IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PANAMA CITY DIVISION

JOHN DOE 1, as parent and natural guardian of 

PLAINTIFF C, his minor child; JOHN DOE 2, as

parent and natural guardian of PLAINTIFF D, his 

minor child; JANE DOE 1 as parent and natural 

guardian of PLAINTIFF B and PLAINTIFF M, 

her minor children; JANE DOE 2, as parent and 

natural guardian of PLAINTIFF J, her minor child; 

JANE DOE 3, as parent and natural guardian of 

PLAINTIFF S, her minor child; and PLAINTIFF

L, 

 Plaintiffs,

 vs 

JOSEPH R. FRANCIS; MRA HOLDING LLC, a 

California limited liability company; MANTRA 

FILMS, INC., an Oklahoma corporation (d/b/a 

“Girls Gone Wild”); AERO FALCONS, LLC, a

Delaware limited liability company; MARK D. 

SCHMITZ; and RYAN DAVID SIMKIN, 

 Defendants. 

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Case No.: 5:03cv260-RS-WCS 

SUPPLEMENTAL MEMORANDUM OF LAW REGARDING FRANCIS’ PERSONAL 

FINANCIALS

Federal Rule of Evidence 501 does not allow California’s tax return privilege to protect 

Francis’ financials. Under Rule 501, analysis regarding the availability of a privilege in a 

diversity action is governed by the law of the forum state. Miller v. Transamerican Press, Inc., 

621 F.2d 721, 724 (5th Cir. 1980)1; Ashcroft v. Conoco, Inc., 218 F.3d 282, 285 n.5 (4th Cir.

 

1

 Under Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981), all decisions of the 

Fifth Circuit handed down prior to September 30, 1981, are binding precedent in the Eleventh 

Circuit. Thus, the Miller decision is binding precedent on the Northern District of Florida. 

DM1\1083137.1

Case 5:03-cv-00260-RS-WCS Document 297 Filed 03/30/2007 Page 1 of 4
2000); Dixon v. 80 Pine Street Corp., 516 F.2d 1278, 1280 (2d Cir. 1975). Florida is the forum 

state in this case. Thus, Florida’s privilege law, not California’s, applies.

In Miller, the Fifth Circuit, after reciting the aforementioned law, questioned if Texas, the

forum state, would apply its law. 621 F.2d at 724-25. Thus, if Florida had a choice-of-law 

provision relating to privileges, the possibility would exist that said provision would recognize 

the California privilege asserted by Francis. However, there is no such law in Florida. Instead, 

Florida law explicitly provides that except as provided by the Florida Evidence Code, other 

Florida Statutes, the Constitution of the United States, and the Constitution of the State of 

Florida, no privileges should be recognized. § 90.501, Fla. Stat. (2006). Recognition of the

California tax return privilege violates § 90.501. 

Tax returns are discoverable in Florida. Old Holdings, Ltd. v. Taplin, Howard, Shaw, & 

Miller, 584 So. 2d 1128, 1129 (Fla. 4th DCA 1991). In Old Holdings, the court was confronted

with the very issue before this Court, i.e., whether California income tax returns are 

discoverable. Id. at 1128. The appellate court found that the trial court did not err in compelling

the production of the California income tax returns. Id. at 1129. The appellate court stated that 

“since pretrial discovery is a matter resting largely within the discretion of the trial court, we 

believe the existence of a privilege under California law is simply a factor the trial court should 

consider.” Id. 

Plaintiffs are entitled to Francis’ personal tax returns under Florida law. This Court 

should not allow Francis to hide behind an inapplicable California accounting privilege. 

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Respectfully submitted, 

/s/ Larry Selander 

Larry Selander 

Daniel Small 

Thomas G. Dent 

Rachael G. Pontikes 

Duane Morris LLP 

227 West Monroe Street, Suite 3400 

Chicago, IL 60606 

(312) 499-6700 

Fax: (312) 499-6701 

and 

D. Ross McCloy, Jr. 

Robert A. Fleming, III 

Harrison, Sale, McCloy, Thompson 

 & Duncan, Chtd. 

Florida Bar No. 0262943 

Post Office Drawer 1579 

Panama City, FL 32402 

(850) 769-3434 

Fax: (850) 769-6121 

ATTORNEYS FOR PLAINTIFFS 

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Case 5:03-cv-00260-RS-WCS Document 297 Filed 03/30/2007 Page 3 of 4
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 30, 2007, copies of the foregoing were served via 

hand delivery and/or electronic mail: 

 Michael P. Dickey 

Barron, Redding, Hughes, Fite, Sanborn, Kiehn & Dickey, P.A. 

P.O. Box 2467 

Panama City, Florida 32402 

Michael Burke, Esq. 

1601 Cloverfield Avenue 

Suite 420 South 

Santa Monica, CA 90404 

and by U.S. Mail upon: 

 Mark Schmitz 

2509 Sherborne Blvd. 

Fort Wayne, IN 46805 

 

/s/ Larry Selander 

 

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