Filing # 31758022 E-Filed 09/04/2015 07:25:34 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA
PAUL E. FERRARO,
Plaintiff,
CASE NO.: 2014-CA-010117-O

v.

UCF ATHLETICS
ASSOCIATION, INC.,
Defendant.
_____________________________________/
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
AND MEMORANDUM IN SUPPORT
Plaintiff, PAUL E. FERRARO (FERRARO), pursuant to BCP 5.4 and Rule
1.380, Fla. R. Civ. P., moves to compel production of documents requested of
Defendant, UCF Athletics Association, Inc. (UCFAA), and states as follows:
1.

Plaintiff served his First Request for Production of Documents (RFP)

upon Defendant UCFAA on November 26, 2014.

2.

Following a request for an extension of time to respond to the RFP,

which was granted, UCFAA and former co-Defendant, The Board of Trustees of The
University of Central Florida (UCF) filed a Joint Motion for Protective Order and
Motion to Stay Discovery on January 9, 2015, as UCFAA had filed a Motion to
Dismiss on December 23, 2014.\1

Pursuant to Rule 1.420(a)(1)(A), Fla. R. Civ. P., Plaintiff voluntarily dismissed Defendant, The University of Central
Florida Board of Trustees (UCF), from this action, without prejudice, on February 24, 2015.

3.

After being fully briefed, and through a hearing held on May 20, 2015,

this Court entered an Order on June 1, 2015 granting in part and denying in part
UCFAAs Motions to Dismiss and Protective Order.
4.

Plaintiff thereafter filed his Second Amended Complaint on June 1, 2015,

and UCFAA filed its Answer on July 2, 2015.

5.

On June 8, 2015, UCFAA submitted incomplete responses and a

lengthy, but non-descriptive, Privilege Log to Plaintiffs First RFP.

6.

The documents withheld by UCFAA concern e-mails, factual

investigative interviews, witness reports, and summaries following Plaintiffs e-mail

dated February 25, 2014, attached as Exhibit B to the Second Amended Complaint.
7.

Specifically, UCFAA objected to RFPs numbered 1, 2, and 4 (listed

below)\2 with nearly identical, but inapplicable, objections stating:

RESPONSE:

Defendant objects to this request because it requests documents protected from

disclosure by the Attorney-Client Privilege and/or Work Product Doctrine. For
2

REQUEST NO. 1: Please provide copies of any and all documents and/or records, including copies of all witness
statements, that refer or relate in any way to the investigation conducted by any Maria Beckman, UCFs Director of
Equal Opportunity & Affirmative Action, or any other employee of UCF, on behalf of the UCFAA as a service to
UCFAA pursuant to 1004.28(2), Florida Statutes, based upon, the e-mail sent by Paul Ferraro to Coach George O'Leary
and others on February 25, 2014.
REQUEST NO. 2: Other than the documents referenced under Request No. 1, please provide copies of any and all
documents that confirm or relate to any investigation(s) conducted by Maria Beckman, UCFs Director of Equal
Opportunity, as a service to UCFAA, pursuant to 1004.28(2), Florida Statutes, for the period of January 1, 2009
through December 31, 2013. The names of parties and witnesses, as well as Social Security numbers and any medical
information, may be redacted from such documents produced in response to this Request prior to their production.
REQUEST NO. 4: Please provide copies of any and all documents, data, and files pertaining to FERRARO, including
but not limited to any personnel files, human resources files, and/or any files containing any formal or informal
complaints, reprimands, and/or corrective actions taken at any time during his employment with UCFAA on behalf of
UCF. (Emphasis added).

additional information concerning this objection, please see Defendants Privilege

Log. Defendant UCFAAs Privilege Log is attached hereto as Exhibit 1.
8.

Initial depositions have been conducted of UCFAAs head football coach,

George OLeary (OLeary), Director of Athletics for UCFAA, Todd Stansbury

(Stansbury), Associate Athletic Director, Brian Reed (Reed), defensive football
coach, Lorenzo Constantini (Constantini), former defensive coordinator, Tyson
Summers (Summers), and former graduate assistant, Andrew Dodge (Dodge)
without the benefit of the documents unreasonably withheld.
9.

Additional depositions will be scheduled, including of Maria Beckman

(Beckman), UCFs Equal Employment Opportunity Director; the very person who
conducted factual witness interviews, as noted on UCFAAs Privilege Log.\3
10.

Consistent with UCFAAs unreasonable refusal to produce e-mails,

factual witness statements, and documents related to the investigative interviews,

UCFAAs counsel objected to similar questions regarding such subject matter during
witness depositions, even instructing witnesses from answering such questions. (See
e.g. Dep. of George OLeary, Disc 2 at 19:20-22:30 minute mark).\4
11.

Because an employer has a duty to investigate alleged discriminatory

comments and, in this case, determine whether UCFAA breached Plaintiffs contract
3

Notably, Ms. Beckman is a UCF employee, not UCFAA.

Although Plaintiff does not have the deposition transcript at this time, his undersigned counsel possesses video
recordings of the OLeary and Stansbury depositions, and will produce the audio for same at the hearing on this Motion,
as UCFAAs counsel has indicated such would be requested to permit an in camera inspection of the documents at issue.

by terminating him after he reported such conduct, UCFAAs steps to investigate,

inclusive of Beckmans investigative interview, the factual responses elicited from
witnesses, and even her findings are critical to this matter.
12.

Without the documents requested or the ability to obtain information

directly from witnesses, Plaintiff is unable to determine the material facts of this
matter, including whether inconsistencies exist between the witness depositions and
prior factual accounts reported to Beckman. In short, required information necessary
for Plaintiff to prove his case is being unreasonably withheld by UCFAA.
MEMORANDUM IN SUPPORT
I. Distinction between work product doctrine and attorney-client privilege.
A. Work Product Doctrine
As the Court is aware, the attorney-client privilege and work product doctrine
are two distinct concepts. Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d
1064, 1067 (Fla. 2011).

Work product, or legal strategy prepared by or at the

direction of an attorney in reasonable anticipation of litigation, is generally protected

from disclosure. This includes documents prepared by a non-attorney if the work was
performed at an attorneys direction and in reasonable anticipation of litigation.\5
5

The work product doctrine is outlined in Rule 1.280(b)(3), Fla. R. Civ. P., which states:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this
rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative,
including that party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party
seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain
the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required

Such documents are protected from disclosure unless the party seeking discovery has
need of the material and is unable to obtain the substantial equivalent without undue
hardship or, in other words, the party cannot obtain similar information through
ordinary investigative techniques and discovery procedures. Tyne v. Time Warner
Entm't Co., L.P., 212 F.R.D. 596, 598 (M.D. Fla. 2002), citing Fla. R. Civ. P.
1.280(b)(3); S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994).
B. Attorney-Client Privilege
As the Florida Supreme Court recognized, [t]he attorney-client privilege is
provided for in 90.502, Florida Statutes, which states that a client has a privilege to
refuse to disclose, and to prevent any other person from disclosing, the contents of
confidential communications when such other person learned of the communications
because they were made in the rendition of legal services to the client. 90.502(2),
Fla. Stat. (2010). Genovese, 74 So. 3d at 1067.

Further, [t]he purpose of the

attorney-client privilege is to encourage clients to make full disclosure to their

attorneys. Id.
However, [t]he attorney-client privilege, unlike the work-product doctrine, is
not concerned with the litigation needs of the opposing party. Id. at 1068. Unlike
work-product, undue hardship is not an exception to the attorney-client privilege when
the opposing party claims that the privileged information is necessary to prove their
showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party concerning the litigation.

case. Id. As noted, [h]owever, the privilege protects only those disclosures necessary
to obtain informed legal advice and if a communication with a lawyer is not made
with him or her in their capacity as a lawyer, no privilege attaches. Id. Therefore, if
an attorney is simply providing general advice to a company as to how it conducts
business, such communications are not protected from disclosure.
II.

Defendant cannot assert the work product doctrine on documents not

included on its Privilege Log, created before litigation was anticipated,
and/or not prepared by or at the direction of counsel.

Defendants primary reason for refusing to produce the documents on its

Privilege Log relating to the investigation(s) conducted by Beckman is based on the
work product doctrine. The documents Plaintiff seeks are Beckmans factual interview
notes, reports, and summaries, all conducted during her investigation.
A. Defendant has waived its objection and must produce all
documents not asserted on its Privilege Log.
Discovery requests 1, 2, and 4 requested Defendant to produce documents that
were not listed on its Privilege Log. Plaintiff requests this Court compel Defendant to
produce all responsive documents in its possession that are not listed on its Privilege
Log. This specifically includes any documents created between the dates of February
24 and March 3, 2014.\6

Beckman conducted the interviews of various individuals involved in Plaintiffs discrimination complaint in order to
commence the Defendants standard EEO compliance process.

Plaintiff also requests Defendant be denied the opportunity to amend its

Privilege Log based upon waiver. Indeed, if a party does not thereafter submit a
privilege log within a reasonable time before a hearing on the motion to compel, a trial
court is justified in finding a waiver of the claim of immunity from discovery because
there is no basis on which to assess the claim. Bankers Sec. Ins. Co. v. Symons, 889
So. 2d 93, 96 (Fla. 5th DCA 2004).\7
The instant matter began with an email sent by Plaintiff on February 24, 2014
(Exhibit B to Second Amended Complaint). However, the Defendants earliest
assertion of the work product privilege is March 3, 2014. Mr. Reeds notes indicate
that he met with Beckman on February 27, 2014, a copy of which are attached hereto.
(See Ex. 2). Nonetheless, no documents were provided in discovery that would
account for all of the communications which reasonably and presumably occurred
between the date of the e-mail (February 24, 2014) and March 3, 2014.
Because no documents of this nature were provided in response to Plaintiffs
discovery Requests numbered 1, 2 and 4, Plaintiff again requested the documents via
e-mail subsequent to its formal requests and prior to filing this Motion. However, to
date, other than contemporaneous typewritten notes of Reed (Ex. 2), Defendant has
7

In Markel Am. Ins. Co. v. Baker, 152 So. 3d 86 (Fla. 5th DCA 2014), the Fifth DCA ruled that counsel did not waive
the attorney-client or work product privileges by voluntarily disclosing privileged information because the statements did
not refer to any privileged matters. In the instant case, however, Defendants counsel released Reeds contemporaneous
notes from February 2014 upon request, even though also claiming the same notes as work product on its Privilege Log.
(Ex.1). By releasing Reeds notes, Plaintiff contends that Defendant has waived any privilege as to all other documents
relating to him and the internal communications regarding his e-mail.

failed to provide any additional documents within the scope of Requests 1, 2 and 4.
Instead, Defendant UCFAA claims that no such documents exist and that everything
relating to the instant matter has been addressed on its Privilege Log. Other than
Reeds 1 pages of typewritten notes which were produced,\8

Defendant is

essentially contending that there was no communication regarding the e-mail of

February 25, 2014 for a full week after it was sent. Nevertheless, Reeds notes
describe conversations that occurred immediately after the email, but nothing
thereafter between February 27 and March 3, 2014. It is implausible to believe that
no one within UCFAA recorded any of the details derived from these important
conversations, or commented by email or text message, regarding Plaintiffs e-mail of
February 25, 2014 in which he reported alleged racial epithets and allegedly resigned.
Further, during his deposition, Stansbury also discussed the dialogue between
himself, Reed, and Senior Associate Athletic Director, David Hansen (Hansen),
which followed almost immediately after the receipt of Plaintiffs e-mail (i.e. Exhibit
B to Second Amended Complaint). Such again leads to the logical and reasonable
assumption that notes were taken in regards to these important conversations, and, at
the very least, calendar entries or emails exist documenting such meetings.
In addition, if Defendants assertion is accurate that all documents within the
Request are listed on its Privilege Log, UCFAA should have no objection to
8

This document was produced only after Plaintiff contended with Defendant that same did not qualify under the work
product doctrine.

producing documents outside the scope of and/or not listed on the Privilege Log. For
these reasons, Plaintiff requests the Court to compel Defendant to produce same.
B.
The work product privilege doesnt apply because the
investigation was not conducted by an attorney, or in anticipation of
litigation.
Plaintiff disagrees that the work product doctrine applies at all.\9 First, the work
product assertion fails because several of the documents identified on the Privilege
Log were created before there was any possible anticipation of litigation.\10
Indeed, Director of Athletics for UCFAA, Stansbury, who is not an attorney,
made it clear in his deposition that, upon obtaining Plaintiffs email, he began to
orchestrate an investigation into the matter, initially through Hansen and Reed to get
more information. (Stansbury Dep. Disc 1; 1:14:45 to 1:15:33; 1:16:53 to 1:17:03;
and 1:17:55 to 1:18:20 min. mark). Stansbury also made no mention or claim of
speaking to an attorney before his decision to task Hansen and Reed to get investigate,
nor did he act at the behest of an attorney when initiating same. (Id.; emphasis
added). Further, in his letter terminating Plaintiffs employment, Stansbury
acknowledged that he assigned Hansen to assist Beckman in investigating Plaintiffs
claims. (Ex.4 to Stansbury Dep., and Ex. 3 hereto).
9

As noted, Beckman performed her initial investigation in her role as a compliance officer. She was not initially guided
by Defendants General Counsel, nor was she herself serving in the role of counsel. As such, Beckmans initial
interviews had nothing to do with any anticipated litigation.
10

As noted, the investigation that followed was never guided by an attorney. Defendant has failed to present evidence to
establish that its emails were drafted in anticipation of litigation. Defendant also cannot deny that Stansbury testified
that he initiated the investigation, following the e-mail, by tasking Reed and Hansen to follow up with Plaintiff.

In fact, during his deposition, Stansbury testified that Plaintiffs email

concerned him simply because it involved what he initially perceived to be a
potential HR issue, but not a legal issue. (Stansbury Dep. Disc 1, 1:18:30 to
1:19:00).

Moreover, Stansbury testified that, if not a prank um[the e-mail]

indicates that we would have an HR [but not a legal] issue. (Id. at 1:19:07 to
1:19:25). Neither in Stansburys testimony, nor in his letter terminating Plaintiffs
employment, did he mention seeking legal advice prior to tasking subordinates to
investigate. Instead, the investigation commenced after a Human Resources matter
was brought to his attention. Stansburys response to the e-mail by initiating an
investigation, and even informing Plaintiff in the termination letter (Ex. 3) of
Hansen and Beckman being assigned, confirms that he viewed it as a potential HR
issue, with no thought of litigation at that time.
By way of Stansburys direction to investigate, Hansen and Reed were tasked
with performing the preliminary fact-gathering that was required in order for
Beckman, UCFs Director of Equal Opportunity, to obtain information which
correlated with forthcoming business advice for Defendant.

The business advice

presumably included, among other things, what financial implications could occur,
based on contract, after terminating Plaintiffs employment agreement.

In short,

Stansbury had no concern of possible litigation until after Reeds conversation with
Plaintiff Ferraro following the issuance of the termination letter.
10

Further, in an e-mail of October 22, 2014 to Plaintiffs counsel, Deputy General

Counsel for UCF, Cook wrote:
[t]he investigation was conducted by the Director of Equal Opportunity
[Beckman] on behalf of UCFAA.
This was not a UCF
investigation. Beckman was providing a service to UCFAA, in keeping with
Fla. Stat. 1004.28(2) which permits the University to provide personal services
to the direct-support organization.
Such service was requested by a non-attorney (Stansbury), and UCFAA has
offered no evidence to suggest otherwise.
Equally if not more important, Defendant asserted in its Motion to Dismiss that
Plaintiff abandoned his job (p. 8 of Motion to Dismiss), for which this Court denied
UCFAAs motion to dismiss Count I (breach of contract) on June 1, 2015. Such an
assertion by Defendant UCFAA flies directly in the face of and is contrary to any
claim that Beckmans notes were prepared in anticipation of litigation or at the
direction of counsel, as litigation would not be anticipated from an employee who
has abandoned his job. Rather, it is patently obvious that Beckman was
performing her customary duties as Director of EO.
Further, even if Stansbury and/or Mr. Reed communicated with Cook, it was
merely to understand the business procedures involved and not because of any
impending lawsuit. In fact, according to Reeds notes, [Reed] talked to General
Counsel regarding our responsibilities. (Emphasis added). If Reed had met with

11

Cook to discuss possible litigation, it stands to reason that Cook would have taken
over the investigation and surely removed it from the hands of the athletic department.
Moreover, if litigation truly was anticipated, Cook had yet another opportunity
to control the investigation when Stansbury merely alerted her to what was going
on, and when she reviewed Stansburys letter (drafted by Reed), before it was given
to Plaintiff. (Stansbury Dep. Disc 1, 1:22:31; and 1:36:16 to 1:37:27). However, she
approved the letter and allowed Reed to deliver it to Plaintiff without any further
involvement from the General Counsels office.

Such actions fly in the face of

Defendant expecting the matter to be litigated. To believe such as assertion, Plaintiff

must accept that Defendants General Counsel allowed the athletic department, rather
than its attorneys, to handle a matter in litigation. Courts have consistently held that
the claimant of the work-product privilege has the burden of presenting competent,
substantial evidence to establish that the interview reports were prepared in
anticipation of litigation. Universal City Dev. Partners, Ltd. v. Pupillo, 54 So. 3d
612, 615 (Fla. 5th DCA 2011). Defendant has failed in this regard. Rather, Cooks
involvement was like any ordinary check with the legal department.\11
Defendant also cannot assert the work product doctrine via a blanket
approach but, instead, must apply it only for documents created in anticipation of

11

If not classified as such, then it is assumed that each time an employee runs something past its legal team, the
employer is preparing for litigation, which is simply illogical.

12

litigation.\12

In sum, all documents contained on the Privilege Log should be

produced as they were not created in anticipation of litigation.

C. Plaintiffs mention of possible counsel was after he was fired.
The anticipated assertion that the work product doctrine applies, based upon
Plaintiffs threatened litigation, is misplaced. During Plaintiffs meeting with Reed on
February 26, 2014, he was presented with a termination letter. (Ex. 3). Plaintiff
only mentioned that he would seek counsel after he was terminated and after he
contends he was told to make UCFAA an offer to resolve the matter. Such is a
reasonable response. Reeds notes likewise confirm this timeline. (See Ex. 2).
Therefore, all internal communications regarding Plaintiff made prior to the letter
being delivered to him were clearly not in anticipation of litigation.
A. As fact work product, Defendants documents are discoverable.
The interview reports and summaries contained on UCFAAs Privilege Log fall
under the fact work product doctrine. As such, they are discoverable. Simply stated,
[f]act work product traditionally protects information which relates to the case and is
gathered in anticipation of litigation. Tyne, 212 F.R.D. at 598.
In contrast, opinion work product consists primarily of the attorney's mental
impressions, conclusions, opinions, and theories. Id.

As the Tyne court noted,

whereas fact work product is subject to discovery upon a showing of need and
12

Further, it seems that by simultaneously applying both doctrines without clarity, Defendant has conflated the attorneyclient privilege and work product doctrine.

13

undue hardship, opinion work product generally remains protected from

disclosure. Id. (Emphasis added). Case law also supports that, because the work
product doctrine is intended only to guard against divulging the attorney's strategies
and legal impressions, it does not protect facts concerning the creation of work
product or facts contained within work product. Grinnell Corp. v. Palms 2100 Ocean
Blvd., Ltd., 924 So. 2d 887, 894 (Fla. 4th DCA 2006).
Furthermore, the work product doctrine does not protect factual information
that a lawyer obtains when investigating a case. Id. at 895. Respectfully, Defendant
should not be permitted to hide behind the work product doctrine to conceal facts that
Beckman discovered during her interviews, or to conceal facts gathered by Stansbury,
Hansen, and Reeds and/or contained within their notes.
The facts contained in Beckmans reports are also not protected simply because
they concern the creation of arguable work product, such as her final report. Instead,
fact work product (such as interview notes and summaries like here) is discoverable
if the party seeking this work product show the court: (1) the need for this fact work
product to prepare a party's case; and (2) that, without undue hardship, the party is
unable to obtain the substantial equivalent of this fact work product by other means.
Horning-Keating v. State, 777 So. 2d 438, 444 (Fla. 5th DCA 2001). Therefore,
need and hardship elements must be alleged in the motion to compel and

14

established to the court's satisfaction at an adversarial hearing. Id.

Here, Plaintiff

meets both elements.

Plaintiff needs the fact work product associated with Beckmans interview
reports because they contain critical facts about what Ferraro initially communicated
to Defendants employees and vice versa. These facts are central to the case because
they will show that Plaintiff did not resign or abandon his position as Defendant
allege.\13

In addition, Plaintiff has no other way of obtaining the information

contained in these interviews summaries and reports because there are no other
documents which contain such information.
In fact, UCFAAs counsel directed Plaintiff to obtain said information during
depositions. Nevertheless, during the depositions to date, Defendants witnesses have
been specifically instructed to not respond to any questions relating to the interview
reports, on the basis of claimed work product. There are no other ordinary discovery
procedures that Plaintiff can implement to gain the same or substantially equivalent
information. As such, Plaintiff has an absolute need for this information to prepare its
case, but has no other way to obtain a substantial equivalent of same.
Because Plaintiff has established the need and hardship elements in its
motion, it respectfully requests this Court grant its Motion to Compel Discovery for
all documents listed on the Privilege Log as Defendant UCFAA will not be
13

This applies not only to the breach of contract claim, but may also show that the Defendant retaliated against Plaintiff
for reporting the discriminatory remarks.

15

prejudiced, while Plaintiff will be prejudiced without same. Alternatively, Plaintiff

requests that UCFAA be required to produce all documents on the Privilege Log,
other than the Draft UCFAA Investigative Report One and Two, Draft UCFAA
Investigative Report Clark Revisions, Draft UCFAA Investigative Final Report,
Final Investigative Report, and the Final UCFAA Investigative Report.\14
III. UCFAA has failed to meet its burden to assert the attorneyclient
privilege on the documents identified in its Privilege Log.
A. Criteria to assert attorney-client privilege
The following criteria is used to judge whether a corporation's communications
are protected by the attorney-client privilege: 1) the communication would not have
been made but for the contemplation of legal services; 2) the employee making the
communication did so at the direction of his or her corporate superior; 3) the superior
made the request of the employee as part of the corporation's effort to secure legal
advice or services; 4) the content of the communication relates to the legal services
being rendered, and the subject matter of the communication is within the scope of the
employee's duties; and 5) the communication is not disseminated beyond those
persons who, because of the corporate structure, need to know its contents. S. Bell
Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994).

14

The only documents identified on Defendants Privilege Log which arguably qualify as opinion work product are:
Draft UCFAA Investigative Report One and Two, Draft UCFAA Investigative Report Clark Revisions, Draft UCFAA
Investigative Final Report, Final Investigative Report, and the Final UCFAA Investigative Report. The remaining
documents, however, do not reveal an attorneys mental impressions, conclusions, opinions, or theories.

16

The Fifth DCA has been very clear that, when objections to discovery requests
are based on either the work-product doctrine or the attorney-client privilege, the
burden is upon the party asserting a privilege to establish the existence of each
element of the privilege in question. Universal City, 54 So. 3d at 616 (Fla. 5th DCA
2011). Here, the Defendant has asserted the attorney-client privilege on two items
contained in its privilege log.\15 Both contain emails by Beckman; however, UCFAA
has failed to meet its burden to prove the elements required to assert the privilege.
First, UCFAA has not shown that the emails were made in confidence for the
express purpose of securing legal advice.\16 As previously explained in section II(B)
supra, Defendants investigation was not initiated by, guided by, or at the behest of an
attorney. Accordingly, Defendant has failed to show that the emails in question would
not have been made but-for the contemplation of legal service; and, as such, cannot
claim attorney-client privilege.\17
Second, UCFAA has failed to show that the emails it has deemed privileged
were not disseminated beyond those who needed to know based upon their positions
within the corporate structure. A chain of emails can easily become non-privileged
15

These documents were authored by Ms. Beckman and are described as: Email sending draft to OGC for review on
March 31, 2014, and Emails re: Ferraro, interviews, and Interview Reports, drafted between March 3, 2014 and June
10, 2014, respectively. (See Privilege Log, Ex. 1).

16

See also Lafarge N. Am., Inc. v. Matraco-Colorado, Inc., 2008 U.S. Dist. LEXIS 47508, *19 (S.D. Fla. 2008).

17

Moreover, to say that Beckman was anticipating litigation or securing legal advice when she was merely in her initial
fact gathering phase of investigation, would stand to mean that the Defendant automatically anticipates litigation every
single time an EEO compliance or human resources issue arises, which is certainly not the case.

17

where a privilege may have previously existed.\18

Here, UCFAA has failed to

illustrate that the emails sought to be protected remained within the scope of
employees on a need to know list and/or had others copied on such e-mails.
Furthermore, the second item for which the attorney-client privilege has been
asserted by UCFAA does not disclose all of the authors who were responsible for the
emails in question. Instead, the author column on the Privilege Log states, Maria
Beckman, Jordan Clark, et.al, by using the Latin abbreviation et. al.\19 By doing so,
the Defendant has left the Plaintiff in doubt as to who actually sent and received the
communications.\20 Based on case law and Rules of Civil Procedure, Defendants
privilege log should delineate who these individuals are, not conceal them.
Accordingly, Defendant has failed to meet its burden of properly asserting the
attorney-client privilege to the e-mails identified on its Privilege Log.

See Adelman v. BSA, 276 F.R.D. 681, 699 (S.D. Fla. 2011) (holding that Defendants must produce all of the not-yetproduced emails from the initial group, other than the single privileged email).
18

Plaintiff acknowledges that, "[w]hen, however, communications appear on their face to be privileged, the party
seeking disclosure must prove that they are not privileged." MCC Mgmt. of Naples, Inc. v. Arnold & Porter LLP, 2010
U.S. Dist. LEXIS 55460, *6 (M.D. Fla. 2010). citing Shell Oil Co. v. Par Four P'ship, 638 So. 2d 1050, 1050-51 (Fla. 5th
DCA 1994). However, Plaintiff cannot discern from the face of the documents on the Privilege Log whether the
documents would be privileged.
19

20

Under Rule 1.280, Fla. R. Civ. P., a party withholding information that is otherwise discoverable by claiming that it is
privileged must make the claim expressly and describe the nature of the documents, communications, or things not
produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection. Bainter v. League of Women Voters of Fla., 150 So. 3d
1115, 1128 (Fla. 2014).

18

B. Defendants attorney-client privilege assertions fail because it did not

have an attorney investigate the allegations, warn its corporate
employees, or meet the primary purpose test.
In the addition to the foregoing, Plaintiff contends that, even if this Court
determines that Defendant has asserted viable privileges, Defendant nonetheless fails
to accurately apply the attorney-client privilege to Beckmans investigative notes and
related emails because it failed to utilize an attorney in its investigation, meet the
proper warning standards, or satisfy the primary purpose test.
In the seminal case of Upjohn Co. v. United States, 449 U.S. 383 (1981) the
Supreme Court issued an opinion which is often regarded as the leading authority on
the scope of the attorney-client privilege within the business world. In Upjohn, a
pharmaceutical manufacturing firm conducted a confidential investigation and internal
audit which revealed that potentially illegal payments had been tendered to foreign
officials in exchange for business. After Upjohn voluntarily notified the IRS of the
illegal payments, the IRS then sought certain information collected during the
investigation, including internal questionnaires sent to managerial employees.
However, Upjohn asserted that the documents were protected by the attorney-client
privilege and work product doctrine and withheld them. Id.
The Supreme Court sided with Upjohn and held that, while all privilege
determinations were to be made on a case-by-case basis, communications by Upjohn
employees to counsel are covered by the attorney-client privilege so far as the
19

responses to the questionnaires and any notes reflecting responses to interview

questions are concerned. Id. at 396-97. Essentially, Upjohn established a flexible
framework to establish when employee communications with corporate counsel in the
course of investigations will qualify as protected exchanges. Specifically, the Court
found that [t]he communications at issue was made by Upjohn employees to counsel
for Upjohn acting as such, at the direction of corporate superiors in order to secure
legal advice from counsel. Id. at 394.
1. There is no evidence on record that Defendant had an attorney
guiding its investigation.
As previously noted, Stansbury made the decision to initiate an investigation
into Plaintiffs claims, and this included having Beckman investigate the matter. The
Upjohn inquiry ends there, because even if Beckman possesses a law degree,\21 she
was obviously acting in her role as a compliance officer and performing her duties as
such, and not as counsel. In fact, UCFAA has never identified Beckman as its counsel
in this matter, nor someone from whom it sought legal advice. Accordingly, the
attorney-client privilege did not attach to Beckmans investigation because she was
not actively licensed as an attorney, not performing the role of an attorney, or both.

21

Beckman is not registered as a licensed attorney in Florida, per the Florida Bars on line attorney directory. Beckman
is also listed as inactive under the Ohio State Bars attorney directory. The Ohio State Bars directory defines
inactive by stating, [i]nactive attorneys may not practice law in Ohio or hold themselves out as authorized to practice
law in Ohio. See, Gov. Bar R. VI, Sec. 2.

20

2. Defendant did not issue warnings during its investigation.

The Supreme Court held the attorney-client privilege would apply when [t]he
communications concerned matters within the scope of the employees corporate
duties, and the employees themselves were sufficiently aware that they were being
questioned in order that the corporation could obtain legal advice. Upjohn, 449 U.S.
at 394.

These types of communications are colloquially referred to as Upjohn

Warnings, or Corporate Miranda Warnings.\22 In the investigative summary of

Beckman for Plaintiff (attached hereto as Ex. 4), there is no evidence to indicate that
the interview was conducted for purposes of UCFAA to obtain legal advice.
Rather, Beckman merely wrote in the opening paragraph, that she explained
that she is conducting an investigation of the allegations that Ferraro made in his
February 25, 2014 e-mail to George OLeary and other UCF Athletic Association
(UCFAA) employees, on behalf of UCFAA. (See Ex. 4). In other words, Beckman
was merely performing her duties as Director of Equal Employment Opportunity, but
with no mention to Ferraro of doing so for purposes of obtaining legal advice.
3. Defendant did not meet the primary purpose test.
Similarly, there is no evidence that the primary purpose of Beckmans
investigative interviews was for the purpose of obtaining legal advice. In the instant

22

In our case, there is no record of Beckman providing Upjohn Warnings to any of the employees she interviewed,
including the notes of Ferraro (Ex. 4 hereto),. The Defendant has also never stated that these warnings took place and,
as such, it is evident that Beckman was not intending to use the information derived from her interviews for litigation.

21

case, Plaintiff seeks the emails created by Beckman during her investigation of his
matter. As previously stated, these emails undoubtedly were created in the course of
Beckman performing her compliance duties and investigating Plaintiffs status as an
employee, and to determine if there were any compliance issues or financial
implications for terminating Plaintiffs employment.
This is also supported by Reeds own notes when he wrote that he had
conveyed to Hansen at 8:45 am on February 25, 2014, I [Reed] advised that there are
legal concerns here from an employee perspective, including potential retaliation [for
opposing discrimination] if we are to terminate. (See Ex. 2 hereto).\23 Reeds notes
support the notion that no attorneys were involved in Beckmans investigation. Reed,
also a non-attorney but with an HR background, knew that EEO compliance could be
an issue and pushed the matter out of the athletic department where it could be
properly addressed; hence, Beckmans investigation.
It seems apparent that Beckman initiated her investigation in an attempt to
identify any potential compliance issues. This was conducted in the ordinary course of
business as is presumably the case with Beckmans position for Defendant.\24 As has

23

Again, as such, Ms. Beckman was investigating Plaintiffs allegations in the ordinary course and scope of her duties as
Director of Equal Opportunity (i.e. EEO compliance). There could not have been an anticipation of litigation at that
time, because such an assertion would mean that Defendant automatically treats every EEO or human resources
compliance issue as being in anticipation of litigation. Such an implied position is illogical and contrary to customary
business practices.
24

As noted at page 11 supra, Beckman, a UCF employee, was allegedly providing a service to UCFAA, pursuant to
1004.28(2)(a), Florida Statues, in her role as Director of Equal Opportunity, but not as an attorney, nor for purposes of
providing legal advice.

22

likewise been previously stated, there has not been any evidence proffered that
Beckman was performing at an attorneys direction and in anticipation of litigation.
Further, even if UCFAA claims in its response that Beckman was directed or
guided by Cook (Deputy General Counsel for UCF, but not UCFAA), it does not
automatically protect Beckmans investigative documents from disclosure. Moreover,
even if Defendant asserts that the emails were to obtain legal advice, its reasonable to
conclude that they were also being utilized to ensure EEO compliance.\25
A case emanating from our own Federal District concerned whether and when
communications between in-house counsel (of which Cook is not for UCFAA), and
other company employees are privileged. In United States ex rel. Elin Baklid Kunz v.
Halifax Hospital Medical Center, 2012 U.S. Dist. LEXIS 158944 (Case No. 6:09 cv1002-Orl 31-TBS) (M.D. Fla. 2012), it was held that a communication with multiple
purposes (e.g. a communication providing both business advice and legal advice)
would likely not be privileged. In Halifax, a hospitals former director of physician
services alleged that the hospital had engaged in fraud and false claims. Id.
In an opinion by Magistrate Thomas Smith, our Middle District ordered Halifax
to produce certain documents that Halifax had deemed privileged. In doing so, the
court employed the primary purpose test and held that a communication that does

25

This is supported by the fact that Plaintiff filed a Charge of Discrimination with the EEOC on July 1, 2014; a copy of
which is attached as Exhibit D to his Second Amended Complaint.

23

not primarily request legal assistance or convey information reasonably related to the
requested legal assistance is not privileged. Id. at *8.
The Middle District also held that emails to or from in house counsel that seek
both legal and business advice often fail to satisfy that requirement. Id. at *12. As
such, emails that list both an attorney and a non-attorney in the To field may not be
privileged if deemed to be for both a business and a legal purpose. Id. The Halifax
court also held that communications from compliance employees, not acting at the
direction of attorneys, are not deemed privileged just because the compliance
department reports to or operates under the supervision and oversight of the legal
department. Id. at *18-23.
When evaluating the facts of our case and applying the primary purpose test,
it is clear that the attorney-client privilege does not apply to any of Beckmans
emails.\26 Not only did a non-attorney (Stansbury) order the investigation, it was
performed so that Defendant knew what implications would result from terminating
Plaintiffs employment contract, and not solely to obtain legal advice.
Accordingly, because the e-mails, factual witness statements, investigative
summaries and other documents on the Privilege Log were created for multiple

26

As noted, the emails were never solely intended to be used as requests for legal assistance but were, instead, part of
Beckmans investigation. In a case from the Southern District of Florida, the Court held that a privilege did not attach
where emails were sent for investigative purposes. See Guar. Ins. Co. v. Heffernan Ins. Brokers, Inc., 2014 U.S. Dist.
LEXIS 146843, *10 (S.D. Fla. 2014) (holding that the primary motivating purpose of the emails was not to prepare for
potential litigation. Rather, the primary motivating purpose was to again investigate the issue.)

24

purposes, the attorney-client privilege does not apply as they fail to meet the primary
purpose test.
CERTIFICATE OF GOOD FAITH CONFERENCE
Pursuant to BCP 5.3, Plaintiffs undersigned counsel has conferred with
Defendants counsel, Marilyn Moran, Esquire, who authorized that UCFAA opposes
the relief sought by this Motion. WHEREFORE, the Plaintiff respectfully requests the
Court to enter an Order granting Plaintiffs Motion and require UCFAA to produce
the documents for the reasons stated herein.
Respectfully submitted this 4th day of September, 2015.
s/ Gary D. Wilson
Gary D. Wilson, Esq.
Florida Bar No.: 0846406
WILSON MCCOY, P.A.
711 N. Orlando Ave., Suite 202
Maitland, FL 32751
Telephone: (407) 803-5400
Facsimile: (407) 803-4617
E-mail: gwilson@wilsonmccoylaw.com
Attorneys for Plaintiff, PAUL E. FERRARO
CERTIFICATE OF SERVICE
I, Gary D. Wilson, hereby certify that the foregoing was filed with the Clerk
using the ePortal system on this 4th day of September, 2015, with copies to be served
on all counsel of record through the ePortal system.
s/ Gary D. Wilson
Gary D. Wilson, Esq.

25

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA
PAUL E. FERRARO,
Plaintiff,
CASE NO. 2014-CA-010117-O

v.
UCF ATHLETICS ASSOCIATION,
INC.
Defendants.
/

DEFENDANT UNIVERSITY OF CENTRAL FLORIDA

ATHLETICS ASSOCIATION, INC.S PRIVILEGE LOG
Defendant University of Central Florida Athletics Association, Inc.
(UCFAA), hereby provides Plaintiff Paul E. Ferraro with the following Privilege
Log identifying documents withheld with respect to all written discovery requests
served by Plaintiff through the date of this document because the communications
are considered to be confidential in nature between Defendant and its counsel,
which fall within the attorney-client privilege and/or work product doctrine. This
log includes all communications and notes, known by the undersigned, up to the
date of this Privilege Log.
Date
03/06/14

Author
Maria
Beckman

03/11/14

Maria
Beckman

Recipient

Description
Coach OLeary Interview
Questions
Draft Report of Interview
Andrew Dodge 3-10-14

EXHIBIT 1

Privilege
Work
Product
Doctrine
Work
Product
Doctrine

Date
03/11/14

Author
Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/05/14

Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/11/14

Maria
Beckman

03/31/14

Maria
Beckman

04/02/14

Maria
Beckman

04/01/14

Maria
Beckman

Recipient

Description
Draft Report of Interview
Danny Barrett 3-4-14

Privilege
Work
Product
Doctrine
Draft Report of Interview
Work
Kirk Callahan 3-4-14
Product
Doctrine
Draft Report of Interview
Work
Lorenzo Costantini 3-3-14
Product
Doctrine
Draft Report of Interview
Work
Mike Bucemi 3-4-14
Product
Doctrine
Draft Report of Interview Pat Work
Bastien 3-10-14
Product
Doctrine
Draft Report of Interview
Work
Paul Carrington 3-10-14
Product
Doctrine
Draft Report of Interview
Work
Paul Feraro 2-28-14.
Product
Doctrine
Draft Report of Interview
Work
Sean Beckton 3-3-14
Product
Doctrine
Draft Report of Interview
Work
Tyson Summers 3-4-14
Product
Doctrine
Draft Report of Interview
Work
Will Glover 3-3-14
Product
Doctrine
Draft UCFAA Investigative
Work
Report
Product
Doctrine
Draft UCFAA Investigative
Work
Report 2
Product
Doctrine
Draft UCFAA Investigative
Work
Report Clark Revisions
Product

-2-

Date

Author

Recipient

Description

Privilege
Doctrine
Draft UCFAA Investigative
Work
Report Final
Product
Doctrine
Scott Cole; E-mail sending draft report to AttorneyJordan
OGC for review
Client
Clark
Privilege/
Work
Product
Doctrine
Todd
E-mail transmitting
Work
Stansbury; Investigative Report to
Product
David
Stansbury 4-3-14
Doctrine
Hansen;
Brian Reed

04/02/14

Maria
Beckman

03/31/14

Maria
Beckman

04/03/14

Maria
Beckman

04/02/14

Maria
Beckman

03/11/14

Paul
Ferraro

Maria
Beckman

Fax from Paul Ferraro

03/11/14

Maria
Beckman

Paul
Ferraro

Fax Transmitting Interview

Report to Ferraro

03/26/14

Maria
Beckman

Paul
Ferraro

Fax Transmitting Revisions

to Interview Report to
Ferraro 2

03/21/14

Maria
Beckman

UCFAA

Ferraro Investigative Report

03/28/14

Maria
Beckman

UCFAA

Ferraro Investigative Report

Brian
Reed,
Jordan
Clark, et.

