Filing # 46023090 E-Filed 09/02/2016 01:27:44 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA DR. JAMES ERIC McDONOUGH, CASE NO.: 16-12412 CA (13) Plaintiff, vs. CITY OF HOMESTEAD, Defendant. _______________________________________/ CITY OF HOMESTEAD’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S CHAPTER 119 CLAIM Defendant, City of Homestead (“City”), by and through undersigned counsel, and in advance of the accelerated initial Chapter 119 hearing specially set for September 12, 2016, hereby files its memorandum in opposition to the public records claim brought by plaintiff, Dr. James Eric McDonough (“McDonough” or “Plaintiff”) and states: PRELIMINARY STATEMENT McDonough has initiated the instant action against the City and speciously asserts that the City’s responses to a public records request purportedly violated Chapter 119. However, even a cursory review of the Plaintiff’s Public Records Request and the City’s corresponding responses reveals that the City has, in fact, wholly complied with Chapter 119. The request that is the subject of the Complaint specifically asked the City to produce records “related to the City’s decision to use the law firm of Weiss, Serota, Helfman, Cole and Bierman to defend officer Alejandro Murguido in Miami-Dade County case no. 15-08342 CA 08” as well as “documentation as to who made the decision to have the City defend this officer.” The only records in the City’s possession responsive to this request reflect the City’s attorneys’ mental impressions and strategy for the City’s defense of the related Notice of Claim that, to this day, remains active and pending. As such, the City responded that “any such record W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) is privileged, exempt or otherwise protected from disclosure pursuant to Sections 119.071(1)(d)(1) and 90.502 Florida Statutes.” Moreover, the responsive records sought by Plaintiff are confidential and exempt as they are part of the City’s Risk Management file and reveal insurance claim negotiations. Accordingly, the City provided a supplemental response to the Public Records Request advising Plaintiff that “the records are also confidential and exempt pursuant to Sections 768.28(16)(b) and 624.311(2), Florida Statutes. The requested records are claims file records and/or reflect insurance claim negotiations and, as such, will remain confidential and exempt until termination of all litigation and settlement of all claims arising out of the incident.” Based on the foregoing, it is clear that the City did not violate Florida’s public records laws and Plaintiff’s claims for relief under Chapter 119 must be denied. STATEMENT OF RELEVANT FACTS 1. On April 21, 2014, McDonough served the City with a “Notice of Intent to File a Claim” pursuant to §768.28, Fla. Stat., arising out of an incident that purportedly occurred between McDonough and a City law enforcement officer, Alejandro Murguido (“Notice of Claim”). A copy of the Notice of Claim is attached hereto as Exhibit “A”. 2. Subsequently, on April 13, 2015, McDonough filed a complaint against Officer Murguido arising out of the same alleged incident (the “Murguido Case”). A copy of the original complaint filed in the Murguido Case is attached hereto as Exhibit “B”. 3. On October 12, 2015, McDonough sent the City the public records request that is the subject of the instant action requesting records relating to the City’s decision to defend Officer Murguido in the Murguido Case and the City’s decision to retain the undersigned law firm in that defense (the “Public Records Request”). 2 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) 4. The City initially responded that the requested records are exempt from production § 119.071(1)(d)(1), Fla. Stat. as they contain the mental impressions of the City’s attorneys. A copy of the Public Records Request and the City’s initial response are attached hereto as Exhibit “C”. 5. Subsequently, on July 5, 2016, the City, through counsel, sent Plaintiff a supplemental response to the Public Records Request, which stated that “the records are also confidential and exempt pursuant to Sections 768.28(16)(b) and 624.311(2), Florida Statutes. The requested records are claims file records and/or reflect insurance claim negotiations and, as such, will remain confidential and exempt until termination of all litigation and settlement of all claims arising out of the incident.” A copy of the City’s July 5, 2016 supplemental response is attached hereto as Exhibit “D”. ARGUMENT The City has not violated Florida’s public records laws in responding to Plaintiff’s Public Records Request as the only records responsive to the Request are confidential and exempt from production. The following is a log of the responsive records and the applicable exemption(s): 1 1 In accordance with Florida law, these records will be provided to the Court at the hearing to allow for an in camera review of the confidential and exempt responsive records. See, e.g., Walton v. Dugger, 634 So. 2d 1059, 1061–62 (Fla. 1993) (“When . . . statutory exemptions are claimed by the party against whom the public records request has been filed . . . , the proper procedure is to furnish the document to the trial judge for an in camera inspection . . . . At that time, the trial judge can properly determine if the document is, in fact, subject to a public records disclosure”); Lopez v. Singletary, 634 So. 2d 1054, 1057–58 (Fla. 1993) (interpreting Walton as holding “that it is for a judge to determine, in an in camera inspection, whether particular documents must be disclosed,” and directing the state attorney’s office to deliver to the trial court for in camera inspection those documents which it claimed were exempt from disclosure as work product). 