adjusting for your deposition€¦ · • if the notice seeks the deposition of a corporation,...

Adjusting For Your DepositionStephen Marino • Illon Kantro • Rick Tutwiler •

Kathleen Spinella

PANELIST BIOS• Kathleen Spinella - AIG Claims, Inc.

• Playing the roles of Janebo Fisher and Dianebo Swinney

• Rick Tutwiler – Tutwiler & Associates• Playing the roles of Rick Saben and Urban Tutmeyer

• Stephen Marino – Ver Ploeg & Lumpkin• Playing the role of Plaintiff’s counsel

• Illon Kantro – Berk Merchant & Sims, PLC• Playing the role of Defense counsel

MOCK CASE SUMMARY

A HYPOTHETICAL SCENARIO

DISCLAIMER All characters, scenarios andissues described herein arefictitious. No portion of thispresentation is intended todisparage any member of theNCAA’s athletic community.

HYPOTHETICAL• Anticipating his eventual return to Miami from dismal Georgia, Mark Richt

purchased a beachfront condominium, located at 1234 Richt Condo DriveMiami Beach, FL 33139, through a foreclosure sale on September 30, 2005.

• Richt made three claims between October 1, 2005 and July 1, 2015:

1. October 24, 2005 (Hurricane Wilma) Richt received $1million for roofand interior water damage. In 2010, Richt’s made a supplemental claimfor damage to interior flooring, windows and sliding glass doors, whichsettled on July 1, 2016.

2. January 1, 2012 (A/C Leak) Following appraisal, Richt received $500Kfor damage to his walls, ceilings, and floors. The appraisal award waspaid at RCV on November 1, 2012.

3. February 1, 2015 (Vandalism)FSU fans spray painted, “Go Noles” onthe property’s exterior and first floor interior. Coverage was denied onApril 15, 2015, a lawsuit ensued and the parties settled at mediation onApril 30, 2016.

HYPOTHETICAL (CONTINUED)

• October 6, 2016• Category 3 Hurricane Matthew passes the condo at

10PM.

• October 7, 2016• Richt retains public adjuster, Urban Tutmeyer, of

Urban, Suburban & Any Other Claims, LLC.

• October 9, 2016• Richt signs an assignment of benefits in favor of

Saban Water Mitigation, owned by Rick Saban.

• Water mitigation services completed that same day.

HYPOTHETICAL (CONTINUED)• November 1, 2016

• Public adjuster reports claim to Orange Bowl Sun Life HardRock Insurance Company.

• Hard Rock’s IA, Dianebo Swinney, issues correspondenceadvising she was assigned to his claim and requesting aninspection.

• November 23, 2016• Though still awaiting a chance to inspect, Hard Rock’s IA

issues correspondence advising Hard Rock’s intends toexercise its repair option and requesting a call back tocoordinate repairs. The letter neither referenced the scope,cost or timeframe of repairs, nor who would perform them.Neither party followed up with the other.

HYPOTHETICAL (CONTINUED)• November 24, 2016

• Richt signs an assignment of benefits to the benefit of ACC Construction.

• December 1, 2016• ACC completes repairs.

• December 3, 2016• Richt, Saban and ACC, all represented by the same

attorney, each filed a separate lawsuit against Hard Rock.

HYPOTHETICAL (CONTINUED)

• December 23, 2016• All three lawsuits are served on Hard Rock with notices

unilaterally scheduling the deposition of, “Hard Rock’s CorporateRepresentative With the Most Knowledge of Claim Number8387899101,” for January 3rd, 4th and 5th, 2017. The notices didnot provide any anticipated areas of inquiry.

• Plaintiffs did not obtain the Court’s permission, or Hard Rock’sagreement, to conduct the depositions within 30 days of service.

• Hard Rock did not seek discovery prior to the unilaterallyscheduled dates.]

• December 30, 2016• Hard Rock serves a Motion for Protective Order, in each lawsuit,

asserting the depositions were not mutually coordinated; however,Defense Counsel forgot to set the motions for hearing.

HYPOTHETICAL (CONTINUED)• Additional Facts:

• The dates for the three unilaterally scheduled depositions pass withouteither party contacting the other to discuss the cases in any way.

• Written discovery was later exchanged between the parties.

• Neither Richt, nor Hard Rock, produced any materials or provided anyinformation relating to Richt’s prior claims in response to the other’sRequest for Production and Interrogatories.

• Richt did not object to Hard Rock’s discovery regarding his prior claims.

• Hard Rock objected to Richt’s discovery regarding his prior claims ongrounds of work product and relevancy, but Richt never set these forhearing.

• The cases were consolidated for discovery and a status conference washeld where the Parties’ counsel simultaneously proclaimed they requiredthe Court’s assistance to secure the opposing party’s deposition.

REQUESTING DEPOSITIONS

REQUESTING THE DEPOSITION OF A CORPORATION

• Rule 1.310(b)(6):• In the notice a party may name as the deponent a public or private

corporation, a partnership or association, or a governmentalagency, and designate with reasonable particularity the matters onwhich examination is requested.

• The organization so named shall designate one or more officers,directors, or managing agents, or other persons who consent to doso, to testify on its behalf and may state the matters on which eachperson designated will testify.

• The persons so designated shall testify about matters known orreasonably available to the organization.

• This subdivision does not preclude taking a deposition by anyother procedure authorized in these rules.

REQUESTING THE DEPOSITION OF A CORPORATION

• Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc.,109 So. 3d 329 (Fla. 4th DCA 2013)

• Notice should reference Rule 1.310(b)(6) and request a witnessdesignated testify, “about matters known or reasonably available tothe organization.”

• If its designee can’t testify to specified subject matter, corporationfailed to comply with its obligation and may face sanctions.

• When properly noticed, deposition testimony provided by acorporation’s designee is testimony of the corporation and binding.

• A notice requesting a designee with knowledge of, “the allegationscontained in the complaint,” is unduly broad and not a request for aRule 1.3.10(b)(6) representative, but rather one for the person with the“most knowledge” and, therefore, not binding.

RESPONDING TO A REQUEST FOR DEPOSITION

ANDDEALING WITH DEPOSITION

LOGISTICS

WHO WILL BE DEPOSED?• Review the notice ASAP.

• If the notice seeks the deposition of a corporation,analyze the areas of inquiry and determine whetherone or more individuals will be designated to testify.

