EFTA00177847

II. ARGUMENT 
The work product doctrine is "an intensely practical one, grounded in the realities 
of litigation in our adversary system." United States'. Nobles 422 U.S. 225, 238 (1975).. 
Relying on Sporck 
Peil, 759 F.2d 312 (3d Cir. 1985), and its progeny, Plaintiff 
contends that the compilation of non-privileged documents by attorneys is "opinion work 
product," and seemingly asserts that the documents themselves, and not just the 
compilation, can be kept from the defense. These sweeping claims, belied as they are by 
the record in this case, should be rejected. 
A. The Supposedly Unassailable Sporck 
Plaintiff's Memorandum makes it appear as though the principle announced in 
Sporck has been accepted as gospel throughout the federal court system. Nothing could 
be further from the truth. Not only was Sporck a 2-1 decision with a strong dissent, later 
cases and commentators have criticized its expansion of the work product doctrine. 
In Sporck, a civil securities fraud case, the attorney for the plaintiff deposed a 
defendant and requested the "identification and production" of documents that the 
defendant's attorney had used to prepare the defendant for the deposition. 759 F.2d at 
313-14. The documents in question, which were not themselves protected from 
disclosure, had "previously been produced" to the plaintiff. Ad. at 314-15. The 
defendant's attorney refused to comply with the request, and sought mandamus relief on 
work product grounds when the district court ordered disclosure and production. A 
divided panel of the Third Circuit granted the petition, holding that the district court 
EFTA00177847

"should not have ordered the identification of the documents selected by [defense] 
counsel." Id.: at 315 (emphasis added). See also id. (agreeing with the defendant that "the 
identification of the documents as a group must be prevented to protect defense counsel's 
work product") (emphasis added). The majority ruled that the "selection and compilation 
of documents by counsel in this case in preparation for pretrial discovery falls within the 
highly-protected category of opinion work product," explaining that without such work 
product protection an attorney might "forego[ ] a sifting of the documents." Id, at 316, 
317. 
Judge Seitz dissented. He was "convinced that [the majority's] ruling [was] an 
impermissible expansion of the work product doctrine at the expense of legitimate 
discovery." II at 319. He pointed out that the documents in question were not 
themselves covered by the doctrine and "had already been produced by the defendants." 
a 
Attacking the majority's belief that the litigation strategy of the defendant's attorney 
would be revealed by identification of the documents used to prepare for the deposition, 
Judge Seitz explained: 
The problem with [this] theory is that it assumes that one can 
extrapolate backwards from the results of a selection process to determine 
the reason a document was selected for review by the deponent. There are 
many reasons for showing a document or selected portions of a document to 
a witness. The most that can be said from the fact that a witness looked at a 
document is that someone thought that the document, or some portion of the 
EFTA00177848

document, might be useful for the preparation of the witness for his 
deposition. This is a far cry from the disclosure of the lawyer's opinion 
work product. 
Id. at 319. See also id, at 320 ("Certainly an attorney cannot cloak a document under the 
mantle of work product by simply reviewing it."). Finally, Judge Seitz criticized the 
majority's characterization of the compilation as opinion work product, saying that at 
most it would be fact work product. 
Sporck has not, contrary to Plaintiffs implication, been universally accepted.' In 
In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994), a case presenting 
facts very similar to those here, a district court in New York refused to follow Sporck.
The government in that case executed a search warrant at a law firm's offices to obtain 
evidence concerning one of the firm's corporate clients and its two principals. The 
materials taken during the search were provided to a taint prosecutor who was not 
involved in the underlying grand jury investigation. Isis at 56-57. The firm and its client 
filed a motion for return of the documents on work product and attorney-client privilege 
grounds. In support of the motion, one of the firm's attorney's submitted an affidavit 
(which the district court accepted as true) explaining that 14 of the cartons taken had been 
"'segregated by [him] as part of a confidential, attorney-directed investigation into 
Even one of the appellate decisions adopting Sporck involved a divided panel. See 
In re Allen, 106 F.3d 582 (4th Cir. 1997) (2-1 decision). 
EFTA00177849

possible illegal activity within and against [the corporate client]." a at 57. The 
investigation was begun "in preparation for litigation, including possible civil claims 
against .. . former employees and contractors of the corporate client, as well as defending 
against governmental claims and any federal criminal investigation of the corporate 
client." a The district court refined to extend the work product doctrine to the 
compilation of non-privileged materials: 
This court declines to extend the concept of work product so far as to 
protect otherwise non-privileged corporate documents, simply because the 
lawyer has separated and arranged them in a manner convenient to his 
intended study for one or more legal problems and which reflects his 
analysis and thoughts concerning the matter which he was investigating. 
The argument on its face is slightly frivolous because it assumes that 
this lawyer investigating these documents could detect or perceive 
something in them or perceived the need to examine them, which was not 
readily apparent to a skilled special agent. 
Id, at 58. Moreover, the court explained, "the policy consequences of permitting a client 
to insulate incriminating corporate documents which otherwise would have to be 
produced, by handing them over to an attorney who arranges them in some logical or 
illogical fashion, is simply too drastic to accept." a The court therefore ordered that 
documents which were not themselves privileged or protected be "turned over to the 
[prosecutor] in charge of the prosecution of the matter." a 
Under the holding of Law Offices, the Court in this case should order that the 
documents in question be turned over to the defense. Like all other privileges against 
forced disclosure, the work product doctrine should not be "expansively construed" 
because it is in "derogation of the search for truth." United States I, Nixon, 418 U.S. 
EFTA00177850

