biotrackthc motion for protective order 2 17-17

Shiner Law Group, P.A.

95 South Federal Highway, Suite 200, Boca Raton, Florida 33432 • T: 561-777-7700 www.ShinerLawGroup.com

IN THE CIRCUIT COURT OF THE 17TH

JUDICIAL CIRICUIT, IN AND FOR

BROWARD COUNTY, FLORIDA

BARRY GAINSBURG, PA, a Florida

Corporation,

Plaintiff, CASE NO.: CACE15-018959

v.

BIO-TECH MEDICAL SOFTWARE, INC.,

d/b/a BIOTRACKTHC, a Florida Corporation

and STEVEN SIEGEL, individually

Defendants.

_______________________________________/

BIO-TECH MEDICAL SOFTWARE, INC.,

d/b/a BIOTRACKTHC, a Florida Corporation

and STEVEN SIEGEL, individually,

Counter-Plaintiffs

v.

BARRY GAINSBURG, PA, a Florida

Corporation, BARRY R. GAINSBURG, P.A.,

THE LAW FIRM OF BARRY R.

GAINSBURG, P.A, LAW OFFICES OF

BARRY R. GAINSBURG, ESQ., Unregistered

Entities, and BARRY R. GAINSBURG, ESQ.,

individually.

Counter-Defendants.

_______________________________________/

DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

COMES NOW Defendants, BIO-TECH MEDICAL SOFTWARE, INC., d/b/a

BIOTRACKTHC (“Bio-Tech”), and STEVEN SIEGEL (“Dr. Siegel”) (collectively hereinafter

“Defendants”), by and through undersigned counsel and in accordance with the applicable Florida

Rules of Civil Procedure, and hereby move this Honorable Court for the entry of a Protective Order

as to Plaintiff, BARRY GAINSBURG, PA’s (“Plaintiff” or “Gainsburg”) taking of the depositions,

and as grounds in support thereof states as follows:

Filing # 52630442 E-Filed 02/17/2017 09:22:37 AM

Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA

Case No.: CACE15-018959

Defendants’ Motion for Protective Order



BACKGROUND

1. The above-captioned matter is an action originally brought by Plaintiff, Barry Gainsburg,

PA., by Barry Gainsburg, Esq., against his former clients/employers, Bio-Tech and Dr.

Siegel. In the above-captioned matter, Plaintiff seeks stock allegedly owed for legal

services and alleged payment for work performed; Bio-Tech has filed a counter-claim.

2. As a point of information, at this time there are at least four (4) current cases1 involving

Gainsburg (or his law firm) and one, or more, of the Defendants in this case and/or their

counsel. Specifically, the cases are as follows:

a. Barry R. Gainsburg, et al. v. Bio-Tech Medical Software, Inc. d/b/a BioTrackTHC,

et al. (15-018959);

b. Barry Gainsburg, PA, et al. v. David I. Shiner, Esq., et al (16-000487);

c. Barry R. Gainsburg v. Bio-Tech, et al. (16-021133); and

d. Barry R. Gainsburg, et al. v. Bio-Tech, et al. (16-021239).

3. At this point in time, Gainsburg is seeking to depose multiple individuals who may or may

not have information related to Gainsburg’s claims. These deposition requests have been

made by Gainsburg “blanketly” throughout virtually all of the cases he is involved in.

Some of the individuals he is attempting to depose in one or more of the cases include, but

are not limited to: numerous Bio-Tech employees at varying levels of management; Bio-

Tech’s out-of-state investors, Bio-Tech’s attorneys, one of the party’s significant others,

and individuals/entities doing business with Bio-Tech.

4. The Court should note that Bio-Tech and its attorneys have previously, in good faith,

coordinated depositions with Gainsburg; to wit: Mr. Patrick Vo2 and Mr. Peter Holzworth.3

However, unfortunately, Gainsburg’s continuing conduct creates a need for the Court’s

intervention should Gainsburg be allowed to conduct any additional depositions.

1 At one point there were five (5) total cases involving one or more of the parties and/or their counsel; to wit: Bio-

Tech Medical Software, Inc. d/b/a BioTrackTHC v. Barry R. Gainsburg, et al. (16-018326). As a point of information,

Bio-Tech filed this case to, among other things, enjoin Holzworth (a former Bio-Tech employee/current shareholder)

from transferring stock to Gainsburg. Shortly after filing suit, Holzworth withdrew his “intent to transfer” to

Gainsburg. Subsequently, Bio-Tech voluntarily dismissed this action without prejudice. 2 The Court should note that Gainsburg posted portions of Mr. Vo’s transcript on Gainsburg’s social media accounts

in overt attempts to embarrass Bio-Tech and Vo, among other actions. These issues are outlined in more detail in

Defendants’ Amended Motion for Sanctions filed on February 2, 2017.

