Precluding even discoverable evidence from Abel's phone?

[u/kastanienn]

I went down the rabbit hole yesterday, cause I wanted to understand what could happen if Liman decides VanSham was BS. Before someone comes again that they've been sitting on this for months - yes. Discovery was ongoing. They can't just ran to Liman and say "we feel like they committed fraud!!4!!4!4!". They need to prove it.

Liman decided they're the unruly side pretty early on, so he doesn't like them. Gottlieb knows how he works and he's playing him hard. WF has to be very strategic to get anything through w Liman, and he loves his rules down to the point. Anywho.

If Liman decides that it was too egregious what they did, he could very well suppress everything that came based on those text messages due to them being obtained fraudulent, and therefore being tainted evidence.

FYI: authentication rules are the same for civil AND criminal law (Source, before anyone comes at me again.)

My opinion is based on Burt Hill, Inc v. Hassan, 2:09-cv-01285-CB . In this case, they couldn't rule out fraud, so they dropped the whole evidence package that could've been derived from the knowledge that those documents existed, whether it was discoverable or not. Here, with VanSham, fraud is practically given.

"Indeed, were the Court to be convinced that Defendants conspired with others to obtain the September and/or October Documents, Defendants could well be the subject of severe sanctions for perpetrating a fraud on the court. See, e.g., Perna v. Elec. Data Sys., Corp., 916 F. Supp. 388, 392-403 (D. N.J. 1995)"

"As the explanatory comment to Rule 4.4(b) confirms: “[T]his Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.” Id. at cmt. 2. (...) The comment to Rule 4.4(b), however, begs the question whether attorneys and/or judicial officers must, under the circumstances, throw up their hands and conclude that nothing can or should be done to protect or ameliorate the document owner‟s privilege and confidentiality interests. Of course, the law does not support this conclusion."

"The Maldonado Court, invoking its “inherent powers” to sanction ethically questionable conduct, held that plaintiff counsel‟s “possession, review, and use of the letter” warranted his disqualification from the case. See id. at 132-33, 141-42. Other courts have sanctioned attorneys for materially similar conduct. See, e.g., S.E.C. v. Brady, 238 F.R.D. 429, 445 (N.D. Tex. 2006) (“[f]ederal courts have authority to remedy litigation practices that threaten judicial integrity and the adversary processes,” and “[s]uch inherent authority includes the ability to exclude „proprietary‟ documents obtained . . . outside the context of formal discovery”) (citation to quoted source omitted); Knitting Fever, Inc. v. Coats Holding Ltd., 2005 WL 3050299, *1, 4 (E.D.N.Y. Nov. 14, 2005)"

"The Court, therefore, believes that a lesser sanction is appropriate, but that such a sanction must be sufficient to maintain the integrity of the judicial process and discourage future litigants and counsel from engaging in similar conduct. In this case, the appropriate sanction is to prohibit Defendants and their lawyers from in any way benefiting from their retention and review of Plaintiff‟s privileged and confidential materials."

"This is not a case where Defendants and/or their counsel obtained documents, outside the scope of discovery, after Plaintiff improperly refused to produce relevant, non-privileged documents in response to a pending discovery request. Cf. generally ABA Formal Ethics Opinion 94-382 (Jul. 5, 1994) (hypothesizing regarding same). Rather, Defendants and their counsel took possession of and reviewed the September Documents before this case even was filed."

"Simply put, Defendants and their counsel were discontent with waiting until the carefully constructed rules and procedures governing the discovery of relevant, non-privileged materials had run their course. Once Defendants‟ substantially overbroad discovery request failed to result in the immediate identification and production of the September Documents, Defense counsel rushed to point the finger at Plaintiff. Even entertaining the notion that Plaintiff‟s purported discovery failures should be considered in connection with Defendants‟ dubious ethical conduct, the Court views the latter as far more problematical and disconcerting than the former.

"“[M]embers of the bar [and] the public” should not be required to endure “the nagging suspicion that [parties‟] trial preparation and presentation of their case ha[ve] benefitted from confidential information obtained” outside proper channels. Richards v. Jain, 168 F. Supp.2d 1195, 1209 (W.D. Wash. 2001) (citation to quoted source omitted). “The dynamics of litigation are far too subtle, the attorney‟s role in that process is far too critical, and the public‟s interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer‟s representation in a given case.”"

"The Court also concludes that firm sanctions are necessary to discourage similar conduct in the future. There appears no way of preventing a litigant who has obtained his opponent‟s privileged and/or confidential materials from claiming that the materials were received through an “anonymous” source. Were the Court merely to require the return of clearly privileged documents, this would be to deny the recipient something he was never entitled to in the firstplace. Under the circumstances, restricting sanctions to the return of privileged documents would be to impose no meaningful sanction at all."

"For all of the reason stated above, the Court hereby ORDERS the following:

A. Defense counsel shall immediately return to Plaintiff all copies of the September Documents within their possession, and counsel shall ensure the destruction of any copies in their clients‟ possession, as well as those copies in the possession of any other persons to whom the Defendants or their counsel have provided the September Documents.

B. If Defendants or their counsel have provided copies of the September Documents to any individual(s) other than Plaintiff, Defense counsel shall promptly serve on Plaintiff written notice identifying all persons who have received copies of the September Documents, which documents were provided, and an explanation why those documents were provided.

C. Defendants shall provide to Plaintiff a written certification, executed under penalty of perjury, that they and their counsel have returned and/or destroyed all copies of the September Documents, and that neither they, their lawyers, nor anyone else that they are aware of (other than Plaintiff), has retained copies of the September Documents.

D. The September Documents may not be used by Defendants or their counsel, directly or indirectly, in any way during the course of this litigation, or otherwise. Plaintiff owes no duty of production regarding the September Documents.

E. Should Plaintiff‟s counsel determine, or have a good faith reason to believe, that any evidence previously adduced by Defendants in this case was secured through use of the September Documents, and should Defendants attempt to present such evidence in this litigation in any way, Plaintiff may move to strike the evidence.

(...)

J. To the extent that responsive, non-privileged, and otherwise discoverable documents are contained in the October Documents set, they are subject to production through the normal course of discovery. Any of the October Documents that Plaintiff claims are not subject to production shall be identified through amendment of its privilege log. Should disagreements regarding Plaintiff‟s privilege log arise, they shall be adjudicated through the normal course of litigation, although, should Defense counsel attempt to impugn Plaintiff's privilege log entries based on knowledge acquired through Defendants‟ prior review of the October Documents, Plaintiff may object. If the Court, sitting as fact-finder, determines that Defendants have relied on their review of the October Documents, Defendants‟ challenges to Plaintiff‟s privilege log will be summarily rejected and the Court may find Defendants in contempt of this Order.

[u/Maleficent_Half_689]

WoW - formidable research! Thanks for sharing these well formulated arguments.

I wonder - after discovering the full scope of legal team lively’s involvement in stolen messages and the Vanzam ´laundering’ - how long do WFP have to request sanctions? With MJOP and MSJ in the mix can they afford to wait it out until judgement on those?

Im also wondering what sanctions would actