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Emmanouil v. Roggio

April 18, 2008


The opinion of the court was delivered by: Bongiovanni, United States Magistrate Judge


This matter comes before the Court upon Motion by Defendant Vincent Victor Roggio ("Defendant") for an Order granting attorney's fees and sealing certain judicial proceedings and materials: namely, Plaintiffs Anthony Z. Emmanouil, Eugenia K. Emmanouil and West Belt Auto Supply Inc.'s ("West Belt") (collectively "Plaintiffs") brief, along with the Certification of Anthony Z. Emmanouil and exhibits attached thereto, filed in opposition to the appointment of a receiver for West Belt, and the transcript of the hearing held on November 19, 2007 before the Honorable Freda L. Wolfson, U.S.D.J., regarding the possible appointment of a receiver for West Belt. See Docket Entry No. 88. Plaintiffs oppose this Motion. See Docket Entry No. 89. The Court has fully reviewed and considered Defendant's Motion and all documents submitted in support of and in opposition to same on the papers pursuant to FED. R. CIV. PRO. 78.*fn1 For the reasons stated below, Defendant's Motion to Seal Certain Judicial Proceedings and Materials and for Attorney's Fees is DENIED.


On March 7, 2006, Plaintiffs, through their then counsel Scarinci and Hollenbeck, filed a Complaint against Defendants alleging claims for breach of contract, breach of fiduciary duty, negligence, conversion, fraud and conspiracy to commit fraud, negligent misrepresentation, intentional and negligent infliction of emotional distress and unjust enrichment. See Docket Entry No. 1. On April 25, 2006, Defendants moved to strike Plaintiffs' Complaint, disqualify Plaintiffs' counsel, dismiss certain of Plaintiffs' claims and strike Plaintiffs' statement of damages. See Docket Entry No. 4. On May 30, 2006, the Honorable John J. Hughes, U.S.M.J., upon finding that Plaintiffs' Complaint contained "information which is confidential in nature", sealed same pending resolution of Defendants' Motion to Strike Plaintiffs' Complaint. See Docket Entry No. 9.

On August 24, 2006, this Court granted in part Defendants' Motion to Disqualify Plaintiffs' counsel, finding that Plaintiff Zachary Emmanouil, Esq. ("Zachary"), and Defendant had an attorney-client relationship, and that confidential information obtained by Zachary during the pendency of this relationship could have been disclosed to Plaintiffs' then attorney Mr. Pascual of Scarinci and Hollenbeck, who also represented Zachary in the instant matter. (See August 24, 2006 Opinion at 12-13). Consequently, this Court held that Mr. Pascual and the law firm of Scarinci and Hollenbeck were disqualified from representing Plaintiffs, but could continue their representation of Zachary.*fn2 (Id. at 16).

On September 27, 2006, Defendants wrote the District Court requesting an immediate decision on their Motion to Strike "because the pendency of the Complaint, which Judge Bongiovanni has now recognized was prepared by plaintiffs' prior counsel with the benefit of improperly obtained privileged communications, is significantly disrupting defendants' business relationships." (Ltr. from Donald E. Taylor to Judge Wolfson of 9/27/06). Though the District Court found that "the pendency of the Complaint [was] not significantly disrupting Defendants' business relationships since the Complaint has remained sealed by order of Judge Hughes[,]" it nevertheless ordered that Plaintiff's Complaint be stricken in its entirety "[b]ecause of Judge Bongiovanni's finding that confidential information may have been disclosed to the attorney who prepared Plaintiffs' Complaint[.]" (October 11, 2006 Opinion at 4, n.2). Because the District Court ordered that Plaintiffs' Complaint be stricken based upon the possibility of disclosure of confidential information, the District Court never reached, nor did it make any findings, regarding whether the Complaint did in fact contain scandalous allegations and/or privileged information. (See Id. at 4).

After retaining new counsel, Plaintiffs filed an Amended Complaint on November 6, 2006, and this cased moved forward. On November 16, 2007, the parties submitted briefing on the issue of whether the Court should appoint a receiver for West Belt. See Docket Entry Nos. 81 & 83. On November 19, 2007, the District Court heard argument on this issue and denied Defendant's request for the appointment of a receiver. See Docket Entry Nos. 84 & 86.

