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IN THE CIRCUIT COURT FOR THE 19TH JUDICIAL CIRCUIT

IN AND FOR ST. LUCIE COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST


COMPANY, AS TRUSTEE FOR ARGENT
SECURITIES INC., ASSET-BACKED PASS
THROUGH CERTIFICATES, SERIES 2004W11,

GENERAL JURISDICTION
DIVISION
CASE NO.: 562012

CA 001461

Plaintiff,
vs.

ORIGINAL

THOMAS BELDEN ROLLE A/KiA THOMAS B.


ROLLE A/KIA THOMAS ROLLE: JEANETTE
YVONNE ROLLE AlKJA JEANETTE Y. ROLLE
A/KiA JEANETTE ROLLE; UNKNOWN TENANT
#1; UNKNOWN TENANT #2; ANY AND ALL
UNKNOWN PARTIES CLAIMiNG BY,
THROUGH, UNDER, AND AGAINST THE
HEREIN NAMED INDIVIDUAL DEFENDANT(S)
WHO ARE NOT KNOWN TO BE DEAD OR
ALIVE, WHETHER SAID UNKNOWN PARTIES
MAY CLAIM AN INTEREST AS SPOUSES,
HEIRS, DEVISEES, GRANTEES, OR OTHER
CLAIMANTS,

ORDER ON PLAINTiFF'S
MOTION TO DETERMINE
CONFIDENTIALITY
OF COURT
RECORDS

Defendants.

----------------------------~/
THIS
Confidentiality

CAUSE

came

before

the

Court

on

Plaintiff's

Motion

to

Determine

of Court Records, the Court having heard argument from counsel and

having reviewed extensive documents, it is hereby,


ORDERED AND ADJUDGED:
1.

The Plaintiff's motion is based upon Rule 2.420, Fla. R. Jud. Admin. and requests
an order requiring that all pleadings,

motions and exhibits

relating to certain

documents claimed to be privileged be filed under seal. At the hearing, the Court

directed the parties to maintain the status quo pending an order on this motion.
2.

At the hearing, both Plaintiff and Defendant discussed other pending motions and
materials that impact directly on the Court's ruling on this matter. These matters
included two Motions for Protective Orders filed by the Plaintiff (which the Court
ruled upon in a separate order) and Plaintiff's Motion in Limine and Motion to
Disqualify Ice Legal, P.A., and Defendants, Rolle's, Opposition to the Motion in
Limine and to Disqualify. While this Court did not rule on the Motion in Limine and
to Disqualify (in that neither were noticed for hearing) the content and arguments
made in the motion and opposition, as well as both counsels' discussion of same,
assisted the Court in ruling on this motion.

3.

Rule 2.420, Fla. R. Jud. Admin., provides a specific framework for identifying
confidentiality of court records, see Rule 2.420(c}{9), and procedure to request a
determination of court records in non-criminal cases, see

Rule 2.420(e).

Defendants raise and Plaintiff admits that it failed to include the requisite signed
certificate in its motion that "the motion is made in good faith and is supported by
a sound factual and legal basis."

Plaintiff argues this certificate is a mere

technicality, but in fact the rule states it is a requirement and thus by definition
cannot be a mere technicality.
4.

Plaintiff identified the four documents at the hearing and in its Motion in Limine
which it claims contain privileged and confidential information which was
inadvertently produced.

5.

Defendants and Ice Legal, P.A.'s counsel in their response to the Motion in Limine
and at the hearing provided documents which on their face reflect that Ice Legal,
2

P.A. ("Ice") was provided exhibits through email by Plaintiffs counsel, Quintairos
Law Firm, on December 31, 2013 which also contained the four documents at
issue. Due to change of counsel, the case was continued, and re-set on a number
of occasions. The Clarfield Law Firm replaced the Ouintairos Law Firm in July of
2014 as reflected in the docket.
6.

Ice represents that it discovered for the first time on February 18, 2015 in preparing
for the re-set trial that it may have received inadvertently disclosed materials, and
that it complied with Rule 1.285, Fla. R. Civ. P. and R. Regulating Fla. Bar4-4.4(b),
in advising both the Ouintairos firm and thereafter the Clarfield firm of this fact.
Emails to and from Ice and Plaintiff's law firms dated February 18 and 19, 2015
were provided to the Court and support Ice's representations.

7.

Neither the Ouintairos firm nor the Ciarfield firm filed any written notice or
assertion, after having been provided notice by Ice, of any privilege within the 10day period, and in fact, the first claim of privilege by Plaintiff was only filed May 28,
2015, over three months later.

