UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SIGNATURE PHARMACY, INC., a

Florida corporation; et al.,

Plaintiffs,

vs.

P. DAVID SOARES, an individual; et al.,

Defendants.

___________________________________/

CASE #: 6:08-cv-01853-GAP-GJK

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST

DEFENDANT P. DAVID SOARES FOR NON-DISCLOSURE AND INTENTIONAL

SHREDDING OF DISCOVERABLE DOCUMENTS AND BAD FAITH FILING &

INCORPORATED MEMORANDUM OF LAW

Plaintiffs, SIGNATURE PHARMACY, INC., ROBERT STAN LOOMIS,

KENNETH MICHAEL LOOMIS, NAOMI LOOMIS, KIRK CALVERT, and TONY

PALLADINO (“Plaintiffs”), by counsel and pursuant to this Court‟s inherent powers, Rules

30(d), 37(a) and 37(c) of the Federal Rules of Civil Procedure, and Local Rule 3.01, hereby

file this Motion for Sanctions against Defendant P. David Soares due to non-disclosure and

destruction of discoverable evidence and his bad faith filing of an Emergency Motion for

Protective Order [Doc. 397]. In support of this Motion, Plaintiffs state as follows:

I. INTRODUCTION.

1. In October 2008, at the initiation of the instant action, Plaintiffs served on

Defendant, P. DAVID SOARES (“Soares”), their First Request for Production of Documents

to Soares (“Request for Production”). A true and correct copy of the Request for Production

is attached hereto as Exhibit “A.”

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2. Included within the Request for Production, Plaintiffs sought documents

related to any investigations of Soares by any Bureau, Department, or Division of the State of

New York concerning allegations of misconduct. See Exhibit A at ¶ 35.

3. On January 12, 2009, Soares, through his then counsel, responded that a

“thorough inquest” concerning such an investigation had been conducted and that no

responsive documents existed. See Response to Plaintiffs‟ First Request for Production of

Documents to P. David Soares (“Response to Request for Production”) attached hereto as

Exhibit “B” at ¶ 35.

4. On or about May 9, 2012, the Supreme Court of the State of New York

Appellate Division, Fourth Judicial Department publically censured Soares as a result of

improper comments made by Soares to the media related to Albany County Judge Herrick‟s

decision to dismiss the Fifth Indictment against the individual Plaintiffs in this action due to

Defendant, ALBANY COUNTY DISTRICT ATTORNEY‟S OFFICE (“Albany DA”), and

Soares‟ conflict of interest. Soares‟ comments were found to be conduct that was prejudicial

to the administration of justice under Rule 8.4(d) of the New York Rules of Professional

Conduct. See 22 NYCRR 1200.0.

5. The Censure made reference to two prior letters of admonition received by

Soares for “making improper and prejudicial public statements regarding pending criminal

matters.” However, the Censure contained no specific information concerning the subject of

the prior letters of admonition or even their dates of issuance.

6. Soares never advised Plaintiffs of the existence of the letters of admonition.

To the extent they were received subsequent to providing Plaintiffs with Soares‟ Response to

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Request for Production, Soares never supplemented his Response to Request for Production.

7. Upon learning of the Censure of Soares, Plaintiffs promptly filed with this

Court their Motion to Reopen Discovery from Defendant P. David Soares Related to

Professional Discipline from Improper Media Comments (“Motion to Reopen Discovery”)

[Doc. 377]. Within Plaintiffs‟ Motion to Reopen Discovery, Plaintiffs specifically stated

their request as follows:

…Plaintiffs request the Court reopen discovery for the limited purpose

of allowing Plaintiffs to propound discovery upon Defendant Soares

regarding the Censure and the two (2) letters of admonition referenced

in the Censure. Specifically, Plaintiffs are seeking production of all

documents received or submitted by Defendant Soares during each of

the disciplinary proceedings that led to either a letter of admonition or

the Censure, and a limited deposition as to the existence and content of

the letters of admonition and Censure.

[Doc. 377 at ¶ 8].

8. In response to Plaintiffs‟ Motion to Reopen Discovery, without advising the

Court of the dates of two letters admonition, Soares asserted that Plaintiffs were barred from

the requested discovery because the disciplinary proceedings and documents related to the

two letters of admonition were confidential by operation of New York Judiciary Law 90[10].

