Federal Rules of Civil Procedure 56(d) | Michael Kohlhaas dot org

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 →

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.
Continue reading Lunada Bay Boys Plaintiffs Ask Otero To Deny Defense Motions Due To Evasion Of Discovery Obligations Which Made It Impossible To Meaningfully Oppose, Also Lengthy Excerpts From Sang Lee’s Deposition! Also Transcript Of A Mindblowingly Weird Telephone Conference With Rozella Oliver About Why Ferraras Didn’t Comply With Discovery Obligations! →