IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. vs. Case No. 5D L.T. Case No CA O

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT Michael Connolly, RECEIVED, 7/28/ :41 PM, Joanne P. Simmons, Fifth District Court of Appeal Petitioner, vs. Case No. 5D L.T. Case No CA O Gabriel Murphy and GCM Holdings Ltd., Respondents. / RESPONDENTS RESPONSE TO PETITION FOR WRIT OF CERTIORARI COMES NOW, Respondents, GABRIEL MURPHY ( Respondent Murphy ) and GCM HOLDINGS LTD ( Respondent GCM ) (together the Respondents ), by and through their undersigned counsel, pursuant to Florida Rule of Appellate Procedure and this Court s order dated July 20, 2017, file this Response to Petition for Writ of Certiorari ( Petition ), against MICHAEL CONNOLLY ( Petitioner ), seeking dismissal of the Petition, and in support thereof, asserts: INTRODUCTORY SUMMARY This Court should dismiss the Petition for lack of certiorari jurisdiction because Petitioner failed to meet the high burden of demonstrating that Petitioner is irreparably harmed and lacks any other adequate remedy of law. See Bared & Page 1 of 49

2 Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (finding certiorari review is only available if it satisfactorily appears that no other adequate remedy is afforded by law ) (citations omitted; original emphasis). Petitioner failed to utilize, and has not exhausted, all (or even any) remedies at the trial court, such as a motion for reconsideration or request for an evidentiary hearing. Dismissal is appropriate (not merely a denial) as Petitioner failed to meet the minimum threshold for this Court s certiorari jurisdiction. Even if this Court finds that it has jurisdiction, this Court should nevertheless deny the Petition because the Petitioner waived his right to object by failing to comply with Rule 1.410(e) and because the Order (defined herein) complies with the essential requirements of law. STANDARD OF REVIEW The Florida Supreme Court pronounced that certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non final orders. Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004). For this Court to grant certiorari review, the petitioner must prove: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). The last two elements (referred as irreparable harm ) must be considered first to see if jurisdiction exists Id. If there is no Page 2 of 49

3 irreparable harm, then the petition must be dismissed. See Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015). Should the Court find irreparable harm and grant the extraordinary writ, then the Court evaluates the first element on the merits. See Williams, 62 So. 3d at Meeting the first element for extraordinary relief is a tough standard because: The required departure from the essential requirements of law means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995) (citations omitted)(finding As a case travels up the judicial ladder, review should consistently become narrower, not broader. ). Because certiorari review stems from the sound discretion of the trial court, certiorari review is an abuse of discretion standard of review. See Williams, 62 So. 3d at Certiorari review is not de novo, and an appellate court does not substitute its judgment for the lower court s judgment on the substantial competent evidence that was before the trial court when the order on appeal was rendered. See D.H. v. State, 952 So. 2d 603, 605 (Fla. 1 st DCA 2007). Nor is certiorari a substitute for an appeal. See Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67, 71 (Fla. 1st DCA 2004). Page 3 of 49

4 Certiorari is not available to review every erroneous discovery ruling. Nucci, 162 So. 3d at 151. Certiorari is an extraordinary remedy that is available only in limited instances. See Cotton States, 879 So. 2d 67. The purported discovery error must be serious not merely an error to merit certiorari relief as discovery is broad and relevancy is given wider application for discovering information that may lead to admissible evidence. See Nucci, 162 So. 3d at 151. STATEMENT OF THE CASE AND FACTS The instant action from Orange County, in the Ninth Circuit of Florida, Case No CA O before the Honorable Christi L. Underwood ( Florida Litigation ) centers around a deposition of a non party/petitioner, who was subpoenaed to deposition in the county of his residence, which stems from the underlying pending complex civil action in Johnson County District Court in the Tenth Judicial Circuit of Kansas, styled Crowd Shout, Ltd. v. Westmark Capital, LLC and Gabriel Murphy (which includes multiple counter claims and Cross Claims by Respondent GCM including declaratory relief for unauthorized lawsuits (Count II), tortious interference (Count IV, V, VI) and civil conspiracy (Count IX) against additional parties outside of the Florida Litigation and this Petition, Case No. 15CV00453 ( Kansas Litigation ). See [A 6], p , and 27 (also p , and 233 of 508). Page 4 of 49

5 In the Kansas Litigation, the Plaintiff is purportedly Crowd Shout, Ltd ( Crowd Shout ) 1. See Supplemental Appendix [B 1] 2 ( Memorandum in Opposition ) [B 1], p. 1 3 (also p of 314). The Defendants are Westmark Capital, LLC (solely owned by Respondent GCM) and Respondent Murphy. See [A 1], p. 1 (also p. 7 of 508). The Cross Claim Plaintiff is Crowd Shout Holdings, Ltd. ( Holdings or CSH ), which is the sole owner of Crowd Shout. The Cross Claim Defendants and Defendants are Crowd Shout, Kevin John Perks and Kevin John Perks then employer, Integrated Capabilities, Ltd. See [A 6], p. 1 (also p. 207 of 508). In the Kansas Litigation, Respondent Murphy s Counterclaims include: Count I Declaratory Judgment Regarding Validity of November Stock Transfer as to Crowd Shout, Kevin John Perks, and Integrated Capabilities, Ltd. Count II Declaratory Judgment Regarding Validity of Herne Proxy as to Crowd Shout, Kevin John Perks, and Integrated Capabilities, Ltd. Count III Declaratory Judgment Regarding the Valid Directors of, and Control of, Crowd Shout and Holdings 1 Since January of 2015 and as detailed in his initial responsive pleading in the Kansas Litigation (See Supp. A. [B 1], p. 1 2), Respondent Murphy has asserted that Petitioner and his Manx based fiduciary (Kevin John Perks) have unlawfully usurped the legal standing of Crowd Shout. Respondents contend that Petitioner (along with others) are the actual plaintiffs in the Kansas Litigation. 2 All citations to Respondents Supplemental Appendix (Supp. A.) per Rules 9.100(g) and are designated by the symbol [B ], which refers to the Appendix tab at which the document is contained. Additionally, any document that is a transcript in Petitioner s Appendix will be cited in the same manner except it will contain a page and line reference such as [A ] at pg:l. Page 5 of 49

