HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 Page 1 IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2019-CA-0i4681 CIRCUIT CIVIL DIVISION: "AG" CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST, DAVE ARONBERG, SHARON’ R. BOCK, Defendant/Respondents._/ HEARING BEFORE THE HONORABLE KRISTA MARX (ZOOM CONFERENCE) Wednesday, June 3, 2020 10:06 a.m. - 10:28 a.m. REMOTE ZOOM CONFERENCE Port. Saint Lucie, Florida Stenographically Reported By: SONJA M. REED Court Reporter Page 2 1 APPEARANCES: 2 On behalf of the Plaintiff/Petitioner: 3 GREENBERG TRAURIG, P.A. 184 0 Century Park East 4 Suite 190C Los Angeles, California 90067 5 310.S86.7700 [email protected] 6 BY: NINA D. BOYAJIAN, ESQUIRE 7 Oh behalf of the Defendant/Respondent: 8 JACOB, SCHOLZ & WYLER, LLC 961687 Gateway Boulevard 9 Suite 2011 Fernandina Beach, Florida .32034 10 904.261.3693 [email protected] 11 BY: DOUGLAS A. WYLER, ESQUIRE 12 On behalf of the Defendant/Respondent: 13 CLERK & COMPTROLLER, PALM BEACH COUNTY P.O. Box 229 14 West Palm Beach, Florida 33401 561.3S5.2983 15 [email protected] BY: NICOLE R. FINGERHUT, ESQUIRE 16 17 18 19 20 21 22 23 24 25 ; Page 3 1 PROCEEDINGS 2 ***** 3 THECOURT: We are here today for a very 4 limited purpose. I’m sure the attorneys are aware of 5 that, but I just don't want there to be any 6 confusion. We are here on Defendant Dave Aronberg 7 and Defendant Sharon Bock for the Comptroller and the 8 State Attorney's motion to dismiss Count II. 9 You're all acutely aware as the lawyers that 10 this is a question of law. So we're not going to be 11 diving into facts and the Court will not be deciding 12 the merits of this motion this morning. We are 13 simply here for the sole purpose of that motion to 14 dismiss, So I just wanted to make sure that we all 15 stay on track and we're all on that same page. 16 So, Ms, Boyagian, I'll send it to you first, 17 Ma'am. I - of course, we all know that the Law 101, 18 I must look at the four comers of the motion, which 19 alleges that the State Attorney, David Aronberg, arid 20 the clerk and comptroller, Sharon Bock, actually have 21 custody arid control of these grand jury proceeding. 22 Whether that is true or not is not for this 23 court to determine because I'm looking simply at the 24 four corners of the complaint But, not for nothing, 25 I think we all know that they don't have control and Page 4 1 custody of the records. But I'm going to assume that 2 its correct because that's what has been alleged. 3 So what I first want to hear from is the 4 attorney for Florida Holdings with regard to, 5 assuming arguendo, that Florida Statute 905.27 does 6 create a cause of action, what relief is it that 7 you're seeking from — in Count II, specifically. 8 Not the dec action. We're hot here on that today — 9 . what is it you hope to get, a judgment? 10 MS. BOYAGIAN: Thank you, your Honor. Good 11 morning, and thank you for the privilege of appearing 12 before this court. 13 The relief we are seeking is disclosure of the 14 grand jury records, pursuant to the Furtherance of 15 Justice Exception to 905.27. And under the First 16 Amendment 17 The press, as your Honor is aware, has a right 18 of access under the First Amendment as a surrogate of 19 the public — 20 THE COURT: Let me just stop you for a minute. 21 |'d like you to answer my specific question. 22 So I am not particularly convinced — and I'd 23 like for you to address that So we're not going to 24 dive into facts or the press's standing because 25 that's not something we're here to discuss today. ESQUIRE Party JOINT ID#. J13 EV#Ji3 DATEADMITTED:^Zt/2o2Z Case No. 2019-CA-014681 800.211.DEPO (3376) . . ; ' EsquireSolutipns.ee ^oint Exhibit J13 W^f^OSEPHABRUZZO CLERK CA/Aromo)OpQ22?i BEACH COUNTY, FL, JOSEPH"A®RUZZO, CLERK. 3./27/2023 3:44:22 PM NOT A CERTIFIED COPY HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 1-4 Page 1 ' Page 3 IN ')'HE CIRCUIT COURT 1 PR09EEDING'S IN A.-.D FO'1. PALM BEACH COUNTY, FLORIDA 2 CASE NO.: 50-2019-CA-014681 CIRCUIT CIVIL DIVISION: "AG" CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST, Plaintiff/Petitioner -VG- DAVE ARONBERG, SF.ARON· R. BOCK, Defendant/Respondents. _______________ ! HEARING BEFORE THE HONORABLE KRISTA MARX (ZOOM CONFERENCE) Wednesday, Jur.e 3, 2020 10:08 a.m. - 10:28 a.m. REMOTE ZOOM CONFERENCE Por~. Saint Lucie, Flqrid.a Stenograph_ically Reported By: SONJA M. REED Court Repo=ter 3 Tt,E-COURT: We are here today for a-very 4 limited purpose. I'm sure the attorneys are aware of 5 that, but I just don't want there to be any 6 confusion. We are here on Defendant Dave Aronberg 7 and Defendant Sharon Bock for the Comptroller and the 8 State Attorney's motion to dismiss Count II. 9 Yo_u're all acutely aware as the lawyers that 10 this is a question of law. So we're not golng to be 11 diving into facts and the Court will not be deciding 12 the merits of this motion this morning. We are 13 simply here for the sole purpose of that motion to 14 dismiss. So I just wanted"to make sure that we all 15 stay on track and we're all on that same page. 16 Sc;>, lvls, Boyagian, I'll send it to you first, 17 Ma'am. I - of course, we ali know that the Law 101, 18 I must look at the four comers of tl-1e motjon, wh_ich 19 alleges that tlie State Attorney, David Aron berg, arid -20 th~ clerk ~nd comptroJler, Sharon Bock, actually have 21 custody and control of these grand jury proceeding. 