Murphy - Response to Petition for Writ 7-28-17-FINAL · this Response to Petition for Writ of...

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

Michael Connolly,

Petitioner,

vs. Case No. 5D17–1172L.T. Case No. 2017–CA–000168–O

Gabriel Murphy andGCM Holdings Ltd.,

Respondents.

/

RESPONDENTS’ RESPONSE TO PETITION FORWRIT OF CERTIORARI

COMES NOW, Respondents, GABRIEL MURPHY (“Respondent

Murphy”) and GCM HOLDINGS LTD (“Respondent GCM”) (together the

“Respondents”), by and through their undersigned counsel, pursuant to Florida

Rule of Appellate Procedure 9.100 and this Court’s order dated July 20, 2017, file

this Response to Petition for Writ of Certiorari (“Petition”), against MICHAEL

CONNOLLY (“Petitioner”), seeking dismissal of the Petition, and in support

thereof, asserts:

INTRODUCTORY SUMMARY

This Court should dismiss the Petition for lack of certiorari jurisdiction

because Petitioner failed to meet the high burden of demonstrating that Petitioner

is irreparably harmed and lacks any other adequate remedy of law. See Bared &

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Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (finding certiorari

review is only available “if it satisfactorily appears that no other adequate remedy

is afforded by law”) (citations omitted; original emphasis). Petitioner failed to

utilize, and has not exhausted, all (or even any) remedies at the trial court, such as

a motion for reconsideration or request for an evidentiary hearing. Dismissal is

appropriate (not merely a denial) as Petitioner failed to meet the minimum

threshold for this Court’s certiorari jurisdiction. Even if this Court finds that it has

jurisdiction, this Court should nevertheless deny the Petition because the Petitioner

waived his right to object by failing to comply with Rule 1.410(e) and because the

Order (defined herein) complies with the essential requirements of law.

STANDARD OF REVIEW

The Florida Supreme Court pronounced that “certiorari is an extraordinary

remedy and should not be used to circumvent the interlocutory appeal rule which

authorizes appeal from only a few types of non–final orders.” Reeves v. Fleetwood

Homes of Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004). For this Court to grant

certiorari review, the petitioner must prove: “(1) a departure from the essential

requirements of the law, (2) resulting in material injury for the remainder of the

case (3) that cannot be corrected on post judgment appeal.” Williams v. Oken, 62

So. 3d 1129, 1132 (Fla. 2011). The last two elements (referred as “irreparable

harm”) must be considered first to see if jurisdiction exists Id. If there is no

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irreparable harm, then the petition must be dismissed. See Nucci v. Target Corp.,

162 So. 3d 146, 151 (Fla. 4th DCA 2015).

Should the Court find irreparable harm and grant the extraordinary writ, then

the Court evaluates the first element on the merits. See Williams, 62 So. 3d at

1132. Meeting the first element for extraordinary relief is a tough standard

because:

“The required departure from the essential requirements of law meanssomething far beyond legal error. It means an inherent illegality orirregularity, an abuse of judicial power, an act of judicial tyrannyperpetrated with disregard of procedural requirements, resulting in agross miscarriage of justice. The writ of certiorari properly issues tocorrect essential illegality but not legal error.”

Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995) (citations

omitted)(finding “As a case travels up the judicial ladder, review should

consistently become narrower, not broader.”). Because certiorari review stems

from the sound discretion of the trial court, certiorari review is an abuse of

discretion standard of review. See Williams, 62 So. 3d at 1132.

Certiorari review is not de novo, and an appellate court does not substitute

its judgment for the lower court’s judgment on the substantial competent evidence

that was before the trial court when the order on appeal was rendered. See D.H. v.

State, 952 So. 2d 603, 605 (Fla. 1st DCA 2007). Nor is certiorari a substitute for an

appeal. See Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67, 71 (Fla. 1st DCA

2004).

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“Certiorari is not available to review every erroneous discovery ruling.”

Nucci, 162 So. 3d at 151. Certiorari is an extraordinary remedy that is available

only in limited instances. See Cotton States, 879 So. 2d 67. The purported

discovery error must be serious – not merely an error – to merit certiorari relief as

discovery is broad and relevancy is given wider application for discovering

information that may lead to admissible evidence. See Nucci, 162 So. 3d at 151.

STATEMENT OF THE CASE AND FACTS

The instant action from Orange County, in the Ninth Circuit of Florida, Case

No. 2017–CA–000168–O before the Honorable Christi L. Underwood (“Florida

Litigation”) centers around a deposition of a non–party/Petitioner, who was

subpoenaed to deposition in the county of his residence, which stems from the

underlying pending complex civil action in Johnson County District Court in the

Tenth Judicial Circuit of Kansas, styled Crowd Shout, Ltd. v. Westmark Capital,

LLC and Gabriel Murphy (which includes multiple counter–claims and Cross–

Claims by Respondent GCM including declaratory relief for unauthorized lawsuits

(Count II), tortious interference (Count IV, V, VI) and civil conspiracy (Count IX)

against additional parties outside of the Florida Litigation and this Petition, Case

No. 15CV00453 (“Kansas Litigation”). See [A–6], p. 11–12, 15–21 and 27 (also p.

217–218, 221–227 and 233 of 508).

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In the Kansas Litigation, the Plaintiff is purportedly Crowd Shout, Ltd

(“Crowd Shout”)1. See Supplemental Appendix [B–1]2 (“Memorandum in

Opposition”) [B–1], p. 1–3 (also p. 27–29 of 314). The Defendants are Westmark

Capital, LLC (solely owned by Respondent GCM) and Respondent Murphy. See

[A–1], p. 1 (also p. 7 of 508). The Cross–Claim Plaintiff is Crowd Shout

Holdings, Ltd. (“Holdings” or “CSH”), which is the sole owner of Crowd Shout.

The Cross–Claim Defendants and Defendants are Crowd Shout, Kevin John Perks

and Kevin John Perks’ then employer, Integrated–Capabilities, Ltd. See [A–6], p.

1 (also p. 207 of 508).

In the Kansas Litigation, Respondent Murphy’s Counterclaims include:

• Count I – Declaratory Judgment Regarding Validity of November StockTransfer as to Crowd Shout, Kevin John Perks, and Integrated–Capabilities,Ltd.

• Count II – Declaratory Judgment Regarding Validity of Herne Proxy as toCrowd Shout, Kevin John Perks, and Integrated–Capabilities, Ltd.

• Count III – Declaratory Judgment Regarding the Valid Directors of, andControl of, Crowd Shout and Holdings

1 Since January of 2015 and as detailed in his initial responsive pleading in theKansas Litigation (See Supp. A. [B–1], p. 1–2), Respondent Murphy hasasserted that Petitioner and his Manx–based fiduciary (Kevin John Perks) haveunlawfully usurped the legal standing of Crowd Shout. Respondents contendthat Petitioner (along with others) are the actual plaintiffs in the KansasLitigation.

2 All citations to Respondents’ Supplemental Appendix (Supp. A.) per Rules9.100(g) and 9.200 are designated by the symbol “[B–__],” which refers to theAppendix tab at which the document is contained. Additionally, any documentthat is a transcript in Petitioner’s Appendix will be cited in the same mannerexcept it will contain a page and line reference such as “[A–__] at pg:L”.

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• Count IV – Breach of Fiduciary Duty as to Kevin John Perks andIntegrated–Capabilities, Ltd.

See [A–4], p. 13–27 (also p. 67–73 of 508).

In the Kansas Litigation, Respondent GCM’s Cross–Claim Petition counts

include:

• Count I – Declaratory Relief as to Directors• Count II – Declaratory Relief as to Suits unauthorized• Count III – Money Had and Received as to Kevin John Perks and

Integrated–Capabilities, Ltd.• Count IV – Tortious Interference – Registrations as to Kevin John Perks and

Integrated–Capabilities, Ltd.• Count V – Tortious Interference – Expectancy as to Kevin John Perks and

Integrated–Capabilities, Ltd.• Count VI – Tortious Interference – Operations as to Kevin John Perks and

Integrated–Capabilities, Ltd.• Count VII – Declaratory Relief – Validity of Stock Transfer From Herne

Holdings, Ltd. to GCM Holdings, Ltd. – Cross Petition against Kevin JohnPerks and Integrated–Capabilities, Ltd. and Counterclaim against CrowdShout.

