IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA 

CASE NO.: 20-cv-61328-SINGHAL/VALLE

TIM CANOVA, 

Plaintiff, 

v. 

BRENDA C. SNIPES, DOZEL

SPENCER, and the BROWARD 

COUNTY SUPERVISOR OF ELECTIONS

Defendant. 

___________________________________________/

DEFENDANTS’ RESPONSE TO PLAINTIFF'S 

MOTION FOR PROTECTIVE ORDER

Brenda C. Snipes, Dozel Spencer, and the Broward County Supervisor of Elections 

(collectively, the “Defendants”) files its response to Plaintiff's Objection to Defendants’ Notice of 

Issuance of Subpoenas Duces Tecum and Motion for Protective Order (“Motion”) and in support 

thereof states as follows:

INTRODUCTION AND PROCEDURAL BACKGROUND

1. In 2017, Plaintiff Tim Canova (“Plaintiff”) filed a public records lawsuit in the 

Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 17-010904

(“Canova I”), against Ms. Snipes, now the former Supervisor of Elections for Broward County. In 

2018, Ms. Snipes, in her capacity as Supervisor of Elections, and Plaintiff, entered into a settlement 

that mutually released the parties from any and all actions and causes of actions that could have 

been brought against each other in the lawsuit. 

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2. On July 2, 2020, Plaintiff filed a three-count Complaint against the Defendants, 

alleging violations of the First and Fourteenth Amendments under 42 U.S.C. § 1983, Civil 

Conspiracy under 42 U.S.C. § 1983, violation of Article VI of the Florida Constitution, and 

Punitive Damages stemming from events that allegedly occurred during Canova I.

3. The Defendants’ position is that the settlement agreement entered into by the parties 

in Canova I forecloses the claims against Defendants in Plaintiff’s current lawsuit. 

4. On February 18, 2021, Defendants sent notice of its issuance of subpoenas duces 

tecum to Plaintiff’s former counsel Nelson Mullins Broad and Cassel; Leonard Michael Collins; 

and Frank P. Rainer. The subpoenas requested the following:

a. A fully executed settlement agreement reached in Canova I. 

b. A copy of any partially executed settlement agreement in Canova I.

c. A copy of any and all drafts of the settlement agreement reached in Canova I.

d. A copy of any and all communications between you or anyone working on your 

behalf and Defendants or anyone working on behalf of Defendants regarding or relating to the 

settlement negotiations in Canova I. 

e. A copy of any and all documents reflecting the settlement payment paid in Canova 

I. 

5. The instructions to the subpoena specifically provided instructions if the document 

requested is claimed or thought to be privileged. 

6. On March 5, 2021, Plaintiff filed his Motion seeking a protective order for the 

entirety of the subpoenas. See ECF No. 23. 

7. Plaintiff’s Motion fails because (1) Plaintiff in violation of the Federal Rules of 

Civil Procedure and the Local Rules failed to meet and confer in good faith in an effort to resolve 

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the dispute without court action; and (2) the Defendants’ subpoenas are relevant to the claims, 

proportional to the needs of the case, and are not seeking privileged information. 

MEMORANDUM OF LAW

A. Plaintiff Made No Good Faith Effort to Confer or Attempt to Confer Prior to Filing the 

Motion. 

Rule 26(c)(3) provides that a motion for protective order “must include a certification that 

the movant has in good faith conferred or attempted to confer with other affected parties in an 

effort to resolve the dispute without court action. The motion must include a certification that the 

movant has in good faith conferred or attempted to confer with other affected parties in an effort 

to resolve the dispute without court action.” Fed. R. Civ. P. 26(c)(3). The Local Rules also require 

a good faith effort to confer and for the movant to provide a certification that such efforts were 

made. See S.D. Fla. L.R. 7.1(a)(3). A court may deny a motion for protective order where the 

movant does not make an effort to confer or include a statement certifying that the movant has 

conferred with counsel for the opposing party. See Republic of Haiti v. Crown Charters, Inc., 667 

F.Supp. 839, 849 (S.D. Fla. August 13, 1987) (denying motion for protective order for failing to 

confer in good faith); Rocket Real Estate, LLC v. Maestres, Case No. 15-62488-civCOHN/SELTZER, 2016 WL 7508254 (denying motion for protective order because movant did 

not confer in good faith to try to resolve the issue without court intervention) (S.D. Fla. March 1, 

2016). 

Plaintiff made no attempts to confer, let alone, confer in good faith with undersigned 

counsel prior to filing the Motion. Further, the Motion does not include a certification that Plaintiff 

in good faith conferred or attempted to confer with Defendants prior to filing the Motion. 

Accordingly, Plaintiff’s Motion should be denied.

B. Plaintiff Cannot Show Good Cause for a Protective Order. 

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A protective order may be issued if good cause is shown and the court has balanced the 

interest of those requesting the order. McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 91 

(11th Cir. 1989). The burden is on the movant to “show the necessity of a protective order, and the 

movant must meet this burden with a particular and specific demonstration of fact as distinguished 

from stereotyped and conclusory statements.” Ekokotu v. Federal Exp. Corp., 408 Fed. Appx. 331, 

335-36 (11th Cir. 2011) (internal quotations omitted). 

