SC13-1333 Motion to Compel - Supreme Court€¦ · 13/01/2014 · judge watson's motion to compel...
Transcript of SC13-1333 Motion to Compel - Supreme Court€¦ · 13/01/2014 · judge watson's motion to compel...
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Filing # 9110690 Electronically Filed 01/13/2014 07:49:34 PM
RECEIvED, 1/13/2014 19:53:52, John A. Tomasino, Clerk, Supreme Court
BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA
SC13-1333 INQUIRY CONCERNING A JUDGE No. 12-613 LAURA M. WATSON
JUDGE WATSON'S MOTION TO COMPEL DOCUMENTS, MOTION FOR SANCTIONS, MOTION TO OVERRULE ALL CLAIMS OF PRIVILEGE OR CONFIDENTIALITY BASED ON VOLUNTARY
DISCLOSURE AND FAILURE TO FILE A PRIVILEGE LOG, MOTION TO REOPEN DISCOVERY, PERMIT COMPLETION OF SUSPENDED DEPOSITION OF COMPLAINING WITNESS LARRY STEWART AND
TO CONTINUE THE FEBRUARY 10, 2014 TRIAL
Pursuant to Rule 12(a) of the Florida Rules of Judicial Qualifications
Commission, and Rule 1.350 (b) of the Florida Rules of Civil Procedure, Judge
Laura M. Watson moves this Commission to Compel all documents in the JQC's
possession, overrule any objections or claims of privilege raised by the JQC's to
Judge Watson's 12(b) Request and Request for Production, to reopen discovery
and impose sanctions based upon the obstructionist tactics of Special Counsel, Mr.
McGrane, to compel answers to the objected deposition questions, to overrule the
objections raised to the rule 12(b) demand for documents and Request for
Production, to permit completion of the suspended deposition of complaining
witness Larry Stewart and to continue the February 10, 2014 trial, as grounds
therefore would state:
Throughout these proceedings, Judge Watson has maintained her innocence
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and argued that notwithstanding the demonstrably false allegations in the Notice of
Formal Charges, valid concerns exist that go to the heart of fundamental legal
issues, including but not limited to questions of jurisdiction, procedural and
substantive due process rights, equal protection, etc., with respect to the JCQ
pursuing charges from nine years past, before Judge Watson ever considered being
a judge, and while The Florida Bar had exclusive jurisdiction to address this
matter.
Although most of the JQC's attention has been to address procedural
matters, an important distinction exists between this and most other JQC cases, i.e.,
this case is based on highly contested and denied allegations, where most other
cases are based on an undisputed action. In fact, actions alleged in this case against
Judge Watson have already been adjudicated in a court of competent jurisdiction
that found that Judge Watson was not individually culpable on any of the counts
brought against her.
Further, procedurally this case is important because Judge Watson is
asserting that the JQC, and in particular the JQC's Special Counsel, has improperly
manipulated the investigative and hearing process for an improper purpose thus
abusing process, attacking the very independence of the judiciary, and usurping the
rights of the voters. For this reason, Judge Watson must preserve both her state and
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federal rights and ensure that the JQC's legitimate purpose, the independence of
the courts, and voters' rights are preserved.
Mr. McGrane appears to have engaged in the following lawyer misconduct
in this proceeding:
1. Responding to Judge Watson's Request for Rule 12(b) information, Judge
Watson's First Request for Production, and other filings in this case and
failing to disclose important documents and the existence or of other
materials allegedly possessed by the JQC.
2. Intentionally obstructing the discovery process by improperly instructing a
witness not to answer questions and allowing other witnesses to claim
privilege to matters, knowing that privilege had already been waived and
that Mr. McGrane himself was producing these "privileged" documents.
3. Filing formal charges concerning Judge Watson's closing statements,
contingency fee contracts and client communications without any direct
evidence concerning these matters and without even having possession of
the closing statements or contracts.1
4. Leaking the Notice of Formal Charges to Larry Stewart before it was filed
with the Florida Supreme Court and requesting that Mr. Stewart not disclose
December 18, 2013 hearing transcript p. 26-30 attached as Exhibit "A". 3
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this fact.
5. Issuing a written response stating he had no witness statements when the
record reveals that he had numerous material witness statements that were
not disclosed.
Mr. McGrane's bad faith conduct is more fully set forth in the paragraphs below.
L Mr. McGRANE KNEW AT ALL TIMES THAT CONFIDENTIALITY HAD BEEN VOLUNTARILY WAIVED BY THE FLORIDA BAR, THE
JQC, AND THE WITNESSES
Mr. McGrane interfered with the depositions of Larry Stewart, William
Hearon, and James B. Tilghman by either raising improper objections or by
instructing the witness not to answer certain questions or by remaining mute,
allowing the witness to claim privilege for matters which Mr. McGrane knew
privilege/confidentiality had been waived. After the deposition Mr. McGrane and
the Florida Bar voluntarily produced documents. These "confidential" documents
included the Florida Bar complaints filed by Larry Stewart and William Hearon
and the Complaint filed with the JQC and corresponding letters and statements of
these witnesses regarding their claims. When a person voluntarily discloses a
privileged communication, the communication is no longer protected. Fla. Stat.
Sec. 90.507.
As to Larry Stewart, Mr. McGrane objected to questions which inquired into
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phone calls between Mr. Stewart and the Florida Bar, both before and after the Bar
issued its finding of Probable Cause. The questions related to these conversations,
such as the parties to the conversations, the subject matter of the conversations, and
similar follow-up questions were asked and objected to by Mr. McGrane. When
questions regarding Mr. Stewart's interactions with the JQC were asked, Mr.
McGrane instructed Mr. Stewart not to answer these questions because they were
privileged. (Larry Stewart's deposition at p. 291-296 pages attached as Exhibit
"B").
Though this objection may initially seem proper and benign, after the
deposition Mr. McGrane and The Florida Bar voluntarily produced documents
including the "Confidential" Complaints filed by Larry Stewart and William
Hearon to The Florida Bar and the JQC and corresponding letters and statements
regarding their claims. The production reveals that these documents were in the
hands of Mr. McGrane at the time of the depositions and at the time he represented
to Judge Watson that there were no statements of witnesses. They were only
provided when he finally complied with the 12(b) demand.
The records produced by Mr. McGrane further reveal that Mr. McGrane,
despite repeatedly arguing that the Complaint was confidential, knew at all times
that a copy of the Complaint filed with the JQC had been filed with the Florida Bar
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and was required to be produced herein. The voluntary dissemination of these
materials by the witnesses to the Bar and the production of these materials by the
JQC destroys the claim of confidentiality. These documents included the
following:
G04211/28/12 letter from Mr. Stewart and Mr. Hearon (2274-2322) to Michael Schneider advising that "[t]he Florida Bar has declined to prosecute [Judge
Watson] because she is about to become a judge... and noting that "[w]hile we understand that the Commission does not ordinarily address matters that
occur before one becomes a judge this is not an ordinary case..." Included in
this letter is both the Florida Bar Complaint and the JQC Complaint. This
letter was copied to John F. Harkness, Jr. Esq. and John T. Berry, Esq. (bate
stamped documents 2274-2322 are attached as Exhibit "C").
Both Mr. McGrane and The Florida Bar produced the Complaints filed by Larry
Stewart and William Hearon and the letters which requested the JQC to review this
matter. Mr. McGrane instructed Mr. Stewart not to answer the questions posed
advising Mr. Stewart: "[a]nything that had occurred prior to the formal charges is
privileged by statute. And I object to it, and I instruct the witness not to answer any
of those questions." (Depo of Larry Stewart at p. 293, 1. 14, and additional
objections raised on p. 294-296). Similar objections were raised by William
Hearon, individually (p. 22-24 attached as Exhibit "D") and James B. Tilghman,
individually (p. 14-19 attached as Exhibit "E"), and Mr. McGrane knowingly
permitted this misleading information to stand without advising the witnesses or
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undersigned counsel that the privilege had been waived based upon documents Mr.
McGrane had in his possession and was required to produce.