• Count VIII – Breach of Fiduciary Duty as to Kevin John Perks andIntegrated–Capabilities, Ltd.

• Count IX – Civil Conspiracy as to Kevin John Perks and Integrated–Capabilities, Ltd.

See [A–6], p. 10–27 (also p. 216–233 of 508)

Respondents agree with the general overview of the Petitioner’s statement of

the case and procedural posture. However, Respondents disagree with various

factual allegations as to the underlying legal dispute in the Kansas Litigation.

Respondents disagree with Petitioner’s (i) description of the duces tecum as having

no connection with the Kansas Litigation; (ii) Plaintiff’s claim of three (versus

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two) shareholders in Holdings; and (iii) the Board of Directors of Holdings (Kevin

John Perks, as director of Integrated–Capabilities, Ltd) not recognizing the Share

Transfer – when it was the very same Board of Directors, who at that time

approved of, and executed, the Share Transfer as the then directors of Respondent

GCM and Herne Holdings Ltd. (“Herne”). See Supp. A. [B–1], (“Memorandum in

Opposition”), “Exhibit C”, p. 37–39 (also p. 63–65 of 314). Rather, it is Petitioner,

as the 80% controlling shareholder of Digital Technology, LLC (“Digital”), who

repudiates the Share Transfer, the validity of which is the subject of the Kansas

Litigation. See [A–9] (incomplete copy)3, “Exhibit H”, p. 4 (also p. 368 of 508)

and Supp. A. [B–1] (complete copy), p. 18, ¶2–4 (also p. 44–45 of 314). The

original ownership structure of Crowd Shout prior to the Share Transfer is shown

below:

3 As shown from the Complete Docket History in the Florida Proceedings (SeeSupp. A. [B–8]), Respondent Murphy’s Motion to Compel Deposition (See Supp.A. [B–9]) is 103 pages in length (p. 176–278 of 314) with 15 exhibits (A–O).However, [A–9] of Petitioner’s Appendix (which purports to be a copy ofRespondents’ Reply in Opposition to Petitioner’s Motion for Protective Order &Motion to Compel Deposition) is only 65 pages (p. 311–375 of 508). Curiously,[A–9] of Petitioner’s Appendix omits the Affidavit of Service (defined herein)and excludes exhibits J, K, L, M, N and O.

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See Supp. A. [B–9], p. 3. At issue in the Kansas Litigation (among other things) is

the dispute of the Share Transfer of Herne’s shares. In the Share Transfer, GCM

acquired Herne’s shares and thus a controlling interest of Crowd Shout; however,

Digital (controlled by Petitioner) disputes the validity of the Share Transfer and

Respondent GCM’s controlling interest. See Supp. A. [B–9], p. 3–4 (also p. 29–30

of 314).

Petitioner accurately notes the main dispute between the parties is over the

validity of the Share Transfer from November 10, 2014, which is subject to the

terms of the Shareholders’ Agreement of Holdings, which is governed by the Laws

of the Republic of Malta (“Malta”). See Petition, p. 4, ¶2. Also on November 10,

2014, Crowd Shout held a board meeting whereby a resolution was passed

requiring a Notice of Indemnification Claim (“Claim”) be served upon Digital. See

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[A–5], “Exhibit C”, p. 1–2 (also p. 147–148 of 508), ¶B. The Notice cites various

violations of Petitioner’s non–compete agreement with Crowd Shout and seeks

indemnification under the terms of the Asset Purchase Agreement. See Supp. A.

[B–9], “Exhibit J”4 (p. 258–262 of 314). The Claim also asserts revenue

manipulation practices by Contech, LLC, which does business as Sonobi Media

(“Sonobi”). See [A–5], p. 19 (also p. 129 of 508), ¶137. As alleged in the record

by Respondent Murphy, at present, Sonobi owes a sizable payment of over

$370,440.805 to Crowd Shout. See [A–8], p. 2 (also p. 286 of 508), ¶6 and [A–2],

“Notice”, p. 5 (also p. 41 of 508), ¶30 and ¶36. The record demonstrates that

Petitioner is the Chief Executive Officer and material owner of Sonobi. See [A–8],

p. 2 (also p. 312 of 508), ¶4.

As alleged in the record by Respondent Murphy, at all times relevant hereto,

Third Party Defendant Kevin John Perks has also acted as Digital’s [controlled by

Petitioner] registered fiduciary in the Isle of Man and Malta, and takes instruction

from Petitioner in collateral litigation underway in the related jurisdictions

involving Respondents. See [A–7], p. 2 (also p. 236 of 508), ¶1. Respondent

GCM asserts that Petitioner and his Manx–based fiduciary have unlawfully

4 Omitted by Petitioner in [A–9] of Petitioner’s Appendix, see footnote 2 herein.5 Before statutory interest and the recovery of “all costs incurred, including

reasonable attorneys’ fees”, pursuant to the Sonobi Web Publisher Agreement.See [A–8], last page of “Exhibit A” (also p. 309 of 508), ¶19.

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usurped Crowd Shout’s legal standing and to this day, masquerades under the guise

of its authority. See [A–6], p.1 (also p. 207 of 508), ¶1. Leading up the Kansas

Litigation were continuing disputes as to the ownership of Crowd Shout between

Respondent GCM and Digital, including involvement of other parties and

[Petitioner’s attorneys] Cobb Cole, P.A, demonstrating Petitioner’s intricate web of

involvement in the Kansas Litigation. See, e.g., [A–4], [A–5], [A–6], [B–3], [B–

4].

In the Kansas Litigation, on or around February 3, 2015, Respondent

Murphy filed the Memorandum in Opposition, and on or around July 15, 2015,

Respondent GCM filed a Motion for Order to Show Cause (“Motion for Cause”).

See Supp. A. [B–2] (p. 148 – 153 of 314). Several weeks later, on or around

August 3, 2015, Respondent GCM filed Additional Suggestions in Support of

Intervenor’s Second Motion to Intervene (“Intervenor’s Additional Suggestions”).

See Supp. A. [B–3] (p. 154–156 of 314). Three days later, on or around August 6,

2015, Respondent GCM filed Further Suggestions in Support of Intervenor’s

Second Motion to Intervene (“Intervenor’s Further Suggestions”). See Supp. A.

[B–4] (p. 157–160 of 314). Later that year on or around December 9, 2015,

Respondent GCM filed GCM Holdings Ltd. Motion to Enforce (“Motion to

Enforce”). See Supp. A. [B–5] (p. 161–169). About two months thereafter and

after a hearing on the Motion to Enforce, the Kansas Court entered an order

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entitled “Journal Entry – Motions to Enforce” signed by the Judge and attorneys of

record (“Order to Enforce”). See Supp. A. [B–6] (p. 170 – 171 of 314).

In the Kansas Litigation, Respondent GCM issued a Subpoena Duces Tecum

for Deposition and Notice to Take Video–Taped Deposition of Non–Party Michael

Connolly and Exhibit “A” (together the “Notice of Deposition”). See [A–2]. The

Notice was served upon Petitioner by AMIC Process Services, LLC in Winter Park

on December 13, 2016 at 2:45 p.m., which affidavit of service was filed in the

Kansas Litigation on December 22, 2016 (“Affidavit of Service”). See Supp. A.

[B–7] (p. 172 of 314). The Affidavit of Service was also included as “Exhibit M”6

to Respondent Murphy’s Motion to Compel Deposition. See Supp. A. [B–7],

“Exhibit M”, p. 97 (also p. 272 of 314).

As a result of being served with the Notice of Deposition, on January 5,

2017, Petitioner initiated the Florida Litigation with his Complaint. Supp. A. [B–

8]. In addition, on or about January 5, 2017, Petitioner filed his Motion for

Protective Order as to the deposition of Petitioner in the Florida Litigation

(“Motion for Protective Order”). See [A–3]. On or about January 11, 2017,

Respondent Murphy filed his Reply in Opposition to Michael Connolly’s Motion

for Protective Order & Motion for Emergency Hearing to Compel Deposition &

6 Omitted by Petitioner in [A–9] of Petitioner’s Appendix, see footnote 2

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Order to Appear to Show Cause & for Sanctions (“Motion to Compel

Deposition”). See Supp. A. [B–9] (p. 176–278 of 314).