6 Count IV Breach of Fiduciary Duty as to Kevin John Perks and Integrated Capabilities, Ltd. See [A 4], p (also p of 508). include: In the Kansas Litigation, Respondent GCM s Cross Claim Petition counts Count I Declaratory Relief as to Directors Count II Declaratory Relief as to Suits unauthorized Count III Money Had and Received as to Kevin John Perks and Integrated Capabilities, Ltd. Count IV Tortious Interference Registrations as to Kevin John Perks and Integrated Capabilities, Ltd. Count V Tortious Interference Expectancy as to Kevin John Perks and Integrated Capabilities, Ltd. Count VI Tortious Interference Operations as to Kevin John Perks and Integrated Capabilities, Ltd. Count VII Declaratory Relief Validity of Stock Transfer From Herne Holdings, Ltd. to GCM Holdings, Ltd. Cross Petition against Kevin John Perks and Integrated Capabilities, Ltd. and Counterclaim against Crowd Shout. Count VIII Breach of Fiduciary Duty as to Kevin John Perks and Integrated Capabilities, Ltd. Count IX Civil Conspiracy as to Kevin John Perks and Integrated Capabilities, Ltd. See [A 6], p (also p of 508) Respondents agree with the general overview of the Petitioner s statement of the case and procedural posture. However, Respondents disagree with various factual allegations as to the underlying legal dispute in the Kansas Litigation. Respondents disagree with Petitioner s (i) description of the duces tecum as having no connection with the Kansas Litigation; (ii) Plaintiff s claim of three (versus Page 6 of 49

7 two) shareholders in Holdings; and (iii) the Board of Directors of Holdings (Kevin John Perks, as director of Integrated Capabilities, Ltd) not recognizing the Share Transfer when it was the very same Board of Directors, who at that time approved of, and executed, the Share Transfer as the then directors of Respondent GCM and Herne Holdings Ltd. ( Herne ). See Supp. A. [B 1], ( Memorandum in Opposition ), Exhibit C, p (also p of 314). Rather, it is Petitioner, as the 80% controlling shareholder of Digital Technology, LLC ( Digital ), who repudiates the Share Transfer, the validity of which is the subject of the Kansas Litigation. See [A 9] (incomplete copy) 3, Exhibit H, p. 4 (also p. 368 of 508) and Supp. A. [B 1] (complete copy), p. 18, 2 4 (also p of 314). The original ownership structure of Crowd Shout prior to the Share Transfer is shown below: 3 As shown from the Complete Docket History in the Florida Proceedings (See Supp. A. [B 8]), Respondent Murphy s Motion to Compel Deposition (See Supp. A. [B 9]) is 103 pages in length (p of 314) with 15 exhibits (A O). However, [A 9] of Petitioner s Appendix (which purports to be a copy of Respondents Reply in Opposition to Petitioner s Motion for Protective Order & Motion to Compel Deposition) is only 65 pages (p of 508). Curiously, [A 9] of Petitioner s Appendix omits the Affidavit of Service (defined herein) and excludes exhibits J, K, L, M, N and O. Page 7 of 49

8 See Supp. A. [B 9], p. 3. At issue in the Kansas Litigation (among other things) is the dispute of the Share Transfer of Herne s shares. In the Share Transfer, GCM acquired Herne s shares and thus a controlling interest of Crowd Shout; however, Digital (controlled by Petitioner) disputes the validity of the Share Transfer and Respondent GCM s controlling interest. See Supp. A. [B 9], p. 3 4 (also p of 314). Petitioner accurately notes the main dispute between the parties is over the validity of the Share Transfer from November 10, 2014, which is subject to the terms of the Shareholders Agreement of Holdings, which is governed by the Laws of the Republic of Malta ( Malta ). See Petition, p. 4, 2. Also on November 10, 2014, Crowd Shout held a board meeting whereby a resolution was passed requiring a Notice of Indemnification Claim ( Claim ) be served upon Digital. See Page 8 of 49

