*1 THIS CAUSE is before the Court on Defendants’ Joint Motions in Limine (Doc. 396) and Plaintiffs’ opposition thereto (Doc. 410). The Court will also address Albert's Objections (Doc. 421) to Magistrate Judge Kelly's December 2, 2020 Order (Doc. 415), and Albert's Appeal (Doc. 428) of Magistrate Judge Kelly's January 14, 2021 Order (Doc. 423).

I. BACKGROUND

Plaintiffs Classic Soft Trim, Inc. (“CST”) and Roadwire, LLC (“Roadwire”) sued Ross Albert and Katzkin Leather, Inc. (“Katzkin”) for damages they incurred as a result of Defendants’ scheme to steal Plaintiffs’ customers and employees while Albert was a CST employee. (See generally Doc. 104).

II. LEGAL STANDARDS

A. Motion in Limine

“A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Stewart v. Hooters of Am., Inc., No. 8:04-cv-40-T-17-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context.” United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (quotation omitted). “The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground.” Id.

B. Objections to Magistrate Orders

Parties may object to orders issued by magistrate judges on non-dispositive matters. Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1). “The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id. (quotation omitted). “A judge of the court may accept, reject, or modify, in whole or in part, the findings ... made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

III. DISCUSSION

Defendants ask that Plaintiffs be precluded from referring to or introducing evidence of the following: (1) ClearLight's ownership of Katzkin or the investment of foreign money into ClearLight or Katzkin through Japanese company Secom; (2) discovery disputes, discovery compliance, or discovery issues, including in connection with the setting or scheduling of depositions; (3) Katzkin paying legal fees for Albert or any other person or entity; (4) interference with customer relationships or customers; (5) the recording of Albert's March 18, 2016 telephone call or any testimony concerning the intercepted phone call; and (6) statements of Valencia and Soto subsequent to the time they were offered inducements to testify in favor of Plaintiffs. (Doc. 396 at 1–2).

A. ClearLight's Ownership and Foreign Investment

*2 First, Defendants argue that evidence that ClearLight owns Katzkin or that a Japanese company Secom has invested money into ClearLight should be excluded under Rule 401 and 402 as irrelevant because ClearLight is no longer a party to the case and the information could only serve to prejudice the jury. (Doc. 396 at 3–5). Plaintiffs respond that such an exclusion would be overbroad and premature and is better addressed at trial. (Doc. 410 at 7–8). Plaintiffs explain that evidence of the relationship between Katzkin and its owners and investors offers relevant proof that the timing of Katzkin's improper interference with CST's Orlando branch followed financial pressure on its business, which is relevant to Defendants’ motivation and intent. (Id. at 8). Yet, Plaintiffs’ recitation of the facts detracts from its argument that ClearLight's ownership motivated Katzkin to lure Albert from CST. Plaintiffs allege that Katzkin has been inducing general managers to breach their duties of loyalty since 1998, and ClearLight bought Katzkin through a stock purchase in 2007, almost a decade before Katzkin sought out Albert. (Doc. 410 at 2). Nevertheless, to the extent that there is evidence that ClearLight or Secom put pressure on Katzkin to quickly increase revenues in 2015 and 2016 such evidence may be relevant.

As for prejudice, the cases cited by Defendants are distinguishable. In Gearhart v. Uniden Corp. of Am., a products liability case concerning a cordless phone, the court stated that the wealth of a corporate parent is generally irrelevant to the question of punitive damages and that the plaintiff's repeated references to Far Eastern parent corporations and “foreign goods” or “foreign products” could prejudicially appeal to the xenophobia of the United States–Japanese trade imbalance that was occurring in the late 1980s. 781 F.2d 147, 153 (8th Cir.), abrogated on other grounds by Faries v. Atlas Truck Body Mfg. Co. (8th Cir. 1986). Accordingly, the circuit court advised that such remarks should not be permitted on retrial. Id.

In Donnelly Corp. v. Gentex Corp., the plaintiff asked to preclude the defendant from offering evidence that the plaintiff used Japanese licensed technology and produced some of its products at an Irish manufacturing facility. 918 F. Supp. 1126, 1136 (W.D. Mich. 1996). The defendant indicated its desire to introduce a video demonstrating that its mirrors were made in America. Id. Although the district court found that “nationalistic rhetoric ... calculated to play on a jury's passions and prejudices” should be excluded under Federal Rule of Evidence 403, it explained that the issues hinged upon the plaintiff's cost of production, the costs of the transportation, and the ability to use the plant in Ireland and the Japanese technology to meet additional production goals. Id. Accordingly the location of the Irish plant and the Japanese technology were relevant for those limited purposes. Id. However, the court excluded references to “un-American products” or products not “Made in America” and similar references. Id.

