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.

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

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 Scott’s 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 Governor’s “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 Governor’s transition team that their e-mail data would not be deleted. [Id.]

e. an acknowledgement by 26 members of the Governor’s 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 Governor’s 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].

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

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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 Governor’s 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., Respondent’s Verified Response to Petitioner’s 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

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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 party-opponent 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).

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(“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,

3 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.

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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;

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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

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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 Governor’s

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.

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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 Florida’s 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.

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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, Dep’t 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. Rick Scott e­mails 'cleaned out' from third source | Tampa Bay Times

http://www.tampabay.com/news/publicsafety/gov­rick­scott­e­mails­cleaned­out­from­third­source/1195299 2/3

News that the governor s e mails were cleared from a third source drew lawmakers  attention.

Sen. Mike Fasano, R New Port Richey, said the Legislature should review the public records law for ways totighten requirements for a governor s transition into office.

He was a businessman. I can only imagine the last thing he was thinking about was keeping documents prior tobecoming governor,  Fasano said.  Either his advisers did not understand the public records law or they wereignored.

Rep. Will Weatherford, R Wesley Chapel, said he would review recommendations on expanding public recordslaw from the Florida Commission on Open Government, of which he was a member.

It s important that what we do is publicly available,  Weatherford said.  It s accountability. It shows the processof how we make decisions. And that should be scrutinized by the public.

Scott lost at least 50 e mails from his iPad when a staffer inside his office updated software for the device in April.Scott s legal advisers disclosed that information last week in a meeting with the Florida First AmendmentFoundation, an open government advocacy group whose board includes members of the media, including the St.Petersburg Times.

The foundation then requested records from the FDLE related to the agency s attempt to restore the iPad. Thoserecords show investigators were also unable to collect documents from his BlackBerry.

Roeder recovered 87 pages of content, but some messages appeared truncated or otherwise incomplete,something common in e mails on BlackBerrys.

The bad news: There is no way for me to prove that we got all of the e mail content off the phone because themessages have been cleared out of the phone,  Roeder wrote in an e mail.

A member of Scott s transition team warned colleagues in January that the Rackspace accounts were closing andsuggested they retrieve any records they needed. But Scott s team said they didn t know that meant the accountswould be deleted, as Rackspace s policy states.

The FDLE e mails also give a window into the frustration the issue has created for state investigators.

Brett Cureton, in FDLE s Computer Crime Center, wrote the iPad was  too new  to recover records.

Forensics always lags behind new technology,  he wrote.

Roeder wrote that she wished the  freaking e mails were still on the freaking phone.

The only explanation that I have is that s  happens   unsatisfying but true,  she said.

Michael C. Bender can be reached at mbender@sptimes.com or  850) 224­7263. Follow him on Twitter@MichaelCBender.

Where Scott's team has searched for his e­mails:

The computer server: Scott used Rackspace, a Texas based company, to host e mail accounts for his campaign andthen his transition team. But the transition team closed at least 38 accounts, including Scott s, when he was sworninto office. The company says e mails for all of those accounts have been deleted.

The iPad: The tech team in the Governor s Office tried to retrieve 50 transition e mails Scott had saved. But whenthey updated software on the device, the Governor s Office says all the records were lost.

2/18/2015 Gov. Rick Scott e­mails 'cleaned out' from third source | Tampa Bay Times

http://www.tampabay.com/news/publicsafety/gov­rick­scott­e­mails­cleaned­out­from­third­source/1195299 3/3

Abuse PolicyCommenting Guidelines

The BlackBerry: While hunting for records on the iPad, investigators with the Florida Department of LawEnforcement checked Scott s smartphone, too. The investigators said the phone s wireless signal had been turnedoff, which meant records would be safe. But investigators found the wireless signal had been activated. While 87pages of content were retrieved, other messages had been cleared out of the phone.

Gov. Rick Scott e­mails 'cleaned out' from third source 10/05/11 Photo reprints | Article reprints 

© 2015 Tampa Bay Times

    

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