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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY

TIMOTHY “CHAZ” STEVENS an individual, Case No: CACE 13-024010 Plaintiffs Div: 18 vs. THE CITY OF DEERFIELD BEACH, a municipal corporation, and JEAN M. ROBB, in her capacity as Mayor of Deerfield Beach, and individually, Defendants. _______________________________________/ PLAINTIFF’S VERIFIED RESPONSE TO WITNESS JIM LUSK’S ASSERTION OF JOURNALISTIC PRIVILEGE and MOTION FOR PROTECTICE ORDER

with INCORPORATED MEMORANDUM OF LAW NOW COMES the Plaintiff TIMOTHY “CHAZ” STEVENS (“STEVENS”), by

and through his undersigned counsel, and files this response to the claim of journalistic

privilege and Motion for Protective Order filed by witness Jim Lusk (“Lusk”), and says

further:

I. Background

Plaintiff STEVENS is the editor of an internet website blog called My Acts of

Sedition that focuses on investigation and publication of issues related to public

corruption. On October 28, 2013 the Plaintiff filed a two count complaint against the

Defendants THE CITY OF DEERFIELD BEACH (“CITY”), and its current mayor

JEAN M. ROBB (“ROBB”) claiming, in count I, violation of Florida’s Public Records

law (Chapter 199, Fla. Stat.), and in count II, seeking injunctive relief to obtain public

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records he claims are within the actual and/or constructive possession of the Defendants,

and which they have failed to provide upon lawful request. Specifically, leading to the

suit Plaintiff STEVENS sought copies of emails sent to, and by, Defendant ROBB

regarding any matters pertaining to the business of the CITY during a specified period of

time. STEVENS claims that the Defendants have withheld certain emails, while the

Defendants claim full compliance.

On November 14, 2013 the Defendants jointly filed a Motion to Strike the

Complaint as a Sham Pleading, and a Motion to Dismiss. Hearings on those motions have

not been set and the Defendants have thusly not filed any answer or affirmative defenses.

Despite this lack of litigation on the pleadings the parties have thus far engaged in limited

discovery. That discover is focused on the existence, or not, of specific email

communications to/from Defendant ROBB which Plaintiff STEVENS believes Mr. Lusk

either has in his possession or otherwise has information of relevance pertaining to them.

By answer to interrogatories, on January 21, 2014, ROBB denied the existence of any

such emails under oath. Based on information and good faith belief of the Plaintiff, Mr.

Lusk himself has indicated to third parties that such emails do in fact exist. In an effort to

resolve the apparent discrepancy the undersigned issued a subpoena for deposition to Mr.

Lusk. After multiple attempts to serve Mr. Lusk, which included his lying about his

identity and place of employment, and physically running inside a building to avoid the

process server, service was affected by “drop service” outside the building into which he

had fled. The deposition was set for April 30, 2014. On April 29, 2014 the undersigned

received a telephone call from an attorney named William Bucknam (sp?) who stated that

while he was not representing Mr. Lusk he wished to request a reset of date. Mr.

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Bucknam stated that he represented a company owned by Mr. David Eller. Mr. Eller is

also the owner of the Deerfield Beach Observer (”DBO”), the newspaper where Mr. Lusk

may be employed.1 Despite his having no affiliation with the DBO, and not representing

Mr. Lusk, as a courtesy the deposition was reset for one week until May 7, 2014. On May

6, 2014 Mr. Lusk filed the pending Motion For Protective Order claiming that he cannot

be forced to discuss or produce any emails he may or may not have within his possession,

to/from Defendant ROBB pursuant to journalistic privilege under §90.5051, Fla. Stat.

II. Introduction

Mr. Lusk has failed to plead the required factual specificity to assert journalistic

privilege. Further, no journalistic privilege applies to the emails sought by STEVENS as

they were not sent to, or received by, Lusk while he was working as a journalist under the

definition of the statute. Moreover, the alleged content of the emails does not relate to the

collection, gathering, editing, or publishing of news by Lusk. However, even assuming

arguendo that Lusk might properly assert the privilege, it is rebuttable and does not

withstand the three pronged test stated within the statute and its subsequent application

by Florida courts. Finally, the emails sought are by definition public record. The

availability of any such information to the public is protected by law. That law

supersedes any claim of journalistic privilege. To the extent any violation of public

records law, and/or Florida’s Sunshine law, §286.011, Fla. Stat., has occurred these

emails are evidence and must be produced.

III. Argument and Memorandum of Law

1 Mr. Lusk claimed to the process server that he has not worked for the newspaper in

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The Motion For Protective Order, on its face, fails to meet the statutory

requirements of §90.5051, Fla. Stat. and therefore must be denied. The substance of

Lusk’s motion is merely to establish that by statutory definition he is a professional

journalist (copy attached hereto as Exhibit “A”). 2 However, even assuming arguendo

that Lusk meets the definition of professional journalist he fails to qualify for the

privilege afforded to information or sources obtained while “actively gathering news”

within the “normal scope of his employment.” The assertion of journalistic privilege is

specific to the information or source for which disclosure is sought. Section 90.5015(2)

states:

A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes.

(emphasis added). Thus emails sought by STEVENS within Lusk’s possession are not

automatically protected by privilege simply because he otherwise happens to be a

journalist. The motion itself fails to set forth with any particularity the grounds upon

which Lusk claims the privilege, and therefore fails to meet the minimal requirements of

pleading. See Fla. R .Civ. P. 1.100(b).