9 [A 5], Exhibit C, p. 1 2 (also p of 508), B. The Notice cites various violations of Petitioner s non compete agreement with Crowd Shout and seeks indemnification under the terms of the Asset Purchase Agreement. See Supp. A. [B 9], Exhibit J 4 (p of 314). The Claim also asserts revenue manipulation practices by Contech, LLC, which does business as Sonobi Media ( Sonobi ). See [A 5], p. 19 (also p. 129 of 508), 137. As alleged in the record by Respondent Murphy, at present, Sonobi owes a sizable payment of over $370, to Crowd Shout. See [A 8], p. 2 (also p. 286 of 508), 6 and [A 2], Notice, p. 5 (also p. 41 of 508), 30 and 36. The record demonstrates that Petitioner is the Chief Executive Officer and material owner of Sonobi. See [A 8], p. 2 (also p. 312 of 508), 4. As alleged in the record by Respondent Murphy, at all times relevant hereto, Third Party Defendant Kevin John Perks has also acted as Digital s [controlled by Petitioner] registered fiduciary in the Isle of Man and Malta, and takes instruction from Petitioner in collateral litigation underway in the related jurisdictions involving Respondents. See [A 7], p. 2 (also p. 236 of 508), 1. Respondent GCM asserts that Petitioner and his Manx based fiduciary have unlawfully 4 Omitted by Petitioner in [A 9] of Petitioner s Appendix, see footnote 2 herein. 5 Before statutory interest and the recovery of all costs incurred, including reasonable attorneys fees, pursuant to the Sonobi Web Publisher Agreement. See [A 8], last page of Exhibit A (also p. 309 of 508), 19. Page 9 of 49

10 usurped Crowd Shout s legal standing and to this day, masquerades under the guise of its authority. See [A 6], p.1 (also p. 207 of 508), 1. Leading up the Kansas Litigation were continuing disputes as to the ownership of Crowd Shout between Respondent GCM and Digital, including involvement of other parties and [Petitioner s attorneys] Cobb Cole, P.A, demonstrating Petitioner s intricate web of involvement in the Kansas Litigation. See, e.g., [A 4], [A 5], [A 6], [B 3], [B 4]. In the Kansas Litigation, on or around February 3, 2015, Respondent Murphy filed the Memorandum in Opposition, and on or around July 15, 2015, Respondent GCM filed a Motion for Order to Show Cause ( Motion for Cause ). See Supp. A. [B 2] (p of 314). Several weeks later, on or around August 3, 2015, Respondent GCM filed Additional Suggestions in Support of Intervenor s Second Motion to Intervene ( Intervenor s Additional Suggestions ). See Supp. A. [B 3] (p of 314). Three days later, on or around August 6, 2015, Respondent GCM filed Further Suggestions in Support of Intervenor s Second Motion to Intervene ( Intervenor s Further Suggestions ). See Supp. A. [B 4] (p of 314). Later that year on or around December 9, 2015, Respondent GCM filed GCM Holdings Ltd. Motion to Enforce ( Motion to Enforce ). See Supp. A. [B 5] (p ). About two months thereafter and after a hearing on the Motion to Enforce, the Kansas Court entered an order Page 10 of 49

11 entitled Journal Entry Motions to Enforce signed by the Judge and attorneys of record ( Order to Enforce ). See Supp. A. [B 6] (p of 314). In the Kansas Litigation, Respondent GCM issued a Subpoena Duces Tecum for Deposition and Notice to Take Video Taped Deposition of Non Party Michael Connolly and Exhibit A (together the Notice of Deposition ). See [A 2]. The Notice was served upon Petitioner by AMIC Process Services, LLC in Winter Park on December 13, 2016 at 2:45 p.m., which affidavit of service was filed in the Kansas Litigation on December 22, 2016 ( Affidavit of Service ). See Supp. A. [B 7] (p. 172 of 314). The Affidavit of Service was also included as Exhibit M 6 to Respondent Murphy s Motion to Compel Deposition. See Supp. A. [B 7], Exhibit M, p. 97 (also p. 272 of 314). As a result of being served with the Notice of Deposition, on January 5, 2017, Petitioner initiated the Florida Litigation with his Complaint. Supp. A. [B 8]. In addition, on or about January 5, 2017, Petitioner filed his Motion for Protective Order as to the deposition of Petitioner in the Florida Litigation ( Motion for Protective Order ). See [A 3]. On or about January 11, 2017, Respondent Murphy filed his Reply in Opposition to Michael Connolly s Motion for Protective Order & Motion for Emergency Hearing to Compel Deposition & 6 Omitted by Petitioner in [A 9] of Petitioner s Appendix, see footnote 2 Page 11 of 49

12 Order to Appear to Show Cause & for Sanctions ( Motion to Compel Deposition ). See Supp. A. [B 9] (p of 314). On or about February 28, 2017 in the Florida Litigation, Respondent Murphy filed Additional Suggestions in Support of Motion to Compel Deposition of Michael Connolly ( Additional Suggestions ), acknowledging that there were various related lawsuits indirectly being commandeered presently by Petitioner against Respondents in the Isle of Man and the Malta, which are intertwined with the Kansas Litigation particularly the Malta Proceedings, as to a pending judicial declaration as to shareholder control of Plaintiff s parent (Holdings) in the Kansas Litigation. See [A 4], p. 21 (also p. 67 of 508). On March 7, 2017, this Court held a non evidentiary hearing on the Motion for Protective Order and Motion to Compel Deposition ( Hearing ). See [A 17]. At the Hearing and to aid the trial, counsel for both the Petitioner and Respondents furnished the court with a demonstrative aid depicting organizational charts for the parties and related entities/parties at involved in the Kansas Litigation (the Demonstrative Aids ). See Supp. A. [B 10], p. 1 2 (also p of 314) and [A 17] at 12:6 25 and 13:1 11. Later in the Hearing and at the request of Respondent Murphy, the undersigned withdrew the duces tecum from the Subpoena without prejudice to avoid additional the briefing schedule for the duces tecum requests and avoid further delay of the Deposition, which had been initially Page 12 of 49

