Court filing
RESPONSE in Opposition re 63 MOTION for Leave to File text messages under seal filed… — Agent Fee Litigation (Dkt. 72)
Summary
Synovus Bank's objections to the plaintiff's motion to seal in Sport & Wheat CPA PA v. ServisFirst Bank Inc., et al., Case No. 3:20-cv-05425, in the U.S. District Court for the Northern District of Florida, dated July 6, 2020 and filed in response to the Court's July 2, 2020 Order. The plaintiff's motion (ECF Doc. 63) sought leave to file certain text messages under seal in connection with Synovus's motion to terminate the deposition of its corporate representative. Synovus objects that it was never given the unredacted text messages, that they are irrelevant to its motion to terminate, and that the plaintiff's privacy and Fla. Stat. § 90.5055 accountant-client privilege reasons do not support sealing. It also argues that the motion shows the need to grant its Motion to Terminate. The filing is signed by counsel Philip A. Bates and includes a word limit certification.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
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:
SPORT & WHEAT CPA PA, a Florida :
corporation, individually and on behalf of :
a class of similarly situated businesses and : Case No. 3:20-cv-05425-
individuals, : TKW-HTC
:
:
Plaintiff, :
:
:
v. :
:
SERVISFIRST BANK INC.; SYNOVUS :
BANK; THE FIRST, A NATIONAL :
BANKING ASSOCIATION; and :
TRUIST BANK, :
Defendants. :
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SYNOVUS BANK’S OBJECTIONS TO PLAINTIFF’S MOTION TO SEAL
The Court’s July 2, 2020 Order directed Synovus to file its written
objections to Plaintiff S&W’s “motion for leave to file, under seal, certain text
messages in connection with Defendant Synovus Bank’s Motion to Terminate Rule
30(b)(6) Deposition.” Pursuant to that Order, Synovus hereby objects on the
following grounds.
First, Synovus objects because Plaintiff has never provided those “certain
text messages” to Synovus despite Synovus’ multiple requests that Plaintiff do so.
Those “certain text messages” referenced in Plaintiff’s motion to seal appear to be,
based on the representations of Plaintiff’s counsel, the unredacted copies of text
messages that Synovus requested both during its Rule 30(b)(6) deposition and
immediately following the deposition. Plaintiff’s counsel refused to provide
unredacted copies of the text messages during the deposition, while he sought to
use copies he had himself redacted. Then, after the deposition, Plaintiff’s counsel
stated that he would “make production of the full set of documents that we have,
including all of the texts,” but Plaintiff’s counsel has refused and failed to do so.
See ECF Doc. 52-6. In other words, Synovus objects to Plaintiff’s motion to seal
because Synovus obviously cannot in good faith represent to the Court that
documents should be sealed from public view when Synovus has never even been
provided with the copies of those documents in Plaintiff’s possession.
Plaintiff admits it has never provided complete unredacted copies of the text
messages in its possession to Synovus. Plaintiff’s motion to seal states that
“Synovus has all of those texts which were used with the witness at the
deposition.” ECF Doc. 63 at 2. The “texts which were used with the witness at the
deposition” are, of course, the text messages as redacted by Plaintiff’s counsel;
2
that’s what was attached by Plaintiff’s counsel as exhibits to the deposition
transcript—not the unredacted text messages that S&W now seeks to seal.1
Second, Synovus objects because the unredacted text messages that
Plaintiff’s counsel refused to provide to Synovus both before and during the Rule
30(b)(6) deposition and continues to conceal from Synovus are simply irrelevant to
Synovus’ Motion to Terminate. The motion to seal filed by Plaintiff’s counsel is
merely a sideshow intended to try to distract the Court from the misconduct by
Plaintiff and Plaintiff’s counsel. It cannot credibly be denied that the Federal
Rules of Civil Procedure, the Federal Rules of Evidence, and professional courtesy
all required Plaintiff’s counsel to provide Synovus with unredacted copies of the
text messages when he sought to use parts of those texts messages during the Rule
30(b)(6) deposition. See ECF Doc. 52 (Synovus’ Motion to Terminate). In fact,
1
Plaintiff’s counsel also continues to make the baseless assertion that Synovus has
“always had access” to these text messages. ECF Doc. 63 at 2. Plaintiff’s counsel
knows that is not true. After promising on May 29, 2020 that he would identify the
mysterious “Borrower C” whom Plaintiff claimed was a PPP customer of Synovus
whom Plaintiff assisted (ECF Doc. 21 at ¶99), Plaintiff’s counsel then refused to
do so before the Rule 30(b)(6) deposition, making it difficult if not impossible for
Synovus to investigate whether any employee had in fact had any contact with
S&W on the one supposed PPP loan made by Synovus that is referenced in the
Amended Complaint. Additionally, as Synovus explained both during its Rule
30(b)(6) deposition and in its Motion to Terminate it is contrary to bank policy for
employees to do bank business via text message. 6/18/20 Synovus 30(b)(6)
Deposition Transcript at 65:15-23. (Synovus does not issue company cellphones
to its employees; cellphones are the personal property of Synovus’ employees. Id.