22 Wh~ther that is·true or ·not is not for this 23 court t6 determine because I'm looking simply at the 24 four comers of the complaint But, not for nothing, 25 I tliirik we all know that they don't have control and Page 2 Page 4 1 APPEARANCES: 2 Or. behalf of t::e Plaintiffi:?et_itionei: 3 GREENBERG TRAURIG, P.A. 1840 Century Park East 4 Suite 1900 Los Angeles, California 90067 5 310.586.7700 [email protected] 6 BY: NINA D. BOYAJIA.~, ESQUIRE 7 Or. !)~half of l::.~,e D_efendant/Resp_on4ent: 8 JACOB, SCEOLZ & WYLER, LLC 961687 Gateway Boulevard 9 suite 2011 Fernandina Be~ch, Florida _32034 10 904.261.3693 doug.wyl'[email protected] 11 BY: DOOGLAS A. WYLER, ESQOIRE 12 Or. behalf of t::e Defendant/Respondent: 13 CLERK & COMPTROLLE."'l., PAL¥. BEACH COUNTY P.O. Box 229 14 West Palm Beach, Florida 33401 561.355.2983 15 [email protected] BY: NICOI.E R.- FINGERHUT, ESQU-IRE 16 17 18 19 20 21 22 23 ~4 25 1 Cl!Stody of th_e records. But I'm going to assume that 2 it's correct because that's what has been alleged. 3 So what I first want to hear from is the 4 attom·ey for Florida Holdings with regard to, 5 assumini:i arg_uendo, that Florida _Statute 905.27 does 6 create a cause of action, what relief is it that 7 ·you're seeking from - in Count II, specifically. 8 Not the dee action. We're hot here on that today ~ 9_ what is it you hope to get, a judgment? ·10 MS. BOYAGIAN: Thank you, your Honor. Good 11 morning, and thank you for the privilege of appearing 12 before this court. 13 The relie·f we are· seeking is disclosure of the 14 ~rancljury records, pu_rsut3_ntto !he Furtherance of 15 Justice Exception to 905.27. And under the First 16 Amendment 17 The press, as your Honor is aware, has a right 18 of access under the First Amendment as a surrogate of 19 t!ie public,... 20 THE .COURT: Let me just stop you for a minute. 21 I'd like yciu to answer my specific question. ' • • 22 So I am not particularly convinced - and I'd 23 li~e for you to address that So we're not going to 24 d\ve into facts or the press's standing because 25 !hat's nqt something vye'r!! here to disc~s~ today. Party JOINT ID# . ..J1L EV#n3._ DATEADMITTEo: t:lf{C./lol.Z ~00.211.DEPO (33n • oint Ex_ hib_it {;$quir~Sotutions,c - J13 Case No. 2019-CA-014681 . ~OSEPH ABRUZZO CLERA CA/ArOIAllsD:IDPP~ BEACH COUNTY, FL, JO'SEPH1'AtB~Zu, CLERK. 3/27/2023 3:44:22 PM HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 5-8 Page 5 1 And I have read the voluminous paperwork- 2 I've received paperwork as - and - five-minute ago 3 from some of the other parties. But I deeply 4 appreciate the fact that you sent this to rhe so much 5 in advance and I have been able to spend some time 6 with, as I said, the voluminous paperwork that was 7 provided. 8 But as you know, Ma’am, we are here for such an 9 extremely limited issue today, and that their motion 10 to dismiss where they state "you're suing the wrong 11 people"; that the court has these records. 12 And so, more importantly, I want you to address 13 whether Section 905.27 gives you a private cause of 14 action against the state attorney and the clerk. 15 Again, I'm going to assume the facts are true 16 that are asserted in the motion. Whether they are or 17 not-because I think we can all agree we're not for 18 sure if they ever — that the state attorney doesn’t 19 have these records. So what is it you're seeking in 20 Count 11 — not the dec action. I know you want the 21 records. I've got that. But in Count II, 22 specifically, what do you - what's the relief you're 23 seeking and, more importantly, how under this statute 24 do you get to assert a private action - a private 25 cause of action against the state attorney and the Page 6 1 clerk? 2 MS. BOYAGIAN: Your Honor, we are aware, of 3 course, that there is no expressed private right of 4 action, 905.27. But that does not end the inquiry; 5 As the Florida Supreme Court stated: 6 “Where a statute like 905.27 7 forbids an act which is to Plaintiffs 8 injury, the party injured should have 9 an action," 10 And that's the Smith Piezo case in the volume 11 of materials that we sent you. 1.2 There's no question here that the denial of the 13 FIRST AMENDMENT right to the press is an injury which 14 gives rise to a right of action. 15 Stated another way, looking at the analysis 16 that the Fischer Metcalf Court looked at, there are 17 three factors in determining whether there is a 18 private right of action where a statute does not 19 expressly provide for one. 20 One is whether the Plaintiff is part of the 21 class for which the statute is intended to protect; 22 second is a legislative history; and the third is the 23 underlying purposes of the statutory scheme. 24 The first factor I already addressed, that the 25 press is part of the class that the statute is -j-PageT •1 intended to benefit, being the surrogate of the 2 public and exercising its first amendment right. 3 The second issue of legislative history and the 4 purpose - statutory purpose are somewhat related. 5 We were unable to find much legislative history on 6 this issue of a private right of action under the 7 statute. 8 There is nothing that says we intend to create 9 a private action, but there's certainly nothing that 10 says we do riot want to create a private right of 11 action. •12 What we do have is that in 1994, the same time 13 that 905.27 was reenacted, a statute that pertains to 14 the secrecy of State Grand Jury - statewide grand 15 juries was also enacted. That provision, which is 16 905,395, has no exceptions for - for revealing these 17 records. By contrast, the legislature intentionally 18 enacted 905.27 with the Furtherance of Justice 19 Exception. 