Bad Idea Major Nelson — Neil Shniderman Wanted to Keep Jeannie In Her Bottle

I don’t know Fort Lauderdale attorney Neil Shniderman and I have never had a case with him.

After reading this recent opinion from the 4th DCA, I can safely say Mr. Shniderman did not grow up watching any sit-com TV.

According to the opinion, the guy was not truthful about whether he had a critical signed guaranty in his office safe, and more or less misrepresented to the Court and opposing counsel by implying the existence of the document, when he knew the whole time the signed guaranty never existed.Even worse, he was hung by his own emails and communications with his clients, which established that he was aware the document never existed and that he was “mulling” over when and how to break this information to the other side, hoping to keep Jeannie in the bottle for as long as possible. You know it’s bad when even your own client thinks you may have been too evasive in answering discovery.I am going to post a substantial chunk of this opinion because it is a pretty amazing object lesson in how not to handle a bad fact in your case:

The request to produce generated a series of emails betweenShniderman and his clients. Shniderman’s “inclination” was to object tothe document request. The clients expressed concern about having thejudge “think we are being evasive.” In an August 26 e-mail, Shnidermancounseled his clients:

Where I am mulling is how to “break the news” to Silber.

There are several approaches and I need to flesh them outfor myself and then see what you . . . think . . . this is a

critical time . . . I want to keep the Genie in the bottle.

Augustine understood that the “genie in the bottle” and the “news” hislawyer referred to was the fact that Fitness did not possess an executednon-recourse guaranty as had been alleged in the verified complaint.Consistent with his inclination, Shniderman filed an objection to therequest to produce, arguing that it was irrelevant and immaterial in lightof the trial court’s ruling on liability. As a second ground, the objectionstated:Victor Grillo, Jr. and Stacey Grillo previously acknowledgedthat they executed the document in question, and they canobtain a co p y from their former counsel. Thus, thedocument being sought is equally available to theDefendants as [it is] to the Plaintiffs. The request is reallynothing more than an effort to harass the Plaintiff.Shniderman admitted that when he raised that objection, he knew thathis clients were unable to produce an executed copy of Exhibit C. Hetestified:Q. And you, you were not going to advise the parties thatyou could not produce that document?A. Right. I was going to let the matter – – I was going toobject and let matters come to a head in front of the courtand the court could make whatever decision it wanted tomake.E-mails from September 2004 between Shniderman and his clientsdiscussed various ways of handling the absence of the signed guaranty.It was the clients who suggested that they should be “up front” with thecourt, but Shniderman resisted full disclosure. At the hearing on themotion to compel, Shniderman said nothing about the true state ofaffairs and the circuit court overruled Fitness’ objections to the requestto produce and ordered it to produce the executed copy of Exhibit Cwithin 30 days.After the order to produce, Shniderman and his clients decided to saythat the signed guaranty had once existed, but that “it now appears to bemissing.” Thus, in his notice of compliance filed in November 2004,Shniderman wrote that Fitness previously possessed, but misplaced, thenon-recourse guaranty, so that it could not now produce a copy. Hefurther stated that Fitness “personnel know that the Guaranty actuallywas executed, have searched and continue to search for another copy ofthe executed document,” and that “[a]lthough FIT does not appear tohave retained a copy of the Guaranty, it has reason to believe that theexecuted document is presently in the hands of person(s) and/or entitiesnot within the control of the plaintiff, including the defendants.” DavidAugustine approved this statement before Shniderman filed it.In early December 2004, Augustine told Shniderman that theunexecuted Exhibit C was not the final form of the guaranty that hadbeen prepared. Shniderman discussed this subject in an e-mail to hisclients:Recently, David [Augustine] told me the last version of thenon-recourse guaranty provides for two a n d not threesignatures, which is the version attached to the complaint,so we have an additional issue to resolve and David will haveto deal with that in his deposition. One of you will have toidentify the actual last version of the document so we cancompare it to the exhibit. Amending the complaint wouldcorrect the problem but that would be a big issue as it wouldpermit them to amend but more to the point, procedurally,the Grillo defendants are “out” with stricken pleadings.When confronted with this e-mail at the sanctions hearing, Shnidermanadmitted that at the time he composed it, he knew that the verifiedcomplaint contained false allegations and that his notice of compliancecontained false information. Shniderman did not advise the court of thisfact or seek to amend the complaint “because [he] was not sure exactlywhat [he] needed to do,” and because he did not want to see the motionto strike “unravel,” i.e., allow the defendants be relieved of the defaultjudgment.Before his deposition by Grillo, Jr.’s counsel, Augustine askedShniderman in an email: “What are we telling him as a result of this?That we’re not producing a n y docs at the depo?” Shnidermanresponded:We close it by saying we will not produce and that we will filea motion for protective order. The burden is on us at thispoint to move for protective order arguing we need notproduce in any event based on Wessel’s order and lack ofrelevancy AND out of time. [capitalization in original]Augustine responded:I hate the idea of us seeming to trying to “hide” somethingagain – we lost on 10/20 on this same issue – do we want togo before J. Fine, for the VERY FIRST TIME, with a motionfor Protective Order to avoid producing docs? [capitalizationin original]

In February 2005, Shniderman withdrew as counsel for Fitness.

Oy. BTW, Mr. Shniderman appears to be an adjunct Professor at Nova Law School.

The DBR has more on this opinion here.