Beruflich Dokumente
Kultur Dokumente
CIVIL DIVISION
vs.
Plaintiff, Dr. James Eric McDonough (hereafter “Dr. McDonough”), submits this Motion
for a protective order under Fla. R. Civ. P. 1.280(c), for an order dismissing Defendant’s Motion
to Compel as a “Strategic Lawsuit Against Public Participation” (hereafter “SLAPP”), and for
sanctions under § 57.105, Florida Statues. Plaintiff offers the following in support thereof:
Motion to Compel, that Plaintiff publicly stated an intent to write a book on how to “harass”
government entities with public records requests. Subsequently, he now claims that the
Defendants have a right to: a) abusively expansive discovery; b) dismissal of Plaintiff’s public
records suit; and/or c) an award of attorney fees and cost to the Defendants, as a matter of law.
simply stated “We won!,” which was written after the July 31st, 2017 hearing. A following
1
ZESKIND has apparently taken over litigating this case, though he has not yet entered a Notice of Appearance.
comment expressed a desire that Dr. McDonough would help others when finished with his case.
Dr. McDonough replied, “That's the plan. Want to write a book on how to do this and win.”
3. This abusive discovery request improperly begins by asking for Plaintiff’s list of
subscribers. See Florida’s Journalist Shield law, FS. 90.5015, and the right to anonymous
association under the First and Fourteenth Amendments, NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958). ZESKIND’s frivolous and impossible to meet discovery demands were
made to cover up a myriad of violations of the Public Records Act, Chapter 119, Florida Statutes
(hereafter FS. 119). The evidence proffered in support of ZESKIND’s claim lacks even an
implied intent to harass, in a bold and transparent attempt to abuse this Plaintiff, and his pro se
status. Due to the egregiousness of these actions, discovery should not be allowed, or should be
strictly limited, for Defendants under, Fla. R. Civ. P. 1.280(c)(1), and sanctions applied.
4. ZESKIND’s Motion to Compel makes a claim for attorney fees, and demonstrates
that there is no genuine issue of material fact with respect to the elements required to sustain a
cause of action thereby violating of the law against SLAPP, Chapter 768, Section 295, Florida
Statutes (hereafter “FS. 768.295”). ZESKIND also made this same claim to attorney fees against
Plaintiff in the answer he filed for the City Defendants, in response to the complaint.
First Amendment rights involving matters of public concern. “[T]he failure to dismiss a
[SLAPP] suit might necessitate long and expensive trial proceedings, which, if not really
warranted,” would themselves have a “chilling effect” on freedom of speech. Time, Inc. v.
McLaney, 406 F.2d 565, 566 (5th Cir. 1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 865
(5th Cir. 1970) (“The stake here, if harassment succeeds, is free debate.”) Id at 865.2 This is the
2
A chilling effect exists when citizens are apprehensive to exercise their rights to free expression or free association
due to threat of the expense and inconvenience of litigation. See, e.g., Laird v. Tatum, 408 U.S. 1, 12-13 (1972);
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963) (internal citations omitted); and Thornhill v. Alabama, 310
U.S. 88, 97-98 (1940) (discussing chilling effect on free speech rights).
2
fact in the instant case, whereas FS. 768.295 demands quick resolution of SLAPP claims, which
ZESKIND, a licensed attorney, who should know better, or maybe through experience cares not.
Hotel, Inc. 426 F.2d at 865. If allowed unchecked, debate on public issues will become less
uninhibited, less robust, and less wide open, for self-censorship affecting the whole public is
7. “Our First Amendment demands that a law-enforcement officer may not use his
powerful post to chill or punish speech he does not like. If he does so, he may not hide behind the
veil of qualified immunity. We affirm the district court's denial of Wheeler's motion to dismiss
Bailey's § 1983 and state-law defamation claims.” Bailey v. Wheeler, 843 F.3d 473, 486 (11th Cir.
