II. ARGUMENT

II. ARGUMENT The work product doctrine is "an intensely practical one, grounded in the realities of litigation in our adversary system." United States'. Nobles 422 U.S. 225, 238 (1975).. Relying on Sporck Peil, 759 F.2d 312 (3d Cir. 1985), and its progeny, Plaintiff contends that the compilation of non-privileged documents by attorneys is "opinion work product," and seemingly asserts that the documents themselves, and not just the compilation, can be kept from the defense. These sweeping claims, belied as they are by the record in this case, should be rejected. A. The Supposedly Unassailable Sporck Plaintiff's Memorandum makes it appear as though the principle announced in Sporck has been accepted as gospel throughout the federal court system. Nothing could be further from the truth. Not only was Sporck a 2-1 decision with a strong dissent, later cases and commentators have criticized its expansion of the work product doctrine. In Sporck, a civil securities fraud case, the attorney for the plaintiff deposed a defendant and requested the "identification and production" of documents that the defendant's attorney had used to prepare the defendant for the deposition. 759 F.2d at 313-14. The documents in question, which were not themselves protected from disclosure, had "previously been produced" to the plaintiff. Ad. at 314-15. The defendant's attorney refused to comply with the request, and sought mandamus relief on work product grounds when the district court ordered disclosure and production. A divided panel of the Third Circuit granted the petition, holding that the district court EFTA00177847 "should not have ordered the identification of the documents selected by [defense] counsel." Id.: at 315 (emphasis added). See also id. (agreeing with the defendant that "the identification of the documents as a group must be prevented to protect defense counsel's work product") (emphasis added). The majority ruled that the "selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product," explaining that without such work product protection an attorney might "forego[ ] a sifting of the documents." Id, at 316, 317. Judge Seitz dissented. He was "convinced that [the majority's] ruling [was] an impermissible expansion of the work product doctrine at the expense of legitimate discovery." II at 319. He pointed out that the documents in question were not themselves covered by the doctrine and "had already been produced by the defendants." a Attacking the majority's belief that the litigation strategy of the defendant's attorney would be revealed by identification of the documents used to prepare for the deposition, Judge Seitz explained: The problem with [this] theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that a witness looked at a document is that someone thought that the document, or some portion of the EFTA00177848 document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the lawyer's opinion work product. Id. at 319. See also id, at 320 ("Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it."). Finally, Judge Seitz criticized the majority's characterization of the compilation as opinion work product, saying that at most it would be fact work product. Sporck has not, contrary to Plaintiffs implication, been universally accepted.' In In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994), a case presenting facts very similar to those here, a district court in New York refused to follow Sporck. The government in that case executed a search warrant at a law firm's offices to obtain evidence concerning one of the firm's corporate clients and its two principals. The materials taken during the search were provided to a taint prosecutor who was not involved in the underlying grand jury investigation. Isis at 56-57. The firm and its client filed a motion for return of the documents on work product and attorney-client privilege grounds. In support of the motion, one of the firm's attorney's submitted an affidavit (which the district court accepted as true) explaining that 14 of the cartons taken had been "'segregated by [him] as part of a confidential, attorney-directed investigation into Even one of the appellate decisions adopting Sporck involved a divided panel. See In re Allen, 106 F.3d 582 (4th Cir. 1997) (2-1 decision). EFTA00177849 possible illegal activity within and against [the corporate client]." a at 57. The investigation was begun "in preparation for litigation, including possible civil claims against .. . former employees and contractors of the corporate client, as well as defending against governmental claims and any federal criminal investigation of the corporate client." a The district court refined to extend the work product doctrine to the compilation of non-privileged materials: This court declines to extend the concept of work product so far as to protect otherwise non-privileged corporate documents, simply because the lawyer has separated and arranged them in a manner convenient to his intended study for one or more legal problems and which reflects his analysis and thoughts concerning the matter which he was investigating. The argument on its face is slightly frivolous because it assumes that this lawyer investigating these documents could detect or perceive something in them or perceived the need to examine them, which was not readily apparent to a skilled special agent. Id, at 58. Moreover, the court explained, "the policy consequences of permitting a client to insulate incriminating corporate documents which otherwise would have to be produced, by handing them over to an attorney who arranges them in some logical or illogical fashion, is simply too drastic to accept." a The court therefore ordered that documents which were not themselves privileged or protected be "turned over to the [prosecutor] in charge of the prosecution of the matter." a Under the holding of Law Offices, the Court in this case should order that the documents