Tag Archives: Discovery

Lunada Bay Boys Magistrate Judge Rozella Oliver Recommends That Because Defendant Brant Blakeman Failed To Preserve Text Messages After He Became Aware Of The Lawsuit He Must Pay Attorneys’ Fees And Costs For Motion For Sanctions And Cover Costs Of Additional Deposition On Subject Of What Happened To The Damn Text Messages!

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. You can also read all my posts on the case.

At this point the Lunada Bay Boys discovery-related complaints, cross-complaints, bitching, cross-bitching, moaning, cross-moaning, and so on and on and on have gotten so tortuously complexicated that there’s essentially no way to summarize them any longer. However, I will remind you all that there was a hearing on December 6 before Magistrate Judge Rozella Oliver on spoliation of evidence by the City Defendants1 and most rapiest Bay Boy defendant Sr. Brant Blakeman.

At issue were some text messages that Blakeman failed to preserve. The texts were on a phone issued to him by the City of PVE, which is why they were involved. The plaintiffs asked Oliver to find that Blakeman and the City not only had a duty to preserve the texts but that they had been so adversely affected by their destruction that the court ought to make Blakeman and the City pay fines, pay fees, pay costs, their motions for summary judgment ought to be denied out of hand, and an instruction to the jury stating that they should draw an adverse implication from the destruction of the texts. Blakeman and the City argued that they didn’t do anything wrong at all because they had no duty to preserve anything. Just yesterday Magistrate Judge Oliver issued her report and recommendations on the issues raised during the hearing.

With respect to the City, Oliver found that while they did have a legal obligation to preserve evidence starting earlier than they claimed, no evidence was lost specifically due to the City’s inaction, so she declined to recommend any sanctions against the City. Blakeman, on the other hand, did a few bad things, according to the Magistrate Judge.

First of all, he did have a duty to preserve the text messages. Also he failed to take reasonable steps to preserve them. Finally, the text messages were lost because of his inaction, and this prejudices the plaintiffs’ case. However, Oliver declines to find that Blakeman did it on purpose,2 and so she declines to recommend the most harsh sanctions possible.

Basically, she’s recommending that Blakeman have to pay the plaintiffs’ attorneys for their costs and fees in bringing the motion for sanctions against him, and that he submit to an additional deposition that he pay for on the subject of what happened to the text messages. Additionally she recommends that the plaintiffs be allowed to present evidence to the jury about his failure to preserve and that if Judge Otero thinks it’s justified at trial, he consider allowing an instruction to the jury on what kind of inferences they can draw from Blakeman’s actions. Finally, she declined to recommend that Blakeman’s motion for summary judgment be dismissed a priori. Turn the page for transcribed selections.
Continue reading Lunada Bay Boys Magistrate Judge Rozella Oliver Recommends That Because Defendant Brant Blakeman Failed To Preserve Text Messages After He Became Aware Of The Lawsuit He Must Pay Attorneys’ Fees And Costs For Motion For Sanctions And Cover Costs Of Additional Deposition On Subject Of What Happened To The Damn Text Messages!

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Lunada Bay Boys Magistrate Judge Oliver Files Amended Recommendation For Sanctions Against Sang Lee And Some Ferraras, Plaintiffs Respond To Blakeman’s and City’s Oppositions To Their Motions For Sanctions In Preparation For Tomorrow’s Hearing Before Oliver

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. You can also read all my posts on the case.

You probably remember that a few weeks ago Magistrate Judge Rozella Oliver set a hearing for tomorrow, Wednesday, December 6, 2017 at 1:30 p.m. in her courtroom on the ninth floor of the Spring Street Federal Courthouse. The subject of the hearing is sanctions for Brant Blakeman and the City defendants for allegedly destroying or failing to preserve relevant evidence. They filed oppositions to the plaintiffs’ motions a few days ago, and yesterday the plaintiffs filed responses to these oppositions:

They’re both interesting, but there doesn’t seem to be a lot of new material there. They’re quite plainly spoken as to the failures of defendants to preserve evidence. There’s a transcription of the response to Blakeman’s reply after the break.

