Filing # 9110690 Electronically Filed 01/13/2014 07:49:34 PM

RECEIvED, 1/13/2014 19:53:52, John A. Tomasino, Clerk, Supreme Court

BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA

SC13-1333 INQUIRY CONCERNING A JUDGE No. 12-613 LAURA M. WATSON

JUDGE WATSON'S MOTION TO COMPEL DOCUMENTS, MOTION FOR SANCTIONS, MOTION TO OVERRULE ALL CLAIMS OF PRIVILEGE OR CONFIDENTIALITY BASED ON VOLUNTARY

DISCLOSURE AND FAILURE TO FILE A PRIVILEGE LOG, MOTION TO REOPEN DISCOVERY, PERMIT COMPLETION OF SUSPENDED DEPOSITION OF COMPLAINING WITNESS LARRY STEWART AND

TO CONTINUE THE FEBRUARY 10, 2014 TRIAL

Pursuant to Rule 12(a) of the Florida Rules of Judicial Qualifications

Commission, and Rule 1.350 (b) of the Florida Rules of Civil Procedure, Judge

Laura M. Watson moves this Commission to Compel all documents in the JQC's

possession, overrule any objections or claims of privilege raised by the JQC's to

Judge Watson's 12(b) Request and Request for Production, to reopen discovery

and impose sanctions based upon the obstructionist tactics of Special Counsel, Mr.

McGrane, to compel answers to the objected deposition questions, to overrule the

objections raised to the rule 12(b) demand for documents and Request for

Production, to permit completion of the suspended deposition of complaining

witness Larry Stewart and to continue the February 10, 2014 trial, as grounds

therefore would state:

Throughout these proceedings, Judge Watson has maintained her innocence

and argued that notwithstanding the demonstrably false allegations in the Notice of

Formal Charges, valid concerns exist that go to the heart of fundamental legal

issues, including but not limited to questions of jurisdiction, procedural and

substantive due process rights, equal protection, etc., with respect to the JCQ

pursuing charges from nine years past, before Judge Watson ever considered being

a judge, and while The Florida Bar had exclusive jurisdiction to address this

matter.

Although most of the JQC's attention has been to address procedural

matters, an important distinction exists between this and most other JQC cases, i.e.,

this case is based on highly contested and denied allegations, where most other

cases are based on an undisputed action. In fact, actions alleged in this case against

Judge Watson have already been adjudicated in a court of competent jurisdiction

that found that Judge Watson was not individually culpable on any of the counts

brought against her.

Further, procedurally this case is important because Judge Watson is

asserting that the JQC, and in particular the JQC's Special Counsel, has improperly

manipulated the investigative and hearing process for an improper purpose thus

abusing process, attacking the very independence of the judiciary, and usurping the

rights of the voters. For this reason, Judge Watson must preserve both her state and

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federal rights and ensure that the JQC's legitimate purpose, the independence of

the courts, and voters' rights are preserved.

Mr. McGrane appears to have engaged in the following lawyer misconduct

in this proceeding:

1. Responding to Judge Watson's Request for Rule 12(b) information, Judge

Watson's First Request for Production, and other filings in this case and

failing to disclose important documents and the existence or of other

materials allegedly possessed by the JQC.

2. Intentionally obstructing the discovery process by improperly instructing a

witness not to answer questions and allowing other witnesses to claim

privilege to matters, knowing that privilege had already been waived and

that Mr. McGrane himself was producing these "privileged" documents.

3. Filing formal charges concerning Judge Watson's closing statements,

contingency fee contracts and client communications without any direct

evidence concerning these matters and without even having possession of

the closing statements or contracts.1

4. Leaking the Notice of Formal Charges to Larry Stewart before it was filed

with the Florida Supreme Court and requesting that Mr. Stewart not disclose

December 18, 2013 hearing transcript p. 26-30 attached as Exhibit "A". 3

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this fact.

5. Issuing a written response stating he had no witness statements when the

record reveals that he had numerous material witness statements that were

not disclosed.

Mr. McGrane's bad faith conduct is more fully set forth in the paragraphs below.

L Mr. McGRANE KNEW AT ALL TIMES THAT CONFIDENTIALITY HAD BEEN VOLUNTARILY WAIVED BY THE FLORIDA BAR, THE

JQC, AND THE WITNESSES

Mr. McGrane interfered with the depositions of Larry Stewart, William

Hearon, and James B. Tilghman by either raising improper objections or by

instructing the witness not to answer certain questions or by remaining mute,

allowing the witness to claim privilege for matters which Mr. McGrane knew

privilege/confidentiality had been waived. After the deposition Mr. McGrane and

the Florida Bar voluntarily produced documents. These "confidential" documents

included the Florida Bar complaints filed by Larry Stewart and William Hearon

and the Complaint filed with the JQC and corresponding letters and statements of

these witnesses regarding their claims. When a person voluntarily discloses a

privileged communication, the communication is no longer protected. Fla. Stat.

Sec. 90.507.

As to Larry Stewart, Mr. McGrane objected to questions which inquired into

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phone calls between Mr. Stewart and the Florida Bar, both before and after the Bar

issued its finding of Probable Cause. The questions related to these conversations,

such as the parties to the conversations, the subject matter of the conversations, and

similar follow-up questions were asked and objected to by Mr. McGrane. When

questions regarding Mr. Stewart's interactions with the JQC were asked, Mr.

McGrane instructed Mr. Stewart not to answer these questions because they were

privileged. (Larry Stewart's deposition at p. 291-296 pages attached as Exhibit

"B").

Though this objection may initially seem proper and benign, after the

deposition Mr. McGrane and The Florida Bar voluntarily produced documents

including the "Confidential" Complaints filed by Larry Stewart and William

Hearon to The Florida Bar and the JQC and corresponding letters and statements

regarding their claims. The production reveals that these documents were in the

hands of Mr. McGrane at the time of the depositions and at the time he represented

to Judge Watson that there were no statements of witnesses. They were only

provided when he finally complied with the 12(b) demand.

The records produced by Mr. McGrane further reveal that Mr. McGrane,

despite repeatedly arguing that the Complaint was confidential, knew at all times

that a copy of the Complaint filed with the JQC had been filed with the Florida Bar

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and was required to be produced herein. The voluntary dissemination of these

materials by the witnesses to the Bar and the production of these materials by the

JQC destroys the claim of confidentiality. These documents included the

following:

G04211/28/12 letter from Mr. Stewart and Mr. Hearon (2274-2322) to Michael Schneider advising that "[t]he Florida Bar has declined to prosecute [Judge

Watson] because she is about to become a judge... and noting that "[w]hile we understand that the Commission does not ordinarily address matters that

occur before one becomes a judge this is not an ordinary case..." Included in

this letter is both the Florida Bar Complaint and the JQC Complaint. This

letter was copied to John F. Harkness, Jr. Esq. and John T. Berry, Esq. (bate

stamped documents 2274-2322 are attached as Exhibit "C").

Both Mr. McGrane and The Florida Bar produced the Complaints filed by Larry

Stewart and William Hearon and the letters which requested the JQC to review this

matter. Mr. McGrane instructed Mr. Stewart not to answer the questions posed

advising Mr. Stewart: "[a]nything that had occurred prior to the formal charges is

privileged by statute. And I object to it, and I instruct the witness not to answer any

of those questions." (Depo of Larry Stewart at p. 293, 1. 14, and additional

objections raised on p. 294-296). Similar objections were raised by William

Hearon, individually (p. 22-24 attached as Exhibit "D") and James B. Tilghman,

individually (p. 14-19 attached as Exhibit "E"), and Mr. McGrane knowingly

permitted this misleading information to stand without advising the witnesses or

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undersigned counsel that the privilege had been waived based upon documents Mr.

McGrane had in his possession and was required to produce.

In light of the voluntary dissemination and disclosure of the "confidential"

documents and the knowledge by Mr. McGrane that the documents would be

disclosed, these actions were unreasonable, deliberate and intended to frustrate the

discovery process and prevent meaningful testimony being taken on behalf of

Judge Watson. Given the nature of these proceedings, it is inexcusable that the

Special Counsel for the JQC would engage in posturing, maneuvering, or

strategizing. The JQC has an obligation to make a fair and impartial analysis of the

evidence and present all material evidence to Judge Watson.2 At a minimum,

exculpatory evidence should not only be embraced by the JQC but is required to be

produced pursuant to the U.S. Constitution.

