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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA Panama City Division JOHN DOE 1, as parent and

natural guardian of PLAINTIFF C, his minor child; JOHN DOE 2, as parent and natural guardian of PLAINTIFF D, his minor child; JANE DOE 1, as parent and natural guardian of PLAINTIFF B and PLAINTIFF M, her minor children; JANE DOE 2, as parent and natural guardian of PLAINTIFF J, her minor child; and JANE DOE 3, as parent and natural guardian of PLAINTIFF S, her minor child, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) vs. ) ) JOSEPH R. FRANCIS; MRA HOLDING ) LLC, a California limited liability company; ) MANTRA FILMS, INC., an Oklahoma ) corporation (d/b/a Girls Gone Wild); ) AERO FALCONS, LLC, a Delaware ) limited liability company; MARK D. ) SCHMITZ; and RYAN DAVID SIMKIN, ) ) Defendants. ) )

Case No. 5:03cv260-LAC/MCR

Motion for Order to Show Cause Why Plaintiffs Should Not Be Held In Contempt For Violating the Stay, and to Disqualify Plaintiffs Counsel from These Proceedings & Memorandum of Law in Support Thereof

TABLE OF CONTENTS Page

I.

INTRODUCTION AND BACKGROUND TO ARGUMENT..............................2 A. B. Counsels Violation of The Stay Warrants A Finding of Contempt ...........2 Counsels Ethical Violations Requires Their Disqualification....................5

II.

STATEMENT OF THE CASE AND THE FACTS ................................................7 A. B. C. The Criminal Proceedings ...........................................................................7 The Forfeiture Proceedings..........................................................................8 The Civil Suit By The Complaining Females for Purported Monetary Damages ......................................................................................9 1. 2. D. E. The Civil Suit Uses Confidential Information for Allegations and Strategy..................................................................9 The Harrison/McCloy Firm Admits It Had Access To and Used Confidential Law Enforcement Information .................10

The Stay.....................................................................................................12 The Plea Agreement In the Criminal Matter .............................................13 1. The Plea Offer By The State Attorney Was Justified Because The Complaining Witnesses Changed Their Testimony After Attorney Dent Began His Representation ...............................................................................14 a. b. The Complaining Witnesses Lied By Denying That They Sought Out Girls Gone Wild. ...................................14 The Complaining Witnesses Lied About Their Age To Get on Film, and Later Lied To Law Enforcement When They Claimed Girls Gone Wild s Knew Their True Ages. ..........................................16 The Complaining Witnesses Lied About The Voluntariness of Their Actions..........................................18

c.

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2.

Plaintiffs Counsel Improperly Interfered With The Plea In Order To Coerce a Multi-Million Dollar Civil Settlement ......................................................................................19

III.

ARGUMENT.........................................................................................................21 A. B. The Court Should Find Plaintiffs and Their Counsel in Contempt For Wilfully Violating the Stay Order .......................................................21 The Court Should Disqualify Plaintiffs Counsel......................................23 1. 2. Attorney Dents Hiring of the Sheriffs Counsel Requires Their Disqualification....................................................................23 Counsels Violation of Other Ethical Rules Also Requires Their Disqualification.....................................................26

IV.

CONCLUSION......................................................................................................28

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TABLE OF AUTHORITIES Page(s) Cases Alabama v. United States Army Corps of Engineers 424 F.3d 1117 (11th Cir. 2005) .....................................................................................21 Allied Realty of St. Paul, Inc. v. Exchange Natl Bank of Chicago 382 F. Supp. 464 (D. Minn. 1968).................................................................................24 Bay County Sheriffs Office v. Aero Falcons LLC No. 03001480CA (Fla. 14th Cir.) ....................................................................................8 Florida Bar v. Klein 774 So.2d 685 (Fla. 2000) .................................................................................21, 26, 27 Florida Bar v. Shankman 908 So.2d 379 (Fla. 2005) .............................................................................................28 Handelman v. Weiss 368 F. Supp. 258 (S.D.N.Y. 1973) ................................................................................24 Hilo Metals Co. v. The Learner Co. 258 F. Supp. 23 (D. Hi. 1966) .......................................................................................24 Lane v. MRA Holding, 242 F. Supp. 2d 1205 (M.D. Fla. 2002).........................................................................16 Leighton v. Paramount Pictures Corp. 340 F.2d 859 (2d Cir. 1965) ..........................................................................................21 Riccard v. Prudential Ins. Co. 307 F.3d 1277 (11th Cir. 2002) .....................................................................................21 State v. MRA Holding LLC No. 03-1036H (Fla. 14th Cir.) ..........................................................................................8 Zarco Supply Co. v. Bonnell 658 So.2d 151 (Fla. 1st DCA) ........................................................................................24 Other Authorities United States Code, Title 18 Section 2257 ..................................................................................................................16

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United States Code, Title 18 Section 3509(k)..............................................................................................................12 Rules Florida Bar Rule 4-1.10(b) ................................................................................................24 Florida Bar Rule 4-1.11(b) ..............................................................................10, 23, 25, 27 Florida Bar Rule 4-1.7 .......................................................................................................26 Florida Bar Rule 4-3.4 ...................................................................................................5, 26 Local Rule 77.3..................................................................................................................26