• Remember the implications of Carriage HillsCondominium, Inc. v. JBH Roofing & Constructors,Inc.,109 So. 3d 329 (Fla. 4th DCA 2013)

BE REASONABLE!• Do:

• “My client is unavailable for the next six months because wealready scheduled her depositions in each of the 10,000 lawsuitsyou filed last week.”

• Don’t:• “My client’s public adjuster is unavailable for the next six months

because I know you’re going to seek his deposition in each of the10,000 lawsuits I filed last week. By the way, our Complaint wasserved with a Notice of taking your client’s deposition, so we getyour client’s deposition before you can take any.”

ADDRESS LOGISTICS EARLY!• Florida Rule of Civil Procedure Rule 1.310 (Fed. R. Civ.

Pro. 26(d) and 30)

• When can I schedule my deposition?

• After the commencement of the action; however, a Plaintiff needs leave of Court to schedule a deposition within 30 days of service.

• Can I videotape the deposition?

• Any deposition can be videotaped if proper notice is given.

• Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 2000) (Finding rule doesn’t prohibit notice from stating deposition could be videotaped).

ADDRESS THE LOGISTICS EARLY!• Avoid litigation over logistical concerns, when possible.

• Who goes first?

• Deposition location?

• Florida Rule of Civil Procedure 1.410(e)(2)

• A person may be required to attend an examination onlyin the county wherein the person resides or is employedor transacts business in person or at such otherconvenient place as may be fixed by an order of court.

• Espana Informatica, S.A. v. Top Cargo, Inc., 2008 WL 4444086(S.D. Fla. 2008) (Court seeks to “balance costs and hardships”associated with logistical issues).

COMMON AREAS OF DISPUTE:

• Castle Key Ins. Co. v. Benitez• 124 So. 3d 379 (Fla. 3d DCA

2013)

• State Farm Fla. Ins. Co. v. Aloni• 101 So. 3d 412 (Fla. 4th DCA

2012)

• State Farm Fla. Ins. Co. v. Desai• 106 So. 3d 5 (Fla. 3d DCA

2013)

• United Auto. Ins. Co. v. Riverside Med. Assocs.• 159 So. 3d 285 (Fla. 4th DCA

2015)

• State Farm Fire and Casualty Co. v. Valido• 662 So.2d 1012 (Fla. 3d DCA

1995)

• State Farm Mut. Auto. Ins. Co. v. Tranchese• 49 So. 3d 809, 810 (Fla. 4th

DCA 2010)

• Nationwide Ins. Co. v. Demmo• 57 So. 3d 982 (Fla. 2d DCA

2011)

• General Star Indem. Co. v. Atl. Hospitality of Fla., LLC• 93 So. 3d 501 (Fla. 3d DCA

2012)

• AREAS OF INQUIRY & SCOPE OF DUCES TECUM

COMMON AREAS OF DISPUTE:• EXPERT FEE

• Florida Rule of Civil Procedure 1.390(c)

• An expert or skilled witness whose deposition is taken shall beallowed a witness fee in such reasonable amount as the court maydetermine. The court shall also determine a reasonable time withinwhich payment must be made, if the deponent and party cannotagree. All parties and the deponent shall be served with notice ofany hearing to determine the fee. Any reasonable fee paid to anexpert or skilled witness may be taxed as costs.

• Chodorow v. Moore, 947 So. 2d 577, 581 (Fla. 4th DCA 2007) (Partyseeking award of costs bears burden of presenting evidence theirexpert's rate was reasonable and the time spent was necessary)See also Winter Park Imps., Inc. v. JM Family Enters., 77 So. 3d227, 230 (Fla. 5th DCA 2011)

COMMON AREAS OF DISPUTE:• Fla. Stat. §92.153 demand for payment to produce documents

• Note the rules:• Florida Rule of Civil Procedure 1.351. Production of Documents and Things Without Deposition

• (c) Subpoena. “…The person upon whom the subpoena is served may condition the preparation ofcopies on the payment in advance of the reasonable costs of preparing the copies…”

• Florida Rule of Civil Procedure 1.410. Subpoena

• (c) For Production of Documentary Evidence. “… the court, upon motion made promptly and in anyevent at or before the time specified in the subpoena for compliance therewith, may…(2) conditiondenial of the motion upon the advancement by the person in whose behalf the subpoena is issued of thereasonable cost of producing the books, papers, documents, or tangible things…”

VS.• (e) Subpoena for Taking Depositions. (1) “…The subpoena may command the person to whom it is

directed to produce designated books, papers, documents, or tangible things that constitute or containevidence relating to any of the matters within the scope of the examination permitted by rule1.280(b)...Within 10 days after its service, or on or before the time specified in the subpoena forcompliance if the time is less than 10 days after service, the person to whom the subpoena is directedmay serve written objection to inspection or copying of any of the designated materials. If objection ismade, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuantto an order of the court from which the subpoena was issued. If objection has been made, the partyserving the subpoena may move for an order at any time before or during the taking of the depositionupon notice to the deponent.”

AGAIN, BE REASONABLE!• Most disputes can be resolved via agreement or, at least,

narrowed.

• REMEMBER TO CALL YOUR OPPOSING COUNSEL BEFORERESORTING TO LITIGATION OVER AN ISSUE.

• It’s required and there are costs for failing to do so:

• 1.280(c) Protective Orders

• 1.310(d) Motion to Terminate or Limit Examination

• 1.380(a)(2), (4) and (d)

If all else fails…• Motion for Protective Order

• RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY

• (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, andfor good cause shown, the court in which the action is pending may make any order to protect aparty or person from annoyance, embarrassment, oppression, or undue burden or expense thatjustice requires, including one or more of the following:

• (1) that the discovery not be had;

• (2) that the discovery may be had only on specified terms and conditions, including adesignation of the time or place;

• (3) that the discovery may be had only by a method of discovery other than that selected by theparty seeking discovery;

• (4) that certain matters not be inquired into, or that the scope of the discovery be limited tocertain matters;

• (5) that discovery be conducted with no one present except persons designated by the court;

• (6) that a deposition after being sealed be opened only by order of the court;

• (7) that a trade secret or other confidential research, development, or commercial informationnot be disclosed or be disclosed only in a designated way; and

• (8) that the parties simultaneously file specified documents or information enclosed in sealedenvelopes to be opened as directed by the court.

• If the motion for a protective order is denied in whole or in part, the court may, on such terms andconditions as are just, order that any party or person provide or permit discovery. The provisions ofrule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

If all else fails…• Motion to Terminate or Limit Examination

• RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION • (d) Motion to Terminate or Limit Examination.