II. MR. McGRANE HAS FAILED TO PRODUCE SIGNIFICANT AND IMPORTANT DOCUMENTS

Though the documents provided confirm that confidentiality has been

waived by The Florida Bar, the JQC, and the complaining witnesses, Mr. McGrane

2 Mr. McGrane claims that the method and selection of Special Counsel for the JQC and his actions are irrelevant because the Judicial Qualifications Commission Rules do not allow for the disqualification of counsel. (JQC Response to Judge Watson's first Request for Production numbers 19-27). The FJQCR are so vague and indefinite that it is difficult to know if Mr. McGrane's position on this point is valid. But even if the Rules governing the JQC do not allow for disqualification, a lawyer is bound by the Regulations Governing the Florida Bar.

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has failed to produce important and significant documents.3 It also appears from

the communications that have been retrieved that many more emails exist which

have not been provided to Judge Watson. Despite both a Rule 12(b) demand and a

Request for Production, numerous documents were not provided by Mr. McGrane

in addition to the bate stamped documents 2274-2322 referenced above. 4 These

documents are:

1. The emails previously marked as Composite Exhibit "D" at Mr. Stewat's

deposition, (attached as Exhibit "F") which are emails exchanged between

Mr. McGrane and Larry Stewart after July 29, 2013, the date of the filing of

the Notice of Filing Formal Charges. To date, Mr. McGrane's response, if

any, to the emails contained in this exhibit have not been produced and the

email exchanges between Mr. McGrane and Larry Stewart predating July

29, 2013 have not been provided.

3 Judge Watson believes there are many, many more emails, witness statements, and other documents that exist. 4 Rule 12(b) provides that upon written demand by counsel or a party these materials are to be promptly furnished. McGrane did not promptly furnish these documents. It was not until December 26, 2013, and only after Judge Watson provided a copy service to pick up the documents, that these documents were provided. Though the Rules of Civil Procedure places the burden on the requesting party to go to the office of the party producing the documents to review them or arrange for copying, the JQC requires the Commission promptly furnish the documents.

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2. The emails exchanged between Mr. McGrane and William Hearon, Jim

Tilghman, David Bianchi, and members ofThe Florida Bar.

3. The correspondence between The Florida Bar and the JQC and

correspondence included in The Florida Bar's transmittal of the file to the

JQC.

4. On January 9, 2014, Mr. McGrane filed his designation of depositions and

trial testimony. (Exhibit "G"). Though the August 26, 2013 order by the

Chair ordered that these transcripts are to be provided to the opposing party,

Mr. McGrane did not provide these in his response to Judge Watson's

Request for Production or his Rule 12(b) response. The hearing and

deposition testimony referenced in the JQC's designation were not

introduced in the underlying Attorney's Fees trial and therefore have no trial

transcript designations? The JQC designations reference depositions taken

in 2004 through 2007 and have not been provided to Judge Watson to date.

III. MR. McGRANE CLAIMED POSSESSION OF CERTAIN DOCUMENTS BUT HAS NOT PRODUCED THEM

On August 14, 2013, Mr. McGrane provided Judge Watson with a

Preliminary Witness and Exhibit List pursuant to Judge Evander's August 20, 2013

5 The exception to this is paragraph VII., regarding Judge Watson's trial testimony to be used for impeachment purposes.

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Status Conference. (Exhibit "H"). The JQC listed only four witnesses: Larry

Stewart, William Hearon, Todd S. Stewart, and Judge Watson. It was based on this

representation that the Chair designated December 16, 2013 as the date by which

depositions should be completed. But six days later, in compliance with the Chair's

directive, Mr. McGrane filed a seventeen person witness list.

Mr. McGrane's Preliminary Witness and Exhibit List identified the exhibits

to be relied upon by the JQC. Though listed on the exhibit list, the following have

not been produced:

o042The Contract ofEngagement between the "PIP" lawyers and the "Bad Faith" lawyers.

o042Memorandum ofUnderstanding.

o042The Amended Memorandum ofUnderstanding.

Indeed, a review of the documents provided by the JQC shows that the JQC has no

contracts between Judge Watson and her clients. Simply stated, the JQC had no

direct evidence to find probable cause for the alleged violations related to the

contracts and the closing statements.

IV. ALL CLAIMS OF CONFIDENTIALITY OR PRIVILEGE RAISED BY THE JOC SHOULD BE OVERRRULED BASED UPON WAIVER OR THE

FAILURE TO FILE A PRIVILEGE LOG

Throughout these proceedings, Mr. McGrane has taken the position that JQC

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materials are confidential and only the materials created after the probable cause

finding can be discovered. For this proposition, Mr. McGrane continually cites the

case of In re: Graziano, 696 So.2d 744 (Fla. 1997), but that is not the holding. In

In re Graziano, the Supreme Court stated the opposite position espoused by Mr.

McGrane. The Supreme Court cited Rule 12(b) above and stated:

Although not allowing for discovery of the complaint itself, discovery pursuant to rule 12(b) allows an accused to have full access to the

evidence upon which formal charges are based. The policy reasons for

the confidentiality of the original complaint clearly outweigh any

benefit the discovery of it could have in view of the discovery right provided by rule 12..."(emphasis added).1d. at 751.

Thus, except for the original complaint, over which confidentiality was voluntarily

waived, Judge Watson is allowed "full access to the evidence" upon which the

formal charges are based.

Judge Watson should be allowed "full access to the evidence" in the JQC's

possession. She is entitled to a real opportunity to depose witnesses after receiving

all discovery, including all witness statements. Any claims of confidentiality or

privilege have been waived either by failing to file a privilege log, by voluntary

disclosure to a third party, or by disclosing a significant part of the communication

terminating the privilege.

On August 5, 2013 and pursuant to Rule 12(b), Judge Watson requested the

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followingdisclosures:

The names and addresses of all witnesses whose testimony the

Counsel expects to offer at the hearing, together with copies of all

written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Commission which are relevant to

the subject matter of the hearing and which have not previously been

furnished. When good cause is shown this rule may be waived. (emphasis added). Rule 12 (b), FJQCR.

Rule 12(b) provides that upon written demand by counsel or a party these materials

are to be promptly furnished. Mr. McGrane did not promptly furnish these

documents. It was not until December 26, 2013, and only after Judge Watson

provided a copy service to pick up the documents, that these documents were

provided.

On August 26, 2013 Judge Watson served her First Request for Production

on the JQC. On September 20, 2013, the JQC filed a Response to this Request

claiming privilege to numerous documents. (Exhibit "I"). The JQC, however, did

not file a privilege log to either the Rule 12(b) request or the First Request for

Production.' Rule 1.280 expressly requires that a party who withholds discoverable

6 In the instant case, Judge Watson served on the JQC a Request for Production. As

part of its response to these requests, the JQC raised a "General Objection"

regarding the requested information. In the Response to the Request for Production

(Exhibit "I") the JQC identifies a section titled "General Objection" lodged by the

JQC. The JQC's "General Objection" as stated is meaningless. If an objection to a 12

information by claiming it is privileged shall "make the claim expressly and

describe the nature of the documents, communications, or things not produced or

disclosed in a manner that, without revealing the information itself privileged or

protected, will enable other parties to assess the applicability of the privilege or

protection." Rule 1.280(5)(b). The JQC did not comply with this rule and the

failure to comply by not providing a privilege log constitutes a waiver ofprivilege.

See: Metabokfe International, Inc. v. Holster, 888 So.2d 140, 141(Fla. 4'" DCA

2004), citing General Motors Corp. v. McGee, 837 So.2d 1010, 1032 (Fla. 4'h

DCA 2002); see also Nationwide Mutual Fire Ins. Co. v. Hess, 814 So.2d 1240

(Fla. 5th DCA 2002).

Review of the documents provided by the JQC, now reveals that the JQC

had numerous detailed statements of witnesses, including statements from Mr.

Stewart. The record of documents produced by the JQC is totally contrary to Mr.

McGrane's previously filed response that the JQC had no statements ofwitnesses.

request for production is made, the objection must be as specific as an objection to

evidence at trial. "For each item or category the response shall state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. If an objection is

made to part of an item or category, the part shall be specified." Fla. R. Civ. Pro.