[Doc 382 at pp. 4 -5].

9. On July 18, 2012, this Court conducted a hearing on Plaintiffs‟ Motion to

Reopen Discovery, at which counsel for Soares continued to advance the argument that the

disciplinary proceedings and documents related to the two letters of admonition were

confidential by operation of New York Judiciary Law 90(10). [Doc. 395 at 7:2 – 8:3].

10. This Court granted Plaintiffs‟ Motion to Reopen Discovery.

11. The deposition of Soares was thereafter noticed and the documents sought

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were identified within an Amended Notice of Taking Videotaped Deposition Duces Tecum.

[Doc. 397-1].

12. On August 22, 2012, only two days prior to Soares‟ scheduled deposition,

counsel for Soares contacted Plaintiffs‟ counsel proposing that the parties enter into a

confidentiality agreement concerning the first letter of admonition. On the same day, counsel

for Soares provided Plaintiffs‟ counsel with a proposed confidentiality agreement applying to

all documents concerning disciplinary proceedings of Soares.

13. On the eve of the deposition, Soares‟ counsel then filed with this Court his

Emergency Motion for Protective Order, seeking to protect the confidentiality of documents

related to those disciplinary complaints which did not result in a formal disciplinary

proceeding (i.e., the two letters of admonition). [Doc 397]. The clear implication of Soares‟

efforts to protect documents was that he was actually producing the letters of admonition.

14. Due to the purported emergency nature of Soares‟ Motion for Protective

Order, Plaintiffs‟ counsel was required to drop all matters, including preparation for the

deposition of Soares, to prepare and file a response to the Motion for Protective Order. [Doc.

398]. Magistrate Smith then conducted a hearing on the Motion for Protective Order within

hours of its filing and only minutes after the filing of the response by Plaintiffs. [Doc. 400].

15. At the hearing on the Motion for Protective Order, counsel for Soares again

argued that the disciplinary proceedings and documents related to the two letters of

admonition were confidential by operation of New York Judiciary Law 90(10). Once again,

the clear implication of Soares‟ efforts to protect documents was that he would be producing

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the letters of admonition.1

16. On August 24, 2012, Soares appeared in Albany, New York, for his

deposition related to the disciplinary proceedings. A true and correct copy of the deposition

transcript is attached hereto as Exhibit “C.”

17. For the first time, Soares advised counsel for Plaintiffs that he had shredded

the letters of admonition. Specifically, Soares testified as follows:

Q. All right. And so let me go through the seven categories of

documents and let the court know by your testimony if you

have, in fact, complied by this notice. No. 1 orders you to

produce two letters of admonition referred to in the censure of

the Supreme Court of the State of New York, Appellate

Division, Fourth Judicial Department, which is attached to the

Notice as Exhibit A. Have you produced those two letters of

admonition today?

A. No.

Q. Why?

A. I don‟t have them.

Q. Do you know what these letters are?

A. Yes.

Q. Okay. Why wouldn‟t you have the letters?

A. I don‟t have them.

Q. What did you do with them?

A. I discarded them.

1 While counsel for Soares indicated that some documents could not be located, it was never

represented that not a single document related to the two letters of admonition would be

produced and that the very letters of admonition had been shredded. Had that been Soares‟

position, there would have been no need for protective relief.

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Q. You what – you threw them in the trash can or you just – I

don‟t understand. Let me ask it this way. You personally

received two letters of admonition and you‟re telling the court

that you discarded them?

A. Yes.

Q. Did you put them in the trash can?

A. I shredded them.

Q. You shredded them. Why did you shred them?

A. I was aware of what they said and I felt no need to maintain

them.

Q. When did you shred the letters of admonition?

A. When I received them or close to in time.

Q. That same day?

A. I believe one I did the same day. And the other may have been

just through routine cleaning.

See Exhibit A at 8:19 – 10:4.

18. Soares also testified that prior to the filing of his Motion for Protective Order

and the hearing thereon, he had never even bothered to review the deposition notice to

determine if any responsive documents were in his possession, custody, or control. See

Exhibit C at 5:24 – 6:4.