At any time during the taking of the deposition, on motion of aparty or of the deponent and upon a showing that the examinationis being conducted in bad faith or in such manner asunreasonably to annoy, embarrass, or oppress the deponent orparty, or that objection and instruction to a deponent not toanswer are being made in violation of rule 1.310(c), the court inwhich the action is pending or the circuit court where thedeposition is being taken may order the officer conducting theexamination to cease forthwith from taking the deposition or maylimit the scope and manner of the taking of the deposition underrule 1.280(c). If the order terminates the examination, it shall beresumed thereafter only upon the order of the court in which theaction is pending. Upon demand of any party or the deponent, thetaking of the deposition shall be suspended for the timenecessary to make a motion for an order. The provisions of rule1.380(a) apply to the award of expenses incurred in relation to themotion.

If all else fails…

• Motion to Compel and for Sanctions

• RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS

• (a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all personsaffected, a party may apply for an order compelling discovery as follows:

• (2) Motion. If a deponent fails to answer a question propounded or submitted under rule 1.310 or 1.320, ora corporation or other entity fails to make a designation under rule 1.310(b)(6) or 1.320(a)…the discoveringparty may move for an order compelling an answer, or a designation .... The motion must include acertification that the movant, in good faith, has conferred or attempted to confer with the person or partyfailing to make the discovery in an effort to secure the information or material without court action. Whentaking a deposition on oral examination, the proponent of the question may complete or adjourn theexamination before applying for an order. If the court denies the motion in whole or in part, it may makesuch protective order as it would have been empowered to make on a motion made pursuant to rule1.280(c).

• (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer shall betreated as a failure to answer.

• (4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shallrequire the party or deponent whose conduct necessitated the motion or the party or counsel advising theconduct to pay to the moving party the reasonable expenses incurred in obtaining the order that mayinclude attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faitheffort was made to obtain the discovery without court action, that the opposition to the motion was substantiallyjustified, or that other circumstances make an award of expenses unjust. If the motion is denied and afteropportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposedthe motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unlessthe court finds that the making of the motion was substantially justified or that other circumstances make anaward of expenses unjust. If the motion is granted in part and denied in part, the court may apportion thereasonable expenses incurred as a result of making the motion among the parties and persons.

DEPOSITION POINTERS

Tips for preparing:• How much time should be allotted?

• Case specific, but you can be sure:• A properly prepared deponent = • A poorly prepared deponent =

• Do some preliminary preparation long before.

• Know your file and have it organized.

• Bates labels make organization EASY Kill two birds with one stone and get organized during initial discovery. Besides:

• RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES (b) Procedure. “…When producing documents, the producingparty shall either produce them as they are kept in the usualcourse of business or shall identify them to correspond with thecategories in the request.”

Tips for preparing (continued):• Know the specific ground rules for your deposition. THEY CAN VARY!

• What materials should you review, bring and/or produce?

• What’s requested in duces tecum?

• MPO served? Objection to duces tecum asserted? Either ruled upon?

• Ground rules established via agreement or court ruling?

• Prepare notes? Understand the implications of reviewing items while testifying.

• Know the implications of testifying about items and information not previously produced/disclosed based privilege or relevancy.

• Be prepared for the hard questions; don’t avoid, EXPLAIN.

Tips for testifying:• Refusing to answer a question?

• Florida Rule of Civil Procedure 1.310(c) “…A partymay instruct a deponent not to answer only whennecessary to preserve a privilege, to enforce alimitation on evidence directed by the court, or topresent a motion under subdivision (d). Otherwise,evidence objected to shall be taken subject to theobjections…”

• Improper refusal Sanctions

Tips for testifying (continued):• Keep a clean record!

• Wait for questions to be completed beforeresponding.

• Don’t interrupt a question and assume youknow what is being asked.

• Wait to respond until attorneys raise and, ifnecessary, discuss their objection(s).

• Ask for clarification if you aren’t 100% sure youunderstand a question.

Tips for testifying (continued):• Again, keep a clean record!

• Take your time; contemplate your response.

• A minute can feel like an eternity, but itwon’t look like one on the transcript.

• Don’t hesitate to review whatever exhibitsand/or other materials that might berelevant to the pending question.

Tips for testifying (continued):• Yet again, keep a clean record!

• Don’t volunteer information that is not responsive to the question asked.

• You’re appearing to answer questions, not tell your story.

• Keep your responses short, simple and to the point.

Tips for testifying (continued):• Seriously, keep a clean record!

• Specifically identify any exhibits you referencein your responses.

• If referencing something depicted in aphoto, or a certain portion of a document,specifically identify it with a thoroughdescription and/or by annotating the exhibit.

• EXAMPLE: I knew the roof was leaking whenI saw this water stain shown in Exhibit “7,”which I am circling with a red pen.

Tips for testifying (continued):• Really, keep the record clean!

• Articulate your responses clearly and succinctly.

• Better to take several minutes to consider aquestion and provide a clear response than toprovide a vague, confusing response that leadsto hours of follow up questions.

• If you realize you misstated something earlier in thedeposition address and explain the mistake.

• Failing to correct a mistake/misstatement canhave severe consequences for your credibility.

Tips for testifying (continued):• We’re not joking. Do whatever you can to keep a clean record!

• Don’t guess or estimate.

• If you can’t remember something, or aren’t certain of aresponse, just say so. If explaining something someoneelse said/wrote, state whether you are paraphrasing ordirectly quoting.

• Be aware of when you are on/off the record as well as ofwhat’s part of the record.

• Not all items discussed during a deposition are marked asexhibits.

• Know which are and which are not, so you can tailor yourresponses to specifically identify the item.

Tips for testifying (continued):• One more time for anyone sleeping in the back...

KEEP A CLEAN RECORD!

• Don’t make jokes on the record.

• Depositions can become very informal andconversational; particularly with experiencedwitnesses and attorneys who have known oneanother for years.

• Keep in mind, however, those reading yourtranscript later on may misunderstand your jokes.

ABOVE ALL…• Keep your cool!

• Don’t get excited or angry.

• If you think a witness or attorney is tryingto get a rise out of you, you’re probablyright.

• Don’t fall for the trap!

OUR FICTITIOUSCHARACTERS DIDN’T

ATTEND THIS PRESENTATION.

LETS SEE HOW THEIR DEPOSITIONS WENT…

PLAINTIFF’S NOTICE FOR THE DEPOSITION OF HARD ROCK’S CORP. REP.