20 If the public through the press can't bring a 21 private right of action to enforce that exception or 22 to seek relief under that exception, that 23 intentionally placed exception of furtheririg justice 24 is essentially rendered hollow - 25 (Speaking simultaneously.) Page 8 1 THE COURT: Okay. Pause for a minute. 2 I don’t think anybody is saying that there 3 isn't a cause of action or that the press doesn't 4 have standing. That's hot what I'm asking you. I'm 5 asking you, how are the clerk and the state attorney 6 the proper defendants? 7 So, you know, nowhere have I said there isn't a 8 cause of action. Clearly there is. I'm puzzled by 9 the procedural posturing of this case naming the 10 state attorney. 11 And, you know, I'm further stymied by the fact 12 that you allege in your complaint that they have - 13 particularly David Aronberg the State Attorney — 14 that he has these records. 15 But I'm going to assume that's true. So I'm 16 pot telling you, you don’t have a cause of action. 17 I’m just saying, okay, let’s run this all the way 18 out. Let’s say you win and you get a judgment 19 against the State Attorney Dave Aronberg. 20 What’s he supposed to do with it? He can't 21 release the grand jury testimony. He has nd 22 authority whatsoever to do that 23 MS. BOYAGIAN: Weil, your Honor, as you stated, 24 this is a motion to dismiss stage, and we are 25 entitled to discovery on the issue of possession, ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com CA/Arc«lfflg>Op022Q BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3 27 2023 3:44:22 PM NOT A CERTIFIED COPY ( HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 5-8 . !-!age :, Page 7 1 And I have read the volumip9us paperwork - ·1 intended to benefit, being .thE! surrogate of the 2 I've received paperwork as - and - five-minute ago 2 public and exercising its first amendment right. 3 froryi some of the other parties. But I d~eply 3 The second issue of legislative history and the 4 appreciate the fact that you sent this to rile so much 5 in advance and .1 hav_e been abJe. to spend some ~me 6 with, as I said, the voluminous paperwork that was 7 provided. 8 But as you know, Ma'am, we ·are here for such an 9 extremely limited issue today, and that their motion 10 to dismiss wh~re they state "yc,u're suing the y.,rong 11 people";_ that the court has these records. 12 And so, rriore importantly, I want you to address 13 whether Section 905.27 gives you a private cause of 14 action aga_inst the state attorney and the clerk. 15 Again, I'm going to assume the facts are true 16 that are asserted in the motion. Whether they are or 17 not - because I think we can all agree we're not for 18 sure if they ever~ that the state ·attorney doesn't 19 have these records. So what is it you're seeking in 20. Count II ~ not the dee action. I know you want the 21 records. I've got that. But in Count II, 22 specifically, what do you - what's the relief you're 4 purpose - statutory purpose are somewhat related. 5 We were unable to find ml)ch legislative history on 6 this issue of a private right of action under the 7 statute. 8 The.re is nothirig that says we intend to create 9 a private action, but there's certainly nothing that 10 say~ we do riot want t6 create a private right of 11 action. ·12 Wha~ we do have is that in 1994, the same time 13 that 905.27 was reenacted, a statute that pertains to 14 the secrecy of State Gra_nd Jury - statewide grand 15 juries was also enacted. That provision, which is 16 905,395, has no exceptions for - for revealing these 17 records. By contrast, the legislature intentionally 18 enacted 905.27 with the Furtherance of Justice 19 Exception. 20 If the public through the press can't bring a 21 private right of action to enforce that exception or 22 to seek.relief under that exception, that 23 seeking and, more importantly, how under this statute 23 intentionally placed exceptlcin of furthering ju~tice 24 is essentially rendered hollow - 24 do you get to assert a private action - a private 25 ~i:luse of action ?Qainst the state attorney and the Page 6 1 clerk? 2 MS. BOYAGIAN: Your Honor, we are aware, of 3 course, that there is no exprE!ssed private ri~ht of 4 action, 905.27. But that does not end the inquiry, 5 6 7 8 9 As the Florida Supr_eme Court stated: ''Where a statute like 905.27 forbids an act which is to Plaintiffs injury, th·e party injured should have an action." 10 And that's the Smith Piezo case in the volume 11 of materials that we sent you. 1_2 There's no question here Jhat the deniF1I of the 13 FIRSTAMENDMENT right to.the press is an injury which 14 gives rise to a right of action. 15 Stated .another way, looking at the analysis 16 that .the Fischer Metcalf Court looked at;there are 17 th"ree factors in determining whether there is a 18 private right of action whE!re a _statute does not 19 expressly provide for one. 20 One is whether th~ Plaintiff is part of the 21 class for which the statute is intended to protect; 22 second is a legislative history; and the third is the 23 underlying purposes of the statutqry scheme. 24 The first factor I already addressed, that the 25 pre$s i~ part of the class _that the statute is 25 (Speaking simultaneously.) Pag_e 8 1 THE COURT:. Okay. Pause for a mjnute. 2 I don't think anybody is saying that there 3 isn't a cause of action or that the press doesn't 4 hav~ standing. That's ho\ wllat I'm asking you. I'm 5 asking you, how are the clerk and the state attorney 6 tl1e proper defendants? 7 So, you know, nowhere have I said there isn't a 8 cause of action. Clearly tllere is. I'm puzzled by 9 the procedural posturing of this case naming the 1 0 state a_ttorney. 