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Motion for Order to Show Cause Why Plaintiffs Should Not Be Held In Contempt For Violating the Stay, and to Disqualify Plaintiffs Counsel from These Proceedings Despite a longstanding court order staying this action pending the outcome of a parallel criminal proceeding, and in an apparent attempt to coerce a civil settlement by interfering with and delaying the resolution of the criminal case, Plaintiffs and their counsel served subpoenas on the State Attorney and the Bay County Sheriffs Office seeking to compel production of the complete investigative file in the criminal case.1 Accordingly, Defendants Joseph R. Francis, MRA Holding, LLC, Mantra Films, Inc. and Aero Falcons, LLC (the Mantra defendants) move for an order to show cause why the plaintiffs and their counsel should not be held in contempt of Court for violating this Courts February 4, 2004 stay order, and also move for an order quashing the subpoenas. This action by plaintiffs counsel forces to a head another issue that now must be addressed by this Court. The Mantra defendants also move for an order disqualifying Plaintiffs counsel from any further representation of the plaintiffs, and enjoining them from any further interference with the related criminal proceedings in light of their violation of the Florida Bar rule that precludes attorneys who have represented the government from taking on any representation in which they could exploit confidential government information. Chicago Attorney Tom Dent, admitted pro hac vice before this Court, hired the same Panama City law firm that was representing the Sheriffs Office in its attempt to forfeit a jet and a Ferrari used by the Girls Gone Wild entities, thereby
1

Copies of the subpoenas are attached as Exs. A, B and C to the Mantra Defendants Request for Judicial Notice (RJN).

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improperly gaining access to the confidential law enforcement materials that had been obtained only through the use of criminal search warrants and law enforcement investigation. This access to confidential information, regardless of whether it was

intentional, requires their disqualification. MEMORANDUM OF LAW I. INTRODUCTION AND BACKGROUND TO ARGUMENT A. Counsels Violation of The Stay Warrants A Finding of Contempt

On January 26, 2005, Joseph Francis and one of the Girls Gone Wild corporate entities were scheduled to walk into a courtroom in Panama City, Florida and enter a plea that would have ended an ongoing three-year long investigation and prosecution. The plea had been approved by the two state attorneys handling the case. It had been approved by the State Attorney for Bay County, Florida. It had been approved by the Sheriff for Bay County, Florida. All that was left was for Mr. Francis and the corporation to appear, enter their pleas, and then be sentenced. 2 The justification for the plea deal was clear. For the defendants, it resolved a serious matter that had long been hanging over their heads. For the State Attorney and the Sheriff, the case had worsened dramatically during the discovery process. The primary complaining females, since hiring their personal attorney from Chicago, have repeatedly changed their story in an attempt to make their claims for money stronger.

The allegations in this paragraph and in section II.E.2 are based on information and belief. The complete facts regarding Dents conduct in connection with the plea agreement are known only to Dent and his co-counsel, and to a lesser extent the various individuals he contacted in connection with the plea agreement.

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They now claim that they had told their true age, when they earlier had admitted they had lied. They now claim that they were forced to do certain sexual acts, when they had first admitted they had acted voluntarily. They now claim they were socially nave and inexperienced teetotalers, when in fact they were typical worldly teenagers enjoying the typical worldly spring break pursuits. These lies completely undermined their credibility, and as a result, their usefulness as witnesses in the criminal case. (See II.E.1) The complaining witnesses who were alleged as victims in the criminal case further damaged their credibility, and consequently the criminal case, when they filed this lawsuit. They sought to recover compensatory damages, punitive damages, treble

damage, and attorneys fees of unspecified amounts even though: they had sought out the Girls Gone Wild film crew and Mr. Francis in an attempt to get filmed (and not the other way around); (See, e.g., Plaintiff C Civil Depo., p. 27-28.) (RJN Under Seal, Ex. AA.) they had lied about their ages in order to get filmed, both on camera and in writing; (See, e.g., Plaintiff D April 2, 2003 Stmt., p. 6.) (RJN Under Seal, Ex. BB, GG, HH, II.) their identities have never been publicly revealed; and (RJN, Exs. H, M) no footage of these purported victims has ever been released on a Girls Gone Wild video.3 (RJN, Ex. F.)

Only one of the plaintiffs claims to have been included in a commercially released Girls Gone Wild video. Her filming is not, however, included as the basis for any charges in the criminal proceedings.

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Mr. Francis and the Girls Gone Wild entities have refused to pay multi- millions to these so-called victims because their own fraud against Girls Gone Wild caused the situation in the first place, and because, furthermore, they have suffered no harm to themselves or their reputations. Plaintiffs motivation for the instant subpoenas is transparent to block the resolution of the criminal matter so that plaintiffs could coerce a multi- million dollar settlement from defendants. When the Chicago lawyer for the complaining females

learned about the impending resolution of this case, he took immediate steps to ensure that the criminal resolution was effectively blocked. His apparent intention was to use the threat of the criminal proceeding to coerce a civil settlement that would exceed exponentially any recovery that he could otherwise obtain. He threatened the State Attorney that if the settlement were allowed to proceed, he would wage a nationwide media campaign to disparage the State Attorney (even though this was not the same State Attorney that had initially made the decision to file the charges). Further, in violation of this Courts stay, counsel issued the instant subpoenas to the Sheriffs Department and the State Attorneys Office for their entire case files. (RJN Ex. A, B and C.) Counsels actions appear designed to give teeth to his threats to publicly excoriate the State Attorney and Sheriff for offering a plea to the defendants in the criminal matter. 4 Counsels recent communications confirm the purpose and intent of his conduct: Dent has contacted counsel for the Mantra Defendants and recommended, to avoid the threat of criminal liability, that the Mantra Defendants immediately settle the civil action
4

See footnote 1.