3 Please note that Bio-Tech would like to obtain the deposition transcript of Mr. Peter Holzworth taken by Gainsburg

on January 26, 2017, since Bio-Tech believes that Mr. Holzworth’s deposition is beneficial to its position. However,

Bio-Tech would request that prior to ordering same, a continuation of Judge McCarthy’s verbal Order at the May 27,

2016 hearing be continued and Gainsburg be precluded from posting any portions of Mr. Holzworth’s deposition – or

any other deposition in this case – on social media/internet.






5. In point of fact, on April 15, 2016, Plaintiff took the deposition of Bio-Tech’s corporate

representative, Mr. Patrick Vo, the Chief Executive Officer of Bio-Tech. During Mr. Vo’s

deposition, Gainsburg engaged in a line of unrelated questioning regarding the arbitration

award rendered in an unrelated, still-pending matter involving Bio-Tech, of which

Gainsburg had previously represented Bio-Tech as counsel. Defendants reminded

Gainsburg that arbitration matters are not public record subject to disclosure. Additionally,

any information Gainsburg gained as prior counsel for Bio-Tech was subject to

confidentiality. Neither the arbitrated matter, nor any award in such a matter are relevant

to Plaintiff’s action against Bio-Tech for allegedly owed stock options nor are they

reasonably calculated to lead to the discovery of admissible evidence.

6. After Mr. Vo’s deposition, Defendants learned that Gainsburg had been using social media

as a media outlet for publically publishing documents, protected privileged information

including but not limited to claimed attorney/client privileged material, and disparaging

comments and opinions about Bio-Tech, and other participants involved in this matter.

7. Consequently, on May 27, 2016, at a hearing before Judge McCarthy on, among other

things, Defendants’ Motion for Protective Order, Defendants argued that they had been

dealing with abuse from Gainsburg on the Internet, social media, etc.4

8. Consequently, during the special set evidentiary hearing, this Honorable Court verbally

ordered, among other things:

a. “Mr. Gainsburg . . . You are bound by the rules of professional conduct. You have

decided to represent yourself, and there are people that are pro se that represent

themselves, okay? But you are a lawyer representing yourself. . . . You are bound

by professional conduct and the ethics of professional conduct. This has to stop.”

b. “Whether you want to say, you know, it’s social media, no. You’re a lawyer that

worked so hard for your license, and the only thing I ever ask in my Courtroom…

is, don’t interrupt each other, simple, don’t interrupt me and be professional and

courteous.”

c. “It cannot continue. . . . We all know about social media, but you can’t use social

media in a way that damages your reputation.”

4 See Exhibits Attached to Defendants’ Amended Motion for Sanctions. Defendants have not included these

exhibits again due to their voluminous nature.






d. “You don’t want to go down this road because when you go down the road, it

becomes another agency monitoring you, not me, and I am not here to monitor you.

. . . You can’t do this, okay? It is harassing them. It is embarrassing them.”

e. “You can’t go down this road. . . . No more on the internet.”

f. “On these people we cannot use social media to publish any information related to

this matter.”

g. “[A]nd don’t use social media to publish any information.”

9. However, Gainsburg has repeatedly violated Judge McCarthy’s repeated verbal orders to

not publish on the Internet/Social Media information regarding this case, by publishing the

following, which includes, but is not limited to: deceives

a. The “Transcript of the April 11, 2016, Hearing in the Gainsburg v. Shiner Case 16-

487 from 4th DCA docket.” Published on Gainsburg’s LinkedIn on July 5, 2016.

b. The “Deposition of Patrick Vo dated 4-15-16 in Gainsburg v. BioTrackTHC case.

Best viewed on PC.” Published on September 14, 2016.

c. “Exhibits from Patrick Vo of BioTrackTHC Deposition dated 4-15-16.” Published

on October 26, 2016.

d. “Let’s learn more about Steven C. Siegel, Patrick Vo and T.J. Terence Ferraro of

BioTrackTHC,” “BioTrackTHC Deceives Washington State,” and the inclusion

of an attachment disclosing attorney-client privileged conversations and

defamatory comments concerning Mr. Vo, Mr. Siegel, and BioTrackTHC.

Published by Gainsburg a minimum of three separate times in November 2016.

e. Gainsburg also published the following on his LinkedIn in November 2016 in

violation of the Judge McCarthy’s order:

i. A string of what is purported to be confidential and Attorney/Client

Privileged materials that Mr. Gainsburg obtained while associated with

Bio-Tech. These were emails Gainsburg titled “No Stock for Vo.”5

ii. “BioTrackTHC Stock Valuation – Patrick Vo deposition 4-15-16.”6

5 This was published at least two (2) times in November 2016.







iii. “Bar letter Siegel redacted 12-18-15.”

iv. “02/28/2011 Default Final Judgment against Medical Pain Management

Group – owners were Steven Siegel and Brian NcClintock (sic) – Founders

of BioTrackTHC.” This post included a picture of Mr. Siegel and Mr.