8.

in that no timely claim of privilege was asserted by the Plaintiff, Defendant through
its counsel (as represented to the Court) provided the documents to the Daily
Business Review (DBR) and the New York Times. The DBR published an article
on May 20, 2015 entitled "Ocwen Lawyer Accused of Using Script to Coach RobeWitnesses" referencing the now claimed privilege documents and publishing
several portions of one of the four documents. The DBR has also published other
articles dealing with this case, including a retraction of a comment made by the
Ouintairos firm wherein the Ouintairos firm stated that after making its initial

comment it had determined that Ice had followed the Florida Rules of Civil
Procedure and the Florida Rules of Professional Responsibility.
9.

Ice's counsel also represented to. the Court that as a result of the initial article,
numerous attorneys requested copies of the documents, and as a result, Ice
posted the documents on its website so that they could be accessed.

Ice

estimated that over 50 attorneys and/or law firms obtained the materials, and
obviously these materials have been or could continue to be distributed by others.
The Court was also advised that as soon as the Plaintiff filed a belated 1.285
notice, and without judicial decree, Ice removed the four documents from its
website and advised the newspapers and attorneys whom Ice knew had the
materials that the Court would be hearing matters associated with a request
relating to restricting access to or about these documents. However, neither the
newspapers nor the other attorneys who have possession of these documents are
parties to this action nor does this Court have jurisdiction over them.
10.

It is

clear from the record in front of this Court that the four documents in question

are now in the public domain, and that this Court, in this case only, does not have
the ability nor the power to fashion an order that, should it be determined in a
subsequent hearing that the documents are privileged (which the Court has not
yet determined), would prevent or restrict their circulation.

11.

At the outset, Florida law has long recognized and held that "all trials, civil and
criminal, are public events and there is a strong presumption of public access to
these proceedings and their records." Bainter v. League of Women Voters of
Florida, 150 So. 3d 1115, 1119 (Fla. 2014) {citing Barron v. Fla. Freedom

Newspapers,

lnc., 531 So. 2d 113, 114 (Fla. 1988)). The test for the seating of

court proceedings and records in Florida is set forth in Barron. See BOO Seidman,
LLP v. Banco Espirito Santo lniem., Ltd., 34 Fla. L. Weekly 0739 (Fla. 3d DCA
Apr. 8, 2009). As such, this Court is bound to follow
12.

Betton.'

The Barron decision states, in pertinent part:


First, a strong presumption of openness exists for all court
proceedings. A trial is a public event, and the filed records of court
proceedings are public records available for public examination.
Second, both the public and news media shall have standing to
challenge any closure order. The burden of proof in these
proceedings shall always be on the party seeking closure.
Third, closure of court proceedings or records should occur only
when necessary (a) to comply with established public policy set
forth in the constitution, statutes, rules, or case law; (b) to protect
trade secrets; (c) to protect a compelling governmental interest
[e.g., national security; confidential informants]; (d) to obtain
evidence to properly determine legal issues in a case; (e) to avoid
substantial injury to innocent third parties [e.g., to protect young
witnesses from offensive testimony; to protect children in a
divorce]; or (f) to avoid substantial injury to a party by disclosure
of matters protected by a common law or privacy right not
generally inherent in the specific type of civil proceeding sought
to be closed. We find that, under appropriate circumstances, the
constitutional
right of privacy established in Florida by the
adoption of article I, section 23, could form a constitutional basis
for closure under (e) or (f). In this regard, we disagree with the
district court in the instant case. Further, we note that it is
generally the content of the subject matter rather than the status
of the party that determines whether a privacy interest exists and
closure should be permitted. However, a privacy claim may be
negated if the content of the subject matter directly concerns a
position of public trust held by the individual seeking closure.
Fourth, before entering a closure order, the trial court shall
determine
that no reasonable
alternative
is available
to
. accomplish the desired result, and, if none exists, the trial court

Indeed. Fla. R. Jud. Admin. 2.420 was adopted to incorporate the holding in Barron. See Fla. R. Jud.

Admin. 2.420 committee's notes; see also In re Amendments to Florida Rule of Judicial Admin. 2.420Sealing of Court Records & Dockets, 954 So. 2d 16 (Fla. 2007).

must use the least restrictive closure necessary to accomplish its


purpose.
Fifth, the presumption of openness continues through the
appellate review process, and the party seeking closure
continues to have the burden to justify closure. This heavy burden
is placed on the party seeking closure not only because of the
strong presumption of openness but also because those
challenging the order will generally have little or no knowledge of
the specific grounds requiring closure.
Barron, 531 So. 2d at 118-19; see a/so Fla. R Jud. Admin. 2.420.
13.

