Author Topic: Motion to Unseal Court Filing (HOA Settlement)  (Read 19885 times)

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Offline RickyJim

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #30 on: April 12, 2013, 02:58:41 PM »
From Crump's opposition motion,
Quote
11. Moreover, it is important to note there will be sound (voice) analysis expert witnesses for both prosecution and defense, as well as numerous other witnesses who will testify as to whose voice was screaming for help on the 911 tapes.

How in the world does he know that such witnesses will testify?  None of the "experts" are listed as A witnesses, IIRC.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #31 on: April 12, 2013, 03:05:31 PM »
MOTION TO DETERMINE CONFIDENTIALITY OF COURT RECORDS IN OPPOSITION TO DEFENDANT'S MOTION TO UNSEAL

I would call that unprofessional.

I call it the lead strawman.  I'll give it the rank of "Captain," making this remark "Captain of the strawman army."

Some of the statements are just dumb.  At 11 he asserts that Zimmerman himself can't confirm that he was screaming.

13 is a throwaway too.  He doesn't need to tell the court that the HOA insurer is going to file.  It adds nothing.  Either they file by the deadline, or they don't.  I don't even see how it helps from a PR standpoint.  I haven't studied 4-10, but they do give a great deal of insight into the prosecution's strategy for arguing that Martin was screaming.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #32 on: April 12, 2013, 03:08:21 PM »
From Crump's opposition motion,
How in the world does he know that such witnesses will testify?  None of the "experts" are listed as A witnesses, IIRC.

IIRC, the prosecution listed the voice experts as witnesses that would NOT be called.  They are in their own special category in the initial production.  Crump has about half a clue about the details of the law he is spouting.  I get a sense, from this pleading, that he is feeling cocky, not concerned.

Offline nomatter_nevermind

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #33 on: April 12, 2013, 03:15:08 PM »
I'll give it the rank of "Captain," making this remark "Captain of the strawman army."

Good one.  ;D 

Here's a soldier that deserves commendation.

Quote
Although bias is a component of cross-examination, Sybrina Fulton and Tracy Martin did not kill or encourage their son to be killed for financial gain.

Straw man and non sequitur. Illogic beyond the call of duty.

Offline FromBelow

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #34 on: April 12, 2013, 03:17:28 PM »
I get a sense, from this pleading, that he is feeling cocky, not concerned.

If the HOA (insurance co?) settled because they didn't want to pay for litigation and possibly losing, it seems to me they might not even bother suing Crump for a breach of confidentiality for the same reasons. Or it could be he knows Nelson is going to keep it sealed. I wonder, which would really benefit Crump the most? Sealed or unsealed? I guess it would be difficult to know without actually reading it first.

Offline nomatter_nevermind

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #35 on: April 12, 2013, 03:27:37 PM »
Paragraph 12 is a hoot.  Releasing the information could give an unfair advantage to Zimmerman.  I'd love to hear an explanation for that.

It sounds to me like an admission that the suit was settled for nuisance value.

Crump could be playing 'don't fling me in the briar patch'. I don't think he's even making a serious argument, and getting the document publicized has been suggested as a motive for his mysterious decision to file it.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #36 on: April 12, 2013, 03:31:41 PM »
If the HOA (insurance co?) settled because they didn't want to pay for litigation and possibly losing, it seems to me they might not even bother suing Crump for a breach of confidentiality for the same reasons. Or it could be he knows Nelson is going to keep it sealed. I wonder, which would really benefit Crump the most? Sealed or unsealed? I guess it would be difficult to know without actually reading it first.

Sealed benefits him the most.  He wanted this out in the public eye, without personally breaching the agreement.  That's why he used the clerk of the court to perpetrate a leak to Stutzman.

The court shouldn't punish the HOA insurer for Crump's indiscretion.  I believe they will make a decent pleading.  This one, by Crump, is weak, and that's charitable.  But, on the plus side for O'Mara, it is an on the record window into Crump, for Nelson and for any appellate judges who handle the case.  I also think it could be a net PR plus for O'Mara.  He need not remark on it at all.  The illogic in the motion, and the illogic in filing the agreement in the first place, speaks for itself.