2016). The same goes, or should go, for the instant defamatory claim and unlawful withholding
8. Homestead police officers began publicly retaliating against the First Amendment
rights of, and/or defaming the Plaintiff in late 2012. Plaintiff began filing records requests
documenting these abuses in 2013. Subsequently, Defendants have regularly and repeatedly
violated FS. 119, forcing Dr. McDonough to file suit. Presently, Defendants are again violating
Plaintiff’s First Amendment rights and again making defamatory statements against him. This
time explicitly about his desire to write a “book.” The purpose thereof to generate false claims
related to statements about this “book,” which is by definition “free speech in connection with
3
The Defendants falsely accuse Dr. McDonough with malice of repeated “harassing,” implying the crime of
stalking, FS.784.048(2), through his filing of public records requests. Although the litigation privilege provides
immunity from civil damages related to these libelous comments, this Court should be aware of this abuse.
Further, Dr. McDonough has other defamation claims active against Defendants and/or their colleagues, clients,
employees and/or contractors in three separate cases, two of which are represented by attorneys, and one pro se.
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public issues.” The harassing and defamatory statement(s) made by ZESKIND, and the
subsequent SLAPP claim based upon said statement, has the direct effect of chilling speech.
9. This chilling effect extends beyond Dr. McDonough, and extends to all residents
and visitors to the City, now likely afraid to publicly comment or to file records requests, on
matters of public importance. The perception is that the Defendants will feign offense in order to
squelch any criticism, or records investigation, into matters regarding public affairs of the City.
This raises the stakes with respect to this Court’s support of the public policy of this state, as
10. Dr. McDonough is thereby forced to turn to this Court to preserve not only his
rights, but by extension those of all City residents and visitors who might wish to comment or
file records request upon how this City is governed. In this circumstance, there is no debate that
dismissal is appropriate, and lengthy proceedings are prohibited under FS. 768.295 and FS. 119.
11. In this Motion, Dr. McDonough argues as a matter of law, ZESKIND’s Motion to
Compel is wholly unsupportable, its alleged viability singly hinging upon a false allegation of
Plaintiff’s stated intent to harass. Nevertheless, even assuming, arguendo, that Defendants were
able to establish that Dr. McDonough expressed a desire to write a “book” on how to “harass”
government entities with public records requests, such actions are protected under the First
Amendment, and could never form the basis for any claim by the government against a citizen.
the discovery process should not go unaddressed, and future discovery for Defendants should not
be had. Further, ZESKIND stated that he does not have access to Dr. McDonough’s personal
Facebook page, but provided screenshots of comments from Dr. McDonough’s personal page
from six months ago, in another instance of untruthfulness. See Miami-Dade Home Rule
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Charter, Citizens Bill of Rights §(A)(2). An instance which also raises the possible specter of
Fourth Amendment violations, consistent with ZESKIND’s track record, i.e. pattern of practice.4
MEMORANDUM OF LAW
13. ZESKIND falsely claimed on page 8 of his Motion to Compel that he is aware
“of at least one instance where McDonough has stated that he intends to someday write a
book on how to harass government entities with public records requests and prevail in court
on the subsequent lawsuits.” ZESKIND then cited FS. 119.12(3) to support his claim(s) that
Defendants should be granted abusively expansive discovery rights, that Plaintiff’s case should
be dismissed, and/or that Defendants should be awarded attorney fees and cost.
14. ZESKIND, in a total perversion of the process, desperately attempts to flip FS.
119 entirely on its head, while simultaneously disregarding the provisions FS. 768.295 and rights
to “free speech in connection with public issues.” ZESKIND, as a government agent, obstructs
release of public records and blocks discovery, as is if he were not a government agent and these
were not public records. ZESKIND, then conversely, demands access to Plaintiff’s records as if
the Plaintiff were not a private citizen, and retaliates against Plaintiff’s First Amendment rights.
