MOTION TO FILE REPLY AND REPLY CONCERNING PLAINTIFFS FIRST EXPEDITED MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND APPOINT A COMPUTER EXPERT AND MOTION TO SHORTEN RESPONSE TIME
Plaintiff, Larry Klayman hereby moves for leave to file this reply as set forth below on the grounds that Defendants Response to Plaintiffs Motion to Compel misstates facts and law with the effect of attempting to mislead this Court. Again, missing no opportunity to smear and defame Plaintiff, Defendants and their counsel mischaracterize the factual record and again maliciously impugn Plaintiffs reputation. First, not citing actual findings of the Magistrate in Plaintiffs custody case in Cleveland Ohio, which has given rise to on-going litigation against this Magistrate, who harbored an extra- judicial bias and prejudice against Plaintiff based in large part on his religious beliefs indeed several mocking statements were contained in his recommended decision Defendants instead dwell primarily on the false allegations of Klaymans estranged ex-wife. These false allegations, made only after Plaintiff was forced to file for custody of his children, and conveniently years after the alleged fact, were soundly rejected and dismissed by the Cleveland Department of Children and Families, the Cleveland District Attorney and were totally put to rest by virtue of a polygraph test which Plaintiff voluntarily took and handily passed. See Exhibits 1, 2, 3. To the Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 1 of 9 PageID 2547 2 contrary, Plaintiffs ex-wife refused to take a polygraph after she conjured up the false allegations which she then fed to the familys longstanding pediatrician, the likes of which regrettably are used frequently by sleazy divorce lawyers in custody cases. Indeed, even the magistrate never found that Plaintiff had sexually abused his children, since there was no evidence on the record to do so. He stated [h]is conduct may not have been sexual in the sense that he intended to or did derive any sexual pleasure from it or that he intended his children would. Instead, he found only that Plaintiff had acted in an inappropriate manner, a finding that was also wholly false. But Defendants make no mention of these undisputed facts because their continued aim is to totally destroy Plaintiff and prejudice this Court, as he is the lawyer or perceived counsel for persons which they loathe; Bradlee Dean and Sheriff Joe Arpaio, as plead in the Third Amended Complaint. Plaintiff is also a friend and conservative colleague of Congresswoman Michele Bachmann, who Defendants hate based on her alleged views on homosexuality and gay marriage. A book written by Defendant Avidor, but not produced in discovery despite a request to do so, smears not just Bachmann but also Plaintiff who he ties to Congresswoman Bachmann as a close friend, underscoring Defendants malice. As for The Florida Bar, Plaintiff agreed to a reprimand only to get the matter behind him, as he was going through a very difficult period financially and personally with the false allegations about his children. Indeed, the Consent Judgment shows that Plaintiff was not found to have acted dishonestly, only that he could not pay the agreed settlement amount timely due to his financial distress. The Consent Judgment contains a recitation of mitigating circumstances: 9.32(a) (absence of prior disciplinary record) Respondent has been continuously a member of The Florida Bar in good standing for nearly thirty-five (35) years.
Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 2 of 9 PageID 2548 3 9.32(c)(personal or emotional problems) Respondent maintains that since the time the Mediation Agreement was entered into he has sustained significant financial distress, which prevented him from making timely payments to Humm and from providing timely responses to The Florida Bar. Respondent further maintains that he agreed to submit Humms claim to mediation and agreed to the terms of the Mediation Agreement simply to save valuable time and resources for all concerned. Respondent had agreed to represent Humm in a criminal proceeding, but she subsequently decided to retain new counsel when the case was transferred from Miami to Orlando federal court. Respondent maintains that Humm was never entitled to any refund and further asserts that Humms subsequent counsel admitted as much in an e-mail he sent to Respondent, where he stated, [i]t is unlikely that (you) would want to refund a cent so please provide me with an explanation so that I may pass it along to Ms. Humm. Respondent also maintains that Humm had similarly asked her prior counsel for a refund and even requested that Respondent sue him, which Respondent refused to do. Respondent thus claims a pattern in Humms behavior toward counsel. Nevertheless, in an effort to promptly resolve the claim and to save valuable time and resources, Respondent ultimately agreed to the terms of the Mediation Agreement, as the mediator had urged.