Here, evidence that the timing of Katzkin's improper interference with CST's Orlando branch followed financial pressure on its business is relevant, but the fact the company was a Japanese company is irrelevant and will be excluded. The Motion is otherwise denied at this juncture. See Stewart, 2007 WL 1752843, at *1.

B. Discovery Disputes

Next, Defendants ask that Plaintiffs be excluded from making any statements at trial concerning the discovery process. (Doc. 396 at 5–7). Plaintiff argues, inter alia, that evidence of spoliation of evidence through destruction of cell phones and laptops and deletion or concealment of e-mails is relevant to the issue that certain documents or pieces of evidence which existed at one time, no longer exist. (Doc. 410 at 12).

Defendants’ Motion is granted to the extent that Plaintiffs will be precluded from referring to the discovery procedures in this case absent a prior order of the Court or upon a proffer outside of the presence of the jury that Defendants’ hinderance of Plaintiffs’ ability to obtain evidence becomes relevant. Magistrate Judge Kelly has resolved a number of discovery disputes in this case that should not be revisited during trial and in the jury's presence. See Entrust Datacard Corp. v. Zeiser GmbH, No. 3:17-cv-110-J-39MCR, 2019 WL 7472893, at *5 (M.D. Fla. Oct. 29, 2019). Indeed, in resolving one of the disputes, Magistrate Judge Kelly ruled that Plaintiff is allowed to introduce evidence concerning the loss of the iPhone 6, and consequently the loss of Albert's remaining work text messages, because he failed to preserve the iPhone 6 and text messages that may be relevant to the planning and execution of his departure from CST. (Doc. 437 at 16, 19).

*3 In sum, Plaintiffs may not rehash discovery issues during trial, save for the loss of the iPhone 6 and the remaining work text messages, unless Plaintiffs establish through a proffer outside of the jury's presence that Defendants’ actions during the discovery process are somehow relevant to an issue at trial. See id.

C. Legal Fees

Next, Defendants ask that Plaintiffs be excluded from offering statements or evidence of Katzkin paying legal fees for Albert or any other person or entity connected with the litigation. (Doc. 396 at 7). Katzkin explains that it offered to reimburse customers for their attorneys’ fees to minimize their burden for having to respond to Plaintiffs’ overbroad discovery demands. Some customers accepted their offer while others did not. (Id. at 8). Defendants anticipate that Plaintiffs will attempt to introduce evidence related to Katzkin's payment of such legal fees or otherwise make remarks during trial about the source of those payments to suggest that Katzkin paid those third parties to withhold discovery. (Id.). Defendants further argue that fees paid on behalf of Albert while he was employed by Katzkin are irrelevant to whether Albert breached his duty while employed by CST or whether Katzkin induced him to do so, and thus should be excluded under Rule 402. (Id.).

Defendants’ Motion is granted as to the payment of Albert's fees after he left CST. See Partylite Gifts, Inc. v. MacMillan, No. 8:10-CV-1490-T-27EAJ, 2012 WL 13059665, at *2 (M.D. Fla. Sept. 13, 2012) (concluding evidence concerning payment of legal fees was both irrelevant and unfairly prejudicial). However, any discussions or arrangements Albert had with Defendants prior to leaving CST would be relevant to his knowledge and intent that soliciting CST's customers and employees was actionable. Id. at *2. As for the third parties, Defendants’ motion is too vague. Without knowing the specifics surrounding the legal fees purportedly paid to Katzkin's customers, the Court cannot rule on its admissibility before trial. See Kobie v. Fifthian, No. 2:12-CV-98-FTM-29DNF, 2014 WL 1652421, at *2 (M.D. Fla. Apr. 23, 2014). If the customers were to testify at trial, such information could possibly be relevant to impeach the customers testimony or demonstrate their bias.

D. Interference with Customer Relationships

Defendants argue that Plaintiffs should be precluded from making any reference to or evidence of interference with customer relationships or customers because they have not raised a claim of customer interference against Katzkin in the Second Amended Complaint. (Doc. 396 at 10–12).

