[00:00:01] Speaker 00:
All right, our final case this morning is number 2216465, Jones versus Wright Hospitality Group.

[00:00:28] Speaker 00:
Mr. Nathanson, whenever you're ready.

[00:00:37] Speaker 01:
Good morning.

[00:00:37] Speaker 01:
May it please the court.

[00:00:39] Speaker 01:
My name is Philip Nathanson.

[00:00:40] Speaker 01:
I represent Alyssa Jones.

[00:00:43] Speaker 01:
I'm sure the court knows by now I was also the trial counsel in this case.

[00:00:48] Speaker 01:
If the court would permit me for a moment or two to put in the context how from the plaintiff's point of view, this case went, uh, to a dismissal with prejudice for spoliation of text messages.

[00:01:07] Speaker 01:
In January of 2020, there was a hearing on January 31st to be specific before the district court on the plaintiff's motion for sanctions that I filed, arguing that the defense had produced no text messages, that their position was we don't have any relevant text messages to produce.

[00:01:34] Speaker 01:
At that hearing,

[00:01:35] Speaker 01:
The district court granted no relief to the plaintiff.

[00:01:39] Speaker 01:
And at the end of the hearing asked, does anyone have anything else to say?

[00:01:44] Speaker 01:
Whereupon, trial counsel for the defense said, your honor, we don't want to open discovery.

[00:01:52] Speaker 01:
Discovery is closed.

[00:01:53] Speaker 01:
We don't want any more discovery, but we would like some impeachment evidence.

[00:02:00] Speaker 04:
Why does that have to do with it, that it's impeachment evidence?

[00:02:03] Speaker 04:
You kept saying that in your brief, but what's the relevance of that?

[00:02:07] Speaker 04:
I mean, impeachment evidence is evidence.

[00:02:10] Speaker 04:
And they wanted the evidence because it had come out of the depositions that there were text messages.

[00:02:16] Speaker 01:
No, what came out at the depositions, Your Honor, were the plaintiff and her female witnesses had talked about their depositions.

[00:02:26] Speaker 04:
I thought that it was specifically that there were text messages.

[00:02:29] Speaker 04:
Text to each other.

[00:02:30] Speaker 01:
Well, there were.

[00:02:31] Speaker 01:
So I was ordered to produce messages regarding those conversations, which I did.

[00:02:39] Speaker 04:
You said you would.

[00:02:40] Speaker 04:
I did.

[00:02:42] Speaker 04:
And you kept delaying it, and eventually you came up with 20 messages, which was apparently not very relevant.

[00:02:50] Speaker 01:
I produced the messages regarding conversations about the depositions, whereupon the district court

[00:03:00] Speaker 04:
You didn't produce the messages.

[00:03:01] Speaker 04:
You produced very few messages.

[00:03:05] Speaker 01:
However many there were, I produced what we had regarding conversations about the depositions, which is what I was asked to do.

[00:03:13] Speaker 02:
And then we got to a point in time where the district court said, gee, there seems to be evidence that text messages during two periods of time were deleted.

[00:03:24] Speaker 02:
We don't know what they were about on the face of them, but there seems to be evidence that messages were deleted.

[00:03:30] Speaker 02:
Correct?

[00:03:32] Speaker 01:
The district court said that?

[00:03:33] Speaker 02:
Yes, it did.

[00:03:35] Speaker 02:
And it then said, in order to get to the bottom of this, I want the parties to agree on a forensic examiner who will look at Ms.

[00:03:44] Speaker 02:
Jones's phone and the phones of specified witnesses and determine whether or not stuff was deleted and see whether or not he can figure out what was deleted.

[00:03:54] Speaker 02:
Correct?

[00:03:55] Speaker 01:
I don't respectfully, your honor, think that's correct.

[00:03:58] Speaker 02:
Tell me what really happened.

[00:03:59] Speaker 01:
What really happened was on March 4th, the district court entered a sua sponte order without notice, without me having an opportunity to respond, stating that my client was required to go fetch

[00:04:15] Speaker 01:
the three cell phones from her witnesses and take those three phones and her phone to a vendor.

[00:04:23] Speaker 02:
Didn't the judge make some preliminary findings about why he was ordering that?

[00:04:28] Speaker 02:
No.

[00:04:29] Speaker 02:
Just said, as a whim, just pick up your phones and give them to someone.

[00:04:33] Speaker 02:
Well, I don't want to characterize it as a whim, but... You had a pretrial, you had a conference before that order was issued.

[00:04:41] Speaker 02:
No.

[00:04:41] Speaker 02:
It was a discovery conference before it was issued.

[00:04:43] Speaker 01:
We did not.

[00:04:44] Speaker 01:
We had a discovery conference in January.

[00:04:48] Speaker 02:
There was no discovery conference in March when he issued... And no communication with the judge between then and the time that he issued the order?

[00:04:55] Speaker 02:
None.

[00:04:56] Speaker 01:
Zero.

[00:04:58] Speaker 01:
The order came over the transom, out of the blue.

[00:05:01] Speaker 02:
And somebody asked for something before that?

[00:05:05] Speaker 01:
They asked for more messages other than what I produced.

[00:05:09] Speaker 02:
And then you responded to that?

[00:05:11] Speaker 01:
I responded to that via email.

[00:05:15] Speaker 01:
There was no conference with the judge about issuing.

[00:05:19] Speaker 01:
How was this put before the judge?

[00:05:21] Speaker 01:
it wasn't put before the judge.

[00:05:24] Speaker 01:
There was no motion brought by the defense to produce four cell phones.

[00:05:32] Speaker 01:
The defense never made the request.

[00:05:35] Speaker 02:
I know because you've got limited time and I want to ask you two questions just as background to make sure I understand it correctly.

[00:05:46] Speaker 02:
You don't

[00:05:47] Speaker 02:
object to, I take it, or I didn't see it anywhere in your brief, the judge is finding that messages were deleted from the cell phones of Ms.

[00:05:57] Speaker 02:
Jones and two witnesses.

[00:06:01] Speaker 01:
The judge found that there were an unknown number of messages that were deleted that were

[00:06:12] Speaker 01:
I would, I would, I would re-characterize it as missing.

[00:06:17] Speaker 02:
Well, re-characterize it in any way you want.

[00:06:18] Speaker 02:
Do you object to the judge's finding that those messages were missing?

[00:06:24] Speaker 01:
There were some messages apparently missing.

[00:06:26] Speaker 04:
Okay.

[00:06:27] Speaker 01:
Do you object?

[00:06:27] Speaker 04:
An unknown number.

[00:06:28] Speaker 04:
Apparently, I mean, sort of months worth in the sense that these people texted each other every day, which for a while.

[00:06:35] Speaker 04:
And then after that, there was nothing for a while.

[00:06:39] Speaker 01:
Your Honor, my son texts 5,000 times a month.

[00:06:44] Speaker 01:
Right.

[00:06:45] Speaker 04:
That's the problem here.

[00:06:46] Speaker 01:
I'm amazed at the quantity of texts.

[00:06:50] Speaker 04:
All right.

