Lasswell Foundation for Learning and Laughter, Inc. et al v. Schwartz et al

MOTION to Compel Deposition of Schwartz

M.D. Fla.February 11, 2019

21845618v1 0955207 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LASSWELL FOUNDATION FOR LEARNING AND LAUGHTER, INC., FRED LASSWELL, INC., RED RYDER ENTERPRISES, INC., and GOLDBOOK, LTD., Plaintiffs, Case No.: 8:17-cv-00046-JDW-TBW vs. TIMOTHY SCHWARTZ, DESIGN TANK, INC., and DOES 1-10, Defendants. ___________________________________/ MOTION TO COMPEL CONTINUED DEPOSITION OF TIMOTHY SCHWARTZ The four separate Plaintiffs in this action, THE LASSWELL FOUNDATION FOR LEARNING AND LAUGHTER, INC., FRED LASSWELL, INC., RED RYDER ENTERPRISES, INC., and GOLDBOOK, LTD., file this Motion to Compel the continued deposition of Timothy Schwartz (“Schwartz”) and supporting memorandum, as follows. 1. Each of these Plaintiffs own separate trademarks, copyrights, creative content, archives, and business files required to run their separate businesses. Plaintiff Fred Lasswell Inc., in particular, was damaged severely by Defendant. Indeed the very existence of this entire business, and the entire legacy and archives of Cartoonist Fred Lasswell1, are at stake in this litigation. 1 Fred Lasswell (1916 – 2001) was raised in Tampa when his parents joined other Lasswell kinfolk who had lived in Tampa since 1909. He got his start in the comic industry in third grade, when his first comic strip “Baseball Hits” was published in Seminole Heights Elementary School’s “Searchlight” newspaper. That led to his first job at the Tampa Daily Times as a sports cartoonist. He got his first professional break when his poster for the Tampa Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 1 of 22 PageID 1349 2 2. This action for damages and injunctive relief was necessitated by Defendant Schwartz and his company’s Trademark Infringement, Copyright Infringement (concerning thousands of original copyrighted works owned by the four separate Plaintiffs), Cybersquatting, Common Law Unfair Competition, Unfair Competition, Conversion, Breach of Contract, and Fraud. (See Doc. 5). Plaintiffs’ ability to do business is at stake in this litigation. 3. Defendant Schwartz has created significant discovery issues in this case, as evidenced by his conduct last weekend. 4. When Schwartz was given leeway to depose Patricia Slesinger (either by travel to California or via videoconference, at Plaintiffs’ expense), Schwartz chose a videoconference deposition. However, Schwartz then failed to proceed with the deposition, which had been scheduled for Sunday, February 10, 2019 to avoid interfering with his schedule since he works during the week. 5. The Plaintiffs’ counsel, Jonathan Sbar, took the laboring oar to make all of the arrangements. The deposition was scheduled at considerable expense (of both time and money), and required extensive work and coordination between Plaintiffs’ counsel in Florida and Ms. Slesinger’s personal counsel in California. 6. In addition, Mr. Sbar and Enrique Schaefer (Plaintiffs’ IP/copyright counsel) both changed weekend travel plans in order to return to their offices to be present for the deposition. Ms. Slesinger, her counsel and the court reporter conducted a test of the video conferencing Chamber of Commerce Jamboree was seen at Palma Ceia by Billy DeBeck (who drew Barney Google at the time). As a member of the National Cartoonists’ Society, he was honored by the highest awards his industry could bestow, some of them twice. Fred Lasswell also created comics for the blind (that “feel funny”), a mechanical orange picker (way ahead of its time), and a method of harvesting electricity from the movement of the tides, and an original and captivating way to engage children through his “Draw and Color With Uncle Fred” series. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 2 of 22 PageID 1350 3 technology on Saturday, February 9, 2019. Although he was invited by email to participate in the test, Schwartz failed to do so. 7. Mr. Sbar also invited Schwartz to come to Mr. Sbar’s office, use his conference room facilities for the deposition, and even offered him the use of a laptop computer to participate in the videoconference as Schwartz had indicated that he wanted to utilize his laptop for the deposition and would need an additional computer for the videoconference. 8. However, Schwartz refused to participate in the deposition, ultimately claiming that the videoconferencing technology utilized was not adequate (even though it had been selected, tested, paid for, and fully implemented to commence the deposition as scheduled). Schwartz did not appear for the deposition, although Ms. Slesinger, Mr. Schaefer, Mr. Sbar, and local counsel in California (Michael Collum) appeared ready to proceed with the deposition. 