at 65:1-5.)
3
Plaintiff’s counsel should have provided any text messages he intended to use,
unredacted, before the 30(b)(6) deposition: Before the deposition, Synovus counsel
asked Plaintiff’s counsel to provide any communications S&W had had with
Synovus, including “texts between Sport & Wheat, or someone at Sport & Wheat,
and someone at Synovus” – obviously to prepare the 30(b)(6) witness. Plaintiff’s
counsel failed to do so.2
Third, Synovus objects because Plaintiff S&W’s stated reasons for seeking
to seal these text messages simply do not hold water. For example, S&W contends
that it seeks to seal the text messages out of concern for “the privacy of the [S&W]
employee” involved in the text message exchanges who “likely [did not]
anticipate[] that [her] private text messages would wind up on the public docket.”
ECF Doc. 63 at 3. However, the person involved in the text messages is not an
“S&W employee” at all – she is the first-named principal of the firm, Jill Sport.3
That S&W partner/principal was obviously involved in the decision to file this
lawsuit on “the public docket.” That S&W partner/principal made the decision to
turn the subject text messages over to Plaintiff’s counsel for use in this lawsuit.
2
The time to ask that unredacted text messages remain sealed until the parties
could reach agreement or the Court could decide a sealing issue was both before
and during the deposition – that is what is customarily done by lawyers exercising
professional courtesies who are not seeking to unnecessarily clutter up the Court’s
motions docket.
3
Jill Sport is identified in Plaintiff’s Amended Complaint as a Partner in S&W.
Doc. 21 at ¶130.
4
S&W even made the decision to file on the public docket copies of some text
messages from the same S&W partner/principal with S&W’s response to Synovus’
Motion to Dismiss. The very first text message S&W filed on the public docket
appears to show this S&W partner/principal sitting at her work desk with a bottle
of vodka. See ECF Doc. 56-1 at 2.
S&W also argues that the unredacted text messages should be sealed in light
of S&W’s “obligat[ion] under Fla. Stat. § 90.5055, the accountant-client privilege,
to safeguard its clients’ information from public disclosure.” ECF Doc. 63 at 3.
That is an exceedingly odd argument for S&W to make now, given that Plaintiff’s
counsel disclosed copious amounts of confidential information concerning S&W’s
clients to all the adverse defendants attending the Synovus’ Rule 30(b)(6)
deposition, without seeking any protective order or asking for ‘confidentiality’
pending Court decision of a motion for a protective order. Both of S&W’s
principals attended that deposition and knew that this confidential information was
being disclosed in the course of a public proceeding. S&W chose to disclose its
client’s confidential information when it perceived that doing so would benefit it,
again proving that Plaintiff’s motion to seal is nothing but a deliberate
sideshow/diversion.
Fourth and finally, Synovus notes that Plaintiff’s motion to seal proves the
necessity of an order granting Synovus’s Motion to Terminate its Rule 30(b)(6)
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Deposition. Plaintiff claims that it needs to provide unredacted copies of the text
messages to the Court under seal so that the Court can “see what was ‘redacted’
and why that was done” because Plaintiff “has a right to defend itself,” referring
to Synovus’ Motion to Terminate. ECF Doc. 63 at 2 (emphasis added). Certainly
the Court should “see what was ‘redacted’” – so should Synovus and the other
defendants. But that’s irrelevant to the question whether the unredacted text
messages should be “sealed,” again proving that Plaintiff’s motion is a deliberate
sideshow. But that statement by Plaintiff reveals more: clearly Synovus—as a
Defendant that S&W filed a lawsuit against—also “has a right to defend itself.”
