Filing # 50949542 E-Filed 01/09/2017 05:03:15 PM

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO.: 2011-CA-7139
Civil Division 39
ALLISON MATHIS,
Plaintiff,
vs.
CHRISTOPHER W. BOSH,
Defendant.
___________________________________/
ABRIDGED BRIEF OF DEFENDANT CHRISTOPHER W. BOSH CONTESTING
THE DISCOVERABILITY AND/OR ADMISSIBILITY AT TRIAL OF A
CONFIDENTIAL SETTLEMENT AGREEMENT REACHED
IN CALIFORNIA LITIGATION WITH NON-PARTY, SHED MEDIA
Defendant, Christopher W. Bosh (Defendant), by and through undersigned counsel, and
pursuant to the Courts directive of January 5, 2017, hereby submits this Abridged Brief setting
out the legal arguments supporting his position that a confidential settlement agreement he entered
into with non-party, Shed Media (the Confidential Settlement Agreement), is not discoverable
and/or not admissible at the upcoming trial in this Action, that the law of the case has been
established, and should not be revisited as Plaintiff again requests.
I.
A.

FACTUAL BACKGROUND1

General Background
1.

Defendant is a professional athlete who, at all times relevant to this Action, played

basketball for the National Basketball Association (the NBA) team - the Miami Heat.
2.

Plaintiff and Defendant had a personal relationship many years ago, from which

In an effort to keep this filing as brief as possible, Defendant will bring to the hearing a copy of the exhibits
referenced in the section titled Factual Background.

-1GORDON & REES SCULLY MANSUKHANI

100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

their minor child was born. Plaintiffs and Defendants relationship ended on bad terms, leading
to acrimonious legal battles over child support and child custody issues. These issues eventually
were resolved and are subject to a settlement agreement.
3.

In early March of 2011, Defendant learned that Plaintiff was a potential cast

member of the reality television show titled Basketball Wives (the Basketball Wives Show)
and produced by Viacom, Inc./Shed Media (Shed Media). The show featured conversations
among and aspects of the lives of women who had romantic relationships with NBA players and
provided these women with a platform to use, with or without permission, the names, images,
private information and personal brands of the NBA players they once knew or still knew, for their
own commercial gain as paid performers and for the entertainment of viewers.
4.

On March 22, 2011, Plaintiff entered into a terminable at-will Performer

Agreement with Shed Media to perform in the Basketball Wives Show.

5.

In late March of 2011, Plaintiff performed in raw footage filmed for potential airing

in Episode 1 of Season 3 of the Basketball Wives Show and was compensated by Shed Media for
her performance.
6.

On April 29, 2011, Defendant (through counsel) forewarned Shed Media that

unless Shed Media confirmed in writing that Plaintiff would not be appearing on the Basketball
Wives Show, Defendant would file an action in California against Shed Media and Plaintiff (the
California Litigation). [See Exhibit 1, copy of Email from Defendants counsel to Shed Medias
counsel dated 04-29-2011].
7.

On May 2, 2012, having heard nothing back from Shed Media, Defendant filed a

complaint in the California Litigation against Shed Media and Plaintiff to preclude, inter alia, the
infringement and dilution of Defendants trademarks, the dissemination of false advertising in
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

commerce, the misappropriation of Defendants name and/or likeness, the violation of

Defendants life rights, the intrusion into Defendants private affairs, and the public disclosure of
Defendants private facts by Plaintiff, through her participation in the Basketball Wives Show.
[See Exhibit 1, copy of Email from Defendants counsel to Shed Medias counsel dated 04-292011].
8.

Thereafter, Shed Media confirmed to Defendant that Plaintiff would not be

participating in the Basketball Wives Show. Defendant then felt comfortable reaching and did
reach an amicable resolution of the California Litigation with Shed Media. [See Exhibit 2,
Defendants Verified Answers to Plaintiffs Second Set of Interrogatories].
9.

On May 22, 2011, Defendant and Shed Media entered into a Confidential

Settlement Agreement and subsequently filed a stipulation for dismissal of the California
Litigation as to Shed Media.
B.

