The Honorable Elizabeth Metzger has issued an opinion regarding the filing by Martin County over a Protective Order after Mr. Leighton accused the County of not being truthful and hiding relevant information that he states affects his case.
The motion was filed by the County after Mr. Leighton subpoenaed the work product created by Sylint, the third party contracted by Martin County after Mr. Leighton alleged, “on information and belief, various Martin County officials became alarmed by documents and information on which certain ‘Martin County Corruption Exposed’ / ‘Martin County Watchdog’ Facebook posts relied, believing that some of these records included internal or confidential taxpayer information not available as public records.”
As a reminder, Mr. Leighton is suing Sarah Merker for her role in running the Martin County Watchdog Facebook page.
Mr. Leighton’s accusation is that Ms. Merker accessed her father’s computer at the County to search for documents in a “conspiracy to defame” Mr. Leighton.
This effort by Mr. Leighton and his counsel has been compared to a fishing expedition to find information needed to bolster and prove his case alleging the “conspiracy to defame.”
His request for public records needed to prove this accusation prompted the County to hire an independent company, Sylint, to do the public records request – at the expense of taxpayers.
The Courtroom Proceedings
The County was represented by Melissa Pietrzyk, Senior Assistant County Attorney. Mr. Leighton was represented by Steven Gieseler, one of his five attorneys. Also in attendance was Martin Reeder, counsel for Sarah Merker.
The hearing began promptly at 11:30am, as scheduled.
The proceedings were what you would expect with each side providing their argument for their case. Judge Metzger asked questions, as needed, for clarification.
The County's Argument
The County’s argument began with a recap of “how did we get here.”
In October 2023, the County received notice for a Cause of Action. The simplest definition of what a Cause of Action is something that gives someone a right for judicial relief or redress from someone else’s allegedly wrongful act.
Martin County received a letter from Mr. Leighton’s prior counsel, whom he replaced with his current team, stating that the County could be named as a potential litigant and to preserve any evidence as they were put on notice.
Within a week of this notification and in anticipation of any litigation, the County hired Sylint to investigate Mr. Merker and any access he had or provided to anyone, specifically to Sarah Merker.
The County’s main position regarding the need for the Protective Order was that Mr. Leighton’s counsel subpoenaed the work product from Sylint, who is not a party in this case. The County stated that the request should have been sent to the County, who employed Mr. Merker, and they would provide what is requested.
Ms. Pietrzyk went on to say that there were conversations had with Mr. Leighton’s counsel. Mr. Leighton’s counsel knew there was an outside cyber security firm being hired if only to protect the County from potential litigation.
The County stated that they employed Sylint. Money was exchanged. They are “an arm of us.” And if Mr. Leighton and his counsel want the information, they should go through the county as an unredacted report would provide proprietary and confidential information about the technology used by the County, cyber information, and other related technology issues and concerns as well as attorney thought processes and information.
The County is not a named party in this case (yet), but it is their work product and their report. Asking for this report by sending a subpoena to Sylint is a way to circumvent going through the proper channels to get information.
The Plaintiff's Argument
Mr. Gieseler argued that any work product is privileged but not absolute.
He argued that the County is the custodian of this information but as the County is not a named party, they cannot claim privilege or standing.
When he was reminded by the Judge that the County was put on notice, Mr. Gieseler agreed that they were put on notice and, yes, and investigation was then done. But they only engaged and hired Sylint because they were put on notice.
Mr. Gieseler stated that the computers belong to the County, not Mr. Merker. It was at this point that Mr. Gieseler said that Florida has not adopted a standard to allow a non-party to object to a subpoena. He gave an example of a case on Jupiter Island of a mayor and his spouse being named as parties in a lawsuit. The husband’s computer was used and created an opportunity for his employer to become party to a lawsuit for standing. Ironically, that case involved Ethan Loeb, who is Mr. Leighton’s lead counsel.
He then went on to postulate that the County had no standing in this argument as they are not a named defendant and that Sylint should have objected to this subpoena. He said if the County wanted to protect any of this information, the contract with Sylint should have been better written, implying that the contract lacked the necessary protections to claim this is a work product that is solely owned by the County.
Closing of the Hearing
The case moved relatively quickly with Judge Metzger asking questions of both parties as needed.
Judge Metzger asked a hypothetical about a personal injury case. If a defense attorney contacted a doctor for information before there was a subpoena, she asked if that creates an unfair advantage, then stating “that doesn’t feel right.”
When asked if there was anything further, Ms. Pietrzyk stated that on October 21, 2024, she spoke with Cynthia Angelos, co-counsel for Mr. Leighton. She states that she told Ms. Angelos that the County will provide the requested records if a release is provided, meaning the County would not be named a party in a lawsuit.
According to Ms. Pietrzyk, Ms. Angelos responded that her firm would need to see what was provided and only then would they decide but, until then, the County is still on notice.
Ms. Pietrzyk’s final statement was “If they want the documents they should follow the rules of procedure.”
Mr. Gieseler advised the Court that the Sylint should have objected to the subpoena, not the County.
It was at this point that Mr. Reeder, Sarah Merker’s counsel, advised the Court that there is no truth to the allegations that the father (Michael Merker) is complicit. (This was confirmed by the Sylint report clearing Mr. Merker of any alleged involvement.)
He also stated that Mr. Leighton’s counsel did not follow procedure, citing Rule of Procedure 1.351 requires notice to be served to all parties. He stated that on 8/23/2024 a Notice of Intent to serve Sylint as a non-party was issued. Michael Merker was notified. Sarah Merker was not.
Judge Metzger closed the hearing advising she would issue the ruling from her chambers.
The Ruling
On November 13, Judge Metzger issued a 7-page ruling in favor of the Protective Order, meaning in favor of Martin County.
While she acknowledged that currently Martin County and Sylint are not parties in this action, the work product created belongs to Martin County.
In her ruling she stated, “However, Sylint conducted its expert forensic consulting work at the behest of and on behalf of Martin County and its counsel and thus, Martin Count’s privileges and exemptions logically extend to any materials protected by the work product and/or attorney-client privileges that are in the hands of its expert/agent Sylint.”
She stated “Seeking privilege materials of a non-party to this case is unreasonable and oppressive under the circumstances.”
She acknowledged Mr. Leighton’s counsel’s efforts to obtain information in this manner is basically trying to find a “loophole.”
She stated that Martin County’s interests outweigh Mr. Leighton’s interests in obtaining the records he is seeking in the manner he is seeking them.
In summary, Judge Metzger said that Mr. Leighton has no standing to subpoena Sylint for information that was contracted for and paid for by Martin County. However, Mr. Leighton can subpoena Martin County for information and then, if appropriate and necessary, his counsel can then subpoena Sylint. As such, the Protective Order is enforced and the subpeona issued to Sylint is quashed.
As stated previously, Mr. Merker was found by Sylint to not have committed anything of which Mr. Leighton accuses him, including giving unsupervised or unrestricted access to his daughter in a conspiracy to defame him.
When contacted for a comment, Martin County declined to do so as there is still an anticipation of litigation.
Mr. Leighton’s current fishing expedition – at least for this effort – has seemingly come to an end.
We will continue to follow this case.