UNITED STATES DISTRICT COURT

Plaintiffs,

v.

Defendant.
__________________________________/

MOTION FOR PROTECTIVE ORDER AND STAY

Pursuant Federal Rule of Civil Procedure 26(c)(1), Defendant DARCY DAN moves this

Court for a protective order and stay to protect against her having to provide immediate

responses to deposition and discovery requests stemming from this Court’s Order (D.E. 232)

granting Plaintiffs’ Motion to Allow Financial Worth Discovery (D.E. 227).

In compelling Defendant to utter her financial worth after subjecting her to the prospect

of civil liability for disagreeing with governmental authority would be tantamount to the

undersigned facing liability for saying this court’s prior ruling was incorrect – which it was. To

effectively silence the Defendant then require her pronouncement of net worth cannot be a result

of this court’s orders while adhering to its duty to uphold the Constitution. “That a ruling may

burden litigants in ways that are only imperfectly reparable by appellate reversal of a final

district court judgment has never sufficed. Instead, the decisive consideration is whether delaying

review until the entry of final judgment would imperil a substantial public interest or some

particular value of a high order.” Mohawk v. Carpenter, 558 U.S. 100, 107 (2009) (citations

omitted). “Failure to [stay a discovery order] might necessitate long and expensive

trial proceedings, which, if not really warranted, would themselves offend the

principles enunciated in Dombrowski v. Pfister, 380 U.S. 479, 487 (1965), because

of the chilling effect of such litigation); Dombrowski, 380 U.S. at 487 (remarking,
“Moreover, we have not thought that the improbability of successful prosecution

makes the case different. The chilling effect upon the exercise of First Amendment

rights may derive from the fact of the prosecution, unaffected by the prospects of

its success or failure.”))

The existing posture of the case presents a legitimate need for judicial action to manage

further discovery in this matter: requiring Ms. Dan to disclose private and sensitive financial

worth information will impose immediate (and likely unnecessary) harm on Ms. Dan and (just as

bad) further threaten a substantial and significant public interest in constitutional speech. To

compel Ms. Dan’ disclosure of sensitive and private financial information before the appellate

court reviews1 (and affirms) this Court’s unprecedented summary judgment finding of liability

for defamation with actual malice grossly amplifies the “potential chilling effect” on the exercise

of free speech already imposed by the liability determination itself – already further compounded

by the subsequent protracted litigation that has taken place over the last two years since

judgment for the plaintiffs was entered. In extraordinary circumstances – “i.e., when a disclosure

order ‘amounts to a judicial usurpation of power or a clear abuse of discretion,’ or otherwise

works a manifest injustice--a party may petition the court of appeals for a writ of mandamus.”

Mohawk, 558 U.S. at 111 (2009) (citing Cheney v. U.S. Dist. Court for D.C., 542 U.S.

367, 380 (2004)). Due to this court’s action (and then persistent inaction) since September 30,

2020 (D.E. 160), Defendant has been obliged to petition for a writ of mandamus, resulting in this

request for protective order and stay.

The validity and duration of the requested protective order could be conditioned on

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It is Defendant’s position that “[a] writ of mandamus is warranted when a party
establishes that: (1) the right to issuance of the writ is clear and indisputable; (2)
the party has “no other adequate means to attain the relief” sought; and (3) the writ
is appropriate under the circumstances. Cheney v. U.S. Dist. Court for D.C., 542
U.S. 367, 380 (2004). Those are the circumstances of this case.
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review of the Court’s liability determination on “actual malice.” Given the potential public

consequences of judicially mandating immediate financial worth under the circumstances,

nothing short of temporary protection

BACKGROUND AND PROCEDURAL STATUS

This case arises from a defamation suit brought over 5 years ago alleging negligence and

defamation for statements Mr. Dan made – in public discourse – about an investigation

conducted by the Florida Department of Justice. The plaintiffs’ theory of the case rests on the

presumption that Ms. Dan’ statements are defamatory with malice because the statements she

expressed did not reveal law enforcement agents finding insufficient evidence statements that

were made during public discourse that were substantially true and based in opinion, but did not

align with determinations made during an investigation conducted by the Florida Department of

Justice. (D.E. 63).