19. Finally, at the deposition, counsel for Soares claimed that neither of them

were aware that the documents had been shredded by their client until the morning of the

deposition. See Exhibit C at 140:12-15 and 141:4-17. Thus, prior to the Emergency Motion

for Protective Order being filed, counsel for Soares apparently did not bother to ask Soares if

the documents were even going to be produced by him.

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20. The failure to produce the two letters of admonition in response to discovery

requests and the destruction of the two letters are sanctionable conduct by Soares under Rule

37 of the Federal Rules of Civil Procedure and this Court‟s inherent powers. Furthermore,

Soares‟ filing of an Emergency Motion for Protective Order related to documents which he

later claimed to not even possess was done in bad faith and is sanctionable pursuant to Rule

26 of the Federal Rules of Civil Procedure.

II. MEMORANDUM OF LAW.

Soares, an attorney and elected District Attorney, has engaged in a pattern of conduct

designed to, first, conceal the existence of discoverable documents and, second, to conceal

his destruction of the discoverable documents. In so doing, Soares has made a mockery of

the discovery process and compelled this Court and Plaintiffs to expend valuable resources in

motion practice and hearings related to documents which Soares admitted in his deposition

no longer existed. Soares and his counsel thought so little of Soares‟ discovery obligations as

to never even review the document request contained in the deposition notice to verify the

existence or non-existence of the documents before responding to a Motion to Reopen

Discovery and filing an Emergency Motion for Protective Order. Worst case, Soares

intentionally sought to destroy evidence and conceal its destruction.

A. This Court Should Sanction Soares For His Failure to Produce the Two

Letters of Admonition In Response to Plaintiffs’ Request for Production.

By his destruction of the two letters of admonition, Soares effectively concealed the

date of their issuance and their content from this Court and Plaintiffs. When asked at

deposition to testify about the date of his receipt of the second letter of admonition, which

directly concerned Soares‟ comments about Plaintiffs, and which form a basis for the

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defamation and injurious falsehood claims against him, Soares testified that he could not

even approximate when he received the letter. See Exhibit C at 57:22-24. However, the one

thing he could say with certainty was that the second letter of admonition was received after

the filing of the instant action. See Exhibit C at 58:18 – 21.

Soares‟ receipt of the second letter of admonition after the filing of the instant action

is significant because Plaintiffs‟ served their First Request for Production of Documents on

Soares contemporaneously with the filing of the instant action. See Exhibit A. Thus, at the

time that Soares received the second letter of admonition, he was aware that Plaintiffs had

sued him for defamation concerning the comments which were the express subject of the

second letter of admonition and had served him with a discovery request seeking documents

related to any investigations of Soares by any Bureau, Department, or Division of the State of

New York concerning allegations of misconduct. See Exhibit A at ¶ 35. Rather than

supplementing his discovery responses to include any documents related to the second letter

of admonition (such as the complaint or the letter itself), Soares simply shredded the letter

and apparently any documents related thereto.2

Soares‟ testimony is clear that he received the second letter of admonishment after the

filing of the instant action, and, therefore, after he was served with Plaintiffs‟ Request for

Production of Documents. The best case scenario for Soares is that he shredded the second

letter of admonishment after his response to Plaintiffs‟ Request for Production without

supplementing his response. However, such a scenario warrants the imposition of sanctions.

2 It is noteworthy that while Soares may claim he did not disclose the documents due to his

belief they were confidential pursuant to New York Judiciary Law 90[10], this argument is

fatally flawed. If Soares believed the documents to be privileged he had a duty to disclose

their existence in a duly served privilege log. Instead, Soares destroyed the documents.

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Rule 26(e) places upon a party the obligation to supplement disclosures and discovery

“whenever a party learns that its prior disclosures or responses are in some material respect

incomplete or incorrect.” See Fed.R.Civ. P. 26 Advisory Comm. Notes (1993). This Court

has recognized that sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure are

appropriately applied where a party fails to comply with Rule 26(e). See e.g., Bray &

Gillespie Management LLC v. Lexington Insurance Co., 2009 U.S. Dist. LEXIS 122196,

*58-59 (M.D. Fla. Aug. 3, 2009).

Accordingly, this Court should exercise its power pursuant to Rule 37 of the Federal

Rules of Civil Procedure to sanction Soares for either his failure to provide good faith,

truthful discovery responses or his failure to supplement his discovery responses.

