Gilbane Building Company v. School Board of Broward County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-62238-SINGHAL/STRAUSS

GILBANE BUILDING COMPANY,

Plaintiff,

v.

SCHOOL BOARD OF BROWARD COUNTY,

Defendant.

/

ORDER

THIS MATTER came before the Court upon Plaintiff’s Motion to Order Disclosure of

Witness Statements Under Chapter 905 (“Motion”) [DE 40]. I have reviewed the Motion, the

briefing thereon [DE 49, 56, 58], and all other pertinent portions of the record. For the reasons

discussed herein, it is ORDERED and ADJUDGED that the Motion [DE 40] is DENIED

without prejudice.

“In response to the mass shooting at Marjory Stoneman Douglas High School, the

Governor [of Florida] petitioned the Florida Supreme Court to impanel a statewide grand jury.”

State v. Runcie, 395 So. 3d 1070, 1071 (Fla. 4th DCA 2024). On February 25, 2019, the Florida

Supreme Court entered an Order Directing Impanelment of a Statewide Grand Jury. Consequently,

the Twentieth Statewide Grand Jury was impaneled. After completing its inquiry, the grand jury

issued its Final Report (“Report” or “Rep.”) [DE 40-1]. The Report notes that the grand jury

examined more than 150 witnesses. Rep. at 2. The Motion requests that the Court “order the

production of certain witness statements that support the [] Report.” [DE 40] at 1. Specifically,

the Motion seeks all of the testimony of four individuals, as well as certain other testimony

regarding particular topics. See id. at 4-5.

“Statewide grand jury proceedings are governed by the Statewide Grand Jury Act,” which

is found in sections 905.31-905.40 of the Florida Statutes. In re Final Rep. of the 20th Statewide

Grand Jury, 343 So. 3d 584, 592 (Fla. 4th DCA 2022); see also § 905.31, Fla. Stat. However,

“[t]he powers and duties of, and law applicable to, county grand juries,” which are addressed in

the sections of Chapter 905 that precede the Statewide Grand Jury Act, “shall apply to a statewide

grand jury except when such powers, duties, and law are inconsistent with the provisions of” the

Statewide Grand Jury Act. § 905.34, Fla. Stat.; see also Final Rep. of the 20th Statewide Grand

Jury, 343 So. 3d at 592 (“Although the Statewide Grand Jury Act generally incorporates the laws

applicable to county grand juries, the Act expressly excepts any such laws that ‘are inconsistent

with the provisions of the Act.’” (citing § 905.34) (alteration adopted)).

“There is a tradition in the United States, a tradition that is ‘older than our Nation itself,’

that proceedings before a grand jury shall generally remain secret.” CA Fla. Holdings, LLC v.

Aronberg, 360 So. 3d 1149, 1153 (Fla. 4th DCA 2023) (quoting In re Petition of Craig, 131 F.3d

99, 101 (2d Cir. 1997)); see also State v. Pratt, 169 So. 3d 252 (Fla. 4th DCA 2015) (“Grand jury

testimony ordinarily is kept secret.” (citing § 905.24, Fla. Stat.)). In fact, “[u]nless pursuant to

court order” the Statewide Grand Jury Act makes it a crime for “any person” to disclose “any of

the proceedings or identity of persons referred to or being investigated by the statewide grand

jury.” § 905.395, Fla. Stat.1 Likewise, section 905.27 of the Florida Statutes (which applies to

1 The full text of section 905.395 is as follows:

Unlawful acts related to disclosure of proceedings; penalty.—Unless pursuant

to court order, it is unlawful for any person knowingly to publish, broadcast,

disclose, divulge, or communicate to any other person, or knowingly to cause or

testimony before county grand juries) makes it a crime to disclose grand jury witness testimony

except when required by a court to do so for certain purposes. See § 905.27(1), (2), (4).

Specifically, the statute provides, in pertinent part, the following:

Testimony not to be disclosed; exceptions.—

(1) Persons present or appearing during a grand jury proceeding,

including a grand juror, a state attorney, an assistant state attorney, a reporter, a

stenographer, or an interpreter, as well as the custodian of a grand jury record, may

not disclose the testimony of a witness examined before the grand jury or other

evidence received by it except when required by a court to disclose the testimony

for the purpose of:

(a) Ascertaining whether it is consistent with the testimony given by the

witness before the court;

(b) Determining whether the witness is guilty of perjury; or

(c) Furthering justice, which can encompass furthering a public interest

when the disclosure is requested pursuant to paragraph (2)(c).

(2) It is unlawful for any person knowingly to publish, broadcast, disclose,

divulge, or communicate to any other person, or knowingly to cause or permit to

be published, broadcast, disclosed, divulged, or communicated to any other person,

in any manner whatsoever, any testimony of a witness examined before the grand

jury, or the content, gist, or import thereof, except when such testimony is or has

been disclosed in any of the following circumstances:

. . .