Plaintiffs Repeated Attempts to Gain Discoverability and Admissibility at Trial of

the Confidential Settlement Agreement are Unavailing
10.

On November 14, 2012, Plaintiff propounded upon Defendant a request for

production seeking a copy of the Confidential Settlement Agreement. Defendant objected to the
request because it sought confidential settlement information between Defendant and non-party to
this litigation, Shed Media. [See Composite Exhibit 3, Plaintiffs Request for Production and
Defendants Response thereto].
11.

On October 21, 2013, when Defendant was deposed for the first time in this Action,

he could not answer the questions addressing the Confidential Settlement Agreement executed on
May 22, 2011 because he did not remember anything about this document. [See Exhibit 4,
transcript of Defendants deposition taken on 10-21-2013, p. 60, ll. 19-25; p. 61, ll. 1-4].
12.

On November 13, 2013, Plaintiff first moved to compel the production of the
-3GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

Confidential Settlement Agreement. [See Exhibit 5, Plaintiffs Motion to Compel dated 11-132013].
13.

In Plaintiffs Motion to Compel the production of the Confidential Settlement

Agreement dated November 13, 2013, Plaintiff argued that the Confidential Settlement Agreement
is of critical importance in this litigation because it represents the method by which Defendant
accomplished the tortious interference. [See Exhibit 5, Plaintiffs Motion to Compel dated 1113-2013, p. 11].
14.

At the hearing on Plaintiffs Motion to Compel the production of the Confidential

Settlement Agreement (held on November 19, 2013) Plaintiff argued that Defendant should
produce the Confidential Settlement Agreement because the Agreement caused [Plaintiff] to lose
her job. [See Exhibit 6, Transcript of Hearing held on 11-19-2013, p. 10, ll. 3-4].
15.

On April 3, 2014, the Court entered an Agreed Order reserving its ruling on

Plaintiffs Motion to Compel the production of the Confidential Settlement Agreement pending an
evidentiary hearing, at which counsel for Defendant would bring to said hearing a copy of the
agreement, under seal, for a possible in-camera inspection. [See Exhibit 7, Agreed Order dated
04-03-2014, 3]. Over two years passed before counsel for Plaintiff contacted counsel for
Defendant for this purpose.
16.

On April 21, 2016, in a good faith effort to show counsel for Plaintiff the reasons

behind Defendants position that the Confidential Settlement Agreement is not discoverable in this
Action, counsel for Defendant, with the approval of Shed Media, provided counsel for Plaintiff an
attorneys-eyes-only copy of the agreement.
17.

On June 27, 2016, Plaintiff propounded upon Defendant a request for production

seeking a copy of all settlement-related communications between Defendant and Shed Media
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

which led to the Confidential Settlement Agreement.

Defendant served a response raising

objections to the requested production because it sought confidential settlement-related

information between Defendant and non-party, Shed Media, and noting that he already had
produced all non-settlement-related communications he had with Shed Media.
18.

On July 5, 2015, given Plaintiffs continued disagreement with Defendants

position that the Confidential Settlement Agreement is not discoverable in this Action, counsel for
Plaintiff and for Defendant agreed to schedule an evidentiary hearing on the Courts pending
ruling on the discoverability of the Confidential Settlement Agreement pursuant to the directives
set out in the Agreed Order dated April 3, 2014. [See Composite Exhibit 8, Correspondence to
Judge John M. Kest (Judge Kest) dated 07-05-2016 and Revised Notice of Hearing].
19.

On August 22, 2016, Plaintiff filed a Memorandum of Points and Authorities

regarding the discoverability of the Confidential Settlement Agreement. [See Exhibit 9, Plaintiffs
Memorandum of Points and Authorities, dated 08-22-2016].
20.

In her Memorandum of Points and Authorities, Plaintiff argued that the

Confidential Settlement Agreement should be produced because it almost certainly had some
impact on Shed Medias decision to terminate Plaintiff from participation in the reality television
show produced by Shed Media and because there is nothing in it that prevents disclosure in the
process of discovery in this Action. [See Exhibit 9, Plaintiffs Memorandum of Points and
Authorities, p. 15].
21.