IN THE COUNTY COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CIVIL DIVISION CASE NO.: MARK RICHT,

Plaintiff, v. HARD ROCK INSURANCE COMPANY,

Defendant. __________________________________________/

NOTICE OF TAKING DEPOSITION PURSUANT TO FLA. R. CIV. P. 1.310(B)

TO: COUNSEL FOR HARD ROCK PLEASE TAKE NOTICE that the undersigned attorney(s) will take the deposition of Defendant, Hard Rock Insurance Co.,

by a representative or representatives designated pursuant to Fla. R. Civ. P. 1.3 10(b) with the most knowledge of Claim Number 8387899101.

NAME DATE AND TIME LOCATION

Corporate Representative of Hard Rock

January 3, 2017 10:00 a.m.

The Offices of the Hard Rock Insurance Co.

upon oral examination before Florida Deposition Solutions or any other Notary Public or officer authorized by law to take depositions in the State of Florida. The deposition is being taken for the purpose of discovery, for use at trial, or for such other purposes as are permitted under the Rules of Court.

PLAINTIFF’S NOTICE FOR THE DEPOSITION OF HARD ROCK’S CORP. REP. (CONTINUED)

SCHEDULE A

1. Hard Rock Policy No. 8675309 issued to Mark Richt, with effective dates of October 1, 2005 until Miami wins another

national championship, including all endorsements and riders thereto (the “Policy”); 2. Hard Rock’s processing, investigation and handling of claim number 8387899101, as an assignee of Mark Richt’s,

assigned claim number;

3. Hard Rock’s claim file pertaining to claim number 8387899101; 4. Hard Rock’s underwriting file for the subject property; 5. Hard Rock’s litigation file pertaining to claim number 8387899101;

6. All evaluations (if any) of the property damage resulting from Hurricane Matthew, and the Hard Rock’s assessment of

the value of the damages sustained by the hurricane;

7. Any settlement offers received or made by Hard Rock with respect to Mark Richt’s Claim;

8. All documents exchanged between the parties in this matter, including but not limited to documents produced by, orsent to, any other person or entity relating specifically to this matter;

9. The discovery responses served by Hard Rock; and

10. The facts supporting Hard Rock’s Affirmative Defenses.

Mock Deposition #1: Janebo Fisher, Corp. Rep. for Hard Rock

ISSUES: importance of prep time, necessity to explain basic info about theprocess (i.e., what the word deposition means) during prep, attitude, selecta corp. rep. willing to participate, unanticipated documents, avoidcontradicting attorney, etc.

IN THE CIRCUIT COURT OF THE11TH JUDICIAL CIRCUIT IN ANDFOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION

CASE NO.:

MARK RICHT,

Plaintiff,

vs.

HARD ROCK INSURANCE COMPANY,

Defendant.

____________________________________________/

DEPOSITION OF JANEBO FISHER

(Corporate representative for Hard Rock Insurance Company)

PLAINTIFF’S COUNSEL Q: Good morning.

JANEBO

A: The morning would be better, if I weren’t here,

wasting my time…

Q: Will you state your full name for the record,

please?

A: Janebo Fisher.

Q: Have you been deposed before?

A: No.

Q: I want to go over a few ground rules--

A: --No need. I’ll pass on the ground rules.

Q: But, I – Ok. What is your current occupation?

A: I am the superior Chief Executive Officer of the

Hard Rock Ins. Co.

Q: How long have you been the CEO of Hard Rock?

A: ‘bout 10 years.

Q: And in all of those 10 years, you’ve never been

deposed?

A: I don’t know what deposed means.

Q: I would have hoped your lawyer would have

explained it to you, but if he did not, I am happy to.

A deposition is what you are here to do today. It is a

process where you are asked questions by a lawyer.

You are under oath during the questioning, which

means you are sworn to tell the truth. Do you

understand that you are being deposed today?

Yes. I also understand that I don’t have much choice in

the matter.

Q: Have you ever been deposed before?

A: No.

Q: What did you do to prepare for your deposition

today?

A: Preparation is necessary to winning games.

Q: Excuse me?

A: No.

Q: Did you meet with your lawyers?

A: I don’t have time for that.

Q: Did you meet with any lawyers to prepare for

this deposition?

A: (glares at COUNSEL)

Q: Did you review any documents in order to

prepare for this deposition?

A: Nope.

Q: How do you plan to testify for this --- to answer

my --- Let me just ---. Excuse me. Please disregard

that. Let’s take a look at the deposition notice. Court

reporter, please mark this as Plaintiff’s Exhibit A.

Plaintiff’s Exhibit A Marked.

Q: I am handing over two copies—one for the

witness and one for counsel—of the Corporate

Representative Deposition Notice, marked for the

purposes of this Deposition as Exhibit A.

Would you please take a moment to review this

document, Ms. Fisher.

Witness reviews document.

Q: Please let me know when you are done reviewing

the document.

A: Done.

Q: Do you recognize this document?

A: I dunno.

Q: Have you seen this document before?

A: (Witness shrugs shoulders)

Q: Did the lawyers for Hard Rock, or any lawyers,

review this document with you?

A: Nope.

Q: Did you ask anyone what this document meant?

Q: Ms. Fisher, you understand that you are the

corporate representative in this case, right?

A: Yes.

Q: Would you agree with me that your answers to

my questions represent Hard Rock’s knowledge of

certain claims in this case?

A: Yes.

Q: You would also agree that you did nothing to

prepare for this deposition?

A: I didn’t need to prepare. I have all I need in my

brain. I’ve worked for this company for 10 years. Now

proceed with your questions, I’ll answer any question

but, I have work to do out on the field.

COUNSEL FOR HARD ROCK:

OBJECTION. My client means that within reason. Of

course, she won’t answer any questions.

A: That’s incorrect. I have the training and experience

to answer any question, which is why I didn’t need to

waste my valuable time meeting with these lawyers,

who would just over charge our company, to discuss

things that I already know and to waste my time.

Q: That’s good to know Ms. Fisher, thank you. Let’s

look again at Exhibit A. If you’ll take a look at

Schedule A. Do you see it?

A: Yes.

Q: Paragraph1 reads, “Hard Rock Policy No.

8675309 issued to Mark Richt, with effective dates of

October 1, 2005 until Miami wins another national

championship, including all endorsements and

riders thereto (the “Policy”);. What can you tell me

about the Policy?

A: Well, all that is handled by the Claims Department.

Q: I am going to need a lot more detail Ms. Fisher.

