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Filing # 178606927 E-Filed 07/31/2023 05:03:53 PM
IN THE CIRCUIT COURT FOR THE
ELEVENTH JUDICIAL CIRCUIT, IN AND
FOR MIAMI–DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2015-028846 CA 02
TARAS S. DIAKIWSKI,
Plaintiff,
v.
CRAFT CONSTRUCTION COMPANY, LLC et al.,
Defendants.
____________________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL PHASE II PRODUCTION OF DOCUMENTS
Plaintiff, Taras S. Diakiwski (“Diakiwski”), responds in opposition to Defendants’ Motion
to Compel Phase II Production of Documents as follows:
INTRODUCTION
This 2015 case concerns a lengthy and tumultuous dispute between business partners:
Diakiwski pled that he became a 30% owner of Defendant, Craft Construction Company,
LLC (“CCC”) pursuant to an oral agreement with Defendant, Barry Craft in February of 2015.
Together, the parties launched a re-branded version of CCC to the public with Diakiwski as an
owner. They agreed to perform their agreement and memorialize the finer details in writing at a
later date. However, in September 2015—after Diakiwski had generated significant new business
for the re-branded CCC—Craft/CCC wrongfully expelled Diakiwski from CCC’s daily operations
and told Diakiwski to stop contacting his own clients after attempting to raise Diakiwski’s buy-in
amount for the 30% interest by approximately $100,000.00. See Docket No. 121, Ex. 1 (Amd.
CASE NO.: 2015-028846 CA 02
Cplt.) at ¶¶ 22–25, 27, 29, 37, 39.
In his Amended Complaint, Diakiwski stated the following causes of action that are
pertinent to the upcoming damages trial:
▪ Count II: Breach of Contract
▪ Count III: Breach of Fiduciary Duty
▪ Count IV: Violation of Florida Deceptive and Unfair Trade Practices Act
▪ Count VII: Quantum Meruit
▪ Count IX: Unjust Enrichment
Pre-liability trial, the Defendants stipulated to liability under Diakiwski’s claims for
quantum meruit and unjust enrichment. At the conclusion of the April 2021 liability jury trial, the
jury returned a Verdict for Diakiwski on the remaining the above-listed claims and also on his
claims for fraudulent misrepresentation, negligent misrepresentation, and tortious interference
with advantageous business relationships.
Diakiwski had originally intended to claim damages, including reputation damages,
relating to all persons and entities to whom he introduced CCC as part of his claims for tortious
interference, fraud, and negligent misrepresentation. Unfortunately, however, the Court granted
the Defendants’ post-trial Motion for New Trial with respect to his tortious interference claim and
their Motion for Judgment Notwithstanding the Verdict with respect to Diakiwski’s claims for
fraudulent and negligent misrepresentation.
Subsequently, over Diakiwski’s objections, the Court limited the scope of Diakiwski’s
remaining damage claims for the upcoming second phase of trial in two ways:
First, with respect to Diakiwski’s contract claim, this case was always about whether
Diakiwski was granted a 30% ownership interest in CCC that was never properly extinguished
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under the LLC statutes. The Defendants even filed an alternative Counterclaim for dissolution that
would be resolved judicially after this question was answered.
The jury ruled that Diakiwski and the Defendants had an enforceable oral agreement
conveying Diakiwski the ownership interest. However, the Honorable Alan Fine accepted the
Defendants’ post-trial position that the jury did not find the Defendants agreed to convey him a
30% ownership interest from February 16, 2015 forward. Judge Fine then ruled that Diakiwski is
only entitled to recover the statutory “fair value” of his 30% membership interest in CCC for the
2015 calendar year. As a result of this ruling, Judge Fine did not consider Diakiwski’s then-
pending motion for entry of judgment in his favor on the Defendants’ dissolution Counterclaim.
Second, with respect to Diakiwski’s claims for breach of fiduciary duty and unjust
enrichment, Diakiwski’s damages are to be measured by the profits that CCC reaped from
Diakiwski’s efforts and from stealing his clients in 2015. At the liability trial, there was
overwhelming evidence that Diakiwski brought significant new business to CCC in 2015. For
instance, it was undisputed that four projects (AC Hotel Aventura, Aloft Hotel, 3550 South Ocean,
and Baywood Hampton Inn) had contracts pending execution by September 22, 2015 due to
Diakiwski’s efforts. The AC Hotel project alone was for over $30,000,000.00.
The stolen clients tied to these projects are known by the parties as Norwich, Paragon, and
Baywood. CCC also ended up doing business with another client that Diakiwski introduced to
Craft in 2015, known by the parties as Integra. In addition, Diakiwski introduced hundreds of other
lucrative construction industry contacts to CCC through email blasts containing brochures
depicting Diakiwski and Defendant Barry Craft as co-owners of the company. These people and
company affiliations are summarized within Admitted Trial Exhibit 606.
With regard to Diakiwksi’s damages relating to the stolen clients, the Court has placed the
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following limitations upon the scope of Diakiwski’s damages under his breach of fiduciary and
unjust enrichment claims:
To the extent there were any introductions by Diakiwski of people to Craft, th[at]
Craft did business with, the Plaintiff is going to have the burden of showing it was
because of the introduction.
See July 29, 2022 Hrg. Trans. at 27, which is being separately filed with this Response.
The Court notes that the business dealings arising out of “introductions” for which
it is permitting discovery does not include every contact to which an email blast
communication was merely sent during 2015, but instead some kind of specific
business contact for the purpose of future business development with Craft
Construction Company needed to have occurred in 2015.
Docket No. 551 at ¶ 14.
Accordingly, the scope of damages to be tried is:
CLAIM(S) DAMAGE MEASURE DISCOVERABLE
EVIDENCE
Count II The value of CCC for the year 2015 CCC’s own business
(Breach of Contract) (judicially limited damage measure) records
Count III Damages flowing from Craft/CCC’s CCC’s own business
(Breach of Fiduciary Duty) breach of fiduciary duty, which includes: records and the
▪ Failing to compensate Diakiwski as project records of
Count IX an executive in 2015; Norwich, Baywood,
(Unjust Enrichment) ▪ Failing to compensate Diakiwski for Paragon, and Integra
rebranding CCC despite continuing
Count VII to make use of marketing materials Additionally, on
(Quantum Meruit) and other business-planning January 17, 2018,
documents that Diakiwski prepared Diakiwski answered
for CCC in 2015; and interrogatories
▪ Disgorgement of CCC’s ill-gotten disclosing his pre-
profits from business deals with 2015 employment
clients that CCC gained from details, including his
Diakiwski’s client list and contacts prior compensation,
(Norwich, Baywood, Paragon, and within the parameters
Integra) of the Court’s
-and- October 13, 2017
The benefit that Diakiwski conferred to Order
Craft/CCC (Unjust Enrichment)
-and-
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The reasonable value of Diakiwski’s
services rendered to Craft/CCC in 2015
(Quantum Meruit)
Count IV Diakiwski’s out-of-pocket expenditures Records of
(Violation of Florida Diakiwski’s out-of-
Deceptive and Unfair Trade pocket expenditures
Practices Act for CCC for the year
2015
Diakiwski produced
expense summaries
and related redacted
banking records to the
Defendants in March
2017
Post-trial, the Defendants hired two additional law firms to represent them in this case who
were not part of these proceedings from 2015 through 2022. Pertinent to this Response, the new
attorneys have served additional Requests for Production upon Diakiwski. Diakiwski has served
proper responses and objections to those Requests, but the Defendants do not like his responses.
For the following reasons, the Court should deny their Motion to Compel.
FOURTH RFP REQUESTS ## 1, 2, AND 3:
PLAINTIFF’S PERSONAL INCOME AND FINANCES ARE NOT AT ISSUE
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Defendants appear to be laboring under the mistaken assumption that the upcoming
damages trial is about Diakiwski’s personal financial worth over the past 13 years. It is not.
Diakiwski has not injected his personal finances years into the upcoming trial. Diakiwski will not
seeking damages for “diminished income” as the Defendants suggest. The requested information
is not relevant at all to proving or defending against the above-summarized damages measures.
The Defendants also mistakenly contend Diakiwski will be asking the jury to award him
reputation damages. However, Diakiwski’s damages for tortious interference with advantageous
business relations, fraudulent misrepresentation, and negligent misrepresentation are outside the
scope of this trial. Diakiwski also struggles to comprehend how his personal finances would
implicate those presently moot points. Relatedly, to the extent Defendants contend Diakiwski’s
pre-2015 and current income from work relates to their defense against the reasonable value of the
services he provided to the Defendants in 2015, Request Nos. 1, 2, and 3 overbroadly ask
Diakiwski to disclose private, passive income as well as income from employment.