3 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) TABLE 1: Date Type: From: To: Applicable Exemption(s) 1 7/7/15 E-mail Kim Stewart (Travelers Insurance) Eric Stettin (Attorney) Priscilla Thompson (Risk Management) § 768.28(16)(b), Fla. Stat. § 624.311(2), Fla. Stat. 2 7/8/15 E-mail Eric Stettin (Attorney) Vivian Manach (Risk Management) Priscilla Thompson (Risk Management) Richard Weiss (Attorney) § 768.28(16)(b), Fla. Stat. § 119.071(1)(d)(1), Fla. Stat. 3 7/8/15 E-mail Vivian Manach (Risk Management) George Gretsas (City Manager) 4 7/9/15 E-mail George Gretsas (City Manager) Vivian Manach (Risk Management) Priscilla Thompson (Risk Management) Eric Stettin (Attorney) Richard Weiss (Attorney) City Council Members § 768.28(16)(b), Fla. Stat. § 119.071(1)(d)(1), Fla. Stat. § 768.28(16)(b), Fla. Stat. 5 7/8/15 Letter Eric Stettin Officer Alejandro Murguido I. § 119.071(1)(d)(1), Fla. Stat. § 768.28(16)(b), Fla. Stat. § 90.502, Fla. Stat. FLORIDA’S PUBLIC RECORDS LAW. Florida’s public records laws are set forth by Article I, Section 24 of the Florida Constitution, and Chapter 119 Florida Statutes. For its part, Article I, section 24 provides in pertinent part: 4 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive and judicial branches of government.... Art. I, § 24(a), Fla. Const. Chapter 119, for its part, defines public records as: all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. §119.011(1), Fla. Stat. As such, “both article I, section 24 and chapter 119 specify that public records are those records that are in some way connected to ‘official business.’” State v. City of Clearwater, 863 So. 2d 149, 152 (Fla. 2003). Moreover, as the public records law makes clear, attorneys’ fees are only recoverable if it is determined that the records custodian acted “unlawfully”: If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees. §119.12, Fla. Stat. (emphasis added). II. THE EXEMPTIONS CLAIMED BY THE CITY ARE VALID AND APPLICABLE TO THE RESPONSIVE RECORDS. A. Records Reflecting Attorney Mental Impressions. With respect to Records 2, 3, and 5, Plaintiff’s claim is barred as the Public Records Request asked the City to produce records reflecting the City’s attorneys’ mental impressions relating to the defense of potential litigation relating to the Notice of Claim served by McDonough that, to this day, remains active and pending. The City responded that “any such 5 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) record is privileged, exempt or otherwise protected from disclosure pursuant to Sections 119.071(1)(d)(1) and 90.502 Florida Statutes.” In doing so, the City properly relied on section 119.071(1)(d)(1), which states that: A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. §119.071(1)(d)(1), Fla. Stat. (emphasis added). B. Records Within Risk Management Claims Files are Confidential and Exempt. 2 With respect to Records 1, 2, 3, 4, and 5, Plaintiff’s claim is barred as the Public Records Request asked the City to produce records that are within the City’s Risk Management claims file. As such the requested records are confidential and exempt pursuant to section 768.28(16)(b), which states that: Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same 2 Although the City did not initially identify sections 768.28(16)(b) and 624.311(2) applicable exemptions. The City did provide a supplemental response advising Plaintiff that the responsive records were also exempt and confidential as a result. Prevailing Florida law is clear that the City may identify additional exemptions after its initial response by amending or supplementing its public records response. See Weeks v. Golden, 764 So. 2d 633, 635 (Fla. 1st DCA 2000) (directing the trial court to “order the State Attorney to file an amended response identifying with specificity, as contemplated by section 119.07(2)(a), the basis for a claim that any of the records requested by appellant are exempt from disclosure” and stating that the trial court could then consider the issue of entitlement to the records). 6 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) incident, although portions of the claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph. § 768.28(16)(b), Fla. Stat. (emphasis added). This exemption is vital to the City’s ability to defend and evaluate claims asserted against it. Without it, the City’s strategy in defending a certain claim would be available to every prospective plaintiff. As the Attorney General has correctly observed: If such records and meetings were not exempt, claimants would have unfettered access to, for example, the state’s evidence, negotiation strategies, and claim evaluation and settlement considerations; thus the amount of the awards and settlements paid out by the state, its agencies and subdivisions, and ultimately the taxpayer, would increase dramatically. Furthermore, release of such information to the public serves no public purpose (e.g., monitoring the adequacy of agency investigations and reasonableness of settlement positions) which could not be otherwise accomplished upon completion of all litigation and settlement of claims when the records become publicly available. Fla. AGO 2007-47, 2007 WL 3320355, *1 (emphasis added) (citing Section 2, Ch. 94-76, Laws of Fla); see also House of Representatives Committee on Governmental Operations Final Bill Analysis & Economic Impact Statement on HB 531. 3 3 Passed by the Legislature as Ch. 94-76, Laws of Florida, dated March 23, 1994, p. 6, which states: The types of documents in a claims file include accident reports by police, sheriff, and highway patrol officers; investigative reports; legal pleadings; reports and correspondence from defense counsel evaluating potential liability, potential damages, and providing recommendations regarding settlement; correspondence relating to the accident or incident; doctors’ reports and reports from other medical experts or health providers including medical test results, patient medical histories, medications and treatments; damage estimates in the case of automobile accidents or water vessel accidents; reports by experts who are requested to be potential expert witnesses regarding liability and damages; correspondence from and to insurance adjusters relating to, for example, offers of compromise; notations relating to the facts in the case; invoices from experts and 7 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) Here, Plaintiff has served the City with a notice of claim threatening to file a complaint against the City for claims arising out of the same occurrences that brought about Plaintiff’s complaint in the Murguido Case. Plaintiff then served the City with the Public Records Request seeking records which reveal the City’s analysis and evaluation of the potential claim against the City. If the City were required to hand over that confidential information, it would be severely and unduly prejudiced in the event Plaintiff decided to file his complaint against the City relating to the Notice of Claim. The risk management claims file exemption exists for this very reason – to prevent would be plaintiffs from obtaining unfettered access to the City’s strategies and case evaluations. 