[00:06:50] Speaker 04:
So the point is that, yes, they were doing that, and then all of a sudden they weren't doing that, which was what I understood Judge Snow to have what precipitated his order, that there seemed to be missing text messages.

[00:07:03] Speaker 01:
No, there was no evidence of missing text messages when Judge Snow issued that.

[00:07:09] Speaker 02:
That's why I'm asking a different question.

[00:07:14] Speaker 02:
Leave aside for a moment, we can go through the record and figure out what it shows.

[00:07:19] Speaker 02:
What Judge Snow knew or didn't know when he issued the order to produce the phones.

[00:07:24] Speaker 02:
I'm now focusing on after the phones were produced and after Mr. Cook

[00:07:28] Speaker 02:
looked at them and issued a report.

[00:07:30] Speaker 02:
And again, put aside, you can get back to whether or not you object to his report.

[00:07:35] Speaker 02:
At the end of all that, Judge Snow makes some findings.

[00:07:39] Speaker 02:
And he says, I find that a bunch of messages were deleted.

[00:07:43] Speaker 02:
And so my first question is, or you say are missing, that's fine with me.

[00:07:50] Speaker 02:
Is that finding supported by the record?

[00:07:52] Speaker 01:
No.

[00:07:53] Speaker 02:
So you think there's no evidence in this case that any messages were deleted?

[00:07:59] Speaker 01:
Because, Your Honor, the method by which that conclusion was reached by Mr. Kuchta, which Judge Snow accepted, was this comparison of multiple phones.

[00:08:13] Speaker 01:
People must have been texting each other.

[00:08:16] Speaker 02:
What Mr. Kuchta said was, gee, these

[00:08:20] Speaker 02:
I have a pair of phones, Ms.

[00:08:22] Speaker 02:
Jones and the witness, right?

[00:08:23] Speaker 02:
They're texting each other all the time.

[00:08:26] Speaker 02:
And then all of a sudden it stops.

[00:08:29] Speaker 01:
Okay.

[00:08:30] Speaker 02:
And they all go buy new phones.

[00:08:32] Speaker 02:
Um, and so my conclusion from that, and there's a, there's, there's an absence of even, even when I have this phone, there's a, there's no messages on it during this period.

[00:08:43] Speaker 02:
I conclude that they were intent and messages were intentionally deleted.

[00:08:47] Speaker 01:
Can the judge reach that conclusion from that?

[00:08:49] Speaker 01:
No, that's a jump based on an assumption.

[00:08:53] Speaker 00:
Some people might call it an inference, or this is a finding of fact that the judge is making based on the judge's position.

[00:09:02] Speaker 00:
What standard of review should we be applying to the ultimate finding?

[00:09:07] Speaker 00:
Let's set aside.

[00:09:07] Speaker 00:
A big part of this case is where it ended.

[00:09:11] Speaker 00:
I think that's where Judge Horowitz is going with that and whether the dismissal itself is justified.

[00:09:16] Speaker 00:
So what standard of review would you have us apply to the judge's finding that these were intentionally deleted?

[00:09:27] Speaker 01:
So the standard of review given the dismissal of prejudice in the plaintiff's view should be de novo review because

[00:09:39] Speaker 01:
This case involves our production of 51,000 text messages that were used to depose my client twice before we ever landed in that January hearing, which was brought on- I was expecting you to cite law rather than fact at the end of that statement for the standard review.

[00:09:59] Speaker 00:
What's the case you'd point us to where we wouldn't be deferring to this judge's factual findings of intent?

[00:10:10] Speaker 01:
Well, I thought the issue was on the dismissal of the president.

[00:10:13] Speaker 02:
Let me make it easier for you.

[00:10:15] Speaker 02:
I think we have case law that says we review the imposition of rule 37 sanctions for abuse of discretion by the district court and that say we review the district courts underlying factual findings for clear error.

[00:10:30] Speaker 02:
Do you agree that's our standard of review?

[00:10:33] Speaker 01:
I think we cite that in our brief here.

[00:10:36] Speaker 02:
Yeah, I think that's your answer to Judge Johnston, then.

[00:10:40] Speaker 02:
We review for abusive discretion and we review the underlying findings for clear error.

[00:10:45] Speaker 02:
So I'm still trying to figure out why Judge Snow clearly erred in his factual findings.

[00:10:51] Speaker 01:
Because the phone from the period that this young woman worked for the defendant was produced, searched, and inquired upon

[00:11:03] Speaker 01:
on the merits.

[00:11:04] Speaker 01:
That's the phone that related to the period of employment.

[00:11:07] Speaker 01:
The phone that came two years later, which is what the phone we're talking about, had nothing to do.

[00:11:16] Speaker 04:
Well, it had a great deal to do.

[00:11:18] Speaker 04:
It had to do with whether there were, and in fact, it turned out there is

[00:11:26] Speaker 04:
There are text messages in the record, and I can't quite tell where they were coming from, which period they're from, where her colleagues are saying, you were lying the whole time, none of what you say is true, you're just looking for money, and so on.

[00:11:43] Speaker 04:
Where were those text messages?

[00:11:45] Speaker 04:
Were they from this period, the post-January 2020 period?

[00:11:52] Speaker 04:
What are you looking at me like that for?

[00:11:54] Speaker 04:
I don't understand.

[00:11:54] Speaker 01:
I'm not looking at you.

[00:11:56] Speaker 01:
I'm trying to remember which text messages.

[00:11:59] Speaker 04:
Well, there are a bunch of text messages from her colleagues where they say to her, you made this all up, and so on.

[00:12:16] Speaker 04:
Which period of time were they from?

[00:12:22] Speaker 02:
Let me, let me give you a specific- They had to be beforehand.

[00:12:27] Speaker 02:
Well, let me give you a specific example with the subsequent messages.

[00:12:32] Speaker 02:
Mr. Cooke recovered a partial message from Jones to Foster on Watson's phone and, but it was not on Jones's phone.

[00:12:44] Speaker 02:
Okay.

[00:12:45] Speaker 02:
And it was about the case.

[00:12:47] Speaker 02:
So assuming that's true.

[00:12:49] Speaker 02:
And I think that's a direct statement from the record.

[00:12:53] Speaker 02:
Could he then conclude that the absence of any other messages about the case from people who had been communicating in that period must indicate that they were deleted?

[00:13:05] Speaker 02:
There's direct evidence that she deleted or that on her phone, to use your term, there was absent at least one message that had been sent to somebody else about the case.

[00:13:18] Speaker 02:
Once the judge finds that, can he make a reasonable inference about

[00:13:24] Speaker 02:
the absence of other messages?

[00:13:27] Speaker 01:
Well, I don't think so, but let's assume that he can.

[00:13:33] Speaker 01:
Is that a basis to dismiss this case with prejudice?

[00:13:37] Speaker 04:
So that leads to the next question.

[00:13:39] Speaker 04:
I mean, because you've been arguing that his finding that there are deleted messages isn't substantiated.

[00:13:47] Speaker 04:
But if we assume it was substantiated, then two other questions arise.