683, 710 (1974). 
Law Offices is not the only case to cast doubt on Sporck. See generally P. Grady, 
Discovery of Computer System Stored Documents and Computer Based Litigation 
Support Systems: Why Give Up More Than Necessary, 14 John Marshall J. of Comp. & 
Inf. Law 523, 551 (1996) (noting that "other courts have not accepted the Third Circuit's 
position" in Sporck). Even those courts which have found some basis for agreement with 
Sporck have rejected its broad expansion of the work product doctrine. 
For example, the First Circuit, in a complex case involving a hotel fire, permitted 
the pretrial disclosure of lists identifying exhibits to be used in depositions. In re San 
Juan Dupont Plaza Hotel Fire Litigation 859 F.2d 1007, 1017 (1st Cir. 1988). Although 
the panel held that the lists constituted fact work product, it criticized Sporck and refused 
to characterize the lists as opinion work product: "Th[e] [Sporck] reasoning, we suggest, 
is flawed because it assumes that the revelatory nature of the sought-after information is, 
in itself, sufficient to cloak the information with the heightened protection of opinion 
work product. That is simply not the case; much depends on whether the fruits of the 
screening would soon be revealed in any event." Id. at 1018? Thus, at most, the 
compilation of documents by Plaintiff's counsel is fact work product which can be 
obtained by showing substantial need and undue hardship. Ida at 1015. 
2  
Several district courts have opted to follow Dupont Plaza instead of Sporck. Sec, Igs, 
I.
 astano I. American Tobacco Co, 896 F.Supp. 590, 596 (E.D. La. 1995); Resolution Trust Corp. 
Heiserman, 151 F.R.D. 367,375 (D. Colo. 1993); Bohannon'. Honda Motor Co„ 127 F.R.D. 536, 
539 (D. Kan. 1989); In re Shell Oil Refinery, 125 F.R.D. 132, 133-34 (E.D. La. 1989). 
EFTA00177851

Similarly, in Gould Inc,. Mitsui Mining & Smelting Co„ 825 F.2d 676, 680 (2d 
Cir. 1987), the Second Circuit declined to embrace Sporck, explaining that the application 
of the Sporck principle "depends on the existence of a real rather than speculative 
concern that the thought processes of . . . counsel in relation to pending or anticipated 
litigation would be exposed." In this case, given the number of documents involved, it is 
difficult to see how there can be a "real" danger that the thought processes of Plaintiffs 
attorneys will be revealed. See also In re Joint Eastern & Southern District Asbestos 
Litigation, 119 F.R.D. 4, 5-6 (E.D.N.Y. & S.D.N.Y. 1988) (book of photographs, 
compiled by plaintiff's attorney, showing various forms of asbestos to which plaintiff had 
been exposed, was discoverable as a fact compilation because it did not reveal attorney's 
strategy); American Floral Services, Inc.'. Florists' Transworld Delivery Ass'n, 107 
F.R.D. 258, 260-61 (N.D. III. 1985) (plaintiff required to reveal identity of two of 
defendant's employees whom it had interviewed and who apparently had knowledge 
concerning plaintiff's claim). a. In re Grand July Subpoenas, 959 F.2d 1158, 1167 (2d 
Cir. 1992) ("With the advent of inexpensive photocopying, it seems likely that most sets 
of copied documents maintained by law firms will be sufficiently voluminous to minimize 
disclosure of the attorney's identification of some occasional wheat among the chaff."); 
In re Shell Oil, 125 F.R.D. at 134 ("it is highly unlikely that Shell will be able to discern 
the PLC's `theory of the case' or thought processes simply by knowing which 65,000 out 
of 660,000 documents have been selected for copying"). 
Criticism of Sporck has not been limited to the judiciary. Commentators have also 
EFTA00177852

expressed their disagreement with the case. agg K. Waits, Opinion Work Product: A 
Critical Analysis of Current Law and a New Analytical Framework, 73 Oregon L. Rev. 
385, 450 (1994) ("Sporck is wrongly decided[.] Contrary to the assertions in Sporck, . . . 
the adversary system is not threatened by the revelation of materials that only indirectly 
reveal an attorney's thinking."); L. Orland, Observations on the Work Product Rule, 29 
Gonzaga L. Rev. 281, 298 (1993-94) ("No opinion has been found that explains why the 
[Sporck] selection and compilation exception . . . should be carved out for preferential 
treatment."). 
For the reasons set forth in Judge Seitz's dissent and the decision in Law Offices, 
this Court should reject Sporck as an unwarranted expansion of the work product 
doctrine. After all, "pre-existing documents which could have been obtained by court 
process from the client when he was in possession may also be obtained from the attorney 
by similar process following transfer by the client in order to obtain more informed legal 
advice." Fisher,. United States, 425 U.S. 391, 403-04 (1976) (addressing attorney-client 
privilege). Accord Shelton 
American Motors Corp, 805 F.2d 1323, 1328 (8th Cir. 
1986) ("AMC does not contend that the documents themselves, prepared by other 
departments for the purpose of analyzing AMC vehicles, are protected as work product 
simply because those documents now may be in the possession of AMC's litigation 
department."). 
B. The Limitations on $porck 
Sporck does not, in any event, go as far as Plaintiff needs it to in order to shield the 
EFTA00177853

documents at issue from the taint team. Although Plaintiff says that Sumli controls, it 
fails to acknowledge significant factual differences between this matter and Sporck.
First, in Spsicic, unlike here, the party seeking the list of certain documents already 
had the documents themselves in its possession because they had previously been 
produced. 759 F.2d at 314, 319. Indeed, the sine qua non of Sporck and its progeny is 
the protection of the list or index of the selected documents because the documents 
themselves are already in the hands of the opposition or can be obtained by normal legal 
channels. See Waits, Opinion Work Product, 73 Oregon L. Rev. at 450 n. 229 ("by 
definition in document selection cases like Sporck the opponent already possesses the 
documents").3
When the Court reviews the documents in camera, it will see that they include 
original documents which must be turned over to the government. ,Se Law Offices, 153 
F.R.D. at 59 (lawyer cannot secure work product protection by highlighting an original 
corporate document that is not otherwise privileged). Thus, at least with respect to those 
original documents, the defendant does not have possession of them. The necessary 
predicate does not exist, and Sporck is not triggered. See Gould, 825 F.2d at 680 ("the 
equities may not favor the application of the Sporck exception if the files from which the 
documents had been culled . . . were not otherwise available . . . or were beyond 
3 
Plaintiffs own cases recognize that the compiled documents must be in the 
possession of, or available to, the opposing party. age, a, In re Allen, 106 F.3d at 608 (adoption 
of Sporck "does nat protect [the] personnel records from disclosure, just [the attorney's] selection 
and arrangement of them"); James Julian. Inc. I. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) 
("Julian does not object to the defendants obtaining the documents contained in the binder[.]"). 
EFTA00177854