4 As such, the City properly relied on section 768.28(16)(b) and Plaintiff’s claim must be denied. defense firms; names of investigators; amount of money available for litigation and settlement; “SeFes” scores (an evaluation score used in determining whether or not a suit should be defended or settled); personnel records; recorded or signed statements taken as possible evidence; risk management program evaluations of hazardous conditions; supervisor and claims committee notes pertaining to defense strategies; minutes of peer review meetings; Department of Professional Regulation defense files, and Trust Fund Council meeting minutes (public hospitals are “agencies” affected by the claims file law); anonymous correspondence; surveillance reports, photographs, and recordings; expert witness reports; and case evaluation statements from for example school principals, teachers, and bus drivers (school districts are also “agencies” affected by the claims file law). 4 Plaintiff may assert that the Notice of Claim against the City has nothing to do with his claims in the Murguido Case. However, the claims are inextricably intertwined. The City could not evaluate the Murguido Case and whether to provide the officer with a defense without also considering the threatened claim against the City and whether the City could be responsible. If the claims were truly unrelated and Plaintiff truly had no interest in pursuing the Notice of Claim against the City, Plaintiff could simply release the City from that Claim, at which point Record 2, 3 and 4 would no longer be confidential. 8 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) C. Records Reflecting Insurance Claim Negotiations are Confidential and Exempt. With respect to Record 1, Plaintiff’s claim is further barred as the Public Records Request asked the City to produce records that reveal insurance claim negotiations. As such the requested records are confidential and exempt pursuant to section 624.311(2), which states that: The records of insurance claim negotiations of any state agency or political subdivision are confidential and exempt from s. 119.07(1) until termination of all litigation and settlement of all claims arising out of the same incident. § 624.311(2), Fla. Stat. (emphasis added). This exemption clearly covers communications between City’s retained counsel and an insurance carrier concerning claim negotiations. See Fla. AGO 85-102, 1985 WL 190082 (1985). This is exactly the type of communication included within Record 1. As such, the City properly relied on section 624.311(2), Florida Statutes and Plaintiff’s claim must be denied. D. The Retainer Letter From Mr. Stettin to Officer Murguido is Protected by Attorney-Client Privilege and the Privilege is not the City’s Privilege to Waive. With respect to Record 5, in addition to the letter containing exempt attorney-work production information pursuant to section 119.071(1)(d)(1) 5 and being confidential due to its presence in the risk management claims file, the letter is also a communication from Officer Murguido’s attorney to Officer Murguido. This is the only record within the City’s possession that actually reflects the decision to use Weiss Serota to defend Officer Murguido. However, such a communication is also the type of communication between attorney and client that is traditionally protected by attorney-client privilege. The City does not dispute the general proposition cited by Plaintiff (Memo at 2) that Florida’s public records laws do not contain an exemption for attorney-client privilege. 5 The letter was prepared by Mr. Stettin and contains his mental impressions. 9 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) However, that is true where the government agency is the client. Here, the client owning the privilege cited by the City is Officer Murguido. That privilege is not the City’s to waive. See XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So. 2d 578, 585-86 (Fla. 1st DCA 2006) (stating that only the client was the holder of the privilege, and thus only the client could waive it); see also U.S. v. Cable News Network, Inc., 865 F. Supp. 1549, 1557 (S.D. Fla. 1994) (stating that “[i]t is a fundamental principle of law that only the client, not the attorney, may waive the attorney-client privilege.”). Should this Court decide otherwise, it would effectively be an invitation to Plaintiff to seek and, almost without limitation, obtain all correspondence between Mr. Stettin and Officer Murguido concerning the defense of Murguido. Such a decision would also serve to effectively undo an entire statutory scheme under which the City is entitled to fund the defense of one of its employees (See §111.07, Fla. Stat. 6) as it would effectively eliminate the existence of the attorney-client privilege for any public employee whose defense is funded by his or her government employer. Public policy dictates that this correspondence must remain protected and prevailing Florida mandates that the City, and not the Court, retains the sole discretion to determine whether or not to provide a defense to its employees. See Nuzum v. Valdes, 407 So. 6 Section 111.07 provides, in relevant part: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property . . . . § 111.07, Fla. Stat. 10 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) 