Defendant moved for summary judgment under the Anti-SLAPP statute (D.E. 86-91),

Plaintiffs responded (D.E. 96-106; 113-121; 125; 128), and Defendant replied. (D.E. 110-111).

On August 15, 2020, this Court issued an order (D.E. 137): (1) granting Defendant’s motion for

summary judgment (D.E. 90) as to Plaintiffs’ negligence claim; (2) denying Defendant’s motion

for summary judgment (Id.) as to Plaintiffs’ defamation claims; (3) giving notice under Rule

56(f) that the Court intended to enter judgment in favor of Plaintiffs; and (4) permitting Plaintiffs

to provide supplemental briefing. Plaintiffs filed a supplemental brief on August 31, 2020 (D.E.

143) and Defendant responded (D.E. 147). Defendant also moved for reconsideration (D.E. 148)

of the Court’s August 15, 2020 order. Following briefing (D.E. 153; 158), the Court denied

Defendant’s motion for reconsideration (D.E. 159).

PROTECTIVE ORDER AND STAY

Perry v. Schwarzenegger, 591 F.3d 1147, 1158 (9th Cir. 2010) (“The

potential chilling effect on political participation and debate is therefore

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substantial, even if the district court’s error were eventually corrected on appeal

from final judgment. … Declining to exercise our mandamus jurisdiction in this

case, therefore, ‘would imperil a substantial public interest’ or ‘some particular

value of a high order’”) (quoting Mohawk Indus. v. Carpenter, 558 U.S. 100, 108

(2009).

On September 30, 2020, the Court entered its Order Granting Summary Judgement in

Favor of Plaintiffs (D.E. 160). At the conclusion of the Order, the Court stated, “the Court

reserves on the issue of damages and by separate order will set a status conference to determine

when and how to determine damages in this case. The Clerk is directed to CLOSE this case

solely for administrative purposes.” (Id. at Pg. 20). In the paperless portion of the Court’s

September 30, 2020 order, the Court terminated all pending motion including but not limited to

the Plaintiffs’ pending motion for attorney fees and costs. (Id.).

On October 12, 2020, Defendant moved to certify an appeal of the September 30, 2020

partial summary judgment order. (D.E. 161). Plaintiffs responded (D.E. 163) and Defendant

replied (D.E. 165, 166). Defendant filed an amended motion to certify on January 27, 2021 and a

corrected amended motion to certify on February 3, 2021. (D.E. 170, 171). However, Plaintiffs

informally objected to Defendant’s amended motion to certify, claiming that Defendant needed

to obtain leave of court before amending the motion. To eliminate this argument, Defendant

agreed to withdraw the amended motion and first file a motion for leave of court to amend its

original motion to certify. (D.E. 172, 174, 175, 176, 177). Plaintiffs opposed the amendment

(D.E. 178) and Defendant replied (D.E. 179). On May 7, 2021, the Court entered an order

granting Defendant’s motion for leave to amend its motion to certify. (D.E. 184). After obtaining

leave to amend, Defendant filed its amended motion to appeal on May 8, 2021. (D.E. 185).

Plaintiff responded on May 24, 2021 (D.E. 186) and Defendant replied on June 1, 2021 (D.E.

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187). On June 15, 2021, the Court entered an order denying Defendant’s original motion to

certify the appeal as moot in light of Defendant’s amended motion to certify the appeal. (D.E.

196). There has been no further record activity on Defendant’s motion to certify the appeal since

June 15, 2021.

On October 16, 2020, Plaintiffs filed their Motion for Reconsideration of Administrative

Order Terminating Motion for Attorney’s Fees and Costs. (D.E. 162). The gravamen of the

Plaintiffs’ position in their Motion for Reconsideration of Administrative Order Terminating

Motion for Attorney’s Fees and Costs, (Id.), was that the paperless portion of the Court’s

September 30, 2020 Administrative Order, (D.E. 160), closed the case and terminated all

pending Motions, including, but not limited to, the Plaintiffs’ Motion for Attorney’s Fees and

Costs. (D.E. 142). As such, the Plaintiffs argued that the Plaintiffs’ Motion for Attorney’s Fees

and Costs, (Id.), appeared to have been erroneously and unintentionally lumped in with the other

motions then pending on the docket that were likewise terminated.