B. This Court Should Sanction Soares Pursuant to Rule 37 for His

Spoliation of Evidence.

“Spoliation is the destruction or significant alteration of evidence, or the failure to

preserve property for another‟s use as evidence in pending or reasonably foreseeable

litigation.” Graff v. Baja Marine Corp., 2009 U.S. App. LEXIS 1986 (11th Cir. Feb. 2,

2009) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

Because spoliation undermines the integrity of the judicial process, it is strictly prohibited.

In diversity suits within the Eleventh Circuit, federal law governs the imposition of

spoliation sanctions. See, Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.

2005). However, the Eleventh Circuit does not set forth specific guidelines for dealing with

spoliation of evidence. Therefore, spoliation of evidence analysis is informed by the forum

state‟s spoliation law. Id. (“Federal law in this circuit does not set forth specific guidelines,

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therefore, we will examine the factors enumerated in [the forum state‟s] law.”).3

“Under Florida law, the remedy for a party failing to produce crucial but unfavorable

evidence that is destroyed or inexplicably disappears is an adverse inference or discovery

sanctions.” Optowave Co., 2006 U.S. Dist. LEXIS 81345 at *24. Nevertheless, a federal

district court retains broad discretion to sanction those who intentionally destroy relevant

evidence. Flury, 427 F.3d at 944 (“We have long acknowledged the broad discretion of the

district court to impose sanctions. This power derives from the court‟s inherent power to

manage its own affairs and to achieve the orderly and expeditious disposition of cases.”).

This Court should use its discretion, under both federal and Florida law, to impose the

strictest of sanctions against Soares for his spoliation of key evidence in this action.

Soares has unquestionably engaged in spoliation as set forth under relevant case law:

(1) the now-missing evidence existed at one time; (2) Soares had a duty to preserve the

evidence; (3) the evidence was critical to Plaintiffs‟ case; and (4) Soares acted in bad faith.

Optowave Co., 2006 U.S. Dist. LEXIS 81345 at *25; see also, Kimbrough v. City of Cocoa,

2006 U.S. Dist. LEXIS 87572, *14-15 (M.D. Fla. Dec. 4, 2006). Soares‟ misconduct, as

shown by the evidence, satisfies these factors.

Soares likely shredded the second letter of admonition concerning his media

comments regarding Plaintiffs to hinder Plaintiffs ability to discover evidence related to their

claims. The loss of this evidence hinders Plaintiffs‟ ability to determine the full measure of

Soares‟ misconduct related to his comments about Plaintiffs to the media.

3 St. Cyr v. Flying J Inc., 2007 U.S. Dist. LEXIS 42502, *7 (M.D. Fla. June 12, 2007);

Optowave Co. v. Nikitin, 2006 U.S. Dist. LEXIS 81345, *24 (M.D. Fla. Nov. 7, 2006); but

see Graff, 2009 U.S. App. LEXIS 1986, *6.

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The Court has broad discretion to sanction Soares for his spoliation, which has caused

unfair prejudice to Plaintiffs and undermined the integrity of the discovery process. Flury,

427 F.3d at 944 (noting that “sanctions for discovery abuses are intended to prevent unfair

prejudice to litigants and to insure the integrity of the discovery process”).4 District courts in

the Eleventh Circuit have a variety of sanctions in their arsenal, ranging from default

judgments to exclusion of evidence to adverse inference jury instructions to attorneys‟ fees

and costs. Id. at 945. Additionally, the Court may exercise its authority under Rule 37 to

sanction discovery abuses such as Soares‟ spoliation. Optowave Co., 2006 U.S. Dist. LEXIS

81345 at *23 (“Federal Rule of Civil Procedure 37 also authorizes a panoply of sanctions for

a party‟s failure to comply with the rules of discovery. … Although Rule 37(b) applies when

a party fails to comply with a court order, Rule 37(d)‟s requirement that a party participate in

discovery that is not regulated by the court expressly adopts most of the sanctions in Rule

37(b)(2), including the power to grant a default judgment.”).