2d 277, 279 (Fla. 3d DCA 1981) (holding that “[o]ur study of the statute leads us to conclude that it was the intention of the Legislature that the primary determination as to the allowance of counsel be placed in the respective governmental unit rather than with the judiciary . . . a court is not in a position to determine whether an officer, agent, servant, or employee has acted in bad faith or with a malicious purpose until the case has been terminated upon the merits. At such a point, legal services then being provided by the agency have been substantially concluded. Consequently we find that the activation of the statute is primarily an executive function.”). III. PLAINTIFF’S MEMORANDUM IN SUPPORT OF HIS COMPLAINT IS BASED ENTIRELY ON A MISREPRESENTATION OF THE SCOPE OF THE PUBLIC RECORDS REQUEST. Plaintiff’s argument is based on the mistaken premise that because the City produced certain records in response to a subsequent request 7 made by Plaintiff, the City must have breached Chapter 119 in failing to produce those records in response to the Public Records Request. Notwithstanding the incongruous nature of his argument – that the City breached Chapter 119 by producing records to Plaintiff – Plaintiff’s argument fails simply by virtue of the fact that the scope of the Public Records Request at issue here was exceedingly narrower than the subsequent request in response to which Plaintiff received the records upon which he now relies. 8 Specifically, the two requests were as follows: 7 Plaintiff’s subsequent request is attached hereto as Exhibit “E”. 8 The fact that the City made these additional records available to Plaintiff in response to his subsequent request reveals, unequivocally, that the City had no intent to withhold these records from Plaintiff and the City simply did not (and does not) interpret the Public Records Request to be inclusive of these documents. Moreover, even if, arguendo, the City’s interpretation of the scope of the Public Records Request was too narrow, Plaintiff now has the additional records and, as such, is not entitled to relief here. In either event, the records for which the City has claimed exemptions, remain confidential and exempt. 11 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) TABLE 2: The Public Records Request Subsequent request in response to which Plaintiff received non-exempt responsive records I hereby file a records request for all documentation and financial records related to the City’s decision to use the law firm of Weiss, Serota, Helfman, Cole and Bierman to defend officer Alejandro Murguido in Miami-Dade County case no. 15-08342 CA 08. I am therefore requesting: This is a civil lawsuit for defamation per se and intentional infliction of emotional distress, for actions taken by Alejandro Murguido while off-duty and acting in his personal and not official capacity. I am also requesting documentation as to who made the decision to have the City defend this officer. 1) All emails between you, your firm, and the city, excluding any direct communications between you and your Client Mr. Murguido, relating to your defense of Murguido. 2) Any other non-exempt/non-confidential documents, records, communications, etc, ad infinitum related to the city’s decision to defend Murguido, or the defense of Murguido. 3) Explicitly cited exemptions for each redaction and/or refused record/document. 4) The number of billable hours you have charged/worked/billed to date in the defense of Murguido. The hourly billing rate you are charging the city, and the total amount to dollars charged or to be billed to the city as of the date of this email, including the time you spend reading and responding to this email and request. The Public Records Request was very narrow in scope in that is sought only records that reflect who made the decision to defend Officer Murguido and the records that reflect the decision to use Weiss Serota to do so. As set forth in Table 1 above, only a few records exist, which actually reflect those specific decisions. Each of those responsive records is, however, exempt and confidential as they include risk management file records, attorney mental impressions, and insurance claim negotiations. Those records remain confidential and exempt until the conclusion of the claim. See §§ 119.071(1)(d)(1); 768.28(16)(b); 624.311(2), Fla. Stat. Moreover, Plaintiff’s subsequent request was much broader as it requested all records relating to 12 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) the actual defense of Officer Murguido. The universe of documents responsive to that request is much larger. Some of the responsive records are not exempt and those records were produced to Plaintiff and some have been attached as exhibits to his memorandum. 9 Based on the foregoing, it is clear that the City has not breached Chapter 119 and, as such, Plaintiff’s claim must be denied. IV. PLAINTIFF IS NOT ENTITLED TO AN AWARD OF REASONABLE ATTORNEYS’ FEES. In support of its unwarranted claim for an award of attorneys’ fees, Plaintiff will likely rely upon Board of Trustees v. Lee, 189 So. 3d 120 (Fla. 2016). However, Lee is materially distinguishable from the instant matter. In Lee, the Florida Supreme Court held that a prevailing party is entitled to statutory attorney’s fees when an agency unlawfully refused to permit the inspection or copying of a record which is a violation of the Public Records Act and, in that case, the trial court found that there had been a violation of section 119.07. Id. at 123. On the other hand, where, as is the case here, there has been no unlawful refusal, Lee has no application. See Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., --- So.3d ----, 2016 WL 3002334, *6 (Fla. 3d DCA May 25, 2016) (distinguishing Lee and affirming denial of attorneys’ fees award based on the conclusion that there was no “unlawful refusal” by an agency so there was no violation of the Public Records Act that triggered entitlement to statutory attorney’s fees). As the Third District stated in Wantman: Section 119.12 provides for attorney’s fees if the court determines that the failure to provide records in response to a request amounted to an unlawful refusal. “By its terms, this section places several conditions on the right to an award of fees. 9 There are also many more records that are responsive to the second request that are confidential and exempt pursuant to Sections 119.071(1)(d)(1), 768.28(16)(b) and 624.311(2), Florida Statutes as those records contain privileged work product protected information, are claims file records and/or reflect insurance claim negotiations. 