(b) When a court orders the disclosure of such testimony pursuant to

subsection (1) for use in a civil case, it may be disclosed to all parties to the case

and to their attorneys and by the latter to their legal associates and employees.

However, the grand jury testimony afforded such persons by the court can only be

used in the defense or prosecution of the civil case and for no other purpose.

§ 905.27, Fla. Stat.

Here, Plaintiff contends in the Motion that this Court should require the disclosure of the

grand jury witness testimony it seeks for the purpose of “furthering justice” under § 905.27(1)(c).

In its response, Defendant contends that § 905.27 does not apply here because it is inconsistent

permit to be published, broadcast, disclosed, divulged, or communicated to any

other person outside the statewide grand jury room, any of the proceedings or

identity of persons referred to or being investigated by the statewide grand jury.

Any person who violates the provisions of this subsection is guilty of a felony of

the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

with § 905.395, the disclosure provision in the Statewide Grand Jury Act. It is true, as Defendant

notes, that the court in Final Report of the 20th Statewide Grand Jury found that § 905.27 and §

905.395 “are inconsistent regarding the permissible disclosure of grand jury proceedings in a

report or presentment,” and therefore, held that § 905.27 “is not applicable in statewide grand jury

proceedings.” 343 So. 3d at 592. But the issue before this Court does not pertain to the disclosure

of grand jury proceedings in a report or presentment. At the same time, the court’s holding in

Final Report of the 20th Statewide Grand Jury does purport to hold, without limitation, that §

905.27 would not apply here (where statewide grand jury proceedings are at issue).

At any rate, even if this Court were to assume that Defendant is correct that § 905.27 does

not apply here (and that only § 905.395 applies), that does not help Defendant. Section 905.27

only permits the disclosure of grand jury testimony “under three limited circumstances: (1) to

determine whether the grand jury testimony is consistent with the testimony given by the witness

before the court; (2) to determine whether the witness is guilty of perjury; or (3) in furtherance of

justice.” Gosciminski v. State, 132 So. 3d 678, 707 (Fla. 2013). Section 905.395, on the other

hand, does not restrict the circumstances under which a court may order the disclosure of grand

jury testimony. It does preclude disclosure “unless pursuant to court order,” but it does not indicate

that courts may only order disclosure under particular circumstances.

With that said, “there is no pretrial right to inspect grand jury testimony.” Brookings v.

State, 495 So. 2d 135, 137 (Fla. 1986) (citing Jent v. State, 408 So. 2d 1024 (Fla. 1981)). “In order

to obtain access to such testimony, ‘a proper predicate must be laid. Mere surmise or speculation

regarding possible inconsistencies in testimony is not a proper predicate.’” Gosciminski, 132 So.

3d at 707 (quoting Jent, 408 So. 2d at 1027). In fact, the Florida Supreme Court has echoed the

United States Supreme Court’s determination that given “the importance of maintaining the

secrecy of grand jury proceedings . . . a party seeking disclosure must make a strong showing of a

particularized need in order to outweigh the public interest in secrecy.” Brookings, 495 So. 2d at

138 (citing United States v. Sells Eng’g, Inc., 463 U.S. 418, 443 (1983)); see also Gosciminski,

132 So. 3d at 707 (“[A] party must show a particularized need sufficient to justify the revelation

of the generally secret grand jury proceedings.” (quoting Keen v. State, 639 So. 2d 597, 600 (Fla.

1994)); Whittier v. City of Sunrise, No. 07-60476-CIV, 2007 WL 9706152, at *2 (S.D. Fla. Aug.

22, 2007). Similarly, the Eleventh Circuit has required parties seeking disclosure of federal grand

jury material to “show a compelling and particularized need for disclosure.” United States v.

Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004). To do so, the party seeking disclosure must

show “circumstances had created certain difficulties peculiar to this case, which could be alleviated

by access to specific grand jury materials, without doing disproportionate harm to the salutary

purpose of secrecy embodied in the grand jury process.” Id. at 1348-49 (citation omitted).

As a preliminary matter, before I address whether Plaintiff has established the requisite

particularized need, I will address an argument that Defendant makes that this Court lacks

jurisdiction to order the disclosure of the requested grand jury testimony. In making that argument,

Defendant solely relies on a single non-binding federal district court decision stating that

“disclosure is only allowed pursuant to an order by the state supervising court.” Mathes v. United

States, No. 88-166-CIV-FTM-17, 1992 WL 161050, at *4 (M.D. Fla. June 22, 1992). However,

aside from referencing § 905.27 (a provision that Defendant contends does not apply here), Mathes

points to no law to support its pronouncement that it must be the state supervising court that

permits disclosure. And neither § 905.27 nor § 905.395 states that only the state supervising court

has the authority to permit disclosure. Rather, § 905.27 refers to “a court,” not a singular court or

a state court or a supervising court (or even the court). See § 905.27(1), (2). Similarly, § 905.395

does not place any limitation upon this Court’s authority to authorize or require disclosure; §

905.395 simply states “[u]nless pursuant to court order,” without stating that such an order must

issue from any particular court. Thus, Defendant’s jurisdictional argument (which is not really an

argument that implicates this Court’s jurisdiction) fails.