The cases cited by Defendants involved specific evidence that was excluded as irrelevant to the actual claims pleaded. See Wu v. Thomas, 996 F. 2d 271, 275 (11th Cir. 1993); Long v. Phillips & Brooks/Gladwin, Inc., No. 1:02-CV-1235-CC, 2006 WL 8431254, at *1–2 (N.D. Ga. Aug. 29, 2006). Here, while the operative complaint no longer alleges customer interference, it does allege that Albert breached the duty owed to CST when he diverted CST orders to CDA while he was still a CST employee and that Katzkin induced him to do so. Accordingly, evidence of customer interference in that vein is relevant. Because Defendants’ Motion asks that any argument or evidence regarding customer interference be excluded, their motion is denied as overbroad. See Kobie, 2014 WL 1652421, at *2.

E. Albert's Recorded Phone Call

*4 Defendants argue that Plaintiffs and their counsel deliberately violated the Florida Security of Communications Act (“FSCA”), specifically section 934.03, Florida Statutes, that governs recorded phone calls. (Doc. 396 at 13). Defendants also contend that Plaintiffs and their counsel repeatedly failed to disclose the recording and obstructed Albert's discovery of such facts by withholding the recording, failing to identify it in response to discovery, and asserting attorney-client privilege with respect to the recording. (Id. at 13). Defendants insist that the FSCA is a substantive law that is intended to protect extra-judicial rights of privacy rather than a procedural rule of evidence primarily intended to govern in-court proceedings. They rely on Feldman v. Allstate Ins. Co., 322 F.3d 660, 667 (9th Cir. 2003) and Glinski v. City of Chicago, No. 99 C 3063, 2002 WL 113884, at *7 (N.D. Ill. Jan. 29, 2002) to support their assertion.

Defendants do not set forth the circumstances surrounding the phone call in their Motion. Rather, they direct the Court to Albert's Motion to Dismiss, to Revoke Pro Hac Vice Admission, and Strike Deposition/Evidence (“Motion to Dismiss” Doc. 316). Although the Court is not required to consider such redirection, because Albert objects to Magistrate Judge Kelly's denial of his Motion to Dismiss (Doc. 421), it serves judicial economy to consider the facts set forth therein in order to resolve the objection as well as the Motion In Limine. Notably, Magistrate Judge Kelly made his ruling while a federal claim remained; thus, he did not apply the FSCA but found that federal law applied.

In diversity cases in which Florida law provides the substantive law, the admissibility of evidence in federal courts is generally governed by federal law. Borden, Inc. v. Fla. E. Coast Ry. Co., 772 F.2d 750, 754 (11th Cir. 1985) (“Although this is a diversity of citizenship case where Florida law provides the substantive law, the admissibility of evidence in federal courts is governed by federal law.”). In other words, “[a] federal court exercising diversity jurisdiction will not apply a state statute if a Federal Rule ... ‘answers the question in dispute.’ ” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1349 (11th Cir. 2018) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority opinion)). “If no Federal Rule answers the question in dispute, [the court] undertakes an ‘unguided Erie’ inquiry to decide whether to apply the state statute or federal common law.” Id. (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). That choice-of-law inquiry “requires [the Court] to apply Erie and its progeny to determine whether failure to apply the state law would lead to different outcomes in state and federal court and result in inequitable administration of the laws or forum shopping.” Royalty Network, Inc v. Harris, 756 F.3d 1351, 1358 (11th Cir. 2014) (quotation omitted). The question, however, “is not the substantive or procedural nature or purpose of the affected state law that matters, but [rather] the substantive or procedural nature of the Federal Rule.” Shady Grove, 559 U.S. at 410. If the rule is procedural then it “is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.” Id.

In this case there is no Federal Rule of Civil Procedure or Federal Rule of Evidence that speaks directly to whether the recording is admissible. Instead, the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2523, sets forth the federal guidelines for intercepting oral and wire communications. To that end, “[u]nder 18 U.S.C. § 2511(1), the interception of oral or wire communications is prohibited and is a criminal offense, except as governed by specific exceptions to that statute.” United States v. Haimowitz, 725 F.2d 1561, 1581 (11th Cir. 1984). For example, a recording is not unlawful if a party to the communication records the conversation or consents to the recording of the conversation. 18 U.S.C. § 2511(2)(d). When “any wire or oral communication has been [unlawfully] intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court.” 18 U.S.C. § 2515. Because sections 2511(2) and 2515 create, define, and regulate a person's right to privacy they are substantive, not procedural. See Forsyth v. Barr, 19 F.3d 1527, 1541 (5th Cir. 1994) (explaining that § 2518(10)(a), which provides that a party may move to suppress the contents of any unlawfully intercepted communication, “provides the remedy for the right created by [§] 2515” (quotation omitted)); see also State v. Tsavaris, 394 So. 2d 418, 422 (Fla. 1981) (explaining that the FSCA represents the Florida Legislature's decision that as a “matter of state public policy ... the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping” (quotation omitted)), receded from on other grounds by Dean v. State, 478 So. 2d 38, 40–41 (Fla. 1985); Feldman, 322 F.3d at 666 (concluding that California Penal Code section 632, which makes taping a confidential conversation a crime and limits the admissibility of illegally intercepted conversations, is substantive because it protects the privacy of California citizens from exposure of their confidential conversations to third parties); Glinksi, 2002 WL 113884, at *6 (holding “that the Illinois Eavesdropping Act provision barring evidence should be applied in a federal case in which state law provides the rule of decision because it is a substantive rule, not procedural”). Going further, if the Court applies federal law the recording is admissible because one party to the call recorded it. Florida law, however, requires that every party to the conversation consent before it can be lawfully recorded. Fla. Stat. § 934.03(2)(d) (“It is lawful under this section ... for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.”). As a result, failing to apply Florida law would lead to different outcomes in state and federal court and could lead to a party filing his civil claim in federal court in order to utilize evidence that would be inadmissible in Florida.[1] Thus, this Court will apply the FSCA to determine if the recording is admissible.

*5 “Florida's unlawful-recording act generally prohibits, among other things, the recording of ‘oral communication[s]’ without the consent of all participants to the conversation.” Woliner v. Summers, 796 F. App'x 649, 651 (11th Cir. 2019) (quoting Fla. Stat. § 934.03(1)(a)–(b)). “It also prohibits the use or disclosure of a recorded oral communication if the individual using or disclosing the recording knew or had reason to know that the recording was unlawful.” Id. (citing Fla. Stat. § 934.03(1)(c)–(d)).

At the outset, Defendants have the burden to demonstrate that the recording of the phone conversation constitutes an “oral communication” that is protected by the FSCA. Belle v. Sec'y, Dep't of Corr., No. 8:18-cv-629-KKM-SPF, 2021 WL 1214956, at *2 (M.D. Fla. Mar. 31, 2021) (reiterating that it is the movant's burden to establish that the facts fall within the provisions of the statutory exclusionary rule (quotation omitted)). “An ‘oral communication’ is ‘any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.’ ” Woliner, 796 F. App'x at 651 (quoting Fla. Stat. § 934.02(2)). “The Florida Supreme Court has interpreted this language to mean that a statement is an ‘oral communication’ only if the speaker had ‘a reasonable expectation of privacy,’ which includes ‘one's actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable.’ ” Id. (quoting McDonough v. Fernandez-Rundle, 862 F.3d 1314, 1320 (11th Cir. 2017)). “[W]hether a particular communication is protected under § 934.03(1)(a) is an intensely fact-specific inquiry.” Migut v. Flynn, 131 F. App'x 262, 267 (11th Cir. 2005).

In McDonough, the Eleventh Circuit found that the Florida Legislature's choice to use the verb “exhibit[ing]” was telling because “it required that the expectations of privacy needed to trigger application of the statute must be exhibited; in other words they must be ‘shown externally’ or ‘demonstrated.’ ” McDonough, 862 F.3d at 1319; see also State v. Smith, 641 So. 2d 849, 852 (Fla. 1994) (“[F]or an oral conversation to be protected under section 934.03 the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.”). Some of the factors that a court should consider in determining whether a reasonable expectation of privacy exists are:

Brevard Extraditions, Inc. v. Fleetmatics, USA, LLC, No. 8:12-CV-2079-T-17MAP, 2013 WL 5437117, at *3–4 (M.D. Fla. Sept. 27, 2013) (quoting Brugmann v. State, 117 So. 3d 39, 49 (Fla. 3d DCA 2013) (Rothenberg, J., dissenting)).

Here, it is undisputed that Albert did not intend to call Dave Edmondson, CST's employee, and that Albert did not consent to being recorded. (Doc. 316-1 at 2). Albert states that he continued to talk because he believed he was speaking with David Sheffler, the Katzkin employee he intended to call. (Id.). Albert made the phone call in the parking lot of an AT&T retail store. (Id.). Although he claims in his affidavit that he stepped outside to make the call because there were employees in the store, he is silent as to whether the parking lot was empty. (Id.).

