Filing # 61029430 E-Filed 08/28/2017 04:45:40 PM

IN THE CIRCUIT COURT OF THE 11th

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

GRANT STERN,
CASE NO. 16-26031 CA 02
Plaintiff,
v.

CITY OF MIAMI BEACH, a municipal

Corporation of the State of Florida, and
PHILIP LEVINE, Mayor, City of Miami Beach,

Defendants.

MOTION FOR PROTECTIVE ORDER REGARDING THE VIDEO DEPOSITIONS OF

MAYOR PHILIP LEVINE AND THE CORPORATE REPRESENTATIVE OF THE CITY OF
MIAMI BEACH. AND FOR AN ORDER IMPOSING SANCTIONS
AGAINST PLAINTIFF AND PLAINTIFF'S COUNSEL

Pursuant to Rule 1.280(c) of the Florida Rules of Civil Procedure, the City of Miami

Beach, and Mayor Philip Levine, move this Court to enter a Protective Order prohibiting the

video depositions of Mayor Philip Levine and the Corporate Representative of the City of Miami

Beach, and the City of Miami Beach also moves this Court for an order imposing sanctions,

including attorney's fees, against Plaintiff and his counsel with regard to the video depositions

scheduled in this cause for Tuesday, August 29, 2017 at 10:00 a.m. and Wednesday, August

30, 2017 at 10:00 a.m. The grounds for this Motion are as follows:

PRELIMINARY STATEMENT

The Florida Public Records Act, as specifically set forth in Section 119.11(1) of the

Florida Statutes, states:

Whenever an action is filed to enforce the provisions of this chapter, the court
shall set an immediate hearing, giving the case priority over other pending cases.

The requirement for an immediate hearing surrounding these matters {public records

lawsuits), obviates any need or requirement to conduct discovery pursuant to the Florida Rules

of Civil Procedure. It should be without dispute that a determination by the Circuit Court in this

OFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139 - TELIPHONE; 305.673.7470
 CASE NO. 16-26031 CA 02

matter would be deemed to be an issue of law... not an issue of fact. See News-Press Pub. Co.

v. Gadd, 388 So.2d 276, 278.

The Plaintiff is seeking the video depositions of Mayor Levine and the City of Miami

Beach's Corporate Representative for the clear purpose of annoyance and

embarrassment...which is textbook harassment through litigation. The Plaintiff set forth his

motive for seeking the video deposition of Mayor Levine through his Medium.com blog post,

attached as Exhibit "A"; which states, in part:

The Mayor has so many social media posts that I need crowdsourced
help to ask about all the instances where he discusses public business on
social media that I created this form.

Anyone can find one of Mayor Levine's social media posts and submit it
along with a question about that post.

Any question.

It's that simple.

Any and all questions relevant to Mayor Levine's social media accounts
are fair game and while we won't ask every question that's submitted, we
promise that we will review each and every question submitted for use at
next months' sworn, video recorded deposition of the Mayor.

And to further support the clear purpose of annoyance and embarrassment surrounding

these video depositions, Plaintiff's Counsel issued the Notice of Taking Video Deposition of the

City's Corporate Representative on August 9, 2017. The Notice of Taking Video Deposition for

the Corporate Representative clearly illustrates that this litigation is being utilized for the

purpose of annoying and embarrassing the City. Specifically, the Notice of Taking Video

Deposition delineates the obvious annoyance and embarrassment of the City, based upon

those areas of examination which, among other topics, include:

The organizational structure of the City of Miami Beach government.

Biographical information concerning the City of Miami Beach (e.g. date of

incorporation, population, municipal boundaries).

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OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. ftORIDA 33139 - TELfPHONE: 305,673.7470
 CASE NO. 16-26031 CA 02

Mayor Philip Levine's tenure as mayor.

The following ordinances: Miami Beach, Florida Code of Ordinances Sec. 1.01,
2.01, 2.06, 2.05, Miami Beach, Florida Code of Ordinances Sec. 82-503.
City of Miami Beach Resolutions 2016-29575 and 2016-2957.

Public requests made by Grant Stern since 2014.

All consideration paid by City of Miami Beach to any social media entity including
but not limited to Facebook, twitter, Linkedin, Instagram.