On or about February 28, 2017 in the Florida Litigation, Respondent

Murphy filed Additional Suggestions in Support of Motion to Compel Deposition

of Michael Connolly (“Additional Suggestions”), acknowledging that there were

various related lawsuits indirectly being commandeered presently by Petitioner

against Respondents in the Isle of Man and the Malta, which are intertwined with

the Kansas Litigation – particularly the Malta Proceedings, as to a pending judicial

declaration as to shareholder control of Plaintiff’s parent (Holdings) in the Kansas

Litigation. See [A–4], p. 21 (also p. 67 of 508).

On March 7, 2017, this Court held a non–evidentiary hearing on the Motion

for Protective Order and Motion to Compel Deposition (“Hearing”). See [A–17].

At the Hearing and to aid the trial, counsel for both the Petitioner and Respondents

furnished the court with a demonstrative aid depicting organizational charts for the

parties and related entities/parties at involved in the Kansas Litigation (the

“Demonstrative Aids”). See Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314) and

[A–17] at 12:6–25 and 13:1–11. Later in the Hearing and at the request of

Respondent Murphy, the undersigned withdrew the duces tecum from the

Subpoena without prejudice to avoid additional the briefing schedule for the duces

tecum requests and avoid further delay of the Deposition, which had been initially

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scheduled to occur over two months prior to the Hearing. See [A–17] at 45:23–25;

46:1–9.

Counsel for Petitioner sought to limit the scope, the use of the Deposition in

collateral litigation, time timeframe for which the Deposition had to occur, the

designation of Petitioner individually versus one of Petitioner’s companies, as well

as the methodology (video–tape) of the Deposition. See [A–17] at 25:5–19 and

47:23–25 and 50:3–24. When Petitioner’s counsel raised concerns over

Respondent Murphy putting the Deposition in “inappropriate places,” the

undersigned briefly conferred with Respondent Murphy and it was agreed that the

parties “would stipulate that it [Deposition] would not be put online”. See [A–17]

at 49:15–16. During the Hearing and at the conclusion of the Hearing, counsel for

Petitioner twice opined to the trial court that the rulings and safeguards for

Petitioner “seems fair”. See [A–17] at 48:15 and at 51:3.

The lower court properly noted that “what’s discoverable is not always

admissible” and that the trial court “wouldn’t want to foreclose another judge in a

different jurisdiction from making a decision about whether or not a deposition

testimony was admissible” since it “could be used for impeachment…” See [A–

17] at 51:10–15.

Over a month later/six weeks later, on or about April 17, 2017, as a result of

the ruling at the Hearing, the trial court entered its Order Compelling Deposition of

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Plaintiff, which included various safeguards/limitations for Petitioner’s Deposition

(“Order”). See [A–0]. As a result of the Order, Petitioner unilaterally choose the

date of his deposition to occur on April 24, 2017 – the last possible day for

Petitioner to comply with paragraph three (3) of the Order (“Deposition”). See [A–

0], ¶3.

However, just five (5) days prior to his scheduled Deposition on April 19,

2017, Petitioner filed his Emergency Motion to Stay Pending Appeal (“Emergency

Motion to Stay”). In response and on or around April 26, 2017, Respondents filed

Defendants’ Verified Response in Opposition to Plaintiff’s Emergency Motion to

Stay Pending Appeal (“Verified Response”). See Supp. A. [B–11] (p. 281–314 of

314). As a result of a hearing on the Emergency Motion to Stay, on May 4, 2017,

the trial court entered its Order Granting Emergency Motion for Stay Pending

Appeal (“Order Staying”).7

The factual disputed issue is whether the Order, which compelled

Petitioner’s Deposition, with numerous safeguards, is appropriate discovery

(assuming this Court gets past the jurisdictional hurdle and threshold issues

7 The Emergency Motion to Stay, the Verified Response, and the Order Staying arebeyond the scope of the Petition as they occurred subsequent to the Order onappeal. However, they are cited for context as to arguments/facts presented by thePetitioner which Respondents believe are outside the scope of the Petition andshould not be considered. See previously filed Respondents’ Motion to Strike withthis Court (which was denied) and Section II.D herein.

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including Petitioner’s waiver of objections) given the Petitioner’s intricate spider–

web involvement in the underlying dispute of the Kansas Litigation.

SUMMARY OF ARGUMENT

This Court should dismiss the Petition because this Court does not have

certiorari jurisdiction. Petitioner failed to meet the high burden of irreparable

injury to warrant an extraordinary writ as to a non–final discovery order regarding

a deposition of Petitioner. Petitioner failed to prove irreparable injury because he

did not exhaust all pre–trial remedies at the trial court level; nor did Petitioner even

allege such in the Petition.

Even if this Court determines that the Petitioner made a prima facie showing

of irreparable harm in the Petition to have jurisdiction to review on the merits, this

Court should deny the Petition because Petitioner failed to demonstrate prima facie

a departure from the essential requirements of law on the merits. Rather, the trial

court properly exercised discretion to enter the Order with proper safeguards in

place for Petitioner that complies with the essential requirements of the law.

Importantly and as a threshold issue, the Petition is without merit as the

Petitioner failed to timely file an objection or motion for protective order within

ten (10) days of being served with the Notice of Deposition per Florida Rule of

Civil Procedure 1.410(e)(1). Because the Petitioner failed to timely object or seek

relief, any redress with this Court of the Order is fruitless.

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In addition, the trial court properly determined the Deposition was relevant

and necessary to allow Respondents to discover information that could lead to

admissible evidence. The Petitioner – as a non–party – cannot object as to

relevancy and did not prove the Deposition was a ‘fishing expedition’ for the

purpose of annoyance, embarrassment, oppression, or undue burden/expense. The

duces tecum component was withdrawn by Respondents without prejudice and not

included in the Order on appeal; thus, all arguments as to the duces tecum are

irrelevant, not ripe, and outside the scope of this Petition. Moreover, the purported

‘bad acts’ of Respondent Murphy are entirely irrelevant to this certiorari review

and outside the scope for determining whether the Order complied with the

essential requirements of the law. Accordingly, this Court should dismiss the

Petition for lack of jurisdiction, or in the alternative, deny the Petition on the

merits.

ARGUMENT TO DISMISS PETITION,OR IN THE ALTERNATIVE, DENY THE PETITION

I. This Court Should Dismiss the Petition For Lack of CertiorariJurisdiction Because Petitioner Failed to Prove Irreparable InjuryBy Being Deposed.

This Court should dismiss the Petition because this Court does not have

jurisdiction as Petitioner failed to meet the high burden and minimum threshold of

irreparable injury. Appellate grants of writs of certiorari are very few and far

between, to wit:

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“writ provides a remedy only if the petitioner meets the heavy burdenof showing that a clear departure from the essential requirements oflaw has resulted in otherwise irreparable harm, it is extremely rarethat erroneous interlocutory rulings can be corrected by resort tocommon law certiorari. It is anticipated that because the most urgentinterlocutory orders are appealable under this rule, there will be veryfew cases in which common law certiorari will provide relief.”

Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 155 (Fla. 4th DCA 1996) (citing to

Fla. R. App. P. 9.130 (1977 Committee Notes); original emphasis).

This Court must evaluate the “two indispensable ingredients to common law

certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable

injury to the petitioner that cannot be corrected on final appeal (2) caused by a

departure from the essential requirements of law.” Bared & Co., Inc. v. McGuire,

670 So. 2d 153, 156 (Fla. 4th DCA 1996). Indeed, for the first prong as to

irreparable injury to determine if this Court has jurisdiction to move to the second

prong on the merits, the Petitioner must prove “the absence of an adequate remedy

by appeal or writ of error or other remedy afforded by law.” Id. at 155. Here, this

Court should dismiss the Petition because Petitioner failed to meet his burden and

minimum threshold warranting dismissal of the Petition.

A. No Irreparable Injury Exists Because Petitioner Failed to ExhaustAll Pre–Trial Remedies at the Trial Court.

This Court should dismiss the Petition because Petitioner failed to meet the

high burden of irreparable harm because he did not exhaust all pre–trial remedies

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at the trial court level; nor did Petitioner even allege he did so in the Petition. See

Petition.