On May 7, 2021, this Court entered an order indicating that it mistakenly terminated

Plaintiffs’ Motion for Attorneys’ Fees and Costs in its September 30, 2020 order imposing the

administrative closure. (D.E. 180). However, the Court only directed the Clerk to re-activate

Plaintiffs’ fee motion and did not address: (1) the need to set a status conference on the issue of

damages; or (2) Defendant’s pending motion to certify an appeal of the September 30, 2020

order. (Id.). By separate order, the Court also denied Plaintiffs’ motion for status conference as

moot. (D.E. 181). The Court referred Plaintiffs’ fee motion to Magistrate Judge Hunt for a report

and recommendation. (D.E. 183). On June 14, 2021, Judge Hunt issued his Report and

Recommendation recommending that the Court deny Plaintiffs’ motion for attorneys’ fees. (D.E.

195). Plaintiffs filed objections to Judge Hunt’s report and recommendation (D.E. 198),

Defendant responded to Plaintiffs’ objections on July 12, 2021 (D.E. 199), and Plaintiffs filed an

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unauthorized reply to Defendant’s response on July 19, 2021 (D.E. 200). There had been no

further record activity on Judge Hunt’s report and recommendation since July 19, 2021.

On September 13, 2021, after three months of no activity on Defendant’s motion to

certify the appeal and two months of no activity on Judge Hunt’s report and recommendation,

Defendant moved for a status conference to determine whether these items were on the Court’s

radar. (D.E. 201). The Court did not rule on the pending items and did not set a status

conference, but on October 20, 2021, the Court entered an order directing the parties (i.e.,

Defendant) to stop calling Judge’s chambers regarding a § 1292(b) motion. (D.E. 202). 2 Then,

Judge Cook denied Defendant’s motion to reopen the case (D.E. 207), denied Defendant’s

Motion to certify her summary judgment ruling for interlocutory appeal (D.E. 208), and denied

Defendant’s motion for status conference (D.E. 218). 3 Then, she directed this case to Magistrate

Judge Hunt again for a “report and recommendation as to the damages Plaintiffs sustained as a

result of the Defendant’s defamatory conduct.” (D.E. 215) and as to both of Plaintiffs’ further

objections (D.E. 217, D.E. 223). On May 31, 2022, Judge Hunt scheduled the zoom status

conference (D.E. 224) which was held on June 10, 2022. While his report and recommendation

on the sole vestigial issue in the case were imminent, on July 12, 2022, Chief District Court

Judge Cecilia M. Altonaga, sitting in Judge Cooke’s stead, inexplicably set aside Judge Cooke’s

own endorsed order (D.E. 215) which had referred the lone issue of damages to Judge Hunt for

report and recommendation, and, inter alia, set the issue of damages for jury trial during the two-

week trial calendar beginning October 24, 2022 (D.E. 226).

. On October 20, 2021, the District Court entered the following Order: “The parties
may not call chambers to ask about the status of pending motions, including motions for
extensions of time. The Court is aware of all pending motions and will address each of them in
due course.”

.
3
Petitioner’s motion for status conference, which was denied on April 12, 2022,
had been pending since September 13, 2021.
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 In response, Plaintiffs filed an Expedited Motion to Continue Trial and Related Deadlines

(D.E. 227) and Motion to Allow Financial Worth Discovery (D.E. 228) eight days later on July

20, 2022, resulting in the limited, yet unforeseen reopening of the case – one that had been

administratively closed for nearly two years – in one day and without a docket entry 4 notifying

counsel for the Defendant. The Notice of Hearing (D.E. 230) on Plaintiffs’ Expedited Motion to

Continue Trial (D.E. 227) was sent to counsel for Defendant’s office merely twenty-six hours

prior to the expedited hearing to take place on July 21, 2022 at 2:30 p.m. Defendant’s counsel

was unavailable on such short notice.