[00:13:52] Speaker 04:
He also has to find intent in order to come within the section of the rule that allows for dismissal.

[00:14:01] Speaker 04:
And the next question is, does he also have to find prejudice?

[00:14:06] Speaker 04:
And did he?

[00:14:07] Speaker 04:
So let's assume for purposes of this inquiry, which is the legal inquiry and the one that really matters in this case, that he properly found that there are deleted messages.

[00:14:18] Speaker 04:
Although precisely because they were deleted, he can't find what was in them exactly or how exactly, how many there were or anything like that because they were deleted.

[00:14:28] Speaker 04:
So what can he infer from the deletion, if anything, with regard to intent?

[00:14:34] Speaker 04:
And if he needs to, does he need to prejudice?

[00:14:39] Speaker 01:
Your honor, if I just might clarify what you said for one second.

[00:14:45] Speaker 01:
In 2018, I sent the applicable phone, the iPhone.

[00:14:50] Speaker 04:
Different phone.

[00:14:50] Speaker 04:
I understand.

[00:14:51] Speaker 04:
The red phone.

[00:14:52] Speaker 01:
We're not talking about that phone.

[00:14:53] Speaker 01:
I sent it to a vendor.

[00:14:55] Speaker 04:
I understand that.

[00:14:55] Speaker 04:
We're not talking about that phone or those messages.

[00:14:57] Speaker 04:
They did quantify the deletions.

[00:14:58] Speaker 04:
We're not talking about that phone or those messages.

[00:15:02] Speaker 04:
We're talking about the messages that dealt with what these people were saying to each other, if anything.

[00:15:14] Speaker 04:
at the time of the depositions and before and afterwards, which you characterize as being for cross-examination, but what, yes, which go to whether they were essentially concocting a defense or whether some of them were refusing to participate in concocting a defense or what.

[00:15:32] Speaker 04:
I mean, not a defense, I mean, the plaintiff's case.

[00:15:35] Speaker 04:
So forget about the earlier ones and assume that these, there was a deletion of

[00:15:43] Speaker 04:
the set of, on the phones that were in fact sent to the forensic examiner, that was agreed upon.

[00:15:53] Speaker 04:
What do we do if we, how in general, in implying this relatively new rule, does a court go around deciding whether, and how do we go about reviewing whether this was an intentional deletion

[00:16:10] Speaker 04:
Um, that would support, uh, that could support a dismissal, uh, under the rule and whether, um, and do we also have to, did he also have to find prejudice and how do we review that if he did?

[00:16:27] Speaker 01:
Well, the eighth, the eighth circuit case cited by the defense of their brief said they have to show that the messages that were deleted were new and different than the ones that had been previously produced.

[00:16:41] Speaker 01:
and in order to show prejudice.

[00:16:46] Speaker 04:
And obviously... There's something in the advisory notes to the rule that says you don't have to show prejudice, but it seems to me in some circumstances, with regard to the dismissal order, you would think you did have to show prejudice.

[00:17:08] Speaker 04:
But that's a question.

[00:17:09] Speaker 04:
It's a legal question about, do you have to show prejudice if there was intentional deletion?

[00:17:15] Speaker 04:
Or is it just a fraud in the court, whether there was prejudice or not?

[00:17:18] Speaker 01:
Rule 37E1 says, upon the finding of prejudice to another party.

[00:17:24] Speaker 04:
Yeah, but this is an E1.

[00:17:25] Speaker 04:
This is E2.

[00:17:26] Speaker 00:
It then says or.

[00:17:28] Speaker 00:
And then I think this is where Judge Berzon is looking at.

[00:17:32] Speaker 00:
There's that legal question of, set aside whether the judge could find it.

[00:17:38] Speaker 00:
is where would a prejudice requirement come from?

[00:17:42] Speaker 01:
I think it would come from the other cases that we cited our brief.

[00:17:47] Speaker 00:
So the Anheuser-Busch test, or do you think those cases, those elements still exist for purposes of the dismissal, notwithstanding the new rule?

[00:17:57] Speaker 00:
We cite several Ninth Circuit cases in our brief.

[00:18:00] Speaker 00:
Right.

[00:18:00] Speaker 00:
But we don't have a lot of cases, I think as Judge Berzon said, that are applying the rule, which doesn't quite read the way that our cases once read.

[00:18:09] Speaker 02:
OK.

[00:18:09] Speaker 02:
To put it differently, there's a whole set of case law about dismissal as a sanction under Rule 37.

[00:18:16] Speaker 02:
And then we have this new rule, 37E2, which comes in.

[00:18:22] Speaker 02:
And the question is, do we apply that old case law to determine whether dismissal with prejudice was required, or is there a different standard than the E2?

[00:18:30] Speaker 01:
I think the standard, from the plaintiff's point of view, should be, and we cite this in our brief, did whatever deletion that occurred prevent the defense

[00:18:41] Speaker 01:
from defending the case or defending themselves at trial.

[00:18:47] Speaker 04:
The problem, of course, is that since they were deleted and we don't have them, it's very hard to send.

[00:18:52] Speaker 00:
Mr. Nathan, does it matter at all?

[00:18:55] Speaker 00:
I think you suggest it does, and I'd like to just push a little bit on why.

[00:18:58] Speaker 00:
That the missing messages occur after the close of discovery in this case.

[00:19:11] Speaker 00:
And I guess the preliminary question is, I couldn't find in the record when discovery closed.

[00:19:17] Speaker 00:
I don't think it's disputed that these hearings happened after the end of discovery.

[00:19:22] Speaker 00:
But why would that matter if the judge's concern is that these are post-hoc efforts to manufacture the plaintiff's claim?

[00:19:36] Speaker 00:
Why does it matter that it happened after the close of discovery, that it happened for impeachment or for whatever reason?

[00:19:44] Speaker 00:
Why would that timing matter to prejudice?

[00:19:46] Speaker 01:
I think there's a couple of reasons.

[00:19:48] Speaker 01:
Because during the entire discovery period, the defense never said that there's a problem with missing messages, even though

[00:19:59] Speaker 01:
They knew since 2018 when I produced our expert IT report that there had been 51 deletions on the first cell phone.

[00:20:10] Speaker 01:
They never, ever took the position up to the close of discovery that that was a problem.

[00:20:18] Speaker 01:
They took all kinds of depositions, two of my clients.

[00:20:22] Speaker 04:
Well, maybe because they thought at that point they would have a hard time showing prejudice because a lot of the material that was produced was fairly damning anyway.

[00:20:31] Speaker 04:
But now they have a different thing they're trying to show, which is they're trying to deal with the other witnesses and demonstrate essentially that there was collusion or corruption or something among them.

[00:20:43] Speaker 04:
And that's a different problem as to which the deletion would have a different impact.

[00:20:52] Speaker 04:
and also that it could have been and turned out to be perhaps a much greater deletion.

[00:20:57] Speaker 01:
There was nothing said at the hearing when counsel said we need impeachment evidence.

[00:21:02] Speaker 01:
He didn't say because there's missing messages.