13 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) The court must determine that the agency has ‘refused’ to provide the records and the refusal must be ‘unlawful.’” Wantman at *3 (quoting Consumer Rights, LLC v. Union Cty., 159 So. 3d 882, 885 (Fla. 1st DCA 2015)). 10 Accordingly, this Court should deny Plaintiff’s request for an award of attorneys’ fees as there has been no unlawful refusal by the City. V. CONCLUSION Based on the foregoing, the City respectfully requests that this Honorable Court deny Plaintiff’s claim for relief as the City has not violated Chapter 119. Respectfully submitted, WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Attorneys for City of Homestead 200 East Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By: 10 /s/ Samuel I. Zeskind SAMUEL I. ZESKIND Florida Bar No. 043033 Primary: szeskind@wsh-law.com Secondary: ozuniga@wsh-law.com . See also Jackson-Shaw Co. v. Jacksonville Aviation Authority, 510 F. Supp. 2d 691, 738 (M.D. Fla. 2007) (Finding that plaintiff/developer was not entitled to attorney fees under public records statute where there was no evidence that the public agency ignored or otherwise failed to respond to the request, and finding that the agency’s inadvertent failure to include all documents in its otherwise timely and substantial response did not equate to an “unjustified delay” or “unlawful refusal” to permit a public record to be inspected.). 14 W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L. CASE NO.: 16-12412 CA (13) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by E-mail this 2nd day of September, 2016 to: Alan J. Greenstein, Esq., agreenstein004@hotmail.com, Alan J. Greenstein, P.A., Attorney for Plaintiff, Dadeland Towers, 9200 S. Dadeland Blvd., Suite 308, Miami, Florida, 33156. /s/ Samuel I. Zeskind SAMUEL I. 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Acmrdingiy, pleusc lake 'lhislle'ttcr as the Clahw-mntk" formal statutpry, pre-suii -'i10l'ice. pursuam lo the 1.6mm and provisions of Florida law. I. you have an}; qti?slziuns regardi?g this matter, Mamie do not-hesitate 510 30111361 me. Yours truly an Ci men 311?: i EXHIBIT 6 CB 9 9 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT. IN AND FOR MIAMI-DADE COUNTY. FLORIDA CASENO: Cfe Og CIVIL DIVISION DR. JAMES McDONOUGH. individually, Plaintiff. vs. ALEJANDRO MURGUIDO, LUIS GOMEZ and ALEJANDRO MURGUIDO. individually Defendants STATE OF FLORIDA: To All and Singular Sheriffs of said State: P YOU ARE HEREBY COMMANDED to serve this Summons and a copy of the Complaint in yv. this action on Defendant: Alejandro Murguido Homestead Police Department 1601 SE 28lh Avenue V v<> [/ V v Homestead, Florida 33035 A lawsuit has been filed against you. You haveStO calendar days after this summons is served vv on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There arc other legal requirement s. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, send the original to the Court, located at the Miami-Dade County Courthouse. 73 W. Flagler St.. Miami, Fl. 33130. The Defendant is required to serve written defenses to the Complaint to Plaintiffs Attorney, who is Alan Grccnstein. at 9200 S. Dadeland Blvd., Suite 308. Miami. Fl. 33156. -0 9}. y $ 0s> , •d HARVEY RUVIN CLERK OF COURT BBI.l 3 tQfc Bv: VZiSS&'SW'- DATE: DEPUTY CLERK (COURT SEAL) IMPOR I'ANTE Usted ha sido dcmuiuiado legalmenle. Tien^K) dias, contados a partir del recibo do esta notiUcacion, para conlestar la demanda adjunta, por escrito. y prcsentarla ante este tribunal. Una llamada telefonica no lo protegera. Si usted desca que el tribunal considcrc su defensa. debe prcsentar su rcspuesta por escrito, incluycndo el numero del caso y los nombres de las partes interesadas. Si usted no contesta la demanda a tiempo. pudiese perder el caso y podria ser despqjado de sus ingresos y propiedades, o privado de sus dcrechos, sin previo aviso del tribunal. Existen otros requisilos legales. Si lo desea. puede usted consultara un abogado inmediatamente. Si no conoce a un abogado, puede llamar a una de las oficinas de asistencia legal que aparccen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o cntregar una copia de su respuesta a la persona denominada abajo como "'Plaintiff (Demandante o Abogado del Demandante). IMPORTANT Des poursuitcs judiciares ont etc entreprises contre vous. Vous ave^LO Jours conseculifs a partir de la date de I'assignalion de cette citation pour deposer une reponse ecrite a la plainte ci-jointe auprcs de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes obliges de deposer voire reponse ecrite, avec mention du numero de dossier ci-dessus el du nom des parties nominees ici. si vous souhaitez que le tribunal entende voire cause. Si vous ne deposez pas voire reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que voire salaire, voire argent, et vos biens peuvent etre saisis par la suite, sans aucun prcavis ullerieur du tribunal. II y a d'autres obligations juridiques et vous pouvez requerir les services immedials d'un avocat. Si vous ne connaissez pas d'avocat. vous pourriez lelephoner a un service de reference d'avocats on a un bureau d'assislance juridique (figurant a I'annuaire de telephones). Si vous choisissez de deposer vous-mcme une reponse ecrite. il vous faudra egalemenl. en mcme temps que cette formalite. (aire parvenir ou expedier une copie dc voire reponse ecrite au ¦¦Plaintiff' (Plaignant ou a son avocal) nomme ci-dessous. IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: DR JAMES MCDONOUGH, Plaintiff, vs. ALEJANDRO MURGUIDO, LUIS GOMEZ, and ALEJANDRO MURGUIDO JR Defendants. / COMPLAINT Plaintiff, DR JAMES MCDONOUGH, representing himself, in propria persona, sues Defendants ALEJANDRO MURGUIDO, LUIS GOMEZ and ALEJANDRO MURGUIDO JR, for their defamatory and unlawful acts alleged below: 1. This is a cause of action for damages in excess of $15,000 exclusive of all fees, cost and interest. 