13 scheduled to occur over two months prior to the Hearing. See [A 17] at 45:23 25; 46:1 9. Counsel for Petitioner sought to limit the scope, the use of the Deposition in collateral litigation, time timeframe for which the Deposition had to occur, the designation of Petitioner individually versus one of Petitioner s companies, as well as the methodology (video tape) of the Deposition. See [A 17] at 25:5 19 and 47:23 25 and 50:3 24. When Petitioner s counsel raised concerns over Respondent Murphy putting the Deposition in inappropriate places, the undersigned briefly conferred with Respondent Murphy and it was agreed that the parties would stipulate that it [Deposition] would not be put online. See [A 17] at 49: During the Hearing and at the conclusion of the Hearing, counsel for Petitioner twice opined to the trial court that the rulings and safeguards for Petitioner seems fair. See [A 17] at 48:15 and at 51:3. The lower court properly noted that what s discoverable is not always admissible and that the trial court wouldn t want to foreclose another judge in a different jurisdiction from making a decision about whether or not a deposition testimony was admissible since it could be used for impeachment See [A 17] at 51: Over a month later/six weeks later, on or about April 17, 2017, as a result of the ruling at the Hearing, the trial court entered its Order Compelling Deposition of Page 13 of 49

14 Plaintiff, which included various safeguards/limitations for Petitioner s Deposition ( Order ). See [A 0]. As a result of the Order, Petitioner unilaterally choose the date of his deposition to occur on April 24, 2017 the last possible day for Petitioner to comply with paragraph three (3) of the Order ( Deposition ). See [A 0], 3. However, just five (5) days prior to his scheduled Deposition on April 19, 2017, Petitioner filed his Emergency Motion to Stay Pending Appeal ( Emergency Motion to Stay ). In response and on or around April 26, 2017, Respondents filed Defendants Verified Response in Opposition to Plaintiff s Emergency Motion to Stay Pending Appeal ( Verified Response ). See Supp. A. [B 11] (p of 314). As a result of a hearing on the Emergency Motion to Stay, on May 4, 2017, the trial court entered its Order Granting Emergency Motion for Stay Pending Appeal ( Order Staying ). 7 The factual disputed issue is whether the Order, which compelled Petitioner s Deposition, with numerous safeguards, is appropriate discovery (assuming this Court gets past the jurisdictional hurdle and threshold issues 7 The Emergency Motion to Stay, the Verified Response, and the Order Staying are beyond the scope of the Petition as they occurred subsequent to the Order on appeal. However, they are cited for context as to arguments/facts presented by the Petitioner which Respondents believe are outside the scope of the Petition and should not be considered. See previously filed Respondents Motion to Strike with this Court (which was denied) and Section II.D herein. Page 14 of 49

15 including Petitioner s waiver of objections) given the Petitioner s intricate spider web involvement in the underlying dispute of the Kansas Litigation. SUMMARY OF ARGUMENT This Court should dismiss the Petition because this Court does not have certiorari jurisdiction. Petitioner failed to meet the high burden of irreparable injury to warrant an extraordinary writ as to a non final discovery order regarding a deposition of Petitioner. Petitioner failed to prove irreparable injury because he did not exhaust all pre trial remedies at the trial court level; nor did Petitioner even allege such in the Petition. Even if this Court determines that the Petitioner made a prima facie showing of irreparable harm in the Petition to have jurisdiction to review on the merits, this Court should deny the Petition because Petitioner failed to demonstrate prima facie a departure from the essential requirements of law on the merits. Rather, the trial court properly exercised discretion to enter the Order with proper safeguards in place for Petitioner that complies with the essential requirements of the law. Importantly and as a threshold issue, the Petition is without merit as the Petitioner failed to timely file an objection or motion for protective order within ten (10) days of being served with the Notice of Deposition per Florida Rule of Civil Procedure 1.410(e)(1). Because the Petitioner failed to timely object or seek relief, any redress with this Court of the Order is fruitless. Page 15 of 49

16 In addition, the trial court properly determined the Deposition was relevant and necessary to allow Respondents to discover information that could lead to admissible evidence. The Petitioner as a non party cannot object as to relevancy and did not prove the Deposition was a fishing expedition for the purpose of annoyance, embarrassment, oppression, or undue burden/expense. The duces tecum component was withdrawn by Respondents without prejudice and not included in the Order on appeal; thus, all arguments as to the duces tecum are irrelevant, not ripe, and outside the scope of this Petition. Moreover, the purported bad acts of Respondent Murphy are entirely irrelevant to this certiorari review and outside the scope for determining whether the Order complied with the essential requirements of the law. Accordingly, this Court should dismiss the Petition for lack of jurisdiction, or in the alternative, deny the Petition on the merits. ARGUMENT TO DISMISS PETITION, OR IN THE ALTERNATIVE, DENY THE PETITION I. This Court Should Dismiss the Petition For Lack of Certiorari Jurisdiction Because Petitioner Failed to Prove Irreparable Injury By Being Deposed. This Court should dismiss the Petition because this Court does not have jurisdiction as Petitioner failed to meet the high burden and minimum threshold of irreparable injury. Appellate grants of writs of certiorari are very few and far between, to wit: Page 16 of 49

