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Farach v. Rivero

Florida Court of Appeals, Third District

October 30, 2019

Oscar Farach, et al., Petitioners,
v.
Marcus Rivero, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-16680 Jose M. Rodriguez, Judge.

          Farrell Patel Jomarron & Lopez, PLLC., Robin F. Hazel, and Jesmany Jomarron, for petitioners.

          Dorta Law, Gonzalo R. Dorta, and Matias R. Dorta, for respondent.

          Before SALTER, MILLER, and GORDO, JJ.

          MILLER, J.

         Petitioners, Oscar Farach, Jesmany Jomarron, and Jomarron Lopez, PLLC, seek certiorari relief from the denial of their motion to unseal the criminal arrest record of respondent, Marcus Rivero, in a pending defamation lawsuit. Petitioners contend the arrest record is integral to a vital defense, that of "truth." We conclude that petitioners have failed to demonstrate material injury, irremediable on appeal, hence, we dismiss the petition.

         FACTS AND BACKGROUND

         On August 4, 2015, Rivero was arrested in Miami-Dade County for trafficking in certain controlled substances. In early 2016, an anonymous blogger posted the following content on the Internet:

[Rivero] is a regular douche bag in the Miami area who thinks because he has been mentioned in a few TMZ articles and he thinks he's hot sh*t. Please put this fool in his place. He uses his shoe business as a disguise for selling drugs as you can see in his arrest.

         Approximately two months after the post appeared, Rivero obtained an order sealing his criminal court record, pursuant to section 943.059, Florida Statutes (2019). He then commenced a defamation lawsuit against the unknown blogger, identified at that time only as "John Doe." After conducting further investigation, Rivero amended his complaint to name Farach as the offending author.

         Farach retained Jomarron and the law firm of Jomarron Lopez, PLLC to represent him. Pursuant to the representation, Jomarron and the firm sent a "litigation hold" letter to Rivero's mother. Affixed to the correspondence was a copy of the blog post. Rivero then added Jomarron and the firm as defendants in the defamation suit, contending the disclosure of the blog post in conjunction with the litigation hold letter was tortious. Several iterations of the complaint and corresponding responsive pleadings followed, but suffice it to say, all respondents eventually asserted truth as an affirmative defense.

         After conducting preliminary discovery, petitioners moved in the trial court to unseal respondent's arrest record, asserting the information contained therein was relevant and material to their theory of defense. The lower tribunal denied the motion. The instant petition ensued.

         STANDARD ...


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