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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:20-cv-22423-UU 

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ 

MEMORANDUM IN SUPPORT OF ITS MOTION TO SEAL AND REDACT 

Plaintiff and Counterclaim-Defendant SH Group Global IP Holdings, L.L.C. (“SH 

Group”) hereby responds in opposition to Defendant and Counterclaim-Plaintiff 2399 Collins 

Avenue Condominium Association, Inc. (the “Association”) and Defendant John P. Bostany’s 

(“Bostany”) (collectively, “Defendants”) Memorandum in Support of its Motion to Seal and 

Redact (D.E. 59) (the “Memorandum”), and respectfully requests that the Memorandum be 

denied. 

I. INTRODUCTION 

Defendants provide no adequate basis for sealing or redacting the declarations of Nicole 

Salcedo and Bostany (collectively, the “Declarations”) and exhibits that they and their attorneys 

voluntarily filed on the public docket over two weeks ago in an effort to excuse Bostany’s failure 

to comply with basic discovery obligations. Such failure already has prejudiced SH Group and 

SH GROUP GLOBAL IP HOLDINGS, L.L.C., 

Plaintiff/Counterclaim-Defendant, 

v. 

2399 COLLINS AVENUE CONDOMINIUM 

ASSOCIATION, INC. 

Defendant/Counterclaim-Plaintiff, 

and JOHN P. BOSTANY, 

Defendant. 

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cost it thousands of dollars in connection with the Motion to Compel Bostany to Produce 

Responsive Documents (D.E. 42) (the “Motion to Compel”). Defendants’ only stated reason for 

belatedly sealing their own filings (in full) is attorney-client privilege, but the material they seek 

to protect is not privileged, and even if it were, Defendants voluntarily waived such privilege. 

Accordingly, Defendants’ Memorandum should be denied. 

First, and as a preliminary matter, Defendants are not entitled to relief because the 

Memorandum and its related filing (D.E. 58) are again procedurally improper and violate the 

Court’s October 15, 2020 Order (D.E. 57). In violation of Local Rule 5.4(b)(1), Defendants did 

not file their motion to seal (presumably, D.E. 58) on the public docket, nor did they serve such 

motion on SH Group. The Memorandum also does not provide all content required by Local 

Rule 5.4(b)(1), such as the duration for which the material should be sealed and an adequate 

basis for sealing such filings. 

Second, the information that Defendants assert should be removed from the public record 

is not protected by the attorney-client privilege as it does not seek or provide legal advice. To 

the extent the Court determines any of the content in the Declarations to be privileged, 

Defendants themselves voluntarily waived such privilege. This is not a case of inadvertent 

disclosure of privileged information. Rather, Defendants and their attorney knowingly filed the 

material on the public docket and seek to rely on it in responding to SH Group’s Motion to 

Compel. 

Third, granting the Memorandum would continue to prejudice SH Group. For months, 

Defendants and their attorneys cost SH Group thousands of dollars in what should have been 

unnecessary attorneys’ fees that SH Group was forced to incur based on Defendants’ obstructive 

discovery tactics. The filings that Defendants wish to seal and redact make clear that SH Group 

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should never have had to file the Motion to Compel. Defendants now, including in their latest 

and fourth response to the Motion to Compel, continue to rely on the Declarations to avoid 

having to actually search for responsive documents and to pay SH Group’s expenses, as required 

under Federal Rule of Civil Procedure 37(a)(5)(A). Defendants cannot use statements they 

voluntarily filed on the public docket weeks ago as both a sword and a shield. 

II. FACTUAL BACKGROUND1

On October 1, 2020, SH Group filed the Motion to Compel Bostany to Produce 

Responsive Documents. (D.E. 42.) Such filing followed weeks of SH Group’s counsel meeting 

and conferring with Defendants’ counsel about certain Requests for Production to Bostany. As 

further discussed in the Motion to Compel, Bostany had objected outright to certain Requests for 

Production, then agreed to search for and produce documents, only to then change course and 

refuse to do so. (See id. at 5–6.) Despite SH Group’s additional efforts to meet and confer and 

avoid motion practice, Bostany maintained his position, thus forcing SH Group to file the Motion 

to Compel. (D.E. 42-05.) 

Thereafter, on October 6, 2020, Defendants filed the Declarations in response to the 

Motion to Compel. (D.E. 46, 47.) The Declarations discussed Defendants’ efforts to collect and 

produce certain documents, and blamed the conduct that necessitated the Motion to Compel on 

Defendants’ counsel, Allen, Dyer, Dopplet + Gilchrist, P.A. (“Allen Dyer”). Allen Dyer, in turn, 

withdrew as counsel and stated that the Declarations “are not accurate and suggest improper 

conduct on behalf of Counsel,” and refuted certain statements therein. (D.E. 49 at 3.) On 

October 9, 2020, the Court ordered that Defendants’ remaining counsel “respond to the Allen 

1

 As Ordered by Magistrate Judge Reid, SH Group will file a Reply in support of the Motion to 

Compel by October 29, 2020. SH Group provides the following factual background for the 

Court’s convenience as it is relevant to the Memorandum. 