All ads purchased by the City of Miami Beach which has been posted on any
social media entity's website, including but not limited to Facebook, Twitter,
Linkedin, and Instagram.

These areas of examination, coupled with the Plaintiffs blog post, clearly show the intent

of the video depositions in this litigation is to annoy Mayor Levine and the City. And while the

Plaintiff was not required by the Florida Rules of Civil Procedure to specify with reasonable

particularity the matters on which examination is requested, it is clear the Plaintiff seeks to ask

similar questions of Mayor Levine plus questions generated by the public.

The City strongly urges this Court to enter a Protective Order, precluding: (a) Mayor

Philip Levine and the Corporate Representative of the City of Miami Beach's Video Depositions

in their entirety or, in the alternative, (b) postponing the video depositions until this Court has

determined whether deposition testimony of Mayor Levine and the Corporate Representative of

the City of Miami Beach is essential to this litigation.

THE LITIGATION ISSUES

The pleadings clearly identify that this is a straight forward Public Records action, which

merely requires this Court to determine the applicability of those provisions set forth within

Chapter 119 of the Florida Statutes.

Regrettably, it is evident that the Plaintiff is injecting issues into this case, which are

entirely irrelevant to the legal determination that is necessary by this Court. The Plaintiffs

pursuit of the video depositions of Mayor Philip Levine and the Corporate Representative of the

OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. RORIDA 33139 - TELf PHONE: 305.673.7470
 CASE NO. 16-26031 CA 02

City of Miami Beach is further evidence of such improper conduct of injecting issues that have

no applicability to those provision identified in Chapter 119.

The Florida Public Records Act is unambiguous and, as a result, does not require any

testimony, as a condition precedent, to this Court's construing of those requirements under the

Public Records law and making a legal determination as to whether the requested records are

public records.

Again, this action calls upon the Court to merely determine compliance with Chapter

119, and the testimony of Mayor Levine or the Corporate Representative of the City of Miami

Beach cannot alter the meaning of that unambiguous provision of Florida Law. It should be

without dispute that the deposition seeks discovery which is irrelevant to this case, and is not

reasonably calculated to lead to the discovery of admissible evidence... since this is an issue of

law... which this Court will determine at a hearing.

LEGAL ARGUMENT IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

On August 9, 2017, the Plaintiff served a Notice of Taking Video Deposition of Mayor

Philip Levine and the Corporate Representative of the City of Miami Beach, which serves no

other purpose but to annoy, embarrass, oppress, and unduly burden the City and the Mayor

regarding this matter. The Plaintiff insists on proceeding with the video depositions of Mayor

Levine and the Corporate Representative of the City of Miami Beach, knowing that this is being

done to harass the City and the Mayor which results in annoyance and embarrassment.

The Rules of Civil Procedure are designed "to secure the just, speedy, and

determination of every action." Fla. R. Civ. P. 1.010 (emphasis added). Florida courts

frequently stay Notices for Depositions pending a potentially dispositive motion. See Feigin v.

Hospital Staffing Servs.. Inc.. 569 So. 2d 941, 942 (Fla. 4th DCA 1990) (affirming trial court order

staying depositions pending the motion to dismiss); see also Patterson v. U.S. Postal Serv.. 901

F. 2d 927, 929 (11th Cir. 1990) (affirming district court order in staying the Notices for deposition

pending outcome of defendant's motion to dismiss); Vargas v. Peitz, 901 F. Supp. 1572, 1573 n.

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OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139 - TEIiPHONE: 305.673.7470
 CASE NO. 16-26031 CA 02

1 (S.D. Fla. 1995) (district court stayed all the Notices for deposition pending resolution of

motion to dismiss); McKenzie v. Doctors' Hosp. of Hollywood, Inc.. 765 F. Supp. 1504, 1505

(S.D. Fla. 1991){same), aff'd. 974 F. 2d 1347 (11th Cir. 1992). Moreover, because the video

depositions of Mayor Philip Levine and the Corporate Representative of the City of Miami Beach

are not needed in order for the Court to rule on the pending matter, Plaintiff would not be

prejudiced. Again, the Circuit Court's determination is an issue of law... not an issue of fact.

It is well settled that the depositions of Mayor Philip Levine and the Corporate

Representative of the City of Miami Beach should be quashed where it is annoying, unduly

burdensome, and oppressive. Rule 1.280(c), Fla. R. Civ. P. See also Brandsmart and FCCI v.

Schaffer. 855 So. 2d 145 (Fla. 1st DCA 2003); Jerry's South. Inc. v. Morran. 582 So. 2d 803

(Fla. 1st DCA 1991); Greyhound Lines. Inc. v. Jackson. 445 So. 2d 1107 (Fla. 4th DCA 1984);

Slatnick v. Leadership Housing Systems of Florida, Inc.. 368 So. 2d 78 (Fla. 4th DCA 1979);

Harry A. v. Duncan, 223 F.R.D. 536 (D. Mont. 2004). Mayor Levine and the Corporate

Representative of the City of Miami Beach do not have any testimony to give which is necessary

or relevant to the Court's legal determination as to whether the records sought are public

records. Because these video depositions are annoying, unduly burdensome, and oppressive,

a protective order must be entered to avoid a departure from the essential requirements of law.

Rule 1.280(c) Fla. R. Civ. P.; see also Brandsmart. supra: Jerry's South, supra; Greyhound

Lines, supra; Slatnick supra: Harry A. supra.

Further, City official deponents are protected from deposition by a privilege. Even if the

Plaintiff raises cognizable factual claims, instead of legal issues, the Notices of Taking Video

Deposition should be quashed because Mayor Levine and the Corporate Representative of the

City of Miami Beach enjoy a privilege from being compelled by the Notices of Taking Video

Deposition relating to the performance of their official duties which the plaintiff may not

overcome.

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OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139 - TElfPHONE: 305.673.7470
 CASE NO. 16-26031 CA 02

The law is clear that administrative agency heads, as well as high ranking agency

officials, should not be deposed unless the party taking the deposition has shown that the

testimony is "necessary, relevant, and unavailable from other sources." Home v. School Board

of Miami-Dade County. 901 So. 2d 238 (Fla. 1st DCA 2005) (failure to quash subpoenas for

depositions of administrative agency heads and former heads, as well as other high-ranking

agency officials, must be reversed as departure from essential requirements of law where party

seeking deposition has not shown testimony is "necessary, relevant, and unavailable from other

sources"). In this case, the deponents are agency heads and high-rank agency officials.

Legislative and quasi-judicial officers are protected from depositions regarding their

legislative and quasi judicial functions, See Dept of Highway Safety v. Marks. 898 So. 2d 1063

(Fla. 5th DCA 2005) (order denying motion to quash deposition on administrative hearing officer

only in quasi-judicial capacity reversed as departure from essential requirements of law because

deponent entitled to quasi-judicial immunity from subpoena); Searinqtown Corp. v. Incorporated

Village of North Hills. 575 F. Supp. 1295 (E.D. NY 1981) (Village Mayor and board members

immune from the Subpoena and other depositions that would delve into their thought process,

motivations and deliberations relating to zoning decisions). Accordingly, the video depositions

of the Mayor Philip Levine and the Corporate Representative of the City of Miami Beach must

not proceed, and the Court should issue a Protective Order.

MOTION FOR SANCTIONS

Florida Courts have recognized that where misconduct rises to the level of bad faith

contributing to unnecessary legal expenses, costs, and delay, and the trial court makes specific

findings to support the sanctions, courts have inherent authority to access attorney's fees for the

misconduct of an attorney in the course of litigation. Moakley v. Smallwood. 826 So. 2d 221

(Fla. 2002); Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002). Sanctions can also be

imposed for bad faith conduct against a party, id In this case, the conduct of the Plaintiff and

his counsel have resulted in the unnecessary incurrence of legal expenses and costs relative to

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OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139 - TELEPHONE: 305.673.7470
 CASE NO. 16-26031 CA 02

the instant Motion. Therefore, an award of attorney's fees to the City of Miami Beach is

appropriate, and justified.

As set forth above, these video depositions are improper and unnecessary, and the

actions of the Plaintiff and his counsel warrant the imposition of sanctions and an award of

attorney's fees to the City of Miami Beach.