Offline FromBelow

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #37 on: April 12, 2013, 03:50:46 PM »
Quote
The real issues to be determined in the criminal matter are whether or not George Zimmerman shot and killed Trayvon Martin...

That's news to me. I thought it was whether he committed murder or acted in self-defense. He's already admitted to shooting him.

I wonder if at some point Crump will trademark or copyright "profiled, pursued, and killed". He uses it every chance he gets.

Offline nomatter_nevermind

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #38 on: April 12, 2013, 05:40:52 PM »
All of this was settled well before either Sybrina Fulton or Tracy Martin were deposed.  I am sure that one of the questions asked was whether they had gained or were promised anything financially.  Even BDLR asked that question of W8.

Knowing or being advised that something is in one's financial interest, isn't the same as being 'promised' a quid pro quo.

I don't understand what issue you and she are differing on.

I understood DFH to be suggesting that, if Tracy and Sybrina said they were not 'promised' a financial gain in return for their testimony, those statements would be impeached by the settlement information.

This is how de la Rionda put the question to W-8.

SAO 4/2, 0:40-48
Quote
De la Rionda: Has anybody threatened you in any way to get you to make this statement?

Dee Dee: No.

De la Rionda: Has anybody made you any promises in order to get you to make this statement?

Dee Dee: No.

Offline MJW

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #39 on: April 12, 2013, 08:37:56 PM »
Wooten v. State, 464 So. 2d 640 (Fla. 3d DCA 1985):

Quote
While the rationales of the cases differ, it is generally held that a trial court's refusal to allow cross-examination of a witness concerning a then-pending civil action between the witness and the party seeking to cross-examine is reversible error.

* * *

The State argues that even if cross-examination concerning pending civil litigation with the defendant should have been permitted, the litigation here was not yet pending and was merely contemplated, and the contemplated litigation was a suit against the defendant's employer, not the defendant. In our view, these are distinctions without a difference. The rule that the pendency of a civil action brought against an accused by a witness in a criminal case is the proper subject of inquiry on cross-examination of the witness covers "the situation where no civil action has been commenced, but such a suit is or may be contemplated, as in the case of consultation with, or hiring of, an attorney,"

* * *

Likewise, it is of absolutely no moment that the pending or contemplated litigation is against the defendant's employer rather than the defendant, since, through the doctrine of respondeat superior, the employer may be held liable for the defendant's conduct. Thus, the witness's interest in inculpating the defendant and exculpating himself from responsibility is identical in either case.
« Last Edit: April 12, 2013, 08:39:55 PM by MJW »

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #40 on: April 13, 2013, 12:56:53 PM »
I found a document by the 18th Circuit Court that sets out a "draft" of procedures and documents when a person seeks to introduce confidential material to a court proceeding.  Crump really screwed up, IMO, even if he had a good reason to introduce this to the criminal trial (not that he did, just sayin').

The way I read the rules, but I haven't confirmed that this is the intended practice, a person who is contemplating filing confidential material that is -NOT- in that 20 or so categories of (d)(1)(B), first files the Motion to Determine Confidentiality.

My point of reference is the mandatory "shall" admonitions in (d)(3).  I concede that the rules are vague as to whether it is inappropriate to file a Notice of Confidential Information before filing a Motion to Determine Confidentiality, but it appears (maybe just an artifact of boilerplate) that Crump represented that the material he filed was was (d)(1)(A) or (d)(1)(B) material.  The clerk says, "we do not agree that the information contained ... [is (d)(1) material]"  I don;t intend to make the filing of Notice before filing Motion to Determine "the issue" here, because I think Crump's errors are at a deeper level.

(d)(3) Any person filing a document with the court shall ascertain whether any information contained within the document may be confidential under subdivision (c) of this rule notwithstanding that such information is not itemized at subdivision (d)(1) of this rule.  A person filing information that he or she believes in good faith to be confidential but that is not described in subdivision (d)(1) of this rule shall request that the information be maintained as confidential by filing a "Motion to Determine Confidentiality of Court Records" under the procedures set forth in subdivision  (e), (f), or (g), unless
[exception not applicable here]

Now, from the clerk's letter, it appears Crump asserted that the material was an item listed in (d)(1)(B), and the clerk disagreed.  The way the news reports it, it is Crump's option to wait 10 days for the clerk to disclose.  I don't think Crump had the option.  If the material is not in (d)(1)(B), he is OBLIGED to file a Motion to Determine Confidentiality.