11 And, you know, I'm further stymied by the fact 12 tha! you allege in yol)r complai11t that they he1ve - 13 particularly David Aronberg the State Attorney - 14 that he has these records. 15 But I'm going to assume that's true. So I'm 16 not telling you, you don't have a cause of action. 17 !'m just saying, okay, let'~ run this all the way 18 out. Let's say you win and you get a judgment 19 against the State Attorney Dave Arcmberg. 20 What's he supposed to do with it? He can'.t 21 r~le,ise lt)e grand jury te~timciny. H~ has n6 22 authority whatsoever to do that. 23 MS. BOYAGIAN: Weil, your Honor, as you stated, 24 this is a motion to dismiss stage, and we are 2q entitled t9 discovery on tlie issue of possession, ~00.211.DEPO (3376) f;squireSolutions. GQrt7 CA/ArCiitla:£1))0-P~ BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM HEARING June 03, 2020 CA FLORIDA HOLDINGS vs DAVE ARONBERG 9-12 Page 9 1 custody, and control. My understanding is that the 2 state attorney has asserted that he does not have 3 possession. It's hot my understanding that the clerk 4 has taken that position. So the clerk may indeed be 5 the — someone who does have possession, custody, and 6 control. 7 In any event, we would submit that the state 8 attorney, even it does not have actual possession at 9 this time, it might be able to have the power to 10 control dr direct the entity of persons who do have 11 control and possession to release those -- to effect 12 the judgment. 13 THE COURT: So let me ask you this: So the 14 clerk is the keeper of the record. But even if you 15 got a judgment against her -- let's say you asserted 16 this cause of action and let's say you win and you 17 get a judgment against the clerk. The clerk cannot 18 release grand jury testimony to you. Only the court 19 can. 20 So really- all I'm saying to you is I do not 21 understand the way this case was filed or why these 22 are the defendants because it's impossible for them 23 to perform. 24 I mean, I'm going to assume, based on your 25 motion, again, that they do have the records. But we Page 11 1 give you what they don't have. 2 So - I mean, it's as simply as this:. Are 3 you - you just want to engage in some discovery for 4 them to absolutely assert, particularly, the state 5 attorney, "I don't have these records"; look to the 6 rules that say the moment the grand jury's over, 7 they're sealed and they're turned over and they 8 cannot be released without court order? 9 So I'm not addressing the merits or whether you 10 have an exception or you're able to argue that 11 there’s an exception in the furtherance of justice. 12 We're not getting there today. I'm simply saying why 13 should these two entities have to defend this lawsuit 14 when even down the road if they win they cant give 15 you what they don't have? 16: MS. BOYAGIAN: As your Honor stated, I'm not 17 sure that's the case with the derk. That was not in 18 their -- that issue was not stated in their papers. 19 THE COURT: Let me ask you this, then: Do you 20 think, if you got a judgment and I or the court 21 doesn't make the determination that the grand jury 22 records should be released, that the clerk would be 23 able to perform? 24 Would they be able to say "here you go"? I 25 mean, could the derk just make that unilateral Page 10 1 all know - everyone in the room knows they do not - 2 that only the court- they're - they're with a 3 court interpreting. And only the court can release 4 the records. 5 So if you get a judgment against either the 6 state attorney or the clerk, they cannot- I mean, I 7 guess what you're saying to me is, well, we want to 8 dp discovery and we want them to say unequivocally "I 9 have these records" or "I don't have them." TO And -. I mean, the law is abundantly clear. 11 You cannot do it without a court determining whether, 12 in the furtherance of justice, the release is 13 appropriate. 14 MS. BOYAGIAN: And that is a determination 15 we’re asking your Honor to make, and we're asking for 16 an order from your court. 17 THE COURT: When we get to the merits of the 18 case, sure it is. But, again, you're asking me to 19 make that determination and for me to make a 20 determination of whether the grand jury records 21 should be released. And the only thing we're here 22 today about is why should the clerk and the state 23 attorney have to defend a civil action when it's a 24 possibility of performance? They - even if you were 25 to win and get a judgment against them, they cannot Page 12 1 decision "I'm going to release the records, sealed 2 confidential records"? 3 Does she have any authority to do that? 4 MS. BOYAGIAN: My understanding, your Honor, is 5 that 905.27 requires a court order before the records 6 are unsealed. 7 THE COURT: Exactly. Exactly. 8 All right. Let me hear from Mr. Aroriberg's 9 attorney, Mr. Wyler. 10 MR. WYLER: Thank you, your Honor. May it 11 please the Court- 12 THE COURT: Good morning, Sir. 13 MR. WYLER: Good morning. 14 Your Honor, I just wanted to let you know that 15 I spoke with counsel for the clerk, Ms. Fingerhut, a 16 couple of days before this hearing, and we dedded 17 that I would just make the presentation for both of 18 of us, being that our arguments overlap except for 19 the fact of who this clairh - whether they have the 20 records or not, which, of course, we've said we don't 21 have custody of the records. 