The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Harbour Island developer is accusing the project’s opponents of embarking on a desperate “last-ditch fishing expedition” to obtain evidence from his former development manager.

Michael Wiener, principal of 4M Harbour Island Ltd, is alleging that Bernard Ross, who has a history of convictions and run-ins with US law enforcement, has “improperly retained” the project’s confidential and proprietary information despite being terminated from his involvement in the project in June 2019.

And he is claiming that Mr Ross, with whom he is embroiled in a $1m battle in the California courts, has now “leaked” this information to Br-Island Responsible Development Association (BIRD), the group that is seeking to obtain information from the former project manager for use in its legal battles with the 4M principal in The Bahamas.

However, Mr Wiener, who is opposing BIRD’s efforts to obtain evidence from Mr Ross, is alleging in legal filings with the south Florida district court that his former project manager will be of little to no value to BIRD.

This, he argues, is because the Judicial Review case for which Mr Ross’s testimony is being sought already began before The Bahamas’ Supreme Court on Monday.

Suggesting that BIRD’s bid is irrelevant because it is out of time, Mr Wiener and 4M also allege that the former project manager had no involvement in obtaining the building permit issued by the Harbour Island District Council that is at the centre of their opponents’ latest Judicial Review action.

However, BIRD has countered by pledging to use whatever Mr Ross provides to trigger new Judicial Review actions and other legal challenges to the Briland Residences and Marina project, thereby threatening Mr Wiener and his development with endless court battles.

Blasting BIRD’s application to take discovery from his former project manager as “a textbook example of misuse” of US law, Mr Wiener alleged: “The application is nothing more than a last-ditch fishing expedition that fails to satisfy the statutory and discretionary factors that courts consider....

“Ross has threatened to release 4M information, data and/or property which Ross has improperly retained, to BIRD. 4M reminded Ross of his obligations to return 4M’s property, data and information, and not to disseminate the same nor communicate with third parties in relation to certain topics covered by Ross’s agreement with 4M.

“Notwithstanding that admonition, 4M believes that Ross has leaked 4M’s information, data, and/or property to BIRD and others.” The developer added that ten months had passed between Mr Ross’s termination from the project and the issuance of the building permit that BIRD is challenging this week in the Supreme Court, thereby making the former project manager’s evidence irrelevant.

Describing BIRD as “an organisation that opposes certain development in The Bahamas”, Mr Wiener and 4M added of their opponents: “BIRD has attempted to stop 4M’s Harbour Island project, notwithstanding the will of the local population and the approvals from the Bahamian government relating to the project.....

“Ross does not have any information relevant to the 2020 Judicial Review action. BIRD seeks information from Ross from a period well after Ross’s employment was terminated by 4M, and for which Ross would not have any first-hand information.

“Specifically, the permit at issue is dated April 21, 2020. Ross, however, was terminated by 4M on or about June 19, 2019 - a full 10 months before the permit was issued. Also, Ross was not even involved in the application related to the permit.

“Despite this clear timeline, BIRD claims to have ‘reason to believe that [Ross’s] testimony’ will be relevant. But BIRD’s speculative belief is not credible in the face of the chronology of events. Rather, BIRD’s discovery request is clearly ‘little more than a fishing expedition’.”

BIRD’s response appeared to back up the developer’s assertion, as it countered: “While it is true that the time has now passed for any deposition testimony from Mr Ross to be used in the pending proceeding, BIRD can and would use his testimony if it were to show malfeasance, corruption or other grounds in the permitting process, as grounds for initiating another legal challenge in The Bahamas.

“More specifically, BIRD would have the right to seek leave of the Supreme Court of The Bahamas to apply for judicial review of the lawfulness of the decisions and actions of the Harbour Island District Council, a public entity, related to the 4M marina project based on any impropriety disclosed by Mr Ross’ deposition.”

No evidence of “impropriety” in the permitting process for Briland Residences and Marina has been produced to-date. All parties - Mr Wiener and BIRD, whose members are said to be drawn from Harbour Island residents - previously agreed that the site plan approval initially granted to 4M should be quashed, having been wrongly granted by the Government’s Town Planning Committee instead of the Harbour Island District Council.

The BIRD move, and second Judicial Review action, merely represent the latest legal headache for Mr Wiener, a California-based lawyer, in his efforts to progress his multi-million dollar investment. For, as reported by this newspaper, he is also embroiled in a legal battle with Mr Ross in the central California courts over his former project manager’s claim that he breached their settlement agreement.

The pair agreed a $2.3m deal, with Mr Wiener paying Mr Ross and his wife, Holly, the first $1.319m installment, after their differences over the Harbour Island development’s management became impossible to reconcile.

However, the 4M principal halted payment of the remaining $1m on the basis that his former project manager had created more issues and damages than first realised. Mr Ross thus headed to the central California court in a bid to force Mr Wiener to honour the settlement and pay the balance.