Then, the Court, through yet another set of hasty but well-intentioned decisions,

effectively silenced Defendant’s right to speak freely on the issues of financial worth discovery

and trial continuance, the decisions upon which Defense counsel finally became aware of only

upon receiving Judge Altonaga’s Order (D.E. 232) granting Plaintiffs’ (essentially ex parte)

Expedited Motion to Continue Trial and Related Deadlines (D.E. 227) and Motion to Allow

Financial Worth Discovery (D.E. 228). Significantly, the District Court Clerk for the Southern

District of Florida reassigned the entire case from Judge Cooke to District Court Judge Robin L.

Rosenberg (D.E. 233), now the third judge to take the bench on this case, and terminated all

deadlines regarding trial on August 24, 2022.

MEMORANDUM OF LAW

I. Reliance on a potentially unconstitutional finding to provide the prerequisite

reasonable basis for Plaintiffs’ punitive damages claim permitting financial worth
discovery is misplaced and oppressive.

. Plaintiffs’ erroneous filing of its combined Expedited Motion to Continue Trial

and Related Deadlines and Motion to Allow Financial Worth Discovery (D.E. 227) further led to
Defendant’s silence on the issue of financial worth discovery. The Clerk, pointing out and
correcting Plaintiffs’ “ERROR” in filing a “Motion with Multiple Reliefs Filed as One Relief,”
added paperless docket entry 228 “Motion to Allow Financial Worth Discovery … (For Image
See D.E. 227)” and stated “The docket entry was corrected by the Clerk. It is not necessary to
refile this document but in the future, the Filer must select all applicable events” (D.E. 229).
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 Federal Rule of Civil Procedure 26(c) specifically instructs the court to limit the

frequency or extent of discovery if justice so requires to protect a party or witness from

annoyance, embarrassment, oppression or undue burden or expense. (Id.) In determining whether

good cause exists, the federal courts have created their own balancing of interests approach. See

Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F. 3d 1304, 1313 (11th Cir. 2001)

(“Federal courts have superimposed a balancing of interests approach for Rule 26's good cause

requirement.”) (citations omitted). Thus, this Court should balance Defendant’s privacy and

business interests in keeping their financial information confidential and Plaintiffs’ interest in

discovering Defendant’s financial worth at the early stages of discovery in this matter. In

balancing those interests, this Court has broad authority to fashion a protective order that serves

the interests of the parties and the administration of justice.

Though it is true that generally, once a reasonable evidentiary basis for recovering

punitive damages is shown, financial worth discovery may be permissible due to federal

discovery rules’ liberal nature of quickly revealing all relevant information sought. See, e.g.,

State of Wis. Inv. Bd. v. Plantation Square Associates, Ltd., 761 F. Supp. 1569 (S.D. Fla. 1991);

Al-Site Corp. v. VSI Int'l, Inc., 842 F. Supp. 507 (S.D. Fla. 1993); Sanders v. Mayor's Jewelers,

Inc., 942 F. Supp. 571 (S.D. Fla. 1996); Contra Vital Pharmaceutical Inc. v. Ohel, 308 So.3d

160, 163 (Fla. 2020).

The Eleventh Circuit has divided the statute into two separate components: (1) the
pleading component … and (2) the discovery component, which requires a
plaintiff who has made a claim for punitive damages to produce evidence or make
a proffer of evidence that shows a reasonable basis for the punitive damages claim
("Discovery Component"). Porter v. Ogden, Newell & Welch, 241 F.3d 1334,
1340 (11th Cir. 2001). … [C]ourts within this Circuit have held that the
Discovery Component remains viable and is satisfied where a plaintiff pleads
specific acts committed by a defendant that provide a reasonable basis to support
a punitive damages claim. The court in Porter found that the plaintiffs made a
proffer of evidence that reasonably supported their punitive damages claim and
noted that "[u]nder Florida law, merely setting forth conclusory allegations in the
complaint is insufficient to entitle a claimant to recover punitive damages.
Instead, a plaintiff must plead specific acts committed by a defendant." Porter,

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 241 F.3d at 1341 (citations omitted). Thus, to state a claim for punitive damages,
a plaintiff must allege specific acts, not merely conclusory allegations. Id.