17 writ provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that because the most urgent interlocutory orders are appealable under this rule, there will be very few cases in which common law certiorari will provide relief. Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 155 (Fla. 4th DCA 1996) (citing to Fla. R. App. P (1977 Committee Notes); original emphasis). This Court must evaluate the two indispensable ingredients to common law certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable injury to the petitioner that cannot be corrected on final appeal (2) caused by a departure from the essential requirements of law. Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996). Indeed, for the first prong as to irreparable injury to determine if this Court has jurisdiction to move to the second prong on the merits, the Petitioner must prove the absence of an adequate remedy by appeal or writ of error or other remedy afforded by law. Id. at 155. Here, this Court should dismiss the Petition because Petitioner failed to meet his burden and minimum threshold warranting dismissal of the Petition. A. No Irreparable Injury Exists Because Petitioner Failed to Exhaust All Pre Trial Remedies at the Trial Court. This Court should dismiss the Petition because Petitioner failed to meet the high burden of irreparable harm because he did not exhaust all pre trial remedies Page 17 of 49

18 at the trial court level; nor did Petitioner even allege he did so in the Petition. See Petition. In Florida, [b]ecause the trial court retains inherent authority to reconsider... any of its nonfinal rulings prior to entry of the final judgment, a motion for reconsideration may be filed at any time before the entry of final judgment. Seigler v. Bell, 148 So. 3d 473, 479 (Fla. 5th DCA 2014) (citing to Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998)). Undoubtedly, a trial court may sua sponte reconsider and amend or vacate its interlocutory orders prior to final judgment. Id.; see also Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987)( It is well settled in this state that a trial court has inherent authority to reconsider, as here, any of its interlocutory rulings prior to entry of a final judgment or final order in the cause. ). In fact, because Petitioner has pre trial remedies with the trial court (which the trial court has the authority to consider prior to final judgment), Petitioner, by definition, cannot demonstrate irreparable injury. See Arnone v. State, 701 So. 2d 577, 579 (Fla. 2d DCA 1997). In Arnone, the Second DCA dismissed the petition for writ because the Petitioner has a possible pretrial remedy in the trial court, as well as a right to raise the issue on any subsequent direct appeal. Id. Here, Petitioner had/has numerous pre trial remedies at the trial court level that were not pursued. Missing from the record is, including, without limitation: Page 18 of 49

19 a motion for reconsideration (during the six (6) weeks plus time period from the Hearing to the Order or during the approximate month time period from the Order to the Deposition); a request for evidentiary hearing as to the purported bad acts of Respondent Murphy that may warrant further restrictions on the Deposition; a request for extended briefings as to any of the objectionable terms of the ruling/order [as the trial judge initially ruled as to the duces tecum request for the Deposition (before the duces tecum was withdrawn by Respondent GCM without prejudice)]; a motion to quash (within 10 days of the service date of the rescheduled Deposition); or a new/renewed motion for protective order (within 10 days of the service date of the rescheduled Deposition) based upon the additional complaints that are now addressed in the Petition but which were not addressed at the trial court level (such as Respondent Murphy not being in attendance). Any of the above trial court remedies could possibly provide Petitioner with relief to avoid purported irreparable injury at the Deposition. However, no such relief was ever pursued by Petitioner at the trial court. Instead, Petitioner went from the Page 19 of 49

20 [first] Order on the Deposition to this Court, without any intermediary trial attempts to cure the purported errors of law or fundamental concerns. This failure, in and of itself, is sufficient to dismiss the Petition for lack of jurisdiction. See Arnone, 701 So. 2d at 579. In addition to filing various pleadings, Petitioner had trial court remedies at the actual Deposition he could have invoked without necessitating this Petition seeking an extraordinary writ. During the Deposition, counsel for Petitioner could have instructed Petitioner not to answer to preserve a privilege, to enforce a limitation on evidence directed by the court from the Order, or to present a motion to terminate or limit the Deposition because the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress Petitioner. Fla. R. Civ. P (c) & (d). Indeed, these remedies could be utilized to protect Petitioner s fear of cat out of the bag material, further illustrating that there is no irreparable injury. Due to the Petition and the Order Staying, the Deposition has yet to occur. Thus, Petitioner had additional trial court remedies that could cure the alleged irreparable injury demonstrating that this Court does not have jurisdiction because Petitioner did not exhaust all trial court remedies before expending this Court s time and financial resources unnecessarily. See Arnone, 701 So. 2d at 579. Page 20 of 49

21 Accordingly, this Court should dismiss the Petition because this Court does not have jurisdiction. Petitioner failed to meet the high burden to overcome the extremely rare finding of irreparable injury sufficient for appellate review of a non final discovery order that can be remedied at the trial court level. II. Even if this Court finds it has Jurisdiction, this Court Should Nevertheless Deny the Petition on the Merits Because Petitioner Failed to Show the Order Departed from Essential Legal Requirements. Even if this Court determines that the Petitioner made a prima facie showing of irreparable harm in the Petition to have jurisdiction to review on the merits, this Court should deny the Petition because Petitioner failed to demonstrate prima facie a departure from the essential requirements of law on the merits. After determining that the Petition meets the threshold of a prima face showing of irreparable harm, this Court must determine whether the order is a departure from the essential requirements of law. Bared, 670 So. 2d at 156. Certiorari should be denied because the Order does not depart from the essential requirements of law; rather the Order provides adequate safeguards and limitations to ensure proper protections and use for legal, valid purposes. In fact, when the trial court was fashioning the language to be included in the Order, counsel for Petitioner agreed that it seemed fair. See [A 17] at 51:3. Curiously, what was considered a fair ruling for Petitioner in the trial court at that time is the Page 21 of 49