On August 25, 2016, the Court held an evidentiary hearing on the discoverability of

the Confidential Settlement Agreement pursuant to the directives set out in the Agreed Order dated
April 3, 2014.
22.

At the hearing, Plaintiff made the following arguments to compel the production of
-5GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

the Confidential Settlement Agreement:

The confidentiality provision in the Confidential Settlement Agreement allows for

the discovery of the agreement through any discovery procedure [without a
court].

The Confidential Settlement Agreement proves the restrictions that were placed on
Shed Media by [Defendant]. It severely imposes restrictions on how [Plaintiff]
can perform and in any number it basically requires that there be no further
performances. It is the embodiment of what [Shed Media] was required to do.

The Confidential Settlement Agreement put so much restriction on [Plaintiffs]

ability to earn a living, that it is the proof in this case of why [Plaintiff] is seeking
damages.

The Confidential Settlement Agreement shows the manner in which [Defendants

interference] was done and will lead to additional areas of inquiry from Shed
Media.

[Exhibit 10, Transcript of Hearing held on 08-25-2016; p. 5, ll. 21-25; p. 6, ll. 1-5; p. 7, ll. 12-16,
24-25; p. 8, ll. 1-9, 19-20; p. 9, ll. 20-23; p. 11, l. 25; p. 12, l. 1; p. 14, ll. 12-14].
23.

In response to Plaintiffs arguments, the Court noted during the hearing, inter alia,

If Plaintiff needs to find out why Shed Media made the decision to restrict her
participation in the Basketball Wives Show, she should depose Shed Media.

The Confidential Settlement Agreement is an agreement between [Defendant] and

Shed Media. Thats all it is. . . . things may be true, may not be true, but they are
reaching a settlement agreement amongst the parties. Theyre not always accurate.
Sometimes people settle for different reasons purely economic reasons -- . . .
what is it specifically about this agreement that [Plaintiff] cannot get from
testimony, that we have to invade the confidentiality of an agreement between a
nonparty and a party.

It was Shed Medias decision that restricted Plaintiffs participation in the

Basketball Wives Show not the Confidential Settlement Agreement.

Best evidence of what Shed [Media] did or did not do come from Shed [Media],
not from a written document. The best evidence of what [Defendant] told them to
do or didnt tell to do would come from [Defendant].

that:

[Exhibit 10, Transcript of Hearing held on 08-25-2016; p. 6, ll. 6-25; p. 8; p. 9, ll. 1-5; p. 10, ll. 4-6GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

25; p. 11, ll. 1-2; p. 14, ll. 21-25].

24.

At the hearing, Defendant and Shed Media each made several arguments against

the production of the Confidential Settlement Agreement. [Exhibit 10, Transcript of Hearing held
on 08-25-2016; pp. 12-14].
25.

At the end of the hearing on the discoverability of the Confidential Settlement

Agreement, the Court made the following rulings:

. . . The Court has some concerns about invading the confidentiality of an
agreement that was created in another lawsuit in another state between parties one
of which is not part of this case. The expectation of the agreement was
confidentiality.
Clearly, one of the parties to this agreement is not a party to this case, and
that would have to be honored. But one of the parties in this case is not bound by
that confidentiality, and the Court has no comfort with that party --- would keep it
confidential. I have to find that a burden that is great enough for me to invade that
confidentiality, and I dont see that presented at this time. So Im going to deny the
motion to produce at this time without prejudice. It may be, as other discovery
goes on, that she may be able to develop a foundation which would then cause the
Court to revisit its ruling and possibly disclose parts of this matter.
[Exhibit 10, Transcript of Hearing held on 08-25-2016; p. 15, ll. 3-20].
26.