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with his clients. (Declaration of Thomas R. Julin (Julin Decl.), 5 & 6.) The calls violate Florida Bar Rule 4-3.4(g). There is no question that Counsels violation of the stay was intentional. Not

only was Dent involved in litigation of the stay in the first place, but both Dent and plaintiffs local counsel, Ross McCloy, used the existence of the stay of this case in depositions in the criminal proceedings to block any questioning of the complaining females on financial motive and bias, in violation of the defendants Sixth Amendment right to prepare a defense. 5 Incredibly, at the same time that Dent interfered with and delayed resolution of the criminal case, he asked this court to lift the stay because he claims that the criminal case is moving slowly. (D.E. 116.) B. Counsels Ethical Violations Requires Their Disqualification

Dents disregard of the Courts stay and ethical rules is consistent with his earlier conduct in this case. He improperly sought and obtained access to confidential law enforcement files and materials by hiring the same Panama City law firm that was representing the Sheriff in the attempt to forfeit a jet and a Ferrari used by the Girls Gone Wild entities. Those confidential law enforcement materials had been obtained only through the use of criminal search warrants and law enforcement investigation. McCloy has admitted that he personally participated in the forfeiture proceedings, when his partner asked me for strategy and procedural help in the presentation of his case and I
5

In response to questions about the civil claims, McCloy stated, No, youre not going to talk about that case. We are under a Stay Order in the discovery of the Federal civil action, we cannot progress with any civil discovery, and were not going to allow that to happen in the criminal . . . . Dent joined in these objections. (Plaintiff M Civil Depo., p. 12-13.)

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reviewed some videotapes that were given to him by the Sheriffs Office to prove the connection between the use of the vehicle and the airplane and the criminal charges that were levied at that defendants at that time. (Julin Decl., Ex. B.) Plaintiffs case has been irreparably tainted by counsels use of those confidential materials. The issuance of the instant subpoena on the Sheriffs Office highlights the fundamental conflict inherent in the Plaintiffs representation. The subpoenas were

served by Plaintiffs local law firm for the entire investigative file of both the State Attorneys and Sheriffs Offices. (RJN Exs. A-C.) Given the pending status of the criminal matter, the State Attorney quickly and timely asserted its objections to the subpoena and refused to produce any records. (RJN Ex. D.) However, the Sheriff who is represented by the very same firm that served the subpoena in the first place has not filed any response whatsoever. The violation of the rule against exploiting information from government representation is, by itself, grounds requiring disqualification of plaintiffs counsel. However, counsel has violated several other rules that also warrant disqualification. For example, Dent has violated the Florida ethical rules against using a criminal matter to gain an advantage in a civil case and making extrajudicial statements to the media when he apparently threatened to wage a media campaign to interfere with resolution of the criminal case. (See II.E.2.) In addition, counsel created an unwaivable conflict of interest by hiring the same firm that was also representing the Sheriffs Office: the same assets that the Sheriffs Office sought would now be sought by the same firm on behalf of the complaining witnesses. Notably, the same counsel initially filed this case in federal

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court, drew Judge Stephan P. Mickle, and then immediately dismissed the case. (RJN, Ex. J (Order of Voluntary Dismissal dated October 3, 2003).) He then refiled the same claims, in an apparent attempt to draw a different judge. (D.E. 1 (Civil Complaint filed October 8, 2003 (RJN Ex. E).) Counsels violation of the stay appears to be a ploy to use a pending criminal matter or potential criminal liability to coerce a civil settlement. Counsel should be enjoined from continuing to interfere in the resolution of the criminal matter through unlawful subpoenas and threats of a media campaign to intimidate the State Attorney to prevent the plea from being consummated. Furthermore, counsel should be disqualified from any further representation in this case as a result of their unethical violations of the rules of the Florida Bar. II. STATEMENT OF THE CASE AND THE FACTS A. The Criminal Proceedings

During spring break 2003, camera crews connected with the Girls Gone Wild video series recorded images of various events in Panama City Beach, Florida. (RJN, Ex. F, 16.) Beginning on April 2, 2003, the Bay County Sheriffs Office arrested several individuals associated with the production, based entirely on statements by the five complaining females who were the original plaintiffs in this action. (RJN, Faith Bell Affidavit attached to Ex. I.) At the same time, the Sheriffs Office executed search warrants on five separate locations and seized approximately 175 hours of videotapes, as well as dozens of boxes of equipment, documents, clothing and other evidence. (Id. at 18.) The Sheriffs Office also seized a Gulfstream II jet aircraft, a Ferrari automobile,

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and two vans used by the camera crew and corporate officers connected with Girls Gone Wild. (RJN, Ex. I, 3.) Less than two weeks later, the State Attorneys Office commenced a criminal prosecution, State v. MRA Holding LLC, No. 03-1036H (Fla. 14th Cir.), in the Circuit Court of the Fourteenth Judicial Circuit of Florida against those arrested, including all of the six defendants in this action. (RJN, Exs. G & H.) B. The Forfeiture Proceedings

Shortly after the arrests, searches, and seizures, the Bay County Sheriffs Office commenced a civil forfeiture proceeding, Bay County Sheriffs Office v. Aero Falcons LLC, No. 03001480CA, in the Circuit Court of the Fourteenth Judicial Circuit attempting to forfeit a Gulfstream II jet and a Ferrari automobile on the ground they had been used by Girls Gold Wild. (RJN, Ex. I.) Attorneys Franklin Harrison and Ross McCloy, of the law firm of Harrison, Sale, McCloy & Thompson in Panama City, Florida, represent the Sheriffs Office in that matter, which is still ongoing. Id. As counsel for the Sheriffs Office, Attorney Harrison and Attorney McCloy had access to and reviewed the evidence that had been seized and the witness statements taken by the Sheriffs Office. In addition, they participated in the depositions and strategy meetings in that matter. (Julin Decl., Ex. B; RJN, Exs. N-P.) On May 21, 2003, Judge Dedee Costello entered an order in the forfeiture proceedings finding that the Sheriffs Office lacked probable cause to seize the Gulfstream II jet, which Harrison, Sale, McCloy & Thompson appealed. (RJN, Ex. Q.)