2. Plaintiff, DR JAMES MCDONOUGH ("McDonough" and/or "Plaintiff"), seeks to recover damages for defamatory Statements published 1 by ALEJANDRO MURGUIDO, LUIS GOMEZ and ALEJANDRO MURGUIDO JR (referred to respectively as "Murguido", "Gomez" and "Junior" individually, and collectively as "Defendants", or singularly as "Defendant") who, wrongfully and maliciously, accused Plaintiff of committing Corruption Through Threats, as well as other crimes including Aggravated Stalking and Trespass. 3. The subject Statements concerning the Plaintiff were false, defamatory, and injurious to his professional and personal reputation, being intentionally sworn with malicious intent to inflict emotional distress. PARTIES 4. McDonough is an individual residing in Miami-Dade County (MDC), Florida. 5. Murguido is a police officer, for Homestead Police Department (HPD), and resides in MDC. 6. Gomez is a sheriff's deputy, for Monroe County Sheriffs Office (MCSO), and at the time of the alleged actions lived in MDC. 7. Junior, the son of Murguido, is a civilian residing in MDC. JURISDICTION AND VENUE 8. Jurisdiction and venue are proper in MDC in that McDonough resides in and has suffered injury in MDC, Florida as a result of the tortious act of verbally publishing defamatory statements about him. FACTS 9. On October 29, 2012, Plaintiff had a conversation with Murguido about his dangerous driving behavior in the community, in front of Murguido's house. 10. Murguido was in his front yard speaking with his lawn man, when Plaintiff walking down the street, motioned for his attention. Murguido motioned for Plaintiff to wait a minute. 11. When Murguido was finished speaking with his lawn man, he approached Plaintiff at the road. After this conversation, and Plaintiff walking away, Murguido chased down Plaintiff and detained him without reasonable suspicion or probable cause. 12. It is this conversation specifically, that Defendants have given a false narrative of, rising to the level of defamation per se. This demonstrated by the published recording of the conversation, relative to sworn statements made by all Defendants. 13. Plaintiff has never one single time, entered Murguido's property, on foot or by vehicle, and has always been on the public street. 14. Plaintiff never threatened Murguido at any time, but did advise he would report him to his supervisor, if he continued to drive dangerously. 15. On December 27, 2012, January 24, 2013, and again on February 13, 2013, Plaintiff called Homestead Police Department and Internal Affairs (IA). trying to file a complaint against Murguido. 16. On February 15, 2013, Murguido off-duty filed a criminal complaint with Officer VV. Marti of the MDPD. In his complaint Murguido falsely accused Plaintiff of committing Corruption Through Threats, section 838.021, Florida Statutes, Aggravated Stalking, section 784.048(3), Florida Statutes, both third degree felonies. Murguido did this by making false statements that Plaintiff had unlawfully threatened him on October 29, 2012, while trespassing on his property, and that the Plaintiff had entered his property and threatened him earlier on July 27, 2012. These statements are false. 17. Murguido swore under oath on February 28, 2013 that Plaintiff had contacted IA, and that Murguido was advised to file against the Plaintiff. Vet, the earlier calls to FIPD and IA, all made before this, were not returned until March 19, 2013. 18. On March 8, 2013, Junior gave a false statement to Alvarez. In his statement, Junior alleged that Plaintiff walked half way up the drive way, and that Murguido yelled at Plaintiff to leave and Plaintiff refused. This statement is false. 19. On March 9, 2013, Murguido gave a sworn taped statement to Alvarez, notably he alleged that on October 29, 2012 Plaintiff walked half way up the drive way. Murguido earlier on February 28, 2013 made a statement sworn under oath, that he was speaking with his lawn man in his front yard when Plaintiff approached. 20. him". Murguido alleged that Plaintiff threatened him by saying he was "going to get This is a false statement. 21. Murguido alleged that Plaintiff would not leave until he walked away and entered his garage. This is a false statement. 22. Murguido alleged Plaintiff had yelled at and threatened him earlier on July 27, 2012. This is a false statement. 23. On April 15, 2013, Plaintiff was arrested on his property, based upon the false statements of the Defendants. This was for Corruption Through Threats and Aggravated Stalking, both third degree felonies. 24. The State Attorney, based upon the false statements of defendants, reduced Aggravated Stalking to Simple Stalking, and added two counts of trespass. The State Attorney dropped the Corruption Through Threats charge. 25. On May 7, 2013, Gomez gave a sworn recorded statement to Alvarez, in the presence of MDPD Detective Webster. Gomez alleged that Murguido was in his garage area working on his vehicles, when the Plaintiff stopped in front of Murguido's property and started screaming at him. The Plaintiff then stepped onto Murguido's property and continued screaming. Gomez alleged that Murguido was "screaming at the top of his lungs" for Plaintiff to get off his property and Plaintiff refused. Gomez alleges that Plaintiff would not leave until Murguido went into his house. These statements by Gomez are false. 26. Plaintiff(s) were not in the performance of any official duty or act when making the defamatory statements. 27. These statements were not privileged, and were published to a third party, with malice, thereby damaging the Plaintiff. Count I (Slander Per Se—As to Murguido) 28. Plaintiff repeats and incorporates by reference paragraphs 1 through 27 above as though fully set forth herein. 