reasonable access"). And, as noted above, the compilation of documents is at most fact 
work product which can be obtained upon a showing of substantial need and undue 
hardship. The defendant can and will make that showing at the evidentiary hearing if and 
when Plaintiff meets its initial work product burden. 
C. Plaintiff's Burden and the Need for an Evidentiary Hearing 
Plaintiff, as the party asserting the protection of the work product doctrine, has the 
burden of establishing its elements. Sgg, g4, Hodges. Grant & Kaufmann I. U.S. 
Government. Dept. of the Treasury, 768 F.2d 719, 721 (5th Cir. 1985). Plaintiff has 
provided a general privilege log and an affidavit, but those submissions, under the 
circumstances, are insufficient to establish the applicability of the work product doctrine. 
The log describes only broad categories of documents, and the supporting affidavit 
completely fails to explain which attorneys compiled which documents. For reasons 
explained below, those particular facts are critical to the work product analysis in this 
case. Without those facts, the defendant cannot intelligently determine which of 
Plaintiff's claims have merit. "'Without identification of the documents, the party against 
whom the privilege is claimed is completely unable to challenge the validity of th[e] 
claim." Smith 
Logansport Community School Corp., 139 F.R.D. 637, 648 (N.D. Ind. 
1991) (citation omitted). Plaintiff simply has not carried its burden of establishing its 
entitlement to work product protection. a. Rabushka I. Crane Co., 122 F.3d 559, 565 
(8th Cir. 1997) ("Crane met its burden of providing a factual basis for asserting the 
[attorney-client and work product] privileges when it produced a detailed privilege log 
EFTA00177855

stating the basis of the claim privilege for each document in question, together with an 
accompanying explanatory affidavit of its general counsel.") (emphasis added). 
The Court "must require [Plaintiff] to assert [work product] with a document-by-
document explanation as to why the [doctrine] shields the document from the [warrant's] 
reach. The [Court] must then determine the validity of each assertion -- either by 
conducting a hearing or inspecting the documents in camera." In re Grand Jury 
Subpoena, 831 F.2d 225, 228 (11th Cir. 1987) (attorney-client privilege case). Whatever 
process the Court chooses, it must permit the defendant to participate and meaningfully 
litigate the applicability of the work product doctrine. 
In this vein, we point out that, even if Sporck is followed, Plaintiff's work product 
theory flounders with respect to at least certain of the categories of documents set forth in 
the privilege log. 
Contrary to Plaintiff's suggestion, even the most generous interpretations of the 
work product doctrine do not protect the selection of materials by a client; the doctrine 
protects attorney work product. age, 
Bloss I. Ford Motor Co. 126 A.D.2d 804, 805, 
510 N.Y.S.2d 304 (N.Y.App.Div. 1987) (documents which could have been prepared by a 
layman not entitled to work product protection). In any event, Plaintiff has no standing to 
assert any work product protection on behalf of an unidentified third party or his/her 
unidentified counsel. See, e.g., Bohannon 127 F.R.D. at 53940 ("work product status 
does not apply to documents submitted to or received from a third party"). 
The fact that computer printouts -- routine printouts available from the Plaintiff's 
EFTA00177856

D. Plaintiff's Failure to Establish Confidentiality and Lack of Waiver 
"[W]hen an attorney freely and voluntarily discloses the contents of otherwise 
protected work product to someone with interests adverse to his or those of his client, 
knowingly increasing the possibility that an opponent will obtain and use the material, he 
may be deemed to have waived work product protection." In re Doe, 662 F.2d 1073, 
1081 (4th Cir. 1981). 
Under the circumstances, any claim of privilege or work product cannot be 
accepted without further evidentiary substantiation. See United States'. Aramony, 88 
F.3d 1369, 1392 (4th Cir. 1996) (where the allegations against one party could not subject 
another to civil or criminal liability, joint defense privilege is inapplicable), cert. denied, 
117 S. Ct. 1842 (1997); Sheet Metal Workers International Association'. Sweeney, 29 
F.3d 120, 124-25 (4th Cir. 1994) (any privilege arising from engaging in joint defense 
requires, as a threshold matter, a legitimate common interest about a legal matter); km 
Bevil!. Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) 
(proponent bears burden of producing evidence establishing privilege). If Plaintiff is 
going to use the purported joint defense agreement as a weapon in its arsenal, it must be 
produced to the defendant so that its breadth and applicability can be fairly litigated. 
EFTA00177857

database that are routinely produced in the course of operating Plaintiff's business -- were 
made available to and used by attorneys does not protect them from disclosure or turn 
them into work product. See Santiago i Miles, 121 F.R.D. 636, 642 (W.D.N.Y. 1988) 
(no work product protection where, although computer reports may have been prepared 
with pending litigation in mind, the primary motivation behind the creation of such 
reports was for use in the normal course of business); Colorado ex rel. Woodard 
Schmidt-Tiago Construction Co„ 108 F.R.D. 731, 734-35 (D. Cob. 1985) (absent 
additional evidence, no work product protection for readouts from computer program 
established for use in regular course of business); Fauteck 
Montgomery Ward & Co., 
91 F.R.D. 393, 398-99 (N.D. Ill. 1980) (ordering disclosure of personnel records from 
computer database where counsel merely raised conclusory claim that the database 
formulation "entail[ed] numerous strategic legal decisions"). 
Plaintiff must of course meet its burden with respect to each of the categories of 
documents it claims are work product. Yet several of the categories it claims are work 
product have been denied such status. This is the case with training and attendance 
sheets, see. e.g., Burton I R.J. Reynolds Tobacco Co„ 170 F.R.D. 481, 486 (D.Kan. 
1997) (document evidencing attendance of two company employees at meeting not work 
product under Kansas law), and with Congressional subcommittee testimony, see. e.g„ 
LaMorte I. Mansfield, 438 F.2d 448, 451-52 (2d Cir. 1971) (any privilege which may 
exist for testimony given at non-public SEC hearing belongs to SEC, and argument that 
transcripts were work product was meritless). 
EFTA00177858

