transcript 2007mar23

7/27/2019 Transcript 2007mar23

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN DOE 1, as parent and natural )guardian of PLAINTIFF C, his minor )

child; JOHN DOE 2, as parent and )natural guardian of PLAINTIFF D, his )minor child; JANE DOE 1, as parent and )natural guardian of PLAINTIFF B and )PLAINTIFF M, her minor children; JANE )DOE 2, as parent and natural guardian of)PLAINTIFF J, her minor child; and JANE )DOE 3, as parent and natural guardian )of PLAINTIFF S, her minor child, )

) 5:03cv260 Plaintiffs, ) MARCH 23, 2007

vs. ) 10:07 A.M. ) PANAMA CITY, FLORIDJOSEPH R. FRANCIS; MRA HOLDING LLC, )a California limited liability company; )MANTRA FILMS, INC., an Oklahoma )corporation (d/b/a "Girls Gone Wild"); )AERO FALCONS, LLC, a Delaware )limited liability company; MARK D. )SCHMITZ; and RYAN DAVID SIMKIN, )

)Defendants. )

________________________________________)

TRANSCRIPT OF TELEPHONIC MOTION HEARINGBEFORE THE HONORABLE RICHARD SMOAK

UNITED STATES DISTRICT JUDGEAPPEARANCES:FOR THE PLAINTIFFS: D. ROSS McCLOY, JR.

Attorney at LawHarrison, Sale, McCloy& Thompson CharteredP. O. Drawer 1579Panama City, Florida 32402

LARRY SELANDERRACHAEL G. PONTIKESAttorneys at LawDuane, Morris, LLP227 W. Monroe St., Suite 3400Chicago, Illinois 60606

Lisa Girod Jones, RMR, CRR, Official Court Reporter111 N. Adams Street, Suite 523, Tallahassee, Florida 32301

(850) 513-1145



APPEARANCES: (Continued)

FOR THE DEFENDANTS: MICHAEL PATRICK DICKEYAttorney at LawBarron & ReddingP. O. Box 2467

220 McKenzie AvenuePanama City, Florida 32402



3

1 PROCEEDINGS

2 (Call to Order of the Court)

3 THE COURT: Good morning, I think.

4 Lisa, are you with us?

5 THE REPORTER: I'm here.

6 THE COURT: We're having to do things on short notice

7 here, and our court reporter is doing this by telephone.

8 Does anybody have any problem with that?

9 MR. McCLOY: No, Your Honor.

10 MR. DICKEY: No objection, Your Honor.

11 THE COURT: All right. Mr. McCloy, this is your

12 motion. I understand that you want sanctions against

13 Mr. Francis for his conduct at mediation; that you want a

14 restraining order to avoid any encounters between Mr. Francis

15 and the plaintiffs; and that you have a discovery problem. Is

16 that --

17 MR. McCLOY: Yes, Your Honor, that's it in a nutshell

18 THE COURT: I also have your motion to file this unde

19 seal, and I don't know that that's appropriate, but why don't

20 you address that first.

21 MR. McCLOY: Your Honor, the -- first and foremost, w

22 want that thank you for allowing us to impose on your calendar

23 today. The motion to file the outstanding motion under seal i

24 an effort to do two things.

25 Your Honor, it's designed to do two things. First an



4

1 foremost, every single time that there is a media outburst

2 relative to anything that has to do with Girls Gone Wild

3 litigation, it is extremely bothersome to the local residents

4 who are the plaintiffs in this case.

5 The second thing is that I don't know that it would b

6 fair to Mr. Francis to have bandied about in public the

7 comments that were made during the confidential mediation that

8 was ongoing when these comments were made on Wednesday of this

9 week.

10 THE COURT: Mr. Dickey?

11 MR. DICKEY: Your Honor, I would actually concur with

12 that.

13 THE COURT: You may need to get to the microphone to

14 help the court reporter.

15 MR. DICKEY: Your Honor, the defendants concur with

16 Mr. McCloy's observations, and don't want to prejudice the

17 court or the jury pool, and stipulate to a motion that this be

18 held under seal for all the reasons that Mr. McCloy has alread

19 articulated.

