Case management conference bio trackthc 02 02-2017

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 15-018959

BARRY GAINSBURG PA & BARRY GAINSBURG,

Plaintiffs,

vs.

BIO-TECH MEDICAL SOFTWARES, INC. D/B/A BIOTRACKTHC & STEVEN SIEGAL,

Defendants. _________________________

HEARING

The above-entitled cause came on for hearing before the HONORABLE JUDGE JOHN BOWMAN, as Presiding Judge at the Broward County Courthouse, 201 Southeast 6th Street, Fort Lauderdale, FL 33301 on the 2nd day of February, 2017 commencing at 3:13 p.m.

REPORTED BY: ADRIENNE RODRIGUEZ, COURT REPORTER STATE OF FLORIDA

Bowman, Honorable John 02-02-2017 Page 2 of 12

1 APPEARANCES OF COUNSEL

2 ON BEHALF OF THE PLAINTIFF:

3 BARRY GAINSBURG, ESQUIRE BARRY GAINSBURG, P.A.

4 607 SEA TURTLE WAY PLANTATION, FL 33324

5 (954)559-6853 [email protected]

6 ON BEHALF OF THE DEFENDANT:

7 DAVID I. SHINER, ESQUIRE

8 SHINER LAW GROUP, P.A. 95 SOUTH FEDERAL HIGHWAY

9 SUITE 200 BOCA RATON, FL 33432

10 (561)777-7700 [email protected]

11 ALSO PRESENT:

12 STRATTON SMILEY, ESQUIRE

13 DIANA HANNA, PARALEGAL

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1 HEARING

2 FEBRUARY 2, 2017

3 Thereupon:

4 THE COURT: You all requested a case

5 management, so tell me what's going on with the

6 case.

7 MR. GAINSBURG: Greetings, Your Honor. My

8 name is Barry Gainsburg. I'm here on behalf of

9 Barry Gainsburg, P.A., myself today. This case

10 formally was in front of Judge McCarthy and before

11 that she was with another Judge, Judge Imperato. A

12 lot of motions are hanging out there. Nothing

13 really has progressed on the case to this day. So,

14 basically, originally Defendants had filed a motion

15 to consolidate the cases. There is a bunch of

16 cases out there, concerning numerous law firms,

17 Defendants and stuff, and they also had a motion to

18 transfer the cases. They had withdrawn that

19 yesterday, so that's no longer being discussed

20 today. But we still have a set of outstanding

21 motions that need a block of time for scheduling.

22 Okay, so with respect to that, there's

23 currently a 57.105 motion that needs to be set for

24 Entitlement to Attorney Fees, and that was

25 Defendant's Second Motion to Dismiss. And I assume


1 we need about 15 minutes, maybe 10 minutes on that.

2 Okay. We have -- originally, the Judge had ordered

3 depositions to be taken, those witnesses did not

4 show up, so I have outstanding motions for civil

5 contempt. I have four of those. I think those

6 should take 20 to 30 minutes in total to hear.

7 THE COURT: Okay.

8 MR. GAINSBURG: Okay. I have motions to

9 compel discovery responses from the Defendants.

10 One is against Steven Siegel I believe and the

11 other is against BioTrack, as well I believe that

12 should take 15 minutes. I know the other side has

13 a motion to compel as well, that should probably be

14 done at the same time. I have five motions for

15 attorney fees based upon not showing up at

16 scheduled depositions, those should probably take a

17 total of 15 to 20 minutes since they're fairly

18 similar in scope, the same fact. I have a motion -

19 - Defendants have filed a counterclaim against me,

20 I have a motion for that to be stricken as a sham

21 pleading as well as a motion to dismiss on that.

22 That should probably take 15 to 20 minutes. Again,

23 it's the same grounds.

24 And, currently, once we get through the

25 motions for contempt and stuff, I had notices of


1 depositions that need to be reserved or scheduling

2 dates for Dr. Steven Siegel. I need one for Mr.

3 Alexander Kratchmann (phonetic), I need one for Ms.

4 Jenifer Hughes, and I need one for Mr. Gary

5 Greenward, as well as one for Brian McClintock.

6 So, pretty much at this point it's just a matter of

7 scheduling, Your Honor, from this side. I don't

8 have much more to put out there. Thank you.

9 THE COURT: Okay.

10 MR. SHINER: Good afternoon Your Honor. My

11 name is Davis Shiner. For Madam Court Reporter,

12 I'm here with Attorney Stratton Smiley and one of

13 my paralegals Diana Hanna. Your Honor, today I

14 guess is a motion for case management conference.

15 There is no motion currently pending, there's just

16 a hearing notice. As Mr. Gainsburg pointed out

17 there's several outstanding motions. We would like

18 The Court to first entertain one of the outstanding

19 motions which has been pending for quite some time,

20 and that's a motion for sanctions accusing Mr.

21 Barry Gainsburg and his firm for violating a

22 standing Court Order by putting materials on the

23 internet, continually doing so. Just as much as

24 recently last night he is making commentary on my

25 firm's Facebook page, being critical of a post that


1 my firm is putting on. That's sort of being the

2 situation that's occurred from the beginning.

3 There's five lawsuits outstanding and if the Court

4 would like, they could go in the trashcan

5 afterwards, but this is the motion for sanctions

6 outlining the prior Court orders on Mr. Gainsburg

7 to not post certain materials online. Just as a

8 matter of background, Your Honor, if I may hand

9 this --

10 THE COURT: No thanks.

11 MR. MALE: Okay. So, just for the record

12 then, Your Honor, before the Court would entertain

13 any motions to compel discovery or handle any of

14 the other aspects of any outstanding motions, we

15 would ask The Court to just set aside some time to

16 narrowly handle Bio-Tech's outstanding amended

17 motion for sanctions and/or protective order and/or

18 motion to show cause with regard to Mr. Gainsburg's

19 social media post, internet postings.