In Florida, “[b]ecause the trial court retains inherent authority to

reconsider... any of its nonfinal rulings prior to entry of the final judgment, a

motion for reconsideration may be filed at any time before the entry of final

judgment.” Seigler v. Bell, 148 So. 3d 473, 479 (Fla. 5th DCA 2014) (citing to

Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998)). Undoubtedly, “a trial

court may sua sponte reconsider and amend or vacate its interlocutory orders prior

to final judgment.” Id.; see also Bettez v. City of Miami, 510 So. 2d 1242, 1243

(Fla. 3d DCA 1987)(“It is well settled in this state that a trial court has inherent

authority to reconsider, as here, any of its interlocutory rulings prior to entry of a

final judgment or final order in the cause.”).

In fact, because Petitioner has pre–trial remedies with the trial court (which

the trial court has the authority to consider prior to final judgment), Petitioner, by

definition, cannot demonstrate irreparable injury. See Arnone v. State, 701 So. 2d

577, 579 (Fla. 2d DCA 1997). In Arnone, the Second DCA dismissed the petition

for writ because the Petitioner “has a possible pretrial remedy in the trial court, as

well as a right to raise the issue on any subsequent direct appeal.” Id.

Here, Petitioner had/has numerous pre–trial remedies at the trial court level

that were not pursued. Missing from the record is, including, without limitation:

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• a motion for reconsideration (during the six (6) weeks–plus time period

from the Hearing to the Order or during the approximate month time

period from the Order to the Deposition);

• a request for evidentiary hearing as to the purported ‘bad acts’ of

Respondent Murphy that may warrant further restrictions on the

Deposition;

• a request for extended briefings as to any of the objectionable terms of

the ruling/Order [as the trial judge initially ruled as to the duces tecum

request for the Deposition (before the duces tecum was withdrawn by

Respondent GCM without prejudice)];

• a motion to quash (within 10 days of the service date of the rescheduled

Deposition); or

• a new/renewed motion for protective order (within 10 days of the service

date of the rescheduled Deposition) based upon the additional complaints

that are now addressed in the Petition but which were not addressed at

the trial court level (such as Respondent Murphy not being in

attendance).

Any of the above trial court remedies could possibly provide Petitioner with relief

to avoid purported irreparable injury at the Deposition. However, no such relief

was ever pursued by Petitioner at the trial court. Instead, Petitioner went from the

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[first] Order on the Deposition to this Court, without any intermediary trial

attempts to cure the purported errors of law or fundamental concerns. This failure,

in and of itself, is sufficient to dismiss the Petition for lack of jurisdiction. See

Arnone, 701 So. 2d at 579.

In addition to filing various pleadings, Petitioner had trial court remedies at

the actual Deposition he could have invoked without necessitating this Petition

seeking an extraordinary writ. During the Deposition, counsel for Petitioner could

have instructed Petitioner not to answer to preserve a privilege, to enforce a

limitation on evidence directed by the court from the Order, or to present a motion

to terminate or limit the Deposition because the “examination is being conducted

in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress”

Petitioner. Fla. R. Civ. P. 1.310(c) & (d). Indeed, these remedies could be utilized

to protect Petitioner’s fear of ‘cat out of the bag’ material, further illustrating that

there is no irreparable injury. Due to the Petition and the Order Staying, the

Deposition has yet to occur. Thus, Petitioner had additional trial court remedies

that could cure the alleged irreparable injury demonstrating that this Court does not

have jurisdiction because Petitioner did not exhaust all trial court remedies before

expending this Court’s time and financial resources unnecessarily. See Arnone, 701

So. 2d at 579.

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Accordingly, this Court should dismiss the Petition because this Court does

not have jurisdiction. Petitioner failed to meet the high burden to overcome the

extremely rare finding of irreparable injury sufficient for appellate review of a

non–final discovery order that can be remedied at the trial court level.

II. Even if this Court finds it has Jurisdiction, this Court ShouldNevertheless Deny the Petition on the Merits Because PetitionerFailed to Show the Order Departed from Essential LegalRequirements.

Even if this Court determines that the Petitioner made a prima facie showing

of irreparable harm in the Petition to have jurisdiction to review on the merits, this

Court should deny the Petition because Petitioner failed to demonstrate prima facie

a departure from the essential requirements of law on the merits. After

determining that the Petition meets the threshold of a prima face showing of

irreparable harm, this Court must determine “whether the order is a departure from

the essential requirements of law.” Bared, 670 So. 2d at 156.

Certiorari should be denied because the Order does not depart from the

essential requirements of law; rather the Order provides adequate safeguards and

limitations to ensure proper protections and “use for legal, valid purposes”. In fact,

when the trial court was fashioning the language to be included in the Order,

counsel for Petitioner agreed that it “seemed fair.” See [A–17] at 51:3. Curiously,

what was considered a fair ruling for Petitioner in the trial court at that time is the

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exact same ruling Petitioner now complains is not only unfair but also is a

departure from the essential requirements of law.

A. Trial Court Properly Exercised Discretion to Compel theDeposition Because Petitioner Waived Objections to DepositionBy Failing to File Objection/Motion for Protective Order Within10 Days of Service Per Rule 1.410.

As a threshold issue, this Court should deny the Petition because the trial

court properly compelled the Deposition of Petitioner per the Order (with

safeguards) because Petitioner waived his right to object by failing to file an

objection or motion for protective order within ten (10) days of service of the

Notice of Deposition.

A party may compel by subpoena the deposition of any non–person and

record by video the deposition of that non–party. See Fla. R. Civ. P. 1.310(a) and

(b)(4). Should the non–party have objections to the deposition or information

requested, such non–party must file an objection/motion for protective

order/motion to quash subpoena within ten (10) days of service of the notice of

deposition (or sooner if the deposition is set to occur in less than ten (10) days).

See Fla. R. Civ. P. 1.410(e)(1). If the subpoenaed non–party timely objects or files

a motion to quash or protective order within the ten (10) days after receiving

service of the subpoena, then the party issuing the subpoena must obtain a court

order allowing the deposition to take place. See Fla. R. Civ. P. 1.410(e)(1). Absent

a timely objection within the ten (10) days after service of the subpoena for

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deposition, the non–party is not entitled to protection from the court and may be

held in contempt for failing to appear at the deposition. See Fla. R. Civ. P.

1.410(f).

Should the deponent “not show by a timely motion to quash that the

subpoena duces tecum requested by petitioner is ‘unreasonable and oppressive’ as

required by Fla. R. Civ. P. 1.410(b) nor show by a motion for a protective order

that good cause is present to limit or prohibit the discovery sought by petitioner

due to ‘annoyance, embarrassment, oppression, or undue burden or expense’ as

required by Fla. R. Civ. P. 1.280(c),” then the deposition shall proceed as noticed.

Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107, 107 (Fla. 2d DCA 1977)

(reversing an order quashing a subpoena duces tecum and protective order).

Failure to timely file an objection/motion for protective order within ten (10)

days of service waives the deponent’s objections. Id.; see also Ins. Co. of N. Am.

v. Noya, 398 So. 2d 836, 838 (Fla. 5th DCA 1981) (referencing the Donn Mott

case, stated “Failure to take such timely action waives these objections”).

Although failing to timely object still allows a party to assert a privilege or

exemption outside of permissible discovery, “Rule 1.140(b) and (c) expressly

require a party to file timely motions to quash, or for a protective order, or written

objections, in order to limit discovery of documents and materials otherwise within

the scope of discovery.” Id.

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Here, Petitioner failed to timely file an objection/motion for protective order

thus waiving his arguments/objections to the Deposition proceeding. As shown in

the complete docket history for both the Kansas Litigation and the Florida

Litigation, there was never any attempt by Petitioner to quash the Deposition. See

Supp. A. [B–0] (p. 5–26 of 314) and Supp. A. [B–8] (p. 173–175 of 314). The

Petition and requests therein are inappropriate because the Motion for Protective

Order was not timely made within the ten (10) days after service of process on

Petitioner of the subpoena for his deposition.

Petitioner was validly served with the Notice of Deposition by AMIC

Process Services, LLC in Winter Park on December 13, 2016 at 2:45 p.m. for the

Deposition scheduled on January 6, 2017. See Supp. A. [B–7] (also p. 172 of 314).

Petitioner was, therefore, required to file an objection to his appearance at the

Deposition no later than December 23, 2016. See Fla. R. Civ. P. 1.410(e)(1).

Petitioner failed to do so. See [A–3] and [B–8].

In fact, Petitioner failed to file any objection or his Motion for Protective

Order to his deposition until the day prior to the Deposition – mere hours before

the Deposition was to take place. See [A–3]. Therefore, Petitioner waived his

objection to appear at the deposition and was properly compelled by the trial court

to appear for his Deposition.