Are you able to provide me with detailed answers to

questions about the requested information within

paragraph 1 of the Notice?

A: No, but I am able to direct you to who has that

information.

Q: Are you able to provide answer to any of the

information detailed on the notice?

A: Not really detailed, no. But, I can find you

somebody else.

COUNSEL FOR PLAINTIFF:

Q: Can I speak with you privately off the record?

COUNSEL FOR HARD ROCK:

Yes, I think that is a good idea.

15 MINUTES RECESS TAKEN BY ALL PARTIES

Q: At this time, due to Ms. Fisher’s inability to

adequately address the information contained

within the Notice, this deposition will be concluded.

Counsel for Hard Rock has agreed to reschedule this

deposition a month from today, and to provide a

witness that is capable of answering my ---–

questions. Thank you.

JANEBO:

A: My inability? Your (pointing to COUNSEL FOR

HARD ROCK) lack of talent is the reason we are in

this situation. You are fired, and you better not be

expecting to be paid for your services.

Deposition concluded.

Mock Deposition #2: Dianebo Swinney, IA for Hard Rock

ISSUES: Witness provides unsolicited info, testifies topreconceived notions, places little emphasis on strengths of herposition and freezes when questioned on problems with her file.


CASE NO.:

MARK RICHT,

Plaintiff,

vs.


Defendant.

____________________________________________/

DEPOSITION OF DIANEBO SWINNEY

(Independent adjuster for Hard Rock Insurance Company)

COUNSEL FOR PLAINTIFF

Q: Good morning.

SWINNEY

A: Good Morning.

Q: Please state your full name for the record?

A: Dianebo Swinney.


A: Yes. I’ve been deposed at least 37 times, and I’ve won

every single one.

Q: Ok. I’m not sure what that means but since you’ve been

deposed before, I won’t waste any time explaining what a

deposition is or the ground rules. Let’s just jump right into

it.

A: Yes.

Q: What is your current occupation?

A: I am an independent adjuster and a head coach.

Q: How long have you been an adjuster?

A: 1 year

[. . . Background questions . . . Review of deposition notice . .

.]

Q: How did you become involved with this case?

A: I received a phone call from Ms. Fisher asking for some

help on the claim.

Q: Did she say anything else about this case on the phone?

A: Nope. That’s it.

Q: Did she send you any documentation?

A: Yeah, the company sent over a standard agreement that I

would operate as the adjuster and the claim file.

Q: And what was your understanding of what had occurred in the case up to that point? A: The condo was damaged by a hurricane. Richt sought the

help of Saban Water Mitigation to remove the water damage

from the condo. Saban agreed to help. Saban used like 80, or

some excessive number, of fans to dry the condo and other

various tools. Saban should have simply used 20 fans, free of

charge, because that’s what we do down here in the South. We

help each other out. I don’t know why he used so many fans,

maybe they were donated by supporters of his company.

Q: We will discuss all of those points, first, you say that

Saban used an excessive number

of fans, --

COUNSEL FOR DEFENSE

OBJECTION. Mischaracterizes prior testimony. You may

answer.

Q: -- let’s talk about that. First, how do you know that

Saban used fans to dry the condo?

A: Two ways. First, Saban’s invoice. Though, the invoice

doesn’t say exactly how many fans were used. Second, I was

able to recover a photograph that shows the use of many fans

surrounding the condo. I retrieved the pictures from drones that

Hard Rock sent out to assess the damage to various properties.

Q: What do you mean by drones?

A: The insurer uses unmanned flying robots, called drones, to

assess property damage. I don’t think Richt, the owner of the

condo was aware, or agreed to have his property assessed by

drones, but, in any event, the drones were sent. The drones then

mysteriously disappeared. When I went to the property to

assess the damage, I was told that the drones mysterious

stopped functioning crashed to the ground, destroyed some

landscaping around the condo and were thrown into the

garbage. When I was finally given access to the property three

months later, I looked through the garbage and was able to

extract some pictures from the discarded drones.

Q: Thank you. Let’s discuss those pictures. Court reporter

would you please mark these two pictures?

Composite Exhibit “A” Marked.

Q: Do you recognize these two pictures?

A: Yes.

Q: Would you please describe these pictures?

A: Yes. The first picture appears to be an aerial view of the

condo surrounded by many, many objects that I think are fans.

Wait. Are those fans? I don’t see any excess water, so I don’t

know why fans would be there. The picture is really poor

quality though. Really poor quality. Looking at it now, I’m not

sure I can tell what it depicts.

Q: Would you please describe the second picture?

A: Yes, the second picture appears to be a close up of Richt

with a football like he’s trying to strike down the drone.

Q: You can’t be certain that Richt is using a football to hit

the drone in the photo?

A: Correct. I am fairly certain that he is though. It wouldn’t be

the first time.

Q: Other than these photographs, what other information

did you rely on in coming to your conclusion?

A: Photographs, the policy, Saban’s invoice, and my field notes. Unfortunately, I don’t have any other materials or information regarding this loss. I guess I could have done

better, but we weren’t permitted to inspect the property until

December 2, 2016, after all the repairs were completed.

Q: So you agree you could have performed a more

thorough assessment of Mr. Richt’s claim?

A: Umm…I could always perform a more thorough

assessment, but I’ve got so many claims. I’ve gotta just review

the film, and move on to the next game.

Q: At any point did you even review the invoice submitted

by Saban Water Mitigation?

A: Of course I did. It was bogus.

Q: Could you be more specific when explaining your

evaluation of the invoice and what you believe would have

been the appropriate amount to be charge for drying the

property?

A: I believe that the fans were excessive and unnecessary. All

of Saban’s charges are unnecessary, a product of his

association with the SEC. I sensed this before I performed my

investigation. Hard Rock owes Saban nothing.

Q: Do you have any letters evidencing that Hard Rock

informed Saban Water Mitigation of this position?

A: Maybe, but I can’t seem to find any right now.

Q: I’m shocked. Let’s talk about some letters I found.

Court reporter would you please mark this letter as Exhibit

“B”?

Exhibit “B” Marked.

Q: Do you recognize the letter we’ve marked as Exhibit

“B”?

A: Yes, it’s my first letter to Mr. Richt acknowledging the

report of his claim and providing my contact information.

Q: This letter is dated November 1, 2016, correct?

A: Yes. That’s the same day this claim was reported.

Q: And it’s your sworn testimony that you weren’t

permitted to inspect the property until December 2, 2016,

an entire month after the claim was reported?

A: Yes.