Given the variety of sanctions available, the Court must choose the appropriate level

of sanctions necessary to punish Soares for his conduct. This Court may consider three

factors when determining the type of sanctions to issue for spoliation of evidence: (1) the

willfulness or bad faith of Soares; (2) the degree of prejudice sustained by Plaintiffs; and (3)

what is required to cure the prejudice. St. Cyr, 2007 U.S. Dist. LEXIS 42502 at *12-13.

First, Soares‟ willfulness and bad faith, or his “culpability,” far outweighs any

4 See also St. Cyr, 2007 U.S. Dist. LEXIS 42502 at *11-12 (“Federal courts possess the

inherent power to regulate litigation, and broad discretion to sanction litigants for abusive

practices. … If a court determines that a sanction for spoliation of evidence is warranted, the

„determination of an appropriate sanction … is confined to the sound discretion of the trial

judge, and is assessed on a case-by-case basis.‟” (quoting Optowave 2006 U.S. Dist. LEXIS

at *37)).

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culpability by Plaintiffs. See id. at *13 (“In addressing the bad faith factor in Flury, the

Eleventh Circuit „weigh[ed] the degree of the spoliator‟s culpability.‟” (quoting Flury 427

F.3d at 946)). In this instance, Soares is not only the more culpable party, he is the only

culpable party.

Second, Plaintiffs have suffered significant prejudice as a result of the destruction of

these discoverable documents. Additional evidence that may have further proved Plaintiffs‟

claims was disposed of by Soares – resulting in prejudice of the highest degree.5 Further, it

is impossible for this Court or the parties to know the extent of shredding done by Soares

related to this action. It is reasonable for this Court to infer that Soares, who failed to

disclose the existence of these documents as well as his intentional destruction thereof, might

have failed to disclose other documents or actions.

Third, only a significant sanction can cure the prejudice caused by Soares. Soares,

through his own wrongdoing, has denied Plaintiffs the opportunity to explore the

discoverable documents and other discovery that they might have pointed to had Soares not

shredded them.

The Court should allow Plaintiffs to submit evidence pertaining to Soares‟ destruction

of the discoverable documents and instruct the jury that it should determine that the spoliated

evidence was highly adverse to Soares. This Court should also deem those certain

paragraphs of Plaintiffs‟ Amended Complaint related to Soares‟ defamatory comments which

were the subject of the second letter of admonition as admitted by Soares and that such

5 St. Cyr, 2007 U.S. Dist. LEXIS 42502 at *14 (“„The most obvious and important type of

prejudice arises when a party blocks its opponent‟s access to evidence that the opponent

needs to fairly litigate a consequential issue, claim, or defense.‟” (quoting 7 Moore‟s Federal

Practice § 37.50[1][a] (3d ed. 2002))).

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admissions be set forth in the parties‟ soon to be filed Joint Pretrial Statement. Finally, in

addition to the other available sanctions the Court may and should enter against Soares,

Plaintiffs request that the Court grant their fees and costs incurred in (1) preparing and

hearing Plaintiffs‟ Motion to Reopen Discovery, (2) defending against Soares‟ Emergency

Motion for Protective Order, (3) determining that the evidence at issue had been spoliated,

and (4) bringing this Motion. These sanctions are authorized by Rule 37 of the Federal

Rules of Civil Procedure.

C. This Court Should Sanction Soares Pursuant to Rule 26(c)(3) for His Bad

Faith Motion Practice.

Rule 26(c)(3) of the Federal Rules of Civil Procedure provides that Rule 37(a)(5) is

to be applied to an award of expenses related to a motion for protective order. Rule

37(a)(5)(B) in turn provides that where a motion for protective order is denied the court

“must, after giving an opportunity to be heard, require the movant, the attorney filing the

motion, or both to pay the party . . . who opposed the motion its reasonable expenses incurred

in opposing the motion, including attorney‟s fees.” Only where the Court determines that

“the motion was substantially justified or other circumstances make an award of expenses

unjust” is the Court freed from the mandated award of costs. See Fed.R.Civ.P. 37(a)(5)(B).