With particular respect to Diakiwski’s income and benefits compensation from pre-2015
and current employment activities, the Honorable Monica Gordo limited the amount of
information that the Defendants are allowed to discover from Diakiwski. See Docket No. 53. At
that time, all of Diakiwski’s pled theories of recovery were still active, and the case had not yet
been bifurcated. Specifically, on December 5, 2016, the Defendants propounded the following
four-part Interrogatory and corresponding document Request upon Diakiwski:
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(A true and correct copy of Diakiwski’s March 2017 Answers to Defendants’ First Set of
Interrogatories is attached hereto as Exhibit “A.”).
(A true and correct copy of Diakiwski’s March 2017 Responses and Objections to Defendants’
First Request for Production is attached hereto as Exhibit “B.”).
Diakiwski objected that disclosing this information would violate his right to privacy
regarding financial matters, was irrelevant, and was otherwise not likely to lead to the discovery
of admissible evidence. See Exs. A & B. On April 5, 2017, the Defendants moved to overrule
these and other discovery objections made by Diakiwski. See Docket No. 32. Appended to their
Motion (as Exhibit 4) was correspondence from counsel in which the following arguments were
made for why the Court should allow this discovery:
* * *
Docket No. 32 at Ex. 4 thereto.
On October 13, 2017, the Honorable Monica Gordo ruled:
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Docket No. 53.
Diakiwski timely complied by stating his compensation as (1) Vice President of Moss and
Associates from September 2007 to November 2009; (2) Vice President of Plaza Construction
from roughly March 2011 through mid-2014; and (3) Principal of Modern Building Group (2016
pre-tax earnings), a true and correct copy of which is attached hereto as Exhibit “C.”
Subsequently, on July 9, 2019, the Honorable Gisela Cardonne Ely allowed the Defendants
to serve subpoenas upon non-parties Moss and Plaza for Diakiwski’s executive employment
records, but denied their request to subpoena upon non-party The Weitz Company—of which
Diakiwski was a Vice President prior to 2007. Plaza and Moss complied with Defendants’
Subpoenas by producing Diakiwski’s employment records on July 31, 2019 and October 15, 2019
respectively. As a result, the Defendants seek nothing more than duplicative discovery that is
outside the temporal and substantive parameters the Court has already permitted. Additionally, the
Defendants never sought reconsideration of Judge Gordo’s Order decreeing that Diakiwski is not
obligated to produce documents relating to his pre-CCC professional career.
Diakiwski’s quantum meruit claim is not substantively different now from when Judge
Gordo ruled on the scope of permissible discovery as to Diakiwski’s prior and current employment
in 2017. The only damage-related circumstances that have changed since the Defendants made
their original arguments for production of documents implicating Diakiwski’s personal finances is
that the Defendants have now stipulated to liability under Diakiwski’s quantum meruit count.
The Defendants now argue they are entitled to all Diakiwski’s personal financial
information for the past 13 years because they placed his financials at issue. They attempt to
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circumvent previous Orders by arguing they should be allowed to pry into Diakiwski’s finances
because they raised the following speculative, bare-bones “collateral source” setoff defense:
The Defendants do not cite a single case holding that a defendant gains unfettered access
to a plaintiff’s personal finances by merely raising a collateral source defense. The Florida
Supreme Court created a standard interrogatory relating to the discovery of information pertaining
to collateral sources—which the Defendants have never propounded in this case. It follows that
documentary discovery of this kind of information should be similarly limited:
Fla. R. Civ. P. at Appx. I, Form 1.
The information Defendants seek via Request Nos. 1, 2, and 3 is clearly akin to
impermissible individual financial net worth discovery. To be sure, “[p]ersonal finances are among
those private matters kept secret by most people.” Ryan v. Landsource Holding Co., LLC, 127 So.
3d 764, 767 (Fla. 2d DCA 2013) (quoting Woodward v. Berkery, 714 So. 2d 1027, 1035 (Fla. 4th
DCA 1998)). “The right of privacy set forth in article 1, section 23, of the Florida Constitution
‘undoubtedly expresses a policy that compelled disclosure through discovery be limited to that
which is necessary for the court to determine contested issues.” Id. (quoting Woodward, supra).
“It follows that the disclosure of personal financial information may cause irreparable harm to a
person forced to disclose it, in a case in which the information is not relevant.” Id. (emphasis by
the appellate court, quoting Straub v. Matte, 805 So. 2d 99, 100 (Fla. 4th DCA 2002)).
Thus, a party needs to do much more than merely assert an unsupported “collateral source”
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defense to gain access to his opponent’s personal financial information. For example, in
Defendants’ cited case of Anderson v. Vander Meiden ex rel Duggan, 56 So. 3d 830 (Fla. 2d DCA
2011), it was undisputed that appellee entered into a settlement with a non-party in related
litigation concerning the same subject matter. See id. at 831. Appellant argued appellee’s settled
claims “arose out of the same conduct” as the claims against appellant, and “any settlement amount
between the nonparties . . . would act as a setoff against damages which [the appellant] . . . might
be ordered to pay.” Id. The court agreed and ordered production of the documents. See id. at 832–
833. Defendants’ cited case of City of Homestead v. Rogers, 789 So. 2d 483 (Fla. 3d DCA 2001)
similarly involved the amount of a co-defendant settlement for setoff purposes.
The Defendants’ cited case of Letchworth v. Pannone, 168 So. 3d 288 (Fla. 5th DCA 2015)
was a shareholder derivative action against managing members who were diverting business
inventory, so their personal finances and those of their families with whom joint accounts were
held became discoverable. Here, there are no allegations that Diakiwski diverted CCC assets.
City of Homestead and the Defendants’ remaining cited cases of Epstein v. Epstein, 519
So. 2d 1042 (Fla. 3d DCA 1988), Citibank, N.A. v. Plapinger, 461 So. 2d 1027 (Fla. 2d DCA
1985), and Florida Gaming Corp. of Delaware v. American Jai-Alai, Inc., 673 So. 2d 523 (Fla.
4th DCA 1996) are also wholly unhelpful because they involved discovery of the finances of
business entities, not an individual plaintiff with constitutional privacy rights like Diakiwski.
Further, unlike the Defendants, the parties seeking financial discovery in those cases
established a tenable link between the businesses’ financials and the litigation. In Epstein, the
opposing party was using the businesses to deflate the value of the trust funds that were at issue in
the case. Florida Gaming was an action for an accounting of the business entity in question based
on a claim of partnership. In Citibank, the documents were likely to disclose assets available to
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satisfy a judgment in connection with proceedings in aid of execution.
In this case, Diakiwski does not have any past litigation or settlements with non-parties
arising from the Defendants’ conduct. There are no allegations that Diakiwski diverted CCC’s
assets, and there are no well-pled allegations that could possibly place all his personal finances at
issue. The Defendants have not suggested what sort of “collateral source” may have paid
Diakiwski for all or part of the damages the Defendants caused him. It was also undisputed at the
liability trial that Diakiwski has not received a cent for his efforts at CCC. Further, Diakiwski is
unaware of any third-party that would pay him for losses resulting from the Defendants wrongly
locking him out of CCC—especially when he still claims to own 30% of the company.
Lastly, the only way in which a portion of Diakiwski’s personal finances was even
potentially relevant was extinguished by the liability jury’s Verdict. Before trial, the Defendants
suggested Diakiwski could not afford to make his buy-in payment for the 30% interest.1 However,
Diakiwski dispelled this notion by placing redacted versions of his 2015 banking records into
evidence as proof that he was ready, willing, and able to make the payment before the Defendants
locked him out of CCC’s daily operations. See Tr. Ex. 607. Aside from that information, the
Defendants have not shown any basis for prying into Diakiwski’s personal finances.
Accordingly, the Court should sustain Diakiwski’s objections to Request Nos. 1, 2, and 3.
REQUEST NOS. 6 AND 7
MARKETING MATERIALS
1
Based on the jury’s verdict, which confirmed that the buy-in amount is 30% of CCC’s 2014 year-end book value,
the buy-in figure is now undisputedly $200,795.10 (30% of $669,317.00). See Pl. Tr. Ex. 435.
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The Defendants claim they cannot challenge the value of rebranding and marketing
materials that Diakiwski prepared in 2015 “without examining them.” This contention is absurd
because the Defendants have been and are still using rebranded marketing materials that
Diakiwski prepared in 2015 for over seven (7) years. As just one example, content that Diakiwski
prepared in 2015—including verbiage along with the company logo and color palette that he
selected, implemented, and paid for—is still being displayed on Defendants’ website to this day.