[00:21:06] Speaker 01:
He said these women were having conversations about their depositions.

[00:21:10] Speaker 04:
Well, he didn't say it until it appeared that you weren't going to give him messages, that he wasn't getting the messages from the other witnesses or from you.

[00:21:20] Speaker 01:
I say as an officer of this court,

[00:21:22] Speaker 01:
I produced not only the original 51,000 messages, but every message that we had regarding conversations about that.

[00:21:31] Speaker 04:
That was still on the phones.

[00:21:35] Speaker 04:
That was the problem.

[00:21:36] Speaker 04:
That was left on the phones.

[00:21:40] Speaker 04:
You produced what was left on the phones.

[00:21:42] Speaker 04:
You didn't produce evidence as to whether there were other messages that were no longer on the phones.

[00:21:49] Speaker 01:
Well, I didn't know at that point.

[00:21:51] Speaker 01:
I don't think anybody's necessarily blaming you.

[00:21:54] Speaker 01:
That weren't on the phones.

[00:21:55] Speaker 01:
But when the judge entered his March 4th order, he doesn't say in there that because there's evidence of missing messages, I'm going to have these phones examined.

[00:22:08] Speaker 04:
Well, we now know that, as you just said, that there was evidence of missing messages from the earlier period.

[00:22:14] Speaker 01:
Unknown number.

[00:22:15] Speaker 01:
of missing messages.

[00:22:17] Speaker 01:
I think the defense says in their brief, at least one.

[00:22:21] Speaker 01:
Um, if I'm not mistaken, Mr Davidson, are there any other points you want to cover?

[00:22:27] Speaker 00:
Um, we'll give you a couple of minutes on robot.

[00:22:28] Speaker 00:
Okay.

[00:22:30] Speaker 00:
Thank you.

[00:22:36] Speaker 00:
Mr Nakamura.

[00:22:41] Speaker 03:
Good morning, Your Honors.

[00:22:42] Speaker 03:
Richard Nakamura on behalf of Appellees.

[00:22:45] Speaker 03:
I'm joined at council table by trial counsel Sean Carroll.

[00:22:49] Speaker 03:
I'd like to start where my colleague began, which is at the January 10th hearing on the motion for sanctions.

[00:22:59] Speaker 03:
And he told this court that we represented to Judge Snow at that time that we had no relevant evidence to produce.

[00:23:07] Speaker 03:
I strenuously refute that and I would like to direct the court's attention to these portions of the record.

[00:23:13] Speaker 00:
Can we start by trying to pin down when did discovery close?

[00:23:16] Speaker 03:
Sure.

[00:23:17] Speaker 03:
By the terms of the original CMO, which is in the record, the discovery cut off was October 25th.

[00:23:26] Speaker 03:
2019.

[00:23:27] Speaker 03:
That's an SER-414.

[00:23:31] Speaker 03:
That deadline was subsequently extended by Judge Snow to December 31.

[00:23:39] Speaker 03:
2019.

[00:23:41] Speaker 03:
And your honors can find that extended deadline at docket, excuse me, in the reporters transcript of 11 5 19 at pages 63 lines five through six.

[00:23:57] Speaker 00:
All right, thank you.

[00:23:58] Speaker 00:
With that setting the table, go ahead.

[00:24:00] Speaker 03:
I made a note to myself to answer that question because I heard you ask that of Mr. Nathanson.

[00:24:06] Speaker 03:
So getting back to my refutation of what counsel said, we said at the January 10th hearing, he said we had no evidence to produce.

[00:24:17] Speaker 03:
Well, by that time, there were a couple of things.

[00:24:21] Speaker 03:
Number one, the ESI stipulation

[00:24:24] Speaker 03:
which is in the record, had already expressly said, quote, defendants have already produced their ESI.

[00:24:33] Speaker 03:
Now that ESI stip was from March 11, 2019.

[00:24:41] Speaker 03:
Point number two, to refute what counsel said.

[00:24:44] Speaker 03:
In opposing his motion for sanctions against us, we attached evidence

[00:24:53] Speaker 03:
of supplemental ESI that we gave to the plaintiffs regarding emails and texts from Mr. Hibbert, Sanchez, and others.

[00:25:07] Speaker 03:
And your honors can find what we attached.

[00:25:11] Speaker 04:
Okay.

[00:25:11] Speaker 04:
But did you raise, that's sort of peripheral to what we're dealing with now.

[00:25:16] Speaker 04:
Did you raise

[00:25:18] Speaker 04:
You said you wanted messages relating to what was referred to at the depositions by the witnesses.

[00:25:29] Speaker 04:
Could you suggest at that point that there had been deletions?

[00:25:33] Speaker 03:
We knew there were deletions on Jones's phone from the production we got from Outtel.

[00:25:40] Speaker 04:
But you didn't move for any sanctions about that?

[00:25:43] Speaker 03:
No.

[00:25:44] Speaker 03:
Partly because the production from ALTEP took place over the course of several months.

[00:25:55] Speaker 03:
We got ALTEP's production between April and August of 2019.

[00:26:01] Speaker 03:
Now, it's not until July

[00:26:04] Speaker 03:
of 2019 when Jones tells us in a disclosure that Foster Myers and witnesses will be her key witnesses.

[00:26:14] Speaker 03:
And we talk about that at page 22 of our brief in the record at SCR 160161.

[00:26:21] Speaker 02:
Help us understand how we got from the hearing in front of Judge Snow.

[00:26:26] Speaker 02:
Which hearing?

[00:26:27] Speaker 02:
January 11th to the order to turn over.

[00:26:31] Speaker 02:
Tell me what happened

[00:26:33] Speaker 02:
If, did something happen at that hearing to push the order or did something happen in between?

[00:26:39] Speaker 02:
Tell us what happened.

[00:26:41] Speaker 02:
There is so much that happened between January.

[00:26:43] Speaker 02:
Well, I don't want to know the facts that happened.

[00:26:45] Speaker 03:
I want to know what happened in court.

[00:26:48] Speaker 03:
Okay.

[00:26:49] Speaker 03:
So on January 10th, a representation is made by plaintiff's council that production will be made on January 17th.

[00:26:59] Speaker 04:
of these from Jones's phone, not the other people.

[00:27:04] Speaker 03:
Correct, from Jones's phone.

[00:27:05] Speaker 04:
With regard to the post, what period are we talking about that there was supposed to be production about?

[00:27:17] Speaker 03:
It's not clear from the record what period we're talking about.

[00:27:22] Speaker 03:
The transcript just has Mr. Nathanson saying he will make the production from Jones's phone.

[00:27:26] Speaker 03:
But what was he asked for?

[00:27:29] Speaker 03:
I'm sorry?

[00:27:29] Speaker 03:
What was he asked for?

[00:27:31] Speaker 03:
The relevant non-privileged documents from Jones's phone.

[00:27:40] Speaker 02:
And did you identify a specific phone or just say from her phone?

[00:27:44] Speaker 03:
I don't think we identified his specific phone.

[00:27:46] Speaker 04:
I don't know the period either.

