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.
This case is getting ultra-Byzantine, but if you’re following along, you may recall that the defendants have really not been complying with their discovery obligations. There’s a summary of some of the nonsense available. Also, all the defendants have filed motions for summary judgment, an outline of which and links to various stories on is also available. The Bay Boys based their motions for summary judgment on claims that the plaintiffs haven’t produced any actual evidence against them. At the time, plaintiffs’ lawyer Victor Otten warned them that their failure to comply would be grounds for moving to deny their motions.
And yesterday, that’s exactly what happened. Victor Otten filed this motion for administrative relief, claiming that the failure to comply with discovery has not only made it impossible to reply effectively to the motions for summary judgment, but in fact created the very grounds on which those motions rely:
Plaintiffs’ motion is made on the grounds that, due Defendants’ wrongful withholding of discovery—including withholding discovery that Magistrate Judge Oliver ordered them to produce—Plaintiffs have not had the opportunity to present the entirety of the factual record in opposition to Defendants’ motions. Indeed, Defendants’ basis for summary judgment is a purported lack of evidence; but to grant summary judgment at this stage would be to reward Defendants’ discovery misconduct.
The plaintiffs’ motion is based on Federal Rules of Civil Procedure 56(d), which states in part:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may … defer considering the motion or deny it …
A hearing on this motion is scheduled for September 5, 2017 in James Otero’s courtroom 10C in the First Street Federal Courthouse. The hearing on all the motions for summary judgment is scheduled for 10 a.m., and some of the paper filed yesterday gives 10 a.m. as the time for the motion to deny. One of the filings gives the time as 9 a.m. That’s probably wrong, but I don’t know for sure.
And there was a bunch of other good stuff filed as well. One of the two absolutely do-not-miss items are a transcript of a telephonic conference with magistrate judge Rozella Oliver concerning Charlie and Frank Ferrara’s failure to comply with discovery orders. This features defense attorney Tiffany Bacon and a bunch of deeply lame excuses for noncompliance. The judge seems dumbfounded that an actual professional lawyer would make these excuses out loud.
Plaintiffs’ lawyer Victor Otten also makes a plausible accusation that the defendants conspired to destroy evidence and an impassioned plea for sanctions against them. The other essential item is a set of lengthy excerpts from Sang Lee’s deposition including a bunch of really damning emails, some of which are quoted in the cartoon above. Turn the page for brief descriptions and links to a bunch of other items.
- 395.0 plaintiffs application for leave to file documents under seal.pdf — This is an application to file some material under seal because it contains personal information. This motion is routine and it was granted this afternoon (Wednesday, August 9), resulting in this order.
- 395.2 exhibit 8 sang lee depo excerpts and emails.pdf — You have GOT to read this. It’s almost 80 pages of the most incoherent bullshit ever to drip from the mouth of a burnt-out case of a surfer. Not only that, but there are emails between Sang Lee and his thuggy friends which are even more incoherent than the depo. They start on page 75 of the PDF. I hope to write a stand-alone post on this item, but the rate at which stuff’s being filed right now will probably preclude that. Therefore you MUST read this PDF.
- 395.3 exhibit 39 sang lee phone records.pdf — Mostly redacted, hard to see what it means.
- 395.4 exhibit 40 sang lee phone records.pdf — Same.
- 395.5 exhbiit 41 jalian johnston text messages.pdf — This is the same item we’ve seen a number of times by now. Still amusing, nothing new. Chant down Babylon, bruh-hini!
- 395.6 exhibit 42 blakeman interrogatories response selections.pdf — Not much here but maybe worth a look.
- 397.0 plaintiffs notice of motion and motion for administrative relief.pdf — This is the motion discussed before the break. Well worth a read.
- 397.1 plaintiffs memorandum of points and authorities in support of motion for admin relief.pdf — This is an expanded argument for the motion at hand. It’s very much worth reading, especially for the factual summary of the situation. It describes how badly the defendants, all of them, have failed in their duties to hand over evidence, how it’s likely that they’ve destroyed evidence, and so on, and that this has made it impossible for the plaintiffs to respond to all their various motions for summary judgment. Anyway, read it!
- 397.2 proposed order granting plaintiffs motion for admin relief.pdf — Just the usual proposed order, nothing that interesting.
- 398.0 declaration of samantha wolff in suppoort of plaintiffs motion for admin relief.pdf — This explains what all the exhibits are. Mostly I didn’t download copies of them, except for the next item, which is absolutely essential.
- 398.16 exhibit 15 transcript of telephonic hearing before rozella oliver.pdf — This is another MUST READ item. It’s a complete transcript of a telephonic hearing before the magistrate judge about the Ferraras’ failure to produce evidence. At one point the defense attorney says that she wasn’t on the case at the time of the problems, that they produced some of the evidence on time, and that they’re going to produce more of it soon, even though it’s almost two weeks after the deadline. The judge is not amused or convinced, and says so fairly explicitly: “SO — YOU KNOW, I JUST — I DON’T — HELP ME UNDERSTAND THIS. WHEN I LITIGATED, IF I HAD AN ORDER AFTER A CONFERENCE DIRECTING ME TO PRODUCE SOMETHING, AND I COULD NOT COMPLY WITH THAT ORDER, I WOULD RACE TO FILE SOMETHING WITH THE COURT SAYING I AM NOT ABLE TO COMPLY WITH YOUR ORDER, YOUR COURT ORDER.” Also, Victor Otten has a lengthy and fascinating argument that the defendants have willfully destroyed evidence and ought to be punished severely. Finally, there’s a hilarious moment when the judge and the plaintiffs are discussing by when the next hearing should be briefed and how much time the judge needs to read the briefs. Recall that part of the plaintiffs’ argument here is that the defense misfeasance left them with only two days to reply to voluminous motions. The judge says: “WELL, IT’S ALWAYS — IT’S ALWAYS NICE TO HAVE A WEEK.” Plaintiffs’ lawyer Samantha Wolfe says “I’M SURE”. And the court reporter inserts a stage direction: (LAUGHTER.) Not such a good sign for the defense in this matter, I’m guessing.
Image at the top of the post is ©2017 MichaelKohlhaas.Org. It was made from this surfer and this hat and this beach and this hyena.