EL—AD RESIDENCES AT MIRAMAR CONDO. i MT. HAWLEY 
1257 
Clina 716 PSupp.2d 1257 (S.D.Fla. 2010) 
seeks declaratory relief pursuant to 
state or federal law. 
8. The Clerk is directed to send a copy 
of this Amended Order to the Clerk 
of the Judicial Panel on Multidistrict 
Litigation. 
9. The Final Judgment previously is-
sued in the Aurelius Action, see Case 
No.: 10-CV-20236, [DE 531 (S.D. 
Fla. May 28, 2010), is hereby VA-
CATED. 
EL-AD RESIDENCES AT MIRAMAR 
CONDOMINIUM 
ASSOCIATION, 
INC., a Florida not-for-profit corpora-
tion, Plaintiff, 
MT. HAWLEY INSURANCE COMPA-
NY, a foreign corporation, and West-
chester Surplus Lines 
Insurance 
Company, a foreign corporation, De-
fendants. 
Case No. 09-60723-CIV. 
United States District Court, 
S.D. Florida. 
June 2, 2010. 
Background: Condominium association 
brought action against insurers, stemming 
from coverage dispute over hurricane dam-
age. Association's former attorneys moved 
to intervene and for ancillary proceeding. 
Holdings: The District Court, Chris McA-
liley, United States Magistrate Judge, held 
that: 
(1) intervention as of right was warranted, 
and 
(2) ancillary proceeding to sanction former 
co-counsel was not warranted. 
Motions granted in part and denied in 
Part 
1. Federal Civil Procedure 4=331 
Condominium association's former at-
torneys had right to intervene in associa-
tion's present action against insurers, 
stemming from coverage dispute over 
hurricane damage, for limited purpose of 
protecting privileged communications; dis-
closure of attorneys' privileged communi-
cations with former co-counsel would have 
harmed attorneys in ongoing litigation. 
Fed.Rules 
Civ.Proc.Rule 
24(a), 
28 
U.S.C.App.(2006 Ed.). 
2. Federal Courts a=21 
Ancillary proceeding to sanction for-
mer attorneys' former co-counsel was not 
warranted in action brought by condomini-
um association against insurers, stemming 
from coverage dispute over hurricane dam-
age, since court already had all necessary 
claims before it to resolve sanctioning is-
sue, and had ability to manage its proceed-
ings, vindicate its authority, and effectuate 
its decrees without extending its jurisdic-
tion. 
Keith Jeffrey Lambdin, Katzman Gar-
finkel Rosenbaum, John David Mallah, 
Maitland, FL, for Plaintiff. 
Bradley Ryan Weiss, Benson Mucci & 
Associates LLP, Thomas E. Tookey, Coral 
Springs, FL, Brian E. Sims, Michael D. 
Prough, William C. Morison, Morison Hol-
den Derewetzky & Prough LLP, Walnut 
Creek, CA, Cortland C. Putbrese, Morison 
Holden Derewetzky & Prough, LLP, Rich-
mond, VA, Daniel Howard Coultoff, La-
tham, Shuker, Barker, Eden & Beaudine, 
EFTA00177859

1258 
716 FEDERAL SUPPLEMENT, 2d SERIES 
LLP, Orlando, FL, Scott Michael Janow-
itz, William S. Berk, Melissa M. Sims, 
Berk Merchant & Sims PLC, Coral Ga-
bles, FL, for Defendants. 
OMNIBUS ORDER 
CHRIS McALILEY, United States 
Magistrate Judge. 
Pending before the Court are the follow-
ing related motions: (1) Request for Judi-
cial Inquiry [DE 103]; (2) Motion for Pro-
tective Order [DE 122]; (3) Motion to 
Intervene [DE 126]; (4) Motion to Con-
vene Ancillary Proceedings [DE 180]; and 
(6) Motion for Hearing on Motion to Con-
vene Ancillary Proceedings [DE 132].' 
The Honorable Adalberto Jordan has re-
ferred the motions to me for resolution, 
and for the reasons stated below the Mo-
tion to Intervene is granted, and the other 
motions are denied. 
I. BACKGROUND 
This and a related ease arise from an 
insurance dispute over damage allegedly 
caused by Hurricane Wilma to two condo-
minium complexes. The Plaintiff in this 
case, El—Ad Residences at Miramar Con-
dominium Association ("Residences"), re-
tained the law firm of Katzman Garfinkel 
Rosenbaum LLP ("KGR") to represent it 
in its claim against its primary property 
casualty insurer, Mt. Hawley Insurance 
Company ("Mt. Hawley") and its excess 
insurer, Westchester Surplus Lines Insur-
ance Company ("Westchester') (collective-
ly, "Defendants"). The other condomini-
um complex, El—Ad Enclave at Miramar 
I. Defendant, Westchester Surplus Lines In-
surance Company, filed a Motion for Ex-
tension of Time to Respond to Motion to 
Convene Ancillary Proceedings [DE 146]. 
Because the Court denies the Motion to 
Convene Ancillary Proceedings is denied, 
Westchester's Motion is moot. 
Condominium Association ("Enclave"), also 
retained KGR to bring suit against Mt. 
Hawley and a different excess insurer, 
General Star Indemnity Company.' In 
March of this year, while this litigation 
was on-going, the law firm of KGR broke 
up, with some of its attorneys, led by 
Daniel S. Rosenbaum, forming the firm 
Rosenbaum Mollengarden Janssen & Sir-
cusa ("RMJS"), and others, principally 
Alan Garfinkel and Leigh Katzman, form-
ing Katzman Garfinkel & Berger ("KGB"). 
The break-up of KGR has been acrimoni-
ous and has led to litigation between the 
former law partners. The motions now 
before this Court arise, in large measure, 
from heated disputes between Rosenbaum 
on the one hand, and Garfinkel and Katz-
man on the other. 
Immediately following the breakup of 
KGR, Rosenbaum's law firm, RMJS, en-
tered appearances on behalf of both Resi-
dences and Enclave. Thereafter, on April 
8, 2010, RMJS filed a Request for Judicial 
Inquiry in this, the Residences case' that 
can be summarized as follows. Before the 
formation of KGR, Garfinkel had a law 
firm called the Garfinkel Trial Group 
("GTG"), which hired a consulting firm, 
Hunter R Contracting LLC ("Hunter R") 
and TSSA Storm Safe Inc. ("TSSA"), to 
perform insurance estimates. 
Kenneth 
Remain was a member of Hunter R. After 
several years of this consulting relation-
ship, GTG terminated Hunter R and 
TSSA, which led to litigation between 
them over monies owed. These disputes 
spilled over into a number of ongoing law-
2. The "Enclave case" is filed with this Court 
as Case No. 09-60726-CIV-30ltDAN/MCALI-
LEY. 
3. The motion is fully titled Request for Judi-
cial Inquiry Into Perjury, and Potential Subor-
nation of Perjury and Witness Tampering. 
IDE 103]. 
EFTA00177860

EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 
1259 
CIloas716 F.Supp.2d 1257 (S.D.FIa. 2010) 
suits filed in state and federal courts, be-
tween condominium associations repre-
sented by GTG and or the consultants, and 
the various insurers they had sued. Ro-
main was deposed in a number of those 
lawsuits and testified that Garfinkel, GTG 
and the consultants had engaged in a 
scheme to generate falsely high insurance 
claims, that Garfinkel had received kick-
backs from the consultants, and that Gar-
finkel, through others, had an improper 
ownership interest in Hunter R. At a 
March 30, 2010 deposition taken in several 
cases, including this case and the Enclave 
case, Romain recanted these claims of 
wrongdoing. RMJS asserts that Romain's 
conflicting sworn testimony demonstrates 
that Romain has committed perjury, either 
at his earlier depositions, or at the March 
30th deposition, and in its Request RMJS 
asks this Court to conduct an inquiry into 
this perjury as well as possible fraud and 
unethical conduct by Romain, Garfinkel, 
and possibly others. 
Several days after RMJS filed the Re-
quest for Judicial Inquiry, Residences 
again changed counsel: Garfinkel's and 
Katzman's new firm, KGB, filed a notice of 
appearance on Residence's behalf, and 
Rosenbaum's firm, RMJS, withdrew as 
counsel. 
RMJS continues to represent 
Enclave, in Case No. 09-60726-CIV-JOR-
DAN. 
The Motion for Judicial Inquiry was 
filed a few days before a discovery confer-
ence I had scheduled for April 16, 2010. 1 
took the opportunity, at the start of that 
hearing, to ask Rosenbaum to answer 
some questions I had about his Request 
4. The transcript of that discovery conference 
has been filed at DE 119. 
5. Rosenbaum Included the following informa-
tion he gave the Court. At a time when 
difficulties had arisen between Rosenbaum 
and his partners Garfinkel and Katzman, and 
they were discussing disassociating from one 
another, Katzman allegedly said: "'You don't 
for Judicial Inquiry, which he did." 
Rosenbaum basically restated what is sum-
marized above, and was more clear about 
his concern that his former partners may 
have paid Romain to change his testimo-
ny.' Rosenbaum also disclosed that he 
had brought his concerns to the U.S. At-
torneys Office. 
As for the inquiry he 
wants this Court to undertake, Rosenbaum 
suggested that the Court hold hearings 
and take testimony from everyone in-
volved: the various attorneys and consul-
tants and possibly the Plaintiffs them-
selves. He believes that a fraud has been 
worked upon this and many courts and 
that this Court should look beyond the 
issues in this case and inquire into improp-
er conduct in similar cases filed in other 
divisions of this Court and in various state 
courts. 
In the end, Rosenbaum would 
have this Court determine whether Gar-
finkel and Katzman and the consultants 
engaged in improper conduct before this 
or other courts, although he was not clear 
what remedies this Court might order. 
Having heard from Rosenbaum, I asked 
the other parties to file written responses 
to the Request, and offer their opinions 
whether a judicial inquiry is appropriate 
and necessary. 
The Defendants in both the Residences 
and Enclave case filed a memorandum in 
support of this Court convening a broad 
judicial inquiry. (DE 121]. In that docu-
ment Defendants provide considerable de-
tail about evidence collected, in a number 
of cases, of an unethical relationship be-
tween Garfinkel and Hunter R and Ro-
have to worry about Ken Roman If this is an 
issue because we can pay him off and he will 
recant his testimony,' and at that point maybe 
there is 18, 20 people In the room and I said, 
'That's outrageous. There would be no way 
that you could ever do that or that we could 
ever permit that.'" (DE 119, pp. 14—I5). 
EFTA00177861