The corresponding Order issued in connection with the hearing held on

August 25, 2016 regarding the discoverability of the Confidential Settlement Agreement
states as follows:
Plaintiffs Motion to Compel the production of the Confidential Settlement
Agreement executed between Defendant and Shed Media to resolve the California
Lawsuit is denied without prejudice. Plaintiff was not a party to the Confidential
Settlement Agreement. Plaintiff, as the party seeking the discovery, did not meet
the burden necessary for the Court to invade the confidentiality of the Confidential
Settlement Agreement executed between Defendant and non- party, Shed Media, to
resolve the California Lawsuit.
[Exhibit 11, Omnibus Order on Hearings held on 08-25-2016 and 11-15-2016, 1].
27.

Following the hearing of August 25, 2016, Plaintiff propounded upon Defendant
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

interrogatories asking Defendant to describe all communications he had with Shed Media relating
to the California Litigation and/or Plaintiffs participation in the Basketball Wives Show (even
though Plaintiff previously had propounded discovery seeking the production of these same
communications). [Exhibit 12, Plaintiffs Second Set of Interrogatories, dated 10-19-2016].
28.

On November 15, 2016, the Court held a hearing and denied, without prejudice,

Plaintiffs Motion to Compel better responses to Plaintiffs request for production seeking all
settlement-related communications between Defendant and Shed Media which led to the
Confidential Settlement Agreement. [Exhibit 11, Omnibus Order on Hearings held on 08-25-2016
and 11-15-2016, 2].
29.

The corresponding Order issued in connection with the hearing held on November

15, 2016 regarding the non-discoverability of the settlement-related communications between

Defendant and Shed Media which led to the Confidential Settlement Agreement states as follows:
Plaintiffs Motion to Compel the production of the settlement-related
communications between Defendant and non-party, Shed Media, effected through
their respective counsel, which led to the Confidential Settlement Agreement
between Defendant and Shed Media to resolve the California Lawsuit is denied
without prejudice.
[Exhibit 11, Omnibus Order on Hearings held on 08-25-2016 and 11-15-2016, 2].
30.

On November 23, 2016, even though Plaintiffs latest interrogatories were

duplicative of prior discovery seeking the production of settlement-related communications

between Defendant and Shed Media (which this Court previously held were not discoverable),
Defendant served his objections to the extent the interrogatories were duplicative and sought
confidential settlement-related communications. Subject to and without waiving his objections,
Defendant stated therein that, because Plaintiff was not going to be participating in the Basketball
Wives Show, Defendant felt comfortable reaching an amicable resolution of his dispute with Shed
-8GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

Media which led to the execution of the Confidential Settlement Agreement. [Exhibit 13,
Defendants Objections and Answers to Plaintiffs interrogatories].
31.

On December 1, 2016, Plaintiff filed a Motion to Compel better answers from

Defendant to her latest interrogatories seeking a description of the settlement-related

communications between Defendant and Shed Media and a copy of the Confidential Settlement
Agreement.

[Exhibit 14, Plaintiffs Motion to Compel Better Answers and a Copy of the

Confidential Settlement Agreement].

32.

In her Motion to Compel regarding the interrogatories seeking a description of the

settlement-related communications between Defendant and Shed Media and a copy of the
Confidential Settlement Agreement, Plaintiff argued, inter alia, that the Confidential Settlement
Agreement should be produced because the agreement quite plainly resulted in the termination of
Plaintiffs contractual relationship with Shed Media. Plaintiff also argued therein that, [s]ince
Defendant has testified that he knows nothing of either the California litigation or the
circumstances of how that matter was resolved, the only way to discover why Plaintiffs
relationship with Shed Media was terminated is to compel responses to the discovery in question
as well as require Defendant to produce the Settlement Agreement and allow unfettered access to
and use of the Settlement Agreement in this matter. [Exhibit 14, Plaintiffs Motion to Compel
dated 12-01-2016, p. 9].
33.

On December 19, 2016, the Court held a hearing on Plaintiffs Motion to Compel

regarding the interrogatories seeking a description of the settlement-related communications

between Defendant and Shed Media and a copy of the Confidential Settlement Agreement.
34.