22 exact same ruling Petitioner now complains is not only unfair but also is a departure from the essential requirements of law. A. Trial Court Properly Exercised Discretion to Compel the Deposition Because Petitioner Waived Objections to Deposition By Failing to File Objection/Motion for Protective Order Within 10 Days of Service Per Rule As a threshold issue, this Court should deny the Petition because the trial court properly compelled the Deposition of Petitioner per the Order (with safeguards) because Petitioner waived his right to object by failing to file an objection or motion for protective order within ten (10) days of service of the Notice of Deposition. A party may compel by subpoena the deposition of any non person and record by video the deposition of that non party. See Fla. R. Civ. P (a) and (b)(4). Should the non party have objections to the deposition or information requested, such non party must file an objection/motion for protective order/motion to quash subpoena within ten (10) days of service of the notice of deposition (or sooner if the deposition is set to occur in less than ten (10) days). See Fla. R. Civ. P (e)(1). If the subpoenaed non party timely objects or files a motion to quash or protective order within the ten (10) days after receiving service of the subpoena, then the party issuing the subpoena must obtain a court order allowing the deposition to take place. See Fla. R. Civ. P (e)(1). Absent a timely objection within the ten (10) days after service of the subpoena for Page 22 of 49

23 deposition, the non party is not entitled to protection from the court and may be held in contempt for failing to appear at the deposition. See Fla. R. Civ. P (f). Should the deponent not show by a timely motion to quash that the subpoena duces tecum requested by petitioner is unreasonable and oppressive as required by Fla. R. Civ. P (b) nor show by a motion for a protective order that good cause is present to limit or prohibit the discovery sought by petitioner due to annoyance, embarrassment, oppression, or undue burden or expense as required by Fla. R. Civ. P (c), then the deposition shall proceed as noticed. Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107, 107 (Fla. 2d DCA 1977) (reversing an order quashing a subpoena duces tecum and protective order). Failure to timely file an objection/motion for protective order within ten (10) days of service waives the deponent s objections. Id.; see also Ins. Co. of N. Am. v. Noya, 398 So. 2d 836, 838 (Fla. 5th DCA 1981) (referencing the Donn Mott case, stated Failure to take such timely action waives these objections ). Although failing to timely object still allows a party to assert a privilege or exemption outside of permissible discovery, Rule 1.140(b) and (c) expressly require a party to file timely motions to quash, or for a protective order, or written objections, in order to limit discovery of documents and materials otherwise within the scope of discovery. Id. Page 23 of 49

24 Here, Petitioner failed to timely file an objection/motion for protective order thus waiving his arguments/objections to the Deposition proceeding. As shown in the complete docket history for both the Kansas Litigation and the Florida Litigation, there was never any attempt by Petitioner to quash the Deposition. See Supp. A. [B 0] (p of 314) and Supp. A. [B 8] (p of 314). The Petition and requests therein are inappropriate because the Motion for Protective Order was not timely made within the ten (10) days after service of process on Petitioner of the subpoena for his deposition. Petitioner was validly served with the Notice of Deposition by AMIC Process Services, LLC in Winter Park on December 13, 2016 at 2:45 p.m. for the Deposition scheduled on January 6, See Supp. A. [B 7] (also p. 172 of 314). Petitioner was, therefore, required to file an objection to his appearance at the Deposition no later than December 23, See Fla. R. Civ. P (e)(1). Petitioner failed to do so. See [A 3] and [B 8]. In fact, Petitioner failed to file any objection or his Motion for Protective Order to his deposition until the day prior to the Deposition mere hours before the Deposition was to take place. See [A 3]. Therefore, Petitioner waived his objection to appear at the deposition and was properly compelled by the trial court to appear for his Deposition. Page 24 of 49

25 Moreover, a non party that makes a timely objection is not entitled to a protective order quashing the requirement to appear at the deposition unless the non party presents a factual showing by affidavit or otherwise of why a subpoena is unreasonable or oppressive as to the non party. See Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So. 2d 32, 34 (Fla. 4 th DCA 1972). If no facts are presented to the trial judge, then she has no basis on which to grant a motion to quash or protective order as there would be no basis for that judge to invoke her broad judicial discretion over the discovery issue. Id. Here too, Petitioner fails. The Petitioner s late filed Motion for Protective Order was not verified. [A 3] No affidavits were filed/submitted. Supp.A. [B 8]. At the Hearing, Petitioner failed to personally appear, resulting in no evidence or factual testimony being present 8. There was no factual basis at the Hearing for the trial court to even attempt to make a ruling on the waived objections from the untimely Motion for Protective Order. Accordingly, on this issue alone for failure to comply with Rule1.410 (both for timely relief and lack of facts presented to trial court), this Court should deny the Petition allowing the Deposition to proceed per the Order. 8 See [A 17] at 2:16, showing Respondent Murphy as the only party present for the Hearing. Page 25 of 49

26 B. Trial Court Properly Exercised Discretion to Compel the Deposition Because the Purpose of Petitioner s Deposition is for Obtaining Relevant Discovery. This Court should find that the trial court properly compelled the Deposition of Petitioner because discovery is broad at the trial court level and the Deposition sought relevant discovery. In civil matters: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fla. R. Civ. P (b)(1). Certainly, [d]iscovery scope in civil cases must be relevant to the subject matter of the case and must be admissible or reasonable calculated to lead to admissible evidence. Allstate Insurance Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). Should a party or non party believe the requested discovery goes beyond the scope, such person has grounds of relief via a motion for protective order, to wit: Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires. Page 26 of 49