20 THE COURT: Well, I am not going to put things under

21 seal to insulate Mr. Francis from his misbehavior. He is the

22 author of his own misfortune in that regard. You know, if thi

23 had to do with identities of minors and other matters that are

24 clearly entitled to seal, it might be different.

25 MR. DICKEY: Your Honor, one issue that we have on ou



5

1 side of the table with regard to this is that -- as I

2 understand it, the reason these statements are being filed in

3 the first place is under an exception under 44.405, that has t

4 do with statements made in mediation that would otherwise be

5 privileged, that are filed with the court or made public

6 because they constitute a threat of violence.

7 I don't agree that some of the posturing, and frankly

8 boorish behavior that's reflected in this motion -- which I'm

9 absolutely not here to defend -- constituted a threat of

10 violence.

11 And one concern that I have is that if this behavior

12 or these statements don't fall within the exception, they

13 shouldn't be in the court record in the first place. And unde

14 44.406, presuming the state law would apply under these

15 circumstances -- and I put to you it probably does because it'

16 substantive -- there would be a basis for the defendants to

17 bring a motion for sanctions for the fact that this has been

18 filed.

19 So under the circumstances, as I said, I think we've

20 got this additional concern that this probably shouldn't be in

21 the court file in the first place because it doesn't fall

22 within the exception for a threat of violence.

23 THE COURT: Well, I have a question whether the

24 Florida mediation statutes apply to us. I don't necessarily

25 accept that they're substantive. I don't know whether there



6

1 are any substantive rights or sanctions established by that.

2 think more on its face it's procedural. The mediation that wa

3 to take place was required by my order.

4 Now were you there when Francis apparently was

5 behaving in this fashion?

6 MR. DICKEY: Yes, sir.

7 THE COURT: Why didn't you jerk him out of there in

8 the first 30 seconds and get him straightened up, if that is a

9 all possible?

10 MR. DICKEY: Your Honor, under the circumstances -- I

11 mean there were three attorneys in the room on the defendants'

12 side of the table, and under the circumstances, we -- basicall

13 he would make a comment, and that's reflected, and then

14 Mr. Selander would start to continue his comments, and then

15 there would be another comment. The full exchange lasted -- I

16 think that the motion says about three minutes, and that's

17 probably about right.

18 And they got up and walked out of the room with -- if

19 I remember correctly -- I'm not sure if it was their attorneys

20 or if it was his in-house counsel getting between him and the

21 plaintiffs' lawyers as they were leaving.

22 So I'm not sure under the circumstances, Your Honor,

23 what I could have done, or any of the other attorneys in the

24 room could have done to stop the outburst, short of what

25 transpired, which was the plaintiffs' lawyers got up and left,



7

1 which was appropriate, I would put to you, under the

2 circumstances.

3 THE COURT: Well, I am concerned about the shortness

4 of time that we're working under here. I am going to order

5 that there is to be a hearing at 9:30 next Friday. This will

6 be an evidentiary hearing. Mr. Francis is to appear personall

7 to show cause why he should not be sanctioned for his failure

8 to comply fully, both facially and in the spirit required by m

9 order.

10 I will hear evidence at that time about the

11 appropriateness of a restraining order, and that will give you

12 an opportunity to respond to the motion to compel on the

13 discovery.

14 Mr. Francis is to be here.


16 THE COURT: He is to be dressed in proper business

17 attire. And you are to send him to etiquette or charm school

18 in the meantime. He embarrassed himself when he was here for

19 his corporation's plea.


21 THE COURT: And any complaints about publicity, he

22 brought on himself. And I'll give him an opportunity to save

23 himself from himself this next time.


25 THE COURT: And I fully expect him to come in here an



8

1 behave with business courtesy and the courtesy that is require

2 appearing before any court.


4 THE COURT: Mr. Dickey, if I find that this is true,

5 you need to tell him to bring his bag, because the sanction ma

6 well involve that he will go to jail.


8 THE COURT: And with that in mind, you need to get

9 with Mr. Dyer and get grown-up, cooler heads involved in this.

