Filing # 24089127 E-Filed 02/23/2015 03:52:36 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, STATE OF FLORIDA
MATTHEW WEIDNER, et al.
Plaintiffs,
v.

CASE NO.: 2015 CA 000283

RICK SCOTT, et al.,

Defendants.
______________________________/
EMERGENCY MOTION FOR PRESERVATION
OF ELECTRONIC EVIDENCE
Plaintiffs, through counsel, move for the entry of an Order preserving electronically
stored information and evidence in this case, and in support would show the following:
Introduction
This action alleges that the Governor and members of the Florida Cabinet violated the
Sunshine Law when aides acted for and exchanged information among Defendants as to
decisions required to be noticed regarding the hiring and firing of the head of FDLE. Plaintiffs
allege that Defendants, utilizing conduits consisting of Cabinet aides, agents, attorneys or
representatives, relayed communications about acts required to be in the Sunshine.
The Governor and his staff have previously purged public records without properly
archiving them. Significant controversy exists about unusual policies of the Executive Office of
the Governor as it relates to the retention of public records by members of his staff. As
demonstrated below, based on these events, Plaintiffs have a substantial and reasonable basis to
believe that an Order is required compelling Defendants to preserve electronic evidence relating
to communications and meetings about the events in question to prevent the spoliation of
evidence.

Facts
1.

On or about June 12, 2012, the Florida Department of Law Enforcement

(FDLE), issued an investigative report ([IR at __]) 1 regarding its inquiry into the destruction
of public records by members of Governor Scotts transition team during his first term in office.
The report determined that a series of unfortunate circumstances occurred which resulted in the
loss of an unknown quantity of public records.

The IR made the following findings or

conclusions:
a. an agent of the Governors assumed that the e-mail data would be backed up on
Rackspace servers for future access and retrieval. [IR at 3].
b. a substantial number of transition team members failed to receive an important
message that their e-mail accounts would be closed and that, absent taking steps
to preserve or archive the records, all data in the account would be purged . [Id.]
c. an explicit direction was given by two attorneys to transition team members the
day after the election that all records created regarding the transition should be
considered public records and were to be preserved.
d. there was an understanding by members of the Governors transition team that
their e-mail data would not be deleted. [Id.]
e. an acknowledgement by 26 members of the Governors transition team that they
did not save their e-mails because they believed that their e-mail data would be
preserved on a server. [Id.]
f. recovery of e-mail data from only 1 of 22 BlackBerry devices issued to members
of the Governors transition team. [Id. at 4].
g. the closing of e-mail accounts by agents, aides or representatives of the Governor
occurred without consulting with him. [Id. at 5].
h. a conclusion that e-mails were deleted as a result of an oversight by the members
of the [transition team] and not as a result of any malicious or criminal intent to
destroy public records. [Id. at 6].

The investigative summary of the report is attached hereto as Exhibit 1.

2

2.

After it was discovered by the Governor that transition team e-mails were unable

to be recovered from the Rackspace server, a search of his iPad was performed to retrieve such
records. During the course of doing so, an update was installed on the Governors iPad by a staff
member causing all of the data content to be deleted. See Exhibit 2, attached hereto.
3.

Similarly, a BlackBerry cell phone belonging to the Governor was inadvertently

scrubbed during the course of the FDLE investigation. See Exhibit 3, attached hereto.
4.

In separate litigation in that matter styled Andrews v. Executive Office of the

Governor, Case No. 2013-CA-003280, 2nd Judicial Circuit, Leon County Cir. Ct. (Andrews
Litigation), several facts have been documented that raise serious questions about the ability of
the Governor and the Executive Office of the Governor (EOG), to properly archive and retain
public records, including, but not limited to:
a. that records made or received by employees, agents, aides or
representatives of the EOG on private accounts and devices in which
public business is conducted are not within his custody or control
because such individuals are themselves custodians of such records.
Andrews Litigation, Response to Alternative Writ of Mandamus at
14-15, 17-18, 24a, filed on Mar. 21, 2014. See also id., Respondents
Verified Response to Petitioners Second Amended Petition for Writ
of Mandamus at 8-10, filed on Jan. 12, 2015;
b. deposition testimony that the recovery or archival of data on a laptop
or desktop is aspirational for employees who depart from the EOG.
Andrews Litigation, Deposition of Bruce Slager at 35-36, filed on
April 11, 2014;
c. sworn testimony by agents of the Governor that calendar entries for
scheduled meetings and appointments are considered transitory
events that do not need to be maintained for purposes of compliance
with the Public Records Act. See Andrews Litigation, Notice of Filing
Answers to Interrogatories, filed on April 11, 2014; see also id.,
Response to Alternative Writ of Mandamus at 14-15, 17-18, 24a,
filed on Mar. 21, 2014; and