A person or governmental entity in this state may not file or cause to be filed, through its
employees or agents, any . . . counterclaim against another person or entity without
merit and primarily because such person or entity has exercised the constitutional
right of free speech in connection with a public issue. . .; and
4
See Zeskind’s unlawful “Glomar” response to the ACLU violating FS. 119, on the use of “Stingrays”, which
violated the Fourth Amendment as they were used without a warrant(s), EXHIBIT B.
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iv) FS. 768.295(4) reads:
15. Further, filing records requests even if comprehensive and extensive is NOT
harassment. “Even though a public agency may believe that a person or group are fanatics,
harassers or are extremely annoying, the public records are available to all of the citizens of the
State of Florida.” Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17,
1991). See also, Curry v. State, 811 So. 2d 736, 741 (Fla. 4th DCA 2002) (Defendant’s conduct
in making over 40 public records requests concerning victim constituted a “legitimate purpose,”
and thus cannot violate the stalking law “because the right to obtain the records is established by
any such post or comment(s) where Dr. McDonough had claimed he intended to harass
government, or to write a book to teach people how to harass government. ZESKIND took a
month to provide a screenshot of the alleged comment lacking any context or date. Dr.
McDonough after several hours, and with specialized IT help, was able to track down the
original post to provide context. The post and relevant comments are reproduced below:
First Subscriber: Congratulations! I hope this all is done for your family [Heart
Emoji]
Second Subscriber: I hope you help other people when this is over! !
Dr. McDonough: That's the plan. Want to write a book on how to do this and win.
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17. It is painfully obvious that Dr. McDonough in no way claimed any desire to write
a book on how to harass anyone or anything. Therefore, ZESKIND’s intent claim is based on a
false premise, and was clearly and unequivocally intended to mislead this Court.
18. Additionally, the post and comments were made after the July 31st, 2017 hearing.
As such, it would be impossible for the comment to demonstrate a prerequisite desire to harass as
the motive for filing any earlier requests. Yet, the comment in context still fails to even hint at
any desire or attempt to harass government. Further, Plaintiff’s records requests legally are NOT
harassing as they serve a “legitimate purpose,” and no other allegation of frivolous intent has
been proposed by Defendants. The contested requests are far removed from the letter and intent
behind FS. 119.12(3), and Defendants resistance is only to cover deeper crimes being committed.
19. Even assuming, arguendo, that Defendant’s claim is accurate, it still fails as
ZESKIND attempts to make a claim against Dr. McDonough for exercising his free speech as a
journalist, which is inextricably intertwined with his separate right to file records requests. The
Therefore, Defendants Motion to Compel fails even had Defendants not attempted to use
deception, as it is a SLAPP claim by definition, and prima facie violative FS. 768.295.
20. Without ZESKIND’s false claim of harassment, there are no legal grounds to
request any information from Dr. McDonough, period. Nothing in Defendant’s Request for
Production is germane to the issue of whether Defendants violated FS. 119. Further, the Motion
to Compel is just another of ZESKIND’s strategies to harass Plaintiff and delay litigation.
21. Irrespective of the false statement(s) and SLAPP status, FS. 119.12(3) still would
not apply as: a) it deals in attorney fees and Plaintiff is acting pro se; b) the majority of requests
were before the non-retroactive amendment in 2017; c) all records requests were filed for the
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Plaintiff could later speak on and publish said information, and to demonstrate Defendant’s
malice in civil rights violations against Plaintiff; and d) even assuming, arguendo, ZESKIND’s
allegations to be true, an improper or frivolous purpose has not been alleged. Where improper
purpose is defined as “a request to inspect or copy a public record or to participate in the civil
action primarily to cause a violation of [FS. 119] or for a frivolous purpose,” FS. 119.12(3).