Nonetheless, Plaintiff has failed to satisfy its burden of making “a strong showing of a

particularized need in order to outweigh the public interest in secrecy.” Brookings, 495 So. 2d at

138. Plaintiff contends that the witness statements it seeks will “further the interests of justice,

including by ascertaining the inconsistencies within the School Board’s allegations raised in its

Affirmative Defenses and Counterclaim.” [DE 40] at 2. In the Counterclaim, Defendant alleges

that it contracted Plaintiff to perform certain construction activities for Defendant but that Plaintiff

breached the contract between the parties by failing to timely complete its work and due to

Plaintiff’s inactivity. [DE 15] ¶¶ 8, 9, 22. According to Plaintiff, the witness statements it has

requested “go directly to exposing factual inconsistencies, [Plaintiff’s] ability to prove its claims

that the [Defendant] knowingly and actively interfered with the construction of the Project, and

correcting the false narrative that unfairly shifts blame onto [Plaintiff].” [DE 40] at 6. In other

words, Plaintiff contends that the witness statements will show that Defendant is to blame for

Plaintiff’s inability to timely complete its work. See id. at 9 (“Disclosure of the Witness Statements

would enable [Plaintiff] to substantiate its claims that the delays on the Project were a result of

[Defendant] and to address the inconsistencies in [Defendant’s] Counterclaims.”).

I can certainly understand why Plaintiff wants the requested witness statements and how

some of the testimony of those witnesses could potentially be helpful to Plaintiff. At least some

of the requested testimony also appears to be relevant, at least from a discovery standpoint.2 But

even if the Court were to assume that all of the requested testimony would otherwise be within the

scope of discovery, Plaintiff has not established a compelling or particularized need – at least at

this stage – to lift “the veil of secrecy from the grand jury.” Douglas Oil Co. of Cal. v. Petrol

Stops Nw., 441 U.S. 211, 219 (1979). At a minimum, Plaintiff needs to conduct other discovery,

including by taking the depositions of at least the four individuals identified in the Motion, before

this Court will consider requiring the disclosure of any of the grand jury testimony.3 Even then,

Plaintiff will need to do more to convince the Court that the deposition testimony of those

individuals (and the other discovery available to Plaintiff) is not enough and that the Court should

order disclosure of the grand jury testimony. Moreover, if Plaintiff does renew its request after

pursuing other discovery, its request must be more limited. For instance, it is unlikely that the

Court will require disclosure of all of the grand jury testimony of any particular individual. Take

Mr. Runcie (the former superintendent) for example. Even if Plaintiff can establish a particularized

need for some of his grand jury testimony, Plaintiff will not be able to establish a particularized

need for Mr. Runcie’s testimony on topics not directly relevant to this case. So, if Plaintiff renews

2 Defendant’s argument that none of the discovery sought is relevant (for discovery purposes) is

without merit. And Defendant’s evidentiary objections (e.g., arguments based on Fed. R. Evid.

403) are not proper discovery objections. See Fed. R. Civ. P. 26(b)(1) (“Information within this

scope of discovery need not be admissible in evidence to be discoverable.”).

3 Cf. Whittier, 2007 WL 9706152, at *3 (“Significantly, this is not a situation in which grand jury

secrecy effectively denies Plaintiff critical information. Like any other civil litigant, Plaintiff has

available to her the full panoply of discovery devices provided by the Federal Rules of Civil

Procedure. These Rules – and the liberal discovery they authorize – enable her to acquire all the

information that she will need to adequately prepare and prosecute her claims.”).

its request in the future (if appropriate), it must further limit its request and do more to establish a

particularized need.*

For the foregoing reasons, the Motion [DE 40] is DENIED without prejudice.

DONE AND ORDERED in Fort Lauderdale, Florida this 5th day of June 2025.

ared M. Strauss

United States Magistrate Judge

* Additionally, from a procedural standpoint, Plaintiff would likely need to serve a subpoena on

the custodian of the grand jury record (the Clerk of the Florida Supreme Court) and only seek

Court intervention after receiving objections to the subpoena. Also, Plaintiff should begin

pursuing necessary discovery without delay. If Plaintiff renews its request for disclosure after

pursuing other discovery, it will need to ensure that it tees the issue up for Court intervention

sufficiently in advance of the discovery deadline.