Q: Do you have any documentation showing you requested

an opportunity to inspect the property prior to December 2,

2016?

A: Ummmm…

Q: Other than your November 1st letter, do you have any

other correspondence regarding Mr. Richt’s claim?

A: Ummm….let me see, sorry, my files are usually more

organized. I dropped my materials on the way here and all the

pages fell out of order.

Q: Forget it Ms. Swinney. Court reporter would you please

mark this next letter as Exhibit “C”?

Exhibit “C” Marked.

Q: Ms. Swinney, please take a look at the letter marked as

Exhibit “C” and tell me if this is Hard Rock’s letter

denying coverage for Mr. Richt’s claim.

A: Looks like it.

Q: Would you agree that Hard Rock’s denial letter that

we’ve marked as Exhibit “C” cites the wrong policy

number, claim number, date of loss, loss description and

insured location.

A: [Inaudible expletive].

Q: I take that as a yes. Is there anything else wrong with

the letter?

Defense Counsel: Form.

Q: You can answer.

A: Ummmm…

Q: Your insured’s name is Mark, not Mike, correct?

A: I think so.

Q: You think so?! Ms. Swinney, did you even know your

insured’s name when you denied his claim?

A: Sorry, I get nervous around celebrity types…

Q: Is that why your letter concludes with, “P.S. This is also

to notify you that we are cancelling your policy due to your

claims history and the fraudulent claims you keep

submitting. See you in Court ‘Cane. Boom!”

A: Absolutely not, that’s the truth!

Q: The truth? What proof do you have to support Hard

Rock’s position if these are the only letters you have and

you didn’t inspect the reported damage?!

A: Hang on. coverage is subject to the policy’s terms, which

state…hang on, I have it here somewhere… I just need to get

my file back in order.

Q: Order? Your letters don’t even cite the correct name of

your insured and you haven’t even been able to identify the

sections of the policy that support Hard Rock’s position!

A: That’s it, I don’t have to take this!

[Witness gets up to leave]

Q: Ms. Swinney, we’re not done here.

A: I am. Bye Felicia.

[Witness leaves/Deposition concluded]

HARD ROCK’S “FIRST CONTACT” LETTER

Dianebo Swinney, Claims Adjuster Hard Rock Insurance Company Tel.: (555) WE-ROCK [email protected]

November 1, 2016 Mark Richt 1234 Richt Condo Drive Miami Beach, FL 33139 RE: Insured: Mark Richt Policy Number: 8675309 Claim Number: 8387899101 Date of Loss: 10/06/2016 Loss Description: Hurricane Matthew Location: 1234 Richt Condo Drive Dear Mr. Richt: We acknowledge that on 11/01/2016 we received notice of the captioned claim. Your claim has been assigned to the undersignedadjuster who will advise and assist you in the process. If you have any concerns that require immediate attention, please contact medirectly at (555)WE-ROCK. Otherwise, at your earlisest convenience, please contact me to schedule an inspection of your property. We are required by The Chief Financial Officer for the State of Florida to notify you about a mediation process available to you oncovered residential claims with disputes of $500 or more. Please review the following pages for details and feel free to contact theundersigned if you have any questions about this program. We look forward to assisting you and ask that you please do not hesitate to contact us with any questions regarding your claim. Sincerely, Dianebo Swinney Florida Property Claims Adjuster

HARD ROCK’S COVERAGE POSITION LETTER

Dianebo Swinney, Claims Adjuster Hard Rock Insurance Company Tel.: (555) WE-ROCK [email protected]

January 2, 2017 Mike Richt 1234 Richt Condo Drive Miami Beach, FL 33139 RE: Insured: Mike Richt Policy Number: 123456789 Claim Number: 101112131415 Date of Loss: 01/09/17 Loss Description: Vandalism Location: 5678 Richt Condo Drive Dear Mr. Richt: This letter is our response for your claim for damage to your home. Your claim was reported to us on November 1, 2016. Unfortunately, neither you, nor your public adjuster, responded to our requests for an opportunity to inspect the property until December 1, 2016, after all repairs werecompleted. Additionally, neither you, nor your public adjuster, responded to our requests for:

1. Documentation supporting your claim; 2. Your recorded statement; 3. Your examination under oath; and 4. Your sworn proof of loss.

Further, you filed a lawsuit against Hard Rock, on December 3, 2016, prior to complying withthe terms and conditions of your insurance policy with Hard Rock, which provide, in relevant part:

HARD ROCK’S COVERAGE POSITION LETTER (CONTINUED)

SECTION I – CONDITIONS

Duties after Loss In the event of an occurrence which is likely to involve this policy, or if you or any other insured person under this policy is sued in connection with an occurrence which may be covered under this policy, you or an insured person must: 1. Give prompt notice to us or our agent;

* * * * 4. Protect the property from further damage. If repairs to the property are required, you must:

a. Make reasonable and necessary repairs to protect the property; and b. Keep an accurate record of repair expenses;

5. Cooperate with us in the investigation of a claim;

* * * * 7. As often as we reasonably require:

a. Show “us” the property; b. Provide “us” with the records and documents we request and permit “us” to makes copies; c. Any and all “insureds” must submit to recorded statements when requested by “us”; d. In the county where the “residence premises” is located “you”, “your” agents, “your”

representatives and any and all “insureds” must submit to examinations under oath and sign same when requested by “us”;

e. Permit “us” to take samples of damaged property for inspection, testing and analysis; and f. Any and all “insureds” must execute all authorizations for the release of information when

requested by “us”.


8. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:

a. The time and cause of loss; b. The interests of all “insureds” and all others in the property involved and all liens on the

property; c. Other insurance which may cover the loss; d. Changes in title or occupancy of the property during the term of the policy; e. Specifications of damaged buildings and detailed repair estimates; f. The inventory of damaged personal property described in 6. above; g. Receipts for additional living expenses incurred and records that support the fair rental value

loss; and h. Evidence or affidavit that supports a claim under Additional Coverage D.6. Credit Card,

Electronic Fund Transfer Card Or Access Device, Forgery and Counterfeit Money under Section I – Property Coverages, stating the amount and cause of loss.

* * * * Suit Against Us.

No action can be brought against us; unless:

a. There has been full compliance with all of the terms under Section I of this policy; and b. The action is started within 5 years after the date of the loss.