1260 
716 FEDERAL SUPPLEMENT, 2d SERIES 
main, which Defendants maintain is di-
rectly relevant to their defense that the 
insurance policies have been voided by 
Plaintiffs' fraud. Defendants acknowledge 
that there are procedural mechanisms in 
place that allow this Court to address 
these issues in this case as needed, but 
nevertheless argue that a broad inquiry 
that cuts across case lines is warranted, 
because Garfinkel and others have "creat-
ed a fraud upon the judicial process" 
throughout this District. [DE 121, p. 12]. 
Defendants identify twelve witnesses who 
should testify, and ask the Court to sub-
poena years worth of bank and accounting 
records from Garfinkel and a list of people 
associated with him. 
Residences, by that time represented by 
Garfinkel's and ICatzman's new law firm, 
filed a response in opposition to the Re-
quest [DE 127], It argues that it would 
be improper for this Court to take on an 
investigative role and suggests that a 
broad judicial inquiry would open "an evi-
dentiary Pandora's box." (DE 127, p. 9]. 
Notably, they assert that "(n)othing has 
transpired before this Court that would 
implicate any inherent authority the Court 
might have to punish or order further 
action taken with respect to misconduct it 
observes." Ltd., p. 7]. It urges that the 
issues raised by the Request, and at the 
April 16 hearing, can be addressed as 
needed in the normal course of this litiga-
tion. 
Shortly after the April 16 hearing, Resi-
dences filed a Motion for Protective Order 
Enjoining Daniel Rosenbaum from Fur-
ther Violating Attorney—Client Privilege to 
Advance His Own Interests. [DE 122]. 
While the Motion is filed in the name of 
Residences, it mostly sets forth a series of 
accusations that are personal to Garfinkel. 
The Motion recounts the disputes between 
6. Many of the assertions in that response have 
been repeated in other pleadings they have 
GTG and its former consultants Hunter R 
and Romain, characterizes Romain's accu-
sations against Garfinkel as false, and 
claims the defendant insurers have unfair-
ly seized upon these allegations to try to 
defeat the plaintiffs' legitimate claims and 
have engaged in a campaign to smear Gar-
finkel's reputation. 
The Motion calls 
Rosenbaum a liar [DE 122, p. 17] and 
makes a series of disparaging accusations 
against him about matters that bear on the 
personal dispute between the former law 
partners, starting with Rosenbaum's "fi-
nancial misconduct" when he allegedly di-
verted $700,000 from the KGR bank ac-
count into a personal account. Within that 
context, the Motion charges that Rosen-
baum filed the Request for Judicial Inqui-
ry, and spoke in support of that Request at 
the April 16th hearing, not for any legiti-
mate purpose, but only to gain an advan-
tage in his on-going dispute with Garfinkel 
and Katzman over the division of their fees 
and clients. 
According to the Motion, Rosenbaum 
served as counsel not only for Residences, 
but was also counsel to Garfinkel and was 
part of a Joint Defense Team ("JDT') 
comprised of an unnamed list of "persons 
sued and/or affected by" the claims 
brought by Hunter R, Remain, and TSSA. 
[DE 122, p. 7). The Motion charges that in 
the Request for Judicial Inquiry and at the 
April 16th hearing, Rosenbaum disclosed 
privileged information gained as part of 
those representations, and did so without 
his clients' authorizations. 
The Motion 
also accuses Rosenbaum of giving the 
Court this information in a manner ad-
verse to his former client Residences. 
Resting on these accusations, the Mo-
tion asks this Cunt to use its inherent au-
thority to enter a "protective order" that 
filed, and which are summarized elsewhere in 
this Order. 
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2010) 
enjoins Rosenbaum from further disclo-
sures of privileged communications. Re-
markably, it goes much further and asks 
this Court to enjoin Rosenbaum from "ap-
pearing in any case or taking any action 
adverse to Alan Garfinkel or any of his 
former clients in any case where the alle-
gations of Ken Romain are, directly or in-
directly, at issue." [DE 122, pp. 17-18]. 
Such broad injunctive relief—on its face—
is excessive, as it surely would bar Rosen-
baum from participating in the judicial dis-
solution proceedings with his former part-
ners. 
The Defendant insurance companies 
filed oppositions to the Motion for Protec-
tive Order. [See DE 129, 133]. In those 
papers the Defendants point out, inter 
aria, that Rosenbaum is neither a party to 
this lawsuit, nor an attorney of record, that 
discovery is closed and, in any event, no 
discovery is pending involving Rosenberg. 
Although styled a motion for protective 
order, Defendants rightfully point out that 
it is better understood as a motion for 
injunctive relief against someone who is 
not a party to this lawsuit Defendants 
also raise a number of good arguments 
that question whether information Rosen-
baum disclosed was in fact protected by 
privilege. They also specifically deny that 
Rosenbaum has given them "any informa-
tion pertaining to his representation of 
[Plaintiffs] or other former or current 
clients." [DE 133, p. 3]. 
Perhaps recognizing the procedural 
flaws inherent in Residences' Motion for 
Protective Order, a few days after they 
filed that Motion, Garfinkel and Katzman 
filed their Motion to Intervene to Ensure 
Preservation of Privilege. 
[DE 126]. 
They ask to intervene in this case, individ-
ually, to protect their personal interests, 
including what they claim were privileged 
communications with Rosenbaum. They 
add that Rosenbaum has cross-noticed 
Garfinkel's deposition in this and another 
case, and predict he will use the deposition 
to "gain leverage in the partnership disso-
lution and to harass Garfinkel." [DE 126, 
p. 2]. 
A few days later, Garfinkel and Katzman 
filed yet another motion: Motion to Con-
vene Sealed Ancillary Proceedings for In-
junctive Relief, Sanctions, and Potential 
Attorney Disqualification [DE 130].' They 
repeat their accusations about Rosenbaum, 
and again charge that in the Request for 
Judicial Inquiry, and at the April 16th 
hearing, he disclosed privileged informa-
tion, and made statements adverse to his 
former client Residences in violation of 
Florida Bar Rule of Professionalism 4-1.6, 