Also recall that in late October, Rozella Oliver filed a report making various recommendations for sanctions against Sang Lee and Charlie and Frank Ferrara for their failure to preserve evidence. Last week she filed an amended version of this report softening some of her recommendations.
Continue reading Lunada Bay Boys Magistrate Judge Oliver Files Amended Recommendation For Sanctions Against Sang Lee And Some Ferraras, Plaintiffs Respond To Blakeman’s and City’s Oppositions To Their Motions For Sanctions In Preparation For Tomorrow’s Hearing Before Oliver

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Lunada Bay Boys Case: Magistrate Judge The Honorable Rozella Oliver Recommends Sanction-Slaps For 67% Of The Ferrara Defendants, Additional Depositions Concerning Discovery Shenanigans Of Those Same Ferraras And Sang “Friend N A Pirate” Lee, Allowing Plaintiffs To Argue Inferences From Missing Evidence Before Jury!

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. You can also read all my posts on the case.

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.
Continue reading Lunada Bay Boys Case: Magistrate Judge The Honorable Rozella Oliver Recommends Sanction-Slaps For 67% Of The Ferrara Defendants, Additional Depositions Concerning Discovery Shenanigans Of Those Same Ferraras And Sang “Friend N A Pirate” Lee, Allowing Plaintiffs To Argue Inferences From Missing Evidence Before Jury!

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Lunada Bay Boys Case: Charlie And Frank Ferrara Withdraw Motion For Summary Judgment, City Of PVE Releases A Bunch Of Formerly Confidential Material Proving Among Other Things That Former Police Chief Jeff Kepley Wanted To Charge Bay Boys As A Gang, More Papayans Text Messages, Powerful Plaintiffs’ Opposition To City Defendants’ Motion

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. You can also read all my posts on the case.

There’s so much going on right now that I barely have time to list the recent paper filed in the Lunada Bay Boys case, but there’s a lot of interesting stuff here.

• First of all, recall that during last week’s hearing on sanctions against defendants Charlie Ferrara, Frank Ferrara, and Sang Lee, magistrate judge the honorable Rozella Oliver strongly hinted to the Ferraras’ attorney, Alison K. Hurley, that she really ought to consider withdrawing her clients’ motion for summary judgment. Well, I suppose that when judges hint, smart people listen, and, additionally, it seems that Alison K. Hurley does as well. Thus on Monday the Ferraras filed this notice of withdrawal of their previous motion.

• Next we have the Plaintiffs’ supplemental brief in opposition to City defendants’ motion for summary judgment. The overarching issue is that the City of PVE has been so remiss in its duties to release documents that they’ve made it impossible for the plaintiffs to respond effectively to this motion for summary judgment. This is worth reading, and there’s a partial transcription at the end of this post.

• Also, this item comes with a statement of supplemental facts and a bunch of exhibits. These contain tons of super-interesting, formerly confidential, documentary evidence. The point is to enumerate all the ways in which the City defendants failure to provide this new evidence, some of it obtained as recently as yesterday, hindered the plaintiffs’ response. The new evidence is fascinating. There’s a list of links and descriptions after the break.

• Finally, there’s a supplemental brief in opposition to the individual defendants’ motions for summary judgment, which plays a role parallel to the analogous document for the City defendants. This too is well worth your attention, and there’s a partial transcription after the break. This also comes with a statement of supplemental facts, also worth reading, with lots of new creepy Bay Boy texts and so on.
Continue reading Lunada Bay Boys Case: Charlie And Frank Ferrara Withdraw Motion For Summary Judgment, City Of PVE Releases A Bunch Of Formerly Confidential Material Proving Among Other Things That Former Police Chief Jeff Kepley Wanted To Charge Bay Boys As A Gang, More Papayans Text Messages, Powerful Plaintiffs’ Opposition To City Defendants’ Motion

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Lunada Bay Boys Magistrate Judge Rozella Oliver Rules That Mostly Plaintiffs Can File Supplemental Oppositions To Individual Defendants’ Motions For Summary Judgment But Not In The Case Of City Defendants For Some Damn Reason

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.