In light of the voluntary dissemination and disclosure of the "confidential"
documents and the knowledge by Mr. McGrane that the documents would be
disclosed, these actions were unreasonable, deliberate and intended to frustrate the
discovery process and prevent meaningful testimony being taken on behalf of
Judge Watson. Given the nature of these proceedings, it is inexcusable that the
Special Counsel for the JQC would engage in posturing, maneuvering, or
strategizing. The JQC has an obligation to make a fair and impartial analysis of the
evidence and present all material evidence to Judge Watson.2 At a minimum,
exculpatory evidence should not only be embraced by the JQC but is required to be
produced pursuant to the U.S. Constitution.
II. MR. McGRANE HAS FAILED TO PRODUCE SIGNIFICANT AND IMPORTANT DOCUMENTS
Though the documents provided confirm that confidentiality has been
waived by The Florida Bar, the JQC, and the complaining witnesses, Mr. McGrane
2 Mr. McGrane claims that the method and selection of Special Counsel for the JQC and his actions are irrelevant because the Judicial Qualifications Commission Rules do not allow for the disqualification of counsel. (JQC Response to Judge Watson's first Request for Production numbers 19-27). The FJQCR are so vague and indefinite that it is difficult to know if Mr. McGrane's position on this point is valid. But even if the Rules governing the JQC do not allow for disqualification, a lawyer is bound by the Regulations Governing the Florida Bar.
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has failed to produce important and significant documents.3 It also appears from
the communications that have been retrieved that many more emails exist which
have not been provided to Judge Watson. Despite both a Rule 12(b) demand and a
Request for Production, numerous documents were not provided by Mr. McGrane
in addition to the bate stamped documents 2274-2322 referenced above. 4 These
documents are:
1. The emails previously marked as Composite Exhibit "D" at Mr. Stewat's
deposition, (attached as Exhibit "F") which are emails exchanged between
Mr. McGrane and Larry Stewart after July 29, 2013, the date of the filing of
the Notice of Filing Formal Charges. To date, Mr. McGrane's response, if
any, to the emails contained in this exhibit have not been produced and the
email exchanges between Mr. McGrane and Larry Stewart predating July
29, 2013 have not been provided.
3 Judge Watson believes there are many, many more emails, witness statements, and other documents that exist. 4 Rule 12(b) provides that upon written demand by counsel or a party these materials are to be promptly furnished. McGrane did not promptly furnish these documents. It was not until December 26, 2013, and only after Judge Watson provided a copy service to pick up the documents, that these documents were provided. Though the Rules of Civil Procedure places the burden on the requesting party to go to the office of the party producing the documents to review them or arrange for copying, the JQC requires the Commission promptly furnish the documents.
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2. The emails exchanged between Mr. McGrane and William Hearon, Jim
Tilghman, David Bianchi, and members ofThe Florida Bar.
3. The correspondence between The Florida Bar and the JQC and
correspondence included in The Florida Bar's transmittal of the file to the
JQC.
4. On January 9, 2014, Mr. McGrane filed his designation of depositions and
trial testimony. (Exhibit "G"). Though the August 26, 2013 order by the
Chair ordered that these transcripts are to be provided to the opposing party,
Mr. McGrane did not provide these in his response to Judge Watson's
Request for Production or his Rule 12(b) response. The hearing and
deposition testimony referenced in the JQC's designation were not
introduced in the underlying Attorney's Fees trial and therefore have no trial
transcript designations? The JQC designations reference depositions taken
in 2004 through 2007 and have not been provided to Judge Watson to date.
III. MR. McGRANE CLAIMED POSSESSION OF CERTAIN DOCUMENTS BUT HAS NOT PRODUCED THEM
On August 14, 2013, Mr. McGrane provided Judge Watson with a
Preliminary Witness and Exhibit List pursuant to Judge Evander's August 20, 2013
5 The exception to this is paragraph VII., regarding Judge Watson's trial testimony to be used for impeachment purposes.
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Status Conference. (Exhibit "H"). The JQC listed only four witnesses: Larry
Stewart, William Hearon, Todd S. Stewart, and Judge Watson. It was based on this
representation that the Chair designated December 16, 2013 as the date by which
depositions should be completed. But six days later, in compliance with the Chair's
directive, Mr. McGrane filed a seventeen person witness list.
Mr. McGrane's Preliminary Witness and Exhibit List identified the exhibits
to be relied upon by the JQC. Though listed on the exhibit list, the following have
not been produced:
o042The Contract ofEngagement between the "PIP" lawyers and the "Bad Faith" lawyers.
o042Memorandum ofUnderstanding.
o042The Amended Memorandum ofUnderstanding.
Indeed, a review of the documents provided by the JQC shows that the JQC has no
contracts between Judge Watson and her clients. Simply stated, the JQC had no
direct evidence to find probable cause for the alleged violations related to the
contracts and the closing statements.
IV. ALL CLAIMS OF CONFIDENTIALITY OR PRIVILEGE RAISED BY THE JOC SHOULD BE OVERRRULED BASED UPON WAIVER OR THE
FAILURE TO FILE A PRIVILEGE LOG
Throughout these proceedings, Mr. McGrane has taken the position that JQC
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materials are confidential and only the materials created after the probable cause
finding can be discovered. For this proposition, Mr. McGrane continually cites the
case of In re: Graziano, 696 So.2d 744 (Fla. 1997), but that is not the holding. In
In re Graziano, the Supreme Court stated the opposite position espoused by Mr.
McGrane. The Supreme Court cited Rule 12(b) above and stated:
Although not allowing for discovery of the complaint itself, discovery pursuant to rule 12(b) allows an accused to have full access to the
evidence upon which formal charges are based. The policy reasons for
the confidentiality of the original complaint clearly outweigh any
benefit the discovery of it could have in view of the discovery right provided by rule 12..."(emphasis added).1d. at 751.
Thus, except for the original complaint, over which confidentiality was voluntarily
waived, Judge Watson is allowed "full access to the evidence" upon which the
formal charges are based.
Judge Watson should be allowed "full access to the evidence" in the JQC's
possession. She is entitled to a real opportunity to depose witnesses after receiving
all discovery, including all witness statements. Any claims of confidentiality or
privilege have been waived either by failing to file a privilege log, by voluntary
disclosure to a third party, or by disclosing a significant part of the communication
terminating the privilege.
On August 5, 2013 and pursuant to Rule 12(b), Judge Watson requested the
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followingdisclosures:
The names and addresses of all witnesses whose testimony the
Counsel expects to offer at the hearing, together with copies of all
written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Commission which are relevant to
the subject matter of the hearing and which have not previously been
furnished. When good cause is shown this rule may be waived. (emphasis added). Rule 12 (b), FJQCR.
Rule 12(b) provides that upon written demand by counsel or a party these materials
are to be promptly furnished. Mr. McGrane did not promptly furnish these
documents. It was not until December 26, 2013, and only after Judge Watson
provided a copy service to pick up the documents, that these documents were
provided.
On August 26, 2013 Judge Watson served her First Request for Production
on the JQC. On September 20, 2013, the JQC filed a Response to this Request
claiming privilege to numerous documents. (Exhibit "I"). The JQC, however, did
not file a privilege log to either the Rule 12(b) request or the First Request for
Production.' Rule 1.280 expressly requires that a party who withholds discoverable
6 In the instant case, Judge Watson served on the JQC a Request for Production. As
part of its response to these requests, the JQC raised a "General Objection"
regarding the requested information. In the Response to the Request for Production
(Exhibit "I") the JQC identifies a section titled "General Objection" lodged by the
JQC. The JQC's "General Objection" as stated is meaningless. If an objection to a 12
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information by claiming it is privileged shall "make the claim expressly and
describe the nature of the documents, communications, or things not produced or
disclosed in a manner that, without revealing the information itself privileged or
protected, will enable other parties to assess the applicability of the privilege or
protection." Rule 1.280(5)(b). The JQC did not comply with this rule and the
failure to comply by not providing a privilege log constitutes a waiver ofprivilege.
See: Metabokfe International, Inc. v. Holster, 888 So.2d 140, 141(Fla. 4'" DCA
2004), citing General Motors Corp. v. McGee, 837 So.2d 1010, 1032 (Fla. 4'h
DCA 2002); see also Nationwide Mutual Fire Ins. Co. v. Hess, 814 So.2d 1240
(Fla. 5th DCA 2002).