22 But, nonetheless, our arguments overlap. The 23 Plaintiff is attempting to assert a cause of action 24 under Section 905.27. That statute settled testimony 25 not to be disclosed exceptions. So it's just CA/ArofM®»OD022Q BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM NOT A CERTIFIED COPY HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 9-12 Page 9 1 custody, and control. My understanding is that the 2 staie attorney has asserted that he _does not have 3 j:lqssession. It's hot IT!Y understanding that the clerk 4 has taken that position. So the clerk may indeed be 5 the -- someone who does have posses~ion, cus\ody, and 6 control. 7 In any event, we would submit that the state 8 attorney, even it does noi have actual possession·ai 9 th[s time, it might be able to have the power to 10 control or direct the entity or persons who do have 11 control and possession to release those -- to effect 12 the judgment. 13 THE COURT: So let me ask you this: So the 14 clerk is the keeper of the record. But even °if you 15 got a judgment against her -- let's say you asserted 16 this cause of action and let's say you win and you 17 get a judgment against the clerk. The clerk cannot 18 release grand jyry testimony to you. Only the ~ui1 19 can. 2P So really - aJI I'm saying to you is I do not 21 understand the way this case was filed or why these 22 are the defendants because it's_ impossible for them 23 to perform. 24 I mean, I'm going to assume, based on your 25 motiori, again, that they do have the records. But we Page 10 -1 all know - everyone in the room knows they do not - 2 that only the court- they're - they're with a 3 court interpreting. And only the court can release 4 the records. 5 So if you get a judgment ag_ainst either the 6 state attorney or the clerk, they cannot~ I mean, I 7 guess what you're saying to me is, well, we want to 8 do discovery and we want them to say unequivoc;ally "I 9 have these records" or "I don't have them." 1 o And -. I mean, the law is abundantly "!ear. 11 You cannot do it without a court determining whether, ·12 in the furtherc1nce ofjustice, the release is 13 appropriate. 14 MS. BOYAGIA_N: And that is c1 determination Page 11 1 give you what they don't have. 2 So - I mean, it's as simply as this:. Are 3 you - you just want to engage in some discov~ry for 4 them to absolutely assert, particularly, the state 5 attorney, '!I don't ha_ve these records"; look to the 6 rules that say the moment the grand jury's over, 7 they're sealed and they're turned over and they 8 cannot be released without court cirder? 9 So I'm not addressing the merits or whether you 10 hc1v~ an exception 9r yoifre able to arQLie that 11 there's an exception in the furtherance of justice. 12 We;re not_ getting th~re todciy. I'm simply saying why 13 should these two entities have to defend this lawsuit 14 when even doym the road if they wiri they can't give 15 you what they don't have? 16: MS. BOYAGIAN: ~ your Honor stated, I'm not 17 sure that's the case with the clerk. That was not in 18 their -- that issue was not stated in their papers. 19 THE COURT: Let me ask you this, then: Do you 20 think, if you got a judgment and I or the court 21 doesn't make the determination that the grand jury 22 records should be releas_ed, that the clerk would be 23 able to perform? 24 Would they be able to say "here you go"? I 25 ineari, could the clerk just make that unilateraJ Page 12 1 de_cision "I'm going to release the records, sealed 2 confidential records;'? 3 Does she have any authority to do that? 4 MS, BOYAGIAN: My understanding, your Hono·r, is 5 that 905.27 requires a court order before the records 6 are unsealed. 7 THE COURT: Exactly. Exactly. 8 All right. Let me hear from Mr. Aroriber§l'.s 9 attorney, Mr. Wyler. 1 O MR. WYLER: Thank you, your Honor, May it 11 please the Court - 12 THE COURT: Good morning, Sir. 13 14 MR. WYLER: Good morning. Your Honor, I just wanted to let you know that 15 we're asking your Honor to make, and we're asking for i 5 I spoke with counsel for the clerk, Ms. Fingerhut, a 16 an order from your court. 17 THE COURT: When we get to the merits of the 18 case, sure it is. But, again, you're asking me to i 9 make that determination and for me to make a 20 determination of whether the_ grand jury records 21 should be released. And the only thing we're here 22 today-about is why should the clerk and the state 23 attome_y have to defend a civil action when'it's a 24 possibility of performance? They - even if you were 25 to win c1nd get a jud§lment against them, they cannot 16 couple of days before this hearing, and we decided 17 that I would just make the presentation for bo~ of 18 of us, being that our arguments overlap except for 19 the fact of who this claim '--.yh~ther they have the 20 records or not, which, of course, we've said we don't 21 haye custody of thi:! rE'!co~ds. 22 But, nonetheless, our arguments overlap. The 23 Plc1intiff is attempting to a)>Sert a c_ause of action 24 under Section 905.27. That statute settled testimony 25 no~ to be disclosed exceptions. So it's jl)st 8,00.211.DEPO (3376) [;sq uirEJSqlutions. com CA/AroJlllaE!D)OI)~ BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM HEARING June 03, 2020 CA FLORIDA HOLDINGS vs DAVE ARONBERG 13-16 Page 13 1 explaining exceptions to the disclosure of the grand 2 jury testimony. 3 Our position is that it doesn't set forth a 4 cause of action and that it's impossible for us to 5 perform what.they're asking. 6 1 know you said you didn't really want to get 7 into the Furthering Justice Exception, but 1 know 8 that's what they're using as their basis to get to 9 these. But it's our position that the clear 10 unambiguous statutory iariguage, it shows that this 11 disclosure only applies to a civil or criminal case, 12 and that within that civil or criminal — 13 (Speaking simultaneously.) 