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!
Least but not last, famed attorney-to-the-Ferraras Tiffany Bacon is off the job and Courtney Serrato, her colleague at Bremer Whyte Brown & O’Meara, has been subbed in for her. Who knows what it means?
And last but definitely not least, we have this marvelous Plaintiffs’ Memo in Support of Request for Records from Personal Devices of PVEPD. The issue is that it came out in depositions that PVE police officers routinely use their personal phones to text one another while they’re on duty. Naturally, the plaintiffs wanted to look at some of that material, but the City of PVE said “no way, we don’t have the power to make them hand it over and besides, to do so would violate their contract with us.”
The plaintiffs responded in turn and now they’re briefing the issue. As is usual, this memorandum comes with a ton of declarations, and they include some juicy deposition excerpts, one of which contains the quote from Steve Barber that I tried out on Captain Tony Best in the cartoon up above, which seems to be about this disgraceful incident. I’m sorry that I don’t have time to transcribe the PDF, but I hope you’ll take a look at it. Here are links to all the various documents filed in connection with this item:
- Plaintiffs’ Memorandum in Support
- Declaration of Samantha Wolff in support
- Exhibits 1 through 4 — Deposition excerpts from Jeff Kepley, snippish and entertaining letters between lawyers.
- Exhibits 5 through 9 — Excerpts from City of PVE interrogatory responses, etc.
- Exhibit 10 — Steve Barber depo excerpts
- Exhibits 11 and 12 — Catherine Placek depo excerpts, Tony Best depo excerpts
With respect to Defendant Lee, counsel for Plaintiffs and Defendant Lee shall meet and confer regarding the additional analysis being performed on Defendant Lee’s phone by September 22, 2017. If additional text messages are recovered that would resolve the pending Motion for Sanctions, Plaintiffs and Defendant Lee shall file a joint status report by September 26, 2017. If Plaintiffs intend to pursue their Motion for Sanctions following the update at the meet and confer with Defendant Lee, Plaintiffs and Defendant Lee shall follow the briefing schedule set forth below.1
With respect to Defendant Frank Ferrara, there are nine text messages exchanged with Defendant Sang Lee that have been requested by Plaintiffs but not produced. See Dkt. No. 459. According to Frank Ferrara’s forensic analyst, these messages are not recoverable. Id. With respect to Defendant Charlie Ferrara, there are at least six text messages with Defendant Sang Lee that appear to be unavailable because Defendant Charlie Ferrara changed phones. See id. Defendant Charlie Ferrara is also awaiting a further response from his cellular service provider regarding other records. Counsel for Plaintiffs and Defendant Charlie Ferrara shall meet and confer by September 22, 2017 as to whether any further records have been obtained by Defendant Charlie Ferrara. Because it appears that there are text messages that are not recoverable or are unavailable from both Defendant Frank Ferrara and Defendant Charlie Ferrara, Plaintiffs and Defendants Frank and Charlie Ferrara shall follow the briefing schedule set forth below.
Plaintiffs shall file their brief(s) in support of sanctions against Defendants Sang Lee, Frank Ferrara and Charlie Ferrara by September 28, 2017. The brief(s) shall include, but not be limited to, the following:
- The text messages and/or data that Plaintiffs contend are lost, destroyed or unrecoverable for each Defendant, with as much specificity as reasonably possible.
- The application of Federal Rule of Civil Procedure 37(e) to the dispute as to each Defendant. If Plaintiffs contend that Rule 37(e) does not apply, Plaintiffs shall present their position regarding sanctions under both the Rule 37(e) standard and the standard Plaintiffs believe applies to this dispute.
- To the extent this information is available to Plaintiffs, whether it appears that other text messages and/or data from around the same time period as the unrecoverable text
messages and/or data have been recovered or are also unrecoverable, for each Defendant.
- The requested sanction(s) for each Defendant, with any lesser sanction(s) Plaintiffs would like the Court to consider.
Defendants Sang Lee, Frank Ferrara and Charlie Ferrara shall file their briefs in opposition to the motion for sanctions by October 5, 2017. The briefs shall include, but not be limited to, the following:
- The application of Federal Rule of Civil Procedure 37(e) to the dispute. If a defendant contends that Rule 37(e) does not apply, that defendant shall present his position regarding sanctions under both the Rule 37(e) standard and the standard he believes applies to this dispute.
- An explanation and/or declaration as to why the text messages and/or data specified by Plaintiffs are unrecoverable, or, if a defendant contends the text messages and/or data are recoverable, why that defendant has not produced the text messages and/or data.
- Whether other text messages and/or data from around the same time period as the unrecoverable text messages and/or data have been recovered or are also unrecoverable.
- Any lesser sanction(s) that the defendant would like for the Court to consider.
Plaintiffs may file a reply to Defendants’ opposition briefs by October 9, 2017. An in-person hearing is hereby scheduled to take place on October 12, 2017 at 10:00 a.m. in Courtroom F, 9th Floor of the Spring Street Courthouse, 312 N. Spring Street, Los Angeles, California. 2 Only counsel for the relevant parties are required to attend, but counsel for other parties may also attend.
If, at any time before the October 12 hearing, Defendants recover or come into possession of additional text messages or data that Plaintiffs contend are lost or unrecoverable in their briefing, Defendants shall immediately notify Plaintiffs, and the parties shall file a joint status report forthwith informing the Court as to any impact on the motion for sanctions.
IT IS SO ORDERED.
Image of Tony Best is ©2017 MichaelKohlhaas.Org and is based on this juicy little slab of public recordosity.