Further, Diakiwski suspects the Defendants are seeking native-file versions of the content
Diakiwski prepared in 2015 not for any proper litigation purpose, but rather so they can see
whether Diakiwski has even more content for the Defendants to benefit from without paying. The
Defendants have not identified a litigation reason for why native versions of the rebranding and
related marketing materials that Diakiwski prepared for CCC, if they exist in Diakiwski’s
possession, should be discoverable. Diakiwksi maintains that the only discoverable marketing
materials are (1) the non-native versions of these materials that were used by CCC and published
to third-parties before the Defendants locked Diakiwski out of the company’s daily operations
(which the Defendants clearly have already); and (2) those that the Defendants have continued to
use ever since (the full scope of which is unknown to Diakiwski).
The term “materials” is also vague, overbroad, and unduly burdensome—especially against
the context of CCC “materials” for which Diakiwski created content in 2015. For example, the
rebranding summary attached hereto as Exhibit “D” was admitted into evidence as Plaintiff’s
Exhibit 546. It shows that Diakiwski created content not only in the form of brochures, project
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proposals, presentations, staff resumes, qualification packages, handouts (such as postcards and
information sheets), stationary, business cards, and social media, but also forms for estimates,
schedules, logistics, area analyses, and forecasts. The content Diakiwski created further included
rebranded shirts, hard hats, construction signage, safety vests; and the creation of rebranded images
for the new marketing materials that incorporated CCC personnel wearing rebranded clothing.
With respect to native format marketing content that Diakiwski created for “previous
employers, including but not limited to Plaza Construction,” the Defendants know that Diakiwski
has been working in the construction industry for over 30 years. Their request for native versions
of all marketing materials Diakiwski has ever created for any company throughout his entire pre-
2015 career not only violates the temporal scope of discovery set by prior Orders but is also
unquestionably overbroad and unduly burdensome.
Lastly, the Defendants have not stated how native-file versions of pre-CCC materials, if
any are in Diakiwski’s possession, are discoverable. They claim Diakiwski should be forced to
search his personal database and turn over potentially decades’ worth of native files to support
their theory that he “misappropriated” marketing materials from prior employers. The Defendants
attempted to make this false narrative a feature of the liability trial by bringing in Brad Meltzer of
Plaza to testify before the jury regarding marketing materials. By ruling for Diakiwski, the jury
accepted Diakiwski’s testimony that the materials he prepared for CCC reflected his own work-
product. At the damages trial, the jury should be focused on the content that Diakiwski created for
CCC in 2015, not content he may have created over a 30-year time period.
Accordingly, the Court should sustain Diakiwski’s objections to Request Nos. 6 and 7.
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REQUEST NO. 13
REPUTATION DAMAGE
As Diakiwski has explained, reputation damages will not presently be sought because the
Court overturned the jury’s Verdict on Diakiwski’s claims for tortious interference with
advantageous business relations, fraudulent misrepresentation, and negligent misrepresentation.
Accordingly, the Court should sustain Diakiwski’s objection to Request No. 13.
REQUEST NO. 26
“MITIGATION” DOCUMENTS
This Request is so vague and overbroad that Diakiwski could not even begin to collect
potentially responsive, non-privileged documents. In particular, the Defendants have been aware
since Diakiwski’s March 15, 2017 and January 17, 2018 Interrogatory Answers that in 2016—
after the Defendants wrongly locked Diakiwski out of CCC—he formed Modern Building Group,
LLC, which is a construction consulting and management/owner’s representation company. See
Exs. A, C. Therefore, as phrased, new Request No. 26 could be asking Diakiwski to produce
documents relating to every detail of his day-to-day professional life over the past seven years,
including irrelevant financial information. The Defendants should not be allowed to conduct a
mini-trial on the details of Diakiwski’s post-2015 career as part of their opposition to his claims
for damages sustained as a result of what they did to him in 2015.
Accordingly, the Court should sustain Diakiwski’s objections to Request No. 26.
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REQUEST NOS. 14, 15, AND 16
PRESS RELEASES, SELF-PROMOTION, AND RESUMES
Preliminarily, with respect to the Defendants’ contention that these documents are relevant
to Diakiwski’s pleading allegation that “clients and public consumers have been deceived by Craft
and CCC’s unconscionable and deceptive acts,” the liability jury already decided that the
Defendants violated FDUTPA by acting unconscionably and deceptively:
Post-trial, Defendants asked the Court to overrule the Verdict on this point, contending
Diakiwski had to prove other statutory “consumers” were also deceived by their actions (despite
the jury being instructed to find for Diakiwski without regard for other consumers being deceived).
Diakiwski responded that in addition to Florida law allowing a single “consumer” like Diakiwski
to sue under FDUTPA, the trial evidence showed that the Defendants also deceived the consuming
construction industry market for their own gain. This includes, but is not limited to, Julio Collier
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of Kimley-Horn, David Leatherwood of Norwich Partners, and Gary Cohen of the 3550 South
Ocean/Paragon project. See Docket No. 470 at 9–11 (summarizing evidence).
With respect to resumes and curricula vitae, it was undisputed at trial that CCC published
Diakiwski’s resume (and “Principal Partner” designation) on its own website for years after this
lawsuit was filed. See Pl. Tr. Ex. 513. In support of sustaining the jury’s Verdict on FDUTPA,
Diakiwski maintained the jury was free to infer from this evidence that the Defendants deceptively
and unfairly used Diakiwski’s goodwill to build up CCC’s industry reputation to consumers. Judge
Fine denied that portion of Defendants’ post-trial motions and upheld the FDUTPA Verdict. Thus,
any discovery aimed at disproving that Defendants deceived the public is irrelevant to the
upcoming damages trial. At this trial, under his FDUTPA count, Diakiwski is only seeking to
recover 2015 out-of-pocket expenditures made as part of generating new business for CCC.
With regard Defendants’ vague Request No. 14 for “press releases” Diakiwski may have
prepared or issued “to the media or general public between 2010 and the present,” the Request
necessarily begs the question: “press releases” relating to what? The Defendants also fail to state
what potential relevance “press releases” Diakiwski may have prepared while he held executive
positions at other companies, or after the Defendants wrongly locked him out of CCC, could have
toward proving the reasonable value of the services that Diakiwski rendered to CCC in 2015.
To the extent the Defendants contend such documents could relate to Diakiwski’s
“reputation in the construction industry,” the jury will be deciding the reasonable value of
Diakiwski’s services in the general contracting sector of the construction industry, as of 2015.
Diakiwski’s post-2015 reputation has no temporal or substantive bearing upon what his services
were worth in 2015. Diakiwski now renders construction management services to owners instead
of engaging in general contracting. Diakiwski has refrained from competing with the Defendants
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in the general contracting sector due to his ownership stake in CCC and his entitlement to profits.
Diakiwski makes the same temporal and substantive objection with respect to Defendants’
Request No. 16, for copies of every version of Diakiwski’s resume/curriculum vitae that he created
over the past 13 years. Resumes post-dating 2015 that may have been created for the construction
management sector of the industry will not aid in establishing the 2015 value of Diakiwski’s
services in the general contracting sector. These objections likewise apply to Request No. 15,
which seeks all “marketing materials” relating to promoting Diakiwski and his services since 2010.
Accordingly, the Court should sustain Diakiwski’s objections to Request ##14, 15, and 16.
REQUEST NO. 17
“CLAIMS, ASSERTIONS, DEMANDS, OR COMPLAINTS” AGAINST DIAKIWSKI
Preliminarily, the Florida Supreme Court has issued standard Interrogatories with respect
to discoverable information regarding lawsuits in particular, which the Defendants never served:
See Fla. R. Civ. P. Appx. I, Form 1.
The Defendants state the above Request seeks documents and communications relating to
“disputes” between Diakiwski and the aforementioned categories of people. However, the term
“disputes” is absent from Request No. 17. Moreover, as phrased, this Request is fatally vague.
First, what is meant by documents and communications relating to “assertions” against
Diakiwski over the past 13 years—and relating to what? BLACK’S LAW DICTIONARY (11th ed.
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2019) defines “assert” as “1. To state positively. 2. To invoke or enforce a legal right. — assertory,
assertive, adj.” It would be unduly burdensome and harassing to require Diakiwski to locate,
evaluate, and produce every document or communication with each business associate, employer,
employee, customer, client or business partner over the past 13 years in which someone may have
become “assertive” about something—including every instance where someone sought to enforce
their legal rights under employment or construction-related agreements.