As of the hearing date of December 19, 2016, other than Plaintiffs duplicative

interrogatories, nothing had happened by way of discovery suggesting in any way that Plaintiff
-9GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

had developed a foundation which would cause the Court to revisit its rulings of August 25, 2016
denying Plaintiffs Motion to Compel the production of the Confidential Settlement Agreement
(on the contrary, the Court also had denied Plaintiffs Motion to Compel the production of the
settlement-related communications between Defendant and Shed Media which led to the
Confidential Settlement).
35.

During the December 19, 2016 hearing, counsel for Plaintiff moved ore tenus for an

in-camera inspection of the Confidential Settlement Agreement - which the Court granted, as
formalized in an order dated December 28, 2016. The Court reserved ruling on Plaintiffs Motion
to Compel regarding the interrogatories seeking a description of the settlement-related
communications between Defendant and Shed Media and a copy of the Confidential Settlement
Agreement until after the impending in-camera inspection of the Settlement Agreement. [Exhibit
15, Order on Plaintiffs Motion to Compel, dated 12-28-2016].
36.

As of the submission of this Brief, nothing further has happened by way of

discovery or otherwise, to cause the Court to revisit its rulings of August 25, 2016 denying
Plaintiffs Motion to Compel the production of the Confidential Settlement Agreement, or any
other relevant rulings.
37.

The only source of competent evidence as to why Shed Media terminated its

contractual relationship with Plaintiff is Shed Media. Plaintiff has had years to seek this
information from Shed Media, but she never did.

There is nothing in the Settlement

Confidential Agreement supporting Plaintiffs allegation that Defendants interference

caused Shed Media to terminate its business or contractual relationship with Plaintiff.
38.

Pursuant to Florida law, it would be improper for Plaintiff to use any part of the

Confidential Settlement Agreement as evidence at the trial of this Action because its use is
-10GORDON & REES SCULLY MANSUKHANI
100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

prohibited by Florida Statutes 90.403 and 90.408. It should not be produced or used at trial.
MEMORANDUM OF LAW
I.

The In-Camera Inspection of the Confidential Settlement Agreement will Confirm

that Judge Kests Prior Discovery Order Finding that Plaintiff Failed to Meet the
Burden Necessary for the Court to Invade the Confidentiality of the Agreement is the
Law of the Case and Should Not be Disturbed.
A trial court has broad discretion in overseeing discovery, and in protecting the parties

that come before it. Rojas v. Ryder Truck Rental, Inc., 625 So.2d 106, 107 (Fla. 3d DCA 1993).
Discovery orders will only be overturned where an abuse of discretion is shown. See National
Sec. Fire & Cas. Co. v. Dunn, 751 So.2d 777, 778 (Fla. 5th DCA 2000). It is within the trial
courts discretion to determine matters relating to discovery, and such orders reviewed pursuant to
a petition for writ of certiorari will not be overturned absent a departure from the essential
requirements of law. See Scott v. Nelson, 697 So.2d 1300, 1301 (Fla. 1st DCA 1997).
In Florida, there is a strong public policy favoring settlement of disputed claims and that
same policy dictates that confidentiality agreements not be regarded lightly. See Scott v. Nelson,
697 So.2d at 1301. However, a party cannot use a confidentiality agreement within a settlement
agreement to adversely interfere with the ability of nonparties to pursue discovery in support of
their case. See Nestor v. Posner-Gerstenhaber, 857 So.2d 953, 955 (Fla. 3d DCA 2003); see also
Scott v. Nelson, 697 So.2d at 1301 (confidentiality agreements which suppress evidence violate
the greater public policy); Smith v. TIB Bank of the Keys, 687 So.2d 895, 896-97 (Fla. 3 d DCA
1997) (thus, while confidentiality agreements are necessary in some instances, to facilitate
settlement, they may not subsequently be employed by a litigant to obscure issues or otherwise
thwart an opponents discovery.).
Here, as set for above, Judge Kest has already ruled that Plaintiff failed to meet the burden
necessary for the Court to invade the Confidentiality of the Confidential Settlement Agreement
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