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In a per curiam decision, the District Court of Appeal for the First District affirmed Judge Costellos finding of no probable cause. (RJN, Ex. R.) C. The Civil Suit By The Complaining Females for Purported Monetary Damages Within two weeks of the arrests and the initial statements by the complaining females, plaintiffs attorney Tom Dent, an attorney from Chicago admitted to Florida pro hac vice, was hired by the complaining females to assert a civil claim for money. (RJN, Ex. E.) Attorney Dent then hired as his co-counsel, Harrison, Sale, McCloy &

Thompson, the same attorneys and law firm that had been representing the Sheriffs Office in the forfeiture proceedings. Id. On October 8, 2003, the parents of the original five complaining females and one additional female (as well as one other woman on her own behalf) filed this suit, raising allegations identical to those in the criminal action and claiming that civil liability can be imposed against the defendants based on their violation of the underlying criminal statutes. Id. The complaint was amended on February 4, 2004 to add claims on behalf of one additional female. (RJN, Ex. F.) 1. The Civil Suit Uses Confidential Information for Allegations and Strategy The initial and amended complaints are indicative of the illegal and improper use of confidential law enforcement information. Much of the information on which

Attorney Dent based plaintiffs claims is information to which Attorney McCloy had access through his representation of the Sheriffs Office. For example, the complaints

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contain allegations regarding the ownership of the property seized, the leasing of certain properties and transportation of equipment, the travel of Mantra employees and camera crews, the filming activities of Mantra employees and camera crews, and the transportation of video footage, as well as information regarding the possession of certain tapes by certain defendants. (RJN, Exs. E & F.) Attorney McCloy had access to this information through his review of the materia ls seized, the statements of witnesses interviewed by law enforcement, and the reports of investigation by law enforcement. (Julin Decl., Ex. B.) The civil complaints are only an indicator of the potential for abuse from the improper access to this information. Much more critical is what cannot be seen the use of the Sheriffs information and strategy, the knowledge of the strengths and weaknesses of the criminal case against the Mantra defendants and the Sheriffs internal strategies and evaluation of the case to defend depositions, identify witnesses, plan settlement strategies, and otherwise further the civil case brought by the plaintiffs. 2. The Harrison/McCloy Firm Admits It Had Access To and Used Confidential Law Enforcement Information Counsel f or the Mantra defendants learned of this simultaneous representation shortly after service of the complaint and immediately informed plaintiffs counsel that the dual representation would require disqualification if Harrison, Sale, McCloy et al. used their representation of the Sheriffs Office to gain access to information for the civil case. On December 1, 2003, defense counsel sent a letter to Tom Dent and Ross McCloy pointing out that Florida Bar Rule 4-1.11(b) prohibits a lawyer from using confidential

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information gained in the representation of a state agency in a subsequent civil case. Defense counsel requested that plaintiffs provide information regarding the identity of lawyers and non-attorney employees who had worked on the civil action and on the forfeiture and criminal proceedings, respectively; the extent of such persons access to confidential government information concerning defendants; and the measures, if any, that had been taken to screen and segregate those working on the civil case from those working on the forfeiture or criminal proceedings. (Julin Decl., Ex. A.) Mr. Dent completely ignored the request, and initially, Mr. McCloy also did not respond to the request. However, after the stay had been entered, Mr. McCloy

acknowledged (by letter dated February 19, 2004) that his partner (Franklin Harrison) was representing the Bay County Sheriffs Department in forfeiture proceedings against the Mantra defendants, that Mr. McCloy personally had been given access to materials in the forfeiture case by Mr. Harrison, and that they jointly participated in developing the strategy of the forfeiture case against the Mantra defendants. (Julin Decl., Ex. B.) Because the stay was in place when Mr. McCloy admitted his direct involvement in representing the Sheriffs Office and his review of confidential information obtained by the Sheriff, the Mantra defendants did not move to disqualify plaintiffs counsel. Plaintiffs counsels recent actions in violation of the stay, however, both by issuing subpoenas and by interfering with the criminal matter in an attempt to impact the civil litigation, have forced the Mantra defendants to seek relief at this time.

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D.

The Stay

On December 2, 2003, the Mantra defendants moved to stay this civil action pending the outcome of the criminal proceedings. At the hearing on February 4, 2004, Attorney Dent acknowledged that 18 United States Code Section 3509(k) requires the stay of all civil actions for recovery of damages if a criminal action is pending which arises out of the same occurrence and in which a minor is the victim. 6 Judge Rodgers granted the motion orally on the record and stayed all further proceedings immediately. The stay only allowed Plaintiffs counsel to immediately serve a protective subpoena on local law enforcement to ensure that the materials seized would be preserved, so long as they did it timely and right away. (D.E. 34.) The stay was memorialized in an order issued the day of the hearing. (See D.E. 43; see also, RJN, Ex. L.) Plaintiffs counsel, however, did not serve a timely subpoena on the state attorneys office in February 2004. Nor did plaintiffs counsel include, in the June 2, 2004 joint stipulation or agreed order governing maintenance and use of materials, any mention of the video materials held by the state attorneys office or the importance of preserving `those materials. Plaintiffs counsel mo ved to lift the stay on December 15, 2004, arguing that the discovery was being delayed in the criminal case. (D.E. 75.) The Court denied the motion, observing that the federal statute requires the stay and noting that plaintiffs counsel had not submitted any legal authority to the contrary. (D.E. 88.) The Court also

Attorney Dent did not initially oppose the stay. (RJN, Ex. K, p. 16, lines 8-22.)