Likewise, what do the Defendants mean by “claims” or “demands” against Diakiwski by
business associates, employers, employees, customers, clients, or business partners over the past
13 years—and, again, relating to what? BLACK’S LAW DICTIONARY defines “claim” as “1. A
statement that something yet to be proved is true . 2. The assertion of an existing
right; any right to payment or to an equitable remedy, even if contingent or provisional.” It
similarly defines “demand” as “1. The assertion of a legal or procedural right.” As with
“assertions,” it would be unduly burdensome and harassing to require Diakiwski to locate,
evaluate, and produce every document or communication with every business associate, employer,
employee, customer, client, or business partner in the construction industry over the past 13 years
in which someone made a statement against him yet to be proved is true; or asserted an existing
legal, procedural, contingent, or provisional right (such as a right to payment). In construction,
people seek payment and enforce contractual and other legal rights all the time.
Similarly vague is the Defendants’ request for every document and communication
Diakiwski has had over the past 13 years with every business associate, employer, employee,
customer, client, or business partner in the construction industry over the past 13 years in which
someone has made a “complaint” to him—again, about what? BLACK’S LAW DICTIONARY defines
“complaint” as “1. The initial pleading that starts a civil action and states the basis for the court's
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jurisdiction, the basis for the plaintiff's claim, and the demand for relief.” However, MERRIAM–
WEBSTER defines “complaint” as “1: expression of grief, pain, or dissatisfaction; 2a: something
that is the cause or subject of protest or outcry; 2b: a bodily ailment or disease; 3: a formal
allegation against a party.”
In addition to going far beyond the general scope of “lawsuit” discovery, it would be unduly
burdensome and harassing to require Diakiwski to locate, evaluate, and produce every document
or communication with every business associate, employer, employee, customer, client, or
business partner over the past 13 years in which someone has expressed dissatisfaction over
something, such as in connection with the performance or procurement of a construction project,
or some other interaction Diakiwski had with the aforementioned categories of persons.
Accordingly, the Court should sustain Diakiwski’s objections to Request No. 17.
REQUEST NO. 18
“AWARDS AND RECOGNITIONS”
Request No. 18 is also fatally vague and overbroad, as the Request does not identify who
the purported recipient or maker of the subject “awards” and “recognitions” over the past 13 years
is. Thus, it is impossible for Diakiwski to produce any documents in response to this Request.
Accordingly, the Court should sustain Diakiwski’s objections to Request No. 18.
Page 19 of 22
TAYLOR CORWIN & VAN CLEAF, PLLC
CASE NO.: 2015-028846 CA 02
REQUEST NOS. 22 AND 24
PRIOR AND CURRENT EMPLOYMENT DOCUMENTS
As Diakiwski detailed supra, existing court Orders limit Defendants’ discovery relating to
Diakiwski’s prior and current employment. Despite having Diakiwski’s objections to Request Nos.
22, 24, and 25 in their possession since June 20, 2023, the Defendants have not filed any motions
seeking reconsideration of the rulings encompassed in those Orders—which were issued before
the case was bifurcated into liability and damages phases. Accordingly, the Court should sustain
Page 20 of 22
TAYLOR CORWIN & VAN CLEAF, PLLC
CASE NO.: 2015-028846 CA 02
Diakiwski’s objections to Request Nos. 22, 24, and 25.
WHEREFORE, Plaintiff, Taras S. Diakiwski, respectfully requests that the Court enter an
order denying Defendants’ Motion to Compel Phase II Production of Documents in its entirety,
and granting any such other and further relief to Plaintiff in law or equity that the Court deems just
and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
automatic e-service through the Florida E-Portal filing system to all parties who have selected
inclusion of service and all Parties on the attached Service List on this 31st day of July, 2023.
Respectfully Submitted,
TAYLOR CORWIN & VAN CLEAF, PLLC
Attorneys for Plaintiff, Taras S. Diakiwski
255 Alhambra Circle, Suite 1170
Coral Gables, Florida 33134
Telephone: (305) 859-4400
By: s/ Timothy S. Taylor
TIMOTHY S. TAYLOR, B.C.S.
Florida Bar No. 545015
VANESSA A. VAN CLEAF, B.C.S.
Florida Bar No. 93131
ttaylor@tcv.law
vvancleaf@tcv.law
vperez@tcv.law
ngutierrez@tcv.law
Page 21 of 22
TAYLOR CORWIN & VAN CLEAF, PLLC
CASE NO.: 2015-028846 CA 02
SERVICE LIST
Vincent F. Vaccarella Francis D. Murray
John Moore Patricia Melville
Zachary Auspitz Mark J. Heise
Vincent F. Vaccarella, P.A., Luis E. Suarez
401 S.E. 12th Street, Suite #300 Dorian N. Daggs
Ft. Lauderdale, FL 33316 Heise Suarez Melville, P.A.
Tel: 305-932-4044 2990 Ponce De Leon Blvd, Suite 300
vincent@v-law.net Coral Gables, FL 33134
jmoore@v-law.net Tel: 305-800-4476
zauspitz@v-law.net fmurray@hsmpa.com
Counsel for Defendants pmelville@hsmpa.com
mheise@hsmpa.com
lsuarez@hsmpa.com
ddaggs@hsmpa.com
Counsel for Defendants
Gabrielle C. Craft
Kluger, Kaplan, Silverman, Katzel & Levine,
P.L.
201 S. Biscayne Boulevard, 27th Floor
Miami, Florida 33131
gcraft@klugerkaplan.com
gpardo@klugerkaplan.com
Counsel for Defendants
Page 22 of 22
TAYLOR CORWIN & VAN CLEAF, PLLC
EXHIBIT “A”
Filing # 53835361 E-Filed 03/16/2017 03:13:41 PM
IN THE CIRCUIT COURT FOR THE
ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR MIAMI–DADE COUNTY,
FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2015-028846 CA 02
TARAS S. DIAKIWSKI,
Plaintiff,
v.
CRAFT CONSTRUCTION COMPANY, LLC,
a Florida limited liability company, and
BARRY CRAFT,
Defendants.
_______________________________________/
NOTICE OF SERVING PLAINTIFF’S VERIFIED
ANSWERS TO DEFENDANTS’ FIRST SET OF INTERROGATORIES
Plaintiff, Taras Diakiwski, by and through his undersigned counsel and pursuant to Florida
Rule of Civil Procedure 1.340, hereby gives notice of serving his verified answers to Defendants,
Craft Construction Company, LLC and Barry Craft’s First Set of Interrogatories.
CERTIFICATE OF SERVICE
I certify that on this 16th day of March, 2017 a true and correct copy of the foregoing was
furnished via e-mail (vincent@v-law.net) to Vincent F. Vaccarella and Craig R. Lewis (clewis@v-
law.net), Vincent F. Vaccarella, P.A., 401 S.E. 12th Street, #300, Ft. Lauderdale, FL 33316.
Respectfully submitted,
TAYLOR ESPINO VEGA & TOURON, P.A.
Attorneys for Plaintiff, Taras Diakiwski
2555 Ponce de Leon Boulevard, Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
By: s/ Timothy S. Taylor
TIMOTHY S. TAYLOR
Florida Bar No. 545015
VANESSA A. VAN CLEAF
Florida Bar No. 093131
Email: ttaylor@tevtlaw.com
vvancleaf@tevtlaw.com
vperez@tevtlaw.com
2
PLAINTIFF'S ANSWERS TO DEFENDANTS' FIRST SET OF INTERROGATORIES
1. Identify with specificity each damage you are seeking in the above captioned action and
the amount of each damage.
Below is Diakiwski's preliminary estimate of known damages. Diakiwski
reserves his right to amend this Interrogatory Answer as discovery is ongoing.
1% of the total contract value Unknown at this time. Defendant refuses to
(including change orders and produce documents and disclose adequate
enhancements) of each construction information to Plaintiff that can be used to
project secured by CCC as a result calculate this figure with specificity. Upon
of Diakiwski's efforts and business information and belief, certain known
contacts projects are also ongoing and thus lack a
definite value as of the date of this Answer.
However, Diakiwski preliminarily estimates
that this damage item will exceed
$1,000,000.00
30% of CCC's fair market value Unknown at this time. Defendant refuses to
produce documents or disclose information
to Plaintiff that can be used to calculate this
figure with specificity. For example,
Defendant refuses to disclose financial
information to Diakiwski and identify all
construction projects performed by CCC
between 2015 and the present.
However, Diakiwski preliminarily estimates
that the base amount of this damage item will
exceed $6,500,000.00, less any amount for
Diakiwski's initial capital contribution,
which has yet to be determined with finality
but will equal 30% of CCC's fair market
value.