Another point is notice to non-parties who have a confidentiality interest.  I think Crump is winging it on that.

If a notice of confidential information is filed pursuant to subdivision (d)(2), or a motion is filed pursuant to subdivision (e)(1) seeking to determine that information contained in court records is confidential, or pursuant to subdivision (e)(5) seeking to vacate an order that has determined that information in a court record is confidential or seeking to unseal information designated as confidential by the clerk of court, then the person filing the notice or motion shall give notice of such filing to any affected non-party. Notice pursuant to this provision must:

 (A)     be filed with the court;
 (B)     identify the case by docket number;
 (C)     describe the confidential information with as much specificity as possible without revealing the confidential information, including specifying the precise location of the information within the court record; and
 (D)     include:
          (i) in the case of a request to deem materials confidential, a statement that if the motion is denied then the subject material will not be treated as confidential by the clerk ...

Any notice described herein must be served together with the motion that gave rise to the notice in accordance with subdivision (e)(5) or (g)(5). When serving the notice and motion described in this subdivision on a non-party, the server shall use reasonable efforts to locate the non-party and may serve such non-party by any method set forth in Florida Rule of Civil Procedure 1.080(b).


That's a big piece of notice to non-parties who have confidential information put at risk by a person filing confidential materials with the court.  There is good reason to give them notice, and good reason that the notice be specific, and that the court be able to ascertain that non-parties have been suitably apprised of the risk of loss of confidentiality.

Quick additional observation, there MUST be a hearing on Crump's Motion to Determine Confidentiality, as not all parties agree with maintaining confidentiality.  [(e)(2) - Crump's Motion to Determine Confidentiality does not represents that all parties agree to all of the relief requested.  He represents that "the other confidential parties have indicated their objection and intention to intervene and be heard before the Court on this matter."]

Rule 2.420 appears to take confidentiality seriously (even if the clerk knows how to make selective leaks of confidential material), by including a risk of sanctions to the party who files confidential material.

(e)(6)     After notice and an opportunity to respond, the court may impose sanctions against any party or non-party and/or their attorney, if:

     (A)  the court determines that a designation made under subdivision (d) or a motion made under subdivision (d)(3) or (e) was not made in good faith and was not supported by a sound legal or factual basis, or

      (B) a document is filed in violation of subdivision (d)(2) or (d)(3).


If Crump, in his filing of Notice of Confidential Information, represents that material in the attached settlement agreement is (d)(1) material, he has done so without sound legal or factual basis.  This is very clear on a review of the list of (d)(1) material (which includes (c)(1-6) as well).  Given the sloppiness of Crump's motions, I doubt that he filed the requisite notice to non-parties when he filed the Notice of Confidential Information.  He definitely did not file the requisite notice to non-parties in the Motion to Determine Confidentiality.  His certificate of service on that only lists Nelson, Bernardo, and O'Mara.

I don't think Nelson will sanction Crump, but she has grounds to, and she has rules-based authority to do so.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #41 on: April 13, 2013, 01:34:14 PM »
Ahhh, a helpful guide indicates that "order is important," as I gathered from the rather convoluted presentation in the rules.

Guidance on Florida Rule of Judicial Administration 2.420 - The Real Property, Probate and Trust Law Section of the Florida Bar (RPPTL)

1. Determine if the pleading or paper contains confidential information.

2. Is the confidential information an exemption set forth at Florida Rule of Judicial Administration 2.420(d)(1)(B)?
If yes, file with the pleading or paper the "Notice of Confidential Information within Court Filing."

3. If the confidential information is not an exemption set forth at Florida Rule of Judicial Administration 2.420(d)(1)(B) then file a "Motion to Determine Confidentiality of Court Records." Florida Rule of Judicial Administration 2.420(e) is for civil matters. Florida Rule of Judicial Administration 2.420(f) is for criminal matters. Florida Rule of Judicial Administration 2.420(g) is for noncriminal appellate matters.

4. If any of the confidential information is as to an "affected non party" that individual must be served with the notice of the filing of the confidential information with the court.

