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HomeMy Public PortalAboutRobert Sweetapple Transcript 12/22/14Page 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 50 2013 CA 17717 AA CHRISTOPHER F. O'HARE, Plaintiff, vs TOWN OF GULF STREAM, Defendant. VIDEOTAPED DEPOSITION OF ROBERT SWEETAPPLE TAKEN AT THE INSTANCE OF THE PLAINTIFF Boca Raton, Florida Monday, December 22, 2014 11:31 a.m. - 2:34 p.m. Stenographically Reported by Mary Ann Hengstler, RPR Notary Public, State of Florida Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501-151.220.3837) 8a281478.857d.4716-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: JONES FOSTER JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 110 West Palm Beach, Florida 33401 Counsel for the witness joconnor@jonesfoster.com BY: JOANNE M. O'CONNOR, ESQUIRE GMM/MADISON P.A. 401 South County Road, #3272 Palm Beach, Florida 33480 Counsel for the Plaintiff service@g3mlaw.com BY: MARK J. HANNA, ESQUIRE ALSO PRESENT: Bill Ring Lou Radar (by phone) Christopher O'Hare Florida Court Reporting 561-689-0999 Page 2 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a2B1478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX WITNESS ROBERT SWEETAPPLE Direct Examination by Mr. Hanna EXHIBITS FOR IDENTIFICATION Plaintiff's Exhibit A (Memorandum dated 4/10/98 to Mayor Kaleel from Paul Nicoletti) Plaintiff's Exhibit B (4/7/98 letter from Edwin Jonas to Paul Nicoletti) Plaintiff's Exhibit C (E-mail dated 9/8/14 to Mark Hanna from Robert Sweetapple) Plaintiff's Exhibit D (Warranty Deed dated 7/14/96) Plaintiff's Exhibit E (Quit claim deed dated 3/1/01) Florida Court Reporting 561-689-0999 PAGE 3 PAGE 8 W; in 01 No Page 3 Electronically signed by Mary Hen gstler (501.151-2204837) Electronically signed by Mary Hengstler (501-151-220-3837) 5a281478 -857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 The videotaped deposition of ROBERT SWEETAPPLE was taken before me, MARY ANN HENGSTLER, Registered Professional Reporter, RPR -CP, Notary Public, State of Florida at Large, at 20 S.E. 3rd Street, in the City of Boca Raton, County of Palm Beach, State of Florida, beginning at the hour of 11:31 a.m., on Monday, December 22, 2014, pursuant to Notice filed herein, at the instance of the Plaintiff in the above -entitled cause pending before the above-named Court. THEREUPON, ROBERT SWEETAPPLE, being by me first duly sworn to testify the whole truth, as hereinunder certified, testified as follows: DIRECT EXAMINATION BY MR. HANNA: Q. Can you tell us your name. A. Robert Sweetapple. Q. And what is your professional address? A. 20 Southeast 3rd Street, Boca Raton, Florida. Q. Do you -- What firm are you practicing at, under? A. Sweetapple, Broeker and Varkas, P.L. Q. What type of firm is that? A. That's a LLC law firm. And my firm Sweetapple Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.9897( Electronically signed by Mary Hengstler (501-151-220-9837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 and Varkas, PA is a member of that. Q. Do you have any other locations for that firm? A. Yes. We have an office in downtown Miami, 44 West Flagler Street. Q. Okay. And what is your residence address? A. 333 Northeast Spanish Trail, Boca Raton. Q. What is your work telephone number? A. The office number is 561-392-1230. Q. And was that the same number that you used in 1997, 1998? A. I believe so. Q. Okay. A. In Boca. Q. What about in Miami, do you have that number? A. It's 305-374-5623 I think. Had that number for 30 something years. Q. And do you have a fax number? A. I wouldn't know the fax number anymore. I don't -- Q. Well, is the, is the fax number to the best of your knowledge the same as it was in 1997, 1998? A. I presume. Q. What is your professional e-mail address that you use? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2203837) Electronically signed by Mary Hengstler (501.151.2203837) Sa281478-857d471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 A. They have pleadings@Sweetapplelaw.com or something. Q. I mean for your personal, or your professional use individually? A. RSweetapple@Sweetapplelaw.com. Q. Do you have a personal e-mail account? A. I believe so. Q. What are the -- What is that address? A. I don't know what it is. It's something that was set up with my phone. I don't use it very often. Q. Okay. Well, when you communicate with other people, clients, do you use your professional e-mail address or your personal? A. Well, I think that's, that's my business information. I'm not going to discuss that. We're here to depose me regarding allegations that I represented Mr. O'Hare in 1998. The way I conduct my business is confidential business information, and I'm happy to give you my public information which I've done. Q. Well, there is possibility that you communicated by Mr. O'Hare through e-mail. A. In 1998? Q. Yes. A. I did not have e-mail in 1998. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151.220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 5a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 Q. When did you get e-mail? A. Last five years. Q. Okay. A. I don't think they had e-mail in 1998. Q. Well, also there's, the standard as you know is the same or similar matter as the current litigation, and there are e-mail communications that might be pertinent currently in 2014. A. I don't, I don't think so. You can ask the judge that. Q. Okay. A. I'm not going to provide you with any of my e-mails now. Q. Okay. A. You're alleging -- Q. Well, let's, let's get this out of the way. A. Okay. We know what the matter is now. The -- MR. RADAR: Mark, Mark, excuse me. MR. HANNA: Yes. MR. RADAR: Is there a way to turn up the volume because both of you, your questions and his answers, seem to be breaking in and up, breaking up, going in and out. THE WITNESS: We turned the phone around and Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478-857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 I've turned it up as high as it will go. MR. RADAR: Okay. Thanks. BY MR. HANNA: Q. Okay. Regarding the subpoena and the notice of deposition, there was an exhibit attached to it requesting that you bring documents. MS. O'CONNOR: Do you have an extra copy, Mark, by chance? MR. HANNA: Yeah, I think so. I'm going to mark that as Exhibit A. BY MR. HANNA: Q. I believe we covered, in the records custodian depositions, you produced all the documents that refer to Christopher O'Hare. A. Other than the documents I told you I obtained from the clerk of the Town of Ocean Ridge. Q. Right. Now regarding number... Okay. Number eight: "Any and all documents or communications between you and Paul Nicoletti." Did you bring those with you? A. I did not. I'm asserting a work product privilege as to my communications with Mr. Nicoletti that occurred this year. Q. Okay. Are there documents that exist? A. Yes. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-157.220-3837) Electronically signed by Mary Hengstler (501-151-2204837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 Q. Okay. All right. Item number 10: "Any and all documents or communications between Robert A. Sweetapple and Joel Chandler that refer or concern Christopher F. O'Hare or Shelly Childers O'Hare." A. I'm asserting a work product privilege as to those. Q. Okay. Are there documents that exist? A. I'm not going to disclose that. Q. Well, you've filed documents with the Clerk of Courts in other court cases. Have you filed all the documents or is there other documents that exist? A. I'm not going to disclose that. Q. Okay. Any and all documents or communications -- or I'm sorry, number 11. "Any and all documents or communications that refer to or concern Robert A. Sweetapple's representation of Christopher O'Hare or Shelly O'Hare between Robert A. Sweetapple and any of the following people: John Randolph, Joanne O'Connor, William Thrasher, Scott Morgan, Joan Orthwein, Thomas Stanley, Donna White, Robert Ganger." Are there any such documents? A. Are you talking about representation in 1998? Q. No. I'm talking about discussing the subject Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501.151-220-7837) 6a281478-857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 matter of the motion to disqualify in your prior representation of Mr. O'Hare. A. I'm not going to discuss my work product. That would be my work product. Q. So you're refusing to answer that question? A. Yeah. Q. Okay. And you didn't bring any documents with you? A. I didn't. I'm not going to give you my work product with my clients that concern your clients. If we could do that, we wouldn't need to have litigation process. Q. All right. When did you graduate from law school? A. I graduated from law school in 1979. Seems like a moment ago. Q. Okay. No kidding. Of course I was only in eighth grade then. You have a little bit on me. When you graduated from law school, what did you do after that? A. I was employed by a litigation firm in the AmeriFirst building in downtown Miami by the name of Bartel, Shupert and Dubinski, and I began trying cases. Q. What kind of matters did you handle? A. I, at that firm, handled criminal cases, Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 11 domestic cases, medical malpractice cases, personal injury cases, legal malpractice cases, fraud and unfair deceptive trade practice cases, gun running cases in federal court, paternity cases. It was a five -man firm that at that time handled every type of litigation under the sun. Quite, quite an education. Q. Now when you say litigation, would you become involved in cases that were already filed or did you start them from inception? A. When I arrived, I had just left an internship with the Public Defender's Office my last year at the University of Florida. And the judge who recommended me to Stan Bartel had indicated that I had substantial trial experience during the Mariel boatlift as an intern, and I immediately began trying cases for the firm, their cases. And then as I brought in cases I would work on them. Q. Okay. And that was in Miami? A. Downtown Miami. Q. Were you primarily plaintiff or defense? A. There was no, no such thing. Q. Pretty much even mix? A. Depended on what type of case it was. Q. Okay. And approximately how many cases would you handle a year do you think? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-7837) Electronically signed by Mary Hengstler (501-151-220-7837) 68281478-857d471b.9e71-80559edl289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 A. How many files did I have? Q. Yeah. A. Or how many trials did I have? Q. How many trials or files in a year? A. I tried probably half a dozen jury trials in my first year. I probably had 40 cases. Q. And that number 40, I know that's an estimate, would that be a caseload that you would carry, about 40 cases for years? A. I'd say that's typically been my caseload -- Q. Okay. A. -- my entire career. Q. So you -- A. That's about as many as I can effectively handle. Q. Okay. So you have about, around 40 cases a year, some are previous cases, some are new cases? A. Right. Back then. Now of course I have lawyers in Miami and lawyers here that work cases up for me. So I guess you would call my caseload a lot higher, but back then I was, I was the low man on the totem pole. Q. Okay. Now after you left that firm, what did you do? A. I opened up my own practice in August of 1981 Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151.220.3837) Electronically signed by Mary Hengstler(501-151.220.3837) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 with Mark Kamilar. Was a firm called Sweetapple and Kamilar, and I continued to try cases. Q. How do you spell Kamilar? A. K -a -m -i -l -a -r. Q. And that was in Miami? A. Yes. Q. How long did that firm last? A. I was with Mark three years, and then I relocated to Boca Raton. Q. What brought you to Boca Raton? A. I had settled a substantial legal malpractice case in 1984, I believe, for a man named Rafaello Russo. He took the proceeds of that settlement and opened a restaurant on Palmetto Park Road, and invited me and my wife to come up regularly to dine. And at that point we were thinking about starting a family, and I wanted to ultimately live on the water. I grew up in Fort Lauderdale. All my wealthy friends lived on the water, and I, I never got to. So I thought maybe I'd realize my dream of living on the water in Boca Raton and could raise a family in some place other than Miami. And in 1986 I moved. Q. I understand why you would want to get out of Miami. A. I enjoy going to Miami now. But when you're Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2203837) Electronically signed by Mary Hengstler (501.151-220-3837) 6a281478-857d471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 starting to have a family, it's the suburban flight, right? Q. Yeah. Nice, nice place to visit. A. Yeah. I went down last Wednesday for my daughter's UM graduation, and she insisted we go to Monty's, and as we sat there, I said, I stood on that very table right there in May of 1980 celebrating passing the Bar. So it's nice to go full circle. Nice to visit, but I much prefer living here. Q. So then '86 you moved to Boca? A. Mm-hmm. Q. And did you join another firm or did you -- A. No. I commuted to Miami until 1989. Q. Okay. A. And in 1989 I opened a second office in, in Boca. My Colgate roommate, Doug Broeker, was a partner of Fowler White, and I convinced him to come work with me and to take over the Miami office. Q. Okay. A. But I worked at both offices for some time and then realized that was not a good way to make it to 60. Q. That's a hefty commute. When did you start working primarily out of the Boca Raton office? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-161-220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478 -857d-471 b -9e71-80559 ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 A. I bought a building in Boca in December of '89. My daughter was born, my first daughter was born in February of '89. I would say by '89 I was spending at least three days a week in Boca. The fax machine had been invented, I got a Miami line. So I typically would go down two days a week. Q. Okay. And at some point Alexander Varkas joined the firm? A. Oh, Alex joined the firm before Doug Broeker. Alex has been with me 28 years. Q. Okay. So around 1990 -- When did you -- Where did you practice from when you moved to Boca; where was the office located? A. Palmetto Park Road. 465 East Palmetto Park I•... Q. How long were you at that location? A. I think 'til 198. I think I sold the property in '98. Q. Okay. Where did you go after that? A. Bought a building on Boca Raton Road, where I was until last year. Q. And now you're at? A. 20 Southeast 3rd Street. Q. What was the address for the Boca Raton Boulevard? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3637) Electronically signed by Mary Hengstler (501.151.220-3637) 6a281478 -857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 A. 465, I think, Boca Raton Road. I think. It's been awhile. Been a whole, whole year now. Building's been knocked down. Q. In 1998 did you have any associates that worked for you? A. Yes. I'm pretty sure I did, but I couldn't remember which of them. I've had associates throughout the years. Q. Okay. What about Edwin Jonas? A. Edwin Jonas was of counsel to my firm for a period of time, maybe about a year. I'm estimating. He had moved down from New Jersey, had, at the time I thought substantial experience, maybe it was like ten years of experience, handled real estate and administrative matters that I didn't handle. And as I recall, he ended up somehow being in my office suite, either he shared space or he gave me time for, you know, did work on my cases for rent, and I sent him matters to handle that, you know, I didn't typically do, real estate. In this case it looks like I referred Mr. O'Hare to him involving a code enforcement matter, which I don't do typically. I don't think I've done more than one code enforcement hearing, or maybe two in my entire career. And he would either bill the clients on the cases that he handled or he would work for me Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengsller (501-151-220J837( Electronically signed by Mary Hengstler (501-151.220.3837( 6a281478-857d-47lb-9e71-80559edl289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 and I would pay him on my cases. That's my best recollection of how it worked. Q. Okay. When he would work on his cases, did he do it under your law firm? A. He used my stationery. He had moved down -- The way I met him is he was renting a house that I owned, used to own in, in my neighborhood in Boca. And I became friendly with him. And he was a lawyer in north -- in New Jersey, and he, he was a member of the Bar here and he was looking to, you know, get established in Florida. And, you know, I didn't want to make him a partner. I didn't -- Obviously wasn't in a position to hire him as a ten year practitioner, and we came up somehow with the idea he'd be of counsel to the firm. Q. When you say he's of counsel; what was the meaning of that? A. I mean, I, I don't even know what the terms of the arrangement were as I'm sitting here. I don't know if this was a formal agreement. I don't know -- I don't remember the specifics of it. I have a general recollection that that's how it worked. Somewhere around those lines. Q. In the late '90s what kind of cases were you handling? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151.220-3837) 6a281478.857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 A. The late '90s, I would say -- When did I become Board Certified; do you know? Q. No. A. I think I became Board Certified as a civil trial lawyer maybe 20 years ago, and as a business litigator 15 years ago. The progression of my practice has been, even though I've tried ever type of case I can think of before a jury and handled every type of case I can think of, my practice basically funneled, and I stopped handling federal and state criminal cases in about 1984. I stopped doing domestic cases probably around the late '90s. I didn't handle any personal injury cases. I would say most of my cases were civil and business related in some form, commercial related, probate. Mostly, you know, nonpersonal injury, non, non-domestic, noncriminal litigation. Q. And did you handle any civil rights claims? A. I've handled 1983 cases and those types of cases, yes. Q. What about defamation cases? A. First jury trial I tried before Lenore Nesbitt in 1980 was a defamation case. Q. Okay. And you currently represent Gulf Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler(501-151-220.3837) 6a281478.857d-471 b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 19, Stream, the Town of Gulf Stream, correct? A. I think that's a matter of public record, but I'm not going to discuss any details of that. Q. Well, you represent them, that's -- A. Yeah, I do represent them. Q. Okay. Have you represented other municipalities or government entities? A. I would have to go back and look. I'd have to go back and look. I think we have represented City of Miami, noise and abatement boards and other government entities. I typically have sued government entities and, and eminent, defended eminent domain cases. I was doing a lot of eminent domain at the end of, in the '90s, now that you mention it. Q. Okay. A. But we have represented, you know, governments from time to time. I know that we did quite a bit of work for City of Miami. Q. Now eminent domain, what, what is that? A. Eminent domain is the power of the sovereign to take property for an alleged public use. I was involved in all the Mizner Park takings. I represented the largest landowner in Boca Raton in the 1990s regarding the eminent domain cases of the city and the Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.220-3837) Electronically signed by Mary Hengstler(501-151-220-3837) 8a281478.857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 Boca Raton Community Redevelopment Agency, both at the trial level and at the Fourth District Court of Appeal, including for the development of Mizner Boulevard and other roadways that were ancillary to the development of Mizner Park. And in a little full circle moment, since I like those little stories. Joanne's secretary, Mary, was Adams Weaver's secretary in 1989, and I worked with her regularly because Adams Weaver was my opposing counsel on many of those cases. He represented the Boca Raton CRA. So when I call Joanne now I get to chat with Mary. So it's a small, small town. Q. Have you ever had, handled civil RICO cases? A. Yes. Q. Against who? A. Matter of public record. I think I have a form of one that we prepared that we've been using. And research, extensive research files on civil RICO. Q. Okay. Well, what -- Who did you represent, the plaintiff or the defendant? A. I don't remember. I'd have to look at the research files and the form files. Q. Did any of them ever go to trial? A. I don't think that, I don't think we have actually tried plaintiffs or defendants RICO. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151.220.9837) Electronically signed by Mary Hengstler(501-151-220-3837) 6a281478 -857d-471 b-9e71-805Bad 1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 Q. Okay. A. I've, I've handled continuing criminal enterprise cases also, which is the, a criminal cousin of RICO. I handled those in the eastern and western districts of the Federal courts of Louisiana, in Lafayette and New Orleans. Q. What did those cases involve? A. Those cases involved a criminal enterprise that was alleged to be actually ultimately convicted of running marijuana and money laundering. I represented a lawyer at some point who ended up pleaing to a criminal, continuing criminal enterprise. He was from Miami and he was charged in the Western District of Louisiana. Q. Okay. Do you ever handle any public records litigation? A. I have made numerous public records requests. I've never sued for fees. Never, never actually gone after fees or defended a claim for public records on behalf of an entity prior to this litigation. Q. Well, when you say you've made numerous public records requests, and you said that no litigation -- A. Yeah. Q. -- resulted from it. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.220-3837) Electronically signed by Mary Hen gstler (501-151-220-3837) 6a281478-8 57d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 A. Yeah, I've, I've made Sunshine requests and public records requests obviously since the law has been in effect. Q. Why wasn't there any litigation out of that? A. Because I, I've rarely, I've rarely -- I've seen a lot more litigation in public records requests of late that is not bona fide, and I have never had a problem, in terms of getting records from government ultimately, and I've always made discrete requests for documents I really need for a, for a lawsuit, and they've been provided. Q. So the governmental entities provided the records requested? A. Yeah. But I've never seen a situation where a group of people have inundated a clerk with thousands of public records requests in order to close the town down under the guise of trying to get open government. But I -- of course, I guess when you practice law enough you get to see everything in this world. Q. Have you reviewed the cases that have been filed in Christopher O'Hare versus Town of Gulf Stream? A. That's my work product. I'm not going to disclose that. Q. Well, have you reviewed them? I'm not asking for any -- Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501-151-220.3837) 5a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 A. I'm not going to tell you what I've done as a lawyer. I'm not going to tell you what I've researched, I'm not going to tell you what I've written, I'm not going to tell you what I've thought. I'm not going to tell you who I've spoken to. That's, that's my client's private business information. They hired me to perform a service, and I intend to perform it. Q. So what is the basis of your refusal to testify about that? A. Work product privilege. Q. Okay. Now getting back to the areas that you practice. Has it changed in the last, say, ten years since '98? A. My practice has varied throughout depending on any number of circumstances. The clients I've gotten, the nature of the economy. I handled some major lender liability cases in the first recession that I was involved in, which was 1981, and sued some banks, and they were fairly high profile cases. And as a result, I was hired to handle a mass of lender liability case in 2002 that listed to 2007. As a result of that, I ended up getting a lot of lender liability claims during this last recession. I ended up representing a major boat manufacturer, Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2204837) Electronically signed by Mary Hengstler(501-151.220.3837) 9a281478.857d.471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 24 Donzi, Fountain, Proline and Baja. So I ended up getting a lot of commercial litigation in North Carolina and other states for that company. So my practice really is driven by, by my clients. I get, I get called in to handle complex litigation matters by clients, not only in the State of Florida but in over a dozen, over a dozen states in the country. Q. Now in 1998 you represented some Ocean Ridge residents against the Town of Ocean Ridge? A. I don't know if it was 1998. I don't think it was 1998. Q. 1998, 1999? A. I'm not sure of the year. Q. Okay. A. I don't remember. But I, I, I handled litigation in, in the circuit court, and I think it was before a judge who is in the criminal division now. He's been in the criminal division forever. MS. O'CONNOR: Judge Rapp. THE WITNESS: Yeah, Judge Rapp I think had the case. BY MR. HANNA: Q. What did that case involve? A. It involved a dispute between adjoining Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151.220.7877) Electronically signed by Mary Hengstler (501-151.220.7877) 5a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 25 property owners regarding the development rights of a piece of property that had been sold by the Audubon Society, generally. Q. One second. (Discussion off the record). MR. HANNA: Lou's having trouble hearing you. I'll speak up. THE WITNESS: Okay. Lou, can you hear me now? Lou. Hello. BY MR. HANNA: Q. Lou? A. Lou? Lou, can you hear us? MR. RADAR: Yeah, now I can hear you. I'm trying to get Chris to give me a cell phone connection because I'm only hearing about half of what's being asked and about half of what's being answered. MR. O'HARE: Yeah, but I didn't want to do that until everybody agrees. THE WITNESS: Okay. So you want me to switch to cell phone? We'll switch to cell phone. MR. RADAR: What did you just say? THE WITNESS: Okay. We're going to switch to cell phone. You have him on? MR. O'HARE: I didn't put it on speaker. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151-2203837) Electronically signed by Mary Hen gstler (501.151-2203837) 6a281478.857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 26 I'll try it. MR. RADAR: Hello. MR. O'HARE: Lou, can you hear us now? MR. RADAR: Yeah, I can hear you, Chris, right now. Let's see if I can hear him talking. THE WITNESS: All right, Lou. Can you hear me? MR. RADAR: Yes, I can hear you. MR. HANNA: Can you hear me, Lou? Lou, can you hear me? MR. RADAR: Yeah, I can hear you now. MR. O'HARE: Hopefully I won't get any calls. BY MR. HANNA: Q. All right. You were telling us about the case of, the Audubon Society, nature preserve I think it was. A. That was a, yeah, that was a piece of litigation I handled that had multiple, multiple parties. And when I was advised that Mr. O'Hare thought that I had represented him in the past, I presumed that that was, that he somehow was involved with that group, and I -- They pulled the pleadings and he was not one of the parties that I represented in that case. Q. Okay. You represented the individuals in Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler(501-151.220.3837) Electronically signed by Mary Hengstler (501-151-220-7837) 6a281478.857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 that case; not the town? A. I think I represented individuals. I think one of the, one of my clients was a, an elected official. I don't think the Town was a party to the litigation as I recall. Although they were a party to mediations. Q. Okay. A. That's my general recollection. I haven't looked for that purpose. Q. Okay. Bernd Schulte's name? A. Bernd Schulte was a commissioner I guess. Q. And Rich Lucibella? A. Right. Q. They were the property owners around it? A. Right. And that, that just is why I was most concerned when Mr. O'Hare testified I had been at a meeting with Mr. Nicoletti with him at Town Hall, because I don't believe I've ever, I was ever in the old Town Hall in Ocean Ridge. Even in that case. Q. Okay. A. At least I have no recollection of ever being, being in that building. I drove by it a hundred times taking my kids to Gulf Stream for 19 years. Q. Have you discussed the contents or the allegations of the Motion to Disqualify with any of the Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151-220-7877) Electronically signed by Mary Hengstler(501-151.220.7877) 6x281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 other attorneys representing Gulf Stream? A. First of all, I'm not going to discuss that, because that would be my work product and lawyer client. Q. Okay. MR. O'HARE: I'm not asking for the content; just if it happened. BY MR. HANNA: Q. Have you discussed any contents of the allegations in the Motion to Disqualify with anybody from the Town, any of the Town officials? A. I'm not going to discuss that because that would be work product. That would be in conjunction with my representation of the Town. Q. Okay. We're asking -- A. This is a motion filed in this case. Q. I'm asking for whether it occurred, not whether -- not for the content. A. Well, you, the content is in your question. So that's silly. I heard your client say that to you and I laughed at how silly of a notion that is. You can't ask a question that has the content in it and then say it doesn't have the content. Q. Have you ever represented Christopher O'Hare before? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151-220-3837) Electronically signed by Mary Hengstler (501.151-220-3837) 6a281478.857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 29 A. Not that I have any recollection of. Q. Okay. A. And if you have something to refresh my recollection, I'd love to see it. I see from my records he was in my office apparently, and I could have had an initial conference with him before he was sent to -- before this was assigned or given to Mr. Jonas. For 35 years I've met with people and I do not charge for initial consults. If someone talks to me on the phone and I think that I should speak to them, and there's something that's of a legal nature that I should pursue, I don't write time slips for my first consult. So it's possible that he came in and talked to me. It's possible he spoke to me on the phone. I'm not doubting that. I just don't have any recollection of him or any matter for him. Q. Okay. Have you seen the memorandum from Paul Nicoletti? A. I, I saw that when I obtained it from the Town of Ocean Ridge. It makes reference to me being on a conference call with Mr. Jonas and calling Mr. Nicoletti. Q. Do you have any recollection of that phone Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478 -857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 call? A. None at all occurred. But I have no doubt it Page 30 MR. HANNA: I'm going to mark this as Exhibit A -- or what are we -- Yeah, this is Exhibit A on this one. THE WITNESS: I'll just write it here and then you can put a thing on it. (Plaintiff's Exhibit A). BY MR. HANNA: Q. And is that the memorandum from Paul Nicoletti to the Ocean Ridge Town Commissioners regarding that phone call? A. Yeah. The first time I saw this was before your client's depo. I obtained it from Town of Ocean Ridge. Q. And we had sent that to you also. A. I think I'd obtained it before you did. Q. All right. A. Because I was there riaht after you were there. Q. Now regarding the phone call, you indicated that you have no recollection of it but that the phone call occurred? A. No, I said I'm not disputing it occurred. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151.220-3837) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 31 Q. Okay. A. I have no knowledge one way or the other. But it, it certainly, it certainly looks like something I would do in the course and scope of representing a client. Q. Okay. A. And it would be consistent that Mr. Jonas, if there was a litigation issue, would involve me, and appears I made a phone call. I guess had the case not resolved itself three days after this memo and there would have been litigation, then I would have gotten involved. Q. Well, in the memorandum you discuss, it discusses that, threats of a civil rights and defamation case, are those the kind of cases that you would have handled against public entities back in 1998? A. It would depend on the facts. In this case, from looking at everything that I've seen now, it appears that the O'Hares had some approval already for use of a building, and that a government under color of law was attempting to deny them of the use of their property. So I was probably thinking in terms of a 1983 action, and I had brought 1983 actions, including all the way to the United States Supreme Court. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501.151.220.3837) 6a281478-857dd71 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 Q. What are the damages that you typically would seek to recover in these kind of cases? A. There's no such, there's no such thing as typical. I mean, the last 1983 case I handled was against the chief judge of Broward County. Q. Okay. A. For locking another judge out of the courthouse. I mean, what would the damages be? It depends on the facts of the case. Some cases you get an injunction. Q. Are there any mental or emotional distress components to a 1983 action? A. I don't know. I would have to go look at the law. Q. Have you ever made -- A. I, I, I don't, I don't, I don't recall. Under Florida law obviously you'd need a touching. Would have to be the tort of outrage or a touching. And I've, I've, I don't recall ever, you know, pleading emotional damages in a 1983 case, but I'd have to go back and look at the law. Q. What about other cases that you could file against a public entity for some property type dispute? A. That would depend on -- you're asking me for my legal opinion now. I would have to research it and Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hen gstler (501-151-220-3837) 6a281478-8 57d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 look at the, the theories. Q. Who is Heath King? A. Heath King is a counselor who I met through a client of mine over 25 years ago. Probably the smartest man I've ever met. Q. What type of -- Was he a psychotherapist? Is he a physician? A. He's not a physician. And I don't know his, you know, his full CV. He was a professor at Yale University and is a highly published thinker and writer. I don't know if his training is in psychology, interdisciplinary studies. But I -- He was appointed by the court to counsel one of my clients, and the client raved about him probably closer to, closer to 25 year, I'd say 25 years ago. And maybe 22 years ago, somewhere in that range. And I met him, and since then I've referred family members, friends, friends of my children, clients. And even when I get stressed out, I'll invite him to lunch. Q. Okay. Now when you say you refer clients there, are they ever related for treatment for a pending case? A. No. No, no. I don't handle cases, I don't think I've filed a case where I've hired a psychologist or a psychiatrist to testify, because I haven't handled Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151-220-3837) Electronically signed by Mary Hengstler (501.151-220.3837) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 34 any personal injury type cases or cases where I've sought pain and suffering. I've never used him as an expert or, or consulted him in that regard. The first time I, I learned of he, he'd been appointed by a court, a client of mine threw a vase at his son in a construction trailer. And I didn't handle the criminal case, but the judge ordered him to go to anger management therapy with Mr. King. But I've sent people that are having stress, you know, from litigation. having marital counseling. depressed. I've sent people who are I've sent people who are I mean, I can give you a little personal background on why I do that. But early in my career I had a young man in my office, about 1981, young Cuban boy who was very distressed, and I didn't know anything about sending people to counseling. And he kept telling me -- I'm haunted even to this day -- he would say Paula, Paula, I love her but she doesn't love me. And he would rage. And, and I just thought, well, this guy seems a little wacko, and within a month he had stalked Paula's brother and murdered him in a grocery store in Hialeah. And I've had clients and friends who've killed themselves who've been in litigation. So I've learned the hard way that any time I Florida Court Reporting 561-689-0999 Electra nically signed by Mary Hengstler (501-151-220-3877) Electronically signed by Mary Hengstler (501-151.220-3877) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 see anybody in our society which is very stressful that is having any kind of issue, that typically being a litigator and filing lawsuits doesn't relieve stress, it causes it. So I've probably referred 50 to a hundred people to Heath King, and I know he's referred people to psychiatrists and psychologists and others. But I've done it in the hope that I won't have to hear about a client killing another person or another client killing themselves. But I don't do it for purposes of obtaining testimony. Nor do I ever speak with Mr. King about anyone I send to talk to him. And I certainly wouldn't do that. And I saw that in your motion and I thought that was pretty irresponsible to suggest it. Q. Now regarding Heath King, did you refer Mr. O'Hare to Mr. King? A. I have no recollection of ever doing that, but as I said to Mr. O'Hare, I think in your presence at the depo, the fact that he says I went to -- that I referred him to Heath King is... makes, makes me very confident that he and I at some point spoke. And I don't doubt that, his statement that I suggested or recommended Heath King to him. Q. Now normally would you -- A. I still refer people to Heath King regularly. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler(501-151-220-3837) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36 Q. After having discussed their problems with them; isn't that true? A. No, not necessarily. I mean, I've, I've recommended people to Heath King at a cocktail party. I've recommended people to Heath King when I've heard that a girl was not eating because her boyfriend broke up with her at St. Andrews and she was a friend of my, my daughter. And I've said, I never even met this girl but tell her mother she should call Heath King and find out where the best treatment could be for her. Q. But you just don't arbitrarily tell somebody to go to Heath King? A. Not arbitrarily. I mean, I recommended one of my best friends go to Heath King when he told me he was getting divorced. The minute I heard divorce, I said, don't do that alone. Go talk to a professional. Q. But you have -- A. Without knowing any details. Q. -- you have no recollection of what you and Chris O'Hare talked about that resulted in you referring him to Heath King? A. I have no, I have no recollection of even referring him to Heath King, or giving him his name or phone number. Q. Do you have any recollection of meeting Chris Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hen gstler (501-151.220.3837) 6a281478 -857d471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 37 O'Hare? A. I have no recollection of meeting Chris O'Hare. Q. Okay. A. And I've racked my brain. Q. Do you have any recollection of discussing this case with Edwin Jonas? A. None. Q. Okay. Do you have any recollection of receiving payment by Mr. O'Hare? A. None. Q. Do you have any recollection of -- A. Do you have anything to refresh my recollection, like a check or a retainer agreement or an invoice or something? Q. We'll get to that. A. Okay. I mean, I wish you -- I'm as curious as you are what happened. Q. Okay. Do you recall or have any recollection regarding payment to Edwin Jonas for his work in the O'Hare case? A. I have, I have absolutely -- I've racked my brain and I have absolutely no recollection of, of Mr. O'Hare. Q. Who is Diane Scully? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151.220.7877) Electronically signed by Mary Hengstler (501-151-220-7877) 8a281478-857dd71 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 38 A. Diane Scully was Diane Faulk. Q. Okay. A. And she was my brother's girlfriend after high school or after college for many years, and I considered her a dear friend, just through my brother. She's -- My brother's five years younger than me. I think she's probably two or three years younger than me. So I didn't know her in high school but I knew her after. Very dear person. Wonderful person. Her brother, Kenny, is a good friend of my brother's, and has been for 30 something years. And I see him once or twice a year. I see Diane once or twice a year. Typically at my brother's Christmas party. And her, her older brother I knew at Nova High School. He was in my class. But he unfortunately died about ten years ago. So I've not seen or talked to him. Q. Who passed away? A. Dale. Q. Dale. Who is Dale? A. Dale is Diane's brother who was my age. Q. Okay. When did your, you said your brother dated Diane Scully? A. Dated -- Q. Diane Faulk. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3877) Electronically signed by Mary Hengstler (501-151.220-7877) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 39 A. -- for some period of time. Q. What was the time period? A. I, you know -- I know it wasn't high school. And I don't know if it was when he was at Florida State or when he was, when he had graduated. It was 20 -- I mean, she's been married for 20 years I would say. Q. How long did -- A. He's been married, he's been married at least that long I think. I mean, you're going back. Q. So is it in the '80s, '90s? A. I -- Let's see, I graduated from Nova in 1972. He graduated in '77. So I think it would have been late '70s or early 180s. Q. Okay. And you maintain contact with her through the -- A. I see her, I see her at different things. And I grew up in Plantation. I still have a lot of friends in Plantation. Q. Okay. A. My brother lives on Gordon Island in Fort Lauderdale. So I go there. He's got triplets, I see them regularly, I'm down there. Q. Does she refer cases to you? A. No. Q. Okay. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6x281478.857d.471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 A. No, I haven't -- I mean, when I -- That's another thing, when I heard from, at his depo that Diane Faulk gave him my name. Surmising, speculating the reason I don't have any time listed, even if he did call me, how many ever times he says he called me, is if he was sent by Diane or anybody I considered family, if I didn't have a case for that person I didn't end up appearing, it's not unusual that I would not give a bill. Q. When you, when you take on a case, are they already in litigation at that point? A. I have to say that now, at this point in my career, I'm called in to try cases and take over cases probably as often as I'm called in at the beginning of cases. For instance, this litigation is fairly typical of my practice. I have people come in, and I've tried cases, you know, that have a whole filing cabinet and have a month to get ready. I just got hired on a case before Judge Hurley that's going to trial in February that I'm getting geared up to try over the holidays. Q. Well, do you ever get calls from people that, whatever, the incident just happened, nothing has been filed, and you take them on as a client? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.9877) Electronically signed by Mary Hengstler (501-151-220-7877) 6a281478 -857d-471 b -9e71-8 0559ed 1 289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 41 A. Oh, sure. That used to be the nature of my practice when I started. Q. Okay. A. And obviously it's changed. Q. Did they all result in filing of litigation? A. Well, I typically don't get hired unless, you know -- People come in to see me for litigation. People are sent to me for litigation. Q. Well, in the late '90s, did you ever have any cases that you signed the person up but for whatever reason it never was filed, a form of litigation? A. If that happened, it would be extremely rare. I normally don't get a retainer, you know, to handle litigation unless there's litigation. To file a lawsuit or defend a lawsuit. People come in -- When people come in to hire me when it's not already a pending case, it's for purpose of defending a case that's been filed or for filing a case. Q. Okay. So a case that's already in litigation, that's typically when someone would come to you? A. Absolutely. Yeah, I don't, I don't just consult with people or... Q. Now when you consult with people that have Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-2204837) 8a281478-857d-471b.9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 42 the case in litigation, do you always take the case? A. Of course not. Q. Do you -- Strike that. Have you been contacted by people that are involved in litigation and you've filed a different litigation out of that as a result of the first filed suit? A. You mean when people come back to me? Q. Yes. A. Sure. I have clients that I've represented for decades. Q. Okay. A. I have clients that I've handled -- Mr. Russo, for instance, I handled a personal injury case for, his divorce, a criminal case, a legal malpractice case. I could write a book on litigation just on that one client. Q. Well, do you have a new representation contract every time you have a new case or do you have t� A. It depends on the nature of the representation. If I'm taking on a contingency commercial case, if I'm going to have co -counsel. For instance, I'm filing class actions now with the Farmer, Jaffe, Weissing firm down in Lauderdale against some Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler(501-151-220.3837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 43 entities in Broward that include potential RICO claims that we're researching now. If I have co -counsel, even though I already have one case for these people that I just got a judgment against the same entity in front of Judge Ross, you know, it's now going to have other lawyers involved, it's going to have contingency factors. So I have a new fee agreement, even though I represented some of the same people through a trial. Q. What kind of fee agreement would you use -- Strike that. There's the fee representation contract and there's also some, attorneys use an engagement letter? A. I've, I've used -- I use different types of agreements for different types of matters. I've charged flat fees, nonrefundable fees, contingency fees, hourly fees. Engagement letters. I have form retain, retainer agreements that have different boxes that are checked for the type of case it is. M6261 -IN Q. Do you still have financial records from A. No. Q. Why don't you have any of those records? A. Because they would have been purged years and years ago. Because I can only afford so much warehouse space. If I had all my records from '98, A, by now the Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.220.3837) Electronically signed by Mary Hengstler (501.151-220-3837) 8a281478-857dd71b.ge71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 44 cockroaches would have eaten them all, because even my seven-year-old records look like they're food for... that's what happens to all these people's disputes, they end up being eaten by cockroaches. Q. Well, do you have any records from 1998 for any closed client file? A. I haven't looked to see, but I'd be very surprised. Other than the research I told you about. Q. Other than the research files. A. I -- Q. How far, what is your -- Do you have a set timeframe where you purge files? A. Seven years. Well, I mean, we go in periodically, like every other year, every year. Right now it's when the -- I have a warehouse space that's probably 2000 feet of files, and when you don't have room to put the files from here, we end up throwing out, you know, files that are over seven years old. Q. Okay. A. I'm hoping with all these electronic records, that I won't have all this filing. Q. Except you're going to have gazillion -- A. Discs. Q. -- discs of everything and 15 copies of the same thing. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 So, then, there are no files, other than the research files, from any cases in 1997, 1998, 1999 in your possession? A. That would be my best guess, although I haven't gone through all of the files. But I -- The times I've been in the warehouse, I've never seen anything from the 1990s or 1980s. Q. Is it possible, then, that a file for Christopher O'Hare was opened and destroyed? A. Anything's possible. You're asking me to speculate. Q. Okay. Well, just because -- You have, you've presented us with, in the records custodian deposition with the few documents that you have representing Mr. O'Hare. Are you contending that that proves that you didn't represent O'Hare or that there was no file open? A. Not at all. Q. Okay. A. Not at all. I'm taking Mr. O'Hare at his word that he was sent to me by Diane Scully, that he met with me, that he talked to me, that I recommended to him that he go talk to Heath King. I can see that the day before a letter was sent by Mr. Jonas as of counsel to my firm. We opened him up in our system. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501.151.220.3837) 6a281478 -857d471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 46 And I'm contending that it looks like I never filled out a time slip. Q. Okay. A. Now did, did Mr. Jonas render a bill? Was there a bill typed up without a, without time slips because it was one week's representation? Did Mr. O'Hare call me on the phone and, and ask me questions about, about other things? I have no, I have absolutely no recollection and no way of knowing. Q. Okay. So in October 1997, it's possible that Mr. O'Hare called you regarding the Pace, Emmett Pace versus Ocean Ridge litigation that he was involved with? A. It's possible. I have no recollection. Q. Well, that's consistent with -- A. With '07? Q. Of '97? A. '97? Q. Yes. That's consistent with how your practice operated then, somebody in litigation that would bring you in to help them with that case; isn't that true? A. Well, it's, it's possible that he called me because he had a litigation matter. It's possible. Q. But that's something you would have handled? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2204877) Electronically signed by Mary Hengstler (501-151-2204877) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 47 A. No, someone calls me about a litigation matter, I would speak to them generally. Whether or not I would handle it or not, I'd need to know what the case is about. I have no recollection of any litigation with an Emmett Pace. Q. Okay. A. I think that's one of the files they went to look at online to see if I ever was involved in it. I've got no letters or documents. I mean, if you have something that shows in his calendar that he met with me in October and talked about somebody, show it to me. I don't think it's going to help refresh my recollection, because I've listened to his depo, I've seen all the documents, and I still don't have a recollection of him. Q. Okay. Well, because you don't have a recollection of it, does that mean that it didn't happen? A. Absolutely not. Q. Okay. A. No, I think it's likely that, I think it's likely, based on everything I'm seeing, that he did meet and talk with me at some point, especially judging from this, that we opened a client number for him. Because no other lawyer in the firm would decide that a Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151-220.3837) Electronically signed by Mary Hengstler (501.151-220-3837( 6a281478.857d-471b-9e71.80659ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 48 case goes to Edwin Jonas or someone else, it would have been me. Q. Did you ever handle cases with Edwin Jonas? A. I presume so. Q. What was Edwin Jonas' role in the firm? Now you've already said of counsel. A. Right. Q. Was he -- A. He, he -- I know that he had experience in real estate. I didn't do any, you know, I do no transactional work at all. And I represented a lot of developers. I know that whenever there was a real estate case that came in, a closing, I gave that to him. You know, other than that, I don't have a recollection of what -- I see from this document that I, he got involved in a code enforcement case. But I have no -- I can't recall any specific case that I worked on with him. Q. Okay. I'm going to show you -- MR. HANNA: I'm going to mark this, what is this? THE REPORTER: B. MR. HANNA: B? (Plaintiff's Exhibit B). Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151-220-3837( Electronically signed by Mary Hen gstler (501-151-220-3837( 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 49 BY MR. HANNA: Q. Can you tell us what that is? A. This is a letter that you obtained and I obtained from the Ocean Reef clerk, or Ocean -- Q. Ridge. A. Ocean Ridge clerk. Q. We know what you meant. Is this your, look like your letterhead from 1998? A. Yes. Q. Who was Jeffrey Bennett? A. Jeffrey Bennett was an associate in the firm, and it's my brother-in-law. Q. Okay. A. What about Paul Feltman. A. Paul Feltman was an associate in the firm. Q. And Alexander Varkas, was he a partner or member, shareholder, whatever it is was? A. Yeah. Well, named. Q. Yeah. Now how did Jeffrey Bennett function in the firm? A. He was paid a salary. Q. Okay. But what kind of role? Would he -- A. He did litigation. All we did was litigation. Q. Now did they work separately or was it a Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.7877) Electronically signed by Mary Hengstler(501-151-220-7877) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 50 team -type situation? A. It depended on the case. I mean, there were cases that associates had that I would supervise and they would primarily be responsible for. Then there were cases that Jeff and I went to the Florida Supreme Court on. Depended on the case. Q. Now how did, if it did function differently, did Edward Jonas function for the firm? A. That's what I'm telling you, he was there for, for a defined period of time when he was trying to establish in Florida, and had, you know, ten years or more experience as a lawyer. And he handled -- I didn't supervise him, you know. I didn't treat him like an associate. I would send him things. And I don't remember specifically, but I suspect that, you know, if he handled it, he would bill for it and he would get the fee. I, I have a vague recollection, but it, I have no, I would not rely on it, that either, either -- Because I own the building. So he had an office. And I think that I credited -- If he did work on one of my cases, I'd credit it towards his rent maybe. Something like that, you know. It was some, some, some dealing with the fact that he was, you know, operating out of my building. Q. Do you, do you think maybe you paid him Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) Will 478-857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 51 hourly? A. No, I don't think I paid him hourly. I think I might have paid him for his time in a case or he got his fees in the case, but I got a credit for what he owed for rent. I have some general recollection, something like that, but I could -- I would never swear to it. Q. Did he work on cases for you? A. I don't remember what he worked on. I would think, I would think that I had cases that he helped me with. Q. Okay. A. But I, I can't remember one case that he worked on. I haven't spoken to him in 15 years. Q. Do you know where Edwin Jonas is? A. No idea. Q. Have you tried to find him? A. No. Q. Okay. Now regarding Paul Nicoletti, he was the Ocean Ridge town attorney. Did you have any contact with Mr. Nicoletti for the litigation involving the Audubon property, Rich Lucibella? A. I, I don't know. Q. Okay. A. I don't, I don't remember him. I remember Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler(501.151.220.3837) 6a281478.857d-471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 52 that Ken Spillias was, was the attorney, I think, for the Town. It's my recollection, now that you mention it. I haven't thought about that for years. But I do remember Ken. I've litigated with Ken on a number of cases, and I seem to remember Ken was involved in mediations in that case. Q. How long did that case last? A. I don't remember. Q. Referring you back to Exhibit B, the letter. It says Exhibit A on the bottom but it's really Exhibit B. A. The letter to Mr. Nicoletti? Q. Yeah. A. Which says Edwin Jonas, and then he, he typed it looks like of counsel for firm under the stationery. So that shows you what a transient arrangement it was. Q. Well, who was, in the corner it says ERJ:CSE; do you know who that would be? A. Edward R. Jonas and Carol Eugene. Q. Okay. A. Who was a paralegal who then became a paralegal for North Miami. I smile when I see those initials because when I started practicing in 1980 she was at, she's a, was a Haitian woman, who was about 20, and she was studying at Miami Dade Junior College, and Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengsller (501-151-220-3837( Electronically signed by Mary Hengstler (501-151-220-3837( 6a281478.857d-47lb-9e71-80559edl289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 53 I was, got a call and was asked if we would consider mentoring her. We did. She became a paralegal, and she ultimately ended up working for the City of North Miami Beach. She was with us for 10 or 15 years. It's U -e -g -e -n -e. Carol Eugene. And I think she's in North Miami. So that's, that's who typed the letter if you want to contact her. Q. Okay. Well, in the -- So it's possible she typed "of counsel" for the firm? A. Looks like a typewriter. Q. Yeah. A. So it's possible we even had a typewriter in 1990. Q. I'm saying she -- You indicated Mr. Jonas typed that in. A. Well, I don't know who typed it. I, I don't remember ever seeing this letter 'til, 'til I got it from the clerk. Q. Okay. In the second paragraph it says, "In order to properly represent Mr. O'Hare at the Special Master proceeding, we would need an additional 30 days to prepare." What do you take the "we" meaning? A. I would think it would mean him and whoever he's working with. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501.151-220.3837) 6a281478.857d-471b-9e71.80559ed12B9a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 54 Q. Okay. Would that have been possibly you? A. Possibly me. Q. You have no recollection of it? A. I have absolutely no recollection of this. Q. But based on this the firm, Sweetapple, Broeker and Varkas, P.A. representing Christopher O'Hare? A. Well, I think that's a legal conclusion for the judge. It's of counsel. The Settlement Agreement says he represented the O'Hares, not the firm. Q. Okay. A. So that's a legal representation. You know, I don't think any of this is even relevant to the, to the determination based on, even if everything your client said is true, I don't think that it, it qualifies as a representation in the same or similar matter under any stretch. And, you know, my legal opinion, which I've told you, is that this is just a bad faith litigation strategy. Even if everything you said were true. But I'm not here to give my legal opinion. I'll let the judge decide if my firm was representing him. Q. Why do you say that it's not similar? And you make the representation it was similar. A. Because you look at -- Because how, how --t. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler(501.151.220-3837) Electronically signed by Mary Hen gstler (501-151-220-3837) 6a281478-857dd71 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 55 has nothing to do with -- Q. Okay. A. -- anything that's happened 16 years later. Q. Okay. Well, have -- A. It couldn't. Your whole argument's legally preposterous, and I'll be, I'm obviously seeking fees under 57.105. And I just filed my motion in the O'Boyle case, and after we have our evidentiary hearing in this case I expect I'll do the same thing. Q. Okay. Well, you're making the argument that it's not the similar case. A. Did this case involve a group of individuals filing thousands of public records requests to Gulf Stream and other towns in the, in the state for purposes of, of frustrating and abusing process and closing governments and shaking down governments to get attorney's fees for a law firm that we allege is not a bona fide law firm? Q. Where do you, where do you get the contention that that's where, that's what they're doing? A. I'm just -- I'm saying is that what this case is -- That's what I think, that's what I think the current litigation is going to. I'll be filing pleadings that you'll have before this evidentiary hearing. There'll be a number of pleadings filed. And Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501.151.220.3837) 5a281478.857d-4716-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 56 when you see what this case is all about, I don't think the litigation that you've described in 1998 had any involvement with public records requests. I don't think it had any involvement with the O'Boyle law firm. I don't think it had any involvement with bogus, not for profits that have been defrauding entities throughout the state and holding themselves out as not for profits. So we'll have, the judge will -- Q. Are you familiar, are you familiar with all the cases Mr. O'Hare has filed? A. I'm not appearing in all the cases Mr. O'Hare's filed. Q. Okay. A. I haven't -- So, so, no, I'm not. Q. You've indicated before that you are appearing, you're entering appearances in all of Mr. O'Hare's cases. A. That's for you to testify to. I -- Q. Okay. You didn't send an e-mail to that effect? A. Not all his cases in terms of his, his -- I'm handling the public records requests cases. Q. That's all, that's all you're doing for the Town of Ocean Ridge? A. I intend to appear -- Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 57 Q. Sorry. The Town of Gulf Stream. A. I intend to appear in all of his public records request cases. There's insurance counsel and other counsel in those cases. Q. Did you ever make a representation that you're going to be pursuing a civil RICO case against Mr. O'Hare? A. I'm not going to discuss confidential settlement communications. Q. That's not confidential settlement communications. It's items that have been, that are public record with Town of Gulf Stream. A. I have, I have communicated with counsel on that subject, and I'm not going to discuss those communications. Q. Have you discussed it with Mr. Morgan? A. That's work product. I'm not going to discuss it. Q. That's the basis of your objection? A. Yeah. Yeah, that's work product. Q. Okay. A. I think the Town is, has actually voted to bring civil RICO claims against Mr. O'Hare and Mr. O'Boyle, and I understand -- Q. But you have nothing to do with that? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220.3837) Electronically signed by Mary Hengstler (501-151.220-3837) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 58 A. I'm not going to -- That's my work product. MR. HANNA: I'm going to show you, we'll mark this as Exhibit C. (Plaintiff's Exhibit C). THE WITNESS: This is a reference to your public records request cases. I don't know if you have other cases that you're involved in. BY MR. HANNA: Q. Well, are you familiar with Mr. O'Hare's Federal lawsuit? A. Just generally. Q. Okay. Well, you know that that's a 1983 action civil rights case? A. I haven't -- I don't, I'm not familiar with that. Q. Defamation? A. I'm not familiar with that. Q. It's not similar to -- Would those case, would those cause of actions be similar to what you were -- A. I'm not -- Q. -- threatening Ocean Ridge with? A. I'm not handling, I'm not -- The federal case I understand there's insurance counsel. Right? Q. Right. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220-3837) Electronically signed by Mary Hengstler -3501-151.220.3837) 5a281478.857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 59 A. I've not been asked to take over any federal case. And I don't know if you're handling it or not but... I'm, I'm -- Have you filed a motion to disqualify me in the federal case? Q. No. A. I presume you filed them in the public records request cases. Q. Is that your, an e-mail from you, does that fairly accurately depict the e-mail? A. Yes. But this was in reference to our discussion of public records request cases. Q. That's an e-mail you sent me? A. Yes. Q. Yes. MR. HANNA: Where are the -- do you have the exhibits? I can't tell you how many times I've walked out with exhibits in my hand. THE WITNESS: I'm famous for it. BY MR. HANNA: Q. So, then, as we sit here today, the only cases you're representing the Town of Gulf Stream against Mr. O'Hare are public records cases; that's it? A. No, the only case that I have appeared in is a public records case. Q. So -- Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151-220-3837( Electronically signed by Mary Hengstler (501-151-220-3837( 6a281478 -857d.471 b -9e71 -SOS 59ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 60 A. But I am not -- I, I, I have not -- I'm, I've not been asked to appear in any federal case that's pending. Q. Okay. So under your rational, until you actually file a lawsuit and you file, or file a notice of appearance, there's no representation? A. I'm not here to give legal opinions or legal conclusions. Q. It's not -- I'm asking you to clarify your response. You're saying because you never entered an appearance, or because no lawsuit's been filed, that you don't represent the, the Town of Gulf Stream in these cases? A. Are you asking me a fact question? Q. Yes. A. Okay. I, I have not reviewed your federal case. Q. Okay. A. I have not been asked to give any opinions on your federal case. I have not given any opinions on your federal case. There's insurance counsel that's handling that case. Q. What about the lawsuit that the Town of Gulf Stream filed against Mr. O'Hare regarding Polo Cove? A. I have not reviewed that file. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-7837) Electronically signed by Mary Hengstler (501-151-220.3837) 5a281478-857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 61 Q. Okay. A. Nor have I been asked to provide any legal services on that case. MR. HANNA: Why don't we take a quick break. THE WITNESS: Okay. (Off the record). BY MR. HANNA: Q. Back on. What color was your hair in 1997? A. Probably all brown. Q. Okay. That was from your deposition of Chris, you wanted to know what color your hair was. A. Probably all brown. I was being facetious I think. Q. Yeah. A. I know that my daughter was born in February of that year. So while Mrs. O'Hare talks about her being distracted. I don't think I slept in 1998. I remember the colic and the walking on the dune more than anything else. Q. All right. Let's get back to it. See what I've already covered. All right. Joel Chandler; do you know him? A. I'm not going to discuss my work product and conversations with Joel Chandler. I didn't know him, I didn't know him in 1998. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3897) Electronically signed by Mary Hengstler (501-151.220.3837) 6a281478.857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 62 Q. Well, currently you're dealing with Joel Chandler as part of the representation of the Town of Gulf Stream? A. I'm not going to discuss that. Q. You haven't filed any affidavits from Joel Chandler? A. I'm not gonna, I'm not going to discuss my work product with Joel Chandler. Q. Well, did you use Joel Chandler to make the allegations against Christopher O'Hare regarding civil RICO? A. I'm not going to discuss any of my conversations regarding Mr. O'Hare in this litigation, any of my discussion with witnesses, any of my work product or research or anything else in this litigation. Q. What about the conversations you've had with non Town personnel where you've made representations to Mr. O'Hare that you were going to file civil RICO cases against him? A. I'm not going to discuss any communications I've had with any witnesses or any individuals regarding the litigation. Q. Did Mr. Chandler ever make any statements against Christopher O'Hare? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstier (501-151.220.3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478.857d471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 63 A. I'm not going to, I'm not going to disclose the communications I've had with Mr. Chandler regarding Mr. O'Hare. Q. Okay. Well, did you represent that you stopped Joel Chandler from providing information about Christopher O'Hare? A. I'm not going to disclose my conversations even with you regarding Mr. Chandler that were made during confidential settlement and mediation proceedings, but... Q. You're asserting that because it occurred in a settlement -- A. I'm not going to disclose my -- Q. Didn't you tell, didn't you tell -- A. The purpose for this deposition is exclusively to determine whether or not your motion for leave to disqualify me has any merit. The fact that you're attempting to do something else that's not even designed to solicit admissible evidence shows that, you know, you're acting in bad faith. Q. No. A. So I'm not going to, I'm not going to testify about -- Q. This is -- A. -- settlement negotiations. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478-857d.471b.9e71.80559ed12B9a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 64 Q. Didn't you tell Mr. Desousa that settlement, the privilege for settlement negotiations doesn't apply in -- A. I'm not, I'm not going to give you legal opinions or conversations with lawyers. Q. Okay. Now with Mr. Chandler, the reason why it would be relevant is because you told Mr. O'Hare and others -- A. Mr. O'Hare? Q. Yes. A. -- that you stopped Joel Chandler from discussing Mr. O'Hare when he gave his statement. A. I have not spoken to Mr. O'Hare outside the presence of any attorney. And I've only spoken to Mr. O'Hare in a settlement conference that was deemed to be a mediation conference. Q. Do you remember telling me that you stopped Mr. O'Hare -- A. I'm -- Q. -- or stopped Mr. Chandler from giving information about Mr. O'Hare? A. No, I'm not going to talk about our conversations, other than to tell you that what you're saying is false. I actually told you that I did not have what Mr. O'Hare told me about Mr. -- Mr. Chandler Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3877) Electronically signed by Mary Hengstler (501-151-220-3877) 5a281478-857d-4716-9e71-8g559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 65 told me about Mr. O'Hare on the videotape, that I had the discussions with him after the videotape. And Mr. Chandler has made statements to me regarding Mr. O'Hare, but they are my work product. Q. Okay. A. And, and I think that would have been clear to you because I was able to, to ask Mrs. O'Hare about Mr. Chandler's presence at meetings with Mr. O'Hare and his attorney and the things that were discussed between Mr. Chandler and Mr. O'Hare. Q. Okay. Well, what were those things that were discussed between Mr. Chandler? A. That's my work product. But it's pretty clear from my questioning and from Mrs. O'Hare's answers that obviously Mr. Chandler or someone has given me information about Mr. O'Hare's involvement with Mr. Chandler and their attempts to use public records requests for their illicit and illegal purposes. And I actually read from an e-mail at Mr. -- Mrs. O'Hare's deposition where they talked about head shots, targeting, making money. And while, while Mrs. O'Hare talked about the fact that she thought it was slimy; her testimony of who she was referring to doesn't exactly jive with Mr. Chandler's. But when I Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151.220.3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478 -857d471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 66 take Mr. Chandler's depo next month, you'll find my work product. And I will be taking Mr. Chandler's deposition next month, in this case. Q. Okay. A. Because I want to have all of my discovery I can have done before I file my amended pleadings in this litigation, which I intend to do before the Motion to Disqualify me is heard. Q. All right, then. When did you meet Joel Chandler? A. I'm not going to disclose my work product. Q. Do you have any e-mails or confidential information from -- given to you by Joel Chandler from Mr. O'Hare? A. I'm not going to disclose my work product. Q. Do you have any -- A. But if your, if you want non -work product, I suggest you look at pleadings and responses that were filed Friday in the case of Caffey (phonetic), an alleged not-for-profit entity, that Mr. Ring is -- MS. O'CONNOR: Is that Lou Radar calling? THE WITNESS: Is Lou trying to get on? MR. HANNA: Oh, yeah. Chris, how do you get Lou on? MR. O'HARE: I'm sorry, what's going on? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501451-220.3837) Electronically signed by Mary Hengstler(501-151-220.3837) 6a281478 -857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 67 THE WITNESS: Mr. Ring, who is sitting here is apparently a director of Caffey and an employee or partner of Mr. O'Boyle's, as well as the resident member of the O'Boyle law firm. And that, that entity, Caffey, sued my law firm, and there is a response that was filed Friday, as well as a motion to transfer that case to Judge Blanc. And if you read my response, I think you'll, you'll see our legal position. BY MR. HANNA: Q. What's that motion regarding? A. A motion for order to show cause. There's a response to it that we filed that outlines the law. Q. For what? A. For whether or not documents are confidential or not. Aside from the crime fraud exception and the fact there was joint representation by Mr. Chandler by the firm that Mr. Ring ran and the Caffey organization that he ran, and Mr. O'Boyle. Who somehow, Mr. Mitch Berger showed up before Judge Blanc and said that Caffey had given him, Mr. O'Boyle's attorney all the records that they say I have that are confidential. But Mr. O'Boyle testified he has nothing to do with Caffey, which is apparently contrary to everything that I have been able to learn from my work product. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 8a281478-857d471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But if you're interested in my legal opinions, I'm not going to give them to you. And if you're interested in my work product, I'm not going to give it to you. If you'd like to see my legal position with regard to the issue of confidentiality, I suggest you look at the bogus lawsuit that Caffey has filed against my law firm, alleging that there's an appropriate order to show cause, and my response as to why there's no privilege. If there was a privilege, it's been waived. Why the crime fraud exception creates no privilege because Caffey was involved in fraudulent and criminal conduct. Q. Do you have any documents from Joel Chandler that were generated by Mr. O'Hare or any of his attorneys? A. I'm not going to disclose my work product at this time. Q. You've already, you've already indicated that you've disclosed this to the court so... A. I disclosed -- You have to read my pleading, and you'll see the pleading. Q. Isn't it true that a matter that's not confidential in the client's hand isn't confidential just because the lawyer has it? A. I'm not going to debate the law with you. I Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b.9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 69 just said, if you want to talk about Caffey, I'm making you aware that there are pleadings -- Q. I'm not talking about Caffey. A. -- that were filed. Q. I'm talking about Christopher O'Hare. A. Christopher O'Hare, what do you want, what do you want -- You want my work product with regard to Christopher O'Hare? Do you want to know what I'm thinking? Do you want to know what I'm going to do? Q. No, I want to know what you've been given by a third person, that's not work product, that's information, that's facts, it's documents. A. Then I suggest you look at the other bogus case that was filed which was the Caffey versus Chandler file where I was subpoenaed, and there's a memo in that case, as part of our motion for protective order, that discusses when something's work product and when it's not. I'm asserting the work product privilege and I'm happy to debate the law with the judge with you. Q. What cases do you represent the Town of Gulf Stream in versus Mr. O'Hare? A. I'm not going to disclose that. I've told you, cases I'm not, but I'm not going to disclose what I am doing. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.8 57d -471 b-9e71.80559ad1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 70 Q. Do you remember a Sun Sentinel reporter named Merl Augustin? Augustin. A -u -g -u -s -t -i -n? A. I don't recognize that name. Q. Do you remember them possibly from coverage of the Ocean Ridge matters? A. From when, 1998? Q. Yes. A. Which Ocean Ridge matter are you referring to? Q. The apartment complex that you were involved in with the code enforcement? A. I don't even recall being involved in an apartment complex, much less a reporter. Do you have some article you can show me that I'm quoted in? Q. You've been given the articles that we have regarding the incident. I'm not sure if you were quoted in any of them. A. I've looked. I didn't see my name anywhere, and I didn't recognize or remember anything in the article. Q. That's what I'm asking you. A. None. Q. If it jogged any memory -- A. None. Q. -- or did it help you remember anything? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 71 A. None. Q. Di you ever represent Emil Dancui in regard to Mizner Park? A. I did. Q. Did you ever have a retainer agreement with him? A. I don't recall. I, I represented him in a suit against the City of -- I think a derivative suit. I think I represented him as Mayor of Boca Raton. You asked if I represented other entities. Q. You also represented him in an ethics violation? A. Right. Because he did not -- Because I did not charge him and I did it without a charge, as I recall they deemed that to be a donation to him. I did it as a public service when they tried to open a, a business on land that was zoned for public use in Mizner Park. Q. Now when was that, what timeframe? Early '90s, late 90s? A. Let's see, Mizner Park opened in early 190s, '90, I'd say it was '93, '94 that I represented the Mayor of Boca Raton. Q. And that involved a administrative hearing with the State of Florida? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.161.220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 68281478-857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 72 A. Oh, that was after we filed the lawsuit. We filed the lawsuit, as I recall Emil, I represented Emil, and I filed the lawsuit saying that the city was using public land for a private department store. And then Mike Moskowitz, then after Emil filed it, a group of citizens came in, they hired Mike Moskowitz, and the development was stopped. And then Al Travasos, who was a city councilman on the other side of the issue, filed an ethics charge against Emil, and I went to Tallahassee for that. And they found -- They reprimanded him because he and I both candidly admitted that I was not doing this for money, that I did it because he asked me, because I thought it was the right thing to do. And that was deemed to be a donation or, or something. Q. But the case itself involved land use and lease agreements regarding the properties? A. The land use -- The case involved a bond issue that had designated specific areas of Mizner Park to be used for public amenities; to wit museums. And the Town attempted to locate a retail operation and it signed a lease. And that was before Judge Redd, and I think Scott Richardson was my co -counsel. Early -- I mean, you're talking, now we're talking 30 years ago. That's my best recollection. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501-151-220-3877) Electronically signed by Mary Hengstler(501.151-220-3877) 6a281478-857d471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 73 But normally I have a pretty good recollection when, you know, people have, when I've done something that I had some kind of involvement in. That was a lawsuit and it went on for some time. Q. Scott Morgan. A. Scott Morgan. Q. Yes. A. Mayor of Gulf Stream. Q. Did you know him before he was the Mayor? A. Not well. But I knew, I knew him casually, socially. Never represented him or had any dealings with him. Q. Now when you say socially. Were you guys good friends or? A. He had his -- No. His, one of his daughters was at Gulf Stream when my oldest or second daughter was there. And his son was at Gulf Stream when my youngest daughter was there. So when he did go to the school and I was at the school I would see him there. Q. Okay. How did you become involved with these lawsuits with Gulf Stream? A. I'm not going to discuss my work product, my, my communications with my client on that topic. Q. Was it Scott Morgan that contacted you about getting involved? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837( Electronically signed by Mary Hengstler (501-151-220-3837( 6a281478 -857d471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 74 A. I'm not going to discuss that. Q. Before he was Mayor? A. I'm not going to discuss that. Q. And you represented Scott Morgan prior to representing the town? A. I appeared at a deposition of Scott Morgan. Q. Okay. So that wasn't representing him? A. I, I think it was in his individual capacity. Q. But do you consider that representing him? A. Well, that's a legal conclusion. But my opinion would be that I represented him at a deposition, yes. Q. Well, is there, was there attorney/client privilege between you and Scott Morgan as a result of that representation or -- A. That's a legal conclusion. Q. So as you stand here today, you don't know whether you had attorney/client privilege with Scott Morgan when you represented him during that deposition? A. In other words, did I discuss something that was privileged? Q. Yes. A. A, I'm not going to answer that, because if I did it would be privileged. I appeared at a deposition and made objections on the record so... Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2204837) Electronically signed by Mary Hengstler (501-151.220-3837) 5a281478-857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 75 Q. But you don't consider that to be representation? A. If I, if I -- I didn't say that. I said I represented him in a deposition. Whether or not I had lawyer/client communications with him that I would consider privileged, that's privileged. Q. I said do you feel that that would be applicable to your communications? A. Why are my feelings being asked about here? Why aren't we dealing with -- Q. Not your feelings. I'm asking you, when you represented Mr. Morgan individually, was there an attorney/client relationship? A. That's a legal conclusion. And, and I don't think it has -- I'm not going to discuss other, other legal work I've done for people. Q. Well, did you -- Do you have to have a representation contract for there to be attorney/client privileged relationship involved? A. Why are you, why are you asking me to give legal opinions on matters that are obvious black letter law? I served as the vice chair of the Ethics Committee for the Florida Bar for many years. You know and I know that for there to be a lawyer/client representation there doesn't have to be a written Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2204837) Electronically signed by Mary Hengstler (501-151-220-3837) 88281478-857d471b.9e71.80559ed1289a 1 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 76 agreement, there doesn't have to be payment. There's all kinds of cases on this. Q. Thank you. A. Okay. So -- Q. So what's the answer to my question? A. So if you're, if you're saying that subjectively Mr. O'Hare thought I was his lawyer on something, you're going to make that argument to the Court. But my opinion on what the state of the Florida law is on that subject is really unnecessary. Q. Have you ever testified as an expert before? A. I have. On dozens of occasions. Q. Okay. Do you consider yourself an expert in the legal field? A. Depends on the area. Q. Okay. Well, regarding client relationships? A. I have testified dozens of times on the topic of legal fees, because I was the chair of the Fee Arbitration Committee in Dade County for many years. And I'm not here as an expert, you haven't paid me. If you want to call an expert at the time of our hearing to disqualify me, you're welcome to do whatever you need to do. But I'm not here as an expert. I'm not going to give you my legal opinions. Even though I Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478 -857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 77 volunteered a couple of them to you so I get you to move on to something relevant. But what, what, why do you want to know if I'm, if I'm a legal expert? Q. Well, I'm asking you some questions regarding whether you had a representation agreement with a client. You've already testified that -- A. That's not calculated to lead to discovery of admissible evidence in this case, and I'm not going to answer it. Keep going. I'm not going to talk about my other clients. Q. Okay. Mr., Mr. O'Hare, did you represent