22. Therefore, any claims to FS. 119.12(3) under the facts of the case are wholly
without merit, unconstitutional, violate FS. 768.295, should be stricken, and sanctions applied for
the attempt. ZESKIND’s Motion to Compel represents a complete abuse of the discovery
process and a possible fraud upon this Court, retaliation against Dr. McDonough’s rights to free
speech in connection with public issues under the U.S. and Florida Constitutions, and violates
ZESKIND’s duty of candor towards the tribunal.5 Therefore, Defendant ZESKIND should be
sanctioned for his unethical actions related to his frivolous, abusive, and retaliatory Motion to
Compel which is based upon a false premise, if assumed true still lacks a modicum of merit.
CONCLUSION
23. It is this Court’s duty to determine, as a matter of law, whether Defendants have
made a SLAPP claim in response to Dr. McDonough’s free speech in connection with public
issues. The facts and evidence of record are objective, clear, convincing and undisputable that
Defendants have made false statements and claims in retaliation of the exercise of free speech.
24. Alternatively, the right to attack the Motion to Compel on any other legal ground
or theory, whether provided herein or not, is herein preserved. This includes but is not limited
to: a) the physical impossibility of complying with the request; b) Florida’s Journalism Shield
5
False Evidence; Duty to Disclose. A lawyer shall not knowingly: (1) make a false statement of fact or law to a
tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
8
records, e) overbroad; f) irrelevant; g) harassing; and i) oppressive. ZESKIND’s retaliatory
Motion to Compel is nothing short of an abusive fishing expedition. Plaintiff has cooperated
with Defendants reasonable requests, yet conversely Defendants have refused, obstructed and/or
unduly delayed all of Plaintiff’s records and discovery requests, even orders from this Court.
25. Further, to any extent Defendant’s claim for any rights to discovery past that
already provided by Plaintiff, dismissal of Plaintiff’s claims, and/or awarding attorney fees to
Defendants for defending this action is found valid, under FS. 119.12(3), this statute is hereby
challenged facially and/or as applied as being prima facie in violation of Florida Constitution,
WHEREFORE, the Plaintiff, Dr. McDonough, respectfully requests this Honorable Court
A. Forward this Motion to the Florida Bar for disciplinary review recommending action.
E. Order Defendants to pay all future cost of this case, including Plaintiff’s discovery.
G. Declare attorney-client privilege between WSH and City of Homestead null and void,
and forbid co-defendant attorneys from further litigating this case against the Plaintiff.
H. Any further relief and/or sanctions as the Court deems just and proper.
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(a) Every person has the right to inspect or copy any public record made or received in connection with the
official business of . . . This section specifically includes. . . municipalities. . .
(c) This section shall be self-executing. The legislature, however, may provide . . . for the exemption of records
from the requirements of subsection (a) . . . provided that such law shall state with specificity the public necessity
justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. . . Laws
enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and
provisions governing the enforcement of this section, and shall relate to one subject.
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EXHIBIT A
2/5/2018 (3) We won! - James Eric McDonough
We won!
Comment Share
5 Shares 81 Comments
2
Dan DeLuca Yes!!!!!!!!!
Like · Reply · 27w
3
Pat Allman Awesome! Woot, woot!!
Like · Reply · 27w
2
Jason Vanneman Congrats buddyy
Like · Reply · 27w
2
Christy Wolovich Congratulations
Like · Reply · 27w
2
Chris Crepeau Righteouss
Like · Reply · 27w
2
Drew Tuck Congrats! Im so happy for u!!
Like · Reply · 27w
Karen Thomas Those whores in expensive suits still got paid by the taxpayers. You defended their rights
and the rights of their children for free! Bless you, Sir!! 6
Like · Reply · 27w
James Eric McDonough Close, I spent about $2,000 plus time. Not to mention the approximately
$5,000 in overcharges for public records, because I knew the dirt was too juicy to pass up. 2
Like · Reply · 26w
James Eric McDonough They even tried to charge me $1.258 million for simply asking for their
statistics on response and clearance times for their PD! I then said WTF and they gave it to me for
$40. Should have been free. 3
Like · Reply · 26w
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2/5/2018 (3) We won! - James Eric McDonough
1
Richard Boland For great justice!!