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Moreover, a non–party that makes a timely objection is not entitled to a

protective order quashing the requirement to appear at the deposition unless the

non–party presents a factual showing by affidavit or otherwise of why a subpoena

is unreasonable or oppressive as to the non–party. See Sunrise Shopping Center,

Inc. v. Allied Stores Corp., 270 So. 2d 32, 34 (Fla. 4th DCA 1972). If no facts are

presented to the trial judge, then she has no basis on which to grant a motion to

quash or protective order as there would be no basis for that judge to invoke her

broad judicial discretion over the discovery issue. Id.

Here too, Petitioner fails. The Petitioner’s late–filed Motion for Protective

Order was not verified. [A–3] No affidavits were filed/submitted. Supp.A. [B–8].

At the Hearing, Petitioner failed to personally appear, resulting in no evidence or

factual testimony being present8. There was no factual basis at the Hearing for the

trial court to even attempt to make a ruling on the waived objections from the

untimely Motion for Protective Order.

Accordingly, on this issue alone for failure to comply with Rule1.410 (both

for timely relief and lack of facts presented to trial court), this Court should deny

the Petition allowing the Deposition to proceed per the Order.

8 See [A–17] at 2:16, showing Respondent Murphy as the only party present for theHearing.

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B. Trial Court Properly Exercised Discretion to Compel theDeposition Because the Purpose of Petitioner’s Deposition is forObtaining Relevant Discovery.

This Court should find that the trial court properly compelled the Deposition

of Petitioner because discovery is broad at the trial court level and the Deposition

sought relevant discovery. In civil matters:

“Parties may obtain discovery regarding any matter, notprivileged, that is relevant to the subject matter of the pendingaction, whether it relates to the claim or defense of the partyseeking discovery or the claim or defense of any other party,including the existence, description, nature, custody, condition,and location of any books, documents, or other tangible thingsand the identity and location of persons having knowledge ofany discoverable matter. It is not ground for objection that theinformation sought will be inadmissible at the trial if theinformation sought appears reasonably calculated to lead to thediscovery of admissible evidence.”

Fla. R. Civ. P. 1.280(b)(1). Certainly, “[d]iscovery scope in civil cases must be

relevant to the subject matter of the case and must be admissible or reasonable

calculated to lead to admissible evidence.” Allstate Insurance Co. v. Langston, 655

So.2d 91, 94 (Fla. 1995).

Should a party or non–party believe the requested discovery goes beyond the

scope, such person has grounds of relief via a motion for protective order, to wit:

“Upon motion by a party or by the person from whomdiscovery is sought, and for good cause shown, the court inwhich the action is pending may make any order to protect aparty or person from annoyance, embarrassment, oppression,or undue burden or expense that justice requires.”

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Fla. R. Civ. P. 1.280(c) (emphasis added). The reasons for preventing a deposition

are limited to annoyance, embarrassment, oppression, or undue burden/expense –

not relevancy of the requested deposition. Id. Indeed, “a non–party who challenges

discovery may not contend that the materials sought are not relevant to the

underlying action.” Dade County Med. Ass'n v. Hlis, 372 So. 2d 117, 121 (Fla. 3d

DCA 1979) (finding exception to the general rule where a medical association has

an independent claim of confidentiality regarding medical records) (emphasis

added).

Thus, here, the Petitioner’s argument that the Deposition is not relevant is

moot as he cannot make such claim as a non–party. See Dade County, 372 So. 2d

at 121. Petitioner does not fall within the limited exceptions to the rule as he has no

independent grounds in which to claim an objection on relevancy; nor has

Petitioner alleged such exception. Rather, Petitioner falls within the general

category of being unhappy to be brought into litigation and being deposed as a

non–party. Florida provides litigants with the ability to discover information that

“appears reasonably calculated to lead to the discovery of admissible evidence.”

Fla. R. Civ. P. 1.280(b)(1).

Again, “[o]rdinarily, orders denying discovery are not reviewable by

certiorari because the harm from such orders can generally be rectified on appeal.”

Toomey v. N. Tr. Co., 182 So. 3d 891, 893 (Fla. 3d DCA 2016) (citations omitted).

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Of course, the exception to the general rule exists where “discovery orders cause

irreparable injury.” Id. (citation omitted). In Toomey, the Court found that such an

exception existed when “the denial of leave to perpetuate testimony by a terminally

ill person is a matter which may be entertained by petition for writ of certiorari.”

Id. No such extreme level of severity exists in this case as Petitioner is simply

trying to further limit the trial court’s Order, which already limited and properly

addressed obtaining relevant discovery.

Here, the trial court determined after the lengthy Hearing regarding the

complex Kansas Litigation, including numerous causes of action including tortious

interference and civil conspiracy, that the Deposition was reasonable, legitimate,

and relevant to the Kansas Litigation and/or was reasonably calculated to lead to

admissible evidence. See A–0, Order on appeal. The same continues to hold true

given the extensive number of causes of action and related parties and entities at

issue in the Kansas Litigation, evidenced in part by the extensive causes of action

at issue and in part by the Demonstrative Aids that were furnished to this trial court

for consideration at the Hearing – with the consent of both attorneys of record. See

Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314).

Despite relevancy being irrelevant for a non–party, the trial court already

ordered a relevancy protection in the Order by including in paragraph five (5) the

statement that “[p]laintiff’s deposition testimony is ordered in the Johnson County,

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Kansas litigation, case number 15–CV–00453, which may be used for any legal,

valid purpose in litigation, including collateral litigation proceedings as long as it is

consistent with, and subject to Federal, State, and/or applicable rules of evidence.”

See A–0, Order ¶5. The trial court made clear at the Hearing that the Deposition

was ordered for the Kansas Litigation upon Petitioner’s counsel clarifying that it

was not for purposes of the Malta Litigation. See [A–17 at 47:12–16]. The

Deposition is therefore already limited to what is relevant in the Kansas Litigation.

Petitioner primarily argues that the Deposition and duces tecum are a

“fishing expedition” to a non–party. As to the purported “fishing expedition,”

Petitioner primarily supports his argument by (a) the duces tecum requests; and (b)

one sentence [partial argument] in the Hearing transcript by the undersigned.

As to the duces tecum, which was withdrawn at the Hearing by Respondent

GCM without prejudice, all arguments by Petitioner in the Petition are premature

and not ripe as the duces tecum is not at issue in the Order or at all at this

procedural posture – assuming that the trial court can overcome Petitioner’s failure

to timely object per Rule 1.410(e). Only if and when Respondent GCM decides to

pursue the duces tecum portion of the Deposition would Petitioner need legal

redress – which can and should be done at the trial court level, not for appellate

determination for the first examination. If and when such does occur, Petitioner’s

objections should be denied as Petitioner failed to timely objection per Rule

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1.410(e). Because the Respondent GCM withdrew the duces tecum portion

without prejudice and the Order compelled the Deposition without the duces

tecum, the trial court has not even had the first opportunity to review and make a

factual determination (should it deem worthy given Petitioner’s failure to timely

object). Petitioner is, in essence, asking this Court to become the trier of fact as to

the legal sufficiency of the duces tecum when the trial court has not been afforded

such opportunity yet. Thus, all arguments in the Petition as to the duces tecum are

not ripe for determination and this Court is without jurisdiction to make any

determination on the same.

As to the Deposition scope and the undersigned’s quoted sentence, although

the undersigned did make the statement cited in the Petition, the undersigned also

provided an extensive explanation (when later given the opportunity to respond in

detail) to the trial court. The specific answer as to ‘additional causes of action’

was “In part, yes, Your Honor.” See [A–17] at 37:16. Admittedly, on February 28,

2017, Respondent Murphy filed his Additional Suggestions, acknowledging that

there were various related court actions indirectly initiated by Petitioner underway

against Respondents in the Isle of Man and Malta, which are intimately intertwined

with the Kansas Litigation – particularly the Malta Litigation as to declaratory

relief as to shareholder control of plaintiff’s parent (Holdings) in the Kansas

Litigation. See [A–4], p.21 (also p. 67 of 508), “Count I”. However, contrary to

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the assertions in the Petition, nowhere in the Additional Suggestions does it state

that the Deposition is for use solely or exclusively for the Malta Proceedings;

rather the Additional Suggestions consistently state the need for the Deposition for

use in the Kansas Litigation and the Malta Proceedings.

