Well, when I decided to start collecting the pleadings in Spencer v. Lunada Bay Boys, I had no idea how much material it was going to involve. By the way, the full collection is available here on Archive.Org. In any case, a bunch more stuff hit PACER last night. It consists of allegations by Victor Otten, plaintiffs’ attorney, that Bay Boys defendants Brant Blakeman and Alan Johnston are stonewalling court-ordered discovery and that “there is a clear pattern emerging that the individual defendants are withholding and/or destroying evidence and misusing the discovery process.”
There are links and brief descriptions of the new material after the break, as always, but first I have some interesting details about defendant Alan Johnston’s cell phone. It seems that on December 12, 2016, the magistrate judge, Hon. Rozella Oliver, issued an order to compel defendant Alan Johnston to hand over two cell phones and corresponding passwords to the plaintiffs:
IT IS FURTHER ORDERED THAT that Mr. Johnston overnight his cell phone(s), both his old, water damaged phone and his current phone to his counsel. Mr. Carey1 is directed to hand over the cell phone(s) to Todd Stefan at Setec Investigations, 8391 Beverly Blvd #167, Los Angeles, CA 90048, the party chosen by Plaintiffs to conduct the examination of the phone.
Mr. Otten and Mr. Carey shall reasonably cooperate to agree upon a set of search parameters to guide Mr. Stefan’s forensic investigation of the phone(s), including text messages, contacts, photographs, and videos by December 14, 2016. If the parties cannot agree upon a set of search parameters, they shall submit their proposed search parameters to the Court by December 14, 2016. Mr. Johnston is ordered to cooperate as necessary with Mr. Stefan with respect to passwords. Defendant Alan Johnston is ordered to pay the cost of the forensic investigation within 10 days of his attorney being sent a statement.
But according to a declaration filed last night by plaintiffs’ attorney Victor Otten, the process is not proceeding as planned. It seems that the phone wasn’t actually water-damaged, that the handed-over passwords were wrong, thus requiring the forensic investigator to brute-force the phone, and many more similar such shenanigans:
On December 16, 2016, the Court issued an Order re Plaintiff Cory Spencer’s Motion to Compel Defendant Alan Johnston to Produce Documents. Mr. Johnston and his attorney Pat Carey have failed to comply with several aspects of that Order. First, the Order states: “Mr. Johnston is ordered to cooperate as necessary with Mr. Stefan with respect to passwords.” That did not happen. Mr. Carey never provided a working password.
On January 11, 2017, my co-counsel, Kurt Franklin, and I each received messages from Todd at Setec Investigations regarding the status of the investigation of Defendant Johnston’s cellphone. First, we were informed that the phone had “enhanced security” turned on, which makes it encrypted and harder to access. We were told that over a period of time, Mr. Carey provided four passwords none of which worked. Eventually, Setec Investigations had to crack the phone using a crunching program. This took 5 or 6 hours running a computer program to get the password. Second, the phone was not water damaged as claimed by Defendant Johnston. Third, on January 10, 2017, Setec Investigations provided Mr. Carey a multi tab spreadsheet of the recovered information: (1) iChat (4,250 messages going back to at least 3/12/15); (2) MMS text messages with photos or movies (133 texts with movies of photos going back as far as 10/14); (3) SMS regular texts (2,516 regular texts going back to 12/14 of these 1,381 are deleted; about 1,384 are not blank – some contain gibberish, etc.); (4) no emails on the phone without iCloud access (but Setec can tell there have been 456 emails w/dates – the oldest went back 10/12); (5) call log [1,921 ]; (6) audio recordings (19); (7) videos and photos; contacts (2,445); (8) web history. The Order states that after Mr. Carey receives the information, he “shall designate the information formally copied and produced that is responsive to the Request for Production of Documents. Then, Mr. Johnston may review the production and designate information “CONFIDENTIAL” pursuant to the Court’s Protective Order. This designation shall take place within one (1) day of receipt of the designated production. This has not happened. Fourth, Setec Investigations determined that there is an icloud account associated with the phone and that it might have back up data. Mr. Carey represented to the plaintiffs that there was not an icould [sic] account.
Here’s all the material that hit PACER last night:
- Declaration of Victor Otten re Defendant Brant Blakeman’s Motion to Compel — This is worth reading. It’s the document I quoted from above, and it has a lot more stuff like that in it.
- Exhibit 1 — An email proving that defendants’ attorney had the email addresses of some of the plaintiffs’ attorneys but failed to CC them on something.
- Exhibit 2 — Part of the same argument as Exhibit 1
- Exhibit 3 — This is also worth reading. It consists of plaintiffs’ responses to Blakeman’s interrogatories. These don’t seem usually to be made public, but they’re being published here as part of the procedural argument being made. There is a huge amount of detail here about the misbehavior being alleged against the Lunada Bay Boys. Just for instance, “There were about five locals in the water, including Blakeman who paddled over and was yelling ‘Try and catch a wave and see what happens. There is no fucking way you are getting a wave. Just go in. Just go. You better not cut me off.’ Blakeman looked possessed or possibly on drugs. His behavior got more bizarre throughout the morning. He seemed to be paddling for every wave that he could physically push himself into, perhaps to make a point, but he was wiping out a lot and falling down the face and tumbling across the rock reef. Blakeman looked dangerous to himself. When Blakeman would actually catch a wave in, he would paddle back to where Claypool and his brother were sitting, and continue his insane rant.”
- Exhibit 4 — This is the source of the photo a crop of which appears at the beginning of this post
- Exhibit 5 — Brant Blakeman’s initial disclosures; this seems to have been filed as part of an argument that Blakeman is making only minimally required disclosures while the plaintiffs are making extensive disclosures even as Blakeman accuses them of not doing so. I can’t say if that’s reasonable or not, but the disclosures in this document certainly are minimal.
- Exhibit 6 — Order denying Blakeman’s motion to stay his deposition. This was previously issued by the magistrate judge and is included here in support of an argument.
- Exhibit 7 — This is another copy of Magistrate Judge Oliver’s order to compel Blakeman and Johnston to hand stuff over, quoted from above and filed as an exhibit last night to support arguments in Otten’s declaration
Image of Brant Blakeman is a public record at this point. I obtained it from this item, filed with the court.