d. inaccurate representations about the existence of private e-mail

accounts utilized by the Governor and the EOG. Andrews Litigation,
Response to Alternative Writ of Mandamus at 33.
5.

The Governor, through the EOG, has promulgated a policy which allows

individual custodians of public records to determine that certain records are transitory and need
not be retained or archived. Under this policy, an entire category of records may be lost through
inadvertence, mistake or ignorance by the subjective determination that certain records are
transitory. The policy states that:
[t]his record series consists of those records created primarily for the
communication of information, as opposed to communications designed for the
perpetuation of knowledge. Transitory messages do not set policy, establish
guidelines or procedures, certify a transaction, or become a receipt. The informal
tone of transitory messages might be compared to the communication that might
take place during a telephone conversation or a conversation in an office hallway.
Transitory messages would include, but would not be limited to: e-mail messages
with shortlived or no administrative value, voice mail, self-sticking notes, and
telephone messages.
See Exhibit 4, attached hereto.
6.

The combination of these events provides Plaintiffs with a substantial reason to

fear that records relevant to this litigation will not be properly preserved and archived.
7.

Although the filing of this lawsuit clearly placed defendants on notice of the duty

to preserve evidence beyond that which is a public record, 2 Plaintiffs reasonably fear that
evidence may be lost absent a preservation Order directing defendants and any current or former
agent, aide, employee, representative, attorney and any corporate entity acting on their behalf
2

For the purposes of this litigation, the term records is far broader than public records as that
term is defined in 119.011(12), Fla. Stat. The fact that a document is exempt from inspection and
copying under the public records law does not mean that the document is non-discoverable by a partyopponent in litigation absent some recognized privileged. See Dep't of Prof'l Reg. v. Spiva, 478 So.2d 382
(Fla. 1st DCA 1985) (concluding that grade reports that were exempt from disclosure under the Public
Records Act were not automatically privileged for purposes of discovery); Dep't of High. Saf. & Motor
Veh. v. Krejci Co., 570 So.2d 1322, 1324 (Fla. 2d DCA 1990) (holding that exemption of driver's license
photographs from public inspection did not preclude their discovery in a civil action).

(the responsive parties) to preserve all evidence, regardless of physical form or characteristics,
whether or not it is deemed transitory.
8.

Although Plaintiffs are in the process of attempting to obtain a written stipulation

from each of the defendants as to the preservation of evidence, the past difficulties of the EOG in
archiving records poses grave concerns about both the awareness and ability of the responsive
parties regarding the duty to preserve relevant evidence.
9.

Plaintiffs seek a preservation Order that requires defendants and the responsive

parties to preserve electronically stored information (ESI) in accordance with generally

accepted methods governing electronic discovery. The Sedona Conference (Conference) is a
nonprofit legal policy research and education organization with a working group comprised of
judges, attorneys, and electronic discovery experts familiar with electronic document production
issues. Since 2003, the Conference has published a number of documents concerning ESI,
including the Sedona Principles. 3 Courts have found the Sedona Principles instructive with
respect to electronic discovery issues. Aguilar v. Immigration & Customs Enforcement Div. of
U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2008). See also In re Seroquel
Products Liab. Litig., 244 F.R.D. 650, 656 (M.D. Fla. 2007).
10.

Plaintiffs seek a preservation Order that requires defendants and the responsive

parties to comply with an acceptable preservation protocol for forensically sound preservation,
including an inventory and description of the systems and media to be preserved.