Interestingly, counsel for Petitioner also acknowledged the intimate

relationship between the Malta Proceedings and the Kansas Litigation at the

Hearing, arguing that there was, in essence, (although not true) a stay in the Kansas

Litigation while the Kansas court waited to hear the outcome from the Malta

Litigation. See [A–17] at 21:10–14,17–18. Because there has never been any

court order (or any request by the parties) in Kansas Litigation staying that

proceeding, the instant trial court was able to make a determination of the

Deposition at the Hearing to result in the Order. See [A–0]. Thus, to the extent that

the Deposition may be indirectly used in other proceedings is not, in and of itself,

determinative in the generic sense of a ‘fishing expedition.’

Even if the intertwining of the five (5) related court actions underway in

Kansas, the Isle of Man and Malta may be deemed to be included under the

umbrella of a ‘fishing expedition,’ the undersigned clarified at the Hearing there

were numerous other related reasons justifying the Deposition specifically related

and targeted upon the Kansas Litigation. See [A–17] at 38:5–17.

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At the Hearing (evidenced by the Hearing transcript, [A–17]), the

undersigned articulated numerous reasons and justifications for the necessity and

relevancy of the Deposition of Petitioner, including, without limitation:

• Page 5, lines 13 – 18• Page 10, lines 4 – 13, lines 18 – 20• Page 11, lines 15 – 21• Page 14, lines 12 – 25 and continuing on page 15, lines 1 – 6• Page 16, lines 3 – 7• Page 16, lines 20 – 25 and continuing on page 17, lines 1 – 9• Page 27, lines 21 – 25 and continuing on page 28, lines 1 – 11• Page 28, lines 16 – 21• Page 28, line 25 and continuing on pages 29, 30 and page 31, lines 1 – 19• Page 33, lines 17 – 25 and continuing on page 34, lines 1 – 8• Page 34, line 25 and continuing on page 35, lines 1 – 11 and lines 15 – 18• Page 36, lines 21 – 25 and continuing on page 37, lines 1 – 11• Page 38, lines 5 – 17

See [A–17], Hearing transcript.

Moreover, there are numerous pleadings in the record which directly tie

Petitioner to the causes of action and related factual issues in the Kansas Litigation

and thus the Florida Litigation. In Respondent Murphy’s initial pleading filed on

February 3, 2015 in the Kansas Litigation (“Memorandum in Opposition”), the

specific references to Petitioner (and Digital) which identify the connections

between Petitioner and the Kansas Litigation, are found on, without limitation, on:

• Pages 3 – 4; and• Second paragraph on page 16; and• Last paragraph on page 18 and first paragraph on page 19.

See [B–1], (p. 27–147 of 314) – Memorandum in Opposition.

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Other glaring examples of the intimate ties between Petitioner, Digital and

Sonobi to the Kansas Litigation and the direct damage caused to Respondent GCM

by Petitioner’s actions are also detailed within Respondent GCM’s Intervenor’s

Additional Suggestions and specifically within ¶4–7, p. 2 (also p. 155 of 314) of

Supp. A. [B–3]. In Respondent GCM’s Intervenor’s Further Suggestions,

Respondent GCM alleges that Petitioner’s instruction of plaintiff’s counsel in the

Kansas Litigation and Petitioner’s role in the civil conspiracy tortuously interferes

with the operations of Crowd Shout. See Supp. A. [B–4] (Intervenor’s Further

Suggestions) ¶2–8, p. 1–3 (also p. __ of 314). Intervenor’s Further Suggestions

also alleges the concert of action underway between Petitioner and Petitioner’s

companies (Digital and Sonobi) with third parties intended to damage the Website

and Respondent GCM’s interest therein. See Supp. A. [B–4].

In addition, pleadings in the Florida Litigation demonstrate extensive

relevant facts which specifically tie Petitioner to the claims and causes of action in

the Kansas Litigation. In the record and at the trial court level, Respondent

Murphy’s Motion to Compel Deposition (See Supp. A. [B–9], p. 176–278 of 314)

specifically identifies the various connections between the Petitioner, Digital,

Sonobi and the Kansas Litigation, including, without limitation:

• Paragraph 6 (and Exhibit D attached thereto); and• Paragraph 7; and• Paragraph 10; and

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• Paragraph 11 – 13 (and Exhibit E attached thereto); and• Paragraphs 20 – 22; and• Exhibits A–E (pages 325–365 of 508 of Petitioner’s Appendix) also

demonstrate the intimate relationship between Connolly/Digital/Sonobi onone hand, and Crowd Shout, on the other.

See Supp. A. [B–9] (p. 176–278 of 314) – Motion to Compel Deposition.

Also in the record and at the trial court level in the Florida Proceedings,

Respondent Murphy filed Additional Suggestions, which specifically identifies the

connections between the Petitioner, Digital, Sonobi and the Kansas Litigation,

including, without limitation:

• Paragraphs 3 – 6; and• Paragraphs 8 – 11; and• Paragraph 14 (and Exhibit A attached thereto); and• The sole exhibit (Exhibit A) (pages 294–310 of 508 of Petitioner’s

Appendix) which includes four (4) letters from Cobb Cole, P.A. (attorneysfor Petitioner) to Crowd Shout, which clearly demonstrates the relevancy ofDigital/Sonobi/Connolly within the dispute in the Kansas Litigation.

See [A–8], Additional Suggestions.

Moreover, the complexities of this case demonstrate the Petitioner’s

involvement with the parties and issues in the Kansas Litigation to warrant the

Deposition. The Demonstrative Aids submitted to the trial judge by counsel (See

Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314)) for the parties show the

agreement of Petitioner’s intimate relationship with Crowd Shout via his

controlling interest in Digital and Sonobi. Further, Petitioner was the undisputed

owner of a certain PayPal account which Petitioner unilaterally shut–down in

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August of 2015 and is consequently subject to a Motion for Order to Show Cause

(“Motion for Cause”), as filed by Respondent GCM as a result. See Supp. A. [B–

2] (p. 148–153 of 314). The parties agree with the severe complexity of the issues

between the parties (See [A–17] at 10:7 and 12:21–22), such as the need to explore

a variety of subject matters encompassing a multitude of companies (Crowd Shout,

Holdings, Sonobi, Digital, Integrated–Capabilities Ltd.) over the course of the past

five years, when the relationship between Respondents and Petitioner commenced

with the acquisition of the Website by Crowd Shout from Digital in August of

2012. See [A–1], p. 2 (also p. 8 of 508), ¶10.

As evidenced by Cobb Cole P.A.’s four (4) letters with Crowd Shout (See

[A–9], “Exhibit A”), Petitioner’s claim of a “fishing expedition” is wholly without

merit – so much so that that the trial court heard argument on the purported

‘fishing expedition’ and overruled such argument to allow the Deposition to

proceed with appropriate safeguards in the Order. See [A–17] at 37:17–25, 38:1–

2, 49:15–25, 50:1–25 and 51:1–3.

As evidenced by the pleadings in the Kansas Litigation,9 the pleadings in the

Florida Litigation,10 and as argued at the Hearing, the Respondents have a

9 Including, without limitation: Memorandum in Opposition, Intervenor’sAdditional Suggestions and Intervenor’s Further Suggestions. See Supp. A. [B–1], p. 3–4, 18, ¶2–4 (also p. 29–30, 44–45 of 314) and ¶4–7, p. 2 (also p. 155 of

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legitimate need to take the Deposition of the Petitioner for the Kansas Litigation as

the trial court found at the Hearing and evidenced by the Order. See A–0. Because

this Petition is not a de novo review (assuming this Court does not dismiss the

Petition for lack of jurisdiction), recitation of all the specific factual allegations as

to the factual connections of Petitioner to the Kansas Litigation is not necessary.

Of note for context perspective is the reminder that the trial court heard argument

and determined that Petitioner’s Deposition testimony was reasonable and

necessary for the discovery of information that could lead to admissible evidence,

especially considering the complex nature of this case. For example, Petitioner is a

Florida resident and cannot be subpoenaed to appear in Kansas, making the

videotaped nature of the Deposition vital for trial to a jury in the Kansas Litigation.