Rule 1.350 (b). 13

V. THE JQC APPEARS TO HAVE FILED FORMAL CHARGES WITHOUT THE RELEVANT CONTRACTS AND CLOSING

STATEMENTS IN RECKLESS DISREGARD FOR THE TRUTH CONCERNING THE INTEGRITY OF JUDGE WATSON

At a recent hearing, Mr. McGrane appears to have finally conceded that the

JQC had no contracts between Judge Watson and her clients and no closing

statements related to the issues in this case.' No such documents have been

produced by the JQC. Nonetheless, Mr. McGrane filed a Notice ofFormal Charges

alleging:

�042 about thethat Judge Watson did not keep her clients reasonably informed

status of a matter [4-1.4 (a)];

�042that Judge Watson did not explain matters to her clients to the extent

reasonably necessary to permit the client to make informed decisions

regarding the representation [4-1.4(b)];

�042 Watson's contingent fee contracts did not comport with thethat Judge requirements of the Rules ofprofessional responsibility [4-1.5(f)(1)];

�042that Judge Watson failed to prepare appropriate closing statements as

required by the Rules [4-1.5(f)(5)]; �042 Judge Watson failed to explain the implications of the commonthat

representation of multiple clients in a single matter [4-1.7(c)]; �042and that Judge Watson failed to make an aggregate settlement of the claims

of her clients without disclosing the existence and nature of all the claims

and without the clients consent [4-1.8(g)].

A review of the documents in the JQC's possession shows that the JQC has no

contracts between Judge Watson and her clients and no closing statements related

7 December 18, 2013 hearing transcript p.22-30. 14

to the issues in this case. Simply stated, the JQC had no competent evidence to find

probable cause for the alleged violations related to the contracts and the closing

statements.

Indeed, the JQC filed these charges in the face of evidence that Judge

Watson did not violate these rules outlined above. In McGrane's possession at the

time of the filing of the Notice ofFormal Charges were fifteen (15) affidavits from

Judge Watson's clients (composite Exhibit "J"), which stated in pertinent part:

As to the Individual PIP cases: That the contract that the client had with Judge Watson's law firm provided

that if the suit was successful, that the client would recover the unpaid benefits and interest and the lawyers would recover the legal fees and costs.

Often times the sum being sought was less than $500.00. Progressive aggressively defended PIP suits brought on their behalf. If the client had to advance the legal fees and costs to recover the benefits, they would not have

done so. That Watson and Lentner assumed the risk on the client's behalf

and agreed to perform as much work and expend whatever time was necessary. Watson and Lentner matched or exceeded the efforts the efforts

of Progressive and eventually the client prevailed. The client recovered all of

the unpaid PIP benefits plus interest and the lawyers recovered cost and

attorney's fees.

As to the Settlement of the Bad Faith Case: That the client understood that there was a disagreement between co-counsel and that Larry Stewart believed the Bad Faith case was far more valuable

and that the clients should not accept Progressive's offer. The client also understood that Larry Stewart believed that we had an advantage at that

moment in the case. The decision to accept the settlement offer was made by

the client independently. That the client was aware that they could speak to

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Larry Stewart about his view of the case and that the client was free to contact Larry Stewart and that the client was never told that they could not speak with him.

Judge Watson did not represent Larry Stewart or William Hearon, the

complainants in the Florida Bar and the JQC matter. They were co-counsel in the

bad faith case and Judge Watson did not owe a fiduciary duty to either of them.

Larry Stewart had no personal knowledge of the discussions and extent of the

representation that Judge Watson had with her clients. The only competent direct

evidence possessed by the JQC regarding Rules 4-1.4(a), 4-1.4(b), 4-1.5(f)(1), 4

1.5(f)(5), and 4-1.7(c) were the affidavits from Judge Watson's clients which

establish that there was no violation of these rules.

VL CONCLUSION

Pursuant to Rule 12(a) of the Florida Rules of Judicial Qualifications

Commission, and Rule 1.350 (b) of the Florida Rules of Civil Procedure, Judge

Laura M. Watson moves the Commission to compel all documents in the JQC's

possession, including all witness statements and correspondence between these

witnesses and the JQC, provide a proper response to the Request for Production,

overrule all of the JQC's objections, and require a proper response stating whether

or not the documents requested exist. As stated by the Rules of Civil Procedure:

"When producing documents, the producing party shall either produce them as

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they are kept in the usual course of business or shall identify them to correspond

with the categories in the request." Rule 1.350(b). If an objection to a request for

production or request for admissions is made, the objection must be as specific as

an objection to evidence at trial.

WHEREFORE, the undersigned respectfully requests that this Commission

grant Judge Watson's Motions and order the following:

G042Overrule all of the JQC's objections, compel all documents in the JQC's

possession and require the JQC to provide a proper response to the Request

for Production;

G042Require Mr. McGrane to file an accurate response to the demand for witness

statements with a schedule of all statements of witnesses he has received by

email or other written form;

G042Impose sanctions against Mr. McGrane;

G042Extend discovery so that the documents can be discovered and the

deposition of Mr. Stewart can be concluded and follow-up depositions can

be taken;

G042Continue the February 10, 2014 trial date so that full and complete discovery

can be accomplished.

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SWEETAPPLE, BROEKER & VARKAS, PL Attorneys for Defendants 20 SE 3'd Street Boca Raton, Florida 33432 Telephone: (561) 392-1230 E-Mail:pleadings@sweetapplelaw.com

By: ROBEkT A. SWEETAPPLE Florida Bar No. 0296988 ALEXANDER D. VARKAS, JR. Florida Bar No.:0563048

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished by e-mail on this 13'h day of January, 2014 to: The Honorable Laura M.

Watson, (jwatson@l7th.ficourts.org, Itucker@l7th.ficourts.org) 201 SE 6th Street,

Rm. 1005B, Ft. Lauderdale, FL 33301; Miles A. McGrane, III, Esquire,

(miles@mcgranelaw.com, lisa@mcgranelaw.com) The McGrane Law Firm,

Special Counsel, 2103 Country Club Prado, Coral Gables, Florida 33134; Lauri

Waldman Ross, Esquire, Counsel to the Hearing Panel of the JQC, Suite 1612,

9130 South Dadeland Boulevard, Suite 1612, Miami, Florida 33156 (Email:

RossGirten@Laurilaw.com, Susie@Laurilaw.com); Michael L. Schneider,

Esquire, mschneider@floridajqc.com, General Counsel, 1110 Thomasville Road,

Tallahassee, Florida 32303; Henry M. Coxe, III, Esquire, Bedell, Dittmar,

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mailto:mschneider@floridajqc.commailto:Susie@Laurilaw.commailto:RossGirten@Laurilaw.commailto:lisa@mcgranelaw.commailto:miles@mcgranelaw.commailto:Itucker@l7th.ficourts.orgmailto:jwatson@l7th.ficourts.orgmailto:E-Mail:pleadings@sweetapplelaw.com

DeVault, Pillans & Coxe, P.A. Atty for Florida Bar, 101 East Adams Street,

Jacksonville, FL 32202 (Telephone: 904-353-0211; E-Mail:hmc@bedellfirm.com);

Melissa W. Nelson, Esquire, McGuire, Woods, LLP, Atty for Florida Bar, 50 N.

Laura Street, Suite 3300, Jacksonville, FL 32202 (Telephone: 904-798-3200;

Facsimile:904-798-3207).

Pursuant to FJQCR Rule 10(b) a copy is furnished by e-mail to: The

Honorable Kerry L Evander, evanderk@ficourts.ora, Chair of the JQC, 300 S.

Beach Street, Daytona Beach, Florida 32114.