The

preservation Order should require defendants and the responsive parties to preserve and not
modify, delete, destroy, dispose of, conceal or alter any current and former mainframe computer,

The Sedona Principles: Best Practices, Recommendations & Principles for Addressing
Electronic Document Production, Second Edition (The Sedona Conference Working Group Series, 2007),
available at https://thesedonaconference.org//publication/The%2520Sedona%2520Principles.

server, desktop, laptop, tablet, smart phone, or other electronic computer device (computers)
used by defendants and the responsive parties to store electronic files and other data during the
relevant time period. This includes, without limitation, ESI, files or data generated by or stored
on any computers, storage media (e.g., hard disks, floppy disks, back-up tapes, thumb drives,
flash drives or other removable storage media), online repositories, or cloud storage, whether
deemed transitory or not.
11.

Plaintiffs seek a preservation order which requires defendants and the responsive

parties to immediately initiate a litigation hold for potentially relevant ESI, documents, and
tangible things and to act diligently and in good faith to secure compliance with such litigation
hold. Defendants and the responsive parties should be required to immediately identify
information systems, computers, desktops, laptops, tablets, smart phones or other electronic
devices that, in routine operation, operate to cause the loss of potentially relevant ESL including,
but not limited to:
a. purging the contents of e-mail repositories by age, capacity, or other criteria;
b. using data or media wiping, disposal, erasure, or encryption utilities or devices;
c. overwriting, erasing, destroying, or discarding backup media;
d. re-assigning, re-imaging, or disposing of systems, servers, devices, or media;
e. running antivirus or other programs effecting wholesale metadata alteration;
f. releasing or purging online or cloud storage repositories;
g. using metadata stripper utilities;
h. disabling server, packet, or local instant messaging logging;
i. executing drive or file defragmentation or compression programs;
j. deleting or overwriting files; using data shredding and overwriting applications;

k. defragmentation, re-imaging, damaging, or replacing media;

l. encryption; and
m. compression.
12.

The preservation Order should require defendants and the responsive parties to

preserve data requested on the original storage media or on exact copies of that media.
Consistent with The Sedona Principles, Plaintiffs request that the preservation Order require
defendants to employ forensically sound ESI preservation methods to create a true and complete
bit-for-bit image of the original image of the systems, media, and devices of any device utilized
by the responsive parties, including deleted evidence within unallocated clusters and slack space
that has or had the ability to create, read, update, or delete ESI relevant to this matter.
Argument
A trial court has the inherent power to do all things that are reasonably necessary to
administer justice within the scope of [its] jurisdiction, subject to existing laws and constitutional
provisions. Weissman v. Braman, 132 So. 3d 327, 331 (Fla. 4th DCA 2014) (quoting Brand v.
Old Republic Nat. Title Ins. Co., 797 So. 2d 643, 645 (Fla. 3d DCA 2001)). Inherent power has
to do with the incidents of litigation, control of the court's process and procedure, control of the
conduct of its officers, and the preservation of order and decorum with reference to its
proceedings. Brand, supra. 797 So. 2d at 645. See also Weinberg v. Siemens Fin. Services,
Inc., 88 So. 3d 220, 223 (Fla. 3d DCA 2011).
Courts generally look at three factors in determining whether a preservation order is
warranted in a given case: (1) the level of concern the court has for the continuing existence and
maintenance of the integrity of the evidence in question; (2) whether the movant will suffer
irreparable harm if a preservation order is not entered; and (3) the burden imposed upon the

parties by granting the preservation order. Capricorn Power Co., Inc. v. Siemens Westinghouse
Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004). See also Haraburda v. Arcelor Mittal
USA, Inc., 2:11 CV 93, 2011 WL 2600756, at *2 (N.D. Ind. 2011).
Each factor is addressed below.
1. Level of concern for integrity of evidence.
Plaintiffs have a substantial basis to believe that, absent a preservation order, relevant
information will be properly preserved and archived. As recounted above, the Governor has had
what can best be described as a series of unfortunate incidents when it comes to preserving
records that he was required by law to preserve.
Shortly after being elected to office, the Governor and his transition team staff failed to
maintain a substantial number of e-mails. An FDLE investigation into this incident characterized
the failure to archive these records as an oversight. Despite consulting with technology
experts, it is unknown how many records were lost.
The pending Andrews Litigation has raised multiple anomalies as to the Governors
ability to properly preserve public records, including the Governor initially denying, but then
acknowledging, the existence of private e-mail accounts utilized to conduct public business, the
archival of desktop and laptop computer by employees, non-retention of electronic calendar
entries, and a written policy that allows employees to subjectively determine that certain
messages are considered transitory and do not need to be retained.
These facts demonstrate a substantial concern that electronic information relevant to this
litigation will not be properly archived and preserved.

