Plaintiffs’ Lawyer Victor Otten Files Declaration And A Bunch Of Exhibits Documenting Absolute Failure Of Lunada Bay Boys Defendant Sang Lee To Cooperate With Discovery, Threatens Motion To Compel Absent Prompt Compliance

For background take a look at this excellent article from the Times on this lawsuit. Also see here to download all pleadings in this case.

Last Thursday the Honorable Rozella Oliver, magistrate judge in the Lunada Bay Boys zillionaire surf thuggery case, ordered various defendants to quit taking the piss and get cracking with their discovery obligations. In particular, the order filed stated with respect to defendant Sang Lee that:

The parties are also directed to file any meet and confer letters regarding the dispute and the privilege log served by Defendant Lee at least 24 hours before the next telephonic hearing.

Well, yesterday evening plaintiffs’ lawyer Victor Otten fulfilled his part of that obligation by filing a declaration and a bunch of letters between his office and Sang Lee’s attorneys about discovery. This is pretty interesting stuff for a number of technical reasons, and there are links and descriptions after the break.

  • Declaration of Victor Otten — Not much here. Victor Otten certifies that the appended exhibits are what they purport to be.
  • December 20, 2016 letter from plaintiffs — To Sang Lee’s attorney regarding failure to comply with discovery obligations. Highlights:
    1. Evidently Sang Lee’s lawyers objected to the clarity of the phrase “surfers who regularly surf at Lunada Bay.” Does it mean surfers who regularly surf and they happen to be at Lunada Bay occasionally or does it mean surfers who surf at Lunada Bay on a regular basis? This kind of nonsense will make anyone fussy, so it’s no surprise to see the plaintiffs’ lawyer slightly losing her cool a little bit: “Taken in context, and with a basic understanding of grammar conventions, it is clear that these requests seek documents regarding surfers who surf at Lunada Bay on a regular basis, not merely surfers who surf anywhere on a regular basis.”
    2. Evidently Sang Lee’s lawyers provided discovery material as PDFs only. This is precisely the kind of blockheaded passive-aggressive obstructionist crapola that outlaw CPRA-defying business improvement districts love to indulge in. Of course, their day of judgment is coming, but wouldn’t it be nice to have a Federal Rule of Civil Procedure telling them this was a no-no?1 “The format of Mr. Lee’s production violates Fed. R. Civ. P. 34(b)(2)(E). Mr. Lee’s production was comprised of only PDFs despite the fact that it contained electronic records. Parties must produce documents in the format that the requesting party specifies.
  • January 24, 2017 letter from Victor Otten — Following up on discovery issues and mostly disputing matters having to do with a provided discovery log.
  • May 25, 2017 letter from Victor Otten — Following up on meet and confer, mostly about privilege log and disputed redactions. See the knives beginning to come out: “While originally, I believed that our meet and confer was conducted in good faith, my belief has been challenged by what appears to be efforts on the part of Mr. Lee to withhold relevant evidence. As Mr. Lee’s deposition is scheduled for May 31, 2017, this is extremely troubling and problematic.” Also, it seems that Sang Lee is claiming that he can withhold group texts between him, other defendants, and anyone not named in the case by claiming to be protecting the privacy of the unnamed parties. This seems extremely dubious. We’ll see.
  • May 26, 2017 letter from defendant’s attorney — Responding to previous item. Claims that a bunch of text messages can’t be produced because “Our forensic team was only able to determine whether a text message was sent or received from these individuals and could not recover the substance of the message itself because the texts were either too old and/or the data on the phone was outdated.” It’s hard to say what this means, if anything, especially the bit about the data on the phone being outdated. Is there an expiry date?
  • July 4, 2017 letter from Victor Otten to Sang Lee’s lawyers — Mostly restating the evidently still-unsettled disputes, now in the context of the then-unfiled motion for summary judgment: “As you have stated an intention to file a motion for summary judgement, this will be our last attempt to resolve this matter informally. Moreover, should you file a motion for summary judgement without providing adequate discovery responses, that will be a basis to oppose the motion.” As far as I can see, although I certainly might have missed something, Sang Lee has not yet moved for summary judgment, although the City of PVE and Jeff Kepley have so moved.
  • Sang Lee’s privilege log — This is formally interesting, but there’s not much information to be gleaned. Of course, that’s almost certainly intentional on the part of Sang Lee’s attorneys, and the uninformativeness is part of the ongoing discovery dispute.

The image at the top of this post is a mashup of this picture of Victor Otten and this picture of some palm trees. It is ©2017 MichaelKohlhaas.Org.

  1. Of course there’s an actual section of CPRA, §6253.9(a)(1), telling them that this is a no-no, and it’s true that they routinely ignore that, but still, freaking Federal Rules sound a lot more intimidating.

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