Soares, through counsel, filed his Emergency Motion for Protective Order with the

Court seeking to protect the confidentiality of documents which Soares testified he had

shredded at some unknown time prior to the Motion. Furthermore, Soares filed his

Emergency Motion for Protective Order with this Court without even reviewing the

document request or his own records to determine if he had any of the documents. Simply,

Soares, through counsel, required Plaintiffs‟ counsel and this Court to drop everything to

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address an emergency that did not exist. Soares‟ Emergency Motion for Protective Order

was thus the embodiment of frivolousness in that it sought court action to protect that which

did not need protection as it had been shredded by Soares.6

As Soares cannot provide a substantial justification for filing an Emergency Motion

for Protective Order concerning documents which did not exist, sanctions must be awarded

by this Court. Plaintiffs expended substantial resources in attorney time conducting the good

faith conference concerning the Emergency Motion, in preparing a response thereto,

attending the hearing related thereto, and conducting an out-of-state deposition concerning

documents that had already been destroyed.

D. This Court Should Exercise Its Inherent Power to Sanction Soares for His

Misconduct in this Action.

In addition to the powers set forth in the Federal Rules of Civil Procedure, Federal

courts possess the inherent power to sanction parties who conduct litigation in bad faith or

who perpetrate a fraud upon the court. Chambers v. NASCO, Inc., 501 U.S. 32, 43-51

(1991); Vargas v. Peltz, 901 F. Supp. 1572, 1581-82 (S.D. Fla. 1995). “The key to unlocking

a court‟s inherent power is a finding of bad faith.” Allapattah Servs., Inc. v. Exxon Corp.,

372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) (citation omitted) (striking defendant‟s

affirmative defenses through inherent powers doctrine). Bad faith exists where a party

“[defiles the] very temple of justice” by committing a fraud on the court, or “knowingly or

recklessly raises a frivolous argument, delays or disrupts the litigation, or hampers the

6 It is noteworthy that Soares‟ counsel are not without blame in the filing of the frivolous

motion. To the degree that Soares had not reviewed the document request prior to the filing

of the Emergency Motion for Protective Order, it is also clear that counsel did not review it

with him prior to filing the Motion.

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enforcement of a court order.” Id. (citing Chambers, 501 U.S. at 46); See, Malautea v. Suzuki

Motors, Co., 987 F.2d 1536, 1545 (11th Cir. 1993) (quoting Hutto v. Finney, 437 U.S. 678,

689 n. 14 (1978) (finding that a court may appropriately sanction a party or attorney who

“shows bad faith by delaying or disrupting the litigation.”). The imposition of sanctions

under the inherent powers doctrine serves the dual role of “vindicating judicial authority” and

providing redress for the litigants who bear the brunt of a party‟s bad faith acts. See,

Chambers, 501 U.S. at 46. Although the courts‟ inherent powers should be exercised with

restraint, the courts have complete discretion to fashion appropriate sanctions for conduct

that abuses the judicial process. Id., at 44-45. As a result, a robust body of case law has

developed in which federal courts have employed various means to sanction parties for

assorted bad faith acts and unconscionable schemes.

Courts often invoke the inherent powers doctrine to strike defendants‟ answers and

enter default judgments. In Chemtall, Inc. v. Citi-Chem, Inc., 992 F. Supp. 1390, 1410 (S.D.

Ga. 1998), the defendant repeatedly lied under oath at deposition and produced misleading

documents in an effort to hinder plaintiff's efforts to collect a debt. To prove the defendant‟s

deception, the plaintiff conducted third-party discovery and confronted the defendant with

documents that contradicted his previous testimony. Id. at 1409. The court “unsheathed the

[proverbial] „samurai sword‟” and entered a default judgment against the defendant, finding

by clear and convincing evidence that he had engaged in abusive behavior, and finding that a

lesser sanction would not suffice given the defendant‟s actions. Id. at 1407-08, 1410; see

also, Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 126-27 (S.D. Fla. 1987)

(entering default judgment against defendant that purposely destroyed documents).

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In the present action, Soares withheld the existence of and at some point destroyed a

critical document, the letter of admonition concerning his media comments about Plaintiffs,

which was responsive to Plaintiffs‟ Document Request. Soares‟ concealment and destruction

was calculated to defraud Plaintiffs and, by extension, this Court. The letter of admonition is

a direct finding of misconduct by Soares in making the defamatory comments at the heart of

Plaintiffs‟ defamation and injurious falsehood claims, which Plaintiffs discovered by pure

chance when Soares was publically censured for continuing to make outlandish and

irresponsible media comments concerning Plaintiffs. Now, Plaintiffs discover that not only

did Soares fail to disclose the existence of the letter of admonition but that he shredded it.