29. On February 15, 2013 Murguido gave statements to MDPD Officer Marti. These statements allege Plaintiff committed Corruption Through Threats, Aggravated Stalking, and Trespass. 30. On March 4, 2013, Murguido confirmed to MDPD Detective Alvarez, his earlier statements to Officer Marti. 31. Alvarez. On April 9, 2013, Murguido gave recorded statements under oath to Detective These statements allege Plaintiff committed Corruption Through Threats, Aggravated Stalking, and Trespass. 32. None of the statements made by Murguido to either Marti or Alvarez were privileged. 33. The statements made to Marti and Alvarez accuses Plaintiff of crimes. 34. The statements made to Marti and Alvarez are false. 35. The statements made to Marti and Alvarez were made with malice. 36. As a direct and proximate result of the actions of the defendant, the Plaintiff suffered both physical and mental injuries and is entitled to relief. Wherefore the Plaintiff is entitled to; A. Compensatory damages for the physical and mental injuries suffered. B. Cost of this action. C. Any other remedy the Court deems appropriate. Count II (Slander Per Se—As to Gomez) 37. Plaintiff repeats and incorporates by reference paragraphs 1 through 36 above as though fully set forth herein. 38. On April 10, 2013 Gomez made statements to MDPD Detective Alvarez. These statements allege Plaintiff committed Corruption Through Threats and Trespass. 39. On May 7, 2013 Gomez gave recorded statements under oath to Detective Alvarez. These statements allege Plaintiff committed Corruption Through Threats and Trespass. 40. None of the statements made by Gomez to Alvarez were privileged. 41. The statements made to Alvarez accuse Plaintiff of crimes. 42. The statements made to Alvarez are false. 43. The statements made to Alvarez were made with malice. 44. As a direct and proximate result of the actions of the defendant, the Plaintiff suffered both physical and mental injuries and is entitled to relief. Wherefore the Plaintiff is entitled to; A. Compensatory damages for the physical and mental injuries suffered. B. Cost of this action. C. Any other remedy the Court deems appropriate. Count III (Slander Per Se— As to Junior) 45. Plaintiff repeats and incorporates by reference paragraphs 1 through 44 above as though fully set forth herein. 46. On April 8, 2013 Junior made statements to MDPD Detective Alvarez, These statements allege Plaintiff committed Trespass. 47. None of the statements made by Gomez to Alvarez were privileged. 48. The statements made to Alvarez accuse Plaintiff of crimes. 49. The statements made to Alvarez are false. 50. The statements made to Alvarez were made with malice. 51. As a direct and proximate result of the actions of the defendant, the Plaintiff suffered both physical and mental injuries and is entitled to relief. Wherefore the Plaintiff is entitled to: A. Compensatory damages for the physical and mental injuries suffered. B. Cost of this action. C. Any other remedy the Court deems appropriate. Count IV (Intentional Infliction of Emotional Distress) 52. Plaintiff repeats and incorporates by reference paragraphs 1 through 51 above as though fully set forth herein. 53. The acts and/or omissions of acts of Defendants involved extreme and outrageous conduct which causes McDonough to suffer severe emotional distress. 54. The acts and/or omissions of acts of Defendants involved a deliberate or reckless infliction of mental suffering, in that Defendants intended their behavior, when they knew, or should have known, that emotional distress to McDonough would likely result. 55. The conduct of Defendants exceeds the bounds of decency in a civilized society and was such that a person of normal sensibility upon hearing what Defendants did would exclaim "outrageous". 56. As a result of the infliction of emotional distress by Defendants, McDonough has suffered damages to include, but not limited to, humiliation, harassment, mental suffering and pain, damage to family relationships, damage to reputation, and other damages which are permanent or continuing in nature. 57. As a direct and proximate result of the actions of the defendant, the Plaintiff suffered both physical and mental injuries and is entitled to relief. Wherefore the Plaintiff is entitled to: A. Compensatory damages for the physical and mental injuries suffered. B. Cost of this action. C. Any other remedy the Court deems appropriate. PRAYER FOR RELIEF WHEREFORE, Plaintiff, Dr. James McDonough seeks judgment as follows: i) Awarding Plaintiff all compensatory damages he has suffered, including consequential and incidental damages, as a result of Defendants' wrongful conduct in an amount to be determined; ii) Granting preliminary Defendants from and making permanent further injunctive false, relief misleading, to and prevent malicious statements concerning Plaintiff; iii) Awarding Plaintiff his cost, expenses and attorney's fees incurred in connection with this action; and iv) For such other relief deemed just and proper by the Court. Jury Demand Plaintiff demands a trial by jury on all issues so triable. Respectfully submitted, Dr. James^ic McDonough 32320 SW 199"' Avenue Homestead, Florida 33030 Telephone: Email; 10 571-245-5410 phd2b05@gmail.coin EXHIBIT 6 9 From: To: Cc: Subject: Date: Patricia Sullivan "Eric McDonough" Elizabeth Sewell; Leticia Anguiano; Samuel I. Zeskind Response PRR McDonough re Representation Thursday, November 19, 2015 12:00:27 PM Dr. McDonough,   All records responsive to your request below are privileged, exempt or otherwise protected from disclosure pursuant to Sections 119.071(1)(d)(1), and 90.502 Florida Statutes.   If we can be of further service, please contact us.     Patty Sullivan, Deputy City Clerk Office of the City Clerk City of Homestead 650 NE 22 Terrace #100 Homestead, FL 33033 305-224-4440 - office 305-224-4459 - fax   Please consider the environment before printing this email.  Under Florida Law, email addresses are public records.  If you do not want your email released in response to a public records request, do not send electronic mail to this entity.  