The discovery problems in this case are getting exceedingly hard to follow. At this point they seem to be divisible into two main categories. There are the motions for sanctions, which are set for a hearing next week. And then there is the plaintiffs’ motion for administrative relief, which is based on the various and sundry motions for summary judgment filed by the various and sundry defendants in combination with the fact that those various and same defendants have not been forthcoming with discovery materials. The argument is that without access to the discovery material the plaintiffs haven’t been able to adequately respond to the motions for summary judgment.
Continue reading Lunada Bay Boys Magistrate Judge Rozella Oliver Rules That Mostly Plaintiffs Can File Supplemental Oppositions To Individual Defendants’ Motions For Summary Judgment But Not In The Case Of City Defendants For Some Damn Reason

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Lunada Bay Boys News Roundup: More Discovery Matters, October 12 Hearing Set Before Rozella Oliver — Tiffany Bacon Withdraws As Attorney To Ferraras — Plaintiffs File Memorandum Supporting Discovery Request For Work-Related Texts From PVEPD Officers’ Personal Cell Phones

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.

The latest episode in the ongoing nightmare that is the discovery process in this case is summarized in this minute order setting the schedule for dealing with the plaintiffs’ motion for sanctions against Charlie and Frank Ferrara and Sang Lee. You can read a transcription after the break to get the details, but essentially everyone has to meet and confer and a strict briefing schedule is set. There is an in-person hearing scheduled for October 12 at 10 a.m. in Courtroom F on the ninth floor of the Spring Street Federal Courthouse.

And turn the page for the story on the other items mentioned in the headline!
Continue reading Lunada Bay Boys News Roundup: More Discovery Matters, October 12 Hearing Set Before Rozella Oliver — Tiffany Bacon Withdraws As Attorney To Ferraras — Plaintiffs File Memorandum Supporting Discovery Request For Work-Related Texts From PVEPD Officers’ Personal Cell Phones

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Lunada Bay Boys Judge Otero Kicks Plaintiffs’ Motions For Administrative Relief, Sanctions Against Charlie, Frank Ferrara, Sang Lee, Back To Magistrate Judge Oliver For Decision, Stays Decision On All Other Pending Motions, Continues Trial Date To December 12

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.

Earlier this month the Lunada Bay Boys plaintiffs filed a motion for administrative sanctions asking Judge Otero to deny all the various and sundry motions for summary judgment filed by the defendants. The argument was that the astonishing level of discovery-related obstructionism displayed by the defendants, which has already resulted in some sanctions and will probably result in many more, makes it impossible for the plaintiffs reply effectively to the flurry of motions. Additionally, the plaintiffs filed other motions for discovery-related sanctions against alleged Bay Boys Charlie and Frank Ferrara and Sang Lee with Magistrate Judge Rozella Oliver, who subsequently ruled that the authority to rule rested solely with Otero.

On Friday Judge Otero ruled that the motion for administrative relief could be handled without a hearing, and yesterday he issued an order granting Magistrate Judge Oliver the authority to rule on that motion and also on the motion for sanctions against Charlie and Frank Ferrara and Sang Lee. He also postponed decisions on all other pending motions until Oliver decides on these two. Finally, he also moved the trial date to December 12 at 9 a.m. You can read a transcription of the whole order after the break.
Continue reading Lunada Bay Boys Judge Otero Kicks Plaintiffs’ Motions For Administrative Relief, Sanctions Against Charlie, Frank Ferrara, Sang Lee, Back To Magistrate Judge Oliver For Decision, Stays Decision On All Other Pending Motions, Continues Trial Date To December 12

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Lunada Bay Boys Plaintiffs Reply To Opposition To Their Motion For Administrative Relief, Include Fascinating Transcript Of Yet Another Telephonic Hearing About Discovery Transgressions By Defendants

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.

A couple weeks ago the plaintiffs asked Judge Otero to deny all the various and sundry motions for summary judgment filed by all the various and sundry defendants in this tangled web of a lawsuit. The basis of this plaintiffs’ motion is their pretty darn plausible assertion that approximately none of the defendants are cooperating with their discovery obligations, making it impossible for the plaintiffs to reply effectively to the defense motions.

Of course, both the City defendants and the individual defendants filed the usual eleventy-jillion briefs in opposition. And yesterday the plaintiffs filed their reply to the opposition. This was written by Kurt Franklin, and is very much worth reading.1 There is a transcription after the break. The hearing on this motion is scheduled for September 5, 2017 in James Otero’s courtroom 10C in the First Street Federal Courthouse.

