Perhaps you recall that on Thursday, October 12, the plaintiffs and defendants Charlie and Frank Ferrara and Sang “Friend N A Pirate” Lee appeared before Magistrate Judge Rozella Oliver to discuss the plaintiffs’ motion that these defendants be sanctioned for destroying a bunch of obviously incriminating text messages.
Today Oliver issued a Report and Recommendation on Motion for Sanctions. The document is well worth reading, as it summarizes the entire background of discovery disputes between the plaintiffs and these three defendants in a comprehensive, comprehensible style.
This paper is in the form of a recommendation to Judge Otero rather than an order. I don’t know for sure why this is, but I’m guessing it’s because this matter is beyond the traditional powers of Magistrates and Oliver is allowed to deal with it because Otero specifically granted her the authority to do so. His having done so, I’m guessing, makes it pretty likely that he’ll accept her recommendations, especially given their prudent, moderate nature.
In particular, she says that there’s no evidence showing that Sang Lee spoiled evidence on purpose when he had a duty to preserve it. She does recommend that the plaintiffs be allowed to depose Lee again to explore the issue of evidence. To emphasize that she’s not punishing him she recommends that he and the plaintiffs split the cost of his depo. The Ferraras, that is, Charlie and Frank, come off quite a bit worse, and you can turn the page to learn their fate and read a teensy bit of the document itself.
Oliver also finds the Ferrara defendants1 to have destroyed evidence when they were under a duty to preserve it, or at least to have failed to preserve it. In particular, she finds Frank Ferrara to have been under suchy a duty since April 2016 when he gave an interview to the Daily Breeze about the case. His lawyers had argued that he didn’t know about the case until he hired a lawyer. The plaintiffs argued that this interview proved that he did and he should have known better than to delete text messages after that point. Rozella Oliver sided with the defendants on this one.
She also found that Charlie Ferrara got rid of his cell phone after he had a duty to preserve evidence. However, she found that there wasn’t enough evidence to show that these Ferraras had done any of this purposely to destroy evidence, so she recommends against extreme sanctions, e.g. a jury instruction to the effect that it’s permissible to draw an adverse inference from the fact that the evidence is missing.
Instead she recommends monetary sanctions against these two Ferraras of an amount to be determined after further briefing. She also recommends that the plaintiffs be allowed to depose them further to try to find out what happened with the missing evidence. Because in this case she is punishing the defendants, she recommends that the price of the depositions and the lawyers’ fees arising therefrom be paid by the Ferraras. So take that, Bay Boy phone despoiliators!
And here’s the conclusion of Report and Recommendation on Motion for Sanctions:
For the reasons discussed above, IT IS RECOMMENDED that the District Court issue an Order approving and accepting this Report and Recommendation, and ordering that Plaintiffs’ Motion for Sanctions (Dkt. No. 425) be granted in part as follows:
(1) Plaintiffs be granted monetary sanctions against Defendants Charlie and
Frank Ferrara, in an amount to be determined at a later date by the Magistrate Judge
after further submissions by the parties;
(2) Plaintiffs be permitted to depose Defendants Charlie and Frank Ferrara regarding issues relevant to spoliation, with costs and fees incurred by Plaintiffs to be included in the award of monetary sanctions;
(3) Plaintiffs be permitted to depose Defendant Lee regarding issues relevant to alleged spoliation, costs to be shared by Plaintiffs and Defendant Lee; and
(4) At trial, the parties be permitted to present evidence and argument related to the unrecoverable text messages for Defendant Lee and the Ferrara Defendants and the unavailable cellular billing records for Charlie Ferrara.
Image of Rozella Oliver is ©2017 MichaelKohlhaas.Org and was based in puny-tive part on this little fellow right here.