14 THE COURT: Again, sir—I'rn sorry. As I tp|d 15 Plaintiff's counsel - 16 MR. WYLER: — can only be used in the defense 17 for- 18 THE COURT: Okay. We're not there. We're not 19 discussing the rherits of the case, and - I'm not 20 ready to cross that bridge. I'm here for a very, 21 very limited hearing today. 22 So just as I stopped Plaintiff's counsel from 23 arguing the merits of the case and whether or not the 24 Furtherance of Justice Exception will apply in this 25 instance, we're hot even there yet. ■ Page 15 1 attorney's position, and we also agree with what the 2 Court has said, that the plain language of the 3 statute, a cause of action doesn't exist. And we 4 really cannot- we'll be defending something without 5 the four corners. We're simply involved in this 6 action because the clerk is the custodian of the 7 records. 8 THE COURT; Okay. Thank you, Ma'am, 9 Ms. Boyagian, back to you. 10 MS. BOYAGIAN: Your Honor, I'd like to note 11 that in the Butterworth case in which the Supreme 12 Court limited the application 905.27 by saying that a 13 witness can reveal her own testimony and prohibiting 14 that they violate the First Amendment - 15 THE COURT: Say that again, please. 16 MS. BOYAGIAN: In the Supreme Court case, the 17 Butterworth case, in which the Supreme Court ruled 18 that .905.27 can't restrict a. Grand Jury witness from 19 revealing her own testimony, that would be a 20 violation of First Amendment, in that case, the state 21 attorney was, in fact, a party. 22 THE COURT: Well, I assume, the state attorney 23 that was present - I mean, I don't find that that's 24 close to what we're talking about here, and thafs 25 whether or not — I mean, as we know, this was in Page 14 1 I'm only here for the purpose of determining 2 whether or not the clerk and state attorney shouid be 3 dismissed. And I am bound by the four comers of the 4 document, which assert that you do have control and 5 custody over it. 6 So if you'll fashion your argument with regard 7 to that limited purpose, I would appreciate it: 8 MR. WYLER: No problem, your Honor. I 9 apologize. 10 .Within the four comers of their complaint, our 11 position is that they failed to state a cause of 12 action under 905.27. It does not provide for - it 13 doesn't list that there's ho elertierit that they have 14 adequately pled to assert a cause of action under 15 that. There's - and the only thing they're asking 16 for is records that we don't have. 17 There's really not much more to it, your Honor, 18 And we would ask that you would grant our motion to 19 dismiss for failure to state a cause of action. 20 THE COURT: Okay. Ms. Fingerhut, are you still 21 on the phone? 22 MS. FINGERHUT: Yes, your Honor. 23 THE COURT; Is there'anything you wish to add? 24 MS. FINGERHUT: We agree with the state 25 Page 16 1 2006. Certainly Dave Aronberg wasn't even the state 2 attorney then. But this is about the release of 3 records. 4 I want to give you ample opportunity - arid 5 again, 1 sincerely appreciate that all of the case 6 law and the way that it was presented to the Court in 7 such a timely fashion. 1 really do. And 1 did spend 8 some time with it. But 1 want to give you whatever 9 opportunity you want to take to convince me that it 10 is in - as to.Count 2, again. Notthe dec action - 11 whether these would be the appropriate defendants. 12 And, you know, really, I want you to boil it 13 down' for me as to this - let's take it all the way 14 down the road. You win. You get a judgment against 15 the clerk and the state attorney. 16 I know there's other reasons why you might have 17 filed it this way. But I'm just simply puzzled 18 because I do hear what the clerk and the state 19 attorney are saying, arid that is, performance is 20 impossible. They don't have the records and 21 cannot - absolutely, There's not even an inch of 22 wiggle room - that they could release the records 23 even if you got a judgment. It is solely a 24 determination for the court. 25 I, frankly, thin k, you know, there's ways to NOT A CERTIFIED COPY HEARING CA FLORIDA HOLDINGS vs DAVE ARON BERG June 03, 2020 13--,16 1-'age 1;:i 1 explaining _exceptions to the disclosure of the grand 2 jury testimony. 3 Our position is that it doesn't set forth a 4 cause of action and that it's· impossible for us to 5 perform what.they're askin!:J. 6 I know you safd you didn't really want to get 7 into the Furthering Justice Exception, but I know 8 that's what they're using as their basis to get to 9 these. But it's our position that the clear 10 uh ambiguous statutory iariguage, it shows that this 11 disclosure only applies to a civil or criminal case, 12 arid that within thcit civil or criminal - 13 (Speaking simultaneously.) 14 THE ~OURT; Again, sjr - I'm sorry. As I tel9 15 Plaintiffs couns·eI ~ 16 MR. WYLER; -- can C>fllY be used in the defEmse i l-'age10 1 cittorney's position, and w,e also agree with w_hat the 2 Court has said, that the plain language of the 3 statute, a cause of actiqn doesn't exist. And we_ 4 really cannot - we'll be defending something without 5 the four corners. We're simply involved in this ·6 action because the clerk is the custodian of the 7 records. 8 Tl-iE COURT; Okay. Thank you, Ma'9m. 9 Ms. Boyagian, back to you. 10 MS. BOYAGIAN: Yo1,1r Horicir, I'd like to note 11 that in the Butterworth case in which the Supreme 12 Court limit_ed the application 905.27 by sayjng that a 13 witness can reveal her own testimony and prohibiting 14 th_at they violclte the Firs! Amendment~ 15 THE COURT: Say that again, please. 