in question be turned over to the defense. Like all other privileges against forced disclosure, the work product doctrine should not be "expansively construed" because it is in "derogation of the search for truth." United States I, Nixon, 418 U.S. EFTA00177850 683, 710 (1974). Law Offices is not the only case to cast doubt on Sporck. See generally P. Grady, Discovery of Computer System Stored Documents and Computer Based Litigation Support Systems: Why Give Up More Than Necessary, 14 John Marshall J. of Comp. & Inf. Law 523, 551 (1996) (noting that "other courts have not accepted the Third Circuit's position" in Sporck). Even those courts which have found some basis for agreement with Sporck have rejected its broad expansion of the work product doctrine. For example, the First Circuit, in a complex case involving a hotel fire, permitted the pretrial disclosure of lists identifying exhibits to be used in depositions. In re San Juan Dupont Plaza Hotel Fire Litigation 859 F.2d 1007, 1017 (1st Cir. 1988). Although the panel held that the lists constituted fact work product, it criticized Sporck and refused to characterize the lists as opinion work product: "Th[e] [Sporck] reasoning, we suggest, is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event." Id. at 1018? Thus, at most, the compilation of documents by Plaintiff's counsel is fact work product which can be obtained by showing substantial need and undue hardship. Ida at 1015. 2 Several district courts have opted to follow Dupont Plaza instead of Sporck. Sec, Igs, I. astano I. American Tobacco Co, 896 F.Supp. 590, 596 (E.D. La. 1995); Resolution Trust Corp. Heiserman, 151 F.R.D. 367,375 (D. Colo. 1993); Bohannon'. Honda Motor Co„ 127 F.R.D. 536, 539 (D. Kan. 1989); In re Shell Oil Refinery, 125 F.R.D. 132, 133-34 (E.D. La. 1989). EFTA00177851 Similarly, in Gould Inc,. Mitsui Mining & Smelting Co„ 825 F.2d 676, 680 (2d Cir. 1987), the Second Circuit declined to embrace Sporck, explaining that the application of the Sporck principle "depends on the existence of a real rather than speculative concern that the thought processes of .. . counsel in relation to pending or anticipated litigation would be exposed." In this case, given the number of documents involved, it is difficult to see how there can be a "real" danger that the thought processes of Plaintiffs attorneys will be revealed. See also In re Joint Eastern & Southern District Asbestos Litigation, 119 F.R.D. 4, 5-6 (E.D.N.Y. & S.D.N.Y. 1988) (book of photographs, compiled by plaintiff's attorney, showing various forms of asbestos to which plaintiff had been exposed, was discoverable as a fact compilation because it did not reveal attorney's strategy); American Floral Services, Inc.'. Florists' Transworld Delivery Ass'n, 107 F.R.D. 258, 260-61 (N.D. III. 1985) (plaintiff required to reveal identity of two of defendant's employees whom it had interviewed and who apparently had knowledge concerning plaintiff's claim). a. In re Grand July Subpoenas, 959 F.2d 1158, 1167 (2d Cir. 1992) ("With the advent of inexpensive photocopying, it seems likely that most sets of copied documents maintained by law firms will be sufficiently voluminous to minimize disclosure of the attorney's identification of some occasional wheat among the chaff."); In re Shell Oil, 125 F.R.D. at 134 ("it is highly unlikely that Shell will be able to discern the PLC's `theory of the case' or thought processes simply by knowing which 65,000 out of 660,000 documents have been selected for copying"). Criticism of Sporck has not been limited to the judiciary. Commentators have also EFTA00177852 expressed their disagreement with the case. agg K. Waits, Opinion Work Product: A Critical Analysis of Current Law and a New Analytical Framework, 73 Oregon L. Rev. 385, 450 (1994) ("Sporck is wrongly decided[.] Contrary to the assertions in Sporck, ... the adversary system is not threatened by the revelation of materials that only indirectly reveal an attorney's thinking."); L. Orland, Observations on the Work Product Rule, 29 Gonzaga L. Rev. 281, 298 (1993-94) ("No opinion has been found that explains why the [Sporck] selection and compilation exception . .. should be carved out for preferential treatment."). For the reasons set forth in Judge Seitz's dissent and the decision in Law Offices, this Court should reject Sporck as an unwarranted expansion of the work product doctrine. After all, "pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice." Fisher,. United States, 425 U.S. 391, 403-04 (1976) (addressing attorney-client privilege). Accord Shelton American Motors Corp, 805 F.2d 1323, 1328 (8th Cir. 1986) ("AMC does not contend that the documents themselves, prepared by other departments for the purpose of analyzing AMC vehicles, are protected as work product simply because those documents now may be in the possession of AMC's litigation department."). B. The Limitations on $porck Sporck does not, in any event, go as far as Plaintiff needs it to in order to shield the EFTA00177853 documents at issue from the taint team. Although Plaintiff says that Sumli controls, it fails to acknowledge significant factual differences between this matter and Sporck. First, in Spsicic, unlike here, the party seeking the list of certain documents already had the documents themselves in its possession because they had previously been produced. 759 F.2d at 314, 319. Indeed, the sine qua non of Sporck and its progeny is the protection of the list or index of the selected documents because the documents themselves are already in the hands of the opposition or can be obtained by normal legal channels. See Waits, Opinion Work Product, 73 Oregon L. Rev. at 450 n. 229 ("by definition in document selection cases like Sporck the opponent already possesses the documents"). 