9. Prior to this, Schwartz arbitrarily terminated his own deposition and refused to answer relevant and probative questions, without any legitimate basis for objection. The testimony he did provide at his deposition was generally evasive, non-responsive, and obviously designed to consume time and prevent Plaintiffs from obtaining useful testimony. 10. Schwartz chooses to have an attorney when it suits him, and appear pro se when he wishes to engage in gamesmanship and obfuscation, to prolong this litigation and make it more expensive for Plaintiffs.2 2 He was represented by counsel in this case when it was in California; he is represented by counsel in the 2014 Unlawful Detainer action involving the parties to this action; and, he filed a second state lawsuit against Plaintiffs and additional parties, in which he has an attorney –where he has taken opposition positions on certain facts. For example, in this case he declared he had no nexus to “Design Tank,” while in the state case he stated that at all times relevant he operated as “Design Tank.” Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 3 of 22 PageID 1351 4 11. This case must be buttoned down before it proceeds to trial – otherwise it will be a sideshow. The court should order that Schwartz appear and give meaningful testimony, even under the auspices of a discovery referee if necessary. 12. Schwartz has engaged in deception and sidetracking since the commencement of this case, and his limited deposition testimony establishes that he has attempted to mislead the Court. 13. Specifically, Schwartz filed a June 30, 2016 declaration in this case (prior to its transfer from California- Doc. 11-2) in which he declared: “I do not, nor have I ever had any affiliation with any corporation named “Design Tank, Inc.” in any state. However, he admitted in his recent deposition that he operated under the company name “Design Tank” for many years, in California: Q: So was it a -- was it you doing business as Design Tank? A: Yes. Q: Where did you come up with the name Design Tank? A: I just made it up. Q: And where was Design Tank located? A: In Los Angeles. (10:4-11). 14. Schwartz’s representation (under penalty of perjury) that he “does not and never has had” any affiliation with a corporation named “Design Tank” (which representation was made in a successful effort to defeat jurisdiction in California) when, in fact, Schwartz had, at all times relevant, being doing business as “Design Tank” (in California, and Indiana and Illinois), can most generously be described as misleading. Indeed, Schwartz operated under the Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 4 of 22 PageID 1352 5 name “Design Tank”, whether as Design Tank, Inc., Design Tank GFX, Design Tank net, or Design Tank Graphics. 15. In fact, while he testified in his deposition that he stopped working under the name “Design Tank” in 1999 (and then later confusingly testified, that it was around 2002). There are significant e-mail communications with one of the plaintiffs using various iterations of “Design Tank.” In his 2016 filing with an attorney, he claims that at all times between 2010 and 2013, he operated as Design Tank. His state case complaints includes alleged invoices from 2010 - 2013, which all have the same DESIGN TANK logo that appears on his designtank.com website, which he took down in 2014 (not 2002). 16. Only through deposition testimony - wrongly truncated by Schwartz - was counsel able to begin to unravel his layers of deception and hair-splitting. Absent a meaningful and complete deposition, the cross-examination of Schwartz (who is self-represented) at trial will be time-consuming, unduly burdensome, prejudicial to Plaintiffs, and confusing to a jury. 17. Schwartz has repeatedly made misleading statements in this lawsuit to unnecessarily prolong this matter. For example, on March 29, 2017 Schwartz asked this Court to take judicial notice (see First Request for Judicial Notice, Doc. 47), that he was not the registrant of the web domain name “cartoonys.com.” Cartoonys.com is directly related to Schwartz’s infringement of approximately 800 copyrighted Cartoony drawings, Cartoony Songs and other content owned by Fred Lasswell, Inc. When this infringement began to unfold, Schwartz abandoned Cartoonys.com. The name only (not the artwork) was released and another company who buys and sells web domain names for a profit, picked it up. When questioned with the attached full history report, Schwartz admitted that he registered this domain. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 5 of 22 PageID 1353 6 18. In his recent deposition, Schwartz admitted that he was, in fact, the registrant of both domains and that he used his parents’ Illinois address and his brother’s Indiana address (even though he was living in California at the time) for the registrant address. This is a prime example of Schwartz playing “fast and loose” with the truth. Schwartz testified: Q: Tell me, do you recognize Exhibit Number 8? Have you ever seen it before? Who is domain DayToLaughAndPlay.org? A: I see it. Q: Do you see where it says "Registrant Name" and "Registrant Company"? A: I do. Q: Do you see it says: Timothy Schwartz, Design Tank? A: I see it. Q: And it says: Registrant Administrative Contact, Registrant Technical Contact and it says Timothy Schwartz, Design Tank, doesn't it? A: Yes. Q: Does that refresh your memory as far as who registered this domain? A: It appears I used Design Tank as a business, yes.3 (129:4-21) Q: And why did you put the address when you registered it at 503 North Fair, Olney, Illinois 62450? A: Because that would have been my mailing address. Q: You received your mail in Illinois even though you lived in California? A: I did. (132:18-24) 3 Schwartz disingenuously claimed that a “Hong Kong Company” owned the domain. This company (which owns over 250,000 domain names) is a “cyber-squatting” company that only acquired the domain names after Schwartz abandoned them. This business buys and sells domain names for profit, especially those with content that has been abandoned. The name only transfers, not the content which Schwartz still retains. As a result, certain of Plaintiffs’ businesses appear to be “out of business,” and this cannot be rectified due to Schwartz’s refusal to provide access/login information when Plaintiffs demanded it. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 6 of 22 PageID 1354 7 A: This is Exhibit No. 9, WHOIS account for Cartoonys.com. Is the information here accurate, that in 2007, you set up the Cartoonys.com and made yourself the registrant? A: Yes, apparently. Q: You use 610 Bristle Lake Circle, which you told me is your brother's address, right? A: Yes (135:11-22) 19. The fact that he registered it in his name with his address, and that he made himself the administrator and the tech person, made him the “owner” of the domains and all their content, to the exclusion of Plaintiffs. He did not put any content to show it that Plaintiffs (or any of them) were the owners of the trademarked and copyrighted materials appearing in the domains. 20. This motion is necessary so that Plaintiffs can cut through the deception and button down Schwartz’s testimony, in the wake of his bad faith refusals to provide testimony at his deposition. Schwartz, who was represented by counsel in this action when it was pending in California, and who is presently represented by counsel in two Florida state court proceedings involving certain of the parties to this proceeding, is now intentionally abusing his pro se status in this action to waste time, assert spurious refusals to answer questions, and obstruct Plaintiffs’ ability (and right) to obtain a meaningful deposition. 21. In sum, Schwartz set his own rules and timetable, terminated the deposition after a half day, refused to answer relevant questions, and provided vague responses - all of which requires extra time to backtrack and button down his testimony. This single deposition must address all of the separate and distinct claims of the four plaintiffs, each of which has separate and extensive trademark and copyright archives. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 7 of 22 PageID 1355 8 22. Schwartz’s egregious conduct in this proceeding includes publishing outrageous, fabricated, salacious allegations of aberrant sexual conduct to a representative of a 50+ year business partner of a company owned by the Slesinger/Lasswell family (which is not a party to this litigation), all in retaliation for a good faith meet-and-confer effort made in this litigation. Schwartz has embarked on a scheme to gain the trust of Plaintiffs’ principals and gain access to their archives, and then abuse that access in order to infringe on Plaintiffs’ intellectual properties, confuse the public, dilute Plaintiffs’ brand equity, and frustrate Plaintiffs’ charitable endeavors. Schwartz has prevented Plaintiffs’ access to their intellectual property, has held hostage their passwords to websites and other internet marketing avenues, and has attempted to sully Plaintiffs’ wholesome reputation in the family entertainment market. 23. Schwartz preyed upon the kindness of Patricia Slesinger. His actions began within a few months after her mother, who ran Slesinger family businesses for 50 years, and was involved in her husband Fred Lasswell's business for 27 years, passed away in 2007. When he was finally caught cheating on an invoice he became vindictive and retaliatory. Although he had permission to stay in the guest house, in order to avoid being arrested in January of 2014 for being in the family home, he made up a story that he had a right to reside there. It took three years before Schwartz was forced to vacate, after a judge determined there was no basis for him to continue living for free at the property. In 2015, after Ms. Slesinger’s husband died unexpectedly, she gave Schwartz a chance to prove he had only moved considerable personal property as opposed to flagrantly stealing it - however, he continually refused to say where the property was. Further, he left the house in shambles. When he was caught, he became retaliatory. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 8 of 22 PageID 1356 9 24. Plaintiffs’ ability to do business is at stake in this litigation. Schwartz was hired to scan and archive, and duplicate, Plaintiffs’ archive contents into electronic files to prepare it to be donated to The Ohio State University, University of South Florida, and other important institutions. Instead of performing the archival services (for which he was paid significant sums), Schwartz removed an extensive collection of artwork and documents from the archive. 25. He did not even meaningfully start the project. He used a tentative, potential move, as an excuse to scour through every room and remove nearly everything, including furniture, to another location. 26. He also was hired to help determine what else, if anything, needed to be digitized before donating it. Above everything else, in selling himself, he emphasized that he knew how meticulously and properly handle the art and the material. In contrast - he rummaged through the archives, stealing portions and leaving other portions in complete disorder (with some original artwork simply scattered, unprotected, on the floor). Schwartz also created websites and online accounts with iTunes and YouTube and registered infringing Internet domain names to profit from the Plaintiffs’ exclusive trademarks, and to prevent Plaintiffs from accessing those trademarks. Schwartz has misrepresented to this Court the extent of his involvement with and control over these websites and domains. 27. Schwartz has irrevocably destroyed Plaintiffs’ brand equity because he diverted the ability to communicate (via mail, emails and website storefront) with their customers. He has accessed Plaintiffs’ computer data and taken confidential, attorney-client privileged documents and information. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 9 of 22 PageID 1357 10 28. For example, he repeatedly refused to cut the ties he had made between cartoonys.com and unclefred.com. This allowed him to divert traffic to cartoonys. When he abandoned cartoonys.com, old and new customers alike, seeking to buy items from unclefred.com reached a dead link. He knew that, after he abandoned it, a Hong Kong company picked up the name, but Schwartz retained the content, which he refused to give Plaintiffs access to). Thus, it appeared that unclefred.com was out of business. By stealing all of the digital files and backups, customer lists, log books, even rolodexes, related to the business he deliberately took away the tools that make the business run. The businesses can never recover from the lost traffic because there is no record a substantial investment will need to be made. However, to worsen matters, he has also taken the masters needed to make new inventory and create new production, including Fred Lasswell’s original cartoony artwork, cartoony lyrics, and cartoony music. 29. The volume of artwork, masters, storyboards, and other copyrighted materials associated with the Slesinger/Lasswell businesses’ cultural treasure trove is immense and irreplaceable. Virtually all of this intellectual property was moved by Defendant Schwartz, including original camera-ready artwork, masters, customer lists, and computers – everything Plaintiffs need to do business. Schwartz refuses to disclose the current location of this property. 30. The disappearance of the original camera-ready art needed to create further product for Red Ryder’s licensees has created a Herculean cost and burden, requiring Red Ryder to go to the marketplace, essentially to “buy back” its own archives needed to recreate the original, camera-ready art. 31. At a status conference on November 27, 2018, the Court agreed to permit the Plaintiff to serve third party subpoenas and to depose Schwartz. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 10 of 22 PageID 1358 11 32. Since the Court was aware that there is a related state court matter pending and depositions were noticed for December 12, 2018 and December 13, 2018 in the state case, the Magistrate ordered that the depositions of Schwartz and Patricia Slesinger occur on December 14, 2018. 33. During the status conference, counsel for the Plaintiffs noted that both federal court depositions could likely occur on one day if the state court depositions occurred on December 12 and December 13. 