27 Fla. R. Civ. P (c) (emphasis added). The reasons for preventing a deposition are limited to annoyance, embarrassment, oppression, or undue burden/expense not relevancy of the requested deposition. Id. Indeed, a non party who challenges discovery may not contend that the materials sought are not relevant to the underlying action. Dade County Med. Ass'n v. Hlis, 372 So. 2d 117, 121 (Fla. 3d DCA 1979) (finding exception to the general rule where a medical association has an independent claim of confidentiality regarding medical records) (emphasis added). Thus, here, the Petitioner s argument that the Deposition is not relevant is moot as he cannot make such claim as a non party. See Dade County, 372 So. 2d at 121. Petitioner does not fall within the limited exceptions to the rule as he has no independent grounds in which to claim an objection on relevancy; nor has Petitioner alleged such exception. Rather, Petitioner falls within the general category of being unhappy to be brought into litigation and being deposed as a non party. Florida provides litigants with the ability to discover information that appears reasonably calculated to lead to the discovery of admissible evidence. Fla. R. Civ. P (b)(1). Again, [o]rdinarily, orders denying discovery are not reviewable by certiorari because the harm from such orders can generally be rectified on appeal. Toomey v. N. Tr. Co., 182 So. 3d 891, 893 (Fla. 3d DCA 2016) (citations omitted). Page 27 of 49

28 Of course, the exception to the general rule exists where discovery orders cause irreparable injury. Id. (citation omitted). In Toomey, the Court found that such an exception existed when the denial of leave to perpetuate testimony by a terminally ill person is a matter which may be entertained by petition for writ of certiorari. Id. No such extreme level of severity exists in this case as Petitioner is simply trying to further limit the trial court s Order, which already limited and properly addressed obtaining relevant discovery. Here, the trial court determined after the lengthy Hearing regarding the complex Kansas Litigation, including numerous causes of action including tortious interference and civil conspiracy, that the Deposition was reasonable, legitimate, and relevant to the Kansas Litigation and/or was reasonably calculated to lead to admissible evidence. See A 0, Order on appeal. The same continues to hold true given the extensive number of causes of action and related parties and entities at issue in the Kansas Litigation, evidenced in part by the extensive causes of action at issue and in part by the Demonstrative Aids that were furnished to this trial court for consideration at the Hearing with the consent of both attorneys of record. See Supp. A. [B 10], p. 1 2 (also p of 314). Despite relevancy being irrelevant for a non party, the trial court already ordered a relevancy protection in the Order by including in paragraph five (5) the statement that [p]laintiff s deposition testimony is ordered in the Johnson County, Page 28 of 49

29 Kansas litigation, case number 15 CV 00453, which may be used for any legal, valid purpose in litigation, including collateral litigation proceedings as long as it is consistent with, and subject to Federal, State, and/or applicable rules of evidence. See A 0, Order 5. The trial court made clear at the Hearing that the Deposition was ordered for the Kansas Litigation upon Petitioner s counsel clarifying that it was not for purposes of the Malta Litigation. See [A 17 at 47:12 16]. The Deposition is therefore already limited to what is relevant in the Kansas Litigation. Petitioner primarily argues that the Deposition and duces tecum are a fishing expedition to a non party. As to the purported fishing expedition, Petitioner primarily supports his argument by (a) the duces tecum requests; and (b) one sentence [partial argument] in the Hearing transcript by the undersigned. As to the duces tecum, which was withdrawn at the Hearing by Respondent GCM without prejudice, all arguments by Petitioner in the Petition are premature and not ripe as the duces tecum is not at issue in the Order or at all at this procedural posture assuming that the trial court can overcome Petitioner s failure to timely object per Rule 1.410(e). Only if and when Respondent GCM decides to pursue the duces tecum portion of the Deposition would Petitioner need legal redress which can and should be done at the trial court level, not for appellate determination for the first examination. If and when such does occur, Petitioner s objections should be denied as Petitioner failed to timely objection per Rule Page 29 of 49

30 1.410(e). Because the Respondent GCM withdrew the duces tecum portion without prejudice and the Order compelled the Deposition without the duces tecum, the trial court has not even had the first opportunity to review and make a factual determination (should it deem worthy given Petitioner s failure to timely object). Petitioner is, in essence, asking this Court to become the trier of fact as to the legal sufficiency of the duces tecum when the trial court has not been afforded such opportunity yet. Thus, all arguments in the Petition as to the duces tecum are not ripe for determination and this Court is without jurisdiction to make any determination on the same. As to the Deposition scope and the undersigned s quoted sentence, although the undersigned did make the statement cited in the Petition, the undersigned also provided an extensive explanation (when later given the opportunity to respond in detail) to the trial court. The specific answer as to additional causes of action was In part, yes, Your Honor. See [A 17] at 37:16. Admittedly, on February 28, 2017, Respondent Murphy filed his Additional Suggestions, acknowledging that there were various related court actions indirectly initiated by Petitioner underway against Respondents in the Isle of Man and Malta, which are intimately intertwined with the Kansas Litigation particularly the Malta Litigation as to declaratory relief as to shareholder control of plaintiff s parent (Holdings) in the Kansas Litigation. See [A 4], p.21 (also p. 67 of 508), Count I. However, contrary to Page 30 of 49