Wyndham Vacation Ownership, Inc. v. Square One Dev. Grp., Inc., 2022 U.S. Dist. LEXIS

93569 (M.D. Fla.2022). Here, Plaintiffs rely on the September 30, 2020 Order Granting

Summary Judgement in Favor of Plaintiffs XXX and Pike Randy (D.E. 160) to satisfy the

aforementioned “discovery component,” and therefore provide a reasonable basis to satisfy their

punitive damages claim. Not only does the Court provide Plaintiffs a reasonable basis for

punitive damages, it takes the unprecedented step of not only determining matters of law at the

summary judgment stage as it should, it plainly decides “the” issue of material fact which is

Defendant Ms. Dan’ state of mind. The court finds “actual malice.”

The Court states, “[t]he proof of ‘actual malice’ calls a defendant’s state of mind into

question and does not readily lend itself to summary disposition. Sullivan, 376 U.S. at 256.

However, here there is ample evidence of Defendant’s state of mind … This statement

demonstrates that Defendant deliberately chose to ignore the truth and deliberately chose to

perpetuate a false and baseless allegation against Plaintiffs.” (D.E. 160). The requirement is that

in libel actions, a plaintiff must prove "actual malice" with "convincing clarity." Loeb v. New

Times Communications Corp., 497 F. Supp. 85 (S.D.N.Y. 1980). This standard requires a clear

and convincing showing, which may be by circumstantial evidence, of defendants' actual state of

mind: either subjective awareness of probable falsity or actual intent to publish falsely. (Id.)

Therefore, a judge, in denying a defendant's summary judgment motion must conclude that,

based on the evidence asserted in the plaintiffs’ affidavits, a reasonable jury could find malice

with convincing clarity. (Id.) (emphasis added).

The standard allows a judge to find actual malice as a preliminary matter allowing denial

of a summary judgment motion. What it expressly does not do is allow the judge’s determination

at that point to take the place of the trier of fact making a finding of actual malice against the

defendant. The Court here went beyond its job of making a threshold determination and
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unconstitutionally usurped the ultimate responsibility of the trier of fact. This it cannot do. “The

two-step procedure in which both the trial judge and the jury must find actual malice before there

can be judgment for the plaintiff provides the protection of the First Amendment freedom in

areas of public concern.” Davis v. National Broadcasting Co., 320 F. Supp. 1070, 1074 n.1 (E.D.

La. 1970). Cf. Rosenblatt v. Baer, 383 U.S. 75, 88 at n. 15 (1966) (In support of its requirement

that the trial judge in the first instance determine whether the evidence shows the plaintiff in a

libel suit to be a public official: “Such a course will both lessen the possibility that a jury will use

the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate

court the record and findings required for review of constitutional decisions.” (Id. at n. 15)). Due

to the Court’s unconstitutional decision in finding “actual malice” and its subsequent prevention

and denial of any opportunity for review of any kind, Plaintiffs’ reliance on that decision as a

basis for entitlement to financial worth discovery is likewise unconstitutional.

Although the scope of discovery is broad under the Federal Rules, information is

discoverable only if “relevant to the claim or defense of any party” or “if it appears reasonably

calculated to lead to the discovery of admissible evidence.” F.R.C.P 26(b)(1). Relevance in this

context "has been construed broadly to encompass any matter that bears on, or that reasonably

could lead to other matter that could bear on, any issue that is or may be in the case." Akridge v.

Alfa Mut. Ins. Co., 1 F.4th 1271, 1276 (11th Cir. 2021) (quoting Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978)). Therefore, discovery does have “ultimate and necessary

boundaries.” Oppenheimer Fund, at 351 (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)).

“It is well established that the scope of discovery is within the sound discretion of the trial

court.” Coleman v. American Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994). The court "may,

for good cause, issue an order to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense." Auto-Owners Ins. Co. v. Southeast Floating Docks,

Inc., 231 F.R.D. 426 429 (M.D. Fla. 2005) Good cause represents the "sole criterion" for

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assessing the propriety of a protective order, and "it generally signifies a sound basis or

legitimate need to take judicial action." In re Alexander Grant & Co. Litig., 820 F.2d 352, 356

(11th Cir. 1987). If a discovery request is overly burdensome, the Court is authorized to deny the

request. Wright v. AmSouth Bancorporation, 320 F.3d 1198 (11th Cir. 2003); Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992) (same). The

Eleventh Circuit has identified four factors to consider in determining the existence of good

cause: "'[1] the severity and the likelihood of the perceived harm; [2] the precision with which

the order is drawn; [3] the availability of a less onerous alternative; and [4] the duration of the

order."' Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1205 (11th Cir. 1985).