34. However, the state court depositions did not occur at that time because of medical issues with both parties. Schwartz’s state court deposition did not go forward because Schwartz’s counsel was unable to appear for Schwartz’s state court deposition as he encountered unexpected medical issues and had surgery on the day of Schwartz’s scheduled deposition. 35. Ms. Slesinger made travel arrangements and incurred significant funds in anticipation of traveling to Tampa. She rented, and paid for, a house paid for two 1/2 months in advance, got ahead of her business obligations, and made plans for others to step in for her while she was away. Unfortunately, the extensive preparation adversely affected her health, and she was unable to travel to Tampa based on the instructions of her primary care physician (Slesinger’s counsel spoke to the physician to confirm the travel restrictions and obtained a sworn statement from the physician which was made available to the Court for an in-camera inspection). 4Accordingly, on December 14, Schwartz was scheduled for deposition in the present matter whereas Slesinger was unable to appear. Instead of permitting the completion of 4 Patricia Slesinger’s deposition was scheduled to be conducted by videoconference on February 10, 2019; as set forth above, Schwartz failed to attend. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 11 of 22 PageID 1359 12 his deposition, at midday, Schwartz informed the undersigned that only a half-day was permitted and he would not stay. The undersigned advised Schwartz about the federal rules allowing for a complete day for deposition but Schwartz refused to remain. Specifically, Schwartz stated the following: A: No. You’re going to have few more questions and I’m going to go. Q: You’re refusing to proceed? I disagree but you’re telling me that you’re not going to continue the deposition? A: No. I’m telling you that your allotted time has passed and now it’s time for Ms. Slesinger’s deposition, as was scheduled. Q: As I said before, I believe, under the federal rules, I’m entitled to seven hours and I need to use the full amount of the time and want the full amount time. A: And I just gave you half a day. You hit half a day. Q: You’re refusing to go forward? A: I am, based on that. Mr. Sbar: Okay. We’re going to continue this deposition for now. (Exhibit A5, Deposition of Timothy Schwartz, Page 151:14-152:4) 36. Federal Rule of Civil Procedure 30(d)(1) states in relevant part that “unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” 37. Given the breadth of the counts at issue, the complexity and number of the copyrights at issue, and the volume of relevant documents (and most importantly, the fact that Schwartz’s state court deposition did not proceed), Plaintiff needs additional time to complete 5 A copy of the deposition without exhibits is attached as Exhibit A. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 12 of 22 PageID 1360 13 the deposition of Schwartz. Given Schwartz’s consistent refusal to answer direct questions, the Plaintiffs anticipate requesting additional time in excess of the full day to depose Schwartz.6 38. By way of example of his evasiveness, Schwartz was shown an email he obviously prepared on March 25, 2018 in response to a 3.01(g) request from the Plaintiffs’ prior counsel regarding a potential amendment of the complaint to include additional claims against members of Schwartz’s family. The email, which was sent to Patricia Slesinger (along with a third party representative of a significant business contact with a long term association with the Slesinger family, for the obvious purpose of damaging the business interests of an entity that is not even a party to this litigation) states the following in the “subject” line: “This will be my response to your lies about my (sic) me and my family” and then makes outlandish and false claims accusing various witnesses in this dispute and Lasswell family members (some of whom will be witnesses at the trial of this matter) of participating in unspeakably vile sexual conduct.7 Schwartz admitted the email was sent from his email address but refused to admit that he sent it. Q: I’m going to show you a document. I’m not going to mark it as an exhibit at this time. I’m just going to ask you some questions about it. Do you see this email? It’s dated March 25, 2018. And it’s from you, I believe, correct? A: Yeah, it appears to be. 6 The Plaintiffs recognize these issues would likely not have arisen had Schwartz been represented by counsel as he was when the action was pending in California and as he is in the pending state court litigation. Regardless, as a pro se litigant, Schwartz is still subject to the Federal Rules. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding that a pro se litigant is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure which provide for sanctions for misconduct and for failure to comply with court orders). 7 The Plaintiffs have not attached the email to avoid placing the entirety of the defamatory statements in the public record but are happy to make it available to the Court for an in camera review. However, one example of the outrageous nature of the email is that he claims that instead of mourning the death of her step father Ms. Slesinger threw a party. Schwartz is referring to the funeral services at Blount Curry that Mrs. Lasswell and her family arranged to honor Fred Lasswell with a ceremony presided over by Monsignor Higgins. The content of the email includes a reference to “Your Honor,” indicating that Schwartz intended this honorable Court to be the ultimate recipient of the correspondence. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 13 of 22 PageID 1361 14 Q: And you sent it to [an attorney].8 Who is that? A: I’m not sure. Q: You don’t recognize this document? A: I don’t actually. Q: Okay. A: What is this? Q: Do you know recognize the document? A: I don’t recognize the document Q: Okay. Well, let’s start from front line to Schwartz at Designtank.com. Is that your email address? A: That is my email address, yes. Q: Okay does anyone have access to that email address other than you? A: Not that I know of. Q: Did you ever know anyone to send something from your email address other than you? A: No. Q: And the subject says: “This will be my response to your lies about me and my family.” You didn’t write that? A: I don’t recall this email. Q: You don’t recall this email? As you sit here today, do you have reason to believe that this email was prepared by someone other than you? A: Let me read the whole thing. At first glance, yes. Q: Do you know who [the attorney] is? A: Yes. 8 The attorney’s name is removed in respect of his privacy. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 14 of 22 PageID 1362 15 Q: Who is he? A: He’s [corporate counsel].9 94:12-95:25. He then testified: Q: Have you ever communicated with him before? A. Yes. Q: On what occasion? A: I’m not sure I can discuss that. . . . A: It was in conjunction with this lawsuit. Q: Okay, I’m sorry with; let me back up. Has [the attorney] represented you? A: We didn’t come to an agreement. No, he is not representing me, no, no. Q: Okay. But you discussed possible representation; is that accurate? A: Yes. 96:1-15. He further testified: Q: Getting back to this email, your sworn testimony is, as you sit here today, you did not send this email? Take all the time you need to review it. A: My sworn testimony is that I don’t recognize this email. Q: It was sent from your email address in March of 2018. A: That appears to be sent from my email address. Q: Are you suggesting that this wasn’t sent from your email address? 9 He was an adverse lawyer in litigation concerning some of the Plaintiffs. Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 15 of 22 PageID 1363 16 A: I’m suggesting that I don’t recognize this email. The contents – it seems like what David Benson – no. I don’t know that I didn’t send it. But I don’t recognize it if I did. 96:16-97:5. Q: In other words, Mr. Schwartz, is it your sworn testimony that you might have accused Patricia Slesinger and various other individuals of all of these outlandish [red.] acts and you might not remember that? A: It’s unlikely, but, I’m not ruling it out I suppose. This is the thing David Benson is always talking about. I don’t know how it got in email, if it did. Q: Did David Benson die? Did he die? A: As far as I know, he did. Q: Do you know when he died? A: 2016. I’m not sure exactly. Q: You do agree that David Benson couldn’t have sent an email in 2018, correct? A: I’m not trying to suggest that he sent the email. I’m saying this is the stuff he was always yelling when they got into a fight. 97:15-98:6. 39. The common denominator among all of Plaintiffs’ businesses is that they provide wholesome content for parents, children and teachers. This underscores that the scurrilous March 2018 email (falsely ascribing abhorrent acts to Plaintiff’s principals) was calculated to inflict maximum damage to brands and trademarks that had already been hard hit by Schwartz’s infringement and conversion. Schwartz refused to confirm that he sent the March 2018 email from his e-mail address, and speculated that it was possibly sent by a person who died in 2016 – 2 years before the email’s transmission. 