Like · Reply · 27w
Stephen Norman Wow man: that's great. You are a true patriot
ot sir.
ssiir
ir 5
Like · Reply · 27w
1
Abischai Joseph Congratss
Like · Reply · 27w
1
Chad Neveroffended Gilchrist Good job!!
Like · Reply · 27w
That's so wonderful man. We were biting our nails out here in California.
liifo
forn
rniia
ia 4
ia.
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2
Darren Williamson Congratulationss
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1
Sav Charu Hearty congratulations!!
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1
Sharyn Patriarca Awesome
Like · Reply · 27w
Darren Williamson Patriots taking back the country one step att a time
tim
imee5
Like · Reply · 27w
Angelisa Halsey Congratulations! I hope this all is done for your family
ily
lyy 1
Like · Reply · 27w
3
James Eric McDonough It is only beginning..
Like · Reply · 27w
Jody Thomas I hope you help other people when this is over!
ver
e ! !1
Like · Reply · 27w
James Eric McDonough That's the plan. Want to write a book on how to do this and
d win.
wiin 2
w
Like · Reply · 27w
Jason Jensen Yeah, apparently, @Samuel Zeskind of Weiss Serota Helfman Cole & Bierman,
P.L. thinks that this post is "proof" that James Eric McDonough has intended to "harass" the City of
Homestead Government with records requests and lawsuits to enforce those record requests. Let
me know if you think the idiots as WSH are CRAZY!! 1
Like · Reply · 1m
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2/5/2018 (3) We won! - James Eric McDonough
David Nero SO PROUD OF YOU ERIC. YOU CAN BE MY ATTORNEY ANYTIME. LOVE YO
YOU4
YOU
Like · Reply · 27w
Jace Pomales Maybe the Doc should take the bar now lol Great work brother. #blessed
essse
sed5
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1
Dina Lancaster Congratulations!!!!!!
Like · Reply · 27w
2
Kate Garcia Congratulations Eric!!
Like · Reply · 27w
Carla Poppe Yaaahhhooooooo!!!!!! Yesssss!!!!!!.....Wayyyy Tooo Goooo!!!! Congratulations Eric! When you
have time, please write more details! 1
Like · Reply · 27w
1
Nathan Cox AWESOME!!!!!!!!!!!
Like · Reply · 27w
Sergio Gonzalez
1
Sergio Gonzalez Amazing, man!!
Like · Reply · 27w
Heather Tuck Hell yeah! I knew you could do it! That is so awesome
som
o e1
om
Like · Reply · 27w
4
Erik Dally Share the details!!
Like · Reply · 27w
1
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2/5/2018 (3) We won! - James Eric McDonough
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Latina Jo Sharp Congrats and Glory to God
d
Like · Reply · 27w
Angela Zannini Wonderful news , I'm so happy for you Eric. You never backed down and you got your just
rewards . . . YOU WON!!! You are amazing. 2
Like · Reply · 27w
Latina Jo Sharp Way to go Eric. .....I've always prayed for you and Vanessa for God to deliver you justice
.......amen and glory be to our heavenly Father 1
Like · Reply · 27w
1
Janet Heeb Rabin Congratulationss
Like · Reply · 27w
1
Kiki Becerra Bacaro Congratulations!!!!
Like · Reply · 27w
1
Lance Emery Congrats!!!!
Like · Reply · 27w
1
Juan Santana Congrats brotherr
Like · Reply · 27w
1
Tanya Lynn Waiting on the dirty details!!!!
Like · Reply · 27w
Mj Brophy I hate to be the one to tell you told you so but... Told you so haha
ha
ahha1
Like · Reply · 27w
1
Mj Brophy Grats on your victory!!
Like · Reply · 27w
1
Jody Thomas Sweet! ! Take the bar exam!!!