3 When the Court reviews the documents in camera, it will see that they include original documents which must be turned over to the government. ,Se Law Offices, 153 F.R.D. at 59 (lawyer cannot secure work product protection by highlighting an original corporate document that is not otherwise privileged). Thus, at least with respect to those original documents, the defendant does not have possession of them. The necessary predicate does not exist, and Sporck is not triggered. See Gould, 825 F.2d at 680 ("the equities may not favor the application of the Sporck exception if the files from which the documents had been culled . . . were not otherwise available ... or were beyond 3 Plaintiffs own cases recognize that the compiled documents must be in the possession of, or available to, the opposing party. age, a, In re Allen, 106 F.3d at 608 (adoption of Sporck "does nat protect [the] personnel records from disclosure, just [the attorney's] selection and arrangement of them"); James Julian. Inc. I. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) ("Julian does not object to the defendants obtaining the documents contained in the binder[.]"). EFTA00177854 reasonable access"). And, as noted above, the compilation of documents is at most fact work product which can be obtained upon a showing of substantial need and undue hardship. The defendant can and will make that showing at the evidentiary hearing if and when Plaintiff meets its initial work product burden. C. Plaintiff's Burden and the Need for an Evidentiary Hearing Plaintiff, as the party asserting the protection of the work product doctrine, has the burden of establishing its elements. Sgg, g4, Hodges. Grant & Kaufmann I. U.S. Government. Dept. of the Treasury, 768 F.2d 719, 721 (5th Cir. 1985). Plaintiff has provided a general privilege log and an affidavit, but those submissions, under the circumstances, are insufficient to establish the applicability of the work product doctrine. The log describes only broad categories of documents, and the supporting affidavit completely fails to explain which attorneys compiled which documents. For reasons explained below, those particular facts are critical to the work product analysis in this case. Without those facts, the defendant cannot intelligently determine which of Plaintiff's claims have merit. "'Without identification of the documents, the party against whom the privilege is claimed is completely unable to challenge the validity of th[e] claim." Smith Logansport Community School Corp., 139 F.R.D. 637, 648 (N.D. Ind. 1991) (citation omitted). Plaintiff simply has not carried its burden of establishing its entitlement to work product protection. a. Rabushka I. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) ("Crane met its burden of providing a factual basis for asserting the [attorney-client and work product] privileges when it produced a detailed privilege log EFTA00177855 stating the basis of the claim privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel.") (emphasis added). The Court "must require [Plaintiff] to assert [work product] with a document -by- document explanation as to why the [doctrine] shields the document from the [warrant's] reach. The [Court] must then determine the validity of each assertion -- either by conducting a hearing or inspecting the documents in camera." In re Grand Jury Subpoena, 831 F.2d 225, 228 (11th Cir. 1987) (attorney-client privilege case). Whatever process the Court chooses, it must permit the defendant to participate and meaningfully litigate the applicability of the work product doctrine. In this vein, we point out that, even if Sporck is followed, Plaintiff's work product theory flounders with respect to at least certain of the categories of documents set forth in the privilege log. Contrary to Plaintiff's suggestion, even the most generous interpretations of the work product doctrine do not protect the selection of materials by a client; the doctrine protects attorney work product. age, Bloss I. Ford Motor Co. 126 A.D.2d 804, 805, 510 N.Y.S.2d 304 (N.Y.App.Div. 1987) (documents which could have been prepared by a layman not entitled to work product protection). In any event, Plaintiff has no standing to assert any work product protection on behalf of an unidentified third party or his/her unidentified counsel. See, e.g., Bohannon 127 F.R.D. at 53940 ("work product status does not apply to documents submitted to or received from a third party"). The fact that computer printouts -- routine printouts available from the Plaintiff's EFTA00177856 D. Plaintiff's Failure to Establish Confidentiality and Lack of Waiver "[W]hen an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of his client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection." In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981). Under the circumstances, any claim of privilege or work product cannot be accepted without further evidentiary substantiation. See United States'. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996) (where the allegations against one party could not subject another to civil or criminal liability, joint defense privilege is inapplicable), cert. denied, 117 S. Ct. 1842 (1997); Sheet Metal Workers International Association'. Sweeney, 29 F.3d 120, 124-25 (4th Cir. 1994) (any privilege arising from engaging in joint defense requires, as a threshold matter, a legitimate common interest about a legal matter); km Bevil!. Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) (proponent bears burden of producing evidence establishing privilege). If Plaintiff is going to use the purported joint defense agreement as a weapon in its arsenal, it must be produced to the defendant so that its breadth and applicability can be fairly litigated. EFTA00177857 database that are routinely produced in the course of operating Plaintiff's business -- were made available to and used by attorneys does not protect them from disclosure or turn them into work product. See Santiago i Miles, 121 F.R.D. 636, 642 (W.D.N.Y. 1988) (no work product protection where, although computer reports may have been prepared with pending litigation in mind, the primary motivation behind the creation of such reports was for use in the normal course of business); Colorado ex rel. Woodard Schmidt-Tiago Construction Co„ 108 F.R.D. 731, 734-35 (D. Cob. 1985) (absent additional evidence, no work product protection for readouts from computer program established for use in regular course of business); Fauteck Montgomery Ward & Co., 91 F.R.D. 393, 398-99 (N.D. Ill. 1980) (ordering disclosure of personnel records from computer database where counsel merely raised conclusory claim that the database formulation "entail[ed] numerous strategic legal decisions"). Plaintiff must of course meet its burden with respect to each of the categories of documents it claims are work product. Yet several of the categories it claims are work product have been denied such status. This is the case with training and attendance sheets, see. e.g., Burton I R.J. Reynolds Tobacco Co„ 170 F.R.D. 481, 486 (D.Kan. 1997) (document evidencing attendance of two company employees at meeting not work product under Kansas law), and with Congressional subcommittee testimony, see. e.g„ LaMorte I. Mansfield, 438 F.2d 448, 451-52 (2d Cir. 1971) (any privilege which may exist for testimony given at non-public SEC hearing belongs to SEC, and argument that transcripts were work product was meritless). EFTA00177858 EL—AD RESIDENCES AT MIRAMAR CONDO. i MT. HAWLEY 1257 Clina 716 PSupp.2d 1257 (S.D.Fla. 2010) seeks declaratory relief pursuant to state or federal law. 8. The Clerk is directed to send a copy of this Amended Order to the Clerk of the Judicial Panel on Multidistrict Litigation. 9. The Final Judgment previously is- sued in the Aurelius Action, see Case No.: 10-CV-20236, [DE 531 (S.D. Fla. May 28, 2010), is hereby VA- CATED. EL-AD RESIDENCES AT MIRAMAR CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corpora- tion, Plaintiff, MT. HAWLEY INSURANCE COMPA- NY, a foreign corporation, and West- chester Surplus Lines Insurance Company, a foreign corporation, De- fendants. Case No. 09-60723-CIV. United States District Court, S.D. Florida. June 2, 2010. Background: Condominium association brought action against insurers, stemming from coverage dispute over hurricane dam- age. Association's former attorneys moved to intervene and for ancillary proceeding. Holdings: The District Court, Chris McA- liley, United States Magistrate Judge, held that: (1) intervention as of right was warranted, and (2) ancillary proceeding to sanction former co-counsel was not warranted. Motions granted in part and denied in Part 1. Federal Civil Procedure 4=331 Condominium association's former at- torneys had right to intervene in associa- tion's present action against insurers, stemming from coverage dispute over hurricane damage, for limited purpose of protecting privileged communications; dis- closure of attorneys' privileged communi- cations with former co-counsel would have harmed attorneys in ongoing litigation. Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.App.(2006 Ed.). 2. Federal Courts a=21 Ancillary proceeding to sanction for- mer attorneys' former co-counsel was not warranted in action brought by condomini- um association against insurers, stemming from coverage dispute over hurricane dam- age, since court already had all necessary claims before it to resolve sanctioning is- sue, and had ability to manage its proceed- ings, vindicate its authority, and effectuate its decrees without extending its jurisdic- tion. Keith Jeffrey Lambdin, Katzman Gar- finkel Rosenbaum, John David Mallah, Maitland, FL, for Plaintiff. Bradley Ryan Weiss, Benson Mucci & Associates LLP, Thomas E. Tookey, Coral Springs, FL, Brian E. Sims, Michael D. Prough, William C. Morison, Morison Hol- den Derewetzky & Prough LLP, Walnut Creek, CA, Cortland C. Putbrese, Morison Holden Derewetzky & Prough, LLP, Rich- mond, VA, Daniel Howard Coultoff, La- tham, Shuker, Barker, Eden & Beaudine, EFTA00177859 1258 716 FEDERAL SUPPLEMENT, 2d SERIES LLP, Orlando, FL, Scott Michael Janow- itz, William S. Berk, Melissa M. Sims, Berk Merchant & Sims PLC, Coral Ga- bles, FL, for Defendants. OMNIBUS ORDER CHRIS McALILEY, United States Magistrate Judge. Pending before the Court are the follow- ing related motions: (1) Request for Judi- cial Inquiry [DE 103]; (2) Motion for Pro- tective Order [DE 122]; (3) Motion to Intervene [DE 126]; (4) Motion to Con- vene Ancillary Proceedings [DE 180]; and (6) Motion for Hearing on Motion to Con- vene Ancillary Proceedings [DE 132].' The Honorable Adalberto Jordan has re- ferred the motions to me for resolution, and for the reasons stated below the Mo- tion to Intervene is granted, and the other motions are denied. I. BACKGROUND This and a related ease arise from an insurance dispute over damage allegedly caused by Hurricane Wilma to two condo- minium complexes. The Plaintiff in this case, El—Ad Residences at Miramar Con- dominium Association ("Residences"), re- tained the law firm of Katzman Garfinkel Rosenbaum LLP ("KGR") to represent it in its claim against its primary property casualty insurer, Mt. Hawley Insurance Company ("Mt. Hawley") and its excess insurer, Westchester Surplus Lines Insur- ance Company ("Westchester') (collective- ly, "Defendants"). The other condomini- um complex, El—Ad Enclave at Miramar I. Defendant, Westchester Surplus Lines In- surance Company, filed a Motion for Ex- tension of Time to Respond to Motion to Convene Ancillary Proceedings [DE 146]. Because the Court denies the Motion to Convene Ancillary Proceedings is denied, Westchester's Motion is moot. Condominium Association ("Enclave"), also retained KGR to bring suit against Mt. Hawley and a different excess insurer, General Star Indemnity Company.' In March of this year, while this litigation was on-going, the law firm of KGR broke up, with some of its attorneys, led by Daniel S. Rosenbaum, forming the firm Rosenbaum Mollengarden Janssen & Sir- cusa ("RMJS"), and others, principally Alan Garfinkel and Leigh Katzman, form- ing Katzman Garfinkel & Berger ("KGB"). The break-up of KGR has been acrimoni- ous and has led to litigation between the former law partners. The motions now before this Court arise, in large measure, from heated disputes between Rosenbaum on the one hand, and Garfinkel and Katz- man on the other. Immediately following the breakup of KGR, Rosenbaum's law firm, RMJS, en- tered appearances on behalf of both Resi- dences and Enclave. Thereafter, on April 8, 2010, RMJS filed a Request for Judicial Inquiry in this, the Residences case' that can be summarized as follows. Before the formation of KGR, Garfinkel had a law firm called the Garfinkel Trial Group ("GTG"), which hired a consulting firm, Hunter R Contracting LLC ("Hunter R") and TSSA Storm Safe Inc. ("TSSA"), to perform insurance estimates. Kenneth Remain was a member of Hunter R. After several years of this consulting relation- ship, GTG terminated Hunter R and TSSA, which led to litigation between them over monies owed. These disputes spilled over into a number of ongoing law- 2. The "Enclave case" is filed with this Court as Case No. 09-60726-CIV-30ltDAN/MCALI- LEY. 3. The motion is fully titled Request for Judi- cial Inquiry Into Perjury, and Potential Subor- nation of Perjury and Witness Tampering. IDE 103]. EFTA00177860 EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 1259 CIloas716 F.Supp.2d 1257 (S.D.FIa. 2010) suits filed in state and federal courts, be- tween condominium associations repre- sented by GTG and or the consultants, and the various insurers they had sued. Ro- main was deposed in a number of those lawsuits and testified that Garfinkel, GTG and the consultants had engaged in a scheme to generate falsely high insurance claims, that Garfinkel had received kick- backs from the consultants, and that Gar- finkel, through others, had an improper ownership interest in Hunter R. At a March 30, 2010 deposition taken in several cases, including this case and the Enclave case, Romain recanted these claims of wrongdoing. RMJS asserts that Romain's conflicting sworn testimony demonstrates that Romain has committed perjury, either at his earlier depositions, or at the March 30th deposition, and in its Request RMJS asks this Court to conduct an inquiry into this perjury as well as possible fraud and unethical conduct by Romain, Garfinkel, and possibly others. Several days after RMJS filed the Re- quest for Judicial Inquiry, Residences again changed counsel: Garfinkel's and Katzman's new firm, KGB, filed a notice of appearance on Residence's behalf, and Rosenbaum's firm, RMJS, withdrew as counsel. RMJS continues to represent Enclave, in Case No. 09-60726-CIV-JOR- DAN. The Motion for Judicial Inquiry was filed a few days before a discovery confer- ence I had scheduled for April 16, 2010. 1 took the opportunity, at the start of that hearing, to ask Rosenbaum to answer some questions I had about his Request 4. The transcript of that discovery conference has been filed at DE 119. 5. Rosenbaum Included the following informa- tion he gave the Court. At a time when difficulties had arisen between Rosenbaum and his partners Garfinkel and Katzman, and they were discussing disassociating from one another, Katzman allegedly said: "'You don't for Judicial Inquiry, which he did." Rosenbaum basically restated what is sum- marized above, and was more clear about his concern that his former partners may have paid Romain to change his testimo- ny.' Rosenbaum also disclosed that he had brought his concerns to the U.S. At- torneys Office. As for the inquiry he wants this Court to undertake, Rosenbaum suggested that the Court hold hearings and take testimony from everyone in- volved: the various attorneys and consul- tants and possibly the Plaintiffs them- selves. He believes that a fraud has been worked upon this and many courts and that this Court should look beyond the issues in this case and inquire into improp- er conduct in similar cases filed in other divisions of this Court and in various state courts. In the end, Rosenbaum would have this Court determine whether Gar- finkel and Katzman and the consultants engaged in improper conduct before this or other courts, although he was not clear what remedies this Court might order. Having heard from Rosenbaum, I asked the other parties to file written responses to the Request, and offer their opinions whether a judicial inquiry is appropriate and necessary. The Defendants in both the Residences and Enclave case filed a memorandum in support of this Court convening a broad judicial inquiry. (DE 121]. In that docu- ment Defendants provide considerable de- tail about evidence collected, in a number of cases, of an unethical relationship be- tween Garfinkel and Hunter R and Ro- have to worry about Ken Roman If this is an issue because we can pay him off and he will recant his testimony,' and at that point maybe there is 18, 20 people In the room and I said, 'That's outrageous. There would be no way that you could ever do that or that we could ever permit that.'" (DE 119, pp. 14—I5). EFTA00177861 1260 716 FEDERAL SUPPLEMENT, 2d SERIES main, which Defendants maintain is di- rectly relevant to their defense that the insurance policies have been voided by Plaintiffs' fraud. Defendants acknowledge that there are procedural mechanisms in place that allow this Court to address these issues in this case as needed, but nevertheless argue that a broad inquiry that cuts across case lines is warranted, because Garfinkel and others have "creat- ed a fraud upon the judicial process" throughout this District. [DE 121, p. 12]. Defendants identify twelve witnesses who should testify, and ask the Court to sub- poena years worth of bank and accounting records from Garfinkel and a list of people associated with him. Residences, by that time represented by Garfinkel's and ICatzman's new law firm, filed a response