3
2015 Out-of-Pocket Expenses and $49,948.15
Expected Benefits
Figure includes reimbursement for
incurred out-of-pocket expenses
($17,120.55) plus monthly allowances
for: vehicle ($900.00/mo. ); health
insurance ($450.00/mo.); life insurance
($75.00/mo.); and dental insurance
($50.00/mo.)
Additional Consequential Damages $75,000.00
Figure includes loans from family
($45,000.00) and penalty for tax loss in
mutual fund ($30,000.00)
Punitive, Stigma, Lost Wages, and Amounts to be awarded by jury
Reputation Damages
2. Identify all CCC projects generated by Plaintiff.
Unknown at this time because Defendant refuses to produce documents and
disclose adequate information to Plaintiff that can be used to determine exactly how
many CCC Projects have been generated as a result of Diakiwski's efforts and
business contacts. In particular, without access to CCC's books and records, it is
impossible for Diakiwski to know wh
Preview
Filing # 178606927 E-Filed 07/31/2023 05:03:53 PM IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI–DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2015-028846 CA 02 TARAS S. DIAKIWSKI, Plaintiff, v. CRAFT CONSTRUCTION COMPANY, LLC et al., Defendants. ____________________________________________/ PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PHASE II PRODUCTION OF DOCUMENTS Plaintiff, Taras S. Diakiwski (“Diakiwski”), responds in opposition to Defendants’ Motion to Compel Phase II Production of Documents as follows: INTRODUCTION This 2015 case concerns a lengthy and tumultuous dispute between business partners: Diakiwski pled that he became a 30% owner of Defendant, Craft Construction Company, LLC (“CCC”) pursuant to an oral agreement with Defendant, Barry Craft in February of 2015. Together, the parties launched a re-branded version of CCC to the public with Diakiwski as an owner. They agreed to perform their agreement and memorialize the finer details in writing at a later date. However, in September 2015—after Diakiwski had generated significant new business for the re-branded CCC—Craft/CCC wrongfully expelled Diakiwski from CCC’s daily operations and told Diakiwski to stop contacting his own clients after attempting to raise Diakiwski’s buy-in amount for the 30% interest by approximately $100,000.00. See Docket No. 121, Ex. 1 (Amd. CASE NO.: 2015-028846 CA 02 Cplt.) at ¶¶ 22–25, 27, 29, 37, 39. In his Amended Complaint, Diakiwski stated the following causes of action that are pertinent to the upcoming damages trial: ▪ Count II: Breach of Contract ▪ Count III: Breach of Fiduciary Duty ▪ Count IV: Violation of Florida Deceptive and Unfair Trade Practices Act ▪ Count VII: Quantum Meruit ▪ Count IX: Unjust Enrichment Pre-liability trial, the Defendants stipulated to liability under Diakiwski’s claims for quantum meruit and unjust enrichment. At the conclusion of the April 2021 liability jury trial, the jury returned a Verdict for Diakiwski on the remaining the above-listed claims and also on his claims for fraudulent misrepresentation, negligent misrepresentation, and tortious interference with advantageous business relationships. Diakiwski had originally intended to claim damages, including reputation damages, relating to all persons and entities to whom he introduced CCC as part of his claims for tortious interference, fraud, and negligent misrepresentation. Unfortunately, however, the Court granted the Defendants’ post-trial Motion for New Trial with respect to his tortious interference claim and their Motion for Judgment Notwithstanding the Verdict with respect to Diakiwski’s claims for fraudulent and negligent misrepresentation. Subsequently, over Diakiwski’s objections, the Court limited the scope of Diakiwski’s remaining damage claims for the upcoming second phase of trial in two ways: First, with respect to Diakiwski’s contract claim, this case was always about whether Diakiwski was granted a 30% ownership interest in CCC that was never properly extinguished Page 2 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 under the LLC statutes. The Defendants even filed an alternative Counterclaim for dissolution that would be resolved judicially after this question was answered. The jury ruled that Diakiwski and the Defendants had an enforceable oral agreement conveying Diakiwski the ownership interest. However, the Honorable Alan Fine accepted the Defendants’ post-trial position that the jury did not find the Defendants agreed to convey him a 30% ownership interest from February 16, 2015 forward. Judge Fine then ruled that Diakiwski is only entitled to recover the statutory “fair value” of his 30% membership interest in CCC for the 2015 calendar year. As a result of this ruling, Judge Fine did not consider Diakiwski’s then- pending motion for entry of judgment in his favor on the Defendants’ dissolution Counterclaim. Second, with respect to Diakiwski’s claims for breach of fiduciary duty and unjust enrichment, Diakiwski’s damages are to be measured by the profits that CCC reaped from Diakiwski’s efforts and from stealing his clients in 2015. At the liability trial, there was overwhelming evidence that Diakiwski brought significant new business to CCC in 2015. For instance, it was undisputed that four projects (AC Hotel Aventura, Aloft Hotel, 3550 South Ocean, and Baywood Hampton Inn) had contracts pending execution by September 22, 2015 due to Diakiwski’s efforts. The AC Hotel project alone was for over $30,000,000.00. The stolen clients tied to these projects are known by the parties as Norwich, Paragon, and Baywood. CCC also ended up doing business with another client that Diakiwski introduced to Craft in 2015, known by the parties as Integra. In addition, Diakiwski introduced hundreds of other lucrative construction industry contacts to CCC through email blasts containing brochures depicting Diakiwski and Defendant Barry Craft as co-owners of the company. These people and company affiliations are summarized within Admitted Trial Exhibit 606. With regard to Diakiwksi’s damages relating to the stolen clients, the Court has placed the Page 3 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 following limitations upon the scope of Diakiwski’s damages under his breach of fiduciary and unjust enrichment claims: To the extent there were any introductions by Diakiwski of people to Craft, th[at] Craft did business with, the Plaintiff is going to have the burden of showing it was because of the introduction. See July 29, 2022 Hrg. Trans. at 27, which is being separately filed with this Response. The Court notes that the business dealings arising out of “introductions” for which it is permitting discovery does not include every contact to which an email blast communication was merely sent during 2015, but instead some kind of specific business contact for the purpose of future business development with Craft Construction Company needed to have occurred in 2015. Docket No. 551 at ¶ 14. Accordingly, the scope of damages to be tried is: CLAIM(S) DAMAGE MEASURE DISCOVERABLE EVIDENCE Count II The value of CCC for the year 2015 CCC’s own business (Breach of Contract) (judicially limited damage measure) records Count III Damages flowing from Craft/CCC’s CCC’s own business (Breach of Fiduciary Duty) breach of fiduciary duty, which includes: records and the ▪ Failing to compensate Diakiwski as project records of Count IX an executive in 2015; Norwich, Baywood, (Unjust Enrichment) ▪ Failing to compensate Diakiwski for Paragon, and Integra rebranding CCC despite continuing Count VII to make use of marketing materials Additionally, on (Quantum Meruit) and other business-planning January 17, 2018, documents that Diakiwski prepared Diakiwski answered for CCC in 2015; and interrogatories ▪ Disgorgement of CCC’s ill-gotten disclosing his pre- profits from business deals with 2015 employment clients that CCC gained from details, including his Diakiwski’s client list and contacts prior compensation, (Norwich, Baywood, Paragon, and within the parameters Integra) of the Court’s -and- October 13, 2017 The benefit that Diakiwski conferred to Order Craft/CCC (Unjust Enrichment) -and- Page 4 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 The reasonable value of Diakiwski’s services rendered to Craft/CCC in 2015 (Quantum Meruit) Count IV Diakiwski’s out-of-pocket expenditures Records of (Violation of Florida Diakiwski’s out-of- Deceptive and Unfair Trade pocket expenditures Practices Act for CCC for the year 2015 Diakiwski produced expense summaries and related redacted banking records to the Defendants in March 2017 Post-trial, the Defendants hired two additional law firms to represent them in this case who were not part of these proceedings from 2015 through 2022. Pertinent to this Response, the new attorneys have served additional Requests for Production upon Diakiwski. Diakiwski has served proper responses and objections to those Requests, but the Defendants do not like his responses. For the following reasons, the Court should deny their Motion to Compel. FOURTH RFP REQUESTS ## 1, 2, AND 3: PLAINTIFF’S PERSONAL INCOME AND FINANCES ARE NOT AT ISSUE Page 5 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 Defendants appear to be laboring under the mistaken assumption that the upcoming damages trial is about Diakiwski’s personal financial worth over the past 13 years. It is not. Diakiwski has not injected his personal finances years into the upcoming trial. Diakiwski will not seeking damages for “diminished income” as the Defendants suggest. The requested information is not relevant at all to proving or defending against the above-summarized damages measures. The Defendants also mistakenly contend Diakiwski will be asking the jury to award him reputation damages. However, Diakiwski’s damages for tortious interference with advantageous business