*6 Although one Florida Court has held that it could not categorically say that “conversations occurring in public areas can never be made with an expectation of privacy,” Brandin v. State, 669 So. 2d 280, 281 (Fla. 1st DCA 1996), the majority of Florida Courts have held that conversations made in public are not protected by the FSCA. See, e.g., State v. Caraballo, 198 So. 3d 819, 822 (Fla. 2d DCA 2016) (denying a motion to suppress a conversation that occurred at a sales counter in an area open to the public, not in a private office, while the business was open to the public at the time the recording was made); Stevenson v. State, 667 So. 2d 410, 412 (Fla. 1st DCA 1996) (denying a motion to suppress a conversation intercepted by police because the circumstances surrounding the communication were highly suggestive of criminal activity and “the parties took no action to ensure privacy for their conversation—they met on a public street and did not attempt to enter the van to converse”); Cinci v. State, 642 So. 2d 572, 573 (Fla. 4th DCA 1994) (concluding that a taped conversation that occurred in the apartment building courtyard was not protected under section 934.02); Ruiz v. State, 416 So. 2d 32, 34 (Fla. 5th DCA 1982) (finding no reasonable expectation where the communication occurred in the parking lot of a shopping center); Chandler v. State, 366 So. 2d 64, 70 (Fla. 3d DCA 1978) (finding no reasonable expectation of privacy in open-air conversations held over walkie-talkies). Rather, the courts have found that “[c]onversations occurring inside an enclosed area or in a secluded area are more likely to be protected under section 934.02(2).” Abdo v. State, 144 So. 3d 594, 597 (Fla. 2d DCA 2014) (quotation omitted). In fact, “[a] party's claim to a subjective expectation of privacy in a conversation can be rejected when there is no evidence the party ‘made any effort or otherwise took precautions to keep the conversation private.” State v. Foster, No. 4D21-135, 2021 WL 3083648, at *2 (Fla. 4th DCA July 21, 2021) (quoting Stevenson, 667 So. 2d at 412).

Moreover, courts have been hesitant to find that society would accept that business conference calls even when made in an office are protected under the FSCA. See Cohen Bros., LLC v. ME Corp., S.A., 872 So. 2d 321, 324–25 (Fla. 3d DCA 2004) (holding that society would not recognize, as reasonable, an expectation of privacy in a conference call where the call is held to conduct business of the company). In Molodecki v. Robertson Display, Inc., a case alleging both federal and state claims, Defendant moved to strike an affidavit that served to memorialize a recorded conversation because it violated section 934.03. No. 8:00-CV-2469-T-17F, 2002 WL 34421226, at *2 (M.D. Fla. Sept. 10, 2002). The district court applied Florida law and determined that the conversation recorded by the plaintiff between himself, his boss, and some of the defendant's other employees at the business office did not violate Florida law because there was no reasonable expectation of privacy as to the conversation that took place between the four men at their place of employment. Id.

While the facts in this case suggest that Albert did not want a CST employee privy to his conversation, his actions refute his contention that the business phone call purposefully made, albeit to the wrong number, was in fact a private one. As in Stevenson, if Albert truly meant for his phone call to be private, he could have made the call from inside his car or waited until he returned home. Thus, the Court finds that society would not recognize Albert's subjective expectation of privacy as reasonable.

In the alternative, Defendants ask this Court to exercise its discretion to exclude the intercepted phone call and recording because the FSCA prohibits the continued use or disclosure of an unlawfully recorded phone call. (Doc. 396 at 17–18). Defendants rely on cases holding that district courts have the discretion to exclude deceptively obtained evidence. See Park v. El Paso Bd. of Realtors, 764 F.2d 1053, 1066 (5th Cir. 1985) (citing Cataphote Corp. v. Hudson, 422 F.2d 1290 (5th Cir. 1970); Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971)). The Court declines to do so. The record establishes that Albert hastily and mistakenly called a CST employee and made comments that he continuously denied until confronted with the recording in his deposition.

Finally, the Court finds that Plaintiffs were allowed to withhold the recording until they used it to impeach Albert during his deposition. “[I]t is federal law, and not state law, that controls discovery in diversity actions when a federal Rule is on point, provided that it does not violate the Rules Enabling Act or the U.S. Constitution.” Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004) (citing Hanna, 380 U.S. at 471). Rule 26(a)(3) exempts “parties from disclosing evidence they may present at trial solely for impeachment purposes, and therefore governs even if inconsistent with Florida law.” Id.; see also Cooley v. Great S. Wood Preserving, 138 F. App'x. 149, 161 (11th Cir. 2005) (“[O]nly evidence used solely for impeachment is exempt from the Federal Rules’ disclosure requirement.” (quotation omitted)). Accordingly, while the Court finds that the recording is not unlawful under the FSCA, because Plaintiffs withheld the recording based on their assertion that they intended to use it for impeachment purposes they are limited to the same at trial.