him or not? Yes or no? A. I -- I, I don't have any recollection of Mr. O'Hare. Q. Despite seeing the memorandum, despite seeing your letterhead signed by Edwin Jonas -- A. Mm-hmm. Q. -- you do not feel that you had any represent -- any attorney/client relationship with Mr. O'Hare in 1998? A. I have no recollection of having any communication with Mr. O'Hare at all. None whatsoever. I don't, I don't -- I didn't recognize Mr. O'Hare when he came up to me at City Hall. So whether or not the Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.220-3837) Electronically signed by Mary Hengstler (5 01-1 51-22 0 4 8 37) 6a281478.857d471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 78 documents you have produced and Mr. O'Hare's testimony will establish a lawyer/client relationship or the extent of it will be decided by Judge Blanc; not me. Do you have a retainer agreement? Do you have a billing? Do you have, do you have any notes? Do you have a memo to him? An e-mail? We didn't have e-mails. Do you have any communication between he and I? He's testified as if I've been to his house, I've been to the City Hall with him. He made all these allegations in his motion before he went looking for records. And then you went scrambling to City Hall to see what you could find. And I've heard about press conferences. It seems that Mr. O'Hare has a very active recollection of my events. Q. So Mr. O'Hare's delusional, then? A. I don't know if he's delusional, but he seems to be making statements about a representation that doesn't seem to be borne out by any documents I've seen. I've asked repeatedly, do you have something concrete to refresh my recollection? He's testified about payments. He said he got money, put money in my trust account and got a refund. I looked at my, my billing package and there's no, no trust account deposit. Normally my retainers on litigation are Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 68281478.857d471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 nonrefundable. And my initial retainer is a nonrefundable retainer. So if he got a refund, that would indicate to me that that's outside the norm of my practice, A. And, B, how much work would I have done if I would have given him a refund? But my records show no time in my system for me representing Mr. O'Hare. Q. But those -- A. And I make a living filling out time slips and getting paid for my time. Q. Those records aren't your complete file in this matter. A. They could be. They could be. I may not have anything more than that. I may not have ever had any more than that. That's why I'm waiting for Mr. O'Hare, who has made all of these statements under oath, to show me something that bears this out where I represented him in litigation with his neighbor, where I represented him with regard to a State Attorney. Where I, you know, was at a press conference, where I was at City Hall with him. Where I came to his home, you know. I'm, I'm waiting, I'm waiting to see just how senile I am. Q. So Mr. O'Hare's testimony regarding that isn't sufficient in your mind? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151.220-3837) Electronically signed by Mary Hengstler (501-151-220-3837( 6a281478.857d471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 80 A. I, I attend, either myself or to have counsel there, and I think Mr. O'Hare is subject to considerable impeachment, but that's just my legal opinion. This isn't the place to debate it. The place to do that is in the courtroom, and we will. Q. Did you represent Shelly O'Hare also? A. I, I saw Mrs. O'Hare for the first time at that deposition. I don't remember ever seeing her in my life. I don't remember ever being at her house. I don't believe I was ever at City Hall with Mr. O'Hare. And she testified she was in the Class of '74. I was in the Class of '72 at Nova High School. Maybe I saw her in high school. I don't even know what her maiden name was. Q. Well, if Shelly O'Hare was the owner of the building, the subject building -- A. She wasn't. Q. If she was -- A. That's a hypothetical. She wasn't. Q. Okay. MR. HANNA: (Handing). Mark these as -- What are they? Where are we at? C and D? THE REPORTER: D. MR. HANNA: D and E. Take a look at those. MS. O'CONNOR: Which one's D and which one's Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-751-220-3837) Electronically signed by Mary Hengstler (501-151.220.3837) 6a281478-8 57d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 81 E? MR. HANNA: The 2000 -- Hold on a second. The 1996 deed is D, and E would be the March 1st, 2001, deed. (Plaintiff's Exhibit D and E). THE WITNESS: So you're testifying she owned it with Mr. O'Hare? BY MR. HANNA: Q. Yes. There was -- A. The Settlement Agreement said to the contrary; didn't it? Q. No, the Settlement Agreement was signed by Shelly O'Hare also. A. Some document referred to a -- Q. No, this was the deeds for these properties. A. Yeah, but one of the documents you show me from, at the deposition, referred to an entity, an LLC or something. Q. Right. That's what they -- In March 2001 they sold the property or transferred the property to Ocean Ridge Holdings, LLC, in 2001. '96 they owned it together. A. Okay. Q. The code enforcement hearings were against them personally. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a2Bi478-857d471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 82 A. Personally? Okay. Well, then, that makes me feel like Mr. Jonas at least had the right parties on the Settlement Agreement. Q. Okay. A. When I look at this now. Because the Settlement Agreement referred to them individually, and at the depo there was a reference to an LLC owning it. But that occurred after the settlement. Q. So as part of the representation, your firm would have represented Shelly O'Hare also? A. I don't even concede that my firm represented Mr. O'Hare. I think that Mr. Jonas did. I made a phone call for Mr. O'Hare based on that memo. Q. So when you made that phone call, you don't consider that to be representation? A. That will be for the judge to decide. I, I -- Q. Okay. A. I would think that if you make a phone call for somebody, that could be deemed representation. Q. Okay. A. I think, I think that -- Q. But your position is that you did not represent Christopher O'Hare? A. My, my position is I don't even recall him. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (507-157.220-3837) Electronically signed by Mary Hengstler (501-157.220.3837) 6a281478-857d471b-9e77-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 83 Q. Okay. A. And all I have is what you, what I've gotten from the clerk of -- Q. Do you remember conversations with Edwin Jonas about the O'Hare case? A. No. Q. Okay. Do you remember if you referred the case to Edwin Jonas? A. The only thing that has refreshed my recollection about any of this are the documents you've shown me here and the Settlement Agreement which has his name on it, and the fact that it was a Monday and it shows who was there and I wasn't, and last week when, pursuant to your subpoena, they gave me a screen shot of Mr. O'Hare and it has Mr. Jonas' initials on April 6th, the day before he wrote the letter that he signed of counsel. Q. How far back do the financial records go for your firm? A. For the Day Pics records? Q. Whatever the financial records indicating whether there was a deposit made. A. I don't know. I haven't asked. Q. Okay. A. That, the Day Pics records I presume go back Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478-857d-471b-9e71-80559ed1289a Page 84 from when we started with Day Pics. Q. When did you -- What is Day Pics? A. That was the program that we used for, for generating bills. Q. Case management -- A. Case management. Q. -- system? Like Client Profiles? A. It's a dinosaur. Q. Time Slips, whatever? A. It's a dinosaur. Q. It's not Client Profiles at least. A. Compared to what I have now it's a dinosaur but... Q. Well, did you check any bank records? A. I don't have bank records back to 1998. Q. Okay. So those records wouldn't exist currently? A. I imagined if we knew which bank. I mean, I think I banked with Boca Bank when I -- Q. Okay. A. In the '90s. I don't think Boca Bank -- I don't even know who Boca Bank is now. Q. So it probably would be impossible to get those? A. I'm speculating. I haven't tried. I thought Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 85 Mr. O'Hare, based on his testimony in his deposition, would have, have some documentation to help refresh my recollection. Q. And the name -- A. To solidify his position. Q. And the name of the bank that you had was Boca Bank? A. I remember I banked with Boca Bank for some time in the '90s. And they were at Mizner Park. And Phil Pye was the president. Q. Have you read any of the Florida Statutes regarding the public records law? A. Sure. Q. Have you -- A. Are we here to get my legal opinion on public records law which is the subject of our litigation? Q. I'm going to ask you some questions about this particular case. A. I'm not going to answer questions in a Motion For Leave to Disqualify me -- Q. Okay. A. -- about the underlying lawsuit and the law that pertains to it. Q. Didn't you just in Shelly O'Hare's deposition take the contrary position, that that was appropriate Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478.857d471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject matter to inquire with her about? A. I can ask witnesses questions, material witnesses and parties. I'm the lawyer in this case, Mr. Hanna. There's a whole different standard. I could have moved for a protective order as to my depo, but because I wanted to have a complete record of the testimony as it relates to your Motion to Disqualify, I agreed to appear before you even subpoenaed me. But I'm not going to debate the law that underlies this litigation. Except in the courtroom. Q. Did you take part in filing the Bar complaint against Jonathan O'Boyle? A. I'm not going to testify about any administrative or criminal proceedings that have been filed by anybody. And I'm certainly not going to discuss Bar complaints, which I presume are to be confidential. Q. Do you have your -- A. Are you, are you referring to Mr. Chandler's sworn affidavit that was filed that concerned allegations of Jonathan O'Boyle's felony practice of law in the State of Florida? Unauthorized practice of law? That's, that's -- Q. No. What are you talking about? A. Mr., Mr. Chandler's affidavit was filed in Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3877) Electronically signed by Mary Hengstler(501.151-220-3877) 6a281478.857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 87 one or more of these public records cases. I think in the Caffey case as well. And he's made allegations that Mr. Jonathan O'Boyle was practicing law full-time in the State of Florida, was not licensed, was handling cases, was taking over cases. But that's, that's, that's filed -- that's his testimony in a, in a case, and that will go to the issue of whether or not the O'Boyle law firm has any entitlement to fees when we get to that juncture in the pleadings, which we're not there yet. But as to a Bar complaint, I would presume that that would be confidential, and I'm not going to testify or talk about Bar complaints. Q. Well, the affidavit from Joel Chandler, where was that? That was filed in something? A. Yeah. It's been filed repeatedly in cases. It's filled in the O'Boyle case. It's filed in the Caffey case. It's a matter of public record. Q. Okay. A. And he goes into great detail. Q. Did you file that in any of Mr. O'Hare's cases or was it filed in Mr. O'Hare's cases? A. I don't think it's been filed in Mr. O'Hare's case. Q. Does it mention Mr. O'Hare? Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220.3837) Electronically signed by Mary Hengstler (501.151-220-3837) 6a281478-8 57d-471 b-9e71.80559ad1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 88 A. I have to look -- You have to look at it and see. It's a matter of public record. Q. What about his sworn statement, was that filed with anything? A. I'm not going to testify -- I'm not going to disclose my work product in that regard. I've disclosed to you public records. Q. That's what I'm asking you, if his statement was filed in anything? A. I'm not going to disclose where that, that has gone. If anywhere. Q. And what's the basis for not discussing the bar complaints? A. Work product and confidentiality of proceedings, pursuant to Florida law. Q. Okay. Did you meet with Scott Morgan prior to his deposition on March 26th? A. I'm not going to discuss my meetings or discussions with people. (Thereupon, Mr. King left the room). Q. So anything that I ask you regarding Scott Morgan and any communications you've had with him, you're not going to answer? A. Not in the context of me -- Q. Okay. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (581-151-220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 68281478-857d-471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. -- providing any legal representation or something he might deem was legal representation. It's the client's right to decide subjectively whether or not I was an attorney, and to decide subjectively whether or not they communicated to me in a confidential manner, as you know. So I would never presume to disclose what people said to me until I've spoken to that person and had their permission. Because I don't want to be the subject of a Bar complaint, because I haven't yet. Q. Now regarding the public records cases that are pending by Mr. O'Hare and the Town of Gulf Stream; you've made an appearance in one case? A. That's correct. Q. Why did you make an appearance in one case and not the others? A. Well, you filed a motion to disqualify me, and I thought the best thing to do was before filing my pleadings and amending my pleadings and filing answers, affirmative defenses and counterclaims, that I owed it to Mr. O'Hare, and the court system, to let the judge decide whether or not you filed this motion in bad faith as a litigation strategy, or whether or not the Court thinks there's any merit to it whatsoever. And you filed a motion to disqualify me -- Florida Court Reporting 561-689-0999 Electra nically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501.151-220.3837) 6a281478.857d471 b-9e71-80559edI289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 90 Q. Why would it be -- A. You filed a motion to disqualify me in cases I haven't even appeared in yet. Q. The cases you indicated that you were going to be filing an appearance in. A. Right. Q. You filed a notice of appearance in, when in this case, 17717? A. I don't know the date I filed that. Q. April 30th? A. It's a matter of record. Q. Okay. So you file a motion, you file an appearance in one case in April? A. Mm-hmm. Q. You don't file any other appearances until September 8th when you indicated that you're going to be involved in all the cases against Mr. O'Hare in Gulf, against Gulf Stream. How is that bad faith, or how is that litigation strategy, to file the motion to disqualify, after you notify us that you're going to be taking on all the cases? A. Mr. Hanna -- Q. Yes. A. -- I'm not going to argue my case with you. It's my legal opinion, as often is the case, that Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-2204837) Electronically signed by Mary Hengstler (501-151-2204837) 6a281478.857d-471 b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 91 opposing parties file motions to disqualify counsel because they don't want that counsel to be litigating against them and to try to stop the litigation. Your, your theory, your theory that any of the representation that I'm undertaking for Gulf Stream in any way relates to anything that I achieved for Mr. O'Hare in 1998 is so preposterous that it's silly. The cases and the ethics opinions say that means I have to be attacking a result I obtained for him in the prior representation. That's the standard. Okay? I have to be doing something now that actually affects a result I obtained for him in 1998. Mrs. O'Hare's statements that I know Mr. O'Hare's mind or, or your, your ridiculous pleadings that Gulf Stream borders Ocean Ridge, okay, are legally preposterous. Q. Okay. A. You are wasting everyone's time and money. That's my opinion. Q. Okay. Your opinion -- A. So don't ask me -- We're talking about your opinion here. If a client discloses -- A. I'm not going to keep debating my opinions with you. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3877) Electra nically signed by Mary Hen gstler (501-151-220.7877) 6a281478.857d-471 b-9e711.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 92 Q. A client discloses to you mental health or healthcare information to the lawyer -- A. Mm-hmm. Q. -- and the lawyer could use that in representing his new client; isn't that true? A. Okay. I'm not going to debate -- Q. You're making these statements but you don't want, you don't want to back it up. A. Because you keep wanting to have an argument with me about the law. Q. I'm not -- A. Let's do it in court. Q. You're making these arguments that that's not a -- A. Okay. Q. How could Mr. O'Hare's, your prior representation of Mr. O'Hare, how could he -- how could you possibly use that against Mr. O'Hare in his current litigation. You sent Mr. O'Hare to a mental healthcare professional. A. No, I didn't. Q. Yes, you did. A. I don't think, I don't think Dr. King is a psychologist or a psychiatrist. Q. He's a psychotherapist. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gstler (501.151.2204837) Electronically signed by Mary Hengstler (501-151.2204837) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 93 A. He's not, he's not a mental healthcare professional. He's a counselor. Q. So Dr. King is not a mental, mental health -- A. I don't -- I wouldn't use that term for him. I don't think he's a psychiatrist -- Q. What do you call him? A. -- or a psychologist. Q. What would you call him? A. I'd call him a counselor. Q. Okay. He doesn't provide mental healthcare services? A. That's a conclusion I can't even reach. I don't know. Q. Well, you've -- A. I've never seen -- Q. -- you've made the conclusion before when you referred people to him. A. He's -- Q. You talked about the daughter of somebody that had anorexia -- A. Right. Q. -- or wasn't eating. A. Yeah. Q. That's not a mental health issue? A. No, but he sends people to various doctors Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler(501-151-220-3837) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 94 and to professionals and rehab, and he's been involved in putting people in rehab, sending them to eating disorder people, psychiatrists. He works with psychologists. He's done anger management classes. He's done all kinds of counseling. Q. Okay. A. I don't know that I would call him a mental health professional. I mean, you could call him that I guess. I don't know the definition. What I'm suggesting to you, Mark, is that I don't think your motion is bona fide. This isn't the place to discuss that. Let's try it before the judge. You think it's going to take three hours. I think it's going to take 30 -minutes. Q. 30 minutes after a five hour deposition? A. Listen, we'll, we'll -- THE REPORTER: I'm sorry? THE WITNESS: We'll discuss this some other time. I've given you my, my opinion. I'm sitting here answering your questions about my involvement in 1998. BY MR. HANNA: Q. Which you -- A. That you -- Q. -- you have no recollection of having any Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 68281478.857d-471b.9e71.80569ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 95 involvement; that's right? A. I had -- I don't remember Mr. O'Hare at all. Q. You don't remember referring Mr. O'Hare to Heath King? A. That's the fourth time you've asked me that question. Q. Yes. Do you remember referring Mr. O'Hare to Heath King? A. I do not remember ever talking to Mr. O'Hare. I don't remember ever meeting him. And what I've said to you, on at least three occasions is, it was my, it has been my practice, since at least 25 years ago, that for any number of reasons I have, I have recommended 50 to a hundred, maybe more than a hundred people, that if they have any kind of issue at all that involves anything, emotional, social, interpersonal, that I, that I give them his name. And I have been, you know -- That, that has been your answer three or four times. My question is, do you recall specifically referring Chris O'Hare to Heath King? A. Okay. Q. Not speculating on what you have done with other people. I'm talking about this specific Florida Court Reporting 561-689-0999 Electronically signed by Mary Hen gaiter 1501-151-220.9887) Electronically signed by Mary Hengstler(501.151-220-3897) 6a281478.857d.471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 96 instance. Do you remember; yes or no? A. Let me, let me try again. Let me try again. No for the third or fourth time to that exact answer. And what I'm going to do, at the end of the deposition, is I'm going to have an associate make a list of every time you've asked the same question, and then we'll ask the judge whether or not I should get fees for being here. Q. Typical, the threatening. A. I'm not threatening. I'm saying that's what I'm going to do. Because you don't understand that you're asking the same -- Q. Because you editorialize every time someone asks you a yes or no question? A. We're here, we're here at 20 of two. I've told you no, but I've told you also that if Mr. O'Hare says that I recommended Heath King to him, that's likely true. Because that would be very consistent with my pattern of practice. And as I said to you and him prior to this depo, and I've said twice in this depo, the fact that he says that makes me believe that he and I discussed Heath King and that I recommended Heath King for some reason. Q. What about the fact that Mr. O'Hare says that you discussed his mental health and issues that were Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501.151-220.3837) Electronically signed by Mary Hengstler 1501-151-220.3837) 6a281478.857d-471 b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 97 going on in his life? A. I don't have any recollection of that at all. And, and I -- I don't. Q. So you believe part of it but not all of it? MS. O'CONNOR: Objection. Mischaracterizes his testimony. THE WITNESS: I'm speculating. I'm speculating. I have, I have no recollection at all of Mr. O'Hare or speaking to him. So I'm speculating that what he said about Heath King is accurate. MR. HANNA: Let's take a quick break. THE WITNESS: Okay. (Off the record). MR. HANNA: One last inquiry. MR. O'HARE: Are we back on the record? MR. HANNA: Yeah. MR. O'HARE: Okay. BY MR. HANNA: Q. Do you have a situation with Delray Beach, or Deerfield Beach, the Deerfield Beach Club? A. I have a lawsuit, yes, I'm representing. Q. What does that involve? A. It's a matter of public record. There's a lawsuit pending regarding land use of oceanfront Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220-3837) Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478.857d-471 b-9e71-805Sed 1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property. Q. Is there any -- A. It's almost settled, but we're waiting for a vote of the council to approve a settlement. There's a stay that's been entered. Q. Now did you put a mobile trailer on to the property? A. My client did, yes. Q. Who's your client? A. Deerfield Beach Club, LLC. Q. Are you a member? A. I'm, I'm a member. I think it's in a corporation I'm the president. Q. Okay. What was the purpose of putting the trailer on the beach? A. To use it. It's got paddle boards in it and beach chairs and suntan lotion and coolers, and I think right now my son is there with about eight of his college friends playing volleyball and hanging out. Q. Would you consider the parking of the trailer to be harassment? A. No. It's perfectly legal. It's a lawful use of the property. Q. Okay. So actually using, doing something that's legal or you have a right to do wouldn't be Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (581-151-220-3837) Electronically signed by Mary Hengstler (501.151.220.3837) 6a281478-857d-471b-9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 99 considered harassment? A. It depends. You can -- Legal actions can be harassment. There are things you can do that are legal that are harassment. You're asking me a legal opinion in certain matters, sure. Q. How many times have you sued the, or threatened to sue the City of Boca Raton? A. How many times have I sued them? Q. Or threatened to sue them. A. I don't know. In terms of actually suing them... I sued them in the Emil Dancui case. I sued them in a land use case in the '90s that I, that I got a summary judgment from Judge Baker on involving the redevelopment of Palmetto Park Road. Most of the time I've litigated with them they've been the plaintiff, eminent domain. How many times have I sued them, other than those two... Land use, other land use cases? I can't think of any other cases where I've sued them other than those two. Q. Were those multiple clients or a single client? A. The case, the case that we got a summary judgment before Moses Baker in 1998 or whatever that changed the land use on Boca Raton Road was a two plaintiffs case. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151.220-3837) Electronically signed by Mary Hengstler (501.151-220-3837) 6a281478.857d.471b-9e71.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 100 Q. What percentage of your, of the lawsuits that you have handled, how many would you say that were against a government body? A. What percentage? Q. Yeah. A. Five. Q. Five percent. Over the years? A. Yeah. Q. Okay. A. Maybe less. The adage is you don't sue City Hall unless you can win. Q. That question was how many times you've sued, percentage that you've actually sued, represented a party against a government entity? A. Against any government entity? Q. Yeah. A. I'd still say about five percent. I mean, I -- You don't, you don't take on litigation against governments unless you are well funded and you have a clear claim. So I've -- You know, I'm talking about -- I mean, I have a case against Sunrise in federal court now. I have a case that we just filed against Palm Beach Gardens. I would say if I have a hundred cases in my office, I never have more than five against a government entity. Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d-471b.9e71-80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 101 Q. And the other 95 percent, who are they? A. They're commercial, general, you know, gamut of civil litigation. But non -PI, non-domestic. Q. Okay. A. You're not going to ask me what I want for Christmas? Q. What do you want for Christmas? A. I don't know. World peace? Q. That's a copout answer. A. Pretty funny. I keep telling my family there's nothing I need but that's because I don't want them to spend any more money. Q. Same with me. Don't get me any gifts. A. Please, let's stop the shopping now. Q. Last minute gifts are usually expensive. A. Oh, boy. I'm going to leave here and go to the bank. MR. HANNA: All right. I don't have anything further. THE WITNESS: Okay. Thank you very much. I hope you guys have a great holiday. I'll read. MS. O'CONNOR: He'll read. (Proceedings were concluded at 2:34 p.m.) Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220.3837) Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478 -857d-471 b-9071.80559ed1289a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 102 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF PALM BEACH I, Mary Hengstler, the undersigned authority, certify that ROBERT SWEETAPPLE personally appeared before me and was duly sworn. WITNESS my hand and official seal this 26th day of January, 2015. Agsahk %SIR' Mary Hengstler Notary Public, State of Florida My Commission #EE147085 Expires: December 23, 2015 Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837( Electronically signed by Mary Hengstler (501-151-220.3837( 6a281478-857d-471b-9e71-80559ed1289a 1 a 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 103 C E R T I F I C A T E THE STATE OF FLORIDA, ) COUNTY OF PALM BEACH. ) I, MARY ANN HENGSTLER, Registered Professional Reporter, do hereby certify that I was authorized to and did stenographically report the foregoing deposition; and that the transcript is a true and correct transcription of the testimony given by the witness. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 26th day of January, 2015. ,-�na)u4, a4z"A - MAR U NN HENGSTL , RPR -CP Florida Court Reporting 561-689-0999 Electronically signed by Mary Hengstler (501-151-220-3837) Electronically signed by Mary Hengstler (501-1 51-22 0 3 8 37) 5a281478.857d-471 b-9e71-80559ed1289a