As part of their opposition to Defendant's request for the appointment of a receiver, Plaintiffs filed a brief and the Certification of Anthony Z. Emmanouil, along with attached Exhibits, that referenced testimony given by Defendant in a matter entitled Haught v. Biscayne Bay Tower, et al., and included an excerpt from a letter dated December 29, 2005, which Defendant sent to Zachary and then later used in connection with a Complaint he filed against Zachary with the Florida Bar. Defendant's testimony in Haught was also discussed during the November 19, 2007 hearing, when Judge Wolfson allowed Plaintiffs' counsel to question Defendant regarding said testimony over defense counsel's objection. On December 21, 2007, Defendant, alleging that the information pertaining to his sealed and stricken testimony in Haught and his December 29, 2005 letter are confidential and protected by the attorney-client privilege, filed a Motion to Seal Plaintiff's opposition to Defendant's request for the appointment of a receiver and the transcript of the District Court's November 19, 2007 hearing. See Docket Entry No. 88.


Defendant seeks an Order sealing his November 19, 2007 testimony regarding his previous testimony in Haught and the pleadings filed by Plaintiffs on November 16, 2007, which include references to his testimony in Haught as well as the December 29, 2005 letter. Defendant argues that this information must be sealed because it contains "private, privileged attorney/client communications." (Def. Br. at 15). Specifically, with respect to information concerning the Haught matter, Defendant claims that at the time the original Complaint in this matter was filed, only he and Zachary "were aware of the facts of the Haught testimony[,]" and that Zachary, in violation of the Rules of Professional Conduct ("RPC"), disclosed the fact that Defendant had previously testified in Haught to Plaintiffs. (Roggio Cert. ¶15). Defendant states that given this disclosure of confidential information, the Court first sealed the original Complaint, then disqualified Plaintiffs' original attorneys for assisting Zachary in violating RPC 1.6, 1.9(a) & 1.9(c), and later ordered that the original Complaint be stricken. Defendant argues that Plaintiffs violated the Court's previous seal and strike Orders (which Plaintiffs never moved to vacate) by including information regarding the Haught matter (of which Defendant claims Plaintiffs only have knowledge because of Zachary's previous ethical violations) in their November 16, 2007 pleadings.

Similarly, Defendant claims that the December 29, 2005 letter is protected by the attorney-client privilege and that Plaintiffs improperly included an "out of context excerpt from" it in their November 16, 2007 pleadings. (Roggio Cert. ¶ 11). Defendant argues that he wrote the aforementioned letter and sent it to Zachary. Defendant also argues that to the best of his knowledge, the December 29, 2005 letter had not been previously filed in this matter, but had only been used "in connection with a Complaint . . . filed [by Defendant] with the Florida Bar against Zachary." (Id.)

Defendant claims that the aforementioned materials and judicial proceedings should be sealed because, as previously noted, they contain confidential, privileged attorney-client communications. Defendant argues that attorney-client privileged communications are not within the public domain. (Def. Br. at 11). Defendant additionally claims that there has been no waiver of his attorney-client privilege with respect to communications with Zachary, and that Plaintiffs lack standing to assert such a waiver. (See Def. Reply Br. at 8-10). Moreover, Defendant alleges that with respect to the Haught testimony, there will not be a waiver because this testimony "has nothing to do with the sale of West Belt Auto Supply, Inc. . . . to Mr. Roggio." (Id. at 10).

Further, Defendant claims that neither the information concerning Haught (found both in Defendant's November 19, 2007 testimony and in Plaintiffs' pleadings), nor the December 29, 2005 letter is "generally known" pursuant to RPC 1.9(c)(1). (Id. at 11, 16). Defendant also argues that despite the fact that over defense counsel's objection Judge Wolfson permitted Defendant to be questioned regarding his testimony in Haught at the November 19, 2007 hearing, the Court should not view Judge Wolfson's ruling as controlling because Judge Wolfson "was without the benefit of briefs from the parties regarding the attorney/client privilege issue prior to allowing the Emmanouils' counsel to examine Mr. Roggio on the sealed and stricken Haught testimony." (Id. at 11). Defendant further argues that Plaintiffs should be held in contempt for violating the Court's seal and strike Orders, and that Defendant should therefore be awarded his legal fees incurred with this Motion. (Id. at 18-19).

Plaintiffs oppose Defendant's Motion to Seal, arguing that Defendant cannot meet the good cause standard necessary to seal documents under L.Civ.R. 5.3. Specifically, Plaintiffs claim that the information Defendant seeks to seal is not privileged and not entitled to protection. (Pl. Opp. Br. at 4). With respect to the December 29, 2005 letter, Plaintiffs first argue that this letter was never subject to the protections of the attorney/client privilege as Defendant has failed to establish that the communication was confidential or made for the purpose of securing legal advice. (Id. at 7, n.3). Second, Plaintiffs argue that even if the December 29, 2005 letter was at one time protected by the attorney-client privilege, Defendant can no longer claim that it ...

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