16 MS. BOYA~I.AN: In tpe Supreme _C_ollrt cas_e, the 17 for - 17 Butterworth case, in which the Supreme Court ruled 18 THE COURT: Ok<:1y. We're not th_ere. We're n9t 18 _that .905.27 can't re.strict a_ Gra_nd Jury witn_ess from 19 discussing the merits of the case, and - I'm n·ot 20 ready to cross that bridge. I'm here for a very, 21 very limited hearing today. 22 So just as I stopped Plaintiffs counsel from 19 revealing her own testimony, that would be a ·20 violation of Firs! Amendment, in that case, the state 21 attorriey Was, in fact, a pa_rty. 22 THE COURT: Well, I assume. the state attorney 23 arguing the merits of the case and whether or not the 23 tliat was present - I rriea_n, ! don't find that that's 24 Furtherance of ;Justice Exception will apply in this 24 close· to what we're talking about here, and that's 25 instan9e, we're hC>t even ther_e yet. Page 14 1 I'm only here for the purpose of determining 2 Whethef or not the clerk and state attorney shouii;l be :3 dismissed. And I am bound by the four corners of the 4 dcic\.Jm~nt, which. assert that you do have 9_6ritroi and 5 custody over'it. 6 So if you'll fashion your argument with regard 7 to that limited purpose, I would-appreciate it 8 MR. WYLER: No pro~lem, your Honor. I 9 -apologize. 10 Within the four corners onheir complaint, o_ur 11 position is that they failed to state a cause of 12 action under 905.27. l,t does not proyide for - it i 3 doesn't ·Iist that there's ho element that they have 14 adequately pied to assert a cause of action under 15 that. Tt,ere's - and· the only thin!:i" they're asking 16. for is records that we don't have. 17 There's really not _much more to it, your Ho11or. 25 whether or not - I m_ean, as w_e know, this wa_s in Page 16 1 2006. Certainly Dave Arqnberg wasn't eyen the state 2 attorney then. But this is abo"ut the release of 3 records. 4 I waht to give you ampie opp6rtunify - an·d 5 again, I sincerely appreciate that all of the case 6 law and the way that it wa_s pres!i!~ted to the Court in 7 such a timely fashion. I really do. And I did spend & some time with it. But I WaJlt to give yojJ whatever 9 opportunity you want to take to.convince me that it 10 is in~ as to.Count 2! again. Not the dee action - 11 whether·thesewould be the appropriafe defendants. 12 And, you know, really, I Wcmt you to boij it 13 down· for me as to· this - iet's take it ail the way 14 down the road. You win. You get a judgmenta_gainst 15 the clerk and the state attorney. 16 I know there's other reasons why you might have 17 filed it this way. But I'm just simply puzzled 18 And we would ask that you would grant our motion to 18 because I do hear what the clerk and the state 19 dismiss for f~illJre tq stat~ a c:ause of ac~on. 19 attorney ar_e saying, and Y,at is, performclnce is 20 THE COURT: Okay. Ms. Fingerhut, are you still 20 impossible. They don't h~ve the records and 21 on the phone? 21 22 MS. FINGERHUT: Yes, your Honor. 22 23 THE COURT: Js there ~mything you wish to·add? 23 24 MS. FINGERHUT: We agree With the state 24 25 25 cann_cit - absoh,itely. Th~re's n<:it _eyen ~m inch of wiggle room - that they could release the records ev!i!n_ ifyqu got a judgme~t. ltis solely a determination for th~ court. I, frankly, think, you kr)ow, the.re's ways t9 ~00.21.1.DEPO (3376) Esq uireS9W(i9ns. cqm CA/Arci'itlffl'.~OBfUJ<I BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 17-20 Page 17 1 get to your records. There's ways to get 2 confidential records. But it isn't by suing the 3 state attorney and the clerk. 4 So I just want to hear your last final argument 5 on how Count II, the appropriate defendants are the 6 clerk and the state attorney. Even assuming arguendo 7 they have the records — we know they don't — you 8 were to get a judgment against them, how would you 9 expect them to perform? 10 MS. BOYAGIAN: Two points, your Honor: One is 11 that, again, the clerk did not assert in her papers 12 that she does not have control. That |s a position 13 that the State Attorney's Office has asserted. It is 14 our allegation, and as your Honor noted, allegations 15 must be accepted as true — as true at this stage of 16 the proceedings. 17 Second, it is also our understanding that the 18 state attorney and the clerk; intend to block access 19 to these records. So our allegation is that they do 20 have possession, custody, or control, which the clerk 21 has not denied; and second, that they are trying to 22 block access to the records - 23 THE COURT: What do you mean? What do you 24 mean? They're not trying to block it They're 25 saying that despite the fact - let's just talk about i Page 19 1 (Speaking simultaneously.) 2 THE COURT: Can you hear? Can the attorneys 3 hear? 4 MS. FINGERHUT: - custodian the records and 5 that he cannot release the records without court - 6 THE COURT: Exactly. 7 Okay. All right. Anything further, Mr. Wyler? 8 MR. WYLER: No, your Honor. I concur with the 9 attorneys for the clerk's office that it's impossible 10 for us to release these records. There's ho intent 11 to hide them or block anything from the Plaintiff. 12 THE COURT: Okay. Anything further, 13 Ms. Fingerhut? 14 MS. FINGERHUT: No, your Honor 15 THE COURT: And, Ms. Boyagian, anything 16 further, Ma’am? 17 MS. BOYAGIAN: Nothing further, your Honor. 18 THE COURT: Okay. I will get an order out 19 quickly. Thank you, folks so much. And I'll see you 20 on the next round. Thanks a lot: 21 MS. BOYAGIAN: Thank you, your Honor. 