Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOANNE JENKINS and

QUENTON WOODEN,

Plaintiffs,

vs. CASE NO.: 4:03cv208-SPM/AK

OFFICER CHUCK PERRY,

Defendant.

_________________________/

ORDER AFFIRMING MAGISTRATE JUDGE’S RULING

Pending before the Court is Plaintiffs’ Objection to Magistrate’s Order

(doc. 154). The order (doc. 152) prohibits Plaintiffs’ witness, Elaine Harper, from

testifying on Plaintiffs’ behalf at trial based on Ms. Harper’s refusal to answer

questions at her second deposition concerning the preparation of her own sworn

statement dated August 23, 2005 and the preparation of a letter written to Chief

McNeil on December 1, 2003. The order also grants Defendants fees and

expenses incurred as a result of Plaintiffs’ failure to comply with a previous order.

In a previous order (doc. 132), the Magistrate Judge granted a motion to

compel Ms. Harper to answer questions concerning the letter and the sworn

statement, despite objections raised by Plaintiffs’ counsel on Ms. Harper’s behalf

that the questions put Ms. Harper at risk of prosecution for unlicensed practice of

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 1 of 6
Page 2 of 6

1

 Plaintiffs’ attorney cited to § 454.23, Fla. Stat., which provides: “Any

person not licensed or otherwise authorized to practice law in this state who

practices law in this state or holds himself or herself out to the public as qualified

to practice law in this state, or who willfully pretends to be, or willfully takes or

uses any name, title, addition, or description implying that he or she is qualified,

or recognized by the law as qualified, to practice law in this state, commits a

felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

775.084.”

law. Inquiry about the letter and statement, the Magistrate Judge found, did not

reasonably put Ms. Harper at risk of prosecution because the documents did not

purport to be legal documents and did not implicate any of the acts proscribed by

the unlicensed practice of law statute1. The Magistrate Judge agreed, however,

that Ms. Harper should not be required to answer questions concerning the

preparation of pro se complaints and court documents filed by Plaintiffs. The

Magistrate Judge further recognized that Plaintiffs’ counsel did not have standing

to interject objections on Ms. Harper’s behalf and that Ms. Harper had retained

her own lawyer who could make objections.

 Despite the Magistrate Judge’s ruling, at Ms. Harper’s second deposition,

Plaintiffs’ attorney made a Fifth Amendment objection on Ms. Harper’s behalf

when defense counsel asked for the names of any family members present at

the time Ms. Harper first saw the letter to Chief McNeil. Plaintiffs’ attorney

explained that the line of questioning could lead to a prosecution of Ms. Harper

for the unlicensed practice of law. Plaintiffs’ attorney also objected on grounds of

relevance and to the form of the question when Ms. Harper was asked if she

prepared the letter, typed the letter, if she owned a computer, if she saw anyone

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 2 of 6
Page 3 of 6

else write the letter, if she had any knowledge as to whether anyone else

prepared the letter, if Plaintiff Joanne Jenkins prepared the letter, and if Plaintiff

Quenton Wooden prepared the letter. After each objection by Plaintiffs’ attorney,

Ms. Harper refused to answer the question and asserted her Fifth Amendment

privilege against self incrimination. With regard to her sworn statement, Ms.

Harper refused to answer and asserted her Fifth Amendment privilege when

asked if she typed the statement. In contrast to the numerous objections made

by Plaintiffs’ attorney, Ms. Harper’s own attorney remained relatively silent during

the second deposition.

After the second deposition, Defendants filed a motion to hold Ms. Harper

in contempt, or alternatively to preclude Plaintiffs from offering her testimony at

trial. In the motion, Defendants alleged that Plaintiffs’ attorney continued to make

Fifth Amendment objections on Ms. Harper’s behalf and prompted Ms. Harper to

invoke her Fifth Amendment privilege, despite the Magistrate Judge’s ruling and

the presence of Ms. Harper’s own attorney at the deposition. The questions Ms.

Harper refused to answer concerned the letter to Chief McNeil and Ms. Harper’s

sworn statement, which the Magistrate Judge previously ruled Ms. Harper was

required to answer.