Plaintiff and Plaintiff’s counsel decision to conceal the unredacted text messages
before, during, and after the 30(b)(6) deposition defeated Synovus’ ability and
right “to defend itself” by conducting a complete direct examination of the
Synovus 30(b)(6) witness about the text messages. Plaintiff’s counsel made the
deliberate decision to prevent a complete Record being made in the deposition –
that was the very purpose of his concealment of the unredacted text messages
before, during, and after the deposition.
When Plaintiff attempted to use redacted documents during Plaintiff’s cross-
examination of Synovus’ Rule 30(b)(6) corporate representative, the Federal Rules
of Civil Procedure, the Federal Rules of Evidence, and professional courtesy gave
Synovus the right to review unredacted copies of those documents in their entirety
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so that Synovus could conduct a complete direct examination of its witness based
on those documents and thereby “defend itself.” Indeed, Plaintiff admits in its
motion to seal that the redacted portions of the text messages Plaintiff attempted to
use during the deposition purportedly contain information that Synovus likely
would have wanted its corporate representative to consider on direct examination.
For example, Plaintiff contends that those portions of the text messages contain
information that allegedly “may not paint the bank employees in the best light.”
ECF Doc. 63 at 3. It is inconceivable that anyone would contend that Plaintiff’s
counsel may withhold such information from Synovus during the course of a Rule
30(b)(6) deposition in which Plaintiff’s counsel was clearly attempting to attribute
statements made by those same “bank employees” to Synovus. By refusing to
provide Synovus with unredacted copies of the text messages before, during, and
after the 30(b)(6) deposition, Plaintiff’s counsel deprived Synovus of its right to
determine which portions of the text messages should be considered by the
witness, in both the witness’ responses to questions during Plaintiff’s cross-
examination and on later direct examination by Synovus. Synovus was entitled on
its direct examination to have access to the complete document so that Synovus
could address any inaccuracies in the characterizations by Plaintiff’s counsel of the
text message exchanges.
Respectfully submitted, this 6th day of July, 2020.
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By: /s/Philip A. Bates
Philip A. Bates
Florida Bar #228354
PHILIP A. BATES, P.A.
25 West Cedar Street, Suite 550 (32502)
Post Office Box 1390
Pensacola, FL 32591
pbates@philipbates.net
(850) 470-0091
James E. Butler, Jr.
Georgia Bar #099625
Ramsey B. Prather
Georgia Bar #658395
BUTLER WOOTEN & PEAK LLP
105 Thirteenth Street
P.O. Box 2766
Columbus, GA 31902
jim@butlerwooten.com
ramsey@butlerwooten.com
(706) 322-1990
Paul J. Nathanson
Columbia Bar #982269
DAVIS POLK & WARDWELL LLP
901 15th Street, N.W.
Washington, D.C. 20005
paul.nathanson@davispolk.com
(202) 962-7000
Antonio M. Haynes
New York Bar #5151816
DAVIS POLK & WARDWELL LLP
450 Lexington Ave.
New York, NY 10017
antonio.haynes@davispolk.com
(212) 450-4000
Attorneys for Defendant Synovus Bank
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LOCAL RULE 7.1(F) WORD LIMIT CERTIFICATION
Pursuant to Northern District of Florida Local Rule 7.1(F), I certify that this
Motion to Terminate Rule 30(b)(6) Deposition is in compliance with the Court’s
word limit. According to the word processing program used to prepare this motion,
the document contains 1,565 words, exclusive of the case style, signature block,
and this certification.
By: /s/Philip A. Bates
Philip A. Bates
Florida Bar #228354
PHILIP A. BATES, P.A.
25 West Cedar Street, Suite 550 (32502)
Post Office Box 1390
Pensacola, FL 32591
pbates@philipbates.net
(850) 470-0091
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