Filing # E-Filed 06/14/ :33:44 PM

Transcription

1 Filing # E-Filed 06/14/ :33:44 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO (07) P & S ASSOCIATES GENERAL PARTNERSHIP, etc. et al., vs. Plaintiffs, STEVEN JACOB, et al. Defendants. / PLAINTIFFS MOTION FOR AN ORDER TO SHOW CAUSE AGAINST DEFENDANT MICHAEL BIENES Plaintiffs, by and through the undersigned counsel hereby file this Motion for an Order to Show Cause Against Defendant Michael Bienes and in support thereof state: 1. On November 16, 2015, the Court entered an Order on Plaintiffs Expedited Motion to Compel Defendant Frank Avellino and Michael Bienes to Produce Computers for Inspection and to Produce Documents (the Order ). A true and correct copy of that Order is attached hereto as Exhibit A. 2. Among other provisions, the Order directed Defendant Michael Bienes ( Bienes ) to deliver to AOL a written authorization to release any s sent or received by the address Michaelbienes@aol.com during the years 2008 and After receiving those s from AOL, Bienes was directed to produce all non-privileged s from AOL that are responsive to Plaintiffs requests for production. Further, Bienes was required to provide a random sampling of s received from AOL to Plaintiffs upon Plaintiffs request

2 3. Bienes was also directed to produce a privilege log of any privileged documents withheld from production. 4. On December 8, 2015, Bienes produced a report concerning certain documents which revealed that Bienes is withholding approximately 387 s on the basis of privilege. A true and correct copy of Bienes Report is attached hereto as Exhibit B. 5. To date, and despite receiving numerous requests from Plaintiffs, Bienes has refused to produce a privilege log. 6. Moreover, Bienes has not provided any responsive s to Plaintiffs. Bienes did not submit an appropriate consent form to AOL until April 2016, after several inquiries concerning the status of the production of documents from Plaintiffs. 7. Although Plaintiffs have requested a random sample of s, and the production of documents from Bienes on multiple occasions, Bienes has not produced any e- mails to Plaintiffs. 8. As our supreme court has explained, the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985) (emphasis omitted). Bienes has intentionally failed to comply with this Court s Orders and lacks any justification for his failure to take such action. 9. Accordingly, Plaintiffs request that the Court issue an Order to Show Cause directing Bienes to show cause as to why he should not be held in contempt of court for refusing to abide by the Order. 10. Alternatively, Plaintiffs request that the Court enter an Order directing Bienes to turnover his computer to a neutral third party for purposes of conducting an inspection of his computer

3 WHEREFORE Plaintiffs respectfully request that the Court enter an Order (i) Granting the Motion; (ii) Directing Bienes to Show Cause as to why he should not be held in contempt of court; (iii) Sanctioning Bienes; (iv) Ordering Bienes to turnover his computer so that it may be examined by a neutral third party; and (v) Granting such further relief as the Court deems just and proper. June 14, 2016 Respectfully submitted, BERGER SINGERMAN LLP Attorneys for Plaintiffs 350 East Las Olas Blvd, Suite 1000 Fort Lauderdale, FL Telephone: (954) Direct: (954) Facsimile: (954) By: s/ Leonard K. Samuels Leonard K. Samuels Florida Bar No lsamuels@bergersingerman.com Michel O. Weisz Florida Bar No mweisz@bergersingerman.com Zachary P. Hyman Florida Bar No zhyman@bergersingerman.com

4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 14, 2016, a copy of the foregoing was filed with the Clerk of the Court via the E-filing Portal, and served via Electronic Mail by the E-filing Portal upon: Peter G. Herman, Esq. The Herman Law Group, P.A E. Broward Blvd., Suite 206 Fort Lauderdale, FL Tel.: Fax.: pgh@thglaw.com Attorneys for Steven Jacob; Steven F. Jacob CPA & Associates, Inc. Thomas M. Messana, Esq. Messana, P.A. 401 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, FL Tel.: Fax: tmessana@messana-law.com Attorneys for Plaintiff Gary A. Woodfield, Esq. Haile, Shaw & Pfaffenberger, P.A. 660 U.S. Highway One, Third Floor North Palm Beach, FL Tel.: Fax.: gwoodfiled@haileshaw.com bpetroni@haileshaw.com eservices@haileshaw.com Attorneys for Frank Avellino and Michael Bienes By: s/leonard K. Samuels Leonard K. Samuels

5 EXHIBIT A

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8 EXHIBIT B

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