Review of the documents provided by the JQC, now reveals that the JQC
had numerous detailed statements of witnesses, including statements from Mr.
Stewart. The record of documents produced by the JQC is totally contrary to Mr.
McGrane's previously filed response that the JQC had no statements ofwitnesses.
request for production is made, the objection must be as specific as an objection to
evidence at trial. "For each item or category the response shall state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. If an objection is
made to part of an item or category, the part shall be specified." Fla. R. Civ. Pro.
Rule 1.350 (b). 13
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V. THE JQC APPEARS TO HAVE FILED FORMAL CHARGES WITHOUT THE RELEVANT CONTRACTS AND CLOSING
STATEMENTS IN RECKLESS DISREGARD FOR THE TRUTH CONCERNING THE INTEGRITY OF JUDGE WATSON
At a recent hearing, Mr. McGrane appears to have finally conceded that the
JQC had no contracts between Judge Watson and her clients and no closing
statements related to the issues in this case.' No such documents have been
produced by the JQC. Nonetheless, Mr. McGrane filed a Notice ofFormal Charges
alleging:
�042 about thethat Judge Watson did not keep her clients reasonably informed
status of a matter [4-1.4 (a)];
�042that Judge Watson did not explain matters to her clients to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation [4-1.4(b)];
�042 Watson's contingent fee contracts did not comport with thethat Judge requirements of the Rules ofprofessional responsibility [4-1.5(f)(1)];
�042that Judge Watson failed to prepare appropriate closing statements as
required by the Rules [4-1.5(f)(5)]; �042 Judge Watson failed to explain the implications of the commonthat
representation of multiple clients in a single matter [4-1.7(c)]; �042and that Judge Watson failed to make an aggregate settlement of the claims
of her clients without disclosing the existence and nature of all the claims
and without the clients consent [4-1.8(g)].
A review of the documents in the JQC's possession shows that the JQC has no
contracts between Judge Watson and her clients and no closing statements related
7 December 18, 2013 hearing transcript p.22-30. 14
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to the issues in this case. Simply stated, the JQC had no competent evidence to find
probable cause for the alleged violations related to the contracts and the closing
statements.
Indeed, the JQC filed these charges in the face of evidence that Judge
Watson did not violate these rules outlined above. In McGrane's possession at the
time of the filing of the Notice ofFormal Charges were fifteen (15) affidavits from
Judge Watson's clients (composite Exhibit "J"), which stated in pertinent part:
As to the Individual PIP cases: That the contract that the client had with Judge Watson's law firm provided
that if the suit was successful, that the client would recover the unpaid benefits and interest and the lawyers would recover the legal fees and costs.
Often times the sum being sought was less than $500.00. Progressive aggressively defended PIP suits brought on their behalf. If the client had to advance the legal fees and costs to recover the benefits, they would not have
done so. That Watson and Lentner assumed the risk on the client's behalf
and agreed to perform as much work and expend whatever time was necessary. Watson and Lentner matched or exceeded the efforts the efforts
of Progressive and eventually the client prevailed. The client recovered all of
the unpaid PIP benefits plus interest and the lawyers recovered cost and
attorney's fees.
As to the Settlement of the Bad Faith Case: That the client understood that there was a disagreement between co-counsel and that Larry Stewart believed the Bad Faith case was far more valuable
and that the clients should not accept Progressive's offer. The client also understood that Larry Stewart believed that we had an advantage at that
moment in the case. The decision to accept the settlement offer was made by
the client independently. That the client was aware that they could speak to
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Larry Stewart about his view of the case and that the client was free to contact Larry Stewart and that the client was never told that they could not speak with him.
Judge Watson did not represent Larry Stewart or William Hearon, the
complainants in the Florida Bar and the JQC matter. They were co-counsel in the
bad faith case and Judge Watson did not owe a fiduciary duty to either of them.
Larry Stewart had no personal knowledge of the discussions and extent of the
representation that Judge Watson had with her clients. The only competent direct
evidence possessed by the JQC regarding Rules 4-1.4(a), 4-1.4(b), 4-1.5(f)(1), 4
1.5(f)(5), and 4-1.7(c) were the affidavits from Judge Watson's clients which
establish that there was no violation of these rules.
VL CONCLUSION
Pursuant to Rule 12(a) of the Florida Rules of Judicial Qualifications
Commission, and Rule 1.350 (b) of the Florida Rules of Civil Procedure, Judge
Laura M. Watson moves the Commission to compel all documents in the JQC's
possession, including all witness statements and correspondence between these
witnesses and the JQC, provide a proper response to the Request for Production,
overrule all of the JQC's objections, and require a proper response stating whether
or not the documents requested exist. As stated by the Rules of Civil Procedure:
"When producing documents, the producing party shall either produce them as
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they are kept in the usual course of business or shall identify them to correspond
with the categories in the request." Rule 1.350(b). If an objection to a request for
production or request for admissions is made, the objection must be as specific as
an objection to evidence at trial.
WHEREFORE, the undersigned respectfully requests that this Commission
grant Judge Watson's Motions and order the following:
G042Overrule all of the JQC's objections, compel all documents in the JQC's
possession and require the JQC to provide a proper response to the Request
for Production;
G042Require Mr. McGrane to file an accurate response to the demand for witness
statements with a schedule of all statements of witnesses he has received by
email or other written form;
G042Impose sanctions against Mr. McGrane;
G042Extend discovery so that the documents can be discovered and the
deposition of Mr. Stewart can be concluded and follow-up depositions can
be taken;
G042Continue the February 10, 2014 trial date so that full and complete discovery
can be accomplished.
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SWEETAPPLE, BROEKER & VARKAS, PL Attorneys for Defendants 20 SE 3'd Street Boca Raton, Florida 33432 Telephone: (561) 392-1230 E-Mail:[email protected]
By: ROBEkT A. SWEETAPPLE Florida Bar No. 0296988 ALEXANDER D. VARKAS, JR. Florida Bar No.:0563048
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by e-mail on this 13'h day of January, 2014 to: The Honorable Laura M.
Watson, ([email protected], [email protected]) 201 SE 6th Street,
Rm. 1005B, Ft. Lauderdale, FL 33301; Miles A. McGrane, III, Esquire,
([email protected], [email protected]) The McGrane Law Firm,
Special Counsel, 2103 Country Club Prado, Coral Gables, Florida 33134; Lauri
Waldman Ross, Esquire, Counsel to the Hearing Panel of the JQC, Suite 1612,
9130 South Dadeland Boulevard, Suite 1612, Miami, Florida 33156 (Email:
[email protected], [email protected]); Michael L. Schneider,
Esquire, [email protected], General Counsel, 1110 Thomasville Road,
Tallahassee, Florida 32303; Henry M. Coxe, III, Esquire, Bedell, Dittmar,
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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:E-Mail:[email protected]
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DeVault, Pillans & Coxe, P.A. Atty for Florida Bar, 101 East Adams Street,
Jacksonville, FL 32202 (Telephone: 904-353-0211; E-Mail:[email protected]);
Melissa W. Nelson, Esquire, McGuire, Woods, LLP, Atty for Florida Bar, 50 N.
Laura Street, Suite 3300, Jacksonville, FL 32202 (Telephone: 904-798-3200;
Facsimile:904-798-3207).
Pursuant to FJQCR Rule 10(b) a copy is furnished by e-mail to: The
Honorable Kerry L Evander, [email protected], Chair of the JQC, 300 S.
Beach Street, Daytona Beach, Florida 32114.
SWEETAPPLE, BROEKER & VARKAS, PL Attorneys for Judge Laura M. Watson 20 S.E. 3'd Street Boca Raton, Florida 33432 Telephone: (561)392-1230 E-Mail:[email protected]
By: ~'
ROBERT A. SWEETAPPLE Florida Bar No. 0296988 ALEXANDER D. VARKAS, JR. Florida Bar No.:0563048
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mailto:E-Mail:[email protected]:[email protected]:E-Mail:[email protected]
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BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION
2 STATE OF FLORIDA
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INQUIRY CONCERNING JUDGE,
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LAURA MARIE WATSON, NO. 12-613 SC13-1333
7 ;
9 ·
TRANSCRIPT OF HEARING
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DATE TAKEN: Wednesday, December 18, 2013
12 TIME: 1:30 p.m. - 2:30 p.m.
PLACE: 165 East Boca Raton Road
13 Boca Raton, Florida
BEFORE: THE HONORABLE KERRY EVANDER
14
15 This cause came on to be heard at the time and
place aforesaid, when and where the following
16 proceedings were reported by:
17 Terri Wright
United Reporting, Inc.
