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

RESPONSE in Opposition re MOTION to Compel Discovery

M.D. Fla.February 25, 2019

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. ___________________________________/ PLAINTIFFS’ OPPOSITION TO MOTION TO COMPEL (1) FURTHER RESPONSES TO WRITTEN DISCOVERY; (2) A FURTHER VIDEOTAPED/PHOTOGRAPHED INSPECTION OF PLAINTIFFS’ BUSINESS PREMISES; AND (3) A FURTHER DEPOSITION OF PATRICIA SLESINGER Plaintiffs THE LASSWELL FOUNDATION FOR LEARNING AND LAUGHTER, INC., FRED LASSWELL, INC., RED RYDER ENTERPRISES, INC., and GOLDBOOK, LTD., oppose Defendants’ motion to compel: (1) further written discovery responses; (2) a further videotaped/photographed inspection of Plaintiffs’ business premises; and (3) a further deposition of Patricia Slesinger, as follows: 1. For the past five years, since 2014, Schwartz has refused to tell Plaintiffs what he did with the items that are critical to the functioning of Plaintiffs’ business. Mr. Schwartz now suggests that if he is permitted to inspect Plaintiffs’ offices, again, that he will now be able to find the items he removed from the rooms and workspaces of Plaintiffs’ offices. In 2016, he said the same thing that he is now saying in 2019; if he could only get into the offices, he would put Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 1 of 13 PageID 1572 2 everything back in its correct place, if he could take charge of Plaintiff’s move.1 At that time, he toured and inspected the offices that he had put into total disarray and found everything in the same condition he had left it two years before. At the last minute on the morning the move was supposed to start, he backed out, just as he did with his recent deposition of Patricia Slesinger. 2. As of now, Mr. Schwartz has never disputed that he removed, from the functional places they belonged, nearly every item of personal, intellectual, and business property, furniture and equipment. He removed items from desks, drawers, cabinets, surface areas, archival storage, and emptied over 100 book and media shelves in the Plaintiffs’ offices at 1111 N Westshore Boulevard.2He has not disputed that, before removing these items, Plaintiffs’ offices were fully functional and operational in every respect, including business phones, fax machines, computers, internet connections, reception, shipping, designated work spaces, file rooms, archival storage rooms, a commercial art department, and a computer/video production studio. In January 2014, when the deplorable condition he had put the offices in was first discovered by Plaintiffs, five people (including two investigators) spent two weeks looking for things Plaintiffs needed, including the artwork and masters needed to run the business – but none of this property could be found. Schwartz has refused to tell Plaintiffs where this property can be found ever since, despite the fact that he toured and inspected both offices – 1111 and 1211 N. Westshore 1 In 2016, the new owners of the Austin Center were renovating the 1111 N. Westshore office building; the management offered Plaintiffs Mr. Austin’s old offices (on the 7th Floor) in the 1211 N. Westshore building, next door. 2 In January 2014 when this condition was first discovered, the Tampa Police issued Schwartz a “no trespass” order, instructing him not to trespass into the 1111 Westshore Offices. In the 1st week of Jan 2014, Sharon Jiminez found Schwartz at 5108 Longfellow and called the police. So as not to get arrested, he claimed he had a lease and it was a “civil matter.” He told the police he had a right to be there and he would leave when he was evicted. At that time, the Tampa Police Department TPD issued a No Trespass Order. . Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 2 of 13 PageID 1573 3 Boulevard. He has known at all times that these items were critical to Plaintiffs’ business and the Fred Lasswell Archives. 3. Mr. Schwartz cannot deny that he was in possession of Plaintiffs’ intellectual property, because he reproduced it when he infringed upon certain of Plaintiffs’ trademarks and copyrighted works. 4. There is no dispute that he failed to photograph any of the rooms, bookshelves, desks, items, or locations before moving them from the places they belonged. Defendant admitted in his deposition that he did not make a list or inventory any of the copyrighted artwork and media belonging to the Plaintiffs, including (without limitation) the original song masters and thousands of copyrighted works needed to create more inventory and content for the Plaintiffs, including (without limitation) any of the camera-ready art, digital archives, motion picture films, audio and video recordings, still photographs, 35mm slides, sketch books, artwork, current merchandise inventory, or archived inventories and digital library of merchandise belonging to the separate plaintiffs. What was left was in a state of complete disarray, which has handicapped Plaintiff’s ability to do business. 5. There is no dispute that, until February 2016, he refused to agree to say where he moved things, claiming he did not steal things, he only moved them. 6. Plaintiffs have repeatedly asked Schwartz what he did with their property (personal and intellectual). He has failed and refused to provide any answers. 7. Defendant Schwartz claims he is the only one who knew everything about Plaintiffs’ businesses, and would be “taking over” one day. Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 3 of 13 PageID 1574 4 8. Schwartz left Tampa on a morning in or about 2014, around 4:00 a.m., with a tow-trailer attached to his vehicle, and transported the trailer to Illinois and Indiana (after having claimed he had no possessions in Tampa). 9. Plaintiffs were required to evict Schwartz from the residence located at 5108 Longfellow in Tampa, after a Florida court ruled that would have to pay in excess of $100,000 in back rent in order to stay there. It took three years to confront him regarding his false claims of a right to occupy (while vandalizing) the Lasswell Home. His claims were not credible and the court ordered him to pay substantial back rent or vacate the property. 10. After informing Plaintiffs that he had left Tampa, Schwartz accessed Plaintiffs’ offices after hours using a cardkey that was registered in the security system of the Austin Center; and, it is also beyond dispute that Schwartz holds himself out as highly tech-savvy. 11. Defendant seeks to return to the property. Defendant is simply trying to harass Plaintiffs and exacerbate their attorney’s fees and costs, without any legitimate basis for the relief requested. Defendant has already inspected and videotaped Plaintiffs’ business premises. The deposition of Patricia Slesinger has already been conducted, at which deposition Ms. Slesinger, her counsel, and a licensed court reporter all appeared, and at which high quality videoconferencing technology was arranged, implemented and paid for. Schwartz announced – on the morning of the Sunday deposition – that he would not proceed. His non-appearance was duly taken. 12. Schwartz has, among other things: (a) diverted Plaintiffs’ web domains and refused to provide any login information to Plaintiffs (for all intents and purposes putting Plaintiffs out of business); (b) falsely represented himself to be the registrant of Plaintiff’s intellectual property and cyber-squatting on their web domains; (c) trespassed (for years) in the Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 4 of 13 PageID 1575 5 Slesinger/Lasswell family residence, ultimately requiring an eviction, but only after he had caused hundreds of thousands of dollars in damage; and, (d) and defamed members of the Slesinger/Lasswell family (living and deceased), and intimidated witnesses. 13. Over the period of time Schwartz worked (solely) with Goldbook, Ltd. (whose clients included the other Plaintiffs herein), he took advantage of the trust reposed in him. Gradually, he attempted to make himself “necessary” to Plaintiffs in order to gain still further access, when in fact he was only seeking to instill their confidence. He was not who he pretended to be. 14. The scope of his intrusion includes: (a) extended periods of time in Plaintiffs’ business offices and archives located in Tampa, Florida; Beverly Hills, California; and Century City, California3; (b) extended periods of time in personal residences in Tampa, Florida; Beverly Hills, California; and Las Vegas Nevada4; (c) the primary computer of Patricia Slesinger (on which he installed software that has comprised its security); and (d) the digital attorney work product database of Mintz Levin LLP (attorneys who have provided years of legal services to Plaintiffs herein and other companies owned by the Slesinger/Lasswell Family). 15. Now, he wants to come back to Plaintiffs’ business premises, for another proverbial bite at the apple. 16. The motion is simply disingenuous, designed to harass Plaintiffs and gain further access to their property after he has already violated their trust and infringed upon their intellectual property. 3 For example, Mr. Schwartz billed Plaintiffs to “clean” the Beverly Hills, California offices over a period of two weeks, in order to prepare for in important meeting. However, Plaintiffs’ Beverly Hills offices are located within a shared executive suite, and the meeting was conducted in a shared conference room, cleaned by office management. 4 Schwartz photographed and inventoried the contents of Patricia Slesinger’s Beverly Hills, California residence. Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 5 of 13 PageID 1576 6 17. An Order Compelling a Further Inspection of Plaintiffs’ Business Premises Is Unwarranted. Defendant has already been provided the opportunity to inspect and videotape Plaintiffs’ business premises, in 2016. A video will be available for the Court’s inspection and viewing at the hearing. 18. Schwartz states that he “is aware of every single item he left in the office.” (Motion to Compel, page 5.) He has even purported to make an “inventory” of the items at Plaintiffs’ business premises, although the inventory fails to include the most valuable of Plaintiffs’ business property (including the original artwork, masters, music, and other elements necessary for Plaintiffs to do business). 19. Although Schwartz represented himself to be an “archivist,” the condition of Plaintiffs’ business premises upon his departure was abysmally disheveled and chaotic. 20. An inspection would be futile; Defendant obviously did not document stolen items on the “inventory” provided to Plaintiffs. 21. Defendant has been given multiple opportunities to provide the location of missing property. On each occasion, he has refused. 