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 between
Shniderman and his clients. Shniderman’s “inclination” was to object to
the document request. The clients expressed concern about having the
judge “think we are being evasive.” In an August 26 e-mail, Shniderman
counseled his clients:

Where I am mulling is how to “break the news” to Silber.
There are several approaches and I need to flesh them out
for 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” his
lawyer referred to was the fact that Fitness did not possess an executed
non-recourse guaranty as had been alleged in the verified complaint.

Consistent with his inclination, Shniderman filed an objection to the
request to produce, arguing that it was irrelevant and immaterial in light
of the trial court’s ruling on liability. As a second ground, the objection
stated:

Victor Grillo, Jr. and Stacey Grillo previously acknowledged
that they executed the document in question, and they can
obtain a co p y from their former counsel. Thus, the
document being sought is equally available to the
Defendants as [it is] to the Plaintiffs. The request is really
nothing more than an effort to harass the Plaintiff.

Shniderman admitted that when he raised that objection, he knew that
his clients were unable to produce an executed copy of Exhibit C. He
testified:

Q. And you, you were not going to advise the parties that
you could not produce that document?

A. Right. I was going to let the matter - - I was going to
object and let matters come to a head in front of the court
and the court could make whatever decision it wanted to
make.

E-mails from September 2004 between Shniderman and his clients
discussed various ways of handling the absence of the signed guaranty.
It was the clients who suggested that they should be “up front” with the
court, but Shniderman resisted full disclosure. At the hearing on the
motion to compel, Shniderman said nothing about the true state of
affairs and the circuit court overruled Fitness’ objections to the request
to produce and ordered it to produce the executed copy of Exhibit C
within 30 days.

After the order to produce, Shniderman and his clients decided to say
that the signed guaranty had once existed, but that “it now appears to be
missing.” Thus, in his notice of compliance filed in November 2004,
Shniderman wrote that Fitness previously possessed, but misplaced, the
non-recourse guaranty, so that it could not now produce a copy. He
further stated that Fitness “personnel know that the Guaranty actually
was executed, have searched and continue to search for another copy of
the executed document,” and that “[a]lthough FIT does not appear to
have retained a copy of the Guaranty, it has reason to believe that the
executed document is presently in the hands of person(s) and/or entities
not within the control of the plaintiff, including the defendants.” David
Augustine approved this statement before Shniderman filed it.

In early December 2004, Augustine told Shniderman that the
unexecuted Exhibit C was not the final form of the guaranty that had
been prepared. Shniderman discussed this subject in an e-mail to his
clients:

Recently, David [Augustine] told me the last version of the
non-recourse guaranty provides for two a n d not three
signatures, which is the version attached to the complaint,
so we have an additional issue to resolve and David will have
to deal with that in his deposition. One of you will have to
identify the actual last version of the document so we can
compare it to the exhibit. Amending the complaint would
correct the problem but that would be a big issue as it would
permit 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, Shniderman
admitted that at the time he composed it, he knew that the verified
complaint contained false allegations and that his notice of compliance
contained false information. Shniderman did not advise the court of this
fact or seek to amend the complaint “because [he] was not sure exactly
what [he] needed to do,” and because he did not want to see the motion
to strike “unravel,” i.e., allow the defendants be relieved of the default
judgment.

Before his deposition by Grillo, Jr.’s counsel, Augustine asked
Shniderman 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?” Shniderman
responded:

We close it by saying we will not produce and that we will file
a motion for protective order. The burden is on us at this
point to move for protective order arguing we need not
produce in any event based on Wessel’s order and lack of
relevancy AND out of time. [capitalization in original]

Augustine responded:

I hate the idea of us seeming to trying to “hide” something
again – we lost on 10/20 on this same issue – do we want to
go before J. Fine, for the VERY FIRST TIME, with a motion
for Protective Order to avoid producing docs? [capitalization
in 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.