relations, fraudulent misrepresentation, and negligent misrepresentation are outside the scope of this trial. Diakiwski also struggles to comprehend how his personal finances would implicate those presently moot points. Relatedly, to the extent Defendants contend Diakiwski’s pre-2015 and current income from work relates to their defense against the reasonable value of the services he provided to the Defendants in 2015, Request Nos. 1, 2, and 3 overbroadly ask Diakiwski to disclose private, passive income as well as income from employment. With particular respect to Diakiwski’s income and benefits compensation from pre-2015 and current employment activities, the Honorable Monica Gordo limited the amount of information that the Defendants are allowed to discover from Diakiwski. See Docket No. 53. At that time, all of Diakiwski’s pled theories of recovery were still active, and the case had not yet been bifurcated. Specifically, on December 5, 2016, the Defendants propounded the following four-part Interrogatory and corresponding document Request upon Diakiwski: Page 6 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 (A true and correct copy of Diakiwski’s March 2017 Answers to Defendants’ First Set of Interrogatories is attached hereto as Exhibit “A.”). (A true and correct copy of Diakiwski’s March 2017 Responses and Objections to Defendants’ First Request for Production is attached hereto as Exhibit “B.”). Diakiwski objected that disclosing this information would violate his right to privacy regarding financial matters, was irrelevant, and was otherwise not likely to lead to the discovery of admissible evidence. See Exs. A & B. On April 5, 2017, the Defendants moved to overrule these and other discovery objections made by Diakiwski. See Docket No. 32. Appended to their Motion (as Exhibit 4) was correspondence from counsel in which the following arguments were made for why the Court should allow this discovery: * * * Docket No. 32 at Ex. 4 thereto. On October 13, 2017, the Honorable Monica Gordo ruled: Page 7 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 Docket No. 53. Diakiwski timely complied by stating his compensation as (1) Vice President of Moss and Associates from September 2007 to November 2009; (2) Vice President of Plaza Construction from roughly March 2011 through mid-2014; and (3) Principal of Modern Building Group (2016 pre-tax earnings), a true and correct copy of which is attached hereto as Exhibit “C.” Subsequently, on July 9, 2019, the Honorable Gisela Cardonne Ely allowed the Defendants to serve subpoenas upon non-parties Moss and Plaza for Diakiwski’s executive employment records, but denied their request to subpoena upon non-party The Weitz Company—of which Diakiwski was a Vice President prior to 2007. Plaza and Moss complied with Defendants’ Subpoenas by producing Diakiwski’s employment records on July 31, 2019 and October 15, 2019 respectively. As a result, the Defendants seek nothing more than duplicative discovery that is outside the temporal and substantive parameters the Court has already permitted. Additionally, the Defendants never sought reconsideration of Judge Gordo’s Order decreeing that Diakiwski is not obligated to produce documents relating to his pre-CCC professional career. Diakiwski’s quantum meruit claim is not substantively different now from when Judge Gordo ruled on the scope of permissible discovery as to Diakiwski’s prior and current employment in 2017. The only damage-related circumstances that have changed since the Defendants made their original arguments for production of documents implicating Diakiwski’s personal finances is that the Defendants have now stipulated to liability under Diakiwski’s quantum meruit count. The Defendants now argue they are entitled to all Diakiwski’s personal financial information for the past 13 years because they placed his financials at issue. They attempt to Page 8 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 circumvent previous Orders by arguing they should be allowed to pry into Diakiwski’s finances because they raised the following speculative, bare-bones “collateral source” setoff defense: The Defendants do not cite a single case holding that a defendant gains unfettered access to a plaintiff’s personal finances by merely raising a collateral source defense. The Florida Supreme Court created a standard interrogatory relating to the discovery of information pertaining to collateral sources—which the Defendants have never propounded in this case. It follows that documentary discovery of this kind of information should be similarly limited: Fla. R. Civ. P. at Appx. I, Form 1. The information Defendants seek via Request Nos. 1, 2, and 3 is clearly akin to impermissible individual financial net worth discovery. To be sure, “[p]ersonal finances are among those private matters kept secret by most people.” Ryan v. Landsource Holding Co., LLC, 127 So. 3d 764, 767 (Fla. 2d DCA 2013) (quoting Woodward v. Berkery, 714 So. 2d 1027, 1035 (Fla. 4th DCA 1998)). “The right of privacy set forth in article 1, section 23, of the Florida Constitution ‘undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for the court to determine contested issues.” Id. (quoting Woodward, supra). “It follows that the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Id. (emphasis by the appellate court, quoting Straub v. Matte, 805 So. 2d 99, 100 (Fla. 4th DCA 2002)). Thus, a party needs to do much more than merely assert an unsupported “collateral source” Page 9 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 defense to gain access to his opponent’s personal financial information. For example, in Defendants’ cited case of Anderson v. Vander Meiden ex rel Duggan, 56 So. 3d 830 (Fla. 2d DCA 2011), it was undisputed that appellee entered into a settlement with a non-party in related litigation concerning the same subject matter. See id. at 831. Appellant argued appellee’s settled claims “arose out of the same conduct” as the claims against appellant, and “any settlement amount between the nonparties . . . would act as a setoff against damages which [the appellant] . . . might be ordered to pay.” Id. The court agreed and ordered production of the documents. See id. at 832– 833. Defendants’ cited case of City of Homestead v. Rogers, 789 So. 2d 483 (Fla. 3d DCA 2001) similarly involved the amount of a co-defendant settlement for setoff purposes. The Defendants’ cited case of Letchworth v. Pannone, 168 So. 3d 288 (Fla. 5th DCA 2015) was a shareholder derivative action against managing members who were diverting business inventory, so their personal finances and those of their families with whom joint accounts were held became discoverable. Here, there are no allegations that Diakiwski diverted CCC assets. City of Homestead and the Defendants’ remaining cited cases of Epstein v. Epstein, 519 So. 2d 1042 (Fla. 3d DCA 1988), Citibank, N.A. v. Plapinger, 461 So. 2d 1027 (Fla. 2d DCA 1985), and Florida Gaming Corp. of Delaware v. American Jai-Alai, Inc., 673 So. 2d 523 (Fla. 4th DCA 1996) are also wholly unhelpful because they involved discovery of the finances of business entities, not an individual plaintiff with constitutional privacy rights like Diakiwski. Further, unlike the Defendants, the parties seeking financial discovery in those cases established a tenable link between the businesses’ financials and the litigation. In Epstein, the opposing party was using the businesses to deflate the value of the trust funds that were at issue in the case. Florida Gaming was an action for an accounting of the business entity in question based on a claim of partnership. In Citibank, the documents were likely to disclose assets available to Page 10 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 satisfy a judgment in connection with proceedings in aid of execution. In this case, Diakiwski does not have any past litigation or settlements with non-parties arising from the Defendants’ conduct. There are no allegations that Diakiwski diverted CCC’s assets, and there are no well-pled allegations that could possibly place all his personal finances at issue. The Defendants have not suggested what sort of “collateral source” may have paid Diakiwski for all or part of the damages the Defendants caused him. It was also undisputed at the liability trial that Diakiwski has not received a cent for his efforts at CCC. Further, Diakiwski is unaware of any third-party that would pay him for losses resulting from the Defendants wrongly locking him out of CCC—especially when he still claims to own 30% of the company. Lastly, the only way in which a portion of Diakiwski’s personal finances was even potentially relevant was extinguished by the liability jury’s Verdict. Before trial, the Defendants suggested Diakiwski could not afford to make his buy-in payment for the 30% interest.1 However, Diakiwski dispelled this notion by placing redacted versions of his 2015 banking records into evidence as proof that he was ready, willing, and able to make the payment before the Defendants locked him out of CCC’s daily operations. See Tr. Ex. 607. Aside from that information, the Defendants have not shown any basis for prying into Diakiwski’s personal finances. Accordingly, the Court should sustain Diakiwski’s objections to Request Nos. 1, 2, and 3. REQUEST NOS. 6 AND 7 MARKETING MATERIALS 1 Based on the jury’s verdict, which confirmed that the buy-in amount is 30% of CCC’s 2014 year-end book value, the buy-in figure is now undisputedly $200,795.10 (30% of $669,317.00). See Pl. Tr. Ex. 435. Page 11 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 The Defendants claim they cannot challenge the value of rebranding and marketing materials that Diakiwski prepared in 2015 “without examining them.” This contention is absurd because the Defendants have