E-mails re: Ferraro,

Interviews, and Interview
Reports

03/03/14- Maria
06/10/14 Beckman,
Jordan
Clark, et.

Exhibit List

-3-

Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
AttorneyClient
Privilege/
Work

Date

Author
al.

Recipient
al.

3/11/14

Maria
Beckman

Final Bastien Interview

Report

3/11/14

Maria
Beckman

Final Callahan Interview

Report

3/11/14

Maria
Beckman

Final Carrington Interview

Report

3/11/14

Maria
Beckman

Final Dodge Interview

Report

03/12/14

Maria
Beckman

Final Interview Report Manny Messeguer

03/13/14

Maria
Beckman

Final Interview ReportO'Leary

03/11/14

Maria
Beckman

Final Interview Statement

Beckton

04/03/14

Maria
Beckman

03/11/14

Maria
Beckman

Final Report of Interview

Manny Messeguer 3-11-14

03/04/14

Maria
Beckman

Final Report of Interview

Mike Buscemi

03/13/14

Maria
Beckman

Final Summers Interview

Report

03/11/14

Maria
Beckman

Final Interview Report Lorenzo Costantini

UCFAA

Description

Final Investigative Report

-4-

Privilege
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine

Date
03/04/14

Author
Maria
Beckman

Recipient

Description
Final Report of Interview
Danny Barrett

03/03/14

Maria
Beckman

Final Report of Interview

Will Glover

06/10/14

Maria
Beckman

Follow up Questions for

Tyson Summers and Coach
OLeary

03/12/14

Maria
Beckman

Interview Report of George

OLeary

03/11/14

Maria
Beckman

George
OLeary

Letter to Coach OLeary

03/5/14

Maria
Beckman

Paul
Ferraro

Letter to Paul Ferraro

03/11/14

Maria
Beckman

Paul
Ferraro

Letter to Paul Ferraro

04/03/14

Maria
Beckman

Todd
Stansbury

Letter transmitting
Investigative Report to
Stansbury

Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine

03/11/14

Maria
Beckman

Danny
Barrett

E-mail re: Report of

Interview Danny Barrett 3-414

Work
Product
Doctrine

03/12/14

Maria
Beckman

Report of Interview George

OLeary 3-6-14

03/12/14

Maria
Beckman

Report of Interview George

O'Leary 3-6-14

03/05/14

Maria
Beckman

Report of Interview Paul

Ferraro 2-28-14.

Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine

-5-

Privilege
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine

Date
04/15/14

Author
Maria
Beckman

Recipient

04/03/14

Maria
Beckman

03/06/14

Maria
Beckman

02/2014

Brian Reed

06/11/14

Maria
Beckman

06/17/14

Maria
Beckman

07/04/14

Maria
Beckman

UCFAA

Final Investigative Report

With Attachments

07/04/14

Maria
Beckman

UCFAA

Final UCFAA Investigative

Report

07/04/14

Maria
Beckman

UCFAA

Final UCFAA Investigative

Report

06/18/14

Maria
Beckman

06/25/14

Maria
Beckman

07/01/14

Maria
Beckman

UCFAA

George
OLeary

Description
Report of Interview Paul
Ferraro-Revised after
Ferraros comments 2-28-14

UCFAA Investigative Report Work

final
Product
Doctrine
Witness Interview Questions Work
Product
Doctrine
Brians contemporaneous
Work
notes Feb. 2014
Product
Doctrine
E-mail Transmitting
Work
Interview Report to Coach
Product
O'Leary
Doctrine
Final Summers Interview
Report

Follow up Questions for

Doug Marrone and Bill
O'Brien
Tyson
Summers

Privilege
Work
Product
Doctrine

Message from
FOOTBALLHALL2
Note to file re: B. OBrien

-6-

Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine
Work
Product
Doctrine

Date
6/11/14

Author
Danielle
Cumm;
Coach
OLeary

Undated

Maria
Beckman

Recipient
Maria
Beckman

Description
Read receipt for e-mail to
Coach George OLeary

Privilege
Work
Product
Doctrine

Draft report of interview of

George OLeary 6-12-14

Work
Product
Doctrine

All of the above-referenced documents were created by Defendants

employees or attorneys in anticipation of litigation. A more detailed description of
the documents would violate the attorney-client privilege and/or invade counsels
thought process.

-7-

Dated this 8th day of June, 2015.

By:s/Marilyn G. Moran
Allen J. McKenna
Florida Bar No. 381251
E-mail: amckenna@fordharrison.com
Marilyn G. Moran
Florida Bar No. 0163813
E-mail: mmoran@fordharrison.com
Bret C. Yaw
Florida Bar No. 0100445
E-mail: byaw@fordharrison.com
FORD & HARRISON LLP
300 South Orange Avenue, Suite 1300
Orlando, FL 32801
(407) 418-2300 Telephone
(407) 418-2327 Facsimile
Attorneys for Defendant
UCF Athletics Association, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished by e-mail delivery to: Gary D. Wilson, Esquire, and Nathan A.
McCoy, Esquire, Wilson McCoy, P.A., 711 North Orlando Avenue, Suite 202,
Maitland,

Florida

32751,

gwilson@wilsonmccoylaw.com

nmcoy@wilsonmccoylaw.com, this 8th day of June, 2015.

s/Marilyn G. Moran
Marilyn G. Moran
WSACTIVELLP:7658331.1

-8-

and

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4