40. Furthermore, during the course of the deposition examination, Schwartz first denied knowledge of the email recipient’s identity (or of this disgusting and inflammatory Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 16 of 22 PageID 1364 17 email); he then identified the attorney and suggested that Schwartz has a “privileged” relationship with him, because he was considering having this attorney represent him in the instant lawsuit – even though his earlier testimony was that he did not know him! What should have been a simple response required multiple follow-up questions, all of which were met with sidetracking and obfuscation. 41. This is just one illustration of how Schwartz unnecessarily prolonged the deposition process before abruptly ending the matter at midday. 42. Plaintiffs also request that this Court compel Schwartz to answer questions related to services he claims to have provided to the Plaintiffs and with respect to his disputed claim that he was an employee of all of the Plaintiffs. 43. Schwartz refused to answer questions relating to rent on the grounds that the questions were related to the state court case. Specifically, Schwartz stated: “Now, this, again, seems to be related to the state case and my employment, not any of the federal claims. And we’ve taken this email, and this was part of the settlement negotiations that I think was not – I mean, I don’t know where you are going with this, but I think you are leading into state-related issues, not anything that is federal.” (Page 104, lines 1-7). Schwartz also stated that “I’m just going to not answer these without my attorney because this is a state – I think this is related to the state claim and I have counsel in that regard.” (Page 104:24-105:2). 44. Examples of questions Schwartz refused to answer include the following: Q. Did you ever pay rent? A: Are you getting to issues that I shouldn’t be discussing without representation regarding the state case? (Page 65:16 – 19). Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 17 of 22 PageID 1365 18 A purported “right to counsel” in another civil action is not a basis for refusing to answer relevant questions at deposition. Q. And then you say: “I’ve just been doing little things, like organizing the comic books and scanning things. So it is time for me to do something because I really can’t bill you for anything so far in 2013 but I still have expenses and there is no reason for me to be here if I’m not working for you.” When you wrote that, was that accurate? (Page 103, lines 19-25). A: Now, this, again, seems to be related to the state case any my employment, not any of the federal claims. (Page 104, lines 1-3). Schwartz simply “decided” that the question, in his judgment, was not “related” to the federal claims and refused to answer it – without even stating a valid privilege or basis to object. Q. Are you refusing to answer questions about Exhibit 4? (105:3-4). A. For that reason – for the reason that we had asked for this be stricken and here it is, so, yes, I’m going to refuse to answer questions about this. (105: 5-7). Exhibit 4 is an inculpatory email from Schwartz that expressly undermines his credibility. He simply refused to answer questions about it, rather than permit legitimate cross-examination. Q. Let me just ask another question. I just want to make sure you’re not going to answer. Like I said, I will take it up with the court. Where you say: “I will be more than happy to pay rent before I even buy a place,” you’re not going to answer questions about that? (Page 105, lines 10-15). A. That I wrote it? It’s obvious. I’m not going to answer questions talking about rent in the state case. (Page 105:16-18). That Schwartz testified that it was “obvious” that he wrote an email underscores that his time-consuming testimony in which he tried to deny authorship of his email was Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 18 of 22 PageID 1366 19 given in bad faith, in order to frustrate the deposition process. And again, Schwartz is arbitrarily deciding which questions for which he will or will not provide answers. Q. Well, you say you’re only charging for 1,000 hours, but your testimony in the case is that you’re entitled to payment for 1800 hours at $100 an hour, correct? (Page 106, lines 20-23). A. Okay, I’m not going [to] answer questions about this because this is all related to my state claim.” Q. Again, I disagree with you. A. Then we disagree. (Page 106, line 24 – page 107, line 2.) Schwartz’ subjective opinion about what the deposition question “relates” to does not for a basis for refusal to answer questions at deposition. Q. And what conversation did you have with Pati Slesinger regarding what you were worth? (Page 107, lines 19-20). A: I’m not answering these questions. (Page 107, line 21). In this instance, no justification was given for the refusal to provide testimony. Q. What I’m trying to find out, Mr. Schwartz, why in this email, December 19, 2013, you say: “And since, as an independent contractor, I am paid by the Project – not by the hour” – why did you say that if that is not accurate? (Page 128, lines 4-8). A: I don’t know. I think this is creeping into the state case and my unpaid wages and not the contract claim – the breach. (Page 128, lines 9 – 11). 