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Kassem v. Martin

United States District Court, M.D. Florida, Ocala Division

December 20, 2017

LYNN KASSEM, Plaintiff,
MATT MARTIN Defendant.



         The parties have filed a number of motions related to the upcoming hearing on Defendants' sanctions motions seeking to dismiss Plaintiff's Complaint and to disqualify Plaintiff's counsel. (Docs. 165, 167, 168, 169, 170).

         I. Plaintiff's motion to dismiss or deny as moot sanctions (Doc. 167)

         As an initial matter, the scope and continued viability of the sanctions motions (which were filed by all of the Defendants) have been called into question with the recent dismissal of the Connor Defendants, leaving only Plaintiff's claims against Defendant Matt Martin. Based on the dismissal, the Court entered an Order on December 8, 2017 directing the parties to confer and advise the Court regarding the status of the pending motions. (Doc. 160). The parties advised the Court that the motions were still at issue and that the hearing would proceed. (Doc. 163). But now, despite that, Plaintiff has more recently filed a motion to dismiss or deny the motions as moot. (Doc. 167). Plaintiff contends that the motions are mooted by the settlement since they primarily concern access to Defendant Connor's email by Plaintiff's minor daughter and the effect of such access on the Connor Defendants; and, that although Martin joined in the motions, he has not sustained any injury from the Connor email access, nor can he establish any future harm.

         Plaintiff's motion to dismiss or deny as moot (Doc. 167) is due to be DENIED. Although the motions focus primarily on the Connor Defendants (it was Debi Connor's email that was breached), the Court is satisfied that Martin has a sufficient interest in issues addressed by the motions. Indeed, at least one of the emails intercepted and sent by Plaintiff to Ms. Hartnett was from Connor to Martin. (Doc. 139-4 at 276). Moreover, the Court has the inherent power to sua sponte sanction parties or counsel for conduct that undermines the judiciary's ability to achieve the just, orderly, and expeditious disposition of cases. See Chambers v. NASCO, Inc., 501 U.S. 32, 42-44 (1991); Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205, 1212-13 (11th Cir. 2015); see also, Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002) (the Court has power to conduct an independent investigation to determine whether it has been the victim of fraud); In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) (the Court's “inherent power extends to a full range of litigation abuses”). The key to unlocking the Court's inherent authority to sanction is a finding of bad faith. Chambers, supra, 501 U.S. at 44-45; In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir. 2006).

         Here, the parties have submitted unrefuted evidence that Plaintiff had access to Defendant Connor's personal email for a period of time before and after this litigation was filed, and that Plaintiff shared intercepted emails with others, including Nicole Imbriglio and Taryn Hartnett (who is her lawyer's paralegal). This conduct is sanctionable. See e.g., Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1305-07 (11th Cir. 2009) (affirming district court exercising inherent authority and striking answer and counterclaim and entering default judgment as a sanction for improper interception of emails).

         Then, Plaintiff's deposition testimony-in which she attempted to downplay the significance of the access-was directly at odds with other record evidence. If, in fact, her testimony was dishonest, such conduct could also warrant sanctions. Finally, the involvement of the Chapman Law Group with the Connor email could be sanctionable. On at least four occasions Plaintiff sent emails from Ms. Connor's account to Ms. Hartnett. There is some dispute (actually between Plaintiff's deposition testimony and Ms. Harnett's affidavit) as to what actions Ms. Hartnett took, and when, and whether Mr. Chapman had knowledge of the access.

         The hearing is an opportunity for Defendant to tie up any loose ends related to the above conduct. It is not intended to be a repeat of the exact same evidence that has already been provided to the Court. There is no need for the parties to elicit duplicative testimony from witnesses who have already been deposed in this case. Nor does the Court intend to take evidence or hear argument on purported discovery violations within the ESI discovery period, unless it somehow bears on the above conduct. The hearing is a show cause hearing as to why sanctions should not be imposed on Plaintiff and her counsel: Defendant Matt Martin will have an opportunity to finalize its evidence and argument related to these issues (without the need to present duplicative or unrelated testimony) and Plaintiff and counsel will have an opportunity to be heard and present evidence in response.

         II. Defendant's motion to review content of Imbriglio's email account (Doc. 165)

         In efforts to prepare for the hearing, Defendant Martin seeks leave to review the content of Nicole Imbriglio's email account. (Doc. 165). The Court previously allowed specific ESI discovery including Defendant's access to Nicole Imbriglio's telephone and email information. See Doc. 115 at 14. Plaintiff, through her counsel, has asserted that Imbriglio was part of the Plaintiff's litigation team, and therefore, all communication in her email regarding the issues in litigation is protected by attorney-client privilege.

         Defendants had their ESI expert review the emails, and prepare, prior to delivering the emails to Defendants, a privilege log which identified and removed material which might be subject to the claimed attorney-client privilege. The remaining emails were then segregated and forwarded to defense counsel, who ceased review of the documents after discovering other potentially privileged communications. Defense counsel then returned all of the emails to the ESI expert. Mr. Chapman was advised of the turn of events and was provided with (at least a majority of) the emails. To date, Defendants have not reviewed the email.

         While Mr. Chapman may assert the privilege on behalf of Plaintiff, the privilege belongs to the client, and the client has the sole power to waive it. Under Florida law, a party asserting an attorney-client communication privilege must establish its applicability, including that the privilege was not waived. Batchelor v. Geico Casualty Company, 142 F.Supp.3d 1220, 1243 (M.D. Fla. 2015). In order to remain privileged, a communication must be made in confidence and kept confidential. Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003). Disclosure of privileged communications to a person outside the attorney-client relationship waives the protection of the privilege.

         At her deposition on October 3, 2017, Plaintiff testified that she did not use Nicole Imbriglio as her agent in relation to this litigation, and that Nicole Imbriglio was never asked to participate or do investigations as part of the litigation process, nor to gather information that was relevant to the litigation. (See Doc. 165 at 3-8). While Plaintiff argues that Defendant cherry-picked excerpts from the deposition, Plaintiff has failed to identify any specific testimony that supports the claimed privilege.

         As such, Plaintiff has failed to meet her burden to show that Plaintiff's communications with Imbriglio were subject to attorney-client privilege, and thus, any information she received is not protected as she was not a part of her litigation team. Once the communications were shared or communicated to Imbriglio, as a non-protected ...

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