Like · Reply · 27w
Gillian Gardner AWeSOME, I dub thee Sir James Eric McDonoughof 'Beating the corrupt system'
sttem
stem
e '1
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2/5/2018 (3) We won! - James Eric McDonough
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Jen Alexander Details....?!
Like · Reply · 27w
1
Geoffrey Long Awesome brother!!!! Congrats..
Like · Reply · 27w
1
Daniel McDonough Congrats brotherr
Like · Reply · 27w
Christine Giorgi Huge congratulations to you. God is good. Enjoy the well deserved win!!!!
wiin!
n!!!
!!!!1
Like · Reply · 27w
Bryant Sheets AUDIO AND VIDEO FOR THE UTUBE STORY PLEASE
LE
EAASE
E2
Like · Reply · 27w
1
Carol Romney - Shim U are amazing..
Like · Reply · 27w
Robin Whitney Cromer When we place our TRUST and HOPE completely in our Lord God we never lose.
If God be for us, WHO can stand against us. Perhaps our belief will cause some / many / to stop the
madness / repent and come to the Lord Jesus as well. That is what God wants. 3
Like · Reply · 27w
1
Cass Mon Congratulations!!!!!
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1
Donald Smith Good job
b
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1
Peter Phillips Brilliant news for justice
e
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1
Tom Casey Congratulations..
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2/5/2018 (3) We won! - James Eric McDonough
Heather Shamp God is good im so happy for you and without a lawyer this is a proud moment buddy
udd
d y1
Like · Reply · 27w
James Eric McDonough Hello everyone. I am waiting for my colleagues to upload the video to drve, so I
can put on youtube. 6
Like · Reply · 27w
James Eric McDonough The judge told the attorney to shut up, then praised me for how well I knew my
way around a courtroom! 11
Like · Reply · 27w
1
Heather Shamp i cant wait to see the video
o
Like · Reply · 27w
James Eric McDonough Heather Shamp Me too! I was paying too much attention to the judge.
Apparently the attorneys were nervous and making faces of horror and disgust!
Like · Reply · 26w · Edited
James Eric McDonough Will publish as soon as I get it. And begging them to put on drive ASAP.
ASA
SAP1
SA
Like · Reply · 27w
1
Heather Shamp i bet you are lol prayers buddyy
Like · Reply · 26w
Nehemiah Gwaltney Wow man super amazed! God is bigger than the Government!
t! 1
Like · Reply · 26w
James Eric McDonough Nehemiah Gwaltney he's bigger than sin or the World!
Wor
orld
ld!!1
ld
Like · Reply · 26w
Rene Powers So happy for you and actually all of us...your win is a win
n for
for al
fo allll2
Like · Reply · 26w
1
Ronald Gillis That is always true Rene!!!
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Write a reply...
1
Colby Hopkins yes! Congratulations!!
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1
Ronnie Land Give'm hell Eric, big congrats!!
Like · Reply · 26w
Charla Otte Chico Praise GOD!! He went before you and cleared the way! AMEN!!
ME
EN!
N!!1
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2/5/2018 (3) We won! - James Eric McDonough
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Karen Ward Terry Thank you Jesus !!!!
Like · Reply · 26w
1
Jessica Figueroa Yayyyy
Like · Reply · 26w
Joe Perez
1
Like · R
Reply
l · 26w
James Eric McDonough I am dying to get the video my self, should have brought my camera for
a tease.
Like · Reply · 26w
Tyler Cluff Living in AZ I watch the counsel meetings that you attend. Glad to see you are holding
them accountable. 2
Like · Reply · 26w · Edited
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Ronald Gillis AWESOME James, if I can help (I'm only 3 hours away) please let me know, if you want
court watchers, research, anything if I'm capable of doing it, I'll try my best to assist! 1
Like · Reply · 26w
1
Gina Martin YAY! What'd we win?
?
Like · Reply · 26w
1
Gina Martin You won the right to "brag"?
?
Like · Reply · 26w
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1
Ронан Йохан DIG IT !
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EXHIBIT B