executed between Defendant and, non-party, Shed Media, to resolve the California Litigation.
Undeterred, on December 19, 2016, making the same arguments, Plaintiff again moved to compel
the production of the Confidential Settlement Agreement. Given that the same arguments were
not getting any traction with Judge Kest, counsel for Plaintiff then moved ore tenus for an incamera inspection of the Confidential Settlement Agreement which Judge Kest granted in light
of an impending judicial rotation.
As of the submission of this Brief, nothing has happened by way of discovery in the Action
suggesting in any way that Plaintiff has developed a foundation which would cause the Court to
reverse the consistent rulings to date denying the production of the Confidential Settlement
Agreement or its use at trial.
As the Courts in-camera inspection of the Confidential Settlement Agreement will show,
Shed Medias reasons for terminating its at-will contract with Plaintiff are not reflected anywhere
in the agreement. Plaintiff should have deposed Shed Media if she wanted to find out whether
Defendants interference caused Shed Media to terminate its contractual relationship with
Plaintiff, as Judge Kest advised her to do. Defendant testified back in 2013 that he could not
remember anything about the Confidential Settlement Agreement; only Shed Media can say why it
terminated its contractual relationship with Plaintiff.

Plaintiff has had years to seek this

information from Shed Media, but she never did.

Based on the foregoing, Defendant respectfully requests that, following the in-camera
inspection of the Confidential Settlement Agreement, the Court decline to vacate or otherwise
disturb Judge Kests prior ruling denying Plaintiffs Motion to Compel the production of the
agreement in this Action.

-12GORDON & REES SCULLY MANSUKHANI

100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

II.

Even if the Court Were to Invade the Confidentiality of the Settlement Agreement,
the Settlement Agreement Will Still be Inadmissible at Trial Under Florida Statute
90.408.
No matter how Plaintiff tries to justify her appetite for the unrestricted use of the

Confidential Settlement Agreement in this Action, her own words show that her intended use of
the agreement at the trial of this Action will be to prove that Defendant caused Shed Media to
terminate its business and contractual relationship with Plaintiff and is liable to Plaintiff for doing
so. Specifically, as early as November of 2013, Plaintiff argued to this Court that the Confidential
Settlement Agreement is of critical importance in this litigation because it represents the method
by which Defendant accomplished the tortious interference and because the Agreement caused
[Plaintiff] to lose her job. Then in August of 2016, Plaintiff argued to this Court that the
Confidential Settlement Agreement should be produced because it almost certainly had some
impact on Shed Medias decision to terminate Plaintiff from participation in the reality television
show produced by Shed Media and because it is the proof in this case of why [Plaintiff] is
seeking damages.

In December of 2016, Plaintiff argued that the Confidential Settlement

Agreement should be produced because the agreement quite plainly resulted in the termination of
Plaintiffs contractual relationship with Shed Media.

Plaintiff cannot infer proof of a core

element of her claim through the document in dispute.

Given Plaintiffs intended use of the Confidential Settlement Agreement at the trial to
prove Defendants liability, and even assuming arguendo that this Court were to invade the
confidentiality of the agreement, the Confidential Settlement Agreement is still not discoverable
because both the Confidential Settlement Agreement and the settlement-related communications
between Defendant and Shed Media which led to the agreement will be inadmissible at the trial of
this Action under Florida Statute 90.408. Florida Statute 90.408 provides that evidence of an
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

offer to compromise a disputed claim, as well as any relevant conduct or statements made in
negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for
the claim or its value. See Fla. Stat. 90.408; see also Saleeby v. Rocky Elson Constr., Inc., 3
So.3d 1078 (Fla. 2009) (The meaning of Fla. Stat. 90.408 is clear. No evidence of settlement is
admissible at trial on the issue of liability); see also Rubrecht v. Cone Distributing, Inc., 95 So.3d
950 (Fla. 5th DCA 2012 (applying Fla. Stat. 90.408 to an offer of settlement letter from another
related case); Charles B. Pitts Real Estate, Inc. v. Hater, 602 So.2d 961 (Fla. 2d DCA 1992)
(applying Fla. Stat. 90.408 to a settlement of a closely related issue in an earlier case).
Based on the foregoing, Defendant respectfully requests that, following the in-camera
inspection of the Confidential Settlement Agreement, the Court decline to override Judge Kests
prior ruling denying Plaintiffs Motion to Compel the production of the agreement in this Action
pursuant to Florida Statute 90.408.
III.