22. Defendant’s new “destruction of evidence” claim is without support. 23. There can be no reason for Defendant to come back yet again. He has had an opportunity to inspect and make any record he deems necessary. 24. If any further inspection is permitted, Plaintiffs respectfully submit that the Court condition any such inspection as follows: (a) the inspection shall last no more than one hour, and be supervised by security (at Defendant’s expense); (b) the inspection shall be attended by Plaintiffs’ counsel (whose fees shall be paid by Defendant); and (c) Defendant must advise Plaintiffs what he did with the most urgent items they need to run their business, including Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 6 of 13 PageID 1577 7 customer lists, story boards, original art, masters, lyrics, and all other intellectual property elements for the “Draw and Color with Uncle Fred” series, the “Red Ryder” business enterprise (and all trademarked and copyrights intellectual properties associated therewith), and Fred Lasswell, Inc. Plaintiffs will provide a complete list at least 5 days prior to any scheduled inspection. 25. In addition, Defendant should not be permitted to take pictures or make any commercial use of any information he obtains at the inspection. Any videotapes made of the inspection should be protected pursuant to an appropriate protective order, preventing any disclosure or commercial use of intellectual property located at Plaintiffs’ offices. 26. Mr. Schwartz has already once engaged in malicious and defamatory communications with representatives of a company who does business with the Slesinger/Lasswell family; he should not be permitted to publish or share any information, videos or photographs gleaned from any inspection. A protective order should issue prohibiting him from making use of any videos or photographs of any inspection of Plaintiffs’ business premises; any such evidence should be protected and viewed only in camera. 27. An Order Compelling a Further Session of The Deposition of Patricia Slesinger Should Be Denied. Defendant’s conduct with respect to the Deposition of Patricia Slesinger exceeds the bounds of reason, even for a pro se litigant.5 When given leeway to depose Ms. Slesinger (either by travel to California or via videoconference, at Plaintiffs’ expense), Mr. Schwartz chose a videoconference deposition. There is no dispute that Mr. 5 Mr. Schwartz elects to be represented by counsel as it suits him – he was previously represented by counsel in this action when it was pending in California; and, he is presently represented in two Florida actions involving many of the same parties to this action. Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 7 of 13 PageID 1578 8 Schwartz is tech-savvy, and he never indicated that he could not participate in a videoconference using common videoconferencing technology. 28. Schwartz then failed to appear for the Deposition of Ms. Slesinger, scheduled for Sunday, February 10, 2019 - for his convenience, since he claimed it would be inconvenient for him to conduct the deposition on a weekday, since he works during the week. 29. Without obligation to do so, Jon Sbar (counsel for Plaintiffs) took the initiative 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. 30. In addition, Mr. Sbar and Enricoe 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 technology on Saturday, February 9, 2019. Although he was invited by email to participate in the Saturday “test run,” Schwartz failed to do so. Mr. Schwartz also refused to accept phone calls from Plaintiff’s counsel concerning the logistics of the deposition. Had Schwartz had any legitimate concerns about the Zoom technology, the Saturday test was his opportunity to determine whether his concerns were founded – but he ignored this opportunity. 31. 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. He ignored this invitation. 32. Schwartz then abruptly advised – three hours before the deposition was to commence – that he did not like the videoconferencing service (that had been selected, tested, paid for, and fully implemented to commence the deposition as scheduled). Schwartz did not Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 8 of 13 PageID 1579 9 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. Attached hereto as Exhibit 2 is a still photos demonstrating the successful “grid” of participants in the deposition. The technology includes a feature that enlarges a participant’s image when he or she is actually speaking to a large screen format. The technology worked flawlessly, and all participants waited for a half hour for Schwartz to join the deposition. A copy of the Non- Appearance transcript is attached hereto as Exhibit 3. 33. Despite the effort, time, and expense (and accommodations provided to Schwartz), expended by Ms. Slesinger and counsel - and despite the clear adequacy of the video technology for the deposition, Schwartz did not even attempt to see if it was workable for the deposition to proceed. Had Schwartz actually been interested in deposing Ms. Slesinger for the purposes of acquiring information - as opposed to seeking to onerously harass - he surely would have at least begun the deposition and assessed if the deposition could meaningfully proceed. 