5. Failure to comply may result in sanctions.


I'm poking around, looking for cases where sanctions were imposed for failure to abide by the rules.  But, as I mentioned before, that this was filed and at least partially leaked merits an inquest of its own.

Offline MJW

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #42 on: April 13, 2013, 09:44:56 PM »
I don't think a confidential agreement qualifies as a trade secret.

SUMMITBRIDGE NAT. INVS. v. 1221 Palm Harbor, LLC, 67 So. 3d 448 (Fla. 2d DCA 2011):

Quote
688.002(4), Fla. Stat. (2010). Not all business information falls within the privilege afforded to a trade secret.

[Trade secret] differs from other secret information in a business . . . in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount or other terms of a secret bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.

Seems to me a settlement is a single event, not something continuously used in the operation of the business.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #43 on: April 14, 2013, 04:13:24 AM »
I don't think a confidential agreement qualifies as a trade secret.

SUMMITBRIDGE NAT. INVS. v. 1221 Palm Harbor, LLC, 67 So. 3d 448 (Fla. 2d DCA 2011):

Seems to me a settlement is a single event, not something continuously used in the operation of the business.

The categorization can be argued either way, and I don't think the outcome matters.  Confidential Settlement Agreements are common, and courts see them from various directions, on a regular basis.  The justification for closure or revelation will be argued in terms of "Confidential Settlement Agreement," and now O'Mara has come in and added the element of discoverability and defendant's 6th amendment right.

Discoverability of Confidential Settlement Agreements in Insurance - ABA Section of Litigation Insurance Coverage Litigation Committee CLE Seminar, March 3-5, 2011

See under Section II. There Are a Variety of Reasons Parties to a Confidential Settlement Agreement May Want to Keep the Agreement Confidential, Part B. Commonly Asserted Insurer Reasons for Preventing Disclosure of Confidential Settlement Agreements.  There is a fairly long blockquote by some insurer, introduced by the remark, "disclosure of the
terms of the agreement may frustrate the insurer's broader commercial goals."

But I think my predictions of how Nelson will handle the dispute, and how the court will categorize Confidential Settlement Agreement are premature (that doesn't keep me from shooting off my mouth!), noting from this ABA publication that "it is not surprising that courts are quite often called upon to determine whether confidential settlement agreements of insurance coverage disputes are discoverable. The courts have decided the issue in three basic ways: finding the agreements discoverable; finding the agreements not discoverable; or balancing the interests of the various parties involved to determine whether the settlement agreement, or part of it, is discoverable."  I recommend reading this publication for background.

Separately, and probably my last remark on Crump's exposure if the filing of the Confidential Settlement Agreement was appropriate (and I think it is obvious and clear that the filing was not appropriate, and Crump ought to be sanctioned for filing it, even if he didn't screw up the procedural rules) but bolluxed:

Lawyers will be responsible for redacting confidential information in court filings - The Florida Bar - September 1, 2010

Lawyers who think a filing has information that should be kept confidential, but doesn't fall within one of the 19 automatic exemptions in the form, must file a separate motion asking a judge to keep that information from the public eye. ...

Similarly, if the clerk thinks a lawyer has wrongly claimed confidentiality under one of the 19 items in the confidential information form, the lawyer must be notified within five days. ...

There are also rules, Solomon said, for notifying nonparties about confidential information requests, and procedures for those nonparties to petition the court, either to keep information confidential or to make it public.

Offline cboldt

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Re: Motion to Unseal Court Filing (HOA Settlement)
« Reply #44 on: April 14, 2013, 04:38:41 AM »
More reading enjoyment.  Confidentiality of Settlement Agreements - Ulmer & Berne LLP

In Baella-Silva v. Hulsey, 454 F.3d 5 (1st Cir. 2006), the First Circuit affirmed a district court's jurisdiction over claims that the confidentiality provision of the settlement agreement was breached because the court had incorporated the settlement agreement into its order and expressly ordered it would retain jurisdiction over the settlement agreement. One of the attorneys filed a motion for disbursement of the settlement funds electronically, where it remained accessible to the public for about one hour before he took steps to seal the motion.  The court affirmed the district court's finding that the public filing was a breach of the agreement, and the attorney was required to pay the liquidated damages set forth in the contract.


How this all evolves will depend, in large part, on how hard the HOA insurer wants to play.

 

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