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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY



TIMOTHY CHAZ STEVENS
an individual,
Case No: CACE 13-024010
Plaintiffs
Div: 18
vs.

THE CITY OF DEERFIELD BEACH,
a municipal corporation, and
JEAN M. ROBB, in her capacity as Mayor
of Deerfield Beach, and individually,

Defendants.
_______________________________________/

PLAINTIFFS VERIFIED RESPONSE TO WITNESS JIM LUSKS ASSERTION
OF JOURNALISTIC PRIVILEGE and MOTION FOR PROTECTICE ORDER
with INCORPORATED MEMORANDUM OF LAW

NOW COMES the Plaintiff TIMOTHY CHAZ STEVENS (STEVENS), by
and through his undersigned counsel, and files this response to the claim of journalistic
privilege and Motion for Protective Order filed by witness Jim Lusk (Lusk), and says
further:
I. Background
Plaintiff STEVENS is the editor of an internet website blog called My Acts of
Sedition that focuses on investigation and publication of issues related to public
corruption. On October 28, 2013 the Plaintiff filed a two count complaint against the
Defendants THE CITY OF DEERFIELD BEACH (CITY), and its current mayor
JEAN M. ROBB (ROBB) claiming, in count I, violation of Floridas Public Records
law (Chapter 199, Fla. Stat.), and in count II, seeking injunctive relief to obtain public

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records he claims are within the actual and/or constructive possession of the Defendants,
and which they have failed to provide upon lawful request. Specifically, leading to the
suit Plaintiff STEVENS sought copies of emails sent to, and by, Defendant ROBB
regarding any matters pertaining to the business of the CITY during a specified period of
time. STEVENS claims that the Defendants have withheld certain emails, while the
Defendants claim full compliance.
On November 14, 2013 the Defendants jointly filed a Motion to Strike the
Complaint as a Sham Pleading, and a Motion to Dismiss. Hearings on those motions have
not been set and the Defendants have thusly not filed any answer or affirmative defenses.
Despite this lack of litigation on the pleadings the parties have thus far engaged in limited
discovery. That discover is focused on the existence, or not, of specific email
communications to/from Defendant ROBB which Plaintiff STEVENS believes Mr. Lusk
either has in his possession or otherwise has information of relevance pertaining to them.
By answer to interrogatories, on January 21, 2014, ROBB denied the existence of any
such emails under oath. Based on information and good faith belief of the Plaintiff, Mr.
Lusk himself has indicated to third parties that such emails do in fact exist. In an effort to
resolve the apparent discrepancy the undersigned issued a subpoena for deposition to Mr.
Lusk. After multiple attempts to serve Mr. Lusk, which included his lying about his
identity and place of employment, and physically running inside a building to avoid the
process server, service was affected by drop service outside the building into which he
had fled. The deposition was set for April 30, 2014. On April 29, 2014 the undersigned
received a telephone call from an attorney named William Bucknam (sp?) who stated that
while he was not representing Mr. Lusk he wished to request a reset of date. Mr.

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Bucknam stated that he represented a company owned by Mr. David Eller. Mr. Eller is
also the owner of the Deerfield Beach Observer (DBO), the newspaper where Mr. Lusk
may be employed.
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Despite his having no affiliation with the DBO, and not representing
Mr. Lusk, as a courtesy the deposition was reset for one week until May 7, 2014. On May
6, 2014 Mr. Lusk filed the pending Motion For Protective Order claiming that he cannot
be forced to discuss or produce any emails he may or may not have within his possession,
to/from Defendant ROBB pursuant to journalistic privilege under 90.5051, Fla. Stat.

II. Introduction

Mr. Lusk has failed to plead the required factual specificity to assert journalistic
privilege. Further, no journalistic privilege applies to the emails sought by STEVENS as
they were not sent to, or received by, Lusk while he was working as a journalist under the
definition of the statute. Moreover, the alleged content of the emails does not relate to the
collection, gathering, editing, or publishing of news by Lusk. However, even assuming
arguendo that Lusk might properly assert the privilege, it is rebuttable and does not
withstand the three pronged test stated within the statute and its subsequent application
by Florida courts. Finally, the emails sought are by definition public record. The
availability of any such information to the public is protected by law. That law
supersedes any claim of journalistic privilege. To the extent any violation of public
records law, and/or Floridas Sunshine law, 286.011, Fla. Stat., has occurred these
emails are evidence and must be produced.

III. Argument and Memorandum of Law


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Mr. Lusk claimed to the process server that he has not worked for the newspaper in

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The Motion For Protective Order, on its face, fails to meet the statutory
requirements of 90.5051, Fla. Stat. and therefore must be denied. The substance of
Lusks motion is merely to establish that by statutory definition he is a professional
journalist (copy attached hereto as Exhibit A).
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However, even assuming arguendo
that Lusk meets the definition of professional journalist he fails to qualify for the
privilege afforded to information or sources obtained while actively gathering news
within the normal scope of his employment. The assertion of journalistic privilege is
specific to the information or source for which disclosure is sought. Section 90.5015(2)
states:
A professional journalist has a qualified privilege not to be a witness
concerning, and not to disclose the information, including the identity of any
source, that the professional journalist has obtained while actively gathering
news. This privilege applies only to information or eyewitness observations
obtained within the normal scope of employment and does not apply to physical
evidence, eyewitness observations, or visual or audio recording of crimes.