been and are still using rebranded marketing materials that Diakiwski prepared in 2015 for over seven (7) years. As just one example, content that Diakiwski prepared in 2015—including verbiage along with the company logo and color palette that he selected, implemented, and paid for—is still being displayed on Defendants’ website to this day. Further, Diakiwski suspects the Defendants are seeking native-file versions of the content Diakiwski prepared in 2015 not for any proper litigation purpose, but rather so they can see whether Diakiwski has even more content for the Defendants to benefit from without paying. The Defendants have not identified a litigation reason for why native versions of the rebranding and related marketing materials that Diakiwski prepared for CCC, if they exist in Diakiwski’s possession, should be discoverable. Diakiwksi maintains that the only discoverable marketing materials are (1) the non-native versions of these materials that were used by CCC and published to third-parties before the Defendants locked Diakiwski out of the company’s daily operations (which the Defendants clearly have already); and (2) those that the Defendants have continued to use ever since (the full scope of which is unknown to Diakiwski). The term “materials” is also vague, overbroad, and unduly burdensome—especially against the context of CCC “materials” for which Diakiwski created content in 2015. For example, the rebranding summary attached hereto as Exhibit “D” was admitted into evidence as Plaintiff’s Exhibit 546. It shows that Diakiwski created content not only in the form of brochures, project Page 12 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 proposals, presentations, staff resumes, qualification packages, handouts (such as postcards and information sheets), stationary, business cards, and social media, but also forms for estimates, schedules, logistics, area analyses, and forecasts. The content Diakiwski created further included rebranded shirts, hard hats, construction signage, safety vests; and the creation of rebranded images for the new marketing materials that incorporated CCC personnel wearing rebranded clothing. With respect to native format marketing content that Diakiwski created for “previous employers, including but not limited to Plaza Construction,” the Defendants know that Diakiwski has been working in the construction industry for over 30 years. Their request for native versions of all marketing materials Diakiwski has ever created for any company throughout his entire pre- 2015 career not only violates the temporal scope of discovery set by prior Orders but is also unquestionably overbroad and unduly burdensome. Lastly, the Defendants have not stated how native-file versions of pre-CCC materials, if any are in Diakiwski’s possession, are discoverable. They claim Diakiwski should be forced to search his personal database and turn over potentially decades’ worth of native files to support their theory that he “misappropriated” marketing materials from prior employers. The Defendants attempted to make this false narrative a feature of the liability trial by bringing in Brad Meltzer of Plaza to testify before the jury regarding marketing materials. By ruling for Diakiwski, the jury accepted Diakiwski’s testimony that the materials he prepared for CCC reflected his own work- product. At the damages trial, the jury should be focused on the content that Diakiwski created for CCC in 2015, not content he may have created over a 30-year time period. Accordingly, the Court should sustain Diakiwski’s objections to Request Nos. 6 and 7. Page 13 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 REQUEST NO. 13 REPUTATION DAMAGE As Diakiwski has explained, reputation damages will not presently be sought because the Court overturned the jury’s Verdict on Diakiwski’s claims for tortious interference with advantageous business relations, fraudulent misrepresentation, and negligent misrepresentation. Accordingly, the Court should sustain Diakiwski’s objection to Request No. 13. REQUEST NO. 26 “MITIGATION” DOCUMENTS This Request is so vague and overbroad that Diakiwski could not even begin to collect potentially responsive, non-privileged documents. In particular, the Defendants have been aware since Diakiwski’s March 15, 2017 and January 17, 2018 Interrogatory Answers that in 2016— after the Defendants wrongly locked Diakiwski out of CCC—he formed Modern Building Group, LLC, which is a construction consulting and management/owner’s representation company. See Exs. A, C. Therefore, as phrased, new Request No. 26 could be asking Diakiwski to produce documents relating to every detail of his day-to-day professional life over the past seven years, including irrelevant financial information. The Defendants should not be allowed to conduct a mini-trial on the details of Diakiwski’s post-2015 career as part of their opposition to his claims for damages sustained as a result of what they did to him in 2015. Accordingly, the Court should sustain Diakiwski’s objections to Request No. 26. Page 14 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 REQUEST NOS. 14, 15, AND 16 PRESS RELEASES, SELF-PROMOTION, AND RESUMES Preliminarily, with respect to the Defendants’ contention that these documents are relevant to Diakiwski’s pleading allegation that “clients and public consumers have been deceived by Craft and CCC’s unconscionable and deceptive acts,” the liability jury already decided that the Defendants violated FDUTPA by acting unconscionably and deceptively: Post-trial, Defendants asked the Court to overrule the Verdict on this point, contending Diakiwski had to prove other statutory “consumers” were also deceived by their actions (despite the jury being instructed to find for Diakiwski without regard for other consumers being deceived). Diakiwski responded that in addition to Florida law allowing a single “consumer” like Diakiwski to sue under FDUTPA, the trial evidence showed that the Defendants also deceived the consuming construction industry market for their own gain. This includes, but is not limited to, Julio Collier Page 15 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 of Kimley-Horn, David Leatherwood of Norwich Partners, and Gary Cohen of the 3550 South Ocean/Paragon project. See Docket No. 470 at 9–11 (summarizing evidence). With respect to resumes and curricula vitae, it was undisputed at trial that CCC published Diakiwski’s resume (and “Principal Partner” designation) on its own website for years after this lawsuit was filed. See Pl. Tr. Ex. 513. In support of sustaining the jury’s Verdict on FDUTPA, Diakiwski maintained the jury was free to infer from this evidence that the Defendants deceptively and unfairly used Diakiwski’s goodwill to build up CCC’s industry reputation to consumers. Judge Fine denied that portion of Defendants’ post-trial motions and upheld the FDUTPA Verdict. Thus, any discovery aimed at disproving that Defendants deceived the public is irrelevant to the upcoming damages trial. At this trial, under his FDUTPA count, Diakiwski is only seeking to recover 2015 out-of-pocket expenditures made as part of generating new business for CCC. With regard Defendants’ vague Request No. 14 for “press releases” Diakiwski may have prepared or issued “to the media or general public between 2010 and the present,” the Request necessarily begs the question: “press releases” relating to what? The Defendants also fail to state what potential relevance “press releases” Diakiwski may have prepared while he held executive positions at other companies, or after the Defendants wrongly locked him out of CCC, could have toward proving the reasonable value of the services that Diakiwski rendered to CCC in 2015. To the extent the Defendants contend such documents could relate to Diakiwski’s “reputation in the construction industry,” the jury will be deciding the reasonable value of Diakiwski’s services in the general contracting sector of the construction industry, as of 2015. Diakiwski’s post-2015 reputation has no temporal or substantive bearing upon what his services were worth in 2015. Diakiwski now renders construction management services to owners instead of engaging in general contracting. Diakiwski has refrained from competing with the Defendants Page 16 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 in the general contracting sector due to his ownership stake in CCC and his entitlement to profits. Diakiwski makes the same temporal and substantive objection with respect to Defendants’ Request No. 16, for copies of every version of Diakiwski’s resume/curriculum vitae that he created over the past 13 years. Resumes post-dating 2015 that may have been created for the construction management sector of the industry will not aid in establishing the 2015 value of Diakiwski’s services in the general contracting sector. These objections likewise apply to Request No. 15, which seeks all “marketing materials” relating to promoting Diakiwski and his services since 2010. Accordingly, the Court should sustain Diakiwski’s objections to Request ##14, 15, and 16. REQUEST NO. 17 “CLAIMS, ASSERTIONS, DEMANDS, OR COMPLAINTS” AGAINST DIAKIWSKI Preliminarily, the Florida Supreme Court has issued standard Interrogatories with respect to discoverable information regarding lawsuits in particular, which the Defendants never served: See Fla. R. Civ. P. Appx. I, Form 1. The Defendants state the above Request seeks documents and communications relating to “disputes” between Diakiwski and the aforementioned categories of people. However, the term “disputes” is absent from Request No. 17. Moreover, as phrased, this Request is fatally vague. First, what is meant by documents and communications relating to “assertions” against Diakiwski over the past 13 years—and relating to what? BLACK’S LAW DICTIONARY (11th ed. Page 17 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 2019) defines “assert” as “1. To state positively. 