34. That Schwartz now has the temerity to seek an order compelling Ms. Slesinger and her counsel to repeat the process at which Schwartz previously thumbed his nose - and caused to be maximally expensive - speaks volumes. The discovery process exists so that parties may prepare for trial – not to facilitate gamesmanship and abuse. 35. If the Court is inclined to order a further session of Ms. Slesinger’s deposition, it should condition such an order on the following: (a) that Defendant Schwartz be ordered to pay for all attorney’s fees and costs incurred by Plaintiffs in connection with the scheduled February 10, 2019 deposition (including the February 9, 2019 “test run” of the Zoom videoconferencing technology; and, (b) that Defendant Schwartz be ordered to pay Plaintiffs’ attorney’s fees and costs to be incurred in connection with the rescheduled deposition. Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 9 of 13 PageID 1580 10 36. Written Discovery Responses. Defendant Schwartz has complicated Plaintiffs’ ability to respond to discovery by his own conduct. For example, Schwartz has asked Plaintiffs for values of items that Plaintiffs allege have been converted, which will require appraisals. Without possession of the property items, however, Plaintiffs can only appraise ranges of values for the property, depending on the condition of the property. 37. In addition, Defendants’ discovery requests are overbroad, such that any order compelling responses should be limited to information and documents that bear some relation to this dispute. 38. For example, Request for Production Number 3 seeks documents supporting the allegation that Plaintiff Goldbook, Ltd. provides graphic design services for several entities, including the Lasswell Foundation. Goldbook, Ltd. has been in the graphic design business since 1981. Its graphic design services on the Goldbook alone comprise at least 6,500 documents – none of which are relevant to this dispute. 39. As another example, Request for Production Number 13 seeks documents relating to Plaintiffs’ allegation that Fred Laswell was a famous cartoonist who created more than 25,000 daily and weekly “Snuffy Smith” and “Barney Google” comic strips, and over 152,000 drawings. Is Plaintiff seeking an order that 177,000 artworks be produced – especially where Plaintiffs allege that Defendant took all of the artwork in their possession? 40. Any order compelling written discovery responses should be tailored to elicit information that will reasonably be useful for purposes of this litigation, and that comport to the Federal Rules of Civil Procedure. Even though Defendant is pro se, he must be held to the same standard required of an attorney. His discovery questions incorporate entire pages of the complaint into a single question. Request for Production No. 85 alone comprises 2 ½ pages. Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 10 of 13 PageID 1581 11 Defendant has demanded documents relating to non-controversial, informational allegations of the complaint (for example, as set forth above, all documents that relate to the allegation that “Fred Lasswell was a cartoonist”); this would conceivably require the production of every “Snuffy Smith” and “Barney Google” strip ever published. 41. In conclusion, it is apparent that this motion has not been brought for any legitimate purpose. The motion should be denied. To the extent any relief is granted, Plaintiffs respectfully request that the relief be conditioned as requested herein, to wit: (1) If any further inspection of Plaintiffs’ business premises is ordered, that: (a) Schwartz shall identify the critical intellectual property that Plaintiff need to conduct their business; (b) the inspection shall last no more than one hour, and be supervised by security (at Defendant’s expense); (d) the inspection shall be attended by Plaintiffs’ counsel (whose fees shall be paid by Defendant); (d) Defendant must advise Plaintiffs what he did with the most urgent items they need to run their business; and (e) a protective order should issue as to any videos or photographs which must be made by an independent photographer, under the Court’s control and jurisdiction – Defendant should have no right to photograph or record any items in the offices; (2) If any further deposition of Patricia Slesinger is ordered: (a) that Defendant Schwartz be ordered to pay for all attorney’s fees and costs incurred by Plaintiffs in connection with the scheduled February 10, 2019 deposition (including the February 9, 2019 “test run” of the Zoom videoconferencing technology; and, (b) that Defendant Schwartz be ordered to pay Plaintiffs’ attorney’s fees and costs to be incurred in connection with the rescheduled deposition; and, Case 8:17-cv-00046-JDW-CPT Document 114 Filed 02/25/19 Page 11 of 13 PageID 1582 12 (3) If further written discovery responses and production of documents are ordered, that any order compelling written discovery responses should be tailored to elicit information that will reasonably be useful for purposes of this litigation, and comply with the requirements of the Federal Rules of Civil Procedure. /s/ Craig Enricoe 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 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 114 Filed 02/25/19 Page 12 of 13 PageID 1583 13 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 25, 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 114 Filed 02/25/19 Page 13 of 13 PageID 1584