(emphasis added). Thus emails sought by STEVENS within Lusks possession are not
automatically protected by privilege simply because he otherwise happens to be a
journalist. The motion itself fails to set forth with any particularity the grounds upon
which Lusk claims the privilege, and therefore fails to meet the minimal requirements of
pleading. See Fla. R .Civ. P. 1.100(b).
Moreover, even extending the argument, again arguendo, that Lusk can make a
valid prima facie assertion of the privilege, it is rebuttable and does not withstand the

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Professional journalist means a person regularly engaged in collecting,
photographing, recording, writing, editing, reporting, or publishing news, for
gain or livelihood, who obtained the information sought while working for a
newspaper 90.5015(1)(a), Fla. Stat.



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three-prong analysis incorporated within the statute:
[A] party seeking to overcome this privilege must make a clear and specific
showing that:
(a) The information is relevant and material to unresolved issues that have
been raised in the proceeding for which the information is sought;
(b) The information cannot be obtained from alternative sources; and
(c) A compelling interest exists for requiring disclosure of the information.
90.5015(2)(a)(b)(c), Fla. Stat. Rather than being extraneous or even ancillary to the
issues presented in this suit, the existence of the emails in Lusks possession are central to
STEVENS claim that the Defendants have violated Floridas Public Records law, and
Sunshine law. These claims are not trivial and involve matters of significant public
policy. Florida courts have recognized the importance of issues involving strong public
policy even when litigated among private individuals in civil cases. See, News-Journal
Corporation v. Carson, 741 So.2d 572, 576 (Fla. 5
th
DCA 1999). Secondly, the emails
cannot be obtained from alternative sources. The Defendants have refused to produce
them, and in fact denied the their mere existence. (copy of answers to interrogatories
attached as Exhibit B). This action is taken, in part, to test the veracity of that claim.
Lastly, there is a compelling interest requiring Lusk to appear for deposition to be
questioned under oath regarding the existence of the emails from ROBB in his possession
or of which he is aware. These emails, and their content are public records. Their
accessibility to the public is inherent within their very nature. The journalistic privilege
contained within 90.5015, Fla. Stat., does not supersede the authority of other
conflicting statutes. In fact, the journalistic privilege is subservient to the application of
conflicting statutes, especially where those conflicting interests involve detection of
crimes.
At this juncture the existence of such emails is not only a relevant issue in this case,

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but is in fact evidence of possible criminal behavior. The case of Tribune Company v.
Huffstetler, 463 So.2d 1169 (Fla. 5
th
DCA 1984) is analogous and instructive here. In that
case a reporter was subpoenaed to testify regarding the source of, and information he
received regarding a confidential ethics complaint against two local politicians. Such
complaints are confidential by statute. The Court held that no journalistic privilege
trumps the proscriptions of another Florida statute. Citing Branzburg v. Hayes, 408 U.S.
665, 92 S.Ct. 2646 (1972), the Court stated:
It would be frivolous to assert-and no one does in these cases-that the First
Amendment, in the interest of securing news or otherwise, confers a license on
either the reporter or his news sources to violate valid criminal laws. Thus, we
cannot seriously entertain the notion that the First Amendment protects a
newsman's agreement to conceal the criminal conduct of his source, or evidence
thereof, on the theory that it is better to write about crime than to do something
about it.

at p. 1171. (Courts emphasis omitted). That same holding applies here. Floridas Public
Records law and Sunshine law mandate disclosure of the existence of the emails in
Lusks possession, as well as the information they contain. Lusk cannot be permitted to
contravene those laws by claiming exemption as a journalist. See also, Satz v. News and
Sun-Sentinel Co., 484 So.2d 590 (Fla. 4
th
DCA 1985). Moreover, even if Lusk claims not
to have this information in his possession he cannot be protected from being examined
about his knowledge of its existence and the circumstances related thereto. Tribune
Company v. Huffstetler, at p. 1171.

IV. Conclusion

In seeking protection from being deposed in this cause the witness Jim Lusk claims
journalistic privilege. However, his motion is insufficient as it does not state facts upon
which he qualifies for that privilege. Further, Mr. Lusk does not qualify as a journalist. In

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this instance as he has made no showing that the information sought was obtained by him
while working within the course and scope of his employment as a journalist. Further,
even if Lusk cold claim the privilege it is overcome by its relevance, unavailability, and
inherent compelling status. These emails are public record and Lusk is not entitled to
secret harbor simply because he claims to work for a newspaper. Finally, at this
juncture, the emails themselves are evidence of violations of Florida law, the Defendants
having failed to produce them upon Plaintiffs lawful request. Plaintiff STEVENS
requests that this Court deny the Motion For Protective Order and compel Jim Lusk to
appear for deposition and submit answers under oath regarding any and all matters
related to the emails, as well as all matters that may lead to relevant testimony at trial.

ATTESTATION

I, TIMOTHY CHAZ STEVENS, hereby swear that the foregoing is true and correct to
the best of my knowledge.

______________________________
TIMOTHY CHAZ STEVENS

Dated: ____________________

STATE OF FLORIDA
COUNTY OF BROWARD

PERSONALLY APPEARED before me on the date signed above, the undersigned
authority, TIMOTHY CHAZ STEVENS, who is personally known to me, or who has
produced a driver's license as identification and who being first duly sworn, on oath,
deposes and says that the foregoing is true and correct.

WITNESS my hand and seal at ____________, Broward County, Florida, this ____ day
of May, 2014.


My Commission expires: ________________________
Notary Public

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
by electronic mail to counsel for the Defendants, Mr. Stuart Michelson, Esq., at
smichelson@smichelsonlaw.com, and counsel for the witness Jim Lusk, Mr. Thomas
Connick, Esq. at tomconnick@gmail.com this 12
th
day of May, 2014.


/s David A. Frankel
David A. Frankel, Esq.

Law Offices of David A. Frankel
20 South East 20
th
Street
Fort Lauderdale, Florida 33316
Fla. Bar Number 741779
Telephone 954-557-2244
FAX 954-463-7840
designated email: davidfrankel7@gmail.com