in opposition to the Re- quest [DE 127], It argues that it would be improper for this Court to take on an investigative role and suggests that a broad judicial inquiry would open "an evi- dentiary Pandora's box." (DE 127, p. 9]. Notably, they assert that "(n)othing has transpired before this Court that would implicate any inherent authority the Court might have to punish or order further action taken with respect to misconduct it observes." Ltd., p. 7]. It urges that the issues raised by the Request, and at the April 16 hearing, can be addressed as needed in the normal course of this litiga- tion. Shortly after the April 16 hearing, Resi- dences filed a Motion for Protective Order Enjoining Daniel Rosenbaum from Fur- ther Violating Attorney—Client Privilege to Advance His Own Interests. [DE 122]. While the Motion is filed in the name of Residences, it mostly sets forth a series of accusations that are personal to Garfinkel. The Motion recounts the disputes between 6. Many of the assertions in that response have been repeated in other pleadings they have GTG and its former consultants Hunter R and Romain, characterizes Romain's accu- sations against Garfinkel as false, and claims the defendant insurers have unfair- ly seized upon these allegations to try to defeat the plaintiffs' legitimate claims and have engaged in a campaign to smear Gar- finkel's reputation. The Motion calls Rosenbaum a liar [DE 122, p. 17] and makes a series of disparaging accusations against him about matters that bear on the personal dispute between the former law partners, starting with Rosenbaum's "fi- nancial misconduct" when he allegedly di- verted $700,000 from the KGR bank ac- count into a personal account. Within that context, the Motion charges that Rosen- baum filed the Request for Judicial Inqui- ry, and spoke in support of that Request at the April 16th hearing, not for any legiti- mate purpose, but only to gain an advan- tage in his on-going dispute with Garfinkel and Katzman over the division of their fees and clients. According to the Motion, Rosenbaum served as counsel not only for Residences, but was also counsel to Garfinkel and was part of a Joint Defense Team ("JDT') comprised of an unnamed list of "persons sued and/or affected by" the claims brought by Hunter R, Remain, and TSSA. [DE 122, p. 7). The Motion charges that in the Request for Judicial Inquiry and at the April 16th hearing, Rosenbaum disclosed privileged information gained as part of those representations, and did so without his clients' authorizations. The Motion also accuses Rosenbaum of giving the Court this information in a manner ad- verse to his former client Residences. Resting on these accusations, the Mo- tion asks this Cunt to use its inherent au- thority to enter a "protective order" that filed, and which are summarized elsewhere in this Order. EFTA00177862 EL-AD RESIDENCES AT MIRAMAR CONDO. I. MT. HAWLEY 1261 Chess 716 F.Supp.2d 1257 2010) enjoins Rosenbaum from further disclo- sures of privileged communications. Re- markably, it goes much further and asks this Court to enjoin Rosenbaum from "ap- pearing in any case or taking any action adverse to Alan Garfinkel or any of his former clients in any case where the alle- gations of Ken Romain are, directly or in- directly, at issue." [DE 122, pp. 17-18]. Such broad injunctive relief—on its face— is excessive, as it surely would bar Rosen- baum from participating in the judicial dis- solution proceedings with his former part- ners. The Defendant insurance companies filed oppositions to the Motion for Protec- tive Order. [See DE 129, 133]. In those papers the Defendants point out, inter aria, that Rosenbaum is neither a party to this lawsuit, nor an attorney of record, that discovery is closed and, in any event, no discovery is pending involving Rosenberg. Although styled a motion for protective order, Defendants rightfully point out that it is better understood as a motion for injunctive relief against someone who is not a party to this lawsuit Defendants also raise a number of good arguments that question whether information Rosen- baum disclosed was in fact protected by privilege. They also specifically deny that Rosenbaum has given them "any informa- tion pertaining to his representation of [Plaintiffs] or other former or current clients." [DE 133, p. 3]. Perhaps recognizing the procedural flaws inherent in Residences' Motion for Protective Order, a few days after they filed that Motion, Garfinkel and Katzman filed their Motion to Intervene to Ensure Preservation of Privilege. [DE 126]. They ask to intervene in this case, individ- ually, to protect their personal interests, including what they claim were privileged communications with Rosenbaum. They add that Rosenbaum has cross-noticed Garfinkel's deposition in this and another case, and predict he will use the deposition to "gain leverage in the partnership disso- lution and to harass Garfinkel." [DE 126, p. 2]. A few days later, Garfinkel and Katzman filed yet another motion: Motion to Con- vene Sealed Ancillary Proceedings for In- junctive Relief, Sanctions, and Potential Attorney Disqualification [DE 130].' They repeat their accusations about Rosenbaum, and again charge that in the Request for Judicial Inquiry, and at the April 16th hearing, he disclosed privileged informa- tion, and made statements adverse to his former client Residences in violation of Florida Bar Rule of Professionalism 4-1.6, 4-1.9(b)-(c), and they again ask this Court to invoke its inherent power to discipline Rosenbaum. What's new is the way in which Garfinkel and Katzman ask the Court to accomplish this: they would have this Court convene an ancillary proceeding that would be conducted entirely under• seal, the sole focus of which would be Rosenbaum's alleged misconduct, that would adjudicate whether Rosenbaum vio- lated the Florida Bar Rules of Professional Conduct, and in the process they would have the Court bar Rosenbaum