18 1218 Southeast Third Avenue
Fort Lauderdale, Florida 33316
19 (954)525-2221
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EXHIBIT
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1 TELEPHONIC APPEARANCES:
2 THE HONORABLE KERRY EVANDER, ESQUIRE
Fifth District Court of Appeal
3 300 S. Beach Street
Daytona, Florida 32114
4
5 MILES A. MCGRANE, III, ESQUIRE
THE MCGRANE LAW FIRM
6 9100 S, Dadeland Blvd., #1500
Miami, FL 33156
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8 LAURI WALDMAN ROSS, ESQUIRE
COUNSEL TO THE HEARING PANEL OF THE
9 FLORIDA JUDICIAL QUALIFICATION COMMISSION
ROSS & GIRTEN
10 Two Datran Center, #1612
Miami, FL 33156-7818
11
12 TEE HONORABLE LAURA MARIE WATSON
Broward County Courthouse
13 201 SE Sixth Street, Room 1005B
Fort Lauderdale, FL 33301
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15 ROBERT A. SWEETAPPLE, ESQUIRE
SWEETAPPLE, BROEKER & VARKAS, PL
16 165 East Boca Raton Road Boca Raton, FL 33432
17 561-391-1230
18
MICHAEL SCHNEIDER, ESQUIRE
19 BROOKE KENNERLY, EXECUTIVE DIRECTOR
1110 Thomasville Road
20 Tallahassee, FL 32303
850-448-1581
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WHEREUPON, the following proceedings were had:
2 THE COURT: Who do we have?
3 MR. SWEETAPPLE: Robert Sweetapple with Judge
4 Watson and the Court Reporter.
5 THE COURT: Okay.
6 MR. MCGRANE: Miles McGrane, Judge.
7 MS. KENNERLY: Mike Schneider and Brooke
8 Kennerly,
9 MS. ROSS: Lauri Ross. And my understanding
10 is the Court Reporter is with Mr. Sweetapple and
11 Judge Watson..
12 MR. SWEETAPPLE: That's correct.
13 THE COURT: We'll go ahead and proceed. We'll
14 gc ahead and go along the same order as what's in
15 the notice of hearing, the status conference. And
16 I'll hear argument five minutes each side. And
17 let's start with the motion to extend the
18 deposition deadline.
19 MR. SWEETAPPLE: May it please the Court. In
20 preparation for the hearing I issued subpoenas to
21 Mr. Tilghman, Mr. Hearon, Mr. Bianchi and Miss Muir
22 of the Florida Bar, they were Duces Tecum. I also
23 attempted to serve Mr. Stewart who appeared and
24 brought some documents without a subpoena but I did
25 not finish his deposition and I'm going to need to
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subpoena him as well.
Mr. Stewart did not bring all of the e-mails in
question, and all of the other witnesses objected.
And there is going to be, with regard to Miss Muir,
at least, her attorney, Mr. Cox, has indicated that
he's going to provide me hopefully by Friday with a
privilege log and then we're going to have to
determine the scope of discovery.
And certainly one of the issues that you're
going to have to decide concerns the issue of
ccmplaints because, with all due respect, in your
order that you issued in the last hearing you cited
the Judge Woods and the Judge Graziano decisions,
those cases were all decided - each decided under
the former rules of judicial administration that
did not provide for the loss of confidentiality of
complaints. And in fact, the old judicial rules
are cited. And what I did is I filed with the
Court yesterday a copy of the new rule, which
actually provides that the following records of
judicial branch shall be confidential. And then it
says: Complaints alleging misconduct against
judges until probable cause is established.
The only guidance that deals with the
complaints themselves is the judicial rules. And
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these rules were passed after those cases. And I'm
still taking the position, I want to argue to the
Court before I depose these witnesses, that I'm
entitled to complaints.
The other fact that's going to become germane
here, Judge, is that we made a request of
Mr. McGrane under Rule 12B for statements of all
witnesses. And Mr. McGrane filed with the panel on
August 21st his response that he had no such
statements. And Mr. Stewart was listed as a
witness on the list. And as you can see from our
notice and demand to preserve all electronically
stored information; in fact, Mr. Stewart provided
statements to Mr. McGrane on July 30th, and these
are just some of the statements that we've
attached, July 30th and also on August 7th, which
he didn't disclose in his filing.
So, the rule allows for me to obtain all
statements from special Counsel, and then also
testimony and transcripts.
So, before we get into setting all the depos
and having everybody continue to object, because I
have a number of other subpoenas to issue, the
threshold issue here of my client's entitlement to
the complaint pursuant to the rules of judicial
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administration and her entitlement to statements
that were given to Mr. McGrane and others, despite
Mr. McGrane's apparently misleading statement that
' he's gotten no statements -
THE COURT: What's your authority that the
rules of judicial administration require some
independent confidentiality?
MR. SWEETAPPLE: Well, the case you cited, the
Woods case, Your Honor. The Supreme Court actually
relied on and cited the previous rule of judicial
administration. And I have a copy of the case
here. When I read the holding that you cite, that
holding is exactly what the rule of judicial
administration said, And the rules of judicial
administration apply to all judicial records.
Now, the fact that the proceeding may be
confidential is a different issue and that the
formal charges have to be given is a different
issue from the fact that now the Supreme Court has
clearly articulated that complaints are not
confidential. So, before I take depositions and
before I list witnesses we're going to have to do
some serious housekeeping here because -- if I can
finish my point to you, Mr. Stewart has testified
that he had extensive correspondence with
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1 Mr, McGrane. So, one reason that I want to take
2 Mr. McGrane's deposition is because I don't believe
3 he's being forthright with the Chair and with the
4 panel at all.
And frankly, what is even more disturbing is
6 that Mr. McGrane, despite the provisions of Article
7 5, Section 12A4, which requires that all
8 proceedings by the Commission are confidential
9 until the filing of formal charges - I have filed
with you a copy of Mr. McGrane's e-mail to
11 Mr. Stewart, And at approximately 8:00 in the
12 morning Mr. Stewart is sending by pdf to
13 Mr. Stewart a copy of the formal charges that he
14 signed that weren't filed with the Court until
about an hour and a half later - I filed a copy of
16 that as well - advising Mr. Stewart not to disclose
17 the fact that he's done so until it hits the public
18 record.
19 So, this is a case where, you no, I'm
investigating prosecutorial misconduct and I'm
21 trying to get statements of witnesses when I'm told
22 there are none and there clearly are. I'm trying
23 to get complaints when everyone as traveling under
24 old rules of judicial administration, old case
law, And contrary to what Mr. McGrane is saying,
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I'm doing everything I can to prepare this case but
to prepare it properly.
' So, with regard to the discovery issue, I
need -- and this deposition schedule deadline was
set even before I got into the case. And it was
set at a time when Mr. McGrane indicated he wasn't
taking any depositions. And we had, I think, four
witnesses listed. Now, we have so many depositions
to take, not only of his witnesses but of our
witnesses and I'm dedicating January to taking
depositions. So, I'm asking -
THE COURT: Response. I'm sorry.
MR. SWEETAPPLE: I'm asking the Court to give
us until January 30th to conclude our deposition
discovery in this case.
THE COURT: Response?
Did someone join in the phone call?
MS. ROSS: Somebody called in, but go ahead,
Judge.
THE COURT: Mr. McGrane, let me hear your
response.
MR. MCGRANE: I don't know where to begin,
It's a motion for extension of deadlines but I've
been accused of prosecutorial misconduct, I've been
accused of, in essence, lying to the hearing panel
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in responding to things. I've been accused of an
awful lot of things. But I will address
specifically the motion for extension of deposition
deadlines, which I think is before us.
Number one, for the first time -- Well, his
motion for extension of deposition deadlines didn't
set forth anything. For the first time we hear
that he now wants it up through and including
January 30th when we have a final hearing scheduled
for February 10th. That certainly is prejudicial
to us.