In addition, Respondent GCM argued that Petitioner was a vital person at the heart

of the dispute in the Kansas Litigation – being an undisputed owner of Digital –

one of the three entities that where the original shareholders to Holdings the sole

shareholder of Crowd Shout (the purported plaintiff in the Kansas Litigation), as

well as managing/owning/controlling the entities that maintained written contracts

314) of Supp. A. [B–3] and ¶2–8, p. 1–3 (also p. 157–159 of 314) of Supp. A.[B–4]

10 Including, without limitation: Motion to Compel Deposition and AdditionalSuggestions. See 6, 7, 10, 11–13, 20–22 and Exhibits “A–E” of Supp. A. [B–9](p. 176–278 of 314) and ¶3–6, 8–11, 14 and “Exhibit A” of [A–8] (p. 285–288,294–310 of 508).

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with Crowd Shout, implicating damage considerations for discovery. See [A–17]

at 30:18–22. The trial court considered the applicable pleadings, the argument of

counsel, and the applicable law and rules of procedure to make her ruling, which

resulted in the Order compelling the Deposition to proceed with the itemized

reasonable safeguards to appease Petitioner’s concerns in the Motion for Protective

Order.

Accordingly, this Court should deny the Petition as the Order complied with

the essential requirements of law in that it compelled the Deposition for the

purpose to allow Respondents to obtain information to lead to admissible evidence.

C. Trial Court Properly Exercised Discretion to Compel the

Deposition with the Order Providing for Reasonable Limitations

and Safeguards.

This Court should deny the Petition because the Order complied with the

essential requirements of law. Respondent GCM’s Notice for Deposition fully

complied with the requirements of Rule 1.310(b)(4), Fla. R. Civ. P. because it (1)

notified Petitioner that the deposition would be videotaped; (2) gave the name and

address of the operator of the video; and (3) stated the method for recording the

testimony. Respondent GCM’s Notice for Deposition clearly states that the

operator is U.S. Legal Support whose address is 20 North Orange Avenue, Suite

1209, Orlando, Florida 32801. The Notice for Deposition also clearly stated that

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the deposition would be recorded in both video tape and stenographic means by

U.S. Legal Support.

The legal sufficiency of the Order addressed the Petitioner’s concerns in the

Motion for Protective Order by including safeguards that were argued, discussed

and negotiated at the Hearing that counsel for Petitioner agreed “seemed fair.” See

[A–17] at 51:3. When the issue of not videotaping the deposition was brought

before the court upon Petitioner’s unsubstantiated allegations that Respondent

Murphy has a history of putting videotaped depositions in “inappropriate places”

arose, the trial court asked Respondents’ attorney to comment on the request to

establish parameters of a protective order regarding the use of video. See [A–17]

at 49:4–18. Respondents made no argument and unhesitatingly agreed to a

stipulated order limiting the use of the videotape as Respondents have no intention

of using it improperly. Id.

Moreover, the lower court and the parties discussed the use of the videotape

at length, including the appropriate use of a videotaped deposition and the lower

court’s ability to foreclose use of the videotape in litigation in another jurisdiction,

including and specifically, Malta. See [A–17] at 49:19–51:16. The lower court

properly noted that “what’s discoverable is not always admissible” and that the

trial court “wouldn’t want to foreclose another judge in a different jurisdiction

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from making a decision about whether or not a deposition testimony was

admissible” since it “could be used for impeachment…” See [A–17] at 51:10–15.

When the lower court was fashioning the language to be included in the

written Order, Petitioner twice agreed that it “seems fair.” See [A–17] at 48:15 and

51:3. Remarkably, what Petitioner considered a fair ruling in the lower court at

that time is the exact same ruling Petitioner now complains is not only unfair but

also is a departure from the essential requirements of law. The Order specifically

provided for limiting terms – after back and forth discussion with the trial court

and both attorneys of record – in paragraph 5 as to how the videotape portion could

be utilized, which protects for the alleged ‘cat out of the bag’ issue. See [A–0], ¶5.

This Court should deny the Petition because the trial court evaluated the

issues as to the Motion for Protective Order and heard argument, and – in essence

– had a discussion and negotiation with both attorneys of record in reaching what

appeared to be fair and reasonable compromises for allowing and subsequently

ordering the Deposition to proceed (and arguably to avoid further litigation over

the same issue, such as this extraordinary request for a writ of certiorari).

D. The Trial Court Properly Exercised Discretion in Not ReviewingEvidence Outside the Scope of the Hearing as to Issues of Law.

Petitioner attempts to bring arguments and evidence before this Court that

were not reviewed by the lower court when it ruled at the Hearing and cannot be

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considered by this Court in determining whether irreparable harm exists. Even

though this Court denied Respondents’ Motion to Strike the Petition, this Court

should nevertheless not consider the alleged ‘bad acts’ of Respondent Murphy

when determining the merits of the Petition. A basic tenet of appellate review is

that the appellate court may not consider matters outside the record before the

lower court at the time the appealable decision was rendered. See Altchiler v.

State, Dep’t of Prof’l Regulation, Div. of Professions, Bd. of Dentistry, 442 So. 2d

349, 350 (Fla. 1st DCA 1983).

An appellate court may not expand the record that was before the trial court

in rendering the decision appealed and attempt to evaluate new evidence that a

petitioner does not put before the lower court prior to its rendering a decision. See

Dresner v. City of Tallahassee, 164 So. 2d 208, 211 (Fla. 1964)(stating that the

scope of review on certiorari is limited to exploring the record to determine

whether the lower court’s decision was supported by evidence); see also Pierson v.

Sharp, 283 So. 2d 880, 881 (acknowledging that the burden is on a petitioner to

provide an appellate court with a record adequate to support its appeal and the

failure to do so precludes appellate review). The record in an appeal is limited to

the documents filed in the lower court, exhibits that are not physical evidence, and

transcripts of proceedings filed in the lower court. See Fla. R. App. P. 9.200(a)(1).

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The extraordinary writ of certiorari is not a ‘free for all’ for Petitioner to

bring new arguments and evidence in an attempt to circumvent the sound

discretion of the trial court on interlocutory orders. Yet, Petitioner seeks to have

this Court review hundreds of pages of documents and arguments in Petitioner’s

Appendix that were not before the trial court when the Hearing occurred11 and

when the oral pronouncement at that hearing was reduced to writing in a

ministerial act by the lower court on April 17, 2017 into the Order.12 See [A–17] at

12:10–23. In fact, documentation in Petitioner’s Appendix as to Respondent

Murphy’s purported ‘bad acts’ that justify protection from the Deposition did not

appear in the lower court record until April 19, 2017 – AFTER the Hearing and

Order – when Petitioner filed its Motion to Stay pending appeal in the lower court,

11 This Court denied the Respondents’ Motion to Strike on this issue. In thosebriefings, the transcript was cited. Counsel for Petitioner handed the trial court astack of materials to review. The undersigned counsel for Respondents objectedas the Hearing was not evidentiary. The trial court said “ok” and did not reviewthe materials (although the transcript did not specifically include a ruling of“sustained” as to the objection). Nowhere in the transcript or the record does itdemonstrate that the trial court actually considered such materials whenrendering the oral ruling at the Hearing, and the stack of materials were notincluded in the record of the Hearing.

12 See Knott v. Knott, 395 So. 2d 1196, 1198 (Fla. 3d DCA 1981)(stating that thereduction of an order to writing is a ministerial act); see also Lazy Flamingo,USA, Inc. v. Greenfield, 834 So. 2d 413, 415 (Fla. 2d DCA 2003)(noting thevalidity and binding authority of an oral order of the court even though awritten one has not yet been entered).

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which the lower court granted. The Order Staying the trial court proceedings

pending this appeal is not on appeal and outside the scope of the record.

In the Petition, Petitioner stated numerous alleged factual allegations against

Respondent Murphy, most of which were never stated within the Petitioner’s

Motion for Protective Order or brought up at the Hearing. The Hearing was based

upon legal argument; the Hearing was not evidentiary. No evidence or testimony

was taken (other than the Demonstrative Aids (See [B–10, p. 1–2 (also p. 279–280

of 314)) and various filed pleadings from the Kansas Litigation were furnished to

the trial court for reference. See [A–17].

If Petitioner wanted the trial court to review the Order and take into

consideration new facts/legal arguments, Petitioner should have filed a motion for

reconsideration prior to filing the Petition to allow this trial court to review the

Order and hold an evidentiary hearing. Petitioner failed to do so and instead

immediately filed the Petition alleging facts outside of the record. Generally, “it is

inappropriate to raise an issue for the first time on appeal” and appellate courts will

not consider issues not raised in front of the trial judge. See, e.g., Dober v.

