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Everglades Foundation seeks criminal contempt finding against its former top scientist after settlement deal implodes

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everglades foundation
The Everglades. Photo: The National Park Service

By Dan Christensen, FloridaBulldog.org

UPDATE: Jan. 9 – A Miami-Dade judge announced late Friday that he will hear The Everglades Foundation’s arguments for why Thomas Van Lent, its former leading scientist, should be held in criminal contempt. The hearing, to begin at 10 a.m. was scheduled to last 7 hours.

Dec. 8 – The Everglades Foundation is once again going after its former top scientist and has asked a Miami-Dade judge to hold him in criminal contempt of court – a finding that could hit Thomas Van Lent in the wallet and put him behind bars for up to a year.

The fight between the foundation and Van Lent began quietly in early April when the foundation sued its longtime director of science and policy, alleging that in the weeks before he quit at the end of February, he mounted a “secret campaign of theft and destruction of sensitive Foundation materials in preparation for his departure,” according to the complaint.

The case became super-charged politically with Van Lent’s counter claims that he resigned because the nonprofit Everglades Foundation had “lost its way” and shown “fealty” to Gov. Ron DeSantis and his fellow Republicans.

The complaint was filed under seal and kept secret for five months until Florida Bulldog and the Republican-oriented, for-profit Tallahassee website The Capitolist intervened in late July and moved to open all judicial records in the case. Miami-Dade Circuit Judge Carlos Lopez granted the motion on Aug. 1.  The foundation and Van Lent settled on Aug. 31. The settlement agreement was kept secret, but other court papers stated that Van Lent had agreed to accept a permanent injunction barring him from disclosing any of the foundation’s “confidential information” to anyone.

The deal didn’t last long. On Sept. 27, the foundation went back to court, filing an “Emergency Motion For Order to Show Cause And To Enforce Settlement Agreement.”

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Thomas Van Lent

In a nutshell, the foundation alleged Van Lent, a hydrologist, had “willfully” violated the injunction and the terms of the settlement agreement. He did so, the motion says, by failing to hand over all his computers, data storage devices and the credentials to all his email and cloud storage accounts, and deleting 700,000 files and folders, “many of which’s file names indicate they belong to the Foundation.” Van Lent likely stashed the foundation’s documents in his cloud-based accounts “which he hid and did not disclose,” the motion written by Miami attorney Harley Tropin says.

Van Lent’s Tallahassee lawyer, Michael Rayboun, did not respond to phone and email messages seeking comment.

VAN LENT LAPTOP, HARD DRIVE EXAMINED

After the settlement, Van Lent turned over his MacBook Pro laptop and a portable hard drive for examination to Pete Smith, a California-based computer forensics expert hired by the foundation.

As a result of Smith’s findings, the foundation’s motion contends it now has “incontrovertible evidence” that Van Lent “systematically encrypted and hid documents he stole from the Foundation before covering his tracks by deleting hundreds of thousands of files off his devices.”

“The analysis shows Van Lent perjured himself in his deposition and in signing the settlement agreement by representing and warranting that he had returned the material he stole from the Foundation,” the motion says. “For example … Van Lent deleted folders and files relating to the Foundation on his laptop instead of returning them, while downloading and then deleting multiple software programs designed to encrypt, hide and store files in the cloud. Worse, the Foundation still lacks access to all Van Lent’s accounts or devices where its stolen data may be housed or accessible to third parties.”

Attorney Harley Tropin

The analysis also showed that he failed to turn over for examination “at least five additional devices, including a computer, an iPad, another MacBook and two iPhones,” the motion says.

The Foundation filed a copy of Van Lent’s deposition, but sealed it. Elsewhere, it says he was asked whether he had materials relating to the foundation’s “strategic plans” and board of directors. What kind of confidential material might be related to its board, whose members include celebrities Jimmy Buffett and Jack Nicklaus, was not disclosed.

SETTLEMENT AGREEMENT

The settlement agreement was also attached and made public. It sweepingly defined the foundation’s “confidential information” that Van Lent was obliged to turn over as “any and all information or knowledge concerning strategies, plans, business activities, finances, methods of operation, donors, prospective donors, board members, accounts, services, employees, technical know-how, training, research, formulas, processes, developments, discoveries, costs, and data.”

The settlement also called for the Everglades Foundation to pay Van Lent $15,384 in exchange for his release of all claims against it. A mutual non-disparagement clause was included. The foundation now claims it owes Van Lent nothing because of his breach of the settlement agreement.

In addition to asking the court to order Van Lent to show cause why he should not be held in criminal contempt for willfully violating the court’s injunction, the foundation also asked that Van Lent be found in civil contempt for violating the court-approved settlement. Likewise, the foundation asked Lopez to prohibit Van Lent from further copying or altering any of his computer files and award the foundation its attorneys’ fees and costs.

On Oct. 6, after a hearing the week before, Judge Lopez issued an order relating solely to the civil contempt matter. He said he would enter a separate order regarding the criminal contempt allegation against Van Lent, but has yet to do so.

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Miami-Dade Circuit Judge Carlos Lopez

Lopez made no specific finding that Van Lent was guilty of civil contempt, but he did say he “agrees with the Foundation that Van Lent must be compelled to comply with the terms of the settlement agreement.”

Lopez went on to “admonish” Van Lent to “cease deleting, altering, modifying, copying or transferring any materials or data on any physical device, cloud storage account or electronic email account in his possession, custody or control.” He also gave the scientist 24 hours to disclose, in writing, all of his devices and cloud storage or email accounts and deliver them to Pete Smith, the forensic examiner.

Lopez also said Van Lent must pay the foundation’s legal fees, which are yet to be determined.

If Lopez decides Van Lent committed criminal contempt, he has the power to impose sanctions including a fine, probation or jail time.

In a related matter, Lopez will hear arguments today regarding a pro se motion filed last summer by controversial paralegal and open records advocate Michael Barfield, seeking sanctions and litigation costs against the foundation and some of its lawyers for allegedly failing to follow the law when the original lawsuit was filed last April. Barfield, who lives in Sarasota, is a convicted felon and past president of the ACLU of Florida.

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