A number of things were outlined to the Chair
just now. We still don't know who he wants to
depose. He keeps saying, there's number of people,
a number of people, a number of people. There's no
definitive schedule or listing of who he wants to
depose and why he wants to depose them. I'm not
going to argue the issues where he's impugning my
integrity as a lawyer after 38 years, I'll address
those later when he takes my deposition.
My position is, we have an inarticulate motion
with a rambling outline of what has to happen with
really nothing for you to definitively put your arm
around. And I still don't know anything other than
what he's just thrown out at us. And all of the
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this deals solely with the position being taken by
Judge Watson and the position being taken by
Mr. Sweetapple that everything being done by the
JQC is somehow a manipulation by Larry Stuart and
that the JQC is part and parcel of this
conspiracy. And Judge, I would suggest to you that
this is exactly what was addressed in a most recent
case from Florida Supreme Court where a lawyer was
suspended for three years for making these
unsubstantiated allegations. I recent them. And
all I'm saying is I don't know how to respond to
this motion because none of what he said makes
sense to me.
THE COURT; Let me ask you this, where did the
depositions of Mr. Stewart - and I forget who his
partners are - Mr. Tilghman ~~ where did those
depositions end, if you would? How long were they
conducted? What happened?
MR. SWEETAPPLE: I've concluded Mr. Tilghman
and Mr. Hearon, Your Honor, other than the
documents that they objected to producing.
THE COURT: Okay.
MR. SWEETAPPLE: And Mr, Stewart -
THE COURT: How long was Mr. Stewart's
deposition? How long did it go for?
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1 MR. SWEETAPPLE: It went the good part of a
2 day. However, he produced a number of e-mails at
3 the end of the deposition and has a lot more
4 e-mails that he testified he has and indicated that
he's not going to testify any further absent an
6 order compelling him. He came in voluntarily
7 because I did not have him served.
8 MR. MCGRANE: Judge, the deposition lasted an
9 entire day. And the first time Mr. Sweetapple
asked a question about the documentation was a
11 minute to 5 p.m. And he produced everything he was
12 asked to produce. I mean -
13 THE COURT: Let me ask you -- Mr. McGrane and
14 Mr. Sweetapple, let me ask you this question,
leaving out the issue of prosecutorial misconduct
16 and discovery on that issue, et cetera, did
17 Mr. Tilghman and Mr. Hearon and Mr. Stewart, did
18 they all testify at length in the trial before
19 Judge Crow way back when and have their depositions
taken, et cetera?
21 MR. MCGRANE: Yes, sir.
22 THE COURT: Okay.
23 MR. SWEETAPPLE: Mr. Tilghman and Mr. Hearon
24 did testify at trial or in deposition.
THE COURT: Okay. Mr. McGraner anything
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further before I give Mr. Sweetapple a chance for a
minute rebuttal?
MR. MCGRANE: No, sir.
THE COURT: Mr. Sweetapple.
MR. SWEETAPPLE: Yes, I have to take Miss Muir
from the bar when her lawyer gets done with the
privilege log. I still have to finish Mr. Stewart,
I have to take Todd Stewart. And I need to take
any experts -- they haven't disclosed who their
expert is. I have witnesses that Judge Watson's
listed who I don't know what they are going to say
and I want to depose them, they'll be relatively
brief. I need to have time to prepare for this
hearing.
The December 16th date was set very early in
this proceeding before the extent of discovery was
known. I mean, this was an eight week trial, I
believe, on the underlying charges which are
basically the same charges that are being brought
here.
So, the idea that I'm going to be able to take
discovery in the month I've been involved in the
case and finish working the case up in one month is
just not realistic.
THE COURT: Let me ask you both this, the
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1 Florida bar individual, I mean, what's her title?
2 MR. MCGRANE: Judge, she was the -
3 THE COURT: Grievance Committee or bar
4 official; who is she?
S MR. MCGRANE: She's an employee of the Florida
6 bar who's employed by the Florida bar to serve in
7 the capacity to prosecute grievances in that
B capacity.
9 THE COURT: I don't recall seeing a notice to
10 take her deposition. Did I miss that? Or was
11 there a notice or subpoena or -
12 MR. SWEETAPPLE: Yes, there was a subpoena and
13 a notice and I cancelled it at the request of her
14 attorney because he's told me there are dozens and
15 dozens of pages of documents, they are producing
16 about 85 percent of them but they think about 15
17 percent will be subject to objection. And I've
18 reminded him of the law that I cited in the notice
19 I filed with the Court that, you know, you're
20 required to designate the confidentiality when you
21 submit to the bar and the basis of confidentiality,
22 he's going to put that on his privilege log as
23 well.
24 THE COURT: Do you have handy when you did the
25 subpoena notice and when the -
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1 MR. SWEETAPPLE: It was set a couple weeks ago,
2 three weeks ago, about the same time I was doing
3 the other depos. That was - when I got that
4 objection after getting all the others I realized I
S was just going to get nowhere until we had the
6 threshold issues addressed of my right to the bar
7 records, the complaints and statements to the bar
8 are going to be pretty much the sæme basis for the
9 probable cause in the JQC case.
10 In fact, the JQC has said that, that they
11 relied on those statements so I'm entitled to see
12 the statements of the bar. I think that's clear.
13 And to -
14 THE COURT: Let me stop you. Mr. McGrane, on
15 the bar official, that was noticed before the
16 motion to extend deposition deadline and I
17 understand the bar will may make their own
18 objections and so, I'm not asking you to make them
19 for them, but what's your position on the right to
20 take that deposition?
21 MR. MCGRANE: I have no standing, Judge.
22 THE COURT: Well, no, as the member of the JQC
23 or the attorney for the JQC investigative panel who
24 is objecting to the extension of time to take
2S depositions, what's your position with regard to
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MR. MCGRANE: Other than the subject matter,
once again, is to show this grand conspiracy, I
see no relevance and to waste our time -
5 THE COURT: Well, if it's -
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MR. MCGRANE: - if you want to waste our time,
that's fine. There is no legal objection to
prevent that from being taken.
THE COURT: Mr. McGrane, as far as statements
of witnesses.
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MR. MCGRÄNE: I didn't get any statements
witnesses from them. I don't know where he's
from
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coming up with
flabbergasted.
this stuff, Judge. I'm sitting here
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THE COURT: All right. Let's move onto the
next motion. I'm probably just going to take them
all under advisement and look at the case law
18 here.
19 So let's move onto the next one, which was
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Motion to Compel the appearance of Judge Watson for
deposition and Judge Watson's objection and Motion
for Protective Order. It would probably be easier
to hear - Well, the motion for Protective Order
was filed first. Mr. Sweetapple, you can proceed
on that.
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MR. SWEETAPPLE: Thank you very much, Your
Honor. With regard to the motion, I would like to
make reference to the fact that Mr. McGrane in his
own Motion to Compel acknowledges that you
sustained the objection to the earlier attempt to
obtain documents from Laura Watson individually.
Then he goes onto say that on December 4th, 2013
Judge Watson was served with a subpoena at her
chambers to appear as records custodian for
Habermil Holdings, LLC. And that's just not the
case.
What Mr. McGrane did is after you told him not
to attempt to get documents directly from her, he
served a subpoena on Laura - the Honorable Laura M.
Watson, Circuit Court Judge. And then he did a
notice of taking videotape deposition which says,
Laura M. Watson and he attaches the whole - the
entire document is about 25 pages long. And he
basically, after you said she doesn't have to
answer the interrogatories or response to the
request to produce, he attaches the request to
produce to the subpoena he delivers to her
individually.
And the reason that we are insisting that a
records custodian be served is so that we can make
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the proper objections because Judge Watson is no
longer practicing law. She's not going to be in a
position to write clients to see ii they want all
of these exhibits and documents that he's asked for
released. So, the word Habermil and records
custodian, despite Mr. McGrane's filing of a motion
saying this, don't appear. He's just re-erred
again.
THE COURT: Mr. Sweetapple, two questions
here: One is your motion really seems to be two
parts. One is the objection to service on Judge
Watson as a records custodian. But the second part
was also a Motion for Protective Order as to the
taking of her deposition as a party in this case.