10 And if there's any way you all can get this on track between

11 now and next Friday, it needs to be done, because Mr. Francis,

12 may have gone too far this time.


14 THE COURT: By next Wednesday, noon, I want both side

15 to submit memoranda addressing whether the Florida Mediation

16 Code applies, whether it is procedural or substantive; but in

17 any event, whether that makes any difference where I think fro

18 what has been presented to me is a clear violation of my order

19 And I will not permit Mr. Francis to hide behind Florida

20 Mediation Code to avoid sanctions for a violation of my order.

21 I want you all to address the restraining order. Thi

22 seems to have been certainly an unpleasant confrontation at th

23 mediation, but I'm not sure I -- it's not readily apparent to

24 me why we need something to keep everybody a block apart from

25 now on.



10

1 date for Rachel Pontikes, one of the plaintiffs' attorneys in

2 the case, and if she can either appear by telephone, if her

3 testimony is needed, or if the court would be willing to hear

4 her testimony while she's here today, we could do that, subjec

5 to the court --

6 THE COURT: We can make arrangements for her to do it

7 by telephone.

8 MR. McCLOY: Thank you, Your Honor.

9 THE COURT: Anything further, Mr. Dickey?

10 MR. DICKEY: No, Your Honor.

11 THE COURT: Well, let me ask you where we go from

12 here. The other question I think we did not cover was the

13 issue of making a decision on the Fifth Amendment privilege.

14 And again, I am concerned that it's short notice for today, bu

15 put that to the list for next Friday and for your memo.

16 MR. DICKEY: And Your Honor, just so the court knows

17 in context what's going on -- you asked if there's anything

18 else going on -- I think that in light of what's been filed,

19 the reasons will be apparent, but I've served a motion to

20 withdraw in this case, as well, this morning.

21 THE COURT: Mr. Dickey, I am concerned, to some exten

22 as a bystander, from what I read in the local press, of the

23 efforts that are going on in the State criminal prosecution,

24 that, you know, that seems to be becoming the flying Dutchman

25 of litigation that is going to stay at sea forever. And it's



11

1 been the tail that wagged the dog here about as long as it's

2 going to.


4 THE COURT: And at some point we are required to get

5 on with our business.


7 THE COURT: And somebody needs to have a serious,

8 grown-up discussion. Quite frankly, I'm concerned -- or the

9 impression I'm getting, the defendants in that case are

10 effectively gaining the system in the state court.

11 MR. DICKEY: I really don't have any direct

12 involvement, Your Honor, in the state court action. I, in

13 fairness, can't comment either way.

14 THE COURT: The requirement is -- and there will be n

15 ifs, ands or buts, short of some really unforeseen crisis --

16 that we are going to do this next Friday. I think it would

17 probably be a good idea if you'll look at what Dave suggested

18 in your memorandum, that you address what may be an appropriat

19 sanction

20 One, I'm concerned about appropriate punishment, if i

21 is warranted for Mr. Francis, and then I am concerned about

22 what would be an appropriate coercive sanction to ensure that

23 he properly follows the order to mediate.

24 It's starting to look like financial sanctions simply

25 don't have any real hope of being effective. Because of the



12

1 amount of the financial sanction, it simply just doesn't have

2 much chance of getting anybody's attention, given the financia

3 resources of Mr. Francis and his enterprises.

4 Right now I'm concerned that all I am left with as an

5 effective sanction, both for punishment and coercion, is for

6 him to go into custody.

7 And you all give serious thought to that and please

8 address it very thoughtfully in your memorandum.

9 MR. McCLOY: Yes, sir.

10 THE COURT: Anything further?

11 MR. McCLOY: No, Your Honor.

12 THE COURT: Okay. I'll see you all next Friday.

13 (Proceedings concluded at 10:25 a.m.)

14 **********

15 I certify that the foregoing is a correct transcript

16 from the record of proceedings in the above-entitled matter.

17

18_______________________________ __________________

19 LISA GIROD JONES, RPR, RMR, CRR DateOfficial Court Reporter

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22 S /L isa G irod J ones

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transcript 2007mar23

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