In Lifecare lnietn., Inc. v. Barad, 573 So. 2d 1044 (Fla. 3d DCA 1991), the Third
District analyzed Barron in determining whether it was appropriate for a trial court
to deny a motion to unseal records that had already been disclosed in the public
domain prior to being sealed. The court reasoned:
[P]rior to August 18, 1988 [the date the records were sealed], all
documents filed in the court file were open and accessible to the
public, unless specifically filed under seal pursuant to the January
26, 1988 order. The effect of the August 18, 1988 order was to
seal documents which had previously been in the public domain.
We see no reason why the documents which were in the public
domain prior to August 18, 1988 should not be returned to the
public domain at this time.
Accordingly, the court file for the period prior to August 18, 1988
is to be unsealed with respect to those documents which were
filed in the public record and were open and accessible to the
public.
Id. at 1046. Similarly, in Romero, the Eleventh Circuit persuasively articulated that
sealing documents, the substance of which had already been reported by the
Miami Herald, could not remedy any of the highly unlikely harms that could be
caused by pretrial publicity. 480 F.3d 1243, 1247 (11th Cir. 2007).

14.

The Court has also considered Plaintiff's reliance on Smith v. Armour


Pharmaceutical Co., 838 F.Supp. 1573 (S.D. Fla. 1993) during oral argument at
6

the hearing

and rejects its application

decided in 1993, approximately

for three (3) reasons.

First, Smith was

18 years prior to the enactment of Fla. R.

Civ.P.

1.285, which this Court must now follow. Second, Smith is a federal case and is
merely persuasive

and not binding precedent on this Court. See State v. Dwyer,

332 So. 2d 333 (Fla. 1976) ("Even though lower federal court rullnqs may be in
some instances persuasive, such rulings are not binding on state courts."). Third,
the facts in Smith are inapplicable

to the instant matter.

Unlike Smith, both of

Plaintiffs counsels, the Quintairos law firm and the Clarfield law firm, were notified
by Ice as to the disclosure of potentially privileged material and both law firms failed
to "immediately

act[J to prevent its use and distribution."

at 1575. Accordingly,

15.

See Smith, 838 F.Supp.

the Court finds the Smith case to be inapposite.

Under the Berron decision and other relevant Florida case law, and in considering
the criteria set forth in Rule 2.420(e), Fla. R. Jud. Admin., the Court finds that the
Plaintiff has failed to carry its heavy burden to justify the relief sought by the Plaintiff
in this Motion, and therefore

Plaintiffs

Motion is DENIED.

The fact that these

documents are in the public domain and the "horse has long left the barn" prevents
the Court from fashioning the relief sought in Plaintiff's motion. Accordingly,
Motion To Deem Confidentially
DONE and ORDERED

of Court records is Denied.

a
.

at, Fort Pierce, SI. Lucie County, Florida this

June, 2015.

U-J~~
Honorable William L. Roby

Circuit Judge

the

day of

Copies to: Service List


SERVICE LIST
Jonathan Giddens, Esq.
CLARFIELD, OKON, SALOMONE & PINCUS, P.L.
500 South Australian Avenue, Suite 730
West Palm Beach, FL 33401

561-713-1400
Q!eadin~@..QQlw.com
David Schneid, Esq.

ROBERTSON, ANSCHUTZ SCHNEID, P.L


6409 Congress Ave., Suite 100
Boca Raton, FL 33487
mai!@rasflaw.com
Michael 8. Colgan, Esq.
BRADLEY ARANT BOULT CUMMINGS
100 South Ashley Drive
Suite 1300
Tampa, FL 33602

813-229-3333
813-229-5946

mcolgan@babc.com
Thomas Erskine Ice
ICE LEGAL, P.A.
1015 N. State Road 7, Suite C
Royal Palm Beach, FL 33411

561-729-0530
servic~@lgelegal. com
service 1@icelegal.com
service2@ice!egal.com
Robert D. Critton, Jr.
CRITTON, LUTTIER & COLEMAN, LLP
303 Banyan Blvd., Suite 400
West Palm Beach, FL 33401
Phone (561) 842-2820
Fax (561)-844-6929
Primary Emai!: rcritton@lawcic.com
Secondary Emaif: icbristow@iawcic.com.
czaguirre@bc!cfaw.com