Is that second objection just because of the
particular date as opposed to an objection to her
being deposed?
MR. SWEETAPPLE: No, part of that dealt with
the fact that she's entitled to 30 days to try to
produce documents. The other part of it not only
dealt with the date, which is now moot but it also
dealt with the fact that this is incredibly
burdensome if she's going to bring these documents
because as I've set forth and she's prepared to
file an affidavit, there are 225 boxes involving
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this litigation. And it would take her over a
hundred hours to locate -- He has seven different
classes of documents for 46 clients that he wants
her to go through all these boxes and locate.
Now, I would point out - and I make the
argument in the motion and I hope you'll indulge
me ~ but I argued that it's so remote and not
calculated to lead the discovery of any admissible
evidence. And in regard to that, you know,
disciplinary actions under the rules regulating the
bar are in the exclusive jurisdiction of the
Florida Supreme Court and the bar. The bar allowed
the statute of limitations on these claims to run.
There's a six year statute of limitations. The
Walters case talks about prosecuting lawyer
misconduct for more than seven years after it
occurs is unreasonable.
Now, how are these records from now 10 years
ago calculated to lead to the discovery of
admissible evidence? You now see this is a case
before the JQC, which doesn't even involve an
allegation of judicial misconduct. The entire
jurisdiction prudence of the JQC allows looking
back for a reasonable time to conduct that shows a
pattern or character or otherwise relates to
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judicial misconduct.
What Mr. McGrane is trying to do -
THE COURT: You're repeating prior arguments.
MR. SWEETAPPLE: No, I'm not.
THE COURT: Hold on, Mr. Sweetapple. I didn't
interrupt you. Let me finish here. I can't help
but have noticed the language in the Henson case on
prior rules of discipline. Let me go ahead and
hear Mr. McGrane's response to this, to your
objection.
Mr. McGrane,
MR. MCGRANE: Well, first of all, Judge, you've
already ruled on the statute of limitation issue
twice. I'm not going to address the six year
argument that keeps coming up.
But let me argue backwards. Judge Watson
listed 92 either witnesses or people by category;
and of them 46 were former clients. I'm asking for
specific things from their files, not 250 files, I
would suspect that she has a file for each and
every one of these clients. So, it's not that
burdensome to go in.
The very allegations that the JQC is proceeding
on is her failure to number one, properly obtain a
contract of representation where it addresses
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conflicts and potential conflicts once the
settlement was reached in the bad faith action that
they failed to comply with the rules concerning
contracts. So these documents are not only
relevant they're really the whole thrust of the
case that the Florida bar brought initially and now
the JQC is proceeding on.
So, to argue that they're not relevant or don't
lead to relevant information, frankly just can't
accept that argument. So we have that situation.
For the six years that keep coming up alluding
all during this time, Judge Watson was under the
threat from the Florida bar concerning this
grievance matter, I suspect these records have been
kept. That deals with whether or not they're
relevant, whether or not I'm entitled to them.
Judge Watson is the only individual named on the
corporate records for Habermil Holdings, LLC.
THE COURT: Why wouldn't the subpoena be
addressed to the records custodian and let them
choose the records custodian?
MR. MCGRANE: I guess technically if we need
another typing exercise we can, Judge. But, you
know, here's what the corporate records say: Laura
Watson is the contact personr Laura Watson is the
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member, Laura Watson is the authorized
2 representative, Laura Watson is the managing
3 . member. It clearly delineates. So if we need to
4 do a typing exercise and serve another subpoena I
5 will do that. But it goes exactly to what you said
6 at the last hearing and that is we shouldn't be
7 playing shell games. They know what I want. The
8 only reason I am having anyone show up as a records
9 custodian is to say that these are the records that
10 are kept in the normal course of business.
11 So, you know, I made a scrivener's error and
12 didn't put comma as records custodian, sobeit. But
13 it is absolutely a game. We discussed this fully
14 at the last hearing. I tried to do it some other
15 way and that is to serve it through Counsel. So,
16 you know, I just find that all of this is an action
17 on the part of Judge Watson and her attorney to
18 ensure that February 10 comes and goes without this
19 matter going to hearing.
20 THE COURT: Mr. Sweetapple, your argument that
21 he needs to serve on the records custodian, I
22 understand that argument, but who is - or how can
23 one discover who the records custodian is if the
24 only documents they have list your client?
25 MR. SWEETAPPLE: That's just because
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Mr. McGrane is again misleading you like he did in
his filings saying there were no statements. The
registered agent is disclosed as Steven Rakusin.
Mr. McGrane just keeps telling you things that
aren't true.
MR. MCGRANE: He is the registered agent,
Judge. The lawyer who protects -- who gets service
of process.
MR. SWEETAPPLE: He said the only name on any
document -
MR. MCGRANE: No, When Mr. Sweetapple
suggested we serve him, Judge Watson interrupted
and said no, the subpoena must be served on me,
Judge.
MR. SWEETAPPLE: And that's in the transcript.
That's in the transcript, Mr. McGrane.
THE COURT: That is must be served on her?
MR. MCGRANE: Yes.
MR. SWEETAPPLE: I'm going to ask to have
Mr. McGrane provide a copy of that and fill it with
the Court -
THE COURT: We have the transcript.
MR. SWEETAPPLE: I don't -- my client -
THE COURT: (inaudible)
MR. SWEETAPPLE: Mr. McGrane is making another
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representation to you. But Mr. Rakusin -
THE COURT: Wait. Let's resolve this. Let's
. go to the transcript and see what Judge Watson
said.
MR. SWEETAPPLE: Who has the transcript?
THE COURT: Judge Watson filed both November 13
and November 18.
. MR. SWEETAPPLE: I don't have a copy with me so
' I can't assist you.
MS. ROSS: We'll look at it.
THE COURT: Judge Watson, do you have one handy
there?
JUDGE WATSON: I'm trying to pull it up from
the Supreme Court website, But what happened was
-- because Mr. Sweetapple and I were not in the
same room and he suggested I accept service and
what I said was I will not, that there's a
registered agent. And then the Court -- there was
some more discussion and you suggested that
Mr. McGrane serve me personally -
MR. SWEETAPPLE: And he wanted to know where.
JUDGE WATSON: And he wanted to know where and
then I said, my office, if you're going to serve me
but I didn't agree to accept service. I said all
along it should be the registered agent.
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MR. MCGRANE: You know something, Judge -
THE COURT: Hold on a second. I think -
MR. MCGRANE: What happened is Mr. Sweetapple
said I'll accept service of process. And Judge
Watson interrupted and said no, no, no, you won't.
And he also said, there's a registered agent. And
she said, no. I have quoted in my motion: I do
think exactly the rules of discovery is designed to
prevent this type of shell game, if you would,
where this person doesn't have to accept
individually if you know, the only one in essence
of the absolved corporation here at a holding
c�523mpanyfor the P.A.
But if Judge Watson is going to insist on it,
go ahead and serve her at her office. She has made
the choice, that's fine -
THE COURT: Hold on a second.
JUDGE WATSON: This misrepresents -
THE COURT: Hold on. I'm looking at the
transcript. Let me have 30 seconds with no one
speaking. All right?
I think we talked about that the registered
agent doesn't answer the problem. You have to
subpoena someone from the holding company. There's
only one person listed. The registered agent
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doesn't answer the inquiry, So, who is it that
Judge Watson would say needs to be served as the
records custodian or to designate the records
custodian?
MR. SWEETAPPLE: No, we -- I think -- I don't
have the transcript but my recollection is we made
it clear that she would accept service as the -- as
a record custodian -
THE COURT: The only problem is that this
subpoena didn't say Laura Watson as records
custodian or Laura Watson -
NR. SWEETAPPLE: On behalf of Habermil. She's
only served individually here. You already heard
that objection. And then we can designate whoever
we want to be the records custodian after she's
served.
THE COURT: I got it. Understood.
MR. SWEETAPPLE: Then I can decide if I want to
ask the bar to prepare an inventory and have
someone notify these clients so Judge Watson
doesn't undertake to practice law while she's a
judge.
THE COURT: Mr. McGrane, any further argument
on this issue before I give Mr. Sweetapple a minute
to respond?
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MR. MCGRANE: No, sir.