SWEETAPPLE, BROEKER & VARKAS, PL Attorneys for Judge Laura M. Watson 20 S.E. 3'd Street Boca Raton, Florida 33432 Telephone: (561)392-1230 E-Mail:pleadings@sweetapplelaw.com

By: ~'

ROBERT A. SWEETAPPLE Florida Bar No. 0296988 ALEXANDER D. VARKAS, JR. Florida Bar No.:0563048

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mailto:E-Mail:pleadings@sweetapplelaw.commailto:evanderk@ficourts.oramailto:E-Mail:hmc@bedellfirm.com

1

1

BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION

2 STATE OF FLORIDA

3

4

5

INQUIRY CONCERNING JUDGE,

6

LAURA MARIE WATSON, NO. 12-613 SC13-1333

7 ;

9 ·

TRANSCRIPT OF HEARING

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DATE TAKEN: Wednesday, December 18, 2013

12 TIME: 1:30 p.m. - 2:30 p.m.

PLACE: 165 East Boca Raton Road

13 Boca Raton, Florida

BEFORE: THE HONORABLE KERRY EVANDER

14

15 This cause came on to be heard at the time and

place aforesaid, when and where the following

16 proceedings were reported by:

17 Terri Wright

United Reporting, Inc.

18 1218 Southeast Third Avenue

Fort Lauderdale, Florida 33316

19 (954)525-2221

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EXHIBIT

2

1 TELEPHONIC APPEARANCES:

2 THE HONORABLE KERRY EVANDER, ESQUIRE

Fifth District Court of Appeal

3 300 S. Beach Street

Daytona, Florida 32114

4

5 MILES A. MCGRANE, III, ESQUIRE

THE MCGRANE LAW FIRM

6 9100 S, Dadeland Blvd., #1500

Miami, FL 33156

7

8 LAURI WALDMAN ROSS, ESQUIRE

COUNSEL TO THE HEARING PANEL OF THE

9 FLORIDA JUDICIAL QUALIFICATION COMMISSION

ROSS & GIRTEN

10 Two Datran Center, #1612

Miami, FL 33156-7818

11

12 TEE HONORABLE LAURA MARIE WATSON

Broward County Courthouse

13 201 SE Sixth Street, Room 1005B

Fort Lauderdale, FL 33301

14

15 ROBERT A. SWEETAPPLE, ESQUIRE

SWEETAPPLE, BROEKER & VARKAS, PL

16 165 East Boca Raton Road Boca Raton, FL 33432

17 561-391-1230

18

MICHAEL SCHNEIDER, ESQUIRE

19 BROOKE KENNERLY, EXECUTIVE DIRECTOR

1110 Thomasville Road

20 Tallahassee, FL 32303

850-448-1581

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WHEREUPON, the following proceedings were had:

2 THE COURT: Who do we have?

3 MR. SWEETAPPLE: Robert Sweetapple with Judge

4 Watson and the Court Reporter.

5 THE COURT: Okay.

6 MR. MCGRANE: Miles McGrane, Judge.

7 MS. KENNERLY: Mike Schneider and Brooke

8 Kennerly,

9 MS. ROSS: Lauri Ross. And my understanding

10 is the Court Reporter is with Mr. Sweetapple and

11 Judge Watson..

12 MR. SWEETAPPLE: That's correct.

13 THE COURT: We'll go ahead and proceed. We'll

14 gc ahead and go along the same order as what's in

15 the notice of hearing, the status conference. And

16 I'll hear argument five minutes each side. And

17 let's start with the motion to extend the

18 deposition deadline.

19 MR. SWEETAPPLE: May it please the Court. In

20 preparation for the hearing I issued subpoenas to

21 Mr. Tilghman, Mr. Hearon, Mr. Bianchi and Miss Muir

22 of the Florida Bar, they were Duces Tecum. I also

23 attempted to serve Mr. Stewart who appeared and

24 brought some documents without a subpoena but I did

25 not finish his deposition and I'm going to need to

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subpoena him as well.

Mr. Stewart did not bring all of the e-mails in

question, and all of the other witnesses objected.

And there is going to be, with regard to Miss Muir,

at least, her attorney, Mr. Cox, has indicated that

he's going to provide me hopefully by Friday with a

privilege log and then we're going to have to

determine the scope of discovery.

And certainly one of the issues that you're

going to have to decide concerns the issue of

ccmplaints because, with all due respect, in your

order that you issued in the last hearing you cited

the Judge Woods and the Judge Graziano decisions,

those cases were all decided - each decided under

the former rules of judicial administration that

did not provide for the loss of confidentiality of

complaints. And in fact, the old judicial rules

are cited. And what I did is I filed with the

Court yesterday a copy of the new rule, which

actually provides that the following records of

judicial branch shall be confidential. And then it

says: Complaints alleging misconduct against

judges until probable cause is established.

The only guidance that deals with the

complaints themselves is the judicial rules. And

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these rules were passed after those cases. And I'm

still taking the position, I want to argue to the

Court before I depose these witnesses, that I'm

entitled to complaints.

The other fact that's going to become germane

here, Judge, is that we made a request of

Mr. McGrane under Rule 12B for statements of all

witnesses. And Mr. McGrane filed with the panel on

August 21st his response that he had no such

statements. And Mr. Stewart was listed as a

witness on the list. And as you can see from our

notice and demand to preserve all electronically

stored information; in fact, Mr. Stewart provided

statements to Mr. McGrane on July 30th, and these

are just some of the statements that we've

attached, July 30th and also on August 7th, which

he didn't disclose in his filing.

So, the rule allows for me to obtain all

statements from special Counsel, and then also

testimony and transcripts.

So, before we get into setting all the depos

and having everybody continue to object, because I

have a number of other subpoenas to issue, the

threshold issue here of my client's entitlement to

the complaint pursuant to the rules of judicial

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administration and her entitlement to statements

that were given to Mr. McGrane and others, despite

Mr. McGrane's apparently misleading statement that

' he's gotten no statements -

THE COURT: What's your authority that the

rules of judicial administration require some

independent confidentiality?

MR. SWEETAPPLE: Well, the case you cited, the

Woods case, Your Honor. The Supreme Court actually

relied on and cited the previous rule of judicial

administration. And I have a copy of the case

here. When I read the holding that you cite, that

holding is exactly what the rule of judicial

administration said, And the rules of judicial

administration apply to all judicial records.

Now, the fact that the proceeding may be

confidential is a different issue and that the

formal charges have to be given is a different

issue from the fact that now the Supreme Court has

clearly articulated that complaints are not

confidential. So, before I take depositions and

before I list witnesses we're going to have to do

some serious housekeeping here because -- if I can

finish my point to you, Mr. Stewart has testified

that he had extensive correspondence with

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1 Mr, McGrane. So, one reason that I want to take

2 Mr. McGrane's deposition is because I don't believe

3 he's being forthright with the Chair and with the

4 panel at all.

And frankly, what is even more disturbing is

6 that Mr. McGrane, despite the provisions of Article

7 5, Section 12A4, which requires that all

8 proceedings by the Commission are confidential

9 until the filing of formal charges - I have filed

with you a copy of Mr. McGrane's e-mail to

11 Mr. Stewart, And at approximately 8:00 in the

12 morning Mr. Stewart is sending by pdf to

13 Mr. Stewart a copy of the formal charges that he

14 signed that weren't filed with the Court until

about an hour and a half later - I filed a copy of

16 that as well - advising Mr. Stewart not to disclose

17 the fact that he's done so until it hits the public

18 record.

19 So, this is a case where, you no, I'm

investigating prosecutorial misconduct and I'm

21 trying to get statements of witnesses when I'm told

22 there are none and there clearly are. I'm trying

23 to get complaints when everyone as traveling under

24 old rules of judicial administration, old case

law, And contrary to what Mr. McGrane is saying,

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I'm doing everything I can to prepare this case but

to prepare it properly.

' So, with regard to the discovery issue, I

need -- and this deposition schedule deadline was

set even before I got into the case. And it was

set at a time when Mr. McGrane indicated he wasn't

taking any depositions. And we had, I think, four

witnesses listed. Now, we have so many depositions

to take, not only of his witnesses but of our

witnesses and I'm dedicating January to taking

depositions. So, I'm asking -

THE COURT: Response. I'm sorry.

MR. SWEETAPPLE: I'm asking the Court to give

us until January 30th to conclude our deposition

discovery in this case.

THE COURT: Response?

Did someone join in the phone call?

MS. ROSS: Somebody called in, but go ahead,

Judge.

THE COURT: Mr. McGrane, let me hear your

response.

MR. MCGRANE: I don't know where to begin,

It's a motion for extension of deadlines but I've

been accused of prosecutorial misconduct, I've been

accused of, in essence, lying to the hearing panel

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in responding to things. I've been accused of an

awful lot of things. But I will address

specifically the motion for extension of deposition

deadlines, which I think is before us.