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later denied plaintiffs motion for reconsideration, finding that it raised no new legal arguments. (D.E. 97.) The case was reassigned to Judge Smoak on December 1, 2005. Shortly after the reassignment, plaintiffs counsel moved for a status conference before Judge Smoak to determine whether the Court would entertain plaintiffs third motion to lift the stay on the ground that the criminal case was taking too long. (D.E. 116.) The Court denied the plaintiffs motion for a status conference. (D.E. 118.) E. The Plea Agreement In the Criminal Matter

Meanwhile, the State Attorney and the Mantra defendants had negotiated a plea agreement to resolve the criminal proceedings. The Assistant State Attorneys handling the case had negotiated and approved the agreement. The State Attorney himself had approved the agreement. The Sheriff for Bay County had approved the agreement and agreed to inform the Court that it believed that the agreement was appropriate and in the best interests of the Sheriffs Office. The complaining witnesses and their parents had been informed about the agreement and had approved of the resolution. The plea

represented a fair and reasonable resolution of the criminal charges against the Mantra defendants. 7

See footnote 2.

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1.

The Plea Offer By The State Attorney Was Justified Because The Complaining Witnesses Changed Their Testimony After Attorney Dent Began His Representation

The State and the Sheriffs Office were justified in entering into the plea agreement because, under Attorney Dents representation, the complaining witnesses completely changed their testimony they now falsely deny that they had intentionally sought out the Girls Gone Wild camera crews, despite video evidence to the contrary; they falsely deny that they had lied about their age to get on film, despite video evidence to the contrary; they falsely claim that Girls Gone Wild crews knew their true ages; they falsely deny that they had used alcohol prior to meeting the Girls Gone Wild crews; and they now falsely claim that they acted against their will rather than voluntarily. As set forth below, each of these claims contradicts what they initially told the Sheriff and the State Attorney, and/or is contradicted by their other testimony or the testimony of other independent witnesses. a. The Complaining Witnesses Lied By Denying That They Sought Out Girls Gone Wild. First, discovery in the criminal matter revealed that the issues about which Attorney Dents clients complained were substantially, if not entirely, the fault of those complaining witnesses. The complaining witnesses were taking part in Spring Break festivities, and as part of those activities they specifically sought out the Girls Gone Wild

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film crews and Mr. Franc is. (See, e.g., Plaintiff C Civil Depo., p. 27-28.)

(RJN Under

Seal, Ex. AA.) The Girls Gone Wild film crews did not target these 17 year-old females on the contrary, the film crews and Mr. Francis were their targets. Id. After hiring Attorney Dent, Plaintiffs B and M attempted to downplay their own responsibility, lying about the fact that they all had intentionally sought out GGW in order to be filmed. They testified that they were not very familiar with Girls Gone Wild, that they did not know who Joe Francis was, and that they did not intentionally seek him out. (See Plaintiff B Crim. Depo., p. 76-77 (RJN Under Seal, Ex. CC); Plaintiff M Crim. Depo., p. 72-73 (RJN Under Seal, Ex. DD).) This testimony was false. Plaintiff B had initially told the Sheriffs investigators that she recognized Mr. Francis when she met him because she had seen Mr. Francis on the Maury Povich show. (Plaintiff B April 22, 2003 Stmt., p. 2-3 (RJN Under Seal, Ex. EE).) On video, Plaintiff B specifically inquired about Mr. Francis, asking where is your manager personwhats his name? (Tape A-199) Plaintiff C admitted in her deposition that they had been hoping to meet Joe Francis, the famous guy. (Plaintiff C Civil Depo., p. 27-28 (RJN Under Seal, Ex. AA).)

Though the women are now all adults, the stay order has precluded a motion to substitute their real names for the Does or parents as guardians. Until such time, to protect the plaintiffs identities, pertinent portions of the deposition transcripts, plaintiffs statements to the Bay County Sheriffs Office, and certain written releases and consents signed by them are being lodged with the Court under seal so that they do not appear on the docket and are not publicly available.

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b.

The Comp laining Witnesses Lied About Their Age To Get on Film, and Later Lied To Law Enforcement When They Claimed Girls Gone Wilds Knew Their True Ages.

Each of the complaining females lied to the film crews to hide the fact that they were not old enough to be filmed, knowing that Mantra would not film them if they were under 18. First, the females falsely stated on film that they were over the age of 18, the age required by Mantras policies for any filming. 9 (See, e.g., Plaintiff D Crim. Depo., p. 30 (RJN Und er Seal, Ex. FF).) Second, those that were filmed falsely represented in a written release that they were over the age of 18. (See Releases of Plaintiffs C and D (RJN Under Seal, Ex. GG and HH).) Before she was represented by Attorney Dent, Plaintiff D told the Sheriffs investigator that she and Plaintiff C both lied to a Girls Gone Wild cameraman about their ages, had signed a release form indicating they were 18, and that they had done so without any prompting from others. (Plaintiff D April 2, 2003 Stmt., p. 6.) (RJN Ex. BB.) Months later, after Attorney Dent began representing her, Plaintiff D testified at deposition that she told the cameraman she was just kidding when she told him she was 18. (Plaintiff D
9

Federal and State law only require that females filmed engaging in explicit sexual conduct, not merely flashing their chest, be over the age of 18. See 18 U.S.C. 2257. The criminal court in this matter specifically held that filming a minor flashing was not illegal because flashing is not criminal conduct. See also, Lane v. MRA Holding, 242 F. Supp. 2d 1205 (M.D. Fla. 2002 ). However, Mantras filming policies exclude any one under the age of 18 from being filmed in a non-public place, regardless of whether the footage includes explicit sexual conduct.