Our investigation of your claim was prejudiced by your failure to comply with the terms and conditions of your policy with HardRock. Moreover, your initiation of litigation prior to complying with your policy’s terms constitutes a materials breach of your policy.Accordingly, Hard Rock regrets to inform you that there is no coverage available for your claim. We hope you are satisfied with the quality of our service and ask that you please do not hesitate to contact us with any questions regarding your claim. Sincerely, Dianebo Swinney Florida Property Claims Adjuster P.S. This is also to notify you that we are cancelling your policy due to your claims history and the fraudulent claims you keepsubmitting. See you in Court ‘Cane. Boom!

Mock Deposition #3: Rick Saban, Saban Water Mitigation

ISSUES: Uncooperative witness lacking personal knowledge,appearing without records and demanding expert fee.


CASE NO.:

MARK RICHT,

Plaintiff,

vs.


Defendant.

____________________________________________/

DEPOSITION OF RICK SABAN

(Saban Water Mitigation)

COUNSEL FOR DEFENDANT

Q: Good morning.

SABAN

A: Good Morning.


A: Rick Saban.


A: In circuit court? I don’t like to talk about my experience in

circuit court, let’s focus on my time in county court.

Q: Sir, the question is, “Have you been deposed before?”

It’s yes or no.

A: Yes.

Q: What is your current occupation?

A: I own Saban Water Mitigation and am an expert in water

mitigation. Do you have my expert fee check? I’m not

testifying unless I get paid.

[Discussion off the record…Parties agree to address expert fee

issue with the Court]

Q: How long have you been in the water mitigation

business?

A: Since 2007, when I realized I liked county court better than

circuit court.

[. . . Background questions . . . Review of deposition notice . .

.]

Q: How did you become involved with this case?

A: I received a phone call from Mr. Tutmeyer saying he had a

claim that looked like an easy win and his client required my

company’s services.

Q: Did he say anything else about this case on the phone?

A: Nope. That’s it.

Q: Did he send you any documentation?

A: Just an email with the address of the property and a note to

bring every fan I could find.

Q: Do you have that email with you here today?

A: No.

Q: Did you bring any records with you here today?

A: Just this invoice.

Q: But the only document you brought here today is that

invoice, correct?

A: Yes.

Q: Did you receive our subpoena requesting that you

appear with your complete file?

A: Yes.

Q: Then why didn’t you bring any other records?

A: Because you didn’t agree to pay my invoice.

Q: Did you ever submit an invoice requesting payment for

your company’s production of its records?

A: No, but I’m sure my assistant called to request payment and

you refused to pay us the $10,000.00 we requested.

Q: How do you know that?

A: Because you always refuse to pay the amount we request.

Q: What occurred at the property that caused Mr. Tutmeyer to seek out your services? A: I have no idea.

Q: Well, what were you called there to do?

COUNSEL FOR PLAINTIFF

OBJECTION. Lack of predicate. Facts not in evidence. He

didn’t say he personally did anything. You may answer.

A: I was called to bring fans to the property and dry it out.

Q: Did you see water at the property?

A: I can’t remember.

Q: Did you personally visit the property?


Q: Did any of your employees work on the property?


Q: Let’s take a look at your invoice. Court reporter, please

mark this as Defendant’s Exhibit A.

Defendant’s Exhibit “A” Marked.

Q: Mr. Saban, taking a look at Defendant’s Exhibit A, is

this your invoice for work performed at the property?

A: Yes. Looks like it. Wow! $500,000.00, I really did bring

every fan I could find.

Q: Anyone help you carry all those fans to the property?

A: Yes. Some of my employees.

Q: What are their names?

A: I can’t recall.

Q: Are their names reflected in your records?

A: Maybe.

Q: Do you have any personal knowledge of your

company’s work at the property?

A: I know it was done, but can’t testify to any specifics without

consulting the records you wouldn’t agree to pay for.

Q: Could you testify to the specifics of this matter if you

had your records here today?

A: Sure. My files are exceptionally detailed.

[Discussion off the record…Parties agree to adjourn and

resume the deposition after the Court rules on Saban’s requests

for expert fee and payment for producing records]

Deposition adjourned.

INVOICE FROM SABAN WATER MITIGATION

INVOICE

FROM: Saban Water Mitigation “When the tide rolls.” TO: Mark Richt Condo Owner Invoice Summary:

Invoice for the remediation of excess water from the Condo—

Fans 400,000.00Other tools + 20,000.00Drone elimination + 50,000.00Miscellaneous + travel + 30,000.00

Total Owed: 500,000.00

Mock Deposition #4: Urban Tutmeyer, Public Adjuster

ISSUES: Witness refuses to produce records without payment andrefuses to answer questions based on claims of privilege.


CASE NO.:

MARK RICHT,

Plaintiff,

vs.


Defendant.

____________________________________________/

DEPOSITION OF URBAN TUTMEYER

(Urban, Suburban & Any Other Claims, LLC)

COUNSEL FOR DEFENDANT

Q: Good morning.

TUTMEYER

A: Good Morning.


A: Urban Tutmeyer.


A: Yes.

Q: About how many times?

A: About 3,000, more or less.

Q: In Florida?

A: It’s been a while since I’ve been deposed in Florida; there

haven’t been many storms here, so I pursued better career

opportunities elsewhere.

Q: What is your occupation?

A: I’m a public adjuster and the owner of Urban, Suburban &

Any Other Claims, LLC.

[. . . Background questions . . . Review deposition notice . . .]

Q: How did you become involved with this matter?

A: Mr. Richt gave me a call.

Q: How’d he know to call you?

A: We’ve been friends for quite a while?

Q: Really? You’re friends?

A: I assume. Can’t think of why else.

Q: Let’s take a look at a photo. Court reporter, please

mark this as Defendant’s Exhibit A.

Defendant’s Exhibit “A” Marked.

Q: Mr. Tutmeyer, please take a look at the photo marked

as Defendant’s Exhibit “A.” Do you recognize this photo?

A: Yes.

Q: Does this photo accurately portray the 15 story

billboard placed adjacent to Mr. Richt’s condominium the

day before Hurricane Matthew passed Florida?

A: Yes.

Q: Is it possible this billboard prompted Mr. Richt’s call?

A: I suppose it’s possible…

Q: Well, before this claim, had you ever received a personal

phone call from Mr. Richt?

A: No, but I think we’ve tweeted.

Q: Do you have an agreement with Mr. Richt for how you

are to be paid for your work in this matter?

A: Yeah, but it’s really just a handshake and friends helping

each other out.

Q: Does your agreement with Mr. Richt grant you a

percentage of any recovery had on his claim?

A: Maybe, it’s a very friendly agreement.

Q: May I see a copy of that agreement?