With respect to his failure to provide timely responses to The Bar, Respondent submits that he did not timely receive correspondence from The Bar, as his address had changed and he inadvertently did not immediately change the address with The Florida Bar. As a result, Respondent claims he did not timely receive notice that the Grievance Committee had made a probable cause finding or that a formal complaint had been filed in this matter, and consequently, that he did not have a timely opportunity to argue against the probable cause finding or to resolve this matter prior to a formal complaint being filed. Respondent acknowledges that he should have provided his new address to The Bar, but inadvertently forgot to do so in time for the referenced correspondence to arrive timely.
9.32(g) (character or reputation) Respondent has been a respected member of The Bar for nearly thirty-five (35) years.
9.32(i) (remorse) Respondent is remorseful for his delay in satisfying the terms of the Mediation Agreement which ultimately led to the filing of a formal complaint in this matter. Moreover, Respondent has now fully satisfied his outstanding obligation to Humm and made such payment without conditioning it on any consent judgment.
As set forth in Exhibit 4, Plaintiff has continuously been a member in good standing of The Florida Bar for thirty-seven (37) years. And, he has had a distinguished career of legal and political activism, running for the U.S. Senate in this state in 2004. Exhibit 5 is a recent Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 3 of 9 PageID 2549 4 Washington Post Magazine cover story about him, an eight (8) page expose and pictorial which hardly depicts someone who, as Defendants would like to portray, is libel proof in their equally vile motion for summary judgment, filed just two days ago. See also Exhibit 6, the front and back of Plaintiffs book with similarly positive remarks on Plaintiffs reputation. Thus, not only do the Defendants misstate facts to again smear Plaintiff, these false facts are irrelevant to Plaintiffs motion to compel, and only intended to prejudice the court against Plaintiff. The smear job by Defendants and their pliant counsel rises to such a level, given its blatant misstatement of facts, to amount to multiple violations of the Florida Code of Professional Responsibility, and not just the laws of defamation. See Rules 4-4.1(a) 4-4.4, 4- 4.8(c) and 4-4.8(d). Notwithstanding the factual misstatements, the thrust of Plaintiffs Motion to Compel is that Defendants must produce documents that are not just relevant, but which may lead to relevant evidence. This is Evidence 101 for any law student. Indeed, the scope of discovery is broad and it is not for Defendants and their counsel to make evidentiary rulings on what would ultimately be admissible at trial. Thus, their disingenuous argument that documents which show actual malice must make specific reference to the three defamatory articles at issue is absurd. As just one example, suppose an unproduced document makes reference to or characterizes Plaintiff as a criminal, but does not make reference to the defamatory statements that Klayman criminally sexually abused his children and took, that is stole, money from a client without doing any work. That the document does not make these specific references to the defamatory articles and statements 1 at issue does not mean that the document referring to Plaintiff as a criminal which
1 For examples of some of the alleged defamatory statements plead, Turns out, gays arent the only ones capable of disturbing, criminal sexual behavior apparently even conservative straight guys tight with Bradlee Dean can turn out to be total creeps and Klaymans been in trouble Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 4 of 9 PageID 2550 5 he is not is not discoverable to show actual malice. It would bear on Defendants state of mind in maliciously defaming Plaintiff. Courts throughout Florida, the Eleventh Circuit, the Supreme Court and throughout the land have uniformly ruled that discovery is broad and that actual malice in defamation cases can be proved by a pattern of defamatory conduct and by direct and indirect (circumstantial) evidence. That is why Defendants futile attempts to appoint themselves judge or magistrate-judge and in effect arrogantly make evidentiary rulings for themselves concerning what must be produced, is simply a subterfuge intended to obstruct discovery and deny due process to Plaintiff. That they would go to such lengths to avoid producing documents raises a strong inference, along with the established fact that Defendants have already been forced to admit deleting emails and removing blog posts from public view, speaks for itself. Defendants are simply deleting and hiding relevant documents and documents which may lead to relevant evidence. For instance, in an action for libel against a newspaper finding that discovery is broad, the court found that the publication of similar libel on even other persons, not joined as defendants, may be discoverable as relevant evidence. The showing of a reckless indifference to the rights and reputations of others may furnish a basis for an inference the publication in questions was malicious. Gleichenhaus v. Carlyle, 597 P. 2d 611, 170 (Kan. 1979). In Gleichenhaus, as in this case, it was necessary for the appellant, a public figure, to show actual malice or reckless disregard for falsity in public comments before the appellee could be found liable for defamation. Thus, the appellees malicious intent was central issue to the case. The requested information was clearly relevant to the primary issue and could have led to other evidence. The answers to the interrogatories would have been competent evidence at trial to establish a frame of mind on the part of the appellee
with a Bar association before, as he was publicly reprimanded by the Florida Bar in 2011 for taking money from a client, and never doing any work. Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 5 of 9 PageID 2551 6 of malice toward the appellant. Therefore, in an action for libel against a newspaper, the publication of similar libels on other persons may be discoverable as relevant evidence. The showing of a reckless indifference to the rights and reputations of others may furnish a basis for an inference the publication in controversy was malicious.
