26 Fla. L. Weekly Supp. 511a
Online Reference: FLWSUPP 2606BATIInsurance — Personal injury protection — Discovery — Depositions — Failure to appear — Sanctions — Attorney’s fees and court reporting costs
PARK PLACE THERAPY, LLC, (a/a/o Enrique F. Batista), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 18-CC-006791. Alissa M. Ellison, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff.
ORDER
THIS MATTER having come before the court on September 12, 2018 on Plaintiff’s Motion for Leave to Amend Complaint and Plaintiff’s Motion for Sanctions. The court, having reviewed the file, considered the motion, the arguments presented by counsel, applicable law, and being otherwise fully advised, finds,
1. Plaintiff’s Motion for Leave to Amend Complaint is hereby moot. Plaintiff’s Amended Complaint was filed on August 2, 2018, whereby Defendant filed its Answer and Affirmative Defenses on August 31, 2018.
2. Plaintiff’s Motion for Sanctions alleges that Defendant failed to timely provide deposition dates and that Defendant subsequently refused to appear for a noticed deposition without filing a Motion for Protective Order.
3. The court finds that court orders filed by Plaintiff whereby Defendant has been repeatedly sanctioned do reflect a pattern by the Defendant.
4. The court will give the Defendant the benefit of the doubt in this case based upon the allegation that its litigation adjuster had a “family emergency” on the morning of the deposition. However, any future allegations of “family emergencies” will be scrutinized by the court.
5. Defendant is ordered to pay sanctions to Plaintiff’s counsel. Defendant must pay Plaintiff’s counsel one (1) hour of attorney’s fees at the rate of $400.00 per hour, along with the court reporting costs of $95.00, for a total of $495.00, within thirty (30) days of the date of this order.
4. The deposition of Defendant’s Corporate Representative shall occur within seven- five (75) days of the date of this order.* * *26 Fla. L. Weekly Supp. 511bOnline Reference: FLWSUPP 2606PURC
Criminal law — Discovery — Cell phone pass code — Motion to compel defendant to produce cell phone passcode is denied where state found phone during inventory search of vehicle in which defendant driver and passenger were arrested, but state produced no evidence apart from fact that phone was found on driver’s side dashboard and has home screen picture depicting DJ turntable that proved that defendant owned phone or knew of its presence in vehicle
STATE OF FLORIDA, Plaintiff v. STEVEN M. PURCELL, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Criminal Division.. Case No. 2018 CF 9395 NC. August 16, 2018. Debra Johnes Riva, Judge.
ORDER DENYING STATE’S MOTION TO COMPELTHE DEFENDANT TO PRODUCE CELL PHONE PASSCODE
On August 14, 2018, in open court, the Honorable Debra Johnes Riva considered the State of Florida’s Motion to Compel the Defendant to Produce Cell Phone Passcode and the oral argument by both the State Attorney’s office along with Defendant’s counsel, hereby being fully advised as to Defendant’s and Plaintiff’s positions, the applicable Florida Statutes and Case law; find as follows:
1. The State proffered the testimony of their witnesses, reiterating the allegations contained in the probable cause affidavit.
2. On June 20, 2018 at time of the stop for the vehicle the Defendant occupied, there were two (2) individuals located in the vehicle, whom were both taken into custody.
3. On June 21, 2018, a search warrant for the 2010 black Mercedes Benz, being held at the Sarasota County Sheriff’s Department headquarters building, was issued by the Court and executed by Detective Pufnock. A return of search warrant was completed on June 21, 2018 whereby it is indicated that a “black iPhone” was one of eleven (11) items taken for inventory.
4. According to the State’s proffer, Derek Oelschlager, the passenger occupant, claimed ownership and possession of one (1) of the two (2) cell phones located in the passenger compartment of the vehicle.
5. According to the State’s proffer of their witnesses’ testimony, the second cell phone was located, by police officers on the driver’s side dashboard of the vehicle and not located on the Defendant or Oeschlager’s person.
6. The Defendant invoked his Fifth Amendment right at the time of his arrest and made no statements to law enforcement.
7. The day after the Defendant was taken in custody and arrested, law enforcement seized the iPhone from the vehicle pursuant to the search warrant and inventoried it as property item #52 under Sarasota Sheriff’s Office case number 18-050211.
8. According to the State in their motion and in court, a representative of the Sheriff’s office attempted to access the date on the iPhone, however it contained a passcode prohibiting their access.
9. The Defense raised a constructive possession argument regarding the cell phone due to the fact that the vehicle was occupied by multiple people both at the time of the stop and immediately prior to, disputing the State’s insinuation that the phone belonged to the Defendant due to its location in the vehicle and home screen picture depicting a dj turntable.
10. The Defense further argued that the State produced no evidence, let alone a serial number or other identifying code, which proved ownership of the phone held in evidence was that of the Defendant. Furthermore there was no evidence that the Defendant even knew of its presence in the vehicle.
11. This case is distinguishable from most due to the fact that the iPhone in question was not located on the Defendant’s person (actual possession) rather it was found in the vehicle by law enforcement, in a communal area that multiple people could have demonstrated dominion and control over it.
IT IS THEREFORE ORDERED that State’s Motion to Compel the Defendant to Produce Cell Phone Passcode is DENIED without prejudice.