from filing a response to the Motion. In the end, Garfinkel would have this Court discipline Rosenbaum for breach of his ethical obli- gations, enjoin him from further miscon- duct, and disqualify defense counsel from representing their clients in this case, be- cause they have received (unidentified) in- formation protected by the attorney-client privilege and work product doctrine. Ii. ANALYSIS A. Motion to Intervene [11 Both Garfinkel and Katzman assert their right, pursuant to Rule 24(a), F.R. 7. They request a hearing on that Motion. [DE 132]. EFTA00177863 1262 716 FEDERAL SUPPLEMENT, 2d SERIES Civ. P., to intervene in this action "for the limited purpose of protecting the various privileges, and to respond to the personal attacks made upon them individually by Rosenbaum." [DE 125, p. Garfinkel and Katzman will be permitted to inter- vene for the former purpose, but not the latter•. According to the Motion to Intervene, Rosenbaum served as counsel for Garfink- el "in the matter which Romain filed against Garfinkel[,]" and their communica- tions in this respect were protected by the attorney client privilege. Id The Motion further asserts that Rosenbaum, as part of the Joint Defense Team represented his former law firm, KGR, and by association its partner, Katzman, and that disclosure of their privileged communications would harm Garfinkel and Katzman in on-going litigation. [DE 126, p. 3].3 Rule 24(a) reads as follows: (a) Intervention as of Right. Upon timely application anyone shall be per- mitted to intervene in an action: (2) When the applicant claims an inter- est relating to the property or transac- tion which is the subject of the action and he is so situated that disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's in- terest is adequately represented by ex- isting parties. The law in this Circuit, and others, is clear, that this Court must allow intervention by a client "in the first instance ... as soon as the [attorney -client] privilege issued is raised." In re Grand Jury Matter (ABC Coeµ), 736 F.2d 1330, 1881 (11th Cir.1984), (quoting In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1575 (11th Cir. 1983)); see also In re Grand Jury Subpoe- na (Newparent, Inc.), 274 F.3d 663, 670 (1st Cir.2001) ("Colorable claims of attor- ney-client and work product privilege [are] ... a textbook example of an entitlement to intervention as of right."); United Stalest. AT & T Co., 642 F.2d 1285, 1292 (D.C.Cir.1980); Sackman I. Liggett Group, Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y. 1996). In allowing intervention, this Court notes that Garfinkel and Katzman have not demonstrated that Rosenbaum in fact served as their lawyer, or that he has or will disclose any of their privileged com- munications. While they have complained mightily that Rosenbaum has already made unauthorized disclosures, Garfinkel and Katzman have not identified for this Court which of Rosenbaum's statements in the Request for Judicial Inquiry, or at the April 16 healing, they claim are privileged. Moreover, Katzman's assertion of privilege is particularly attenuated: he claims that Rosenbaum, as part of the JDT, represent- ed their former law firm, and that as a partner in the firm Katzman personally claims a privilege as to his statements to Rosenbaum. Further, to the extent Katz- man contends that the statement Rosen- baum attributed to him, and repeated at the April 16 hearing ("You don't have to worry about Ken Romain if this is an issue because we can pay him off and he will recant his testimony") was a privileged communication, it would appear to fall squarely within the crime-fraud exception to that privilege. In this and other cir- cuits, Garfinkel and Katzman need not set forth this proof before they intervene. See In re Grand Jury Proceedings (Freeman), 708 F.2d at 1576 (intervention should have been allowed "once the claim of attorney- client privilege ... surfaced."); In re Grand Jury Matter (ABC Corp.), 735 F.2d at 1331 (the extent of the attorney-client privilege, and the possibility of unautho- 8. The Motion does not specifically identify what ongoing litigation It refers to. EFTA00177864 EL-AD RESIDENCES AT MIRAMAR CONDO. . Mt HAWLEY 1263 Cline716 17-5upp.2d 1257 (S.D.Fla. 2010) sized disclosure must be addressed after intervention); United States.). AT & T Co., 642 F.2d at 1291 ("determination of the merits of [the] claim [of privilege] is not appropriate at this threshold stage ... we must accept a party's well-pleaded alle- gations as valid.") Upon intervention, Garfinkel and Katz- man will have to meet their burden to establish that they were in fact represent- ed by Rosenbaum, and that they had privi- leged communications in the course of that attorney-client relationship that have been, or are at risk of, unauthorized disclosure.' Rule 24(a) permits intervention only "upon timely application." As already not- ed, Rosenbaum no long represents Plain- tiff in this action and he, of course, is not a party. The Court will have to hear from him however, as it considers Garfinkel's and Katzman's claims of privilege. The Court will therefore entertain a concise motion by Rosenbaum, pursuant to Rule 24(a) to intervene in this proceeding, for the same limited purpose of participating in this Court's consideration of Garfinkel's and Katzman's claims of privilege. As for Garfinkel's and Katzman's re- quest to intervene to "respond to the per- sonal attacks made upon them individually 9. In this diversity action, claims of privilege are governed by Florida law. F.R. Evd. 501. The burden of establishing that communica- tions were protected from disclosure by the attorney-client privilege falls upon the party autillnilike privilege. Bell Tel. & Tel. Co. . Deasoil, 632 So.2d 1377, 1383 I (Fla.1994); Cone I. Culverhouse, 687 So.2d 888, 892 (Fla. 2d DCA 1997) ('The privilege will not apply unless the party asserting it proves that the communications at issue come yithin its confines."); Wal—Mart Stores, Inc. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997) (same rule applies to work product doctrine). In meeting this burden, each ele- ment of the privilege must be affirmatively demonstrated, and the party claiming privi- lege must provide the court with evidence that demonstrates the existence of the privi- lege, which often is accomplished by affidavit. by Rosenbaum," they may not do so. (DE 126, p. 2]. As one court has noted, to intervene "the interest must be a legal interest as distinguished from interests of a general or indefinite character." United States'. AT & T Co., 642 F.2d at 1292 (citations and quotation marks omitted). 1° This Court does not need to provide Gar- finkel and Katzman a forum to respond to Rosenbaum's "personal attacks." In the numerous pleadings they have filed since Rosenbaum's Request for Judicial Inquiry, Garfinkel and Katzman have already re- peatedly answered Rosenbaum's assertions and have done so in a vitriolic manner. Rosenbaum no longer represents Resi- dences, thus he no longer has a voice in this lawsuit to make additional claims about his former law partners. There are other forums in which the former law part- ners can air their grievances against one another they are already embroiled in Judicial dissolution proceedings, and if complaints have not already been filed with the Florida Bar, they are likely to be." Rule 24(a) does not require interven- tion by Garfinkel and Katzman to protect themselves from Rosenbaum's complaints against them. See CSX Tramp., Inc.'. Admiral Ins. Co., 1995 WL 855421 at *1-2, 1995 U.S. Dist. LEXIS 22359 at '4-5 (M.D.Fla. July 20, 1995). In Florida, corporate claims of privilege are sub- ject to a heightened level of scrutiny, and the Florida Supreme Court has established five criteria to establish a corporate claim of attor- pep-client privilege. Deacon, id., at 1383. 10. While the Second Circuit has recognized that injury to reputation is one that might be served by Rule 24(a), the parties have not cited any similar authority in this Circuit, and this Court is aware of none. II. For that matter, evidence of criminal fraud, witness tampering or bribery, is best referred to law enforcement authorities. EFTA00177865 1264 716 FEDERAL SUPPLEMENT, 2d SERIES B. Motion for Ancillary Proceeding [2] Garfinkel and Katzman have also asked this Court to convene an extraordi- nary ancillary proceeding: it would be held under seal," its sole purpose would be to sanction Rosenbaum for his alleged un- authorized disclosures of his clients' privi- leged information in his Request for Judi- cial Action and at the April 16 hearing, enjoin Rosenbaum from future similar con- duct, determine whether Rosenbaum vio- lated Florida Bar Rules of Professional Conduct 4-1.6, 4-1.9(b)-(c), and to disqual- HST Defendants' counsel because Rosen- baum has given them Garfmkel's and Katzman's privileged information. Re- markably, they suggest Rosenbaum should have a limited opportunity to defend him- self in such an action ("Rosenbaum should be ordered not to disclose any information or file any response, unless permitted by Court order.") [DE 130, p. 2). The Supreme Court, in Kokkonen Guardian Life Nair. Co. of Amer., 611 U.S. 876, 114 S.Ct. 1678, 128 L.Ed.2d 391 (1994), wrote the following about ancillary jurisdiction. Federal courts are courts of limited ju- risdiction. They possess only that pow- er authorized by Constitution and stat- ute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establish- ing the contrary rests upon the party asserting jurisdiction. • * • 12. While the Court can make in camera re- view of possible privileged materials, it will not engage In wholesale closed dockets. Pro- ceedings may be sealed only upon a showing of exceptional circumstances, and harm to reputation is not sufficient to overcome the strong presumption In favor of public access to the courts. Brown I. Advantage Engineer-The doctrine of ancillary jurisdiction ... recognizes federal courts' jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them. Generally spealdng, we have asserted ancillary jurisdiction ... for two sepa- rate, though sometimes related pur- poses: (1) to permit disposition by a single court of claims that are, in vary- ing respects and degrees, factually inter- dependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. /a at 377-380, 114 S.Ct. 1678 (citations omitted). Garfinkel and Katzman have not carried their burden to demonstrate that their proposed ancillary proceeding would satisfy either purpose. As for the first purpose, this Court clearly has all claims before it necessary to resolve this matter. As for the second purpose, this Court can "manage its proceedings, vindicate its au- thority, and effectuate its decrees" without extending its jurisdiction. Specifically, it can: (1) resolve any disputes about privi- leges and issue appropriate orders; (2) if it needs to pass on ethics breaches by coun- sel, it has the power to do so; " and (3) it can, and will, use its authority to insist that counsel conduct themselves with a degree of restraint and professionalism that has been lacking in many of the plead- ings now before this Court. In sum, this ing, Inc., 960.17.2d 1013, 1016 (11th Cir. 1992); Wilson American Motors Corp., 759 F.2d 1568 (11th Cir.1985). 13. The Florida Bar Is uniquely suited to ad- dress compliance with its Rules of Profession- al Conduct and, at this Juncture, this Court defers to the Florida Bar to do Just that. EFTA00177866 EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 1265 Cite as 716 2,..Supp.2d 1257 (S.D.Fhe. 2010) Court will not expand its jurisdiction to engage in an investigation of Rosenbaum.0 C. Motion for Protective Order Residences' Motion for Protective Order is also denied. Residences has not provid- ed this Court with information to support its claim that Rosenbaum has disclosed its confidential attorney-client