Ms. Harper, through her own attorney, filed a response. In the response,

Ms. Harper argued that if she answered questions about the typesetting or other

physical features of the non-legal documents, the similarity of those papers to the

pleadings could establish a link that could aid in a prosecution for the unlicensed

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 3 of 6
Page 4 of 6

practice of law. Ms. Harper also argued that the questions concerning

preparation of the documents had no relevance to the proceedings.

In rejecting Ms. Harper’s argument and imposing a sanction prohibiting

Ms. Harper from testifying on Plaintiffs’ behalf, the Magistrate Judge noted that

he had already ruled that Ms. Harper was required to answer questions about the

letter and her own sworn statement. Second, the Magistrate Judge noted that

Ms. Harper’s refusal to answer questions went far beyond questions concerning

the typewriter or computer upon which the documents were produced. Third, the

Magistrate Judge found that Ms. Harper’s fear of prosecution lacked a substantial

or real basis because non-attorneys often help pro se litigants draft, research,

and file legal papers; which is allowable so long as a non-attorney does not sign

papers as a legal representative, charge for services, or hold herself out as

someone who is qualified to practice law. Fourth, the Magistrate Judge found

that Plaintiffs’ lawyer encouraged Ms. Harper not to answer the questions,

despite the Court’s prior ruling that Plaintiffs’ counsel had no standing to object

on Ms. Harper’s behalf.

 This Court can reconsider the Magistrate Judge’s order “where it has

been shown that the magistrate judge’s order is clearly erroneous or contrary to

law.” 28 U.S.C. 636(b)(1)(A). Under this standard, the Court will affirm the order

unless the Court has a definite and firm conviction that error has occurred. See

Linea Navira De Cabotaje, C.A. v. Mar Caribe De Navegacion, C.A., 169

F.Supp.2d 1341, 1355 (M.D. Fla. 2001); Nugent v. Hercules Offshore Corp.,

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 4 of 6
Page 5 of 6

1999 WL 1277536 at *1 (E.D. La. Dec. 28, 1999). 

In their objections to the Magistrate Judge’s order, Plaintiffs state for the

first time that Plaintiffs’ attorney did not intend to raise a Fifth Amendment

objection on Ms. Harper’s behalf, although Plaintiffs acknowledge that their

attorney expressed concern that Ms. Harper was being asked to incriminate

herself. Plaintiffs also explain that, although not previously noted in any motions

or responses, there was an issue of whether Ms. Harper actually signed some or

all of the pro se complaints, thereby making her fear of prosecution reasonable.

These arguments are not properly considered now because they could

have been, but were not, raised before the Magistrate Judge. “A party has a duty

to put its best foot forward before the magistrate: to spell out its arguments

squarely and distinctly.” Paterson-Leitch Co., Inc. v. Massachusetts Mun.

Wholesale Elec. Co. 840 F.2d 985, 990 (1st Cir. 1988). “Systemic inefficiencies

would be frustrated and the magistrate’s role reduced to that of a mere dress

rehearser if a party were allowed to feint and weave at the initial hearing, and

save its knockout punch for the second round.” Id. 

Even if Plaintiffs’ objections were considered, the Court finds that the

Magistrate Judge’s ruling should still be affirmed. A review of Ms. Harper’s

second deposition transcript shows that Plaintiffs’ attorney was prompting Ms.

Harper to claim a Fifth Amendment privilege. Furthermore, Ms. Harper’s refusal

to answer questions was contrary to the Magistrate Judge’s previous order. 

Moreover, Ms. Harper’s refusal to answer questions went beyond questions

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 5 of 6
Page 6 of 6

concerning the typewriter or computer upon which the documents were

produced. 

Based on the foregoing, the Court finds that Magistrate Judge Kornblum

did not err when he ruled that Plaintiffs may not call Ms. Harper as a witness on

their behalf at trial and granted fees and expenses to Defendants. Accordingly, it

is

ORDERED AND ADJUDGED:

1. Plaintiffs’ Objection to Magistrate’s Order (doc. 154) is overruled. 

2. The order (doc. 152) issued by Magistrate Judge Kornblum is

affirmed.

DONE AND ORDERED this 10th day of August, 2006.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

Case 4:03-cv-00208-SPM-AK Document 176 Filed 08/10/06 Page 6 of 6