Id. at 170-171. Accordingly, the trial court erred in Gleichenhaus in limiting the appellants discovery and the decision was reversed on appeal. See also Amente v. Newman, 653 So.2d 1030 (Fla. 1995) (the concept of relevancy is broader in discovery context than in trial context, and party may be permitted to discover relevant evidence that would be inadmissible at trial if it may lead to discovery of relevant evidence); Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L.Ed.2d 115 (1979) (holding that during discovery a public official could ask a defendant journalist about his or her state of mind when publishing the alleged defamatory falsehood to seek to establish the actual malice of the defendant). In Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758 (Ken. 1990), the court held that relevant evidence pertains even to a subjective determination of the appellees state of mind. This Court looks to the finding in Herbert v. Lando, 441 U.S. 153 (1979) -- which Plaintiff cited in its original Motion to Compel -- which states proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred. Lando, 441 U.S. at 160. . . . [T]he thoughts and editorial processes of the alleged defamer would be open to examination. Id. See also NCAA v. Hornung, Ky., 754 S.W.2d 855 (1988) (holding that . . . malice may be inferred from a lack of probable cause in a malicious prosecution action.). In Anderson v. Augusta Chronicle, 365 S.C. 589 (S.C 2005), a public figure plaintiff brought a libel case against a newspaper. There, the Court recognized that a plaintiff will rarely find success in proving awareness that a statement is false from the mouth of a defendant himself. Id. at 596 Therefore, any direct or indirect evidence relevant to the defendants state of Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 6 of 9 PageID 2552 7 mind is admissible to prove actual malice. A plaintiff may present competent circumstantial evidence of bad faith to establish actual malice despite a defendants contention that the publication was made with a belief the statements were true. Id. at 596. Furthermore, a subjective awareness of probable falsity can be shown if there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). The court in Anderson held that circumstantial evidence that a newspaper recklessly disregarded truth created jury question as to actual malice. Anderson, 365 S.C. at 688. In sum, it is not for Defendants themselves to decide which documents are relevant or which may lead to relevant evidence during discovery. It is not for Defendants themselves to rewrite and misstate the law of defamation and falsely put forth argument that maintains that Plaintiff cannot prove actual malice unless the document refers specifically to the alleged defamatory articles and statements. The law is clear and Defendants, who have already been caught deleting emails and removing blog postings from public access not coincidentally just after they were served with the intitial complaint, must come clean and be ordered to produce the requested documents. They are not the court and their arrogant attempt to hide potential evidence, but rather try to smear Plaintiff instead in court pleadings, cannot be countenanced. Further, under these circumstances, the court should respectfully appoint a computer expert to inspect Defendants computers, as there has been a showing of attempts to destroy and hide discoverable documents and Defendants can no longer be trusted. For all of these compelling reasons, Plaintiffs Motion to Compel must respectfully be granted. After consulting with Defendants counsel, they do not consent to this motion.
Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 7 of 9 PageID 2553 8 Dated: October 22, 2014 Respectfully Submitted,
/s/ Larry Klayman Larry Klayman, Esq. Florida Bar No. 246220 2775 NW 49 th Ave., Suite 205-346 Ocala, FL 34483 (310) 595-0800 Email: leklayman@gmail.com
Plaintiff Pro Se Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 8 of 9 PageID 2554 9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd day of October, 2014 a true and correct copy of the foregoing Motion to File Reply and Reply Concerning Plaintiffs First Expedited Motion to Compel the Production of Documents (Case No. 5:13-cv-00143) was submitted electronically to the U.S. District Court for the Middle District of Florida and served via CM/ECF upon the following:
Sanford Lewis Bohrer Holland & Knight, LLP Suite 3000 701 Brickell Ave Miami, FL 33131 305/374-8500 Fax: 305/789-7799 Email: sbohrer@hklaw.com
Scott D. Ponce Holland & Knight, LLP Suite 3000 701 Brickell Ave Miami, FL 33131 305/789-7575 Email: sponce@hklaw.com
Attorneys for Defendants
/s/ Larry Klayman Larry Klayman, Esq.
Case 5:13-cv-00143-ACC-PRL Document 99 Filed 10/22/14 Page 9 of 9 PageID 2555