plaintiffs’ motion for an order to show cause ......2013/03/06 · plaintiffs, by and through the...

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IN THE CIRCUIT COURT OF THE 17th

JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 12-034123 (07)

P & S ASSOCIATES GENERAL

PARTNERSHIP, etc. et al.,

Plaintiffs,

vs.

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 e-mails sent or received by the e-mail

address [email protected] during the years 2008 and 2009. After receiving those e-mails

from AOL, Bienes was directed to produce all non-privileged e-mails from AOL that are

responsive to Plaintiffs’ requests for production. Further, Bienes was required to provide a

random sampling of e-mails received from AOL to Plaintiffs upon Plaintiffs request.

Filing # 42745462 E-Filed 06/14/2016 05:33:44 PM

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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 e-mails 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 e-mails 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 e-mails, 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.

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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 33301

Telephone: (954) 525-9900

Direct: (954) 712-5138

Facsimile: (954) 523-2872

By: s/ Leonard K. Samuels

Leonard K. Samuels

Florida Bar No. 501610

[email protected]

Michel O. Weisz


[email protected]

Zachary P. Hyman


[email protected]

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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.

1401 E. Broward Blvd., Suite 206


Tel.: 954-525-7500

Fax.: 954-761-8475

[email protected]

Attorneys for Steven Jacob; Steven F. Jacob

CPA & Associates, Inc.

Thomas M. Messana, Esq.

Messana, P.A.

401 East Las Olas Boulevard, Suite 1400


Tel.: 954-712-7400

Fax: 954-712-7401

[email protected]

Attorneys for Plaintiff

Gary A. Woodfield, Esq.

Haile, Shaw & Pfaffenberger, P.A.

660 U.S. Highway One, Third Floor

North Palm Beach, FL 33408

Tel.: 561-627-8100

Fax.: 561-622-7603

[email protected]

[email protected]

[email protected]

Attorneys for Frank Avellino and Michael

Bienes

By: s/Leonard K. Samuels

Leonard K. Samuels

EXHIBIT A

EXHIBIT B