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Crim. Depo., p. 69-72.) (RJN Under Seal, Ex. FF.) When challenged at deposition, Plaintiff D admitted that she lied to the cameraman and said she was 18 before he filmed her, and that nothing in the video footage showed her saying she was just kidding. (Id. at 95-96 & 121-24.) Plaintiff D had also sought out Girls Gone Wild a month earlier, and she had lied about her age on video on that occasion as well. (Id. at p. 21, 30.) (RJN Under Seal, Ex. FF.) On April 2, 2003, before she was represented by Attorney Dent, Plaintiff B told the Sheriffs investigator that she did not believe that anyone from Girls Gone Wild knew Plaintiff C was only 17 when she was filmed. (Plaintiff B April 2, 2003 Stmt., p. 5.) (RJN Under Seal, Ex. JJ.) Twenty days later, after Attorney Dent began representing her, she changed that story, and claimed that she had told Mr. Francis that Plaintiff C was only 17, and that she and the others had told Mr. Francis that they were all under the age of 18. (Plaintiff B April 22 Stmt., p. 5-6.) (RJN Under Seal, Ex. EE.) She repeated this new story again during her deposition, with Attorney Dent by her side. (Plaintiff B Crim. Depo., p. 103-104.) (RJN Under Seal, Ex. CC.) On April 1, 2003, Plaintiff M told law enforcement that none of the complaining females had told anyo ne with Girls Gone Wild that they were under 18, and that none of the females had said anything about age. Two years later, however, when represented by Attorney Dent at her deposition, she claimed that they had told Mr. Francis they were only 17. (Plaintiff M

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Civil Depo., p. 87.) (RJN Under Seal, Ex. KK.) It was the plaintiffs own fraud that caused the harm of which they now complain; Mr. Francis and the other Mantra defendants are victims of that fraud, not wrongdoers. The only mistake by the film crew was that they were unable to discover that fraud. c. The Complaining Witnesses Lied About The

Voluntariness of Their Actions In order to bolster their civil claims, and at the expense of the criminal case, the complaining witnesses have altered their testimony to portray themselves as victims who only acted against their will. These claims are false, and are completely contradicted by the videotapes and other evidence. One (and only one) of the complaining witnesses claims that she was given alcohol by someone connected with Girls Gone Wild, and that only that single alcoholic beverage she consumed caused her to agree to be filmed. (Plaintiff J Crim Depo, p. 68-69.) (RJN Under Seal, Ex. LL.) In fact, however, Plaintiff J previously stated on video that the whole purpose of her trip from Alabama to Panama City was to get on a Girls Gone Wild video, and she falsely claimed on video that she was twenty-three years old. (Id. at 68.) The drink she claimed she had been given was not her first; in fact, she and her companions had been drinking all day and all the way from Alabama. On April 1, Plaintiff M told the Sheriffs investigator that she had been sitting on a couch in the living room, did not see what occurred in the room where Mr. Francis was purportedly with her sister, and did not see any sexual

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conduct whatsoever. (Plaintiff M April 1, 2003 Stmt., p. 5). (RJN Under Seal, Ex. MM.) Two years later, however, when represented by Attorney Dent at deposition, she claimed she had actually walked into the room and observed Mr. Francis exposed. (Plaintiff M Civil Depo., p. 71.) (RJN Under Seal, Ex. KK.) Plaintiff B initially claimed that she voluntarily engaged in prostitution with Mr. Francis. (Plaintiff B Apr. 2, 2003 Stmt., p. 7-8 (RJN Under Seal, Ex. JJ); Plaintiff B Apr. 22, 2003 Stmt., p. 3-4 (RJN Under Seal, Ex. EE).) Two years later, when represented by Attorney Dent in her deposition, she changed that story, and now claims that Mr. Francis forced her to have contact. (Plaintiff B Crim. Depo., p. 118-119, 128.) (RJN Under Seal, Ex. CC.) 2. Plaintiffs Counsel Improperly Interfered With The Plea In Order To Coerce a Multi-Million Dollar Civil Settlement On January 26, 2006, Joseph Francis was prepared to board a plane from California to Florida to finalize a plea agreement in Panama City. At the last minute, defense counsel was informed that the plea offer was being withdrawn. Defense counsel is informed and believes that the offer was withdrawn because Attorney Dent had threatened to engage in a nationwide media campaign against the State Attorney if he consummated the negotiated plea agreement, that Attorney Dent had hired a leading media consultant in the Bay County area to coordinate this campaign, and that Attorney

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Dent had threatened to take the parents of the complaining females on to every national talk show to disparage the State Attorney. 10 To further the threat to the State Attorneys office, and without first seeking to lift the stay or otherwise obtain permission from this Court, plaintiffs counsel issued subpoenas in this case to the State Attorneys Office and the Bay County Sheriffs Office on January 25, 2006, and again on February 21, 20066. (RJN Ex. A-C.) These

subpoenas did not merely seek to preserve video materials. Instead, they sought all records regarding the entire criminal investigation, including the investigative files. Specifically, the subpoenas sought: All still photographs, videotapes, digital photographs or tape recordings, and all other photographic evidence of any kind, and also the complete investigative file, reports, statements, notes, and the balance of the entire tangible criminal investigative file relative, in any way or fashion, to the investigation of Joseph R. Francis, MRA Holding, LLC, Mantra Films, Inc., Mark D. Schmitz, Ryan David Simkin, Noah Tannenbaum and any other employees, agents, or officers of any of the named organizations or entities noted above, within your possession and relative to any and all criminal investigations of said persons or entities at any time by the (State Attorneys Office/Bay County Sheriffs Department). (See RJN, Ex. A & B.) Plaintiffs sought production of these items not at the conclusion of the criminal proceedings, but, rather, at a time and place to be agreed upon by the parties to this action and the (State Attorneys Office/Bay County Sheriffs Office). At the time they issued the subpoenas, there is no question that Attorneys Dent and McCloy knew that the stay precluded them from seeking any discovery in the civil matter.
10

See note 4, infra.