2 THE COURT: Mr. Sweetapple, anything further?
3 MR. SWEETAPPLE: Mr. McGrane said to you that
4 all the documents only show Judge Watson, which
5 isn't correct. They show that there is a
6 registered agent. And if he serves Judge Watson as
7 the registered agent of this entity we will have
8 the right to determine who we want to have be the
9 registered agent to bring these docmments and to
10 try to locate them, which may take some time, but
11 we'll probably have to hire somebody because I
12 don't think Judge Watson is going to be able to
13 devote the time to be a sitting judge and go
14 through 46 boxes looking for seven different types
15 of documents. She barely has time to defend
16 herself in this proceeding and serve as a Judge.
17 And also, at that time we will decide how we're
18 going to deal with the issues that clients have got
19 to be notified and advised of the fact that we
20 intend to disclose their records.
21 THE COURT: Let me ask both of you this: How
22 much of these closing statements, et cetera, were -
23 if you know - were presented at the trial before
24 Judge Crow?
25 MR. SWEETAPPLE: Well, Your Honor, I do know
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from reading the record that certain fee agreements
were certainly part of the record, but I would
think that all of this evidence would have been
before the investigatory panel before they found
probable cause. And what's curious here is there's
all this discussion and the request for Mr. McGrane
where he concludes that these closing statements
and contingency agreements have to comply with
certain rules of conduct, he apparently hasn't
focused on the fact these were not personal injury
cases, these were not contingency clients, these
were pure contingencies where the client collected
money, it was a commercial type representation,
He's citing rules of the bar and they've charged
Judge Watson under rules of the bar that don't even
apply to this representation. But -
THE COURT: Mr. McGrane, can you answer my
question about how many of these documents came in
in the trial in front of Judge Crow?
MR. MCGRANE: Yeah, and that's why I can't
understand how they now have to argue that they
want to go and contact the clients. From my
reading of the transcript all of them went into
evidence. How now all of a sudden a privilege was
waived or violated becomes effective again is
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beyond me, Judge.
MR. SWEETAPPLE: If they are all in evidence,
Judge, he can get them from the Court.
THE COURT: Hold on, Mr. Sweetapple, If all
these documents were in front of Judge Crow, would
that -- if we were able to get hold of those, I
don't know if we will or not, will that meet your
need to have these documents?
MR. MCGRANE: I tried to go past the Clerk's
office and apparently once the case was closed
either they were destroyed or returned. So, I did,
because Mr. Sweetapple indicated that most or all
of them are in the Palm Beach County Courthouse and
if they are, I can't get them. But I do know that
whatever privilege may have existed was waived a
long time ago.
THE COURT: Okay.
MR. SWEETAPPLE: Were charges filed without
these documents?
THE COURT: We're going to go to the next
motion.
The motion to extend deadline for all expert
and character witnesses. Mr. Sweetapple?
MR, SWEETAPPLE: Yes, Your Honor, I have
experts on a number of topics. And I am
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interviewing character witnesses, And I need time
to finish meeting with the experts and with the
character witnesses to decide who I'm going to
call. And there's no -- If he wants to depose
them, he can depose them at the end of January, the
beginning of February.
He indicated he was taking no depositions and
now all of a sudden, you know, he needs to know who
my witnesses are and he's prejudiced. He was ready
to go to trial immediately in February, now we find
out this went to investigatory panel and none of
these records were even in the JQC's possession.
THE COURT: Mr. McGrane, response?
MR. MCGRANE: Judge, when I said I intended to
take no depositions it was based upon the status of
what was then disclosed to me. Since then they've
indicated that they intend to produce experts.
Number one, I will need to depose them. And
then number two, I need to discuss whether in a JQC
proceeding, an expert is even applicable or
permitted, which will require a motion to be
prepared. And Your Honor has a cut-off, I think
I don't have it in front of me, but I think it's
January 29th when we're supposed to have a final
pretrial, which I suspect would be any motion, me
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attacking the right for someone to produce an
expert.
. So while it's easy to gratuitously say it
doesn't prejudice the JQC, it does. And while
gratuitously I kept saying I wasn't going to take
depositions, it was based upon the then record.
So, it is prejudicial. And if he's interviewing
them he must have some idea and he must be able to
proffer what areas they're going to potentially
testify. But it is prejudicial.
MR. SWEETAPPLE: Your Honor, some of these
experts -
THE COURT: Are you anticipating calling any
experts, Mr. McGrane, or is it a wait and see what
happens with theirs or where are you on the expert
issue?
MR. MCGRANE: Yes, sir, wait and see.
THE COURT: Excuse me? Wait and see. All
right.
MR. SWEETAPPLE: Your Honor, just to give
Mr. McGrane some idea and to give the Court some
. idea, there were a number of experts called in the
trial before Judge Crow. And in fact, Mr. Stewart
24. testified as an expert and that expert testimony,
25 which the Court indicated in the rejecting
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Mr. Stewart's testimony and taking some of it, but
it's clear when you look at the underlying
allegations in this case that there have been
numerous experts that have testified. And there
will be testimony and some of the testimony is
going to deal with the fact that the very things
that Mr. McGrane is complaining are required by the
bar rules aren't required for these types of
representation.
And the bar is terribly confused because they
think these are contingency cases because it's an
insurance company. These are not contingency
cases, The bad faith cases are not even governed,
and that's one of the things the expert's going to
establish here, we believe.
THE COURT: Let's take up Mr. McGrane's
objection to the notice to take his deposition.
MR. SWEETAPPLE: Can I be heard first?
THE COURT: No, I'm going to let Mr. McGrane
argue his -- it's his motion for protective order.
MR. MCGRANE: Judge, they served a subpoena on
me and while it was a long preamble, not until you
get to Page 7 do they really set forth what they're
looking for.
And number one is -- First of all, I don't
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1 think he should be able to take my deposition to
2 begin with.
3 The whole thing goes to the fact that every
4 time Mr. Sweetapple opens his mouth, somehow I'm
being accused of wrongdoing. And the whole thrust
6 of this deposition is to, again, to show that I'm
7 part and parcel of some grand conspiracy controlled
B by Larry Stewart starting in 2004 and somehow he
9 convinced the Florida Bar to be a collection agency
against Judge Watson. And that somehow after she
11 got elected to become a sitting judge that he then
12 somehow convinced the JQC to become a collection
13 agent for the Stewart Law Firm. And that somehow I
14 guess I'm a pawn or had cozied up or am being
controlled by Larry Stewart. That's the whole
16 thrust of this. I don't care how you label it,
17 it's a personal affront to me.
18 So number one, any documents showing the date
19 you were officially retained to become Counsel of
record for the JQC. I think that is protected by
21 privilege.
22 Number two, any and all electronic
23 communications, correspondence or any other
24 communications as defined above between you and any
member, employee or representative of the JQC or
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1 the Florida Bar, or any, quote, interested person
2 including Larry Stewart, David Bianchi and William
3 Hearon from. January, 2012, until such time as you
4 were retained to appear as special Counsel in this
5 proceeding.
6 Again, if in fact any of those documents exist,
7 that predates the filing of the formal charges and
8 . would be protected by the privilege set forth in
9 the constitution.
10 Number three, any and all electronic
11 communications, correspondence or any other
12 communications as defined above between you and any
13 member, employee or representative of the Florida
14 Bar or any interested person including Larry
15 Stewart, David Bianchi and William Hearon from any
16 period from the notice of formal charges up until
17 the present time.
18 Judge, that invades my work product as I
19 represent on behalf of the JQC.
20 Now, if they want to serve subpoenas on Larry
21 Stewart, David Bianchi, William Hearon to get them,
22 and they already have, and they already have
23 everything in their possession, that's fine. But
24 it's broad in scope, it's protected, and like I
25 said, aside from the fact that I find it a personal
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affront with these allegations, privileged and they
are not entitled to it.
THE COURT: Response?
- MR. SWEETAPPLE: Yes, Your Honor. First of
· all, I'm somewhat surprised that Mr. McGrane is
' affronted. Article 5, Section 12A4 of the Florida
Constitution mandates that all proceedings by the
Commission are confidential until the filing of
formal charges. Not only is that in the
Constitution, it's in this Florida Judicial
Qualifications Annual Report from January, 2012
when Mr. McGrane was the Chair of the JQC.