2. Irreparable injury
Plaintiffs need all relevant information to carry its burden of proof and the non-retention
of electronic evidence will cause irreparable injury. While a Court has the authority to impose
drastic sanctions whenever a party fails in its duty to preserve evidence, see Sponco Mfg., Inc. v.
Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995), such sanctions are meaningless when a
plaintiff has demonstrated an inability to proceed without such evidence. Moreover, the sole
claim raised in this litigation is one involving transparency.
3. Burden imposed
This litigation will seek ESI beyond the statutory definition of what is a public record for
a narrow time period of approximately four months. Because defendants have an existing
statutory burden to preserve public records under Floridas broad definition of a public record,
any additional burden to preserve all relevant ESI will be minimal.
Florida courts have held that all information available on electronic storage media is
discoverable, whether it is readily readable (active) or deleted but recoverable. See, e.g., Martino
v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So.2d 342
(Fla. 2005); see also Gayer v. Fine Line Const. & Elec., Inc., 970 So.2d 424, 426 (Fla. 4th DCA
2007). Recently, Rule 1.280 was amended to specifically include ESI. See Rule 1.280(3) (A
party may obtain discovery of electronically stored information in accordance with these rules.)
Requiring defendants to properly archive ESI will not impose any additional significant burden.
Respectfully submitted,

/s/ Andrea Flynn Mogensen_________________

ANDREA FLYNN MOGENSEN, Esq.
Florida Bar No. 0549681
The Law Office of Andrea Flynn Mogensen, P.A.

200 South Washington Boulevard, Suite 7

Sarasota FL 34236
Tel: 941.955.1066
Fax: 941.866.7323
Primary: amogensen@sunshinelitigation.com
Secondary: mbarfield@sunshinelitigation.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 23, 2015, the foregoing was filed electronically
with the Clerk of Court via the e-Portal, which shall cause a copy to be sent via e-mail to: Pete
M.

Dunbar,

Esq.,

(pdunbar@deanmead.com),

and

John

Wharton,

Esq.

(jwharton@deanmead.com), (Counsel for Defendant Scott), Dean Mead, 200 S. Monroe Street,
Suite 815, Tallahassee, FL 32301; Carlos Muniz, Esq., (cmuniz@mwcllc.com), (Counsel for
Defendant Scott), 1584 Hickory Ave., Tallahassee, FL 32303; Heather L. Stearns,
(Heather.Stearns@eog.myflorida.com), (Counsel for Executive Office of the Governor), EOG
Deputy General Counsel, 400 S. Monroe St., Room 209, Tallahassee, FL 32399-6536; GEORGE
MEROS, Esq. (George.meros@gray-robinson.com), (Counsel for Defendant Bondi), P.O. Box
11189, Tallahassee, FL 32302; Drew Parker, Esq., (drew.parker@myfloridacfo.com), (Counsel
for Defendant Atwater), 200 E. Gaines St., Tallahassee, FL 32399; and Lorena Holley, Esq.,
(lorena.holley@freshfromflorida.com), General Counsel, Dept of Agriculture & Consumer
Services (Counsel for Defendant Putnam), 400 S. Monroe St., The Capitol PL 10, Tallahassee,
FL 32399.

/s/ Andrea Flynn Mogensen_________________

ANDREA FLYNN MOGENSEN, Esq.

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EXHIBIT 1

EXHIBIT 2

2/18/2015

Gov.RickScottemails'cleanedout'fromthirdsource|TampaBayTimes

Newsthatthegovernor se mailswereclearedfromathirdsourcedrewlawmakers attention.