Dent also recently contacted counsel for the Mantra

The facts set forth in this paragraph are based on defense counsels information and belief.

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Defendants, citing potential criminal liability as a reason to settle the civil action promptly. Julin Decl., 5. III. ARGUMENT A. The Court Should Find Plaintiffs and Their Counsel in Contempt For Wilfully Violating the Stay Order The issuance of the subpoenas to the State Attorneys office and the Bay County Sheriffs Department constitutes a plain and willful violation of the Courts February 4, 2004, stay order. Stay orders are a form of injunction and, as such, are enforced through the district courts contempt power. Leighton v. Paramount Pictures Corp., 340 F.2d 859, 861 (2d Cir. 1965) (affirming contempt sanction against plaintiff for filing motion in which the relief requested went far beyond a mere vacatur of the security and stay order); see also, Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000) (contempt order justified for filing of complaint in violation of an injunction against enforcement of a judgment). When a party violates a stay order, the district court should issue an order to show cause why that party should not be held in contempt of court. See Alabama v. United States Army Corps of Engineers, 424 F.3d 1117, 1134 (11th Cir. 2005). A finding of contempt requires evidence that: (1) the order violated was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002). There is no question that the stay order was valid and lawful, clear and unambiguous, and that counsel for plaintiffs could have complied with it had they chosen

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to do so. Plaintiffs Counsel admitted their understanding of the scope of the stay order in the criminal discovery and deposition (while impinging on the criminal defendants Sixth Amendment rights). Counsel simply chose to ignore the existing stay order

because they were urgently attempting to interfere with the impending plea resolution. There is no justification whatsoever for the subpoenas in violation of the stay, and the failure of plaintiffs counsel to seek assistance from this Court dooms that argument in any event. If plaintiffs sought to prevent the destruction of evidence, counsel could have contacted the State Attorney and the Sheriffs Office to ensure all such evidence would be preserved, and counsel could have petitioned this Court if such relief had been necessary. As Attorney McCloy and his partner surely knew (because their firm had been included in the plea approval process), the plea agreement provided for the retention of the evidence seized, including the videotaped footage. In fact, the pleas would not have resolved the entire case; charges would still be pending against two other defendants. The only action that had been permitted under the stay order was for plaintiffs to serve a timely subpoena right away in February 2004, to the State Attorneys office requesting preservation of the 200-odd videotapes. Plaintiffs did not issue such a subpoena two years ago when it would have been permitted, and the subpoenas issued on January 25, 2006 and February 21, 2006 would not have fit within that exception to the stay in any event. Plaintiffs counsel issued the subpoenas simply to make clear their threat to the State Attorneys Office if the State Attorney carried out the negotiated resolution, he

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would be publicly attacked by their national media campaign. The sole purpose was to threaten and intimidate the State Attorney and the Sheriff into backing away from a negotiated resolution of the criminal proceedings, on the premise that the Mantra defendants would have to first deal with plaintiffs counsel by paying substantial sums before defendants could resolve the criminal proceedings. (See Dent communication with Defendants (Julin Decl., 5).) Plaintiffs counsel chose to disregard this Courts statutorily mandated stay in order to advance their efforts to coerce a multi- million dollar civil settlement. Judge Rodgers ruled on three different occasions that the stay must remain in place until the conclusion of the criminal proceedings. Now, counsel has openly violated the stay order and defied this Court. As a result, the Court should issue an order directing plaintiffs and their counsel to show cause why they should not be held in contempt for this blatant and willful violation of the Courts order. B. The Court Should Disqualify Plaintiffs Counsel 1. Attorney Dents Hiring of the Sheriffs Counsel Requires Their Disqualification Florida Bar Rule 4-1.11(b) states, in relevant part: A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

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This rule prevents a lawyer from using the powers of a governmental agency to obtain an unfair advantage in prosecuting civil claims that might arise out of a criminal case. See Handelman v. Weiss, 368 F.Supp. 258 (S.D.N.Y. 1973) (attorney that

represented government interests disqualified from related civil action); Hilo Metals Co. v. The Learner Co., 258 F.Supp. 23 (D. Hi. 1966); Allied Realty of St. Paul, Inc. v. Exchange Natl Bank of Chicago, 283 F.Supp. 464 (D. Minn. 1968) (former government lawyer in criminal action disqualified from acting as attorney for plaintiff in subsequent civil action). In Handelman, the court reasoned that the public confidence in the integrity of the judicial process would be undermined if lawyers were allowed to use information secured during the course of a government investigation to obtain an unfair advantage in prosecuting a civil case. Handelman, 368 F. Supp. at 264. Indeed, (t)he stature of the profession and the courts, and the esteem in which they are held, are dependent upon the complete absence of even a semblance of improper conduct. Id. The disqualification extends not just to the attorney, but to his or her firm and to co-counsel. See Handelman at 264; see also Zarco Supply Co. v. Bonnell, 658 So.2d 151, 154 (Fla. 1st DCA 1995) (under analogous rule 4-1.10(b), confidential knowledge of firm is imputed to co-counsel, requiring disqualification). This rule is designed to avoid even the possibility of abuse so long as an attorney could use that information, the attorney is disqualified. Where, as here, the confidential information has actually been used in fashioning a strategy, as well as possibly having been used to identify and locate additional plaintiffs, the need for