A “party invoking the attorney-client privilege has the burden of proving that an attorneyclient relationship existed and that the particular communications were confidential.” United States 

v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). Where attorney-client communications 

are no longer confidential, for example, where there was a disclosure of communication, there is 

no justification for retaining the privilege. U.S. v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987). 

Settlement agreements have no special protection from privilege. See Kadiyala v. Pupke, 

2019 WL 3752654 (S.D. Fla. Aug. 8, 2019) (Matthewman, J.) (reviewing cases and finding no 

privilege protecting settlement agreements from disclosure); United States ex rel. Cleveland 

Constr., Inc. v. Stellar Grp., Inc., 2017 WL 11460973, at *1 (M.D. Ga. Oct. 23, 2017) (declining 

to “invent” a settlement agreements privilege); Bradfield v. Mid-Continent Cas. Co., 15 F.Supp.3d 

1253, 1256, Case No. 13-cv-222-OC, (M.D. Fla. 2014) (finding that drafts and settlement 

agreements were not work product protected from discovery). 

Plaintiff seeks a protective order to the subpoenas “to the extent they seek privileged or 

protected documents and are overbroad and unduly burdensome.” See Motion, ECF No. 23 at p. 

3. Plaintiff’s Motion fails to specify what communications and documents are confidential.

The Defendants are not seeking privileged information. The Defendants requests do not 

seek and are not intended to seek confidential disclosures by Plaintiff to his attorneys or former 

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attorneys. Defendants seek documents in the form of a fully executed settlement agreement; a 

partially executed settlement agreement; draft settlement agreements, and documents reflecting 

the settlement paid in Canova I. The only communications sought are from Plaintiff’s former 

lawyers/agents to Defendants’ former lawyers/agents about the settlement of Canova I. None of 

these documents and communications are protected by attorney-client privilege. To mitigate 

against any issues with privilege or work product, Defendants’ subpoenas instructed the recipients 

of the subpoenas (all of whom are lawyers) that if any document is thought to be privileged to 

create a privilege log with respect to the documents. 

Neither are Defendants’ subpoenas overly broad or unduly burdensome. The requested 

information is narrowly tailored to a specific subject matter and involves little more than a search 

through the emails and files of Plaintiff’s former counsel. Should any of the recipients of the 

subpoenas articulate any burdens with conducting such a search, they can advise Defendants

accordingly. However, at this juncture, Plaintiff has no standing to raise such objections. See 

Lesniak v. Geico Gen. Ins. Co., No. 2:19-CV-494, 2020 WL 5878022, at *4 (M.D. Fla. Apr. 17, 

2020) (holding that a plaintiff did not have standing to object to a non-party subpoena on the basis

of undue burden where he had not alleged that he would be required to incur unduly burdensome 

costs in connection with the subpoena and where the non-party did not object to the subpoena on 

burdensomeness grounds); Abby v. Paige, No. 10-23589-CIV, 2011 WL 13223835, at *2 (S.D. 

Fla. Mar. 16, 2011) (finding that a party lacked standing to object on the grounds of undue burden 

and expense to a subpoena to his accountant because the party was not being required to produce 

anything); Klima v. Carnival Corp., No. 08-20335-CIV-MOORE, 2009 WL 1066969, at *2 (S.D. 

Fla. Apr. 21, 2009) (finding that a defendant did “not have standing to object to a nonparty subpoena on the basis of burdensomeness, oppressiveness, or as being overly broad”); AutoCase 0:20-cv-61328-AHS Document 28 Entered on FLSD Docket 03/19/2021 Page 5 of 6
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Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (“Defendants 

do not have standing to quash the subpoenas on the grounds of oppression and undue burden placed 

upon the third parties where the non-parties have not objected on those grounds.”).

The Defendants seek this information because, as described above, it is the Defendants’

position that the settlement agreement entered into by the parties in Canova I forecloses the claims 

against Defendants in Plaintiff’s current lawsuit. Although, Defendants believe that the plain 

language of the release is unambiguous and does release all claims brought in this current lawsuit 

against Defendants, it is expected that Plaintiff will attempt to argue that the mutual release does 

not limit his current claims against Defendants. As such, Defendants seeks documents and 

communications between the parties that evidence an intent behind the settlement agreement. 

CONCLUSION

Therefore, this Court should deny Plaintiff's Motion because Plaintiff failed to meet and 

confer in good faith in an effort to resolve the dispute without court action; and the Defendants’

subpoenas are relevant to the claims, proportional to the needs of the case, and are not seeking 

privileged information.

Respectfully submitted, 

Andrew J. Meyers

Broward County Attorney

Governmental Center, Suite 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Telephone: (954) 357-7600

Facsimile: (954) 357-7641

By: /s/ Adam Katzman

Adam Katzman

Assistant County Attorney

Florida Bar No. 652431

akatzman@broward.org

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