Litigants ought to be able to rely upon the opposing party‟s discovery responses as

being truthful. In fact, Rule 26 of the Federal Rules of Civil Procedure imposes “an

affirmative duty to engage in pretrial discovery in a responsible manner.” “Those who lie,

evade and fail to tell the whole truth obviously enjoy an advantage over honest litigants.”

Chemtall, 992 F. Supp. at 1409. Taken alone, Soares‟ failure to produce the letter of

admonition warrants sanctions under the inherent powers doctrine. Taken together with

Soares‟ attempts to conceal his destruction of the letters of admonition and any related

documents through the filing of a frivolous Emergency Motion for Protective Order, Soares‟

bad faith actions warrant severe sanctions.

IV. CONCLUSION.

Soares admittedly shredded critical evidence, namely the letters of admonition and

the documents related thereto. Soares‟ destruction of the letters of admonition was

intentional and for no reason other than to hamper the Plaintiffs‟ ability to prove its case.

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Accordingly, Plaintiffs have been prejudiced by the loss of this evidence, and sanctions are

appropriate to cure the prejudice. Likewise, Plaintiffs have been harmed by Soares‟

prosecution of a frivolous emergency motion.

WHEREFORE, Plaintiffs request that this Court enter an Order sanctioning

Defendant, P. DAVID SOARES, as follows:

1. allow Plaintiffs to submit evidence at the trial of this action pertaining to

Soares‟ destruction of the discoverable documents;

2. instruct the jury that it should determine that the shredded evidence was

highly adverse to Soares;

3. strike those certain denials by Soares of Plaintiffs‟ Amended Complaint

allegations related to Soares‟ defamatory comments which were the subject of

the second letter of admonition;

4. award Plaintiffs‟ attorneys‟ fees and costs associated with the Motion to

Reopen Discovery, the Emergency Motion for Protective Order, and this

Motion for Sanctions; and

5. grant such other and further relief as this Court deems just and proper.

STOVASH, CASE & TINGLEY, P. A.

By: /s/ Amy S. Tingley

Amy S. Tingley, Esquire

Florida Bar No. 0068871

Robert J. Stovash, Esquire

Florida Bar No. 0760320

Scott A. Livingston, Esquire

Florida Bar No. 0126314

The VUE at Lake Eola

220 N. Rosalind Avenue

Orlando, Florida 32801

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Telephone: (407) 316-0393

Facsimile: (407) 316-8969

Attorneys for Plaintiffs

CERTIFICATE OF GOOD FAITH CONFERENCE

I certify that on August 27, 2012, pursuant to Local Rule 3.01, Scott A. Livingston,

Esquire, and Robert J. Stovash, Esquire, counsel for Plaintiffs conferred with Robert E.

Bonner, Esquire, counsel for Defendants, P. DAVID SOARES and ALBANY COUNTY

DISTRICT ATTORNEY‟S OFFICE, in a good faith attempt to resolve the issues raised by

this motion but the parties were unable to reach a resolution.

/s/ Scott A. Livingston_

Scott A. Livingston, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 28th

day of August, 2012, a copy of the foregoing

was filed with the Clerk of Court via CM/ECF, which will provide an electronic copy to:

DAVID A. JONES, ESQUIRE, Holland & Knight LLP, 200 South Orange Avenue, Suite

2600, Orlando, Florida 32801;

ROBERT E. BONNER, ESQUIRE, Meier, Bonner, Muszynski, O‟Dell & Harvey, P.A.,

260 Wekiva Springs Road, Suite 2000, Longwood, Florida 32779;

MIA D. VAN AUKEN, Esquire, Thorn, Gershon, Tymann And Bonnani, LLP

5 Wembley Court, Albany, NY 12212; and

BRUCE R. BOGAN, ESQUIRE, Hilyard, Bogan & Palmer, P.A., 105 E. Robinson Street,

Suite 201, Post Office Box 4973, Orlando, Florida, 32802.

/s/ Scott A. Livingston_

Scott A. Livingston, Esquire

Case 6:08-cv-01853-GAP-TBS Document 401 Filed 08/28/12 Page 18 of 18 PageID 17377