22 MR. WYLER: Thank you, your Honor. 23 (The proceedings concluded at 10:28 a.m.) 24 25 Page 18 1 the clerk, because we all know the state attorney 2 doesn't have it. 3 So the clerk is the custodian of records. 4 That's her main job. There's nd doubt about it. We 5 all know that. But we also know, unequivocally - 6 unequivocally, only the court can make the 7 determination of whether the moving party has 8 satisfied that there is an exception that these 9 should be released. 10 So, again, I ask you - she is, in fact, the 11 custodian of the records - is it your opinion that 12 if you got a judgment saying clerk and comptroller 13 gets a judgment against them, that she can release 14 the records without the court -- without the court 15 weighing in, without the court making that 16 determination as required by law? 17 MS, BOYAGIAN: No, your Honor. We are asking 18 your Honor to order the clerk to do that under your 19 discretion. 20 THE COURT: All right. 21 Mr. - Ms. Fingerhut, you wish to be heard on 22 that? 23 MS. FINGERHUT: Your Honor, our position is 24 that we're not trying to block access to the 25 records -- Page 20 1 CERTIFICATE OF REPORTER 2 3 4 I, Sonja M. Reed, Court Reporter, certify that 5 I was authorized to and did stenographically report the 6 foregoing proceedings and that the transcripts pages 1 7 through 19, .is a true and cooplete record of ay 8 stenographic notes. 9 10 11 Dated this 3rd day of June, 2020. 12 13 14 15 17 _ Sonja M. Reed .18 Court Reporter -19 20 21 22 23 ; 24 25 ESQUIRE 800.211.DEP0 (3376) EsquireSolutions.coni CA/AronterS/OPOa^l BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM NOT A CERTIFIED COPY HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June 03, 2020 17-20 Page 17 1 get to your retcirds. There's ways to get 2 confidential records. But it isn't by suing the 3 state attorney and the clerk. 4 So I just want to hear your last final argument 5 on how Count II, the appropriate defendants ar~ the 6 clerk and the state attorney. Even assuming arguendo 7 they have the records - we know they don't~ you 8 were to get a judgment against them, how would you 9 expect them to perforr:n? 10 MS. BOYAGIAN: Two points, your Honor: One.is 11 that, again, the clerk did not assert in her papers 12 that she does not have control. That is a position 13 that the State Attorney's Office has asserted. It is 14 our allegation, and as your Honor noted, allegations 15 must be accepted as true - as true at this stage of 16 the proceec;liilgs. 17 Second, it is also our understanding that the 18 state attorney and the clerk.intend to block access 19 to these records. So our allegation is that they do 20 have possession, custody, or control, which the clerk 21 has not denied; and second, that they are trying to 22 block access to .the records - 23 THE COURT: What do you mean? What do you 24 mean? They're not trying to block it. They're 25 saying that despite the fact - let's just taik about Page 18 1 the clerk, because we all know the state attorney 2 doesn't have it. :3 So the clerk is the custodian of records. 4 That's her main job. There's no doubt about it. We 5 all know that. But we also know, unequivocally - 6 unequivocally, only the court can make the 7 determination of whether the moving party has 8 satisfied that there is an exception that these 9 should be released. 10 So, again, I ask you -- she is, in fact, the 11 custodian of the records -- is it your opinion that 12 if you got a judgment saying clerk and .comptroller i 3 gets a judgment against them, that she can release 14 the records wi.thout the court -- without ·the court 15 weighing in, wit_hout the court making that 16 determination as required by law? 17 MS, BOYAGIAN: No, your Honor. We are asking 18 your Honor to order the clerk to do that under your 19 discretion. 20 THE COURT: All right. 21 Mr. - _Ms. Fingerhut, "you wish to be heard on 22 that? 23 MS. FINGERHUT: Yow Honor, our position is 24 that we're not trying to block access to the 25 records -- I 1-'age 1~ 1 (Speaking simultaneo;usly.) 2 THE COURT: Can you hear? Can the attorneys 3 hear? 4 MS. FINGERHUT: - custodian the records and 5 that he cannot release th.e records without court - 6 THE COURT: Exactly. 7 Okay. All right. Anything further, Mr. Wyler? 8 MR WYLER: No, your Honor. I concur with the 9 attorneys for the clerk's office that it's impossible 10 for lJS to relea.se these re.cords, There·~ ho iriteiiJ 11 to hide them or block anything from the Plaintiff. 12 THE COURT: Okay, Anything f~rther, 13 Ms. Fingerhut? 14 MS. FINGERHUT: No, ·y9ur Honor': 15 THE COURT: And, Ms. Boyagian, anything 16 furth~r, Ma'am? 17 MS. BOYAGIAN: Nothing further, your HonoL 18 THE COURT: Okay. I will get an order out 19 quickly. Thank you, folks so much. And I'll see you 20 on the next round. Thanks a lot 21 MS. BOYAGiAN: Thank you, your Ho11or. 22 MR. WYLER: Thank you, your Honor. 23 (The proceedings concluded at 10:28 a.m.) 24 25 Page 20 CERTIP!CT,Til OF RE?OTIE,'l. !., Sonja M. ~eed, Cot!rt Reporter, certify that 5 I •"-'aB aut!l.Orized to a.'1.d did st~mographically !:'epo~t the 6 foregoing proceed~nga ~nd ~hat ::ge tr~ocr:·ipt, ~ges l 7 through 19, .is a true arid :;:Otlpl_ete record of oy 8 stenograp!lic notes. 9 10 11 12 13 14 15 16 17 Dated this 3rd day of June, 202_0. .18 ·19 20 21 22 23 24 25 Sonja M. Reed Court Report.er 800.211.DEPO (3376) Esq uir~Solutions. Gorri CA/AroJ:ltl~Ol>~ BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK. 3/27/2023 3:44:22 PM

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