Sen.MikeFasano,R NewPortRichey,saidtheLegislatureshouldreviewthepublicrecordslawforwaysto
tightenrequirementsforagovernor stransitionintooffice.
Hewasabusinessman.Icanonlyimaginethelastthinghewasthinkingaboutwaskeepingdocumentspriorto
becominggovernor, Fasanosaid. Eitherhisadvisersdidnotunderstandthepublicrecordslawortheywere
ignored.
Rep.WillWeatherford,R WesleyChapel,saidhewouldreviewrecommendationsonexpandingpublicrecords
lawfromtheFloridaCommissiononOpenGovernment,ofwhichhewasamember.
It simportantthatwhatwedoispubliclyavailable, Weatherfordsaid. It saccountability.Itshowstheprocess
ofhowwemakedecisions.Andthatshouldbescrutinizedbythepublic.
Scottlostatleast50e mailsfromhisiPadwhenastafferinsidehisofficeupdatedsoftwareforthedeviceinApril.
Scott slegaladvisersdisclosedthatinformationlastweekinameetingwiththeFloridaFirstAmendment
Foundation,anopengovernmentadvocacygroupwhoseboardincludesmembersofthemedia,includingtheSt.
PetersburgTimes.
ThefoundationthenrequestedrecordsfromtheFDLErelatedtotheagency sattempttorestoretheiPad.Those
recordsshowinvestigatorswerealsounabletocollectdocumentsfromhisBlackBerry.
Roederrecovered87pagesofcontent,butsomemessagesappearedtruncatedorotherwiseincomplete,
somethingcommonine mailsonBlackBerrys.
Thebadnews:Thereisnowayformetoprovethatwegotallofthee mailcontentoffthephonebecausethe
messageshavebeenclearedoutofthephone, Roederwroteinane mail.
AmemberofScott stransitionteamwarnedcolleaguesinJanuarythattheRackspaceaccountswereclosingand
suggestedtheyretrieveanyrecordstheyneeded.ButScott steamsaidtheydidn tknowthatmeanttheaccounts
wouldbedeleted,asRackspace spolicystates.
TheFDLEe mailsalsogiveawindowintothefrustrationtheissuehascreatedforstateinvestigators.
BrettCureton,inFDLE sComputerCrimeCenter,wrotetheiPadwas toonew torecoverrecords.
Forensicsalwayslagsbehindnewtechnology, hewrote.
Roederwrotethatshewishedthe freakinge mailswerestillonthefreakingphone.
TheonlyexplanationthatIhaveisthats

happens unsatisfyingbuttrue, shesaid.

MichaelC.Bendercanbereachedatmbender@sptimes.comor 850)2247263.FollowhimonTwitter
@MichaelCBender.

WhereScott'steamhassearchedforhisemails:
Thecomputerserver:ScottusedRackspace,aTexas basedcompany,tohoste mailaccountsforhiscampaignand
thenhistransitionteam.Butthetransitionteamclosedatleast38accounts,includingScott s,whenhewassworn
intooffice.Thecompanysayse mailsforallofthoseaccountshavebeendeleted.
TheiPad:ThetechteamintheGovernor sOfficetriedtoretrieve50transitione mailsScotthadsaved.Butwhen
theyupdatedsoftwareonthedevice,theGovernor sOfficesaysalltherecordswerelost.
http://www.tampabay.com/news/publicsafety/govrickscottemailscleanedoutfromthirdsource/1195299

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2/18/2015

Gov.RickScottemails'cleanedout'fromthirdsource|TampaBayTimes

TheBlackBerry:WhilehuntingforrecordsontheiPad,investigatorswiththeFloridaDepartmentofLaw
EnforcementcheckedScott ssmartphone,too.Theinvestigatorssaidthephone swirelesssignalhadbeenturned
off,whichmeantrecordswouldbesafe.Butinvestigatorsfoundthewirelesssignalhadbeenactivated.While87
pagesofcontentwereretrieved,othermessageshadbeenclearedoutofthephone.
Gov.RickScottemails'cleanedout'fromthirdsource10/05/11
Photoreprints|Articlereprints
2015TampaBayTimes
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