Number one, for the first time -- Well, his

motion for extension of deposition deadlines didn't

set forth anything. For the first time we hear

that he now wants it up through and including

January 30th when we have a final hearing scheduled

for February 10th. That certainly is prejudicial

to us.

A number of things were outlined to the Chair

just now. We still don't know who he wants to

depose. He keeps saying, there's number of people,

a number of people, a number of people. There's no

definitive schedule or listing of who he wants to

depose and why he wants to depose them. I'm not

going to argue the issues where he's impugning my

integrity as a lawyer after 38 years, I'll address

those later when he takes my deposition.

My position is, we have an inarticulate motion

with a rambling outline of what has to happen with

really nothing for you to definitively put your arm

around. And I still don't know anything other than

what he's just thrown out at us. And all of the

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this deals solely with the position being taken by

Judge Watson and the position being taken by

Mr. Sweetapple that everything being done by the

JQC is somehow a manipulation by Larry Stuart and

that the JQC is part and parcel of this

conspiracy. And Judge, I would suggest to you that

this is exactly what was addressed in a most recent

case from Florida Supreme Court where a lawyer was

suspended for three years for making these

unsubstantiated allegations. I recent them. And

all I'm saying is I don't know how to respond to

this motion because none of what he said makes

sense to me.

THE COURT; Let me ask you this, where did the

depositions of Mr. Stewart - and I forget who his

partners are - Mr. Tilghman ~~ where did those

depositions end, if you would? How long were they

conducted? What happened?

MR. SWEETAPPLE: I've concluded Mr. Tilghman

and Mr. Hearon, Your Honor, other than the

documents that they objected to producing.

THE COURT: Okay.

MR. SWEETAPPLE: And Mr, Stewart -

THE COURT: How long was Mr. Stewart's

deposition? How long did it go for?

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1 MR. SWEETAPPLE: It went the good part of a

2 day. However, he produced a number of e-mails at

3 the end of the deposition and has a lot more

4 e-mails that he testified he has and indicated that

he's not going to testify any further absent an

6 order compelling him. He came in voluntarily

7 because I did not have him served.

8 MR. MCGRANE: Judge, the deposition lasted an

9 entire day. And the first time Mr. Sweetapple

asked a question about the documentation was a

11 minute to 5 p.m. And he produced everything he was

12 asked to produce. I mean -

13 THE COURT: Let me ask you -- Mr. McGrane and

14 Mr. Sweetapple, let me ask you this question,

leaving out the issue of prosecutorial misconduct

16 and discovery on that issue, et cetera, did

17 Mr. Tilghman and Mr. Hearon and Mr. Stewart, did

18 they all testify at length in the trial before

19 Judge Crow way back when and have their depositions

taken, et cetera?

21 MR. MCGRANE: Yes, sir.

22 THE COURT: Okay.

23 MR. SWEETAPPLE: Mr. Tilghman and Mr. Hearon

24 did testify at trial or in deposition.

THE COURT: Okay. Mr. McGraner anything

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further before I give Mr. Sweetapple a chance for a

minute rebuttal?

MR. MCGRANE: No, sir.

THE COURT: Mr. Sweetapple.

MR. SWEETAPPLE: Yes, I have to take Miss Muir

from the bar when her lawyer gets done with the

privilege log. I still have to finish Mr. Stewart,

I have to take Todd Stewart. And I need to take

any experts -- they haven't disclosed who their

expert is. I have witnesses that Judge Watson's

listed who I don't know what they are going to say

and I want to depose them, they'll be relatively

brief. I need to have time to prepare for this

hearing.

The December 16th date was set very early in

this proceeding before the extent of discovery was

known. I mean, this was an eight week trial, I

believe, on the underlying charges which are

basically the same charges that are being brought

here.

So, the idea that I'm going to be able to take

discovery in the month I've been involved in the

case and finish working the case up in one month is

just not realistic.

THE COURT: Let me ask you both this, the

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1 Florida bar individual, I mean, what's her title?

2 MR. MCGRANE: Judge, she was the -

3 THE COURT: Grievance Committee or bar

4 official; who is she?

S MR. MCGRANE: She's an employee of the Florida

6 bar who's employed by the Florida bar to serve in

7 the capacity to prosecute grievances in that

B capacity.

9 THE COURT: I don't recall seeing a notice to

10 take her deposition. Did I miss that? Or was

11 there a notice or subpoena or -

12 MR. SWEETAPPLE: Yes, there was a subpoena and

13 a notice and I cancelled it at the request of her

14 attorney because he's told me there are dozens and

15 dozens of pages of documents, they are producing

16 about 85 percent of them but they think about 15

17 percent will be subject to objection. And I've

18 reminded him of the law that I cited in the notice

19 I filed with the Court that, you know, you're

20 required to designate the confidentiality when you

21 submit to the bar and the basis of confidentiality,

22 he's going to put that on his privilege log as

23 well.

24 THE COURT: Do you have handy when you did the

25 subpoena notice and when the -

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1 MR. SWEETAPPLE: It was set a couple weeks ago,

2 three weeks ago, about the same time I was doing

3 the other depos. That was - when I got that

4 objection after getting all the others I realized I

S was just going to get nowhere until we had the

6 threshold issues addressed of my right to the bar

7 records, the complaints and statements to the bar

8 are going to be pretty much the sæme basis for the

9 probable cause in the JQC case.

10 In fact, the JQC has said that, that they

11 relied on those statements so I'm entitled to see

12 the statements of the bar. I think that's clear.

13 And to -

14 THE COURT: Let me stop you. Mr. McGrane, on

15 the bar official, that was noticed before the

16 motion to extend deposition deadline and I

17 understand the bar will may make their own

18 objections and so, I'm not asking you to make them

19 for them, but what's your position on the right to

20 take that deposition?

21 MR. MCGRANE: I have no standing, Judge.

22 THE COURT: Well, no, as the member of the JQC

23 or the attorney for the JQC investigative panel who

24 is objecting to the extension of time to take

2S depositions, what's your position with regard to

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1 the bar employee?

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MR. MCGRANE: Other than the subject matter,

once again, is to show this grand conspiracy, I

see no relevance and to waste our time -

5 THE COURT: Well, if it's -

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MR. MCGRANE: - if you want to waste our time,

that's fine. There is no legal objection to

prevent that from being taken.

THE COURT: Mr. McGrane, as far as statements

of witnesses.

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MR. MCGRÄNE: I didn't get any statements

witnesses from them. I don't know where he's

from

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coming up with

flabbergasted.

this stuff, Judge. I'm sitting here

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THE COURT: All right. Let's move onto the

next motion. I'm probably just going to take them

all under advisement and look at the case law

18 here.

19 So let's move onto the next one, which was

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Motion to Compel the appearance of Judge Watson for

deposition and Judge Watson's objection and Motion

for Protective Order. It would probably be easier

to hear - Well, the motion for Protective Order

was filed first. Mr. Sweetapple, you can proceed

on that.

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MR. SWEETAPPLE: Thank you very much, Your

Honor. With regard to the motion, I would like to

make reference to the fact that Mr. McGrane in his

own Motion to Compel acknowledges that you

sustained the objection to the earlier attempt to

obtain documents from Laura Watson individually.

Then he goes onto say that on December 4th, 2013

Judge Watson was served with a subpoena at her

chambers to appear as records custodian for

Habermil Holdings, LLC. And that's just not the

case.

What Mr. McGrane did is after you told him not

to attempt to get documents directly from her, he

served a subpoena on Laura - the Honorable Laura M.

Watson, Circuit Court Judge. And then he did a

notice of taking videotape deposition which says,

Laura M. Watson and he attaches the whole - the

entire document is about 25 pages long. And he

basically, after you said she doesn't have to

answer the interrogatories or response to the

request to produce, he attaches the request to

produce to the subpoena he delivers to her

individually.

And the reason that we are insisting that a

records custodian be served is so that we can make

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the proper objections because Judge Watson is no

longer practicing law. She's not going to be in a

position to write clients to see ii they want all

of these exhibits and documents that he's asked for

released. So, the word Habermil and records

custodian, despite Mr. McGrane's filing of a motion

saying this, don't appear. He's just re-erred

again.