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Dyer firm’s concerns as to the veracity” of the Declarations. (D.E. 53 at 3.) Defendants 

responded to the Court’s order on October 14, 2020, stating that they filed the Declarations “as 

an attempt to resolve the discovery issues pending.” (D.E. 54 ¶ 7.) Defendants also requested to 

withdraw the Bostany Declaration and file the Salcedo Declaration under seal. (Id. ¶ 12.) 

On October 15, 2020, the Court issued an Order noting that the requests to withdraw and 

file under seal were improper as they “must be made by motion and must be done in compliance 

with the Federal Rules of Civil Procedure and the Local Rules of this Court.” (D.E. 57.) The 

Court denied Defendants’ request without prejudice and with leave to refile the appropriate 

motions. (Id.) Defendants filed their Memorandum on October 22, 2020, requesting to seal in 

full the Declarations, as well as all exhibits thereto. (D.E. 59.) 

III. ARGUMENT 

A. Removing Information from the Public Docket is Disfavored. 

“This Court is generally disinclined to allow sealed filings, both for . . . public policy 

reasons . . . and the administrative burden and potential confusion that such filings 

cause.” Jansen v. W. Palm Nissan, Inc., No. 05-80889CIV, 2006 WL 1582068, at *1 (S.D. Fla. 

June 6, 2006). As the Eleventh Circuit has noted, “[a]bsent a showing of extraordinary 

circumstances . . . the court file must remain accessible to the public.” Brown v. Advantage 

Eng’g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992). Accordingly, Local Rule 5.4 has specific 

requirements that must be met in order to justify “departing from the policy that Court filings are 

public.” S.D. Fla. L.R. 5.4(b)(1).2

2 The two cases that Defendants cite for the proposition that public access to the material is 

unwarranted are inapposite. Rather, Chicago Tribune Co. v. Bridgestone/Firestone, Inc.

merely reflected that certain material attached to discovery motions may be confidential, and 

thus shielded from public disclosure. 263 F.3d 1304, 1311 (11th Cir. 2001). But that same 

decision also reflected that “judicial records” such as the Declarations should be public. Id. 

Moreover, Rosolen v. Home Performance Alliance, Inc. granted an unopposed motion to seal 

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B. Defendants Failed to Comply with the Court’s Order and Local Rule 5.4. 

As a preliminary matter, the Memorandum should be denied as a procedural matter 

because it fails to Comply with the Court’s October 15, 2020 Order, as well as Local Rule 5.4. 

The Court’s Order made clear that Defendants must file “appropriate motions,” which “must be 

done in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court.” 

(D.E. 57.) Local Rule 5.4(b)(1) requires that “[t]he motion to file under seal and the docket text 

shall be publicly available on the docket” and that “[t]he moving party must complete any 

required service of the sealed filing or Notice of Sealed Filing conventionally, indicating the 

corresponding docket number of the sealed filing or Notice of Sealed Filing.” The Rule also 

requires that the motion “specify the proposed duration of the requested sealing” and that it “sets 

forth the factual and legal basis for departing from the policy that Court filings are public and 

that describes the information or documents to be sealed . . . with as much particularity as 

possible.” S.D. Fla. L.R. 5.4(b)(1). 

Defendants did not comply with any of these requirements. Instead, they merely filed on 

the public docket the Memorandum. Presumably, a motion also was filed as D.E. 58, but that 

filing was not made on the public docket, nor was it served on SH Group. The Memorandum 

also fails to specify any proposed duration for the sealing. Moreover, the Memorandum fails to 

adequately specify the factual and legal basis for sealing the filings, instead merely reciting rules 

(which Defendants have not complied with) and inapposite case law, as discussed further below. 

a deposition that contained confidential information. No. 2:19-cv-24-FtM-66NPM, 2020 WL 

4750339, at *1 (M.D. Fla. Aug. 17, 2020).

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C. The Information Defendants Seek to Seal Is Not Privileged, But if so, Such 

Privilege Has Been Waived. 

“The attorney-client privilege attaches . . . to confidential communications between an 

attorney and client for the purposes of securing legal advice or assistance.” Drummond Co., Inc. 

v. Conrad & Scherer, LLP, 885 F.3d 1324, 1334 (11th Cir. 2018); see also Cox v. Adm’r U.S. 

Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. 1994). A client may waive the attorney-client 

privilege “either expressly or by implication.” Knox v. Roper Pump Co., 957 F.3d 1237, 1248–

49 (11th Cir. 2020) (citing Cox, 17 F.3d at 1417)); see also Henderson v. Holiday CVS, L.L.C., 

269 F.R.D. 682, 687 (S.D. Fla. 2010) (“[V]oluntary disclosure of the facts in question constitutes 

a waiver of the [attorney-client] privilege.”). 

Under the doctrine of waiver by implication, “[a] defendant may not use the privilege to 

prejudice his opponent’s case or to disclose some selected communications for selfserving purposes.” Id. (alteration in original) (citation omitted). “[T]he doctrine of 

waiver by implication reflects the position that the attorney-client privilege ‘was intended 

as a shield, not a sword.’” Id. (quoting GAB Bus. Servs., Inc. v. Syndicate 627, 809 F.2d 

755, 762 (11th Cir. 1987)). Thus, a party waives the attorney-client privilege when that 

party places privileged information in issue “through some affirmative act for his own 

benefit, and to allow the privilege to protect against disclosure of such information would 

be manifestly unfair to the opposing party.” Cox, 17 F.3d at 1417 (citation omitted). 

Knox, 957 F. 3d at 1248–49. 

Here, Defendants seek to seal, in full, the Declarations, along with the documents 

attached as exhibits to Ms. Salcedo’s declaration. Defendants state that such filings “contain 

attorney-client privileged information” (D.E. 59 at 3) without explaining what content is 

privileged and why. The filings contain references to communications between Defendants and 

their former counsel about discovery issues, but do not appear to contain legal advice. 

Regardless, to the extent the filings contain material protected by the attorney-client 

privilege, Defendants waived such privilege by voluntarily filing such information on the public 

docket, producing it to SH Group, and relying on it in defending against the Motion to Compel. 

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Defendants do not claim to have inadvertently disclosed privileged information, nor could they. 

Rather, the filings were made by Defendants’ current counsel, Dania S. Fernandez, P.A., with 

Defendants’ knowledge and consent. Moreover, Bostany himself is a practicing lawyer, and thus 

knew the implications of filing the materials on the public docket and producing them to SH 

Group. (See D.E. 49 at 3.) 

To the extent Defendants now seek to excuse their “hasty” filing of the Declarations 

(D.E. 59 at 3) as an inadvertent production of privileged information (which it is not), 

Defendants cannot show “the holder of the privilege or protection took reasonable steps to 

prevent disclosure” and “the holder promptly took reasonable steps to rectify the error.” Fed. R. 

Evid. 502(b)(2)–(3). Indeed, the filings were made over two weeks ago, and even after the Court 

allowed Defendants to file an appropriate motion, they waited another week before making such 

filing. (See D.E. 46, 47, 57, 59.) Any attempt to clawback or seal the information Defendants 

themselves published should be rejected outright. 

Defendants’ only stated argument against the waiver of the privilege is that “none of the 

issues discussed in the filings that Defendants seek to seal discuss defenses to any of the 

substantive issues in the case, much less a central issue in the case.” (D.E. 59 at 4.) Yet, the 

Declarations form the very basis of Defendants’ response to the Motion to Compel, including in 

the latest response to such motion that Defendants’ new counsel filed. (D.E. 60 at 3–4.) 

Defendants cannot have it both ways. Moreover, the Declarations merely confirm that SH Group 

should never have had to file the Motion to Compel, thus going to the heart of the issues the 

Court must determine in deciding the Motion to Compel. 

The two cases that Defendants cite do not support their position that the privilege was not 

waived. Both Jones v. RS&H, Inc. and Butterworth v. Laboratory Corp. of Am. Holdings dealt 

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with testimony elicited during depositions, where the witnesses merely stated that they had 

consulted with counsel. Jones v. RS&H, Inc., No. 8:17-CV-54-T-24JSS, 2018 WL 538742, at *2 

(M.D. Fla. Jan. 24, 2018); Butterworth v. Lab’y Corp. of Am. Holdings, No. 3:08-CV-411-J34JRK, 2010 WL 11470895, at *6 (M.D. Fla. Dec. 2, 2010), aff’d, No. 3:08-CV-411-J-34JRK, 

2011 WL 13137953 (M.D. Fla. Oct. 14, 2011). The witnesses did not disclose the contents of 

such privileged communications, and the disclosing parties also stated that they would not rely 

on the deposition testimony. Jones, 2018 WL 538742, at *3; Butterworth, 2010 WL 11470895, 

at *6. In contrast, here, Defendants themselves voluntarily presented the content of 

communications with their attorneys to the Court and SH Group, thus choosing to waive any 

privilege, and are continuing to rely on such information. Such information also goes to the 

heart of the Motion to Compel. 