20 THE COURT: I don't know why that would be a

21 priority over any other motions. I mean if it were

22 you would have noticed it by now. What we need to

23 do is come up with a scheduling order. All of

24 these that I've heard so far are 15-20 minutes;

25 that's all the time available on the online system.


1 You all can say, okay, let's do a unified order

2 that says we're going to set these hearings on such

3 and such dates, or we're going to confer to set

4 down and go over to the computer and get it all

5 done, and depositions. And so, we can get this

6 tried or resolved. Also, come up with a mediation

7 date. I can motivate it, I mean --

8 MR. GAINSBURG: Thank you, Your Honor.

9 THE COURT: -- because it's real easy if you

10 want to work them down and do them over your

11 schedule that's better; otherwise, I fill out this

12 and say you've got 10 days to get it done or else--

13 MR. GAINSBURG: That would be great, Your

14 Honor.

15 THE COURT: You want to try?

16 MR. SHINER: No.

17 THE COURT: I didn't think so. So, you need

18 to come up with a scheduling order. If you can't

19 do it because you just can't do it, I'll get dates

20 and times which is real easy, I love Saturdays and

21 then, you know, just have what the depos are, but

22 it's real simple to decide that you want to move

23 this case, and when you want to do it, and when you

24 each have your calendars so that it's convenient

25 for each side, and that nobody is crying that I've


1 got to be here, or there, or whatever. So, can we

2 accomplish that?

3 MR. GAINSBURG: Yes, Your Honor.

4 THE COURT: I got a yes and a --

5 MR. SHINER: I would love to but, Your Honor,

6 at this point in time just as a point of

7 information, and it's important for the Court's

8 background, this case originally -- the original

9 case, as Mr. Gainsburg calls it the "granddaddy

10 case", out of all five cases that are currently

11 pending, was filed about a year and a half ago.

12 There has been literally appeals to the 4th DCA.

13 After the 4th DCA has given its opinion there has

14 been --

15 MR. GAINSBURG: That was on the case against

16 you, not this case to correct you.

17 MR. SHINER: So, the point is, Your Honor, I

18 can't even -- has an order, so we can't even talk

19 on the phone. I can't schedule anything. I would

20 prefer the Court to do it and I'm sorry about that,

21 Your Honor, but if you could either give us time on

22 a nonjury docket, or entertain one or two motions

23 that the Court may find as a priority it would be

24 fine. And I'm sorry, yes, unfortunately, that may

25 mean the Court would --


1 THE COURT: Are we at issue by the way?

2 MR. GAINSBURG: Your Honor?

3 THE COURT: Are we at issue?

4 MR. GAINSBURG: No. Not yet.

5 MR. SHINER: Not even close.

6 MR. GAINSBURG: There is the order from the

7 Judge preventing communication by phone because Mr.

8 Shiner took me in the hallway and threatened my

9 career.

10 THE COURT: It's fine. You just do it in

11 writing.

12 MR. GAINSBURG: Perfect. Thank you, Your

13 Honor.

14 MR. SHINER: Unfortunately, Your Honor,

15 there's a lot of confusion because there is five

16 cases and as you know we called you the other day

17 just -- unfortunately just to try to take another

18 deposition and it was again, problems.

19 MR. GAINSBURG: HE took it.

20 MR. SHINER: So, if the Court can give us a

21 nonjury time to curve out some of these and

22 entertain these motions that would be preferable,

23 at the Court's convenience.

24 THE COURT: You've got to go online and now

25 you're going to go online the next 10 days and make


1 sure you book everything.


3 THE COURT: Or you can have it waived.

4 MR. SHINER: I understand the Court's ruling.

5 My concern, Your Honor, is as you'll see there is

6 unilateral setting of hearings. There's timeframes

7 -- give me a response -- and that's why I brought

8 my paralegal here Your Honor, give me an answer in

9 an hour or I'm going to unilaterally set this. So,

10 we can try to do it online --

11 MR. GAINSBURG: Object, Your Honor. I don't

12 say that.

13 THE COURT: That's why I said if you guys want

14 to communicate and you said, no, we cannot

15 communicate, so I guess we're going to have a bunch

16 of unilaterals. Make them happen.

17 MR. SHINER: Okay.


19 MR. SHINER: Your Honor, may I make an ore

20 tenus motion real quick regarding the -- regarding

21 the deposition of Mr. Holsworth (phonetic) the

22 other day?

23 THE COURT: What do I know about a deposition

24 the other day?

25 MR. GAINSBURG: Thank you so much.


1 MR. SHINER: I'll deal with it separately,

2 Your Honor. Thank you.

3 (Hearing concluded at 3:21 p.m.)

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1 CERTIFICATE OF REPORTER

2 STATE OF FLORIDA

3 COUNTY OF BROWARD

4

5 I, ADRIENNE RODRIGUEZ, Court Reporter and Notary

6 Public for the State of Florida, do hereby certify that

7 I was authorized to and did digitally report and

8 transcribe the foregoing proceedings, and that the

9 transcript is a true and complete record of my notes.

10 I further certify that I am not a relative,

11 employee, attorney or counsel of any of the parties,

12 nor am I a relative or employee any of the parties'

13 attorney or counsel connected with the action, nor am I

14 financially interested in the action.

15

16 Witness my hand this 22nd day of February, 2017.

17

18

19

20 ____________________________________

21 ADRIENNE RODRIGUEZ, COURT REPORTER STATE OF FLORIDA

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110 4:1 7:12 9:25

15 4:1,12,17,22

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15-20 6:24

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Law

Case management conference bio trackthc 02 02-2017