McClintock.7

v. “Correspondence with BioTrackTHC and David Shinert (sic) 11-10-16.”8

vi. “Steven Siegel and Brian McClintock, founders of BioTrackTHC evicted

from their residence.”

vii. “Motion to Compel Deposition from BioTrackTHC. When you are the

Plaintiff you should be willing to sing like a canary. La la la la la la Wonder

why not in this matter? Hmmm…..”9

10. More recently Gainsburg’s actions continue. Just some of these issues are as follows:

a. Gainsburg has been attempting to contact Mr. Vo’s wife on social media.10 See

Exhibit “A.”

b. Gainsburg is commenting on Bio-Tech’s attorneys’ social media account by

interjecting comments regarding race and making overt insinuations regarding the

firm. See Exhibit “B.”

11. By his own actions, it is clear that Gainsburg’s reasons for taking depositions in this matter

are motivated by malice with the intent to cause harm, embarrass, and/or harass Bio-Tech,

its employees, agents, and anyone affiliated therewith.

12. Thus, the scope of Plaintiff’s deposition of both the current employees, agents, etc. of Bio-

Tech must be expressly limited to each individual’s respective professional capacity as it

relates to Bio-Tech and the present case.

7 This was published by Mr. Gainsburg a minimum of four (4) times in November 2016.



10 Upon this Court’s request, Mr. Vo is willing to provide testimony regarding his and Bio-Tech’s apprehensions about

Gainsburg’s actions.






13. In accordance with the Florida Rules of Civil Procedure 1.280(c), the trial court has broad

discretion and authority to limit or prohibit discovery, for good cause shown, “to protect a

party or person from… annoyance, embarrassment, oppression, or undue burden or

expense that justice requires,” and, amongst other things, order “(1) that the discovery not

be had,” or “(2) that the discovery may be had only on specified terms and conditions,

including a designation of the time or place.” Rasmussen v. S. Fla. Blood Serv., Inc., 500

So. 2d 533, 535 (Fla. 1987); see Fla. R. Civ. P. 1.280(c). In deciding whether a protective

order is appropriate in a particular case, the court must balance the competing interests that

would be served by granting discovery or by denying it. Rasmussen, 500 So. 2d 533, 535

(Fla. 1987).

14. A protective order preventing Gainsburg from taking the deposition of current Bio-Tech

employees, agents, and anyone affiliated therewith is required to safeguard them against

the embarrassment, oppression, and undue burden caused by Gainsburg’s inappropriate use

of social media for self-publication, the threat of publication of the testimony given by each

individual at their deposition, and unnecessary irrelevant questioning that is not calculated

to lead to the discovery of any admissible evidence.

15. At a minimum, Defendants request that the Court enter a protective order requiring either

a magistrate or referee to attend the depositions at Gainsburg’s expense. In addition, the

protective order must also limit the scope of all questions and testimony to each individual,

agent, etc.’s (that the Court allows Gainsburg to depose) professional capacity with

Defendants as it concerns the present case.

16. There is no prejudice in preventing Gainsburg from taking many of these depositions as

many of the requested deponents lack personal knowledge to testify as to Plaintiff’s

assertion that it is owed stock options from Bio-Tech. Moreover, Gainsburg would not be

prejudiced by the Court setting limitations and other requirements on the depositions it

might potentially allow as those requirements would not prevent Gainsburg from

potentially obtaining discoverable evidence, if any.

WHEREFORE, Defendants respectfully request that this Honorable Court enter an order:

(1) preventing Gainsburg from deposing certain Bio-Tech employees, agents, and others affiliated

with Bio-Tech; (2) setting limitations concerning the scope of each deposition Gainsburg is

allowed to take; (3) prohibiting Gainsburg from posting deposition related materials, including but

not limited to transcripts and exhibits, on social media/internet; (4) requiring either a magistrate or

referee to attend the depositions at Gainsburg’s expense; and (5) for any other relief this Court

deems just and appropriate






CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

via E-mail on this 17th day of February, 2017, to the following:

Law Offices of Barry Gainsburg, P.A.

Attn: Barry R. Gainsburg, Esq.

607 Sea Turtle Way

Plantation, Florida 33324

[email protected]

[email protected]

Respectfully submitted,

SHINER LAW GROUP, P.A.

Attorneys for Defendants

95 South Federal Highway, Suite 200

Boca Raton, Florida 33432

Telephone: 561.777.7700

Facsimile: 561.368.3364

Primary Email: [email protected]

By: /s/ David I. Shiner

DAVID I. SHINER

Florida Bar Number: 572721

Secondary Email: [email protected]