D. It Would Be Unfair to SH Group for the Publicly Filed Information to Be 

Sealed. 

As is clear from the procedural history here, SH Group has already been prejudiced by 

Defendants’ obstructive discovery tactics and their numerous filings in response to the Motion to 

Compel have only forced SH Group to incur further expenses. Defendants should not be allowed 

to withdraw and seal the filings that they made public weeks ago while also relying on such 

filings to defend against the Motion to Compel. Nor should they be allowed to shield from this 

Court and SH Group their apparent failure to comply with their discovery obligations, as is made 

clear by the Declarations. 

At base, this case is similar to Cox as Defendants “injected the issue” of their lawyers’ 

alleged refusals to comply with Defendants’ instructions and revealed those attorney-client 

privileged discussions to do so. See Cox, 17 F.3d at 1418. Thus, “it would be inequitable to 

allow [Defendants] to present evidence tending to show that it intended to comply with the law, 

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while allowing it to cloak in privilege those documents tending to show [their or their attorneys’] 

actions did not conform to the law.” Id.

Here, due to Bostany’s failure to properly respond to document requests, the Motion to 

Compel was filed under Fed. R. Civ. P. 37(a)(3)(B)(iv). (See D.E. 42 at 10 (“Bostany’s ongoing 

failure to even search for responsive documents, necessitating this Motion, is completely 

unjustified.”).) As part of the Motion to Compel, SH Group sought its expenses, including 

attorneys’ fees under Fed. R. Civ. P. 37(a)(5)(A). (Id. at 1, 10.) It is clear that Defendants filed 

the Declarations in an attempt to avoid an award of SH Group’s attorneys’ fees for the Motion to 

Compel. As such, the Declarations remain necessary and relevant to the Motion to Compel and 

the Court’s determination of whether Bostany’s failure to comply with discovery was or was not 

“substantially justified” under Rule 37(a)(5)(A). For the avoidance of any doubt, SH Group 

reasserts that Bostany’s conduct was not “substantially justified” and that he should be ordered to 

pay SH Group’s expenses, including attorneys’ fees, for the Motion to Compel. 

Because Defendants themselves injected their discourse with their former counsel into 

the case, in an apparent attempt to avoid the relief sought in the Motion to Compel, they have 

waived the attorney-client privilege. See Chick-fil-A v. ExxonMobil Corp., 08-61422-CIV, 2009 

WL 3763032, at *8 (S.D. Fla. Nov. 10, 2009) (quoting Cox, 17 F.3d at 1419) (“To waive a 

privilege, a party must do more than merely deny the opposing party’s accusations; it must 

affirmatively ‘inject a new factual or legal issue into the case.’”). To seal or otherwise imbue the 

Declarations with the protections of the attorney-client privilege after they have been publicly 

filed and used in a manner intended to be against SH Group would be manifestly unfair. 

Defendants cannot now seek to seal the Declarations, and bring their communications with 

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counsel behind the shield, after they have used such communications as a sword against SH 

Group. See Cox, 17 F.3d at 1417. 

IV. CONCLUSION 

For the reasons discussed above, SH Group requests that the Court deny Defendants’ 

Memorandum (D.E. 59) and the related, but improperly concealed, motion (D.E. 58), if the Court 

considers them. 

Dated: October 23, 2020 Respectfully submitted, 

/s/ Gavin C. Gaukroger

 Gavin C. Gaukroger 

Fla. Bar. No. 76489 

Christina M. Perry 

Fla. Bar. No. 1003098 

BERGER SINGERMAN LLP 

350 East Las Olas Boulevard 

Suite 1000 

Fort Lauderdale, FL 33301 

Tel. (954) 525-9900; Fax (954) 523-2872 

Email: ggaukroger@bergersingerman.com 

Email: cperry@bergersingerman.com 

Email: DRT@bergersingerman.com 

 DALE M. CENDALI 

(Admitted Pro Hac Vice) 

CLAUDIA RAY 

(Admitted Pro Hac Vice) 

SHANTI SADTLER CONWAY 

(Admitted Pro Hac Vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, NY 10022

Tel. (212) 446-4800; Fax (212) 446-6460 

Email: dale.cendali@kirkland.com 

Email: claudia.ray@kirkland.com 

Email: shanti.conway@kirkland.com 

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE 

I HERBY CERTIFY that on October 23, 2020, a true and correct copy of the foregoing has 

been transmitted by electronic filing with the Clerk of the court via CM/ECF which will send 

notice of electronic filing to all counsel of record. 

 By: /s/ Gavin C. Gaukroger_______

 Gavin C. Gaukroger 

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