Moreover, even extending the argument, again arguendo, that Lusk can make a

valid prima facie assertion of the privilege, it is rebuttable and does not withstand the

2 “Professional journalist” means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working… for a newspaper… 90.5015(1)(a), Fla. Stat.

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three-prong analysis incorporated within the statute:

[A] party seeking to overcome this privilege must make a clear and specific showing that: (a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought; (b) The information cannot be obtained from alternative sources; and (c) A compelling interest exists for requiring disclosure of the information.

§90.5015(2)(a)(b)(c), Fla. Stat. Rather than being extraneous or even ancillary to the

issues presented in this suit, the existence of the emails in Lusk’s possession are central to

STEVENS claim that the Defendants have violated Florida’s Public Records law, and

Sunshine law. These claims are not trivial and involve matters of significant public

policy. Florida courts have recognized the importance of issues involving strong public

policy even when litigated among private individuals in civil cases. See, News-Journal

Corporation v. Carson, 741 So.2d 572, 576 (Fla. 5th DCA 1999). Secondly, the emails

cannot be obtained from alternative sources. The Defendants have refused to produce

them, and in fact denied the their mere existence. (copy of answers to interrogatories

attached as Exhibit “B”). This action is taken, in part, to test the veracity of that claim.

Lastly, there is a compelling interest requiring Lusk to appear for deposition to be

questioned under oath regarding the existence of the emails from ROBB in his possession

or of which he is aware. These emails, and their content are public records. Their

accessibility to the public is inherent within their very nature. The journalistic privilege

contained within §90.5015, Fla. Stat., does not supersede the authority of other

conflicting statutes. In fact, the journalistic privilege is subservient to the application of

conflicting statutes, especially where those conflicting interests involve detection of

crimes.

At this juncture the existence of such emails is not only a relevant issue in this case,

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but is in fact evidence of possible criminal behavior. The case of Tribune Company v.

Huffstetler, 463 So.2d 1169 (Fla. 5th DCA 1984) is analogous and instructive here. In that

case a reporter was subpoenaed to testify regarding the source of, and information he

received regarding a confidential ethics complaint against two local politicians. Such

complaints are confidential by statute. The Court held that no journalistic privilege

trumps the proscriptions of another Florida statute. Citing Branzburg v. Hayes, 408 U.S.

665, 92 S.Ct. 2646 (1972), the Court stated:

It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.

at p. 1171. (Court’s emphasis omitted). That same holding applies here. Florida’s Public

Records law and Sunshine law mandate disclosure of the existence of the emails in

Lusk’s possession, as well as the information they contain. Lusk cannot be permitted to

contravene those laws by claiming exemption as a journalist. See also, Satz v. News and

Sun-Sentinel Co., 484 So.2d 590 (Fla. 4th DCA 1985). Moreover, even if Lusk claims not

to have this information in his possession he cannot be protected from being examined

about his knowledge of its existence and the circumstances related thereto. Tribune

Company v. Huffstetler, at p. 1171.

IV. Conclusion

In seeking protection from being deposed in this cause the witness Jim Lusk claims

journalistic privilege. However, his motion is insufficient as it does not state facts upon

which he qualifies for that privilege. Further, Mr. Lusk does not qualify as a journalist. In

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this instance as he has made no showing that the information sought was obtained by him

while working within the course and scope of his employment as a journalist. Further,

even if Lusk cold claim the privilege it is overcome by its relevance, unavailability, and

inherent compelling status. These emails are public record and Lusk is not entitled to

“secret harbor” simply because he claims to work for a newspaper. Finally, at this

juncture, the emails themselves are evidence of violations of Florida law, the Defendant’s

having failed to produce them upon Plaintiff’s lawful request. Plaintiff STEVENS

requests that this Court deny the Motion For Protective Order and compel Jim Lusk to

appear for deposition and submit answers under oath regarding any and all matters

related to the emails, as well as all matters that may lead to relevant testimony at trial.

ATTESTATION

I, TIMOTHY “CHAZ” STEVENS, hereby swear that the foregoing is true and correct to the best of my knowledge. ______________________________ TIMOTHY “CHAZ” STEVENS Dated: ____________________ STATE OF FLORIDA COUNTY OF BROWARD PERSONALLY APPEARED before me on the date signed above, the undersigned authority, TIMOTHY “CHAZ” STEVENS, who is personally known to me, or who has produced a driver's license as identification and who being first duly sworn, on oath, deposes and says that the foregoing is true and correct. WITNESS my hand and seal at ____________, Broward County, Florida, this ____ day of May, 2014. My Commission expires: ________________________ Notary Public

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished

by electronic mail to counsel for the Defendants, Mr. Stuart Michelson, Esq., at

smichelson@smichelsonlaw.com, and counsel for the witness Jim Lusk, Mr. Thomas

Connick, Esq. at tomconnick@gmail.com this 12th day of May, 2014.

/s David A. Frankel

David A. Frankel, Esq. Law Offices of David A. Frankel 20 South East 20th Street Fort Lauderdale, Florida 33316 Fla. Bar Number 741779 Telephone 954-557-2244 FAX 954-463-7840 designated email: davidfrankel7@gmail.com