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disqualification is even more evident. Attorney Dents decision to hire Attorney McCloy because of his privileged access to materials seized by the Sheriffs Office has tainted this case, and requires the disqualification of both attorneys and their law firms. Attorney Dent blatantly ignored the rules of the Florida Bar when he hired Attorney McCloy. Then, he used that privileged access to identify other alleged victims, to retain the victims as civil clients, and to commence and prosecute this civil case. Clearly, no steps were taken to guard against the improper use of confidential information because Attorney McCloy (who personally participated in the representation of the Sheriffs Office), was not walled off, but instead took a lead role along with Attorne y Dent. Even after this conflict was brought to counsels attention, they still did not attempt to correct the problem, and continued to use improperly obtained confidential government information to gain an advantage in this matter. Rule 4-1.11(b) is designed to prevent such exploitation arising out of the representation of government agencies. The policy behind the rule precludes a former government lawyer from using information obtained through the power of the government to gain an unfair advantage over civil defendants who do not have that power at their disposal. To ensure that this does not occur, the rule prohibits even the possibility of the use of that information by barring the representation altogether. The callous disregard of this prohibition by Attorney Dent in associating with Attorney McCloy and his firm warrants their immediate disqualification.

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2.

Counsels Violation of Other Ethical Rules Also Requires Their Disqualification

In addition to violating the rule against access to confidential government information, the actions of plaintiffs counsel also violated other rules warranting their disqualification. Florida Bar Rule 4-3.4 prohibits the use of potential or pending criminal liability to gain an advantage in civil proceedings. In addition, Local Rule 77.3 prohibits the making of extrajudicial statements that are likely to prejudice the chance of receiving a fair trial. Further, Florida law prohibits parties from engaging in forum shopping. See Klein, 774 So.2d at 689 (affirming the disbarment of an attorney whose conduct, among other things, showed that the attorney engaged in forum shopping in violation of Florida Bar Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice). Finally, Florida Bar Rule 4-1.7 prohibits the joint representation of two parties where, as here, the parties are competing for the same assets. Plaintiffs counsel have disregarded each of these rules, just as they disregarded this Courts stay order and the rule against using confidential government information. Attorney Dents threats against the State Attorney were designed for the sole purpose of giving Attorney Dent settlement leverage that only a pending criminal matter can provide. His threat to wage a national media campaign for that same purpose is exactly the type of unethical use of the media that the rules were designed to prevent. Dents recent calls to counsel for the Mantra Defendants further demonstrate his attempt to use pending and potential criminal matters for settlement leverage. (Julin Decl., 5 & 6.) Further, Dents dismissal and re- filing of this same action based on his apparent belief

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that he drew an unfavorable judge demonstrates Dents indifference to Floridas prohibition on forum shopping. Dents disregard of the obvious, and unwaivable,

conflict that results from representing two parties competing for the same assets is illustrative of his willingness to disregard the rules. While the violation of Florida Bar Rule 4-1.11(b) alone requires their disqualification, these additional willful violations of Florida rules provide further independent bases for that decision, and for the revocation of the pro hac vice status of Attorney Dent and his firm. Finally, and most tellingly, the subpoenas graphically illustrate the nature of the unwaivable conflict of interest. The Sheriffs Office must decide whether to object to the civil subpoena issued by its own lawyers. The conflict is apparent even from the

responses themselves: the State Attorney, charged with prosecuting the matter, immediately and timely objected to any production because the documents requested are the records of an ongoing criminal prosecution; the Sheriffs Office did not respond at all. (RJN, Ex. D.) The state bar rules, professional rules of conduct, and this Courts orders are designed to ensure not only a fair criminal trial, but also to preclude unfair advantage in the civil matter. The policies behind these rules prohibit conduct which not only actually impugns the integrity of the judicial process, but also precludes conduct which gives the appearance of impropriety. The course of conduct by counsel in this matter has

repeatedly violated numerous such rules, and has done damage to the defendants and to the spirit of those policies. See Klein, 774 So.2d at 691 (affirming disbarment of an attorney whose cumulative misconduct demonstrated a disregard for the rules of the

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tribunals in which he litigated and reasoning that cumulative misconduct is to be treated more severely than isolated misconduct, especially where the misconduct at issue is similar in nature); see also Florida Bar v. Shankman, 908 So.2d 379, 386 (Fla. 2005) (finding that attorney who engages in a pattern of dishonest and unethical conduct that occurs consistently must be treated more severely than one who engages in isolated misconduct). IV. CONCLUSION The Court should grant this motion, issue an order directing plaintiffs and their counsel to show cause why they should not be held in contempt for violating the Courts stay order, quash the subpoenas issued to the State Attorneys Office in and for the 14th Judicial Circuit of Florida and the Bay County Sheriffs Department, and disqualify the plaintiffs attorneys from these proceedings. Respectfully submitted, Hunton & Williams Attorneys for Joseph R. Francis, MRA Holding LLC, Mantra Films, Inc., & Aero Falcons LLC By s/Thomas R. Julin Thomas R. Julin & Jamie L. Zysk Florida Bar Nos. 325376 & 0728861 1111 Brickell Avenue, Suite 2500 Miami, Florida 33131 305.810.2516 Fax 2460 tjulin or jzysk@hunton.com

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CERTIFICATE OF SERVICE I hereby certify that on February 7, 2006, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the filing to the following: D. Ross McCloy, Jr. Harrison, Sale, McCloy & Thompson, Chtd. Post Office Drawer No. 1579 Panama City, Florida 32402 Attorneys for Plaintiffs Thomas G. Dent & Scott A. Carlson Seyfarth Shaw, LLP 55 East Monroe Street, Suite 4200 Chicago, Illinois 60603 Attorneys for Plaintiffs I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CM/ECF participant: Mark D. Schmitz, pro se 4517 Manistee Drive Fort Wayne, Indiana 46835

s/Thomas R. Julin Thomas R. Julin