THE COURT: Mr. Sweetapple, two questions

here: One is your motion really seems to be two

parts. One is the objection to service on Judge

Watson as a records custodian. But the second part

was also a Motion for Protective Order as to the

taking of her deposition as a party in this case.

Is that second objection just because of the

particular date as opposed to an objection to her

being deposed?

MR. SWEETAPPLE: No, part of that dealt with

the fact that she's entitled to 30 days to try to

produce documents. The other part of it not only

dealt with the date, which is now moot but it also

dealt with the fact that this is incredibly

burdensome if she's going to bring these documents

because as I've set forth and she's prepared to

file an affidavit, there are 225 boxes involving

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this litigation. And it would take her over a

hundred hours to locate -- He has seven different

classes of documents for 46 clients that he wants

her to go through all these boxes and locate.

Now, I would point out - and I make the

argument in the motion and I hope you'll indulge

me ~ but I argued that it's so remote and not

calculated to lead the discovery of any admissible

evidence. And in regard to that, you know,

disciplinary actions under the rules regulating the

bar are in the exclusive jurisdiction of the

Florida Supreme Court and the bar. The bar allowed

the statute of limitations on these claims to run.

There's a six year statute of limitations. The

Walters case talks about prosecuting lawyer

misconduct for more than seven years after it

occurs is unreasonable.

Now, how are these records from now 10 years

ago calculated to lead to the discovery of

admissible evidence? You now see this is a case

before the JQC, which doesn't even involve an

allegation of judicial misconduct. The entire

jurisdiction prudence of the JQC allows looking

back for a reasonable time to conduct that shows a

pattern or character or otherwise relates to

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judicial misconduct.

What Mr. McGrane is trying to do -

THE COURT: You're repeating prior arguments.

MR. SWEETAPPLE: No, I'm not.

THE COURT: Hold on, Mr. Sweetapple. I didn't

interrupt you. Let me finish here. I can't help

but have noticed the language in the Henson case on

prior rules of discipline. Let me go ahead and

hear Mr. McGrane's response to this, to your

objection.

Mr. McGrane,

MR. MCGRANE: Well, first of all, Judge, you've

already ruled on the statute of limitation issue

twice. I'm not going to address the six year

argument that keeps coming up.

But let me argue backwards. Judge Watson

listed 92 either witnesses or people by category;

and of them 46 were former clients. I'm asking for

specific things from their files, not 250 files, I

would suspect that she has a file for each and

every one of these clients. So, it's not that

burdensome to go in.

The very allegations that the JQC is proceeding

on is her failure to number one, properly obtain a

contract of representation where it addresses

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conflicts and potential conflicts once the

settlement was reached in the bad faith action that

they failed to comply with the rules concerning

contracts. So these documents are not only

relevant they're really the whole thrust of the

case that the Florida bar brought initially and now

the JQC is proceeding on.

So, to argue that they're not relevant or don't

lead to relevant information, frankly just can't

accept that argument. So we have that situation.

For the six years that keep coming up alluding

all during this time, Judge Watson was under the

threat from the Florida bar concerning this

grievance matter, I suspect these records have been

kept. That deals with whether or not they're

relevant, whether or not I'm entitled to them.

Judge Watson is the only individual named on the

corporate records for Habermil Holdings, LLC.

THE COURT: Why wouldn't the subpoena be

addressed to the records custodian and let them

choose the records custodian?

MR. MCGRANE: I guess technically if we need

another typing exercise we can, Judge. But, you

know, here's what the corporate records say: Laura

Watson is the contact personr Laura Watson is the

21

member, Laura Watson is the authorized

2 representative, Laura Watson is the managing

3 . member. It clearly delineates. So if we need to

4 do a typing exercise and serve another subpoena I

5 will do that. But it goes exactly to what you said

6 at the last hearing and that is we shouldn't be

7 playing shell games. They know what I want. The

8 only reason I am having anyone show up as a records

9 custodian is to say that these are the records that

10 are kept in the normal course of business.

11 So, you know, I made a scrivener's error and

12 didn't put comma as records custodian, sobeit. But

13 it is absolutely a game. We discussed this fully

14 at the last hearing. I tried to do it some other

15 way and that is to serve it through Counsel. So,

16 you know, I just find that all of this is an action

17 on the part of Judge Watson and her attorney to

18 ensure that February 10 comes and goes without this

19 matter going to hearing.

20 THE COURT: Mr. Sweetapple, your argument that

21 he needs to serve on the records custodian, I

22 understand that argument, but who is - or how can

23 one discover who the records custodian is if the

24 only documents they have list your client?

25 MR. SWEETAPPLE: That's just because

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Mr. McGrane is again misleading you like he did in

his filings saying there were no statements. The

registered agent is disclosed as Steven Rakusin.

Mr. McGrane just keeps telling you things that

aren't true.

MR. MCGRANE: He is the registered agent,

Judge. The lawyer who protects -- who gets service

of process.

MR. SWEETAPPLE: He said the only name on any

document -

MR. MCGRANE: No, When Mr. Sweetapple

suggested we serve him, Judge Watson interrupted

and said no, the subpoena must be served on me,

Judge.

MR. SWEETAPPLE: And that's in the transcript.

That's in the transcript, Mr. McGrane.

THE COURT: That is must be served on her?

MR. MCGRANE: Yes.

MR. SWEETAPPLE: I'm going to ask to have

Mr. McGrane provide a copy of that and fill it with

the Court -

THE COURT: We have the transcript.

MR. SWEETAPPLE: I don't -- my client -

THE COURT: (inaudible)

MR. SWEETAPPLE: Mr. McGrane is making another

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representation to you. But Mr. Rakusin -

THE COURT: Wait. Let's resolve this. Let's

. go to the transcript and see what Judge Watson

said.

MR. SWEETAPPLE: Who has the transcript?

THE COURT: Judge Watson filed both November 13

and November 18.

. MR. SWEETAPPLE: I don't have a copy with me so

' I can't assist you.

MS. ROSS: We'll look at it.

THE COURT: Judge Watson, do you have one handy

there?

JUDGE WATSON: I'm trying to pull it up from

the Supreme Court website, But what happened was

-- because Mr. Sweetapple and I were not in the

same room and he suggested I accept service and

what I said was I will not, that there's a

registered agent. And then the Court -- there was

some more discussion and you suggested that

Mr. McGrane serve me personally -

MR. SWEETAPPLE: And he wanted to know where.

JUDGE WATSON: And he wanted to know where and

then I said, my office, if you're going to serve me

but I didn't agree to accept service. I said all

along it should be the registered agent.

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MR. MCGRANE: You know something, Judge -

THE COURT: Hold on a second. I think -

MR. MCGRANE: What happened is Mr. Sweetapple

said I'll accept service of process. And Judge

Watson interrupted and said no, no, no, you won't.

And he also said, there's a registered agent. And

she said, no. I have quoted in my motion: I do

think exactly the rules of discovery is designed to

prevent this type of shell game, if you would,

where this person doesn't have to accept

individually if you know, the only one in essence

of the absolved corporation here at a holding

c�523mpanyfor the P.A.

But if Judge Watson is going to insist on it,

go ahead and serve her at her office. She has made

the choice, that's fine -

THE COURT: Hold on a second.

JUDGE WATSON: This misrepresents -

THE COURT: Hold on. I'm looking at the

transcript. Let me have 30 seconds with no one

speaking. All right?

I think we talked about that the registered

agent doesn't answer the problem. You have to

subpoena someone from the holding company. There's

only one person listed. The registered agent

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doesn't answer the inquiry, So, who is it that

Judge Watson would say needs to be served as the

records custodian or to designate the records

custodian?

MR. SWEETAPPLE: No, we -- I think -- I don't

have the transcript but my recollection is we made

it clear that she would accept service as the -- as

a record custodian -

THE COURT: The only problem is that this

subpoena didn't say Laura Watson as records

custodian or Laura Watson -

NR. SWEETAPPLE: On behalf of Habermil. She's

only served individually here. You already heard

that objection. And then we can designate whoever

we want to be the records custodian after she's

served.

THE COURT: I got it. Understood.

MR. SWEETAPPLE: Then I can decide if I want to

ask the bar to prepare an inventory and have

someone notify these clients so Judge Watson

doesn't undertake to practice law while she's a

judge.