Even If The Court Were to Invade the Confidentiality of the Settlement Agreement,
the Settlement Agreement will Still be Inadmissible at Trial Under Florida Statute
90.403.
Pursuant to Florida Statute 90.403, relevant evidence is inadmissible if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence. See Fla. Stat. 90.403.
Florida courts have applied Florida Statute 90.403 in cases where the potential prejudice of
introducing settlement agreement arising from a related civil litigation outweighed the probative
value of the admission of the agreements. See State v. Aylesworth, 666 So.2d 181 (Fla. 2d 1995);
see also Charles B. Pitts Real Estate, Inc. v. Hater, 602 So.2d at 963.
Here, as discussed above, Plaintiff failed to show that the Confidential Settlement
Agreement has any probative regarding Plaintiffs Interference Claims against Defendant because
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100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

it does not establish any element of Plaintiffs claims. That said, even if Plaintiff is able to show
that the agreement has some probative value, such probative value would be outweighed by the
potential prejudice (and/or confusion) of admitting the Confidential Settlement Agreement at the
trial in this Action. The erroneous implication that Defendant is responsible for Shed Media
having decided to conclude its relationship with Plaintiff would cause irreparable harm by
imputing to Defendant all of Shed Medias actions as might occur in a strict liability cause of
action, which this is not. The agreement is indisputably not probative of Defendants liability, as
noted by Judge Kest:
The Confidential Settlement Agreement is an agreement between [Defendant] and
Shed Media. Thats all it is. . . . things may be true, may not be true, but they are
reaching a settlement agreement amongst the parties. Theyre not always accurate.
Sometimes people settle for different reasons purely economic reasons -- . . .
what is it specifically about this agreement that [Plaintiff] cannot get from
testimony, that we have to invade the confidentiality of an agreement between a
nonparty and a party.
Based on the foregoing, Defendant respectfully requests that, following the in-camera
inspection of the Confidential Settlement Agreement, the Court upholds Judge Kests prior ruling
denying Plaintiffs Motion to Compel the production of the agreement in this Action pursuant to
Florida Statute 90.403, and Florida Statute 90.408, and further, confirm that it is not
admissible in this case for the reasons outlined above.

Because this matter is set for trial

commencing Tuesday, January 17, 2017, any contrary ruling would irreparably prejudice the
Defendant, inject speculation and impute responsibility to him for Shed Medias decisions that he
does not bear and cannot support Plaintiffs claims as matters of law and evidence.

-15GORDON & REES SCULLY MANSUKHANI

100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300

Respectfully submitted this January 9, 2017.

s/ Robin Taylor Symons
Robin Taylor Symons
Rsymons@gordonrees.com
Florida Bar No. 356832
Jacqueline M. De Leon
Jmdeleon@gordonrees.com
Florida Bar No. 115576
GORDON & REES
SCULLY MANSUKHANI
100 SE Second Street, Suite 3900
Miami, Florida 33131
Telephone: (305) 428-5300
Counsel for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 9, 2017, I electronically filed the foregoing
document with the Clerk of the Court using the Florida Courts eFiling Portal, which will send a
Notices of Electronic Filing to all counsel listed below.
s/ Robin Taylor Symons
Victor L. Chapman, Esq.
Barrett, Chapman & Ruta, P.A.
18 Wall Street
Orlando, FL 32801
Email: victorservice@bcrlaw.net; victor@bcrlaw.net; vicki@bcrlaw.net
Counsel for Plaintiff
Jane E. Carey, Esq.
Jane E. Carey, P.A.
905 West Colonial Drive
Orlando, Florida 32804
Email: jane.e.carey@gmail.com; hhmorall@janeecarey.com
Counsel for Plaintiff

1071045/31058928v.1

-16GORDON & REES SCULLY MANSUKHANI

100 SE Second Street, Suite 3900, Miami, FL 33131 Telephone: 305.428.5300