Worrell, 401 So. 2d 1322, 1332–24 (Fla. 1981).

To distract this Court with various ‘red herrings,’ Petitioner conjectures

numerous ‘bad acts’ of Respondent Murphy to justify why Petitioner should be

protected from the Deposition and why the trial court violated the essential

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requirements of law for this Court to consider evidentiary issues such as credibility

of a witness, authenticity, and foundation – yet no such evidence was presented at

the Hearing before the trial court and now presented for this Court’s first

determination. For example, Petitioner alleges that the videotaping should not

occur because Respondent Murphy ‘cannot be trusted’ to comply with the Order

restricting the use of the Deposition for court proceedings and not generally online.

See [A–0], Order. To support this radical argument and request, Petitioner

incorrectly states that Respondent Murphy has been found in contempt numerous

times of orders entered in the Kansas Litigation. As the complete docket history in

the Kansas Litigation reveals, there are, nor has there ever been, any contempt

orders entered against Respondents in the Kansas Litigation. Petitioner’s assertion

of such is pure fiction. See Supp. A. [B–0] (p. 5–26 of 314). Also lacking from

Petitioner’s 500+ page Appendix is Petitioner’s reference to any such order or

finding from the Kansas Litigation that Respondents apparently violated. See

Appendix. Even if such really did exist, it should have been presented to the trial

court and not to this Court for an initial factual determination.

Furthermore, such argument is akin to improper character impeachment

under Chapter 90 Evidence Code, Florida Statutes, which prevents a litigant from

presenting argument that simply because a party did something previously it means

that the litigant will do the same thing this time. See e.g. F.S. §90.609 & §90.610.

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If such is improper at the trial court level, such improper character impeachment

should certainly be improper in a petition for writ of certiorari.

Petitioner goes on to inaccurately state that an order of protection of stalking

has been issued against Respondent Murphy. While it is correct that Respondent

Murphy was accused of harassment of two Kansas residents over a year ago, the

parties to that action (non–parties/not the Petitioner) settled their issues outside of

court, and Respondent Murphy consented to entry of the order upon the assent to

mutual terms13. Thus, Petitioner is attempting to use half–truths to create spin and

to purport that Respondent Murphy is violent and this Court should grant the

extraordinary relief of precluding Respondent Murphy (a named defendant in the

Kansas Litigation) from being present at the Deposition. Indeed, Petitioner is

asking this Court to make such a factual finding and determination which goes

beyond the scope of certiorari review as it was not in the Motion for Protective

Order nor discussed at the Hearing.

Petitioner’s request for such a new and extreme remedy from this Court to

exclude Respondent Murphy (who is a party in the Kansas Litigation) from

attendance at the Deposition is beyond the scope. No such request was made of

the lower court and no proffer of evidence supporting this request was put on

13 See [A–11] (pages 437 – 441) – the two Final Orders which both state,“ORDERS ARE ENTERED BY CONSENT WITHOUT ANY FINDING OFFACT OR FAULT”.

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record. [A–17] and [B–8]. No additional motion or request for rehearing was made

of the lower court prior to Petitioner’s filing for the extraordinary writ. See Supp.

A. [B–8] (p. 173–175 of 314). Instead, Petitioner seeks to have this Court review

new arguments and false allegations that were not of record at the time the Order

was orally pronounced at the Hearing or reviewed prior to the entry of the Order.

Therefore, this Court should not consider the request to have Respondent Murphy

precluded from personally attending the Deposition.

Even if this Court did review the documents in Petitioner’s Appendix, all

allegations made in the Petition are conjecture and require inference upon

inference. Petitioner has asserted other unsubstantiated factual allegations in his

Petition that are patently false in an apparent attempt to prejudice this Court by

presenting ‘red herrings’ and ‘bashing’ of the Respondent with purported facts that

are outside the record and would be disproven upon an evidentiary hearing.

Nonetheless, the undersigned did respond to some of these disparaging and false

allegations in Respondents’ Verified Response, which was verified by

Respondents. See Supp. A. [B–11], p. 6–7 (also p. 287–288 of 314), ¶28 (a)–(e).

To the extent a factual response is necessary given Respondents’ assertion

that such purported ‘bad acts’ are beyond the scope, Respondents respond with

facts from the record. As detailed in Intervenor’s Additional Suggestions (Supp.

A. [B–3], p. 154–156) and Intervenor’s Further Suggestions (Supp. A. [B–4], p.

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157–160), Petitioner’s attacks of Respondent Murphy’s purported ‘bad acts’ as

analogous to the ‘pot calling the kettle black’. As alleged in the record,

Petitioner’s actions to tortuously interfere with the operations of Crowd Shout

while usurping its legal standing and attempting to operate under the guise of its

authority is well documented in the Kansas Litigation; yet the record is absent of

documented ‘bad behavior’ by the Respondents. See Supp.A. [B–0]. As detailed

in ¶2–4 of Intervenor’s Further Suggestions (p. 157–158 of 314), Petitioner is

instructing and acting in concert with plaintiff’s counsel in the Kansas Litigation.

Petitioner’s ‘bad act’ carried out by Adam Gasper resulted in Respondent GCM

filing its Motion to Enforce. See Supp. A. [B–5], p. 161–169 of 314.

Consequently, and after a hearing on the Motion to Enforce, the Kansas court

granted Respondent GCM’s Motion to Enforce the Kansas court orders. See Supp.

A. [B–6] (“Order to Enforce”). Meanwhile, Petitioner is subject to the Motion for

Cause for Petitioner unilaterally shutting down the PayPal account and the Sonobi

account used by Crowd Shout, which effectively dried–up most of the revenue

generated by the Website. See [B–4], ¶6, p. 2 (also p. 149 of 314). Petitioner’s

conduct, outlined in the record, relating to the Kansas Litigation underscores the

need for the Deposition to occur, as Respondents have alleged tens of millions of

dollars of damages as a direct result of Petitioner’s actions.

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Therefore, this Court should not consider the factual allegations of purported

‘bad acts’ of Respondent Murphy in considering whether the Deposition should

take place because the trial court properly exercised its discretion and entered the

Order with appropriate and reasonable safeguards based upon the facts and issues

in existence at the time of the Hearing.

CONCLUSION/REQUEST FOR RELIEF

This Court should find that it does not have jurisdiction and dismiss the

Petition for lack of certiorari jurisdiction because Petitioner failed to meet the

extraordinary burden of demonstrating that Petitioner is irreparably harmed and

lacks any other adequate remedy of law. Petitioner failed to exhaust all trial court

remedies such as a motion for reconsideration, an evidentiary hearing, or

instructing the Petitioner not to answer questions at the Deposition/seeking relief at

the Deposition if such question occurred that was believed to be for annoyance,

embarrassment, oppression, or undue burden/expense. Even if the Court

determines it has jurisdiction, this Court should deny the Petition because

Petitioner waived his right to object by failing to comply with Rule 1.410(e) and

because the trial court properly exercised discretion to enter the Order with

adequate safeguards which complied with the essential requirements of law.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 28, 2017, a true and correct copy of the

foregoing was e–filed via eDCA portal and furnished via email to: attorneys for

Petitioner, Andrea Kurak, Esquire and Kelly Parsons Kwiatek, Esquire, Cobb Cole,

P.A., 149 South Ridgewood Avenue, Suite 700, Daytona Beach, Florida 32115–

2491, [email protected], [email protected], and

[email protected].

Lauren C. Heatwole, Esq.Florida Bar No.: 674583Heatwole Law Firm, P.A.1415 E. Robinson Street, Suite BOrlando, Florida 32801Telephone: (407) 490–2467Facsimile: (407) 641–9530Email: [email protected]: [email protected]: [email protected] for the Respondents,Gabriel Murphy and GCM Holdings Ltd

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Response complies with the font

requirements of Fla. R. App. P. 9.100(l).

Lauren C. Heatwole, Esq.Florida Bar No.: 674583Heatwole Law Firm, P.A.1415 E. Robinson Street, Suite BOrlando, Florida 32801Telephone: (407) 490–2467Facsimile: (407) 641–9530Email: [email protected]: [email protected]: [email protected] for the Respondents,Gabriel Murphy and GCM Holdings Ltd

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