31 the assertions in the Petition, nowhere in the Additional Suggestions does it state that the Deposition is for use solely or exclusively for the Malta Proceedings; rather the Additional Suggestions consistently state the need for the Deposition for use in the Kansas Litigation and the Malta Proceedings. Interestingly, counsel for Petitioner also acknowledged the intimate relationship between the Malta Proceedings and the Kansas Litigation at the Hearing, arguing that there was, in essence, (although not true) a stay in the Kansas Litigation while the Kansas court waited to hear the outcome from the Malta Litigation. See [A 17] at 21:10 14, Because there has never been any court order (or any request by the parties) in Kansas Litigation staying that proceeding, the instant trial court was able to make a determination of the Deposition at the Hearing to result in the Order. See [A 0]. Thus, to the extent that the Deposition may be indirectly used in other proceedings is not, in and of itself, determinative in the generic sense of a fishing expedition. Even if the intertwining of the five (5) related court actions underway in Kansas, the Isle of Man and Malta may be deemed to be included under the umbrella of a fishing expedition, the undersigned clarified at the Hearing there were numerous other related reasons justifying the Deposition specifically related and targeted upon the Kansas Litigation. See [A 17] at 38:5 17. Page 31 of 49

32 At the Hearing (evidenced by the Hearing transcript, [A 17]), the undersigned articulated numerous reasons and justifications for the necessity and relevancy of the Deposition of Petitioner, including, without limitation: Page 5, lines Page 10, lines 4 13, lines Page 11, lines Page 14, lines and continuing on page 15, lines 1 6 Page 16, lines 3 7 Page 16, lines and continuing on page 17, lines 1 9 Page 27, lines and continuing on page 28, lines 1 11 Page 28, lines Page 28, line 25 and continuing on pages 29, 30 and page 31, lines 1 19 Page 33, lines and continuing on page 34, lines 1 8 Page 34, line 25 and continuing on page 35, lines 1 11 and lines Page 36, lines and continuing on page 37, lines 1 11 Page 38, lines 5 17 See [A 17], Hearing transcript. Moreover, there are numerous pleadings in the record which directly tie Petitioner to the causes of action and related factual issues in the Kansas Litigation and thus the Florida Litigation. In Respondent Murphy s initial pleading filed on February 3, 2015 in the Kansas Litigation ( Memorandum in Opposition ), the specific references to Petitioner (and Digital) which identify the connections between Petitioner and the Kansas Litigation, are found on, without limitation, on: Pages 3 4; and Second paragraph on page 16; and Last paragraph on page 18 and first paragraph on page 19. See [B 1], (p of 314) Memorandum in Opposition. Page 32 of 49

33 Other glaring examples of the intimate ties between Petitioner, Digital and Sonobi to the Kansas Litigation and the direct damage caused to Respondent GCM by Petitioner s actions are also detailed within Respondent GCM s Intervenor s Additional Suggestions and specifically within 4 7, p. 2 (also p. 155 of 314) of Supp. A. [B 3]. In Respondent GCM s Intervenor s Further Suggestions, Respondent GCM alleges that Petitioner s instruction of plaintiff s counsel in the Kansas Litigation and Petitioner s role in the civil conspiracy tortuously interferes with the operations of Crowd Shout. See Supp. A. [B 4] (Intervenor s Further Suggestions) 2 8, p. 1 3 (also p. of 314). Intervenor s Further Suggestions also alleges the concert of action underway between Petitioner and Petitioner s companies (Digital and Sonobi) with third parties intended to damage the Website and Respondent GCM s interest therein. See Supp. A. [B 4]. In addition, pleadings in the Florida Litigation demonstrate extensive relevant facts which specifically tie Petitioner to the claims and causes of action in the Kansas Litigation. In the record and at the trial court level, Respondent Murphy s Motion to Compel Deposition (See Supp. A. [B 9], p of 314) specifically identifies the various connections between the Petitioner, Digital, Sonobi and the Kansas Litigation, including, without limitation: Paragraph 6 (and Exhibit D attached thereto); and Paragraph 7; and Paragraph 10; and Page 33 of 49

34 Paragraph (and Exhibit E attached thereto); and Paragraphs 20 22; and Exhibits A E (pages of 508 of Petitioner s Appendix) also demonstrate the intimate relationship between Connolly/Digital/Sonobi on one hand, and Crowd Shout, on the other. See Supp. A. [B 9] (p of 314) Motion to Compel Deposition. Also in the record and at the trial court level in the Florida Proceedings, Respondent Murphy filed Additional Suggestions, which specifically identifies the connections between the Petitioner, Digital, Sonobi and the Kansas Litigation, including, without limitation: Paragraphs 3 6; and Paragraphs 8 11; and Paragraph 14 (and Exhibit A attached thereto); and The sole exhibit (Exhibit A) (pages of 508 of Petitioner s Appendix) which includes four (4) letters from Cobb Cole, P.A. (attorneys for Petitioner) to Crowd Shout, which clearly demonstrates the relevancy of Digital/Sonobi/Connolly within the dispute in the Kansas Litigation. See [A 8], Additional Suggestions. Moreover, the complexities of this case demonstrate the Petitioner s involvement with the parties and issues in the Kansas Litigation to warrant the Deposition. The Demonstrative Aids submitted to the trial judge by counsel (See Supp. A. [B 10], p. 1 2 (also p of 314)) for the parties show the agreement of Petitioner s intimate relationship with Crowd Shout via his controlling interest in Digital and Sonobi. Further, Petitioner was the undisputed owner of a certain PayPal account which Petitioner unilaterally shut down in Page 34 of 49