IN THE CIRCUIT COURT FOR THE 19TH JUDICIAL CIRCUIT

IN AND FOR ST. LUCIE COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST GENERAL JURISDICTION

COMPANY, AS TRUSTEE FOR ARGENT
DIVISION
SECURITIES INC., ASSET-BACKED PASS
THROUGH CERTIFICATES, SERIES 2004- CASE NO.: 562012 CA 001461
W11,

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 ORDER ON PLAINTiFF'S
#1; UNKNOWN TENANT #2; ANY AND ALL MOTION TO DETERMINE
UNKNOWN PARTIES CLAIMiNG BY, CONFIDENTIALITY OF COURT
THROUGH, UNDER, AND AGAINST THE RECORDS
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,

Defendants.

----------------------------~/

THIS CAUSE came before the Court on Plaintiff's Motion to Determine

Confidentiality 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,

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 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 10-

day 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 Robe-

Witnesses" 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

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 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

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 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 Betton.'

12. 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

i 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. 2.420-
Sealing of Court Records & Dockets, 954 So. 2d 16 (Fla. 2007).

5
 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

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 the hearing and rejects its application for three (3) reasons. First, Smith was

decided in 1993, approximately 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." See Smith, 838 F.Supp.

at 1575. Accordingly, the Court finds the Smith case to be inapposite.

15. 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, the

Motion To Deem Confidentially

DONE and ORDERED

June, 2015.
of Court records is Denied.

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

day of

U-J~~
Honorable William L. Roby ~
Circuit Judge

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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 F
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