THE COURT: Mr. McGrane, any further argument

on this issue before I give Mr. Sweetapple a minute

to respond?

26

MR. MCGRANE: No, sir.

2 THE COURT: Mr. Sweetapple, anything further?

3 MR. SWEETAPPLE: Mr. McGrane said to you that

4 all the documents only show Judge Watson, which

5 isn't correct. They show that there is a

6 registered agent. And if he serves Judge Watson as

7 the registered agent of this entity we will have

8 the right to determine who we want to have be the

9 registered agent to bring these docmments and to

10 try to locate them, which may take some time, but

11 we'll probably have to hire somebody because I

12 don't think Judge Watson is going to be able to

13 devote the time to be a sitting judge and go

14 through 46 boxes looking for seven different types

15 of documents. She barely has time to defend

16 herself in this proceeding and serve as a Judge.

17 And also, at that time we will decide how we're

18 going to deal with the issues that clients have got

19 to be notified and advised of the fact that we

20 intend to disclose their records.

21 THE COURT: Let me ask both of you this: How

22 much of these closing statements, et cetera, were -

23 if you know - were presented at the trial before

24 Judge Crow?

25 MR. SWEETAPPLE: Well, Your Honor, I do know

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from reading the record that certain fee agreements

were certainly part of the record, but I would

think that all of this evidence would have been

before the investigatory panel before they found

probable cause. And what's curious here is there's

all this discussion and the request for Mr. McGrane

where he concludes that these closing statements

and contingency agreements have to comply with

certain rules of conduct, he apparently hasn't

focused on the fact these were not personal injury

cases, these were not contingency clients, these

were pure contingencies where the client collected

money, it was a commercial type representation,

He's citing rules of the bar and they've charged

Judge Watson under rules of the bar that don't even

apply to this representation. But -

THE COURT: Mr. McGrane, can you answer my

question about how many of these documents came in

in the trial in front of Judge Crow?

MR. MCGRANE: Yeah, and that's why I can't

understand how they now have to argue that they

want to go and contact the clients. From my

reading of the transcript all of them went into

evidence. How now all of a sudden a privilege was

waived or violated becomes effective again is

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beyond me, Judge.

MR. SWEETAPPLE: If they are all in evidence,

Judge, he can get them from the Court.

THE COURT: Hold on, Mr. Sweetapple, If all

these documents were in front of Judge Crow, would

that -- if we were able to get hold of those, I

don't know if we will or not, will that meet your

need to have these documents?

MR. MCGRANE: I tried to go past the Clerk's

office and apparently once the case was closed

either they were destroyed or returned. So, I did,

because Mr. Sweetapple indicated that most or all

of them are in the Palm Beach County Courthouse and

if they are, I can't get them. But I do know that

whatever privilege may have existed was waived a

long time ago.

THE COURT: Okay.

MR. SWEETAPPLE: Were charges filed without

these documents?

THE COURT: We're going to go to the next

motion.

The motion to extend deadline for all expert

and character witnesses. Mr. Sweetapple?

MR, SWEETAPPLE: Yes, Your Honor, I have

experts on a number of topics. And I am

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interviewing character witnesses, And I need time

to finish meeting with the experts and with the

character witnesses to decide who I'm going to

call. And there's no -- If he wants to depose

them, he can depose them at the end of January, the

beginning of February.

He indicated he was taking no depositions and

now all of a sudden, you know, he needs to know who

my witnesses are and he's prejudiced. He was ready

to go to trial immediately in February, now we find

out this went to investigatory panel and none of

these records were even in the JQC's possession.

THE COURT: Mr. McGrane, response?

MR. MCGRANE: Judge, when I said I intended to

take no depositions it was based upon the status of

what was then disclosed to me. Since then they've

indicated that they intend to produce experts.

Number one, I will need to depose them. And

then number two, I need to discuss whether in a JQC

proceeding, an expert is even applicable or

permitted, which will require a motion to be

prepared. And Your Honor has a cut-off, I think

I don't have it in front of me, but I think it's

January 29th when we're supposed to have a final

pretrial, which I suspect would be any motion, me

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attacking the right for someone to produce an

expert.

. So while it's easy to gratuitously say it

doesn't prejudice the JQC, it does. And while

gratuitously I kept saying I wasn't going to take

depositions, it was based upon the then record.

So, it is prejudicial. And if he's interviewing

them he must have some idea and he must be able to

proffer what areas they're going to potentially

testify. But it is prejudicial.

MR. SWEETAPPLE: Your Honor, some of these

experts -

THE COURT: Are you anticipating calling any

experts, Mr. McGrane, or is it a wait and see what

happens with theirs or where are you on the expert

issue?

MR. MCGRANE: Yes, sir, wait and see.

THE COURT: Excuse me? Wait and see. All

right.

MR. SWEETAPPLE: Your Honor, just to give

Mr. McGrane some idea and to give the Court some

. idea, there were a number of experts called in the

trial before Judge Crow. And in fact, Mr. Stewart

24. testified as an expert and that expert testimony,

25 which the Court indicated in the rejecting

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Mr. Stewart's testimony and taking some of it, but

it's clear when you look at the underlying

allegations in this case that there have been

numerous experts that have testified. And there

will be testimony and some of the testimony is

going to deal with the fact that the very things

that Mr. McGrane is complaining are required by the

bar rules aren't required for these types of

representation.

And the bar is terribly confused because they

think these are contingency cases because it's an

insurance company. These are not contingency

cases, The bad faith cases are not even governed,

and that's one of the things the expert's going to

establish here, we believe.

THE COURT: Let's take up Mr. McGrane's

objection to the notice to take his deposition.

MR. SWEETAPPLE: Can I be heard first?

THE COURT: No, I'm going to let Mr. McGrane

argue his -- it's his motion for protective order.

MR. MCGRANE: Judge, they served a subpoena on

me and while it was a long preamble, not until you

get to Page 7 do they really set forth what they're

looking for.

And number one is -- First of all, I don't

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1 think he should be able to take my deposition to

2 begin with.

3 The whole thing goes to the fact that every

4 time Mr. Sweetapple opens his mouth, somehow I'm

being accused of wrongdoing. And the whole thrust

6 of this deposition is to, again, to show that I'm

7 part and parcel of some grand conspiracy controlled

B by Larry Stewart starting in 2004 and somehow he

9 convinced the Florida Bar to be a collection agency

against Judge Watson. And that somehow after she

11 got elected to become a sitting judge that he then

12 somehow convinced the JQC to become a collection

13 agent for the Stewart Law Firm. And that somehow I

14 guess I'm a pawn or had cozied up or am being

controlled by Larry Stewart. That's the whole

16 thrust of this. I don't care how you label it,

17 it's a personal affront to me.

18 So number one, any documents showing the date

19 you were officially retained to become Counsel of

record for the JQC. I think that is protected by

21 privilege.

22 Number two, any and all electronic

23 communications, correspondence or any other

24 communications as defined above between you and any

member, employee or representative of the JQC or

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1 the Florida Bar, or any, quote, interested person

2 including Larry Stewart, David Bianchi and William

3 Hearon from. January, 2012, until such time as you

4 were retained to appear as special Counsel in this

5 proceeding.

6 Again, if in fact any of those documents exist,

7 that predates the filing of the formal charges and

8 . would be protected by the privilege set forth in

9 the constitution.

10 Number three, any and all electronic

11 communications, correspondence or any other

12 communications as defined above between you and any

13 member, employee or representative of the Florida

14 Bar or any interested person including Larry

15 Stewart, David Bianchi and William Hearon from any

16 period from the notice of formal charges up until

17 the present time.

18 Judge, that invades my work product as I

19 represent on behalf of the JQC.

20 Now, if they want to serve subpoenas on Larry

21 Stewart, David Bianchi, William Hearon to get them,

22 and they already have, and they already have

23 everything in their possession, that's fine. But

24 it's broad in scope, it's protected, and like I

25 said, aside from the fact that I find it a personal

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affront with these allegations, privileged and they

are not entitled to it.

THE COURT: Response?

- MR. SWEETAPPLE: Yes, Your Honor. First of

· all, I'm somewhat surprised that Mr. McGrane is

' affronted. Article 5, Section 12A4 of the Florida

Constitution mandates that all proceedings by the

Commission are confidential until the filing of

formal charges. Not only is that in the

Constitution, it's in this Florida Judicial

Qualifications Annual Report from January, 2012

when Mr. McGrane was the Chair of the JQC.