45. There is no question that the questions are relevant to the federal court action. The undersigned counsel cited specific counts and paragraphs of the federal court complaint supporting the good faith basis for such questions. Specifically, in counts VIII, IX, and X, the Plaintiffs allege that Schwartz billed for services that he did not perform and misrepresented his qualifications. Even Schwartz’s own pleadings make the questions relevant. He claims that he was employed by the Plaintiffs “on a full time basis from March 2008 until January 2014” and Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 19 of 22 PageID 1367 20 that “Plaintiffs owe Schwartz more than $500,000 in unpaid wages.” (Doc. No. 31, Answer to [Amended] Complaint, ¶¶ 6, 134). 46. Schwartz’s refusal to answer questions on disputed subject matters squarely framed by the pleadings is contrary to the Federal Rules of Civil Procedure and merits sanctions. See Ebeh v. Tropical Sportswear Intern. Corp., 199 F.R.D. 696, 697 (M.D. Fla. 2001) (dismissing the claims of a pro se litigant who refused to pay a sanction imposed for refusing to answer deposition questions based on relevancy); Regions Bank v. Legal Outsource PA, 214CV476FTM29MRM, 2016 WL 7228738, at *5 (M.D. Fla. Mar. 10, 2016) (holding that it is improper to instruct a witness not answer a question based on form and relevancy objections). 47. To the extent Schwartz had any basis for refusing to answer deposition questions (of course, he did not since the questions are highly relevant to issues in dispute), he waived the objection by failing to timely move for a protective order and establish his burden of demonstrating a basis for the refusal to answer. See Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 701 (S.D. Fla. 1999) (holding that if counsel believes a deposition is being conducted in bad faith or to unreasonably annoy, embarrass or oppress then counsel may instruct the witness not to answer or may halt the deposition but only if the attorney intends to move for a protective order as required by the Federal Rules). 48. Throughout these proceedings, Schwartz has: mislead the Court; intentionally and repeatedly driven up costs as evidenced by his recent refusal to proceed with Ms. Slesinger’s deposition, after it was arranged by Plaintiffs’ counsel. 49. This is all a further illustration of Schwartz’ gamesmanship. He has counsel when he believes it is useful, while he represents himself when he believes it will help him skirt the Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 20 of 22 PageID 1368 21 rules. He had a lawyer when this case was in California, he has a lawyer defending him in the Florida state case, and he has a lawyer who filed a complaint against certain of the federal plaintiffs in a second Florida state case. 50. In the case at bar, he clearly believes being self-represented will help him frustrate and impede the process. WHEREFORE, the Plaintiffs respectfully request that the Court grant the Motion to Compel the continued deposition of the Defendant, Timothy Schwartz, direct Schwartz to answer questions as required by the Federal Rules of Civil Procedure, require Schwartz to pay the attorneys’ fees and costs associated with this Motion and his continued deposition, and for such other or further relief that the Court may deem appropriate. Like any other litigant, Schwartz must abide by the rules and procedures of the Court. If he persists in his obstruction, the Plaintiffs will be obligated to seek further assistance from the Court, including the appointment of a discovery referee. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01(G) The undersigned hereby certifies that counsel has conferred on this Motion with Timothy Schwartz by email and the parties could not reach an agreement. /s/ Jonathan B. Sbar Jonathan B. Sbar, Esq. (FBN 131016) Email: jsbar@rmslegal.com Andrea K. Holder, Esq. (FBN 104756) Email: aholder@rmslegal.com ROCKE, McLEAN & SBAR, P.A. 2309 S. MacDill Avenue Tampa, FL 33629 Phone: 813-769-5600 Fax: 813-769-5601 Attorneys for Plaintiffs Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 21 of 22 PageID 1369 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following by Electronic Mail on February 11, 2019. Timothy Schwartz 401 S. Lake Dr. Clearwater, FL 33755 Phone: 213-948-3599 Email: tsschwartz@gmail.com Craig Enrico Schaefer (Pro Hac Vice) Traverse Legal, PLC 810 Cottageview Drive G-20 Traverse City, MI 49684 enrico.schaefer@traverselegal.com 231-932-0411 (P) (231) 932-0636 (F) /s/ Jonathan B. Sbar Attorney Case 8:17-cv-00046-JDW-CPT Document 109 Filed 02/11/19 Page 22 of 22 PageID 1370