The reply came with the usual batch of exhibits, among which is this gem of a transcript of the July 25 hearing before the Magistrate Judge Rozella Oliver about Sang Lee’s discovery failures. If you’ve been following along, this was the hearing after which Oliver issued an order requiring Lee to hand everything over that very day. Another good read is this excerpt from the Steve Barber deposition in which he admits to being a Bay Boy buddy and also discusses at length the phone-carrying habits of the PVEPD.
Continue reading Lunada Bay Boys Plaintiffs Reply To Opposition To Their Motion For Administrative Relief, Include Fascinating Transcript Of Yet Another Telephonic Hearing About Discovery Transgressions By Defendants

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City of PVE And Jeff Kepley And The PVE Police Officers’ Association File Opposition To Motion Because They Don’t Want To Hand Over Text Messages From Cops’ Personal Phones — No One Seems To Be Discussing The Fact That The California Supreme Court Decided In March That Work Information On Personal Phones Is Public Record

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 week the plaintiffs in the Lunada Bay Boys case asked magistrate judge Rozella Oliver to sanction the City of PVE because they refused to hand over work-related text messages. Oliver subsequently denied this motion on technical grounds. At roughly the same time the plaintiffs filed a motion for administrative relief, essentially asking Judge Otero to deny the zillions of defense motions for summary judgment because of various discovery failures on the part of the defense.

And tonight the City of PVE and Jeff Kepley filed their opposition to that motion. The most important item is this memorandum of points and authorities which has, as these all seem to, a good discussion of the facts of the dispute.

The main issue seems to be, though, that the plaintiffs’ asked for material from the personal phones of PVE cops and the cop union intervened and said via their lawyer, Howard A. Liberman, that they weren’t going to hand it over because it would violate the officers’ privacy and also it would violate their contract with the City of PVE. The City also argues that they can’t hand it over since they don’t have control over it.

There are links to all the other goodies after the break, by the way, along with more of the usual uninformed speculation.
Continue reading City of PVE And Jeff Kepley And The PVE Police Officers’ Association File Opposition To Motion Because They Don’t Want To Hand Over Text Messages From Cops’ Personal Phones — No One Seems To Be Discussing The Fact That The California Supreme Court Decided In March That Work Information On Personal Phones Is Public Record

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Lunada Bay Boys Plaintiffs File Motion Asking For $32,000 In Sanctions Against Charlie And Frank Ferrara And Their Lawyers Due To Their “intransigence and disregard for standard discovery protocol and obligations” And Their “failure to abide by the Court’s July 13, 2017 order” — Take That, Bay Boys!

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.

Maybe you recall that on July 13, 2017, the plaintiffs in the Lunada Bay Boys case appeared before Magistrate Judge Rozella Oliver and complained that Charlie and Frank Ferrara weren’t complying with discovery obligations. This led to Oliver issuing a minute order directing that particular batch of Ferraras to “produce responsive documents from the cell phone imaging and responsive cell phone bills and records by 5 p.m. on Monday, July 17, 2017.”

Well, it appears, to no one’s surprise, that these Ferraras have not complied with this order. Thus, today, plaintiffs’ lawyers Samantha Wolff and Victor Otten filed a motion for monetary sanctions against both the Ferraras and their lawyers based on two allegations:

  1. Defendants Charlie and Frank Ferrara and their counsel willfully failed to preserve electronically stored information and failed to conduct their due diligence in responding to Plaintiffs’ discovery requests, resulting in the spoliation of critical evidence; and
  2. Defendants Charlie and Frank Ferrara and their counsel willfully failed to comply with this Court’s July 13, 2017 Order.


As usual, this motion comes along with a ton of interesting exhibits. Most of them in this case are meet-and-confer emails, progressively more exasperated on the part of the plaintiffs. There are links to everything after the break1 as well as some transcriptions. But first, here are links to what seem to me to be the most interesting items:
Continue reading Lunada Bay Boys Plaintiffs File Motion Asking For $32,000 In Sanctions Against Charlie And Frank Ferrara And Their Lawyers Due To Their “intransigence and disregard for standard discovery protocol and obligations” And Their “failure to abide by the Court’s July 13, 2017 order” — Take That, Bay Boys!

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