[00:27:47] Speaker 04:
He had already produced, he says, 50,000 messages for some time period.

[00:27:52] Speaker 04:
So were you talking about the entire period thereafter, or some subset of that, or we don't know?

[00:27:57] Speaker 03:
Well, the 50,000 is limited to pre-July 2018.

[00:28:01] Speaker 03:
I understand that.

[00:28:02] Speaker 04:
So are you asking for anything after July 2019, or 2018, or whatever it was?

[00:28:07] Speaker 04:
What is it he's supposed to be producing at that point?

[00:28:12] Speaker 03:
He is supposed to be reducing the messages from whatever he had that was relevant to the claims that Jones was making against our client in this case.

[00:28:23] Speaker 02:
So you had gotten at some point the stuff from the imaging vendor.

[00:28:27] Speaker 02:
I'm sorry?

[00:28:28] Speaker 02:
You had gotten at some point the stuff from the imaging vendor.

[00:28:32] Speaker 03:
We did.

[00:28:33] Speaker 03:
When was that?

[00:28:34] Speaker 03:
We received from Digital Acuity.

[00:28:41] Speaker 03:
We received from Digital Acuity the non-privileged relevant data from the four phones.

[00:28:51] Speaker 02:
When did you get that in response to your?

[00:28:54] Speaker 02:
Because what I understand Mr. Nathanson said is, look, we got a request for production, so we gave the phone to a vendor.

[00:29:02] Speaker 03:
We did not get the material from the four phones.

[00:29:06] Speaker 03:
until March 4th, 2021.

[00:29:11] Speaker 03:
And that was after the district court, after a series of events that transpired after the January hearing.

[00:29:18] Speaker 03:
Okay, so you continued to get stuff from the vendor.

[00:29:21] Speaker 03:
No, we got nothing until March 4th, 2021 directly from digital acuity.

[00:29:30] Speaker 02:
Now you're talking about Mr. Cook.

[00:29:32] Speaker 02:
Or Mr. Cook.

[00:29:33] Speaker 02:
I'm sorry.

[00:29:34] Speaker 02:
We're missing each other here.

[00:29:36] Speaker 02:
At some point, as I understand this record, Ms.

[00:29:40] Speaker 02:
Jones phone was sent to a vendor.

[00:29:43] Speaker 02:
Her vendor.

[00:29:44] Speaker 02:
Her vendor.

[00:29:44] Speaker 02:
That's right.

[00:29:45] Speaker 02:
I agree.

[00:29:46] Speaker 02:
Her vendor was sent to her vendor.

[00:29:49] Speaker 02:
because you would ask for images from the phone and the vendor produced something.

[00:29:56] Speaker 02:
When did you get that?

[00:29:59] Speaker 02:
Because my understanding was it was that and the depositions that suggested together something was missing.

[00:30:18] Speaker 04:
I thought you said earlier you got all that, like around July and August.

[00:30:23] Speaker 04:
Yeah, that's what I thought, too.

[00:30:25] Speaker 02:
I'm trying to figure out, and it may not be relevant to this case, but I'm just trying to figure out.

[00:30:30] Speaker 02:
I thought I understood the timeline until Mr. Nathanson got up, and I must admit, you're not confusing me, too.

[00:30:36] Speaker 02:
So let me just ask a very specific question.

[00:30:42] Speaker 02:
A judge issued an order at some point to say, turn the phones over to Mr. Kukta.

[00:30:47] Speaker 02:
We want you to stipulate to a third party vendor and turn the phones over to them.

[00:30:52] Speaker 02:
I want to know what happened in court, in court, not between you and Mr. Nathanson, between January 11th and that order that gave rise to that order.

[00:31:05] Speaker 02:
Was there a motion?

[00:31:07] Speaker 02:
Was there a status conference?

[00:31:09] Speaker 02:
Was there a hearing?

[00:31:11] Speaker 02:
As again, I'm not sure this makes any difference to the ultimate outcome, but you were both there.

[00:31:16] Speaker 02:
Just tell me.

[00:31:18] Speaker 02:
I've been looking for the record trying to figure out what happened in that interim.

[00:31:21] Speaker 02:
Tell me what happened.

[00:31:23] Speaker 02:
Not in terms of who did what with each other.

[00:31:27] Speaker 03:
I understand.

[00:31:28] Speaker 03:
So if I'm understanding your question correctly, you want to know when we received the production from Alton?

[00:31:33] Speaker 04:
No, no, I'm not going to make it easy.

[00:31:35] Speaker 04:
But the ultimate question is what was Judge Snow reacting to?

[00:31:39] Speaker 00:
The concern here is that this is a, you know, at some point it's a dismissal of the case and they didn't see these kind of cumulative issues coming up.

[00:31:50] Speaker 00:
So what was the trigger that led to, led this case down the path to dismissal with a prejudice?

[00:31:58] Speaker 00:
Was it you?

[00:31:59] Speaker 02:
Was it the judge?

[00:32:00] Speaker 02:
Mr. Nathanson says, gee, I went to a January 11 hearing.

[00:32:04] Speaker 02:
There was no order there about producing phones.

[00:32:07] Speaker 02:
And then I get an order in March.

[00:32:10] Speaker 02:
OK.

[00:32:11] Speaker 02:
And it says, produce the phones.

[00:32:12] Speaker 02:
So what happened in between?

[00:32:16] Speaker 03:
In November of 2020, November 16 of 2020, Judge Snow gives Jones, Watson, and Myers until December 11th, December 11th of 2020, to produce the documents.

[00:32:33] Speaker 02:
But those are the documents that result from Mr. Cook does review.

[00:32:37] Speaker 02:
Correct.

[00:32:38] Speaker 02:
I understand that.

[00:32:39] Speaker 02:
And this may make no difference in the end, but you're answering a different question than the one I'm asking.

[00:32:45] Speaker 02:
At some point, Judge Snow issues an order, his initial order that says, I want you guys to agree on a third party forensic expert and deliver the phones to him.

[00:32:58] Speaker 02:
Actually, he says deliver Ms.

[00:32:59] Speaker 02:
Jones's phone, but then the others are subpoenaed and they end up in his hands too.

[00:33:06] Speaker 02:
Tell me what happened between either at the January hearing or before that order was issued

[00:33:14] Speaker 02:
that led Judge Snow to issue that order?

[00:33:18] Speaker 03:
Well, we get the production from ALTAP on November 15, 2019.

[00:33:26] Speaker 04:
That's when you got it, which was now after the close of discovery.

[00:33:30] Speaker 03:
After the close of discovery.

[00:33:32] Speaker 04:
It was late, but it was related to that discovery.

[00:33:35] Speaker 03:
Right, and those spreadsheets

[00:33:39] Speaker 03:
were given to us.

[00:33:41] Speaker 03:
Those were the spreadsheets that showed the deletion of the 51 text messages.

[00:33:46] Speaker 04:
And 50,000 productions and 51 deletions.

[00:33:49] Speaker 04:
Is that basically accurate?

[00:33:51] Speaker 04:
I'm not sure.

[00:33:52] Speaker 04:
Well, many, many, many productions.