Instead, contact this office by phone or in writing.     From: Eric McDonough [mailto:phd2b05@gmail.com] Sent: Monday, October 12, 2015 10:15 AM To: Patricia Sullivan Subject: Request for Records Dear Patricia, I hereby file a records request for all documentation and financial records related to the City's decision to use the law firm of Weiss, Serota, Helfman, Cole and Bierman to defend officer Alejandro Murguido in Miami-Dade County case no. 15-08342 CA 08. This is a civil lawsuit for defamation per se and intentional infliction of emotional distress, for actions taken by Alejandro Murguido while off-duty and acting in his personal and not official capacity. I am also requesting documentation as to who made the decision to have the City defend this officer. Thanks Dr. James Eric McDonough EXHIBIT CD 9 9 SAMUEL I. ZESKIND PARTNER July 5, 2016 szeskind@wsh-law.com VIA E-Mail [agreenstein004@hotmail.com] Alan J. Greenstein, Esq. Alan J. Greenstein, P.A. Dadeland Towers 9200 S. Dadeland Blvd., Suite 308 Miami, Florida, 33156 RE: McDonough v. City of Homestead Case No. 16-12412 CA Dear Mr. Greenstein: As you know, we represent the City of Homestead (“City”) in the above-referenced matter. In response to your client’s public records request that is the subject of this action, the City initially responded that “any such record is privileged, exempt or otherwise protected from disclosure pursuant to Sections 119.071(1)(d)(1) and 90.502 Florida Statutes.” Upon further review of the records responsive to your client’s request, the City has determined that the records are also confidential and exempt pursuant to Sections 768.28(16)(b) and 624.311(2), Florida Statutes. The requested records are claims file records and/or reflect insurance claim negotiations and, as such, will remain confidential and exempt until termination of all litigation and settlement of all claims arising out of the incident. Sincerely, Samuel I. Zeskind 200 E. Broward Blvd., Suite 1900, Ft. Lauderdale, FL 33301 954-763-4242 www.wsh-law.com EXHIBIT 6 9 From: To: Cc: Subject: Date: Eric McDonough estetting@wsh-law.com agreenstein004@hotmail.com; Gary Ostrow; craig@weissberglegal.com; Pro; Grant Stern; Felipe Hemming; Samuel I. Zeskind; David M. Wolpin; Carlos Miller; mgray9937 Records Request Sunday, June 05, 2016 11:15:32 PM Dear Mr. Stetting, I am hereby filing a formal 119 request with you personally as a custodian of public records under Florida law. Under the provisions of FSS. 119.0701(1)(a), you are a contractor and are obligated under law to provide me with copies of public records upon request under FSS. 119.0701(2)(b). I am therefore requesting: 1) All emails between you, your firm, and the city, excluding any direct communications between you and your Client Mr. Murguido, relating to your defense of Murguido. 2) Any other non-exempt/non-confidential documents, records, communications, etc, ad infinitum related to the city's decision to defend Murguido, or the defense of Murguido. 3) Explicitly cited exemptions for each redaction and/or refused record/document. 4) The number of billable hours you have charged/worked/billed to date in the defense of Murguido. The hourly billing rate you are charging the city, and the total amount to dollars charged or to be billed to the city as of the date of this email, including the time you spend reading and responding to this email and request. Your expeditious compliance with this lawful request is greatly appreciated, and will alleviate the need for the filing of additional law suits and/or complaints against you personally in this specific matter. Reducing both the amount of litigation and/or the number of litigants/defendants. Which is what we all want in the name of judicial economy right? Further, as a well-seasoned and licensed attorney, you surely are aware that these records are not exempt or confidential, and they do not fall under the provisions of attorney-client privilege either, as has been falsely claimed in the past by either you, your colleagues, and/or your clients. For your convenience, and in case you are as clueless about public records law as some of your colleagues apparently are, I have posted links to an AGO and a Florida Supreme Court ruling showing that the requested records are not attorney-client privileged material. Although, you seemed ignorant and confused about this facet of law when we met at court, with your astounding intelligence, I'm sure after reading the provided links, you will come to the same legal conclusion as have I, and promptly provide me with the requested documents ASAP as required by law. My patience for playing games and general stupidity is wearing thin. http://www.myfloridalegal.com/ago.nsf/Opinions/BA424F66B626E94785256513005FEC8F https://scholar.google.com/scholar_case? case=696342418946563908&q=public+records+attorney+client+privilege&hl=en&as_sdt=4,10 Any attempt to stall or refusal to provide the requested records may subject you to civil and/or criminal liability under the law. As you are likely aware one civil suit has already been filed against the city for their unlawful non-compliance in a similar request filed with them. Several of my attorneys are copied, as well as media contacts, and a couple of your colleagues. My publisher is also included as failure to produce public records by the government and/or their attorneys is a very exciting and newsworthy story for our organization.  Hopefully you will promptly comply with your requirements under the law.  Remembering any automatic delay is a violation of the law, and as an attorney who has been duly warned any unlawful violation or unlawful failure to produce will be a knowing violation, FSS. 119.10(1)(b).  Further, I am sure you are also aware of the legal extreme legal ramifications of concealing public records with a corrupt intent, FSS. 838.022(1)(b), and do not need to be warned against participating in any such illegal activity. I look forward to a prompt response from you, since you are now under due notice of my request and the law. Thank you and God bless. Dr. James Eric McDonough