Here, Defendant requests the Court issue a protective order because good cause exists

which illustrates and legitimate need to take judicial action: (1) immediate harm will result by

erroneously commanding Defendant to disclose sensitive and private financial worth information

since the compelling of such is based on a potentially unconstitutional decision of this very

Court; (2) the protective order’s validity can be conditioned upon review of the “actual malice”

determination by an appropriate reviewer; (3) nothing short of at least temporary protection of

the sensitive information will suffice under these facts; and (4) the order’s duration can be

conditioned on the immediate review of this Court’s prior “actual malice” determination.

II. Alternatively, Plaintiff’s Financial Worth Request for Production is wholly

overbroad and should be strictly limited.

The majority of the discovery improperly sought by Plaintiffs seeks documents reaching

back in time to the beginning of 2017. “[F]inancial records are relevant to the issue of punitive

damages, and, thus, are generally discoverable.” Lane v. Capital Acquisitions, 242 F.R.D. 667,

669 (S.D. Fla. 2005) (citing E.J. Lavino & Co. v. Universal Health Servs., Inc., 1991 U.S. Dist.

LEXIS 18505, 1991 WL 275767, at *1 (E.D. Pa. Dec. 20, 1991). Only current financial records

are relevant to a claim for punitive damages. Documents stretching back over six (6) years are

irrelevant to a determination of current net worth. “In the absence of any evidence tending to
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show that Defendants are trying to hide or shield assets … financial worth discovery for the

years prior to [the current year have] no relevance to the issue of punitive damages in this case.”

Stern v. John M. O’Quinn & John M. O’Quinn & Assocs. Pllc, 2008 U.S. Dist. LEXIS 141441,

at *12 (S.D. Fla. 2008). The requests to produce are similarly overbroad. (Id.); Woods v. Reeve,

2022 U.S. Dist. LEXIS 72666, at *8 (S.D. Fla. 2022).

Should Plaintiffs be allowed financial worth discovery prior to a determination of

whether the proffered evidence for punitive damages is reasonable (or, as here, whether the

proffer is even constitutional), it should be strictly limited to such financial discovery that bears

on defendant’s current net worth. Woods at *8 (S.D. Fla. 2022). Additionally, Defendant, if

required, requests it should be allowed to file all responsive documentation as “Confidential

Information – Attorneys’ Eyes Only,” with the information being disclosed solely to Plaintiffs’

counsel (See id.).

In light of that, Defendant further requests the Court consider the petition (“Exhibit A”)

attached to this motion for the entering of a Protective Order, whether stipulated to or not.

Counsel for Defendant certainly hopes opposing counsel would agree to such if ordered that

Plaintiffs receive any financial worth discovery at all. Defendant states it has already contacted

opposing counsel leading up to and on the date responses to Plaintiffs financial worth discovery

requests were due.

III. Certification of good-faith efforts to comply with discovery requests and attempts to
limit any financial disclosures.

Counsel for Defendant contacted opposing counsel on by email inquiring whether it

would be interested in entering into a stipulated protective order almost identical to the one

attached as Exhibit A. Having received no response, failing to have reached agreement with

opposing counsel, and in order to protect Defendant’s confidentiality and privacy interests,

counsel requests a full protective order be issued precluding any type of financial worth

discovery, or, in the alternative, the Court enter an Order requiring strict confidentiality if
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discovery is ordered to be disclosed.

WHEREFORE, in the interests of justice Defendant Dan prays this Court issue a

temporary protective order barring disclosure of financial worth information until the prior

“actual malice” finding of this Court receives at least preliminary review. In the alternative, she

requests the strict safeguards and barriers be put in place so her private and personal financial

information not be disclosed.

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