Now, what I filed with you today was Laura

Watson's notice of filing documents for

consideration by the JQC. In it is an e-mail from

Mr. McGrane at 8:10 in the morning, Mr. McGrane

went to work rather early that morning and he

e-mailed Mr. Stewart on his iphone and pdf'd him

the notice of formal charges. And then he says:

Please do not forward to anyone until this

afternoon. I want to ensure it's on the Supreme

Court docket before you do.

Now, I have attached the notice of formal

charges that were filed by Mr. McGrane and they

were actually filed at 9:36 in the morning. So

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about an hour and a half before they were filed,

despite what the constitution requires, Mr. McGrane

sent his buddy a copy of the formal charges. Then

despite the fact that he's engaged in numerous

e-mails with Mr. Stewart, by Mr. Stewart's own

admission and production, and despite the fact that

Rule 12 clearly says that we were entitled to all

written statements of witnesses in the possession

of Counsel. Despite that, Mr. McGrane files

regarding written statements, transcripts of

testimony, he files on August 21st, 2013, the JQC

has no written statement of any of these

witnesses. And he's holding the two e-mails from

Mr. Stewart that I've attached to the request that

there be no destruction of electronic files.

So, with all due respect, you know, my -- all

the red flags are flying in my mind. I've been

trying cases for 33 years, that's enough to concern

me about whether or not I'm having compliance.

Then I hear he needs the evidence to prove case

against my client and he didn't have it at the

notice of formal -- at the investigative stage.

Then I look at e-mails from Mr. Stewart to him

talking about getting restitution, they're trying

to get restitution from Judge Watson. If he has -

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and I'm asking for periods of time before he was

even Special Counsel because I believe based on

· what I see here and what Mr. Stewart testified to,

there is a lot of communication between Mr. Stewart

and his partners and others, and Mr. McGrane has

responded to them. And if he wants to prepare a

privilege log, there certainly can be an in-camera

inspection.

But I cited to the Court also the recent case

In Re: Erickson, the 2010 case for the proposition

because it dovetails into the change in the rules

of judicial administration that allows complaints

to now be obtained. And what the Court said is the

confidentiality of 6B hearings is thus aimed at

protecting judges from unsubstantiated claims, not

meritorious claims that advance to a hearing

panel.

Then they went on to say: Accordingly we find

that the hearing panel was authorized to consider

the testimony of Judge Erickson that was presented

during the investigative proceeding before the

filing of the notice of formal charges.

So now the law allows the discovery of

complaints and statements that are made before the

filing. I want to know what these witnesses said

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to Mr. McGrane before he filed and leaked this

information to Mr. Stewart. And I want to know

what Mr. McGrane said back to Mr. Stewart and his

contemporaries. Because as far as I can tell,

Judge, this is just a recycled bar complaint where

the statute of limitations ran. And I want to know

why this is going on. It's unprecedented.

When she became a Judge she didn't agree to

subject herself to the rules regulating the bar and

be disciplined by the bar and then when the bar

doesn't do anything, and doesn't file formal

charges, to then have the JQC decide they're going

to be the Florida Bar. So there's lot of red flags

in this case, Judge, and I'm entitled to

investigate prosecutorial misconduct in light of

this record and I am entitled to get statements

under their own rules.

He's misrepresented the fact there are no

statements and I'm entitled to have this

information to move to disqualify Mr. McGrane, who

participated - he was a member of the JQC and the

Chair probably at the time these communications

took place - I want to find that out. He was part

of the investigatory procedure and now he's part of

the prosecutory procedure.

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There are a number of things that are going to

be relevant to Mr. McGrane's deposition and it

would deny my client her due process rights not to

have these documents produced. And if he has a

privilege he wants to assert, let him assert it and

then you decide whether or not we're playing this

game by the rules or not.

We got disconnected.

THE COURT: Okay. Let me take role again.

Ms. Ross took role. Let me make sure we still have

everyone. And I also ask -

MS. ROSS: I just called Cynthia and she said

she just heard you announcing yourself.

MR. SWEETAPPLE: Yes.

THE COURT: 'And Mr. Schneider and Kennerly, are

you still there?

MS. KENNERLY: Yes, sir

THE COURT: Mr. McGrane, are you still there?

MR. MCGRANE: Yes, sir.

THE COURT: Mr. Sweetapple, are you with Judge

Watson or is she separate?

MR. SWEETAPPLE: No, she's here.

THE COURT: All right. You were in the middle

of arguing the Erickson case when you cut off.

MR. SWEETAPPLE: Yes. What I was saying is

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that the Erickson case makes it clear that the

confidentiality is to protect the Judge from

unsubstantiated claims. They allowed the testimony

that took place before the hearing panel at the

investigative stage, specifically Judge Watson's

testimony -

MS, ROSS: Hello?

THE COURT: We lost him again. You're back.

MR. SWEETAPPLE: We could hear you, but you

couldn't hear us.

THE COURT: I don't know why yours is going

off. But go ahead, Mr. Sweetapple.

MR. SWEETAPPLE: Yes. I could hear you trying

to get me, or one of the staff attorneys trying to

get me.

Basically, Your Honor, what I was citing to the

Court in the Erickson case dealt with the fact that

the Supreme Court recognizes that confidentiality

of 6B hearings is aimed to protecting judges from

unsubstantiated claims. And the -- Am I still on?

THE COURT: Yes.

MR. SWEETAPPLE: And the testimony of Judge

Erickson was admitted even though it was from the

investigative proceeding. In this case, we're

entitled to all statements and those statements we

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believe were sent to Mr. McGrane before he became

Counsel. And even after he became Counsel, those

statements should have been provided to us and they

weren't. So, I'm entitled to take his deposition.

He can prepare a privilege log and then you can

review in-camera and determine what I'm entitled

to.

THE COURT:. All right. Mr. McGrane, response?

MR. MCGRANE: Well, I don't know why he needs

to take my deposition to file a Motion to Compel a

better response to my response concerning

statements. I don't know how an e-mail is

considered a statement. I think a statement is

pretty clearly a work of art that is used in the

legal profession. But if he's saying every

communication, well, yes, you know, he's got to

send me a request for production before he gets to

go and start just taking my deposition to ask

questions and I can respond accordingly.

And I can tell you right now, Judge, once

again, this whole thing is premised on me violating

the rules governing litigation and as a lawyer.

And, you know, here again, I take this rather

seriously. The Supreme Court takes such

allegations seriously.

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i

So I think before we just produce me for a

deposition, since Mr. Sweetapple really insists on

people complying with the rules, let's go ahead and

have him file an appropriate motion I can respond

tc that's directed to where he thinks I've

adequately responded to a request served on me by

Judge Watson before he was in the case and then we

can address it.

If, in fact, such documents exist, maybe I will

be required to do a privilege log. But I'm telling

you right now, Judge, it is absolutely

inappropriate for him, every time he opens his

mouth to accuse me of wrongdoing and then try and

say because of that he's entitled to take my

deposition.

THE COURT: You all are giving me quite a few

motions and -

MR, MCGRANE: Judge, one other thing I want to

point out. I don't think Mr. Sweetapple really

understands what the constitution says and what the

case says dealing with when the confidentiality is

waived and what it weighs up to. It deals with

proceedings before the JQC and a proceeding deals

with a 6B hearing for things such as this. That's

why this hearing goes on telephone, is published to

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the world so anyone can call in. The proceedings

are not confidential, but my work product is still

confidential,

THE COURT: All right. I am going to try to

get out an order covering these numerous motions.

I might be successful in getting it out in less

than a week or it might be sometime around December

30th. I certainly have it as a goal to be no later

than December 30th on all these various items,

With that, we'll go ahead and conclude the

hearing and I hope you all have good holidays.

MR. SWEETAPPLE: Thank you very much for

hearing us, Judge.

(The proceedings were concluded at 2:30 p.m.)

43

1 C E R T I F I C A T E

2

3

4 STATE OF FLORIDA )

5 COUNTY OF BROWARD )

6

7

8 I, TERRT T.. WPIGHT, Notary Public in and for

9 the State of Florida at Large, certify that I was

10 authorized to and did stenographically report the

11 foregoing procee