4-1.9(b)-(c), and they again ask this Court 
to invoke its inherent power to discipline 
Rosenbaum. What's new is the way in 
which Garfinkel and Katzman ask the 
Court to accomplish this: they would have 
this Court convene an ancillary proceeding 
that would be conducted entirely under• 
seal, the sole focus of which would be 
Rosenbaum's alleged misconduct, that 
would adjudicate whether Rosenbaum vio-
lated the Florida Bar Rules of Professional 
Conduct, and in the process they would 
have the Court bar Rosenbaum from filing 
a response to the Motion. In the end, 
Garfinkel would have this Court discipline 
Rosenbaum for breach of his ethical obli-
gations, enjoin him from further miscon-
duct, and disqualify defense counsel from 
representing their clients in this case, be-
cause they have received (unidentified) in-
formation protected by the attorney-client 
privilege and work product doctrine. 
Ii. ANALYSIS 
A. Motion to Intervene 
[11 Both Garfinkel and Katzman assert 
their right, pursuant to Rule 24(a), F.R. 
7. They request a hearing on that Motion. 
[DE 132]. 
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716 FEDERAL SUPPLEMENT, 2d SERIES 
Civ. P., to intervene in this action "for the 
limited purpose of protecting the various 
privileges, and to respond to the personal 
attacks made upon them individually by 
Rosenbaum." [DE 125, p. 
Garfinkel 
and Katzman will be permitted to inter-
vene for the former purpose, but not the 
latter•. 
According to the Motion to Intervene, 
Rosenbaum served as counsel for Garfink-
el "in the matter which Romain filed 
against Garfinkel[,]" and their communica-
tions in this respect were protected by the 
attorney client privilege. Id The Motion 
further asserts that Rosenbaum, as part of 
the Joint Defense Team represented his 
former law firm, KGR, and by association 
its partner, Katzman, and that disclosure 
of their privileged communications would 
harm Garfinkel and Katzman in on-going 
litigation. [DE 126, p. 3].3
Rule 24(a) reads as follows: 
(a) Intervention as of Right. 
Upon 
timely application anyone shall be per-
mitted to intervene in an action: 
(2) When the applicant claims an inter-
est relating to the property or transac-
tion which is the subject of the action 
and he is so situated that disposition of 
the action may as a practical matter 
impair or impede his ability to protect 
that interest, unless the applicant's in-
terest is adequately represented by ex-
isting parties. 
The law in this Circuit, and others, is clear, 
that this Court must allow intervention by 
a client "in the first instance ... as soon 
as the [attorney-client] privilege issued is 
raised." In re Grand Jury Matter (ABC 
Coeµ), 736 F.2d 1330, 1881 (11th Cir.1984), 
(quoting In re Grand Jury Proceedings 
(Freeman), 708 F.2d 1571, 1575 (11th Cir. 
1983)); see also In re Grand Jury Subpoe-
na (Newparent, Inc.), 274 F.3d 663, 670 
(1st Cir.2001) ("Colorable claims of attor-
ney-client and work product privilege [are] 
.. . a textbook example of an entitlement 
to intervention as of right."); United 
Stalest. AT & T Co., 642 F.2d 1285, 1292 
(D.C.Cir.1980); 
Sackman I. 
Liggett 
Group, Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y. 
1996). 
In allowing intervention, this Court 
notes that Garfinkel and Katzman have not 
demonstrated that Rosenbaum in fact 
served as their lawyer, or that he has or 
will disclose any of their privileged com-
munications. While they have complained 
mightily that Rosenbaum has already 
made unauthorized disclosures, Garfinkel 
and Katzman have not identified for this 
Court which of Rosenbaum's statements in 
the Request for Judicial Inquiry, or at the 
April 16 healing, they claim are privileged. 
Moreover, Katzman's assertion of privilege 
is particularly attenuated: he claims that 
Rosenbaum, as part of the JDT, represent-
ed their former law firm, and that as a 
partner in the firm Katzman personally 
claims a privilege as to his statements to 
Rosenbaum. Further, to the extent Katz-
man contends that the statement Rosen-
baum attributed to him, and repeated at 
the April 16 hearing ("You don't have to 
worry about Ken Romain if this is an issue 
because we can pay him off and he will 
recant his testimony") was a privileged 
communication, it would appear to fall 
squarely within the crime-fraud exception 
to that privilege. In this and other cir-
cuits, Garfinkel and Katzman need not set 
forth this proof before they intervene. See 
In re Grand Jury Proceedings (Freeman), 
708 F.2d at 1576 (intervention should have 
been allowed "once the claim of attorney-
client privilege ... surfaced."); In re 
Grand Jury Matter (ABC Corp.), 735 F.2d 
at 1331 (the extent of the attorney-client 
privilege, and the possibility of unautho-
8. The Motion does not specifically identify 
what ongoing litigation It refers to. 
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EL-AD RESIDENCES AT MIRAMAR CONDO. . Mt HAWLEY 
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Cline716 17-5upp.2d 1257 (S.D.Fla. 2010) 
sized disclosure must be addressed after 
intervention); United States.). AT & T 
Co., 642 F.2d at 1291 ("determination of 
the merits of [the] claim [of privilege] is 
not appropriate at this threshold stage ... 
we must accept a party's well-pleaded alle-
gations as valid.") 
Upon intervention, Garfinkel and Katz-
man will have to meet their burden to 
establish that they were in fact represent-
ed by Rosenbaum, and that they had privi-
leged communications in the course of that 
attorney-client relationship that have been, 
or are at risk of, unauthorized disclosure.' 
Rule 24(a) permits intervention only 
"upon timely application." As already not-
ed, Rosenbaum no long represents Plain-
tiff in this action and he, of course, is not a 
party. The Court will have to hear from 
him however, as it considers Garfinkel's 
and Katzman's claims of privilege. The 
Court will therefore entertain a concise 
motion by Rosenbaum, pursuant to Rule 
24(a) to intervene in this proceeding, for 
the same limited purpose of participating 
in this Court's consideration of Garfinkel's 
and Katzman's claims of privilege. 
As for Garfinkel's and Katzman's re-
quest to intervene to "respond to the per-
sonal attacks made upon them individually 
9. In this diversity action, claims of privilege 