[00:33:55] Speaker 04:
And now you have depositions, what, in December?

[00:34:00] Speaker 03:
Correct.

[00:34:01] Speaker 03:
We have the depositions of the three witnesses in November and December of 2019.

[00:34:05] Speaker 04:
Okay.

[00:34:05] Speaker 04:
And the documents that they were ordered to produce were what?

[00:34:08] Speaker 04:
The text messages?

[00:34:10] Speaker 04:
What were the documents?

[00:34:12] Speaker 03:
They were ordered to produce their phones to the specialists.

[00:34:18] Speaker 03:
That was until March.

[00:34:19] Speaker 03:
Oh, I'm sorry.

[00:34:21] Speaker 04:
Are we talking about the witnesses?

[00:34:23] Speaker 04:
The importance of all this, and we're not even getting to the rest of the issues in the case, is that there's certainly a fair amount of case law, and it's also just logical, that you don't make people produce their private cell phones without a damn good reason.

[00:34:39] Speaker 04:
So what was the reason?

[00:34:41] Speaker 03:
The reason was that there was extensive evidence that Jones had been deleting communications.

[00:34:51] Speaker 04:
Well, the evidence was that it's this evidence from November that there were 51 deletions.

[00:34:57] Speaker 04:
Judge Snow said that was the reason.

[00:34:58] Speaker 04:
He didn't order them in January to do that, and he already knew about the 51 deletions.

[00:35:02] Speaker 04:
That's true.

[00:35:04] Speaker 04:
So what led to the order?

[00:35:06] Speaker 03:
What led to the order was the continuing violation of his orders to produce the phones or to release the data.

[00:35:18] Speaker 02:
Okay, so when did he enter those orders?

[00:35:21] Speaker 02:
Okay.

[00:35:22] Speaker 02:
And don't tell me about the ones later that dealt with the information from COCTA.

[00:35:28] Speaker 02:
Tell me about orders.

[00:35:29] Speaker 02:
No, I'm just trying to figure out, and this may not be dispositive in any way.

[00:35:36] Speaker 02:
I understand what you're saying.

[00:35:37] Speaker 02:
But your friend says, gee, we got blindsided.

[00:35:40] Speaker 02:
We went to a hearing in January, and all of a sudden we got this order, and we never had a chance to talk about it.

[00:35:46] Speaker 02:
I'm not sure it makes a difference.

[00:35:48] Speaker 02:
But I'm trying to figure out what happened between January and the initial order, not in terms of what you got or what he got, but what Judge Snow was told.

[00:35:58] Speaker 03:
between January of 2020 and the March 4, 2020 order.

[00:36:04] Speaker 02:
Did somebody go to Judge Snow and say?

[00:36:07] Speaker 02:
please order them to turn them over?

[00:36:09] Speaker 02:
Did you go to Judge Snow and say, we're not getting the production we required?

[00:36:13] Speaker 02:
I mean, what happened?

[00:36:16] Speaker 02:
Or did he just, as he may have been entitled to, look at the record and say, gee, I see a problem here, and I'm going to issue an order.

[00:36:23] Speaker 02:
I'm missing that interim period.

[00:36:25] Speaker 02:
Tell me what happened.

[00:36:27] Speaker 03:
OK, well, on January 18 of 2020, we received from Plaintiffs' Council the unusable

[00:36:36] Speaker 03:
unsearchable PDF production that is not compliant with.

[00:36:41] Speaker 02:
Okay.

[00:36:42] Speaker 02:
Did you, did you make Judge Snow aware of that?

[00:36:45] Speaker 03:
Yes, we did.

[00:36:46] Speaker 03:
How did you do that?

[00:36:48] Speaker 00:
That was the January 31st hearing.

[00:36:50] Speaker 00:
Correct.

[00:36:50] Speaker 00:
So what happened between the January 31st hearing, um,

[00:36:55] Speaker 00:
There's an extension.

[00:36:56] Speaker 00:
The court denied a request for more time.

[00:36:59] Speaker 00:
Jones produced 12-page PDF with more text messages.

[00:37:02] Speaker 03:
After the January 31st hearing, we reported to the district court in February, February 21 of 2020.

[00:37:13] Speaker 03:
What I just described earlier.

[00:37:17] Speaker 00:
Was that the trigger of the March 4th order or what was the approximate cause of the March 4th order from the court?

[00:37:24] Speaker 03:
Why did you report?

[00:37:26] Speaker 03:
On February 28th, so we're less than a week out of March 4th, the parties submitted position statements.

[00:37:35] Speaker 03:
to the district court outlining where discovery stood at that time.

[00:37:41] Speaker 03:
And those position statements are in the record.

[00:37:44] Speaker 03:
And it was based on that that the court conducted that hearing on March 4th.

[00:37:51] Speaker 04:
So there was a hearing on March 4th?

[00:37:53] Speaker 04:
I thought he says there wasn't a hearing on March 4th.

[00:37:55] Speaker 04:
Well, it was telephonic.

[00:37:56] Speaker 04:
Telephonic hearing.

[00:37:57] Speaker 04:
It was telephonic.

[00:37:58] Speaker 04:
Yeah.

[00:37:59] Speaker 04:
It was telephonic.

[00:38:00] Speaker 04:
But there was a communication.

[00:38:01] Speaker 04:
So when he says it came out of the blue, he's wrong.

[00:38:04] Speaker 04:
Respectfully, yes.

[00:38:06] Speaker 02:
Okay, so I don't want us to stay on this chronology for that.

[00:38:11] Speaker 02:
Maybe just for the next three seconds.

[00:38:13] Speaker 04:
But there is, in fact, a threshold question of whether or not this was justified.

[00:38:19] Speaker 04:
And it took us this long to get to the point, knowing that there was some change

[00:38:25] Speaker 03:
that led Judge Snow to do this.

[00:38:27] Speaker 03:
And I apologize for not fully understanding the question, but once I got the parameters of the time down.

[00:38:33] Speaker 03:
And what did you tell Judge Snow that would have led him to do this?

[00:38:36] Speaker 03:
What did we, I'm sorry?

[00:38:37] Speaker 03:
What did you tell Judge Snow that would have led him to do this?

[00:38:41] Speaker 03:
what we told him in our discovery position statements.

[00:38:45] Speaker 02:
And you got an unusable discovery.

[00:38:47] Speaker 02:
Well, it wasn't just that.

[00:38:51] Speaker 02:
You made the judge aware of the nature of the responses to your discovery requests in the period between January and March.

[00:39:01] Speaker 02:
He held a telephonic conference in March.

[00:39:04] Speaker 02:
And as a result of that conference, you should in order, since you and the other side had opposite positions about the status of discovery for the phones to be turned over to third party vendors.

[00:39:15] Speaker 02:
All right.

[00:39:15] Speaker 04:
So to move on.

[00:39:17] Speaker 02:
So let's move on.

[00:39:18] Speaker 04:
Oh my goodness.