F. Valencia and Soto's statements

*7 Finally, Defendants argue that Daniel Valencia and Naomi Soto should be excluded from testifying because Plaintiffs or their counsel made the two witnesses an express written proposal that they would dismiss them from this action in exchange for testimony in Plaintiffs’ favor. (Doc. 396 at 20). Defendants’ argument is also relevant to their objection (Doc. 428) to Magistrate Judge Kelly's Order (Doc. 423) denying Albert's Second Motion to Disqualify (Doc. 373). Defendants argue that Florida ethical rules, incorporated into this Court's Local Rules, prohibit offering any inducement to a fact witness to give favorable testimony. (Doc. 396 at 21). Plaintiffs respond that Valencia and Soto's affidavits were ethically and properly obtained, and neither were offered any payment or inducement to testify favorably for Plaintiffs. (Doc. 410 at 19). Plaintiffs insist that there is no evidence supporting any form of monetary payment or exchange either independently or in the form of a settlement. (Id. at 20). Rather, Defendants merely argue that dismissal of the litigation against Valencia induced Valencia and Soto to perjure themselves. (Id.).

Defendants offer zero evidence that Plaintiffs’ counsel improperly induced Valencia and Soto to perjure themselves. Rather they speculate that Plaintiffs must have done so based on the e-mail sent to Albert, Valencia's changed testimony, and the fact that Valencia was dismissed from the action. (Doc. 428 at 7–8, 10). These inferences are too tenuous to exclude two relevant witnesses particularly when Defendants can discredit Valencia and Soto with their prior inconsistent testimony. Thus, Defendants’ Motion is denied.

Likewise, Albert's objection to Magistrate Judge Kelly's Order denying Albert's Second Motion to Disqualify is overruled. Rule Regulating the Florida Bar 4-3.4(b) provides:

Such prohibition disallows payment for truthful testimony. Ward v. Nierlich, No. 99-14227-CIV, 2006 WL 5412626, at *3 (S.D. Fla. Sept. 18, 2006); see also Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass'n, 865 F. Supp. 1516, 1525 (S.D. Fla. 1994) (“The payment of a sum of money to a witness to ‘tell the truth’ is as clearly subversive of the proper administration of justice as to pay him to testify as to what is not true.” (emphasis and quotation omitted)). “[W]hether the money is paid incident to a settlement agreement, or simply to assure witness cooperation, the effect is the same: the witness has an incentive to testify favorably for the party paying him.” Ward, 2006 WL 5412626, at *4.

The following e-mail was sent to Albert's counsel:

(Doc. 423 at 3). In his objection, Albert insists Plaintiffs’ offer of dismissal is tantamount to an improper inducement.

Plaintiffs respond that the e-mail sought to avoid further discovery motions and open the door to discuss resolving the causes of action against Albert based on Albert's false statements in discovery and at his deposition uncovered by Albert's recorded phone call and the retrieved ESI records. (Doc. 438 at 2). Plaintiffs emphasize that rather than correct the false testimony or resolve the litigation, Albert and his counsel have attempted to exclude the impeachment evidence and disqualify Plaintiffs’ counsel. (Id. (citing Doc. Nos. 316, 373, 396)). Magistrate Judge Kelly, who has handled the discovery issues in this case, agreed with Plaintiffs’ characterization of the e-mail and concluded that Albert failed to demonstrate that the e-mail represents an attempt to “buy” favorable testimony from Albert in violation of Rule 4-3.4(b). (Doc. 423 at 6, 9). The e-mail plainly sounds more in settlement negotiations than an inducement to testify. The e-mail offered to settle the issues in lieu of pursuing sanctions for what Plaintiffs construed to be discovery violations. Albert was free to reject the offer and maintain his position, which he did. Based on the specific facts of this case, Magistrate Judge Kelly's Order is not clearly erroneous or contrary to the law and Albert's objection is overruled.

IV. CONCLUSION

*8 For the reasons set forth herein, it is ORDERED and ADJUDGED as follows:

DONE AND ORDERED in Orlando, Florida on August 19, 2021.