Now, what I filed with you today was Laura
Watson's notice of filing documents for
consideration by the JQC. In it is an e-mail from
Mr. McGrane at 8:10 in the morning, Mr. McGrane
went to work rather early that morning and he
e-mailed Mr. Stewart on his iphone and pdf'd him
the notice of formal charges. And then he says:
Please do not forward to anyone until this
afternoon. I want to ensure it's on the Supreme
Court docket before you do.
Now, I have attached the notice of formal
charges that were filed by Mr. McGrane and they
were actually filed at 9:36 in the morning. So
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about an hour and a half before they were filed,
despite what the constitution requires, Mr. McGrane
sent his buddy a copy of the formal charges. Then
despite the fact that he's engaged in numerous
e-mails with Mr. Stewart, by Mr. Stewart's own
admission and production, and despite the fact that
Rule 12 clearly says that we were entitled to all
written statements of witnesses in the possession
of Counsel. Despite that, Mr. McGrane files
regarding written statements, transcripts of
testimony, he files on August 21st, 2013, the JQC
has no written statement of any of these
witnesses. And he's holding the two e-mails from
Mr. Stewart that I've attached to the request that
there be no destruction of electronic files.
So, with all due respect, you know, my -- all
the red flags are flying in my mind. I've been
trying cases for 33 years, that's enough to concern
me about whether or not I'm having compliance.
Then I hear he needs the evidence to prove case
against my client and he didn't have it at the
notice of formal -- at the investigative stage.
Then I look at e-mails from Mr. Stewart to him
talking about getting restitution, they're trying
to get restitution from Judge Watson. If he has -
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and I'm asking for periods of time before he was
even Special Counsel because I believe based on
· what I see here and what Mr. Stewart testified to,
there is a lot of communication between Mr. Stewart
and his partners and others, and Mr. McGrane has
responded to them. And if he wants to prepare a
privilege log, there certainly can be an in-camera
inspection.
But I cited to the Court also the recent case
In Re: Erickson, the 2010 case for the proposition
because it dovetails into the change in the rules
of judicial administration that allows complaints
to now be obtained. And what the Court said is the
confidentiality of 6B hearings is thus aimed at
protecting judges from unsubstantiated claims, not
meritorious claims that advance to a hearing
panel.
Then they went on to say: Accordingly we find
that the hearing panel was authorized to consider
the testimony of Judge Erickson that was presented
during the investigative proceeding before the
filing of the notice of formal charges.
So now the law allows the discovery of
complaints and statements that are made before the
filing. I want to know what these witnesses said
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to Mr. McGrane before he filed and leaked this
information to Mr. Stewart. And I want to know
what Mr. McGrane said back to Mr. Stewart and his
contemporaries. Because as far as I can tell,
Judge, this is just a recycled bar complaint where
the statute of limitations ran. And I want to know
why this is going on. It's unprecedented.
When she became a Judge she didn't agree to
subject herself to the rules regulating the bar and
be disciplined by the bar and then when the bar
doesn't do anything, and doesn't file formal
charges, to then have the JQC decide they're going
to be the Florida Bar. So there's lot of red flags
in this case, Judge, and I'm entitled to
investigate prosecutorial misconduct in light of
this record and I am entitled to get statements
under their own rules.
He's misrepresented the fact there are no
statements and I'm entitled to have this
information to move to disqualify Mr. McGrane, who
participated - he was a member of the JQC and the
Chair probably at the time these communications
took place - I want to find that out. He was part
of the investigatory procedure and now he's part of
the prosecutory procedure.
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There are a number of things that are going to
be relevant to Mr. McGrane's deposition and it
would deny my client her due process rights not to
have these documents produced. And if he has a
privilege he wants to assert, let him assert it and
then you decide whether or not we're playing this
game by the rules or not.
We got disconnected.
THE COURT: Okay. Let me take role again.
Ms. Ross took role. Let me make sure we still have
everyone. And I also ask -
MS. ROSS: I just called Cynthia and she said
she just heard you announcing yourself.
MR. SWEETAPPLE: Yes.
THE COURT: 'And Mr. Schneider and Kennerly, are
you still there?
MS. KENNERLY: Yes, sir
THE COURT: Mr. McGrane, are you still there?
MR. MCGRANE: Yes, sir.
THE COURT: Mr. Sweetapple, are you with Judge
Watson or is she separate?
MR. SWEETAPPLE: No, she's here.
THE COURT: All right. You were in the middle
of arguing the Erickson case when you cut off.
MR. SWEETAPPLE: Yes. What I was saying is
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that the Erickson case makes it clear that the
confidentiality is to protect the Judge from
unsubstantiated claims. They allowed the testimony
that took place before the hearing panel at the
investigative stage, specifically Judge Watson's
testimony -
MS, ROSS: Hello?
THE COURT: We lost him again. You're back.
MR. SWEETAPPLE: We could hear you, but you
couldn't hear us.
THE COURT: I don't know why yours is going
off. But go ahead, Mr. Sweetapple.
MR. SWEETAPPLE: Yes. I could hear you trying
to get me, or one of the staff attorneys trying to
get me.
Basically, Your Honor, what I was citing to the
Court in the Erickson case dealt with the fact that
the Supreme Court recognizes that confidentiality
of 6B hearings is aimed to protecting judges from
unsubstantiated claims. And the -- Am I still on?
THE COURT: Yes.
MR. SWEETAPPLE: And the testimony of Judge
Erickson was admitted even though it was from the
investigative proceeding. In this case, we're
entitled to all statements and those statements we
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believe were sent to Mr. McGrane before he became
Counsel. And even after he became Counsel, those
statements should have been provided to us and they
weren't. So, I'm entitled to take his deposition.
He can prepare a privilege log and then you can
review in-camera and determine what I'm entitled
to.
THE COURT:. All right. Mr. McGrane, response?
MR. MCGRANE: Well, I don't know why he needs
to take my deposition to file a Motion to Compel a
better response to my response concerning
statements. I don't know how an e-mail is
considered a statement. I think a statement is
pretty clearly a work of art that is used in the
legal profession. But if he's saying every
communication, well, yes, you know, he's got to
send me a request for production before he gets to
go and start just taking my deposition to ask
questions and I can respond accordingly.
And I can tell you right now, Judge, once
again, this whole thing is premised on me violating
the rules governing litigation and as a lawyer.
And, you know, here again, I take this rather
seriously. The Supreme Court takes such
allegations seriously.
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i
So I think before we just produce me for a
deposition, since Mr. Sweetapple really insists on
people complying with the rules, let's go ahead and
have him file an appropriate motion I can respond
tc that's directed to where he thinks I've
adequately responded to a request served on me by
Judge Watson before he was in the case and then we
can address it.
If, in fact, such documents exist, maybe I will
be required to do a privilege log. But I'm telling
you right now, Judge, it is absolutely
inappropriate for him, every time he opens his
mouth to accuse me of wrongdoing and then try and
say because of that he's entitled to take my
deposition.
THE COURT: You all are giving me quite a few
motions and -
MR, MCGRANE: Judge, one other thing I want to
point out. I don't think Mr. Sweetapple really
understands what the constitution says and what the
case says dealing with when the confidentiality is
waived and what it weighs up to. It deals with
proceedings before the JQC and a proceeding deals
with a 6B hearing for things such as this. That's
why this hearing goes on telephone, is published to
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the world so anyone can call in. The proceedings
are not confidential, but my work product is still
confidential,
THE COURT: All right. I am going to try to
get out an order covering these numerous motions.
I might be successful in getting it out in less
than a week or it might be sometime around December
30th. I certainly have it as a goal to be no later
than December 30th on all these various items,
With that, we'll go ahead and conclude the
hearing and I hope you all have good holidays.
MR. SWEETAPPLE: Thank you very much for
hearing us, Judge.
(The proceedings were concluded at 2:30 p.m.)
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1 C E R T I F I C A T E
2
3
4 STATE OF FLORIDA )
5 COUNTY OF BROWARD )
6
7
8 I, TERRT T.. WPIGHT, Notary Public in and for
9 the State of Florida at Large, certify that I was
10 authorized to and did stenographically report the
11 foregoing procee