CONCLUSION

For the foregoing reasons, this Court should enter a protective order that prohibits the

video depositions of Mayor Philip Levine and the Corporate Representative of the City of Miami

Beach, and enter an Order that sanctions be imposed upon Plaintiff and Plaintiff's counsel for

forcing the City to expend its legal resources and costs relative to this Motion.

Respectfully submitted,

RAUL J. AGUILA, CITY ATTORNEY

CITY OF MIAMI BEACH
1700 Convention Center Drive
4th Floor/Legal Department
Miami Beach, Florida 33139
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
E-mail: AleksandrBoksnerEService@miamibeachfl.gov

By: /s/Aleksandr Boksner

Aleksandr Boksner, Deputy City Attorney
Florida Bar No. 526827

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT a true and correct copy of the foregoing was remitted via E-
Service on this 28th day of August, 2017 to: Faudlin Pierre, Esquire, 18900 N.E. 1st Court,
Miami, Florida 33179, at fplawQ8@yahoo.com and fparaleqal@qmail.com.

By: /s/Aleksandr Boksner

Aleksandr Boksner, Deputy City Attorney

7
OFFICE OF THE CITY ATTORNEY -1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139 - TEH PHONE: 305.673.7470
MEDIUM.COM
Grant Stern
Miami based columnist and radio broadcaster, and
professional mortgage broker.
Aug9 (2017)

Miami Beach Mayor Blocked Me

On Social Media. Now I'm
Crowd sou re ing Deposition
Questions

TUCKER TAKES ON MIAMI BEACH MAYOR

Miami Beach Mayor Philip Levine on Fox News.
EXHIBIT
 If every public official knew that blocking citizens on social media can
result in their being called to answer that person's questions under oath
and on video, maybe they'll think twice about casually, and illegally
censoring their critics.

Miami Beach Mayor Philip Levine blocked me on social media, and

because of a lawsuit to obtain records about his censorship activities,
now I'm only 30 days awayor lessfrom obtaining his video
recorded, sworn deposition after today in court.

The Mayor has so many social media posts that I need crowdsourced
help to ask about all the instances where he discusses public business
on social media that I created this form.

Anyone can find one of Mayor Levine's social media posts and submit it
along with a question about that post.

Any question.

It's that simple.

Deposition Questions For Miami Beach

Mayor Philip Levine
Miami Beach Mayor Philip Levine blocked me on social media, so I got a court to order that he must sit for a
video taped, sworn deposition in my lawsuit to turn over evidence of his program of censorship.

Because I don't have unfettered access to his social media accounts anymore, I need your help.

1 can ask Mayor Levine a question about any tweet or FB post on his official accounts, under oath.

Please submit sample questions about the City of Miami Beach's official business for us to ask at Mayor Levine's
deposition, along with a link to the social media post where he referenced that subject.

* Required __^_^__^^________^__^_______^___________^__^_____
What is your question for Mayor Philip Levine?
Your answer

a
What is the link to a Mayor Levine social media post?

Your answer
Are you also blocked by Mayor Levine on FB or Twitter?
Yes
No

Your Name (optional)

Your answer
Your Email (optional)
Your answer
Comments?
Your answer

a
SUBMIT
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F- rt rs~yi
E Ui 11 oib

Click here to submit a question for Mayor Levine to answer about the official business he's
posting on social media. Example: Mayor tweets about a train to nowhere on Miami Beach.
You can ask any question like: Why did he posted about that topic? Is the topic of the post
informing the public? Was that post about official business? What was the Mayor's role in
that business? Did he hear an item about that post at the Commission, discuss with City
Manager or employees or staff? etc.
That's because today at Miami-Dade's Courthouse, we had a hearing
which cleared up all preliminary matters related to getting the media
hungry Miami Beach Mayor to give sworn testimony.

Special Magistrate Schwabedissen chided Miami Beach lawyers for

breaching the legal profession's most basic rules of civility, citing them
for intentionally causing a needless two month delay in her written
ruling (below the story) which referred to the trial record that you can
listen to below this paragraph.

My attorney Faud Pierre will depose Mayor Philip Levine by early

September.