A: No. You wouldn’t pay my company’s invoice for the

reproduction of our records.

Q: Is that the invoice you sent seeking payment under

Florida Statute 92.153?

A: Yes.

Q: Did you receive the letter we sent you in response to that

invoice?

A: Yes..

Q: Let’s look at that letter. Court reporter, please mark

this as Defendant’s Exhibit B.

Defendant’s Exhibit “B” Marked.

Q: Mr. Tutmeyer, take a look at Defendant’s Exhibit “B”

and let me know if it’s an accurate copy of the letter you

received in response to your invoice for the production of

records responsive to our subpoena duces tecum.

A: Yes it is, but you’re wrong.

[Discussion off the record. Parties agree to subsequently

address Mr. Tutmeyer’s invoice with the Court. The Parties

further agree that Mr. Tutmeyer will be permitted to consult his

file for purposes of the deposition, without producing it and

without waiver of any right. Mr. Tutmeyer’s file is marked as

Defendant’s Composite Exhibit C.]

Q: Mr. Tutmeyer, looking at your agreement with Mr.

Richt, doesn’t it grant you 20% of any insurance benefits

recovered on his claim?

A: Appears so. Like I said, it’s a very friendly agreement.

Q: Then isn’t it true that the more money Mr. Richt

receives the more money you make?

A: I’m not a mathematician and I’m not answering that. It’s

privileged and between Mr. Richt, my company and my bank

account.

Q: Are you refusing to answer the question?

A: Will I run the ball when we’re up 33 and there’s less than a

minute to play? You know it!

Q: Court Reporter, please certify that question.

[Question certified]

Q: Mr. Tutmeyer, did you recommend Saban Water

Mitigation to Mr. Richt?

A: I can’t recall.

Q: Our subpoena requested you to produce any

correspondence exchanged between you and Mr. Richt, as

well as any you exchanged with third-parties in connection

with this claim. Do you have any such correspondence with

you here today?

A: I’m not answering that. It’s all privileged. My entire file is

privileged.

Q: Mr. Tutmeyer, the parties recently exchanged discovery.

The email I’m marking as Defendant’s Exhibit “C” was

produced in response to Defendant’s Request for

Production. Court reporter, please mark this as

Defendant’s Exhibit “C.”

Defendant’s Exhibit “C” Marked.

Q: Do you recognize this email?

A: How’d you get that?! That’s privileged! I’m not answering

any more questions. I’m outta here!

[Witness terminates the deposition].

PUBLIC ADJUSTER’S BILLBOARD

URBAN, SUBURBAN & ANY OTHER CLAIMS, LLCPROPERTY DAMAGE? CALL US AND WIN BIG! (EVEN YOU RICHT)

(555) 555-BUCKEYES

DEFENSE COUNSEL’S RESPONSE TO PUBLIC ADJUSTER’S REQUEST FOR PAYMENT OF INVOICE FOR PRODUCING DOCUMENTS RESPONSIVE TO SUBPOENA DUCES TECUM

January 30, 2017

VIA EMAIL - Attn: Urban Tutmeyer Urban, Suburban & Any Other Claims, LLC

Re: Mike Richt v. Hard Rock Insurance Company Case No.: 2017-9453 CA 01

Dear Mr. Tutmeyer:

We are in receipt of your correspondence, dated January 27, 2017, confirming your receipt of our subpoena duces tecum forthe production of documents without deposition in the above lawsuit.

Your letter estimates that you possess ten (10) pages of documents responsive to our subpoena, but conditions your production

of those documents on our payment of $10,000.00. In support of your demand for payment, you cite Florida Statute 92.153, whichstates, in relevant part, as follows:

92.153 Production of documents by witnesses; reimbursement of costs.— (1) DEFINITIONS.—As used in this section: (a) “Disinterested witness” means a person to whom a summons is issued with respect to documents involving or relating to transactions of others and who has not initiated a proceeding, is not a party to a proceeding, and is not the subject of investigation in a proceeding and who, at the time the summons is issued, is not an officer, employee, accountant, or attorney, or acting as such, for a person who has initiated, is a party to, or is the subject of investigation in a proceeding. (b) “Document” means any book, paper, record, or other data, or a reproduction thereof.

DEFENSE COUNSEL’S RESPONSE TO PUBLIC ADJUSTER’S REQUEST FOR PAYMENT OF INVOICE FOR PRODUCING DOCUMENTS RESPONSIVE TO SUBPOENA DUCES TECUM

(CONTINUED) (c) “Proceeding” means any civil or criminal action before a court; any investigation, inquiry, or proceeding before a grand jury, a state attorney, or a state, county, municipal, or other governmental department, division, bureau, commission or other body, or any officer thereof; any action before an officer or person authorized to issue a summons; or any administrative action authorized by law. (d) “Summons” means any subpoena, subpoena duces tecum, order, or other legal process which requires the production of documents. (2) REIMBURSEMENT OF A DISINTERESTED WITNESS.— (a) In any proceeding, a disinterested witness shall be paid for any costs the witness reasonably incurs either directly or indirectly in producing, searching for, reproducing, or transporting documents pursuant to a summons; however, the cost of documents produced pursuant to a subpoena or records request by a state attorney or public defender may not exceed 15 cents per page and $10 per hour for research or retrieval.

Urban, Suburban & Any Other Claims, LLC is not a “disinterested witness” as defined by Florida Statute 92.153 and,

therefore, is not entitled to the payment you have requested. We also note that your demand for $10,000.00 as payment for the laborrequired to produce your file is simply excessive and unreasonable.

Please contact the undersigned upon receiving this letter to discuss an appropriate arrangement to facilitate your production of

the records responsive to our subpoena. Your prompt attention to this matter is greatly appreciated.

Sincerely, Illon R. Kantro CC: Stephen A. Marino, Jr. VER PLOEG & LUMPKIN, P.A. 100 S.E. Second Street, 30th Floor Miami, FL 33131

EMAIL BETWEEN RICHT, TUTMEYER AND SABAN

From: Urban, Suburban & Any Other Claims, LLC Sent: Monday, December 26, 2016 10:43 AM To: Matthew Richt My Condo Cc: Saban Water Mitigation Subject: Confirming Agreement to Retain Richt: Your case is heating up and depositions are being set. Remember, don’tsay anything about my agreement not to produce the video I have of youpicking off Hard Rock’s drones with footballs in exchange for you retaining mycompany and Saban Water Mitigation. Saban: That goes for you too! Best regards, UT