[00:39:20] Speaker 04:
What I mean, what I'm interested in is how

[00:39:25] Speaker 04:
we apply this rule in the sense that what's difficult about it is that obviously if you don't have the messages, I'm not even talking about the inference that there were dilations and we can assume that it's a fair inference for this purpose, how does one

[00:39:51] Speaker 04:
decide whether they were intentional, and does one need to decide whether there's prejudice, and how do you do that?

[00:39:59] Speaker 03:
Well, Judge Berthold, you were correct about what the advisory committee notes say about prejudice.

[00:40:05] Speaker 03:
I know I was correct.

[00:40:06] Speaker 03:
I wouldn't have said it if I didn't know the answer.

[00:40:08] Speaker 03:
Go ahead.

[00:40:09] Speaker 03:
OK.

[00:40:09] Speaker 03:
So prejudice can be inferred if there's a finding of intent.

[00:40:14] Speaker 03:
But does prejudice need to be found?

[00:40:19] Speaker 03:
According to the plain language of 37E2, I believe the answer is yes.

[00:40:25] Speaker 04:
No, it's not an E2.

[00:40:27] Speaker 04:
Hold on.

[00:40:27] Speaker 04:
Hold on.

[00:40:31] Speaker 02:
Well, E2 doesn't require prejudice on its face.

[00:40:36] Speaker 03:
It says, upon finding prejudice.

[00:40:39] Speaker 03:
That's one.

[00:40:39] Speaker 03:
Yes.

[00:40:40] Speaker 03:
Right.

[00:40:41] Speaker 03:
And then E2 requires the intent.

[00:40:43] Speaker 00:
Right.

[00:40:44] Speaker 00:
And then there's the or between the two.

[00:40:45] Speaker 00:
So there's no requirement in the rule for prejudice.

[00:40:49] Speaker 00:
Correct.

[00:40:51] Speaker 00:
So what's your position on whether prejudice is required?

[00:40:55] Speaker 00:
And if it were, what is it?

[00:40:59] Speaker 03:
Well, Judge Snow, if it's required, and I'm not sure it is because it wasn't briefed, if it is required, Judge Snow found prejudice.

[00:41:10] Speaker 04:
OK, but all he knows is that how do you find prejudice from what's not there?

[00:41:17] Speaker 03:
When the scope of the what's not there is as massive as what this record show, I think a reasonable inference of prejudice.

[00:41:29] Speaker 00:
Why can't, why wouldn't it be, um, to the extent the rules require it anymore, notwithstanding our cases, why wouldn't you leave that to the jury?

[00:41:41] Speaker 00:
Just provide an adverse inference instruction.

[00:41:43] Speaker 00:
Why is that narrower sanction not sufficient?

[00:41:46] Speaker 03:
because these deleted messages all went to credibility.

[00:41:53] Speaker 03:
And what lesser sanction would remedy our client's inability to test the truthfulness of the witnesses as they're telling their stories?

[00:42:07] Speaker 03:
So what kind of jury instruction would Judge Snow give that would say to the jury,

[00:42:15] Speaker 03:
believe but don't believe the witnesses.

[00:42:17] Speaker 00:
You hired the expert here.

[00:42:19] Speaker 00:
I didn't believe your client hired the expert here.

[00:42:21] Speaker 00:
Put him on the stand and say, there's all these, all these texts are missing.

[00:42:25] Speaker 00:
Make what you will of it.

[00:42:27] Speaker 00:
Um, so that's, that's not sufficient.

[00:42:29] Speaker 00:
Dismissal with prejudice was, is required by the rules.

[00:42:32] Speaker 03:
It's permitted.

[00:42:34] Speaker 03:
Remember your standard, your honor.

[00:42:36] Speaker 03:
It's not whether dismissal was required.

[00:42:39] Speaker 03:
The standard of review here is whether you, you are left with a clear and firm conviction that a clear error has been made.

[00:42:45] Speaker 03:
The district court's choice of the sanction.

[00:42:48] Speaker 03:
How do we review Judge Snowes?

[00:42:51] Speaker 04:
I'm sorry.

[00:42:52] Speaker 04:
Well, I was just saying that this is dismissal of a lawsuit.

[00:42:55] Speaker 04:
You'd think that it should have a pretty high threshold.

[00:42:58] Speaker 03:
Very high threshold.

[00:43:00] Speaker 03:
And Judge Snow exercised the patience of Job in working with the parties for years.

[00:43:10] Speaker 03:
to resolve this discovery dispute.

[00:43:14] Speaker 02:
Judge Snow made some findings about why lesser sanctions would not be.

[00:43:18] Speaker 02:
He most certainly did.

[00:43:20] Speaker 02:
How do we review those findings?

[00:43:22] Speaker 03:
Abuse of discretion.

[00:43:25] Speaker 03:
Well, the factual basis for clear error and his findings as to the inefficacy, if you will, of lesser sanctions.

[00:43:38] Speaker 02:
And the part about inferring prejudice, you have to not only have intentional conduct to infer prejudice, you have to make some finding that the materials, exfoliated, if that's a verb, were likely relevant to the case.

[00:43:56] Speaker 02:
Do you not?

[00:43:57] Speaker 02:
Correct.

[00:43:57] Speaker 02:
And he made those findings too.

[00:43:59] Speaker 02:
Correct.

[00:44:01] Speaker 02:
So it's just not that he assumed prejudice from what he found to be intentional conduct.

[00:44:06] Speaker 02:
He had a basis for finding that the materials not there likely had to do with the case.

[00:44:14] Speaker 02:
Correct.

[00:44:15] Speaker 03:
Correct.

[00:44:16] Speaker 00:
Mr. Nakamura, if I may just, yes.

[00:44:19] Speaker 03:
20 seconds.

[00:44:21] Speaker 03:
I just want to put this case in a broader context.

[00:44:26] Speaker 03:
We're not fighting this tooth and nail because we think there's a technical reading of the law that gets us off the hook.

[00:44:34] Speaker 03:
We're fighting this because as a result of spoliation that took place over the course of years, my client has been deprived of the opportunity to present its best defense.

[00:44:46] Speaker 03:
And that defense is that this lawsuit is based on fiction, not fact.

[00:44:51] Speaker 04:
When I was referring to some ticks,

[00:44:54] Speaker 04:
there are in the record.

[00:44:55] Speaker 04:
I don't know what from what time period, um, which seemed to support that conclusion.

[00:45:00] Speaker 04:
Why weren't those good enough?

[00:45:03] Speaker 03:
Why weren't what good enough?

[00:45:04] Speaker 04:
The text that I was referring to before where her colleagues were saying about the foster screenshot.

[00:45:15] Speaker 04:
No, I'm talking about some texts that I don't know what time period they're from, where the witnesses say, you know, you made all this up, you're a liar, you're trying to get money and all that.

[00:45:27] Speaker 04:
What are those from?

[00:45:28] Speaker 03:
I mean, there were several of those.

[00:45:32] Speaker 02:
Right.

[00:45:32] Speaker 02:
What period are those from?

[00:45:34] Speaker 02:
I don't remember.

[00:45:35] Speaker 02:
My understanding was they didn't come from the witness, but from her boyfriend.