Here is a complete recording of today's hearing:

https://soundcloud.com/grantstem/miami-beach--attomeys-tose-fight~to-
keep-mayor-ievine-from-being-deposed

Recommended start time is Minute 14'

Miami Beach Mayor Philip Levine bbckedjne on social media last

summer, after I asked if he was going to direct his city to stop polluting
Biscayne Bay with raw sewage.
hope that '"MHillai cgtimkaini advised you fix the v.^/iiamil ch water
pollution problem you caused ttp:/
candidate-slams-miami-beach-for-foulinq us 5790e349e4bOa86259dOdb2a .

Florida Senate Candidate Slams Miami Beach for Fouling Biscayne Bay, Sunshine
Law Failures
"Nobody should be charged $73,000 to find out how government works." Michael Gongora
should know. He's a former Miami Beach city commissioner...
hLiffingtonpost.com

12 12 Retweets

Mayor Levine blocked me for tweeting this story.

The Mayor wasn't appreciative of my report about his city denying science
to keep polluting the water, nor about breaking the public records law to
thwart the Miami Herald.

Naturally, I responded by requesting copies of the Mayor's censorship

lists of everyone he blocks on his official Facebook and Twitter accounts.

And with exclusive reporting with the FIU scientist who discovered that the
Beach's "progressive" Mayor was dumping sewage into Biscayne Bay.

After that Mayor Levine refused to comply with Florida's public records
laws.

So I sued.

The case has taken on national importance, and major media outlets want to
know who's on Mayor Levine's block list.

I continued to cover Mayor Levine's mismanagement of Miami Beach in

stories like "Paradise Squandered: Why South Beach's Failure Prone
Government Has To Censor Residents,"

Why Depose Mayor Levine?

Mayor Levine's block lists represent a list of enemies, and he's officially
discriminating against them in his public discussion forums, while
promoting accounts that are friendly to him in a quest to maintain the
appearance of correctness.

My attorney asked Mayor Levine to sit for a video recorded, sworn

deposition about his social media accountssince he claims he's not
informing the public of any official business that would make them
public record, which he really is doingin order to obtain a final
judgement and to get my public records proving that he's censoring
people.

Miami Beach's lawyers unprofessionally stalled the process until today.

Special Magistrate Schwabedissen denied our motion to compel the

deposition without prejudice, but only after clarifying during the hearing
that there's no legal reason why the Mayor or his lawyers should be able
to present any meaningful reason to delay.

The law is funny, and the City's lawyers decided to play games.

If Mayor Levine's lawyers try to stall again, our motion to compel the
deposition will be instantly resurrected, quickly heard as the magistrate
indicated and we'll have the Mayor sitting for our questions shortly
thereafter.

Any and all questions relevant to Mayor Levine's social media accounts
are fair game and while we won't ask every question that's submitted,
we promise that we will review each and every question submitted for use at
next month's sworn, video recorded deposition of the Mayor.

Here's our notice of deposition to Mayor Levine, fulfilling the sole

remaining requirement to place him under oath for questioning.

The magistrate's report

Magistrate Report - Stern vs. Levine - August 10f 2017
Magistrate Report - Stern vs. Levine - August JO. 2017www.scribd.com

Submit your questions here:

Deposition Questions For Miami Beach

Mayor Philip Levine
Miami Beach Mayor Philip Levine blocked me on social media, so I got a court to order that he must sit for
a video taped, sworn deposition in my lawsuit to turn over evidence of his program of censorship.

Because I don't have unfettered access to his social media accounts anymore, 1 need your help.

I can ask Mayor Levine a question about any tweet or FB post on his official accounts, under oath.

Please submit sample questions about the City of Miami Beach's official business for us to ask at Mayor
Levine's deposition, along with a link to the social media post where he referenced that subject.

* Required
What is your question for Mayor Philip Levine? *
Your answer

i
What is the link to a Mayor Levine social media post?
Your answer
Are you also blocked by Mayor Levine on FB or Twitter?
Yes
No

Your Name (optional)

Your answer
Your Email (optional)
Your answer
Comments?
Your answer

a
SUBMIT
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Grant Stern

Medium member since Mar 2017

Miami based columnist and radio broadcaster, and professional

mortgage broker.
Applause from Grant Stern (author)

Christine King
Aug 10

He blocked me months ago, sorry I can't help I see

nothing the mayor of my city posts. BTW this site
does not work well at all in my Chrome browser, it is
hard to scroll and read the article. It is very jerky and
unresponsive. 1