2. To invoke or enforce a legal right. — assertory, assertive, adj.” It would be unduly burdensome and harassing to require Diakiwski to locate, evaluate, and produce every document or communication with each business associate, employer, employee, customer, client or business partner over the past 13 years in which someone may have become “assertive” about something—including every instance where someone sought to enforce their legal rights under employment or construction-related agreements. Likewise, what do the Defendants mean by “claims” or “demands” against Diakiwski by business associates, employers, employees, customers, clients, or business partners over the past 13 years—and, again, relating to what? BLACK’S LAW DICTIONARY defines “claim” as “1. A statement that something yet to be proved is true . 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional.” It similarly defines “demand” as “1. The assertion of a legal or procedural right.” As with “assertions,” it would be unduly burdensome and harassing to require Diakiwski to locate, evaluate, and produce every document or communication with every business associate, employer, employee, customer, client, or business partner in the construction industry over the past 13 years in which someone made a statement against him yet to be proved is true; or asserted an existing legal, procedural, contingent, or provisional right (such as a right to payment). In construction, people seek payment and enforce contractual and other legal rights all the time. Similarly vague is the Defendants’ request for every document and communication Diakiwski has had over the past 13 years with every business associate, employer, employee, customer, client, or business partner in the construction industry over the past 13 years in which someone has made a “complaint” to him—again, about what? BLACK’S LAW DICTIONARY defines “complaint” as “1. The initial pleading that starts a civil action and states the basis for the court's Page 18 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 jurisdiction, the basis for the plaintiff's claim, and the demand for relief.” However, MERRIAM– WEBSTER defines “complaint” as “1: expression of grief, pain, or dissatisfaction; 2a: something that is the cause or subject of protest or outcry; 2b: a bodily ailment or disease; 3: a formal allegation against a party.” In addition to going far beyond the general scope of “lawsuit” discovery, it would be unduly burdensome and harassing to require Diakiwski to locate, evaluate, and produce every document or communication with every business associate, employer, employee, customer, client, or business partner over the past 13 years in which someone has expressed dissatisfaction over something, such as in connection with the performance or procurement of a construction project, or some other interaction Diakiwski had with the aforementioned categories of persons. Accordingly, the Court should sustain Diakiwski’s objections to Request No. 17. REQUEST NO. 18 “AWARDS AND RECOGNITIONS” Request No. 18 is also fatally vague and overbroad, as the Request does not identify who the purported recipient or maker of the subject “awards” and “recognitions” over the past 13 years is. Thus, it is impossible for Diakiwski to produce any documents in response to this Request. Accordingly, the Court should sustain Diakiwski’s objections to Request No. 18. Page 19 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 REQUEST NOS. 22 AND 24 PRIOR AND CURRENT EMPLOYMENT DOCUMENTS As Diakiwski detailed supra, existing court Orders limit Defendants’ discovery relating to Diakiwski’s prior and current employment. Despite having Diakiwski’s objections to Request Nos. 22, 24, and 25 in their possession since June 20, 2023, the Defendants have not filed any motions seeking reconsideration of the rulings encompassed in those Orders—which were issued before the case was bifurcated into liability and damages phases. Accordingly, the Court should sustain Page 20 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 Diakiwski’s objections to Request Nos. 22, 24, and 25. WHEREFORE, Plaintiff, Taras S. Diakiwski, respectfully requests that the Court enter an order denying Defendants’ Motion to Compel Phase II Production of Documents in its entirety, and granting any such other and further relief to Plaintiff in law or equity that the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via automatic e-service through the Florida E-Portal filing system to all parties who have selected inclusion of service and all Parties on the attached Service List on this 31st day of July, 2023. Respectfully Submitted, TAYLOR CORWIN & VAN CLEAF, PLLC Attorneys for Plaintiff, Taras S. Diakiwski 255 Alhambra Circle, Suite 1170 Coral Gables, Florida 33134 Telephone: (305) 859-4400 By: s/ Timothy S. Taylor TIMOTHY S. TAYLOR, B.C.S. Florida Bar No. 545015 VANESSA A. VAN CLEAF, B.C.S. Florida Bar No. 93131 ttaylor@tcv.law vvancleaf@tcv.law vperez@tcv.law ngutierrez@tcv.law Page 21 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC CASE NO.: 2015-028846 CA 02 SERVICE LIST Vincent F. Vaccarella Francis D. Murray John Moore Patricia Melville Zachary Auspitz Mark J. Heise Vincent F. Vaccarella, P.A., Luis E. Suarez 401 S.E. 12th Street, Suite #300 Dorian N. Daggs Ft. Lauderdale, FL 33316 Heise Suarez Melville, P.A. Tel: 305-932-4044 2990 Ponce De Leon Blvd, Suite 300 vincent@v-law.net Coral Gables, FL 33134 jmoore@v-law.net Tel: 305-800-4476 zauspitz@v-law.net fmurray@hsmpa.com Counsel for Defendants pmelville@hsmpa.com mheise@hsmpa.com lsuarez@hsmpa.com ddaggs@hsmpa.com Counsel for Defendants Gabrielle C. Craft Kluger, Kaplan, Silverman, Katzel & Levine, P.L. 201 S. Biscayne Boulevard, 27th Floor Miami, Florida 33131 gcraft@klugerkaplan.com gpardo@klugerkaplan.com Counsel for Defendants Page 22 of 22 TAYLOR CORWIN & VAN CLEAF, PLLC EXHIBIT “A” Filing # 53835361 E-Filed 03/16/2017 03:13:41 PM IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI–DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2015-028846 CA 02 TARAS S. DIAKIWSKI, Plaintiff, v. CRAFT CONSTRUCTION COMPANY, LLC, a Florida limited liability company, and BARRY CRAFT, Defendants. _______________________________________/ NOTICE OF SERVING PLAINTIFF’S VERIFIED ANSWERS TO DEFENDANTS’ FIRST SET OF INTERROGATORIES Plaintiff, Taras Diakiwski, by and through his undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.340, hereby gives notice of serving his verified answers to Defendants, Craft Construction Company, LLC and Barry Craft’s First Set of Interrogatories. CERTIFICATE OF SERVICE I certify that on this 16th day of March, 2017 a true and correct copy of the foregoing was furnished via e-mail (vincent@v-law.net) to Vincent F. Vaccarella and Craig R. Lewis (clewis@v- law.net), Vincent F. Vaccarella, P.A., 401 S.E. 12th Street, #300, Ft. Lauderdale, FL 33316. Respectfully submitted, TAYLOR ESPINO VEGA & TOURON, P.A. Attorneys for Plaintiff, Taras Diakiwski 2555 Ponce de Leon Boulevard, Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 By: s/ Timothy S. Taylor TIMOTHY S. TAYLOR Florida Bar No. 545015 VANESSA A. VAN CLEAF Florida Bar No. 093131 Email: ttaylor@tevtlaw.com vvancleaf@tevtlaw.com vperez@tevtlaw.com 2 PLAINTIFF'S ANSWERS TO DEFENDANTS' FIRST SET OF INTERROGATORIES 1. Identify with specificity each damage you are seeking in the above captioned action and the amount of each damage. Below is Diakiwski's preliminary estimate of known damages. Diakiwski reserves his right to amend this Interrogatory Answer as discovery is ongoing. 1% of the total contract value Unknown at this time. Defendant refuses to (including change orders and produce documents and disclose adequate enhancements) of each construction information to Plaintiff that can be used to project secured by CCC as a result calculate this figure with specificity. Upon of Diakiwski's efforts and business information and belief, certain known contacts projects are also ongoing and thus lack a definite value as of the date of this Answer. However, Diakiwski preliminarily estimates that this damage item will exceed $1,000,000.00 30% of CCC's fair market value Unknown at this time. Defendant refuses to produce documents or disclose information to Plaintiff that can be used to calculate this figure with specificity. For example, Defendant refuses to disclose financial information to Diakiwski and identify all construction projects performed by CCC between 2015 and the present. However, Diakiwski preliminarily estimates that the base amount of this damage item will exceed $6,500,000.00, less any amount for Diakiwski's initial capital contribution, which has yet to be determined with finality but will equal 30% of CCC's fair market value. 3 2015 Out-of-Pocket Expenses and $49,948.15 Expected Benefits Figure includes reimbursement for incurred out-of-pocket expenses ($17,120.55) plus monthly allowances for: vehicle ($900.00/mo. ); health insurance ($450.00/mo.); life insurance ($75.00/mo.); and dental insurance ($50.00/mo.) Additional Consequential Damages $75,000.00 Figure includes loans from family ($45,000.00) and penalty for tax loss in mutual fund ($30,000.00) Punitive, Stigma, Lost Wages, and Amounts to be awarded by jury Reputation Damages 2. Identify all CCC projects generated by Plaintiff. Unknown at this time because Defendant refuses to produce documents and disclose adequate information to Plaintiff that can be used to determine exactly how many CCC Projects have been generated as a result of Diakiwski's efforts and business contacts. In particular, without access to CCC's books and records, it is impossible for Diakiwski to know wh