings one way or
4 another about Marty O'Boyle?
5 A. Not really.
6 Q. How about Chris O'Hare?
7 A. No.
8 MR. RIVAS: I don't have any further
9 questions.
10 MS. O'CONNOR: No questions here. We'll
11 read.
12 (The deposition concluded at 3:05 p.m.)
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Fort Lauderdale, Florida 954-755-6401
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1 CERTIFICATE OF OATH
2
3 THE STATE OF FLORIDA
4 COUNTY OF PALM BEACH
5
6 I, the undersigned authority, certify
7 that the witness, FREDA DE FOSSE, personally
8 appeared before me on the 31st day of January,
9 2018, and was duly sworn.
10
11 Signed this 10th day of February, 2018.
12
13
14
15
16
FELECIA CURRERI, RPR
17 Notary Public - State of Florida
My Commission Expires: 12-19-2019
18 Commission No. FF 939059
19
20
21
22
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Fort Lauderdale, Florida 954-755-6401
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1 CERTIFICATE OF REPORTER
2 THE STATE OF FLORIDA
3 COUNTY OF PALM BEACH
4
5 I, FELECIA CURRERI, RPR, Shorthand
6 Reporter and Notary Public, State of Florida,
7 HEREBY CERTIFY that I was authorized to and did
8 stenographically report the deposition of FREDA DE
9 FOSSE; that a review of the transcript was
10 requested, and the foregoing transcript, 5 pages to
11 40, is a true and accurate record of my
12 stenographic notes.
13 I FURTHER CERTIFY that I am not a
14 relative, employee, attorney, or counsel of any of
15 the parties, nor am I a relative or employee of any
16 of the parties' attorney or counsel connected with
17 the action, nor am I financially interested in the
18 action.
19 Dated this 10th day of February, 2018.
20
21
22 ___________________________________
Felecia Curreri, RPR, Notary Public,
23 State of Florida at Large
24
25
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Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
1 ERRATA SHEET
2 IN RE: STOPDIRTYGOVERNMENT v. TOWN OF GULF STREAM
CASE NO: 2014-CA-003721
3 DEPONENT: FREDA DE FOSSE
4 Page No._____Line No._____Change to:______________
__________________________________________________
5
Reason for change:________________________________
6
Page No._____Line No._____Change to:______________
7 __________________________________________________
8 Reason for change:________________________________
9 Page No._____Line No._____Change to:______________
__________________________________________________
10
Reason for change:________________________________
11
Page No._____Line No._____Change to:______________
12 __________________________________________________
13 Reason for change:________________________________
14 Page No._____Line No._____Change to:______________
__________________________________________________
15
Reason for change:________________________________
16
Page No._____Line No._____Change to:______________
17 __________________________________________________
18 Reason for change:________________________________
19 Page No._____Line No._____Change to:______________
__________________________________________________
20
Reason for change:________________________________
21
Under the penalties of perjury, I declare that I
22 have read the foregoing document and that the facts
stated are true.
23
24 ___________________________________________________
DATE FREDA DE FOSSE
25
44
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
1 February 10, 2018
2 Jones Foster Johnson & Stubbs, P.A.
505 S. Flagler Drive
3 Suite 100
West Palm Beach, Florida 33401
4 ATTN: JOANNE M. O'CONNOR, ESQUIRE
5 IN RE: DEPOSITION OF: FREDA DE FOSSE
TAKEN ON: January 31, 2018
6 STOPDIRTYGOVERNMENT v. TOWN OF GULF STREAM
7 Dear Ms. O'Connor, Esquire
8 This letter is to advise you that the transcript
taken in the above-referenced deposition has been
9 transcribed. Please contact our office at
954.755.6401 to make arrangements to read and sign.
10
The original of this transcript has been forwarded
11 to the ordering party and your errata, once
received, will be forwarded to all ordering parties
12 for inclusion in the transcript.
13 Sincerely,
14
15
_________________________________
16 Felecia Curreri, RPR
Daughters Reporting, Inc.
17 101 Northeast 3rd Avenue
Suite 1500
18 Fort Lauderdale, Florida 33301
daughtersreporting@gmail.com
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Discussion 7:18
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Examination
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FIFTEENTH
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3
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
1:21 2:4,8,13
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folders 20:2
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4
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
39:24
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5
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
produced 6:4
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6
Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
21:15 23:9,24
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stenographic
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stop 19:20
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trying 21:16
turn 17:20
turns 19:19
two 5:16,19 6:3
6:5,20 8:25
14:7,10,11
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Fort Lauderdale, Florida 954-755-6401
Daughters Reporting, Inc.
two-year 36:13
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18:17
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West 2:13 44:3
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100 1:15 2:12,16
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10th 41:11 42:19
11-1-12 14:25
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19th 39:5
1st 10:24,25
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16:10,14,15
2-7-17 15:22
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200 2:4
2012 10:25
2013 21:3 28:1
35:18
2014 8:15 10:24
10:25 22:4,16
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2014-CA-0037...
1:3 43:2
2017 5:16
2018 41:9,11
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3rd 1:20 44:17
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40 42:11
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561-221-9008
2:17
561-659-3000
2:14
561-994-4499
2:5
6
6111 2:3
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754-212-4201
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939059 41:18
954.755.6401
44:9