are governed by Florida law. F.R. Evd. 501. 
The burden of establishing that communica-
tions were protected from disclosure by the 
attorney-client privilege falls upon the party 
autillnilike privilege.
 Bell Tel. & 
Tel. Co. . Deasoil, 632 So.2d 1377, 1383 
I 
(Fla.1994); Cone I. Culverhouse, 687 So.2d 
888, 892 (Fla. 2d DCA 1997) ('The privilege 
will not apply unless the party asserting it 
proves that the communications at issue come 
yithin its confines."); Wal—Mart Stores, Inc. 
Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 
1997) (same rule applies to work product 
doctrine). In meeting this burden, each ele-
ment of the privilege must be affirmatively 
demonstrated, and the party claiming privi-
lege must provide the court with evidence 
that demonstrates the existence of the privi-
lege, which often is accomplished by affidavit. 
by Rosenbaum," they may not do so. (DE 
126, p. 2]. As one court has noted, to 
intervene "the interest must be a legal 
interest as distinguished from interests of 
a general or indefinite character." United 
States'. AT & T Co., 642 F.2d at 1292 
(citations and quotation marks omitted).1°
This Court does not need to provide Gar-
finkel and Katzman a forum to respond to 
Rosenbaum's "personal attacks." In the 
numerous pleadings they have filed since 
Rosenbaum's Request for Judicial Inquiry, 
Garfinkel and Katzman have already re-
peatedly answered Rosenbaum's assertions 
and have done so in a vitriolic manner. 
Rosenbaum no longer represents Resi-
dences, thus he no longer has a voice in 
this lawsuit to make additional claims 
about his former law partners. There are 
other forums in which the former law part-
ners can air their grievances against one 
another they are already embroiled in 
Judicial dissolution proceedings, and if 
complaints have not already been filed 
with the Florida Bar, they are likely to 
be." Rule 24(a) does not require interven-
tion by Garfinkel and Katzman to protect 
themselves from Rosenbaum's complaints 
against them. 
See CSX Tramp., Inc.'. Admiral Ins. Co., 1995 
WL 855421 at *1-2, 1995 U.S. Dist. LEXIS 
22359 at '4-5 (M.D.Fla. July 20, 1995). In 
Florida, corporate claims of privilege are sub-
ject to a heightened level of scrutiny, and the 
Florida Supreme Court has established five 
criteria to establish a corporate claim of attor-
pep-client privilege. Deacon, id., at 1383. 
10. While the Second Circuit has recognized 
that injury to reputation is one that might be 
served by Rule 24(a), the parties have not 
cited any similar authority in this Circuit, and 
this Court is aware of none. 
II. For that matter, evidence of criminal 
fraud, witness tampering or bribery, is best 
referred to law enforcement authorities. 
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716 FEDERAL SUPPLEMENT, 2d SERIES 
B. Motion for Ancillary Proceeding 
[2] Garfinkel and Katzman have also 
asked this Court to convene an extraordi-
nary ancillary proceeding: it would be 
held under seal," its sole purpose would be 
to sanction Rosenbaum for his alleged un-
authorized disclosures of his clients' privi-
leged information in his Request for Judi-
cial Action and at the April 16 hearing, 
enjoin Rosenbaum from future similar con-
duct, determine whether Rosenbaum vio-
lated Florida Bar Rules of Professional 
Conduct 4-1.6, 4-1.9(b)-(c), and to disqual-
HST Defendants' counsel because Rosen-
baum has given them Garfmkel's and 
Katzman's privileged information. 
Re-
markably, they suggest Rosenbaum should 
have a limited opportunity to defend him-
self in such an action ("Rosenbaum should 
be ordered not to disclose any information 
or file any response, unless permitted by 
Court order.") [DE 130, p. 2). 
The Supreme Court, in Kokkonen 
Guardian Life Nair. Co. of Amer., 611 
U.S. 876, 114 S.Ct. 1678, 128 L.Ed.2d 391 
(1994), wrote the following about ancillary 
jurisdiction. 
Federal courts are courts of limited ju-
risdiction. They possess only that pow-
er authorized by Constitution and stat-
ute, which is not to be expanded by 
judicial decree. It is to be presumed 
that a cause lies outside this limited 
jurisdiction, and the burden of establish-
ing the contrary rests upon the party 
asserting jurisdiction. 
• 
* 
• 
12. While the Court can make in camera re-
view of possible privileged materials, it will 
not engage In wholesale closed dockets. Pro-
ceedings may be sealed only upon a showing 
of exceptional circumstances, and harm to 
reputation is not sufficient to overcome the 
strong presumption In favor of public access 
to the courts. Brown I. Advantage Engineer-
The doctrine of ancillary jurisdiction .. . 
recognizes federal courts' jurisdiction 
over some matters (otherwise beyond 
their competence) that are incidental to 
other matters properly before them. 
Generally spealdng, we have asserted 
ancillary jurisdiction ... for two sepa-
rate, though sometimes related pur-
poses: (1) to permit disposition by a 
single court of claims that are, in vary-
ing respects and degrees, factually inter-
dependent, and (2) to enable a court to 
function successfully, that is, to manage 
its proceedings, vindicate its authority, 
and effectuate its decrees. 
/a at 377-380, 114 S.Ct. 1678 (citations 
omitted). Garfinkel and Katzman have not 
carried their burden to demonstrate that 
their proposed ancillary proceeding would 
satisfy either purpose. As for the first 
purpose, this Court clearly has all claims 
before it necessary to resolve this matter. 
As for the second purpose, this Court can 
"manage its proceedings, vindicate its au-
thority, and effectuate its decrees" without 
extending its jurisdiction. Specifically, it 
can: (1) resolve any disputes about privi-
leges and issue appropriate orders; (2) if it 
needs to pass on ethics breaches by coun-
sel, it has the power to do so; " and (3) it 
can, and will, use its authority to insist 
that counsel conduct themselves with a 
degree of restraint and professionalism 
that has been lacking in many of the plead-
ings now before this Court. In sum, this 
ing, Inc., 960.17.2d 1013, 1016 (11th Cir. 
1992); Wilson 
American Motors Corp., 759 
F.2d 1568 (11th Cir.1985). 
13. The Florida Bar Is uniquely suited to ad-
dress compliance with its Rules of Profession-
al Conduct and, at this Juncture, this Court 
defers to the Florida Bar to do Just that. 
EFTA00177866