[00:45:39] Speaker 02:
Is that right?

[00:45:41] Speaker 04:
No, some of them came from the witnesses.

[00:45:43] Speaker 04:
I'm sure they did.

[00:45:44] Speaker 03:
It probably came from both.

[00:45:47] Speaker 03:
But as we say in our brief, this dismissal was not based on what was found.

[00:45:56] Speaker 04:
This dismissal was based on what was not.

[00:45:58] Speaker 04:
I know, but in terms of prejudice, if you already have plenty of evidence that she made it all up, why do you need more?

[00:46:03] Speaker 03:
But who is to be the final arbiter of plenty?

[00:46:09] Speaker 03:
I mean, as matters, as, as the truth came out, truth being the extent of the spoiliation, the universe of plenty was huge.

[00:46:18] Speaker 04:
But you could go to the jury with the evidence that she made it up from these text messages you do have and with the deletion.

[00:46:26] Speaker 04:
So I mean, it's really a question of how high the threshold ought to be for a dismissal, but why, why were you, what, what chance was there that, that, that,

[00:46:37] Speaker 04:
the jury wasn't going to find that this story was made up.

[00:46:40] Speaker 03:
We don't know, but we should not be left in a position of having to defend ourselves, defend ourselves without the full panoply of the text messages to test whether or not this lawsuit is fact or fiction.

[00:46:59] Speaker 03:
And that's really all I have to say.

[00:47:01] Speaker 00:
Thank you very much, Mr. Nakamura.

[00:47:03] Speaker 00:
Thank you.

[00:47:05] Speaker 00:
Mr. Nathanson.

[00:47:07] Speaker 01:
two minutes.

[00:47:08] Speaker 01:
If I may too, may make two quick points first at the same January 31st hearing Judge Snow said to me, it seems to me they're not going to win on summary judgment to the extent they're going to argue this practice didn't occur because it looks to me like you've got pretty good evidence that a leaf, at least with respect to your client, it did.

[00:47:37] Speaker 01:
So this business about a frivolous case.

[00:47:41] Speaker 02:
All he said was, you have evidence that would get you past summary judgment.

[00:47:47] Speaker 02:
He didn't say it wasn't manufactured evidence or that it was credible evidence.

[00:47:52] Speaker 02:
He was just saying, it looks to me like this is not a summary judgment case because you have witnesses and your client who said that this happened.

[00:48:01] Speaker 02:
He wasn't making a determination of the strength of the case.

[00:48:05] Speaker 01:
I understand your point, Your Honor.

[00:48:07] Speaker 01:
prior to that January 31st hearing, all these depositions and documents had been produced to Judge Snow, and he said he reviewed it all.

[00:48:17] Speaker 01:
Now, I have one last point, if the court will permit me.

[00:48:22] Speaker 01:
At pages 14 and 15 of the defense brief, they say what is true

[00:48:30] Speaker 01:
that the district court ordered production of the non-privileged extracted data directly to RHG, Riot Hospitality, which means at the end of this whole process with Mr. Kuchta, he had created these voluminous spreadsheets of the entire contents of every phone.

[00:48:52] Speaker 01:
Judge Snow gave those spreadsheets to the defense.

[00:48:57] Speaker 01:
I'm not talking about just text messages.

[00:49:01] Speaker 01:
I'm talking about conversations with their children, with their husbands, with their employers, the entirety of the contents, inventoried contents.

[00:49:14] Speaker 04:
Wasn't that because you were asked to make privilege determinations or requests and you didn't

[00:49:21] Speaker 01:
Well, respectfully, Your Honor, I don't remember that.

[00:49:25] Speaker 02:
Well, there's an order from Judge Snow that says, here's how this is going to work.

[00:49:30] Speaker 02:
Cokter is going to look at this stuff.

[00:49:32] Speaker 02:
He's then going to send stuff that meets search terms that you'd stipulated to, to Mr. Nathanson.

[00:49:40] Speaker 02:
And Mr. Nathanson can then make up a privilege log out of that and give the stuff that's relevant to the other side.

[00:49:50] Speaker 02:
bothered Judge Snow, I think a lot, was that you never did that, despite getting multiple extensions and orders to do so.

[00:49:59] Speaker 02:
I never got the documents.

[00:50:02] Speaker 01:
I got spreadsheets.

[00:50:04] Speaker 04:
And what's wrong with spreadsheets?

[00:50:06] Speaker 01:
What's wrong with spreadsheets?

[00:50:07] Speaker 01:
It's not a text message.

[00:50:08] Speaker 04:
The spreadsheets had... But it included the text message.

[00:50:12] Speaker 01:
They did.

[00:50:13] Speaker 01:
Right, so you had the text message.

[00:50:14] Speaker 01:
They did.

[00:50:15] Speaker 04:
So what's the problem?

[00:50:18] Speaker 04:
I don't get it.

[00:50:19] Speaker 04:
I mean, you had the text messages on a spreadsheet.

[00:50:21] Speaker 04:
You wanted them not on a spreadsheet.

[00:50:23] Speaker 01:
The spreadsheets had all kinds of personal information.

[00:50:25] Speaker 02:
And that's what Judge Snow said.

[00:50:27] Speaker 02:
You can, in effect, redact these in the order.

[00:50:32] Speaker 02:
I'm sending them to you first, because I don't want them to go directly to the other side.

[00:50:36] Speaker 02:
There may be a lot of irrelevant stuff.

[00:50:38] Speaker 02:
There may be privileged stuff.

[00:50:39] Speaker 02:
So Mr. Nathanson, you can look at this stuff, make up a log of what you're not sending on to Mr. Nakamura.

[00:50:47] Speaker 02:
and then send on the rest to him, and you never did.

[00:50:49] Speaker 01:
I asked for PDF documents to produce of text messages.

[00:50:55] Speaker 01:
Okay, but I mean... And I was told I would get them by Mr. Kuchta.

[00:51:00] Speaker 04:
But that's an incredibly, you know, technical response.

[00:51:04] Speaker 04:
You have the messages.

[00:51:06] Speaker 04:
You can claim privilege as to message, you know, on spreadsheet this line and on spreadsheet that line, and you don't do it.

[00:51:14] Speaker 04:
What difference does it make if it's a separate document?

[00:51:16] Speaker 04:
I was baffled by that.

[00:51:19] Speaker 01:
Because I interpreted Judge Snow's orders to mean I had to produce documents containing text messages, not the inventory of all the cell phones, which is what they ended up with.

[00:51:31] Speaker 01:
So my only point on this is, if the issue is prejudice, they got the entirety of all these cell phones.

[00:51:42] Speaker 01:
So where's the prejudice?

[00:51:43] Speaker 04:
Well, the prejudice is that there was stuff on there that wasn't there.

[00:51:47] Speaker 00:
Okay.

[00:51:48] Speaker 00:
Well, thank you, Mr. Nathanson.

[00:51:49] Speaker 00:
Thank you.

[00:51:52] Speaker 00:
This is submitted.

[00:51:54] Speaker 00:
We'll be in recess for today.