UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

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

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

A Delaware limited liability company, 

Plaintiff,

v.

2399 COLLINS AVENUE CONDOMINIUM 

ASSOCIATION, INC., a Florida corporation, 

and JOHN P. BOSTANY, an Individual, 

Defendants.

MEMORANDUM IN SUPPORT OF ITS MOTION TO SEAL AND REDACT

Defendants’ motion for leave should be granted since the documents contain attorney client 

privilege information that does not pertain to any central issue in the lawsuit. In Chicago Tribune 

v. Bridgestone/Firestone, 263 F.3d 1304 (11th Cir.2001), the Court determined that the public had 

no common law right to access documents if they were not “filed in connection with pretrial 

motions that require judicial resolution of the merits.” 

In the Chicago Tribune case, the Court allowed documents to be sealed finding that “the 

equities weighed against opening the declarations to the press because the declarations were 

incredible, appeared to be an attempt to circumvent the revised protective order, and would likely 

taint the jury pool and prejudice the right of Drummond to a fair trial.” The district court also 

sealed a motion to reconsider in the same case because it “outlined much of the [other] sealed 

material.” The Court in Rosolen v. Home Performance Alliance, Inc., 2020 WL 4750339 

(M.D.Fla. Aug. 17, 2020) also held that documents should be concealed where the “proposed seal 

does not implicate the general presumption that substantive aspects of a civil action are a matter 

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of public concern, and instead relates to the parties’ confidentiality and access-to-information 

interests during the conduct of discovery, the Court grants the motion to seal.” Id.

Local Rule 5.4 of the Southern District of Florida, Filings Under Seal; Disposal of Sealed 

Materials allows documents to be filed under seal. Local Rule 5.4 sets forth the procedure to file 

a document under seal stating that “a party seeking to file matters under seal and/or ex parte shall 

follow the procedures prescribed by this Local Rule and Sections 5A, 5K, 9A-D, and 10B, as 

applicable, of the CM/ECF Administrative Procedures.” Section (b) sets forth the procedure for 

filing under seal in Civil Cases . A party seeking to file information or documents under seal in a 

civil case shall:

(1) In a case that is not otherwise sealed in its entirety as permitted or required by 

federal law, file and serve electronically via CM/ECF a motion to file under seal 

that 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 (the 

“proposed sealed material”) with as much particularity as possible, but without 

attaching or revealing the content of the proposed sealed material. The proposed 

sealed material shall not be filed unless the Court grants the motion to file under 

seal. The motion to file under seal shall specify the proposed duration of the 

requested sealing. The motion to file under seal and the docket text shall be publicly 

available on the docket. If, prior to the issuance of a ruling on the motion to file 

under seal, the moving party elects or is required to publicly file a pleading, motion, 

memorandum, or other document that attaches or reveals the content of the 

proposed sealed material, then the moving party must redact from the public filing 

all content that is the subject of the motion to file under seal. If the Court grants the 

motion to file under seal, then the moving party shall file any pleading, motion, 

memorandum, or other document that has been authorized to be filed under seal via 

CM/ECF using events specifically earmarked for sealed civil filings, but if a 

redacted filing previously has been made or is accompanying the sealed filing, then 

the material that is being filed under seal shall be filed as an attachment to a “Notice 

of Sealed Filing” which shall be filed via CM/ECF (using events specifically 

earmarked for sealed civil filings). The 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.

...

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The Office of Clerk for the United States District Court in the Southern District Court of 

Florida, Civil Filing Requirements Rule 2L states as follows:

2L. Sealed Documents 

Documents and cases are sealed when it is determined by a Judge that the 

information contained in them should not be a part of the public record. Sealed 

documents are not available for inspection by case participants or the public. 

Effective December 1, 2015, attorneys authorized to file electronically in the 

CM/ECF system must file sealed documents electronically in civil cases otherwise 

open to the public. In instances where the entire civil case is sealed, the initial 

complaint or other initiating documents as well as subsequent sealed filings must 

continue to be filed conventionally. Parties seeking to file matters under seal must 

follow the procedures prescribed by the CM/ECF Administrative Procedures and 

Local Rule 5.4. 

Note: In civil cases only, the Motion to Seal (not the proposed sealed filing) and 

the docket text will be publically available on the docket unless otherwise ordered 

by the Court. 

The Motion to Seal must explain the basis for departing from the general policy of 

public access to filings. The motion must specify how long the party is requesting 

to have the matter sealed. In addition, the filing party must submit a proposed order. 

The proposed filing to be sealed must be clearly marked as “sealed document”.

In the instant case, Defendants are seeking to seal documents already filed that contain 

attorney-client privileged information in the Declaration of John Bostany (Docket Entry 47), 

Declaration of Nicole Salcedo with attached exhibits (Docket Entry 46); do not pertain to any of 

the central issues to be decided in this lawsuit. 

It is anticipated that Plaintiff has not consented to this motion because it plans to seek to 

capitalize on the misfortune between Defendants and their prior counsel by arguing that the 

Defendants hasty disclosure of general reference to attorney client communications should be used 

against them. The references to communications between Defendants and their counsel go to the 

central issues in the case. 

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To be sure, “[t]he attorney-client privilege may be waived in the following instances: (1) 

when a client testifies concerning portions of the attorney-client communication; (2) when 

a client places the attorney-client relationship directly at issue; and (3) when a client asserts 

reliance on an attorney’s advice as an element of a claim or defense.” Jones v. RS&H, Inc., 2018 

WL 538742, at *2–3 (M.D. Fla. 2018)

In Jones, the defendant testified as to communications with her counsel and relies upon the 

legal advice in defense of her claims. Id. Thereafter, counsel advised by letter that defendant would 

not use the disclosed communications to support a good faith defense in this case. Id. “Further, 

Defendant did not raise reliance on the advice of counsel as an affirmative defense in this action. 

(See Dkt. 8.) Butterworth v. Lab. Corp. of Am. Holdings, No. 3:08–CV–411–J–34JRK, 2010 WL 

11470895, at *6 (M.D. Fla. Dec. 2, 2010) (explaining that defendant’s assertion of good faith as 

an affirmative defense “is separate and apart from the advice it received from counsel” because 

defendant “has not relied on, and does not intend to rely on, [defendant’s corporate 

representative’s] deposition testimony referencing his conversations with in-house counsel to 

prove Defendant acted in good faith in its compliance with Title VII”).” Id. 

Here 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. Sealing 

the disclosures which refer to an internal dispute between the Defendants and their counsel 

regarding levels of cooperation in discovery will serve to shield Defendants and ADDG from 

prejudice stemming from this satellite issue. 

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CONCLUSION

WHEREFORE, Defendants respectfully request this Court to allow the Defendants to seal 

the Declaration of John Bostany (Docket Entry 47), Declaration of Nicole Salcedo with attached 

exhibits (Docket Entry 46) and to allow the Declaration of Richard Egan with evidence to be filed 

in camera in the event the Court believes additional evidence is necessary at this time.

Respectfully submitted on October 21, 2020,

By: /s/ Dania S. Fernandez z 

Dania S. Fernandez, Esq.

Dania S. Fernandez & Associates, P.A.

13500 SW 88 Street, Suite 265

Miami, Florida 33186

Phone: 305-254-4492

Fax: 305-254-4514

Email: dania@dsfpa.com

Attorney for Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 22, 2020, the undersigned presented the foregoing 

to the Clerk of the Court for uploading to the Case Management/Electronic Case Files 

(“CM/ECF”) System, which will send a Notice of Electronic Filing to Counsel of Record: 

Gavin Cunningham Gaukroger 

Berger Singerman LLP 

350 East Las Olas Blvd., Ste 1000

Fort Lauderdale, FL 33301 

(954) 525-9900 

Fax: (954) 523-2872 

Email: ggaukroger@bergersingerman.com

Claudia Ray 

Email: claudia.ray@kirkland.com

Dale M. Cendali 

Email: dale.cendali@kirkland.com

Shanti Sadtler Conway 

Email: shanti.conway@kirkland.com

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, NY 10022 

(212) 446-4800 

Christina Michele Perry 

Berger Singerman LLP 

1450 Brickell Avenue, Ste. 1000 

Miami, FL 33131 

Case 1:20-cv-22423-UU Document 59 Entered on FLSD Docket 10/22/2020 Page 5 of 7
305-755-9500 

Fax: 305-714-4340 

Email: cperry@bergersingerman.com

Brian R. Gilchrist

Fla. Bar No. 774065

Allen, Dyer, Doppelt + Gilchrist, P.A.

255 South Orange Avenue, 

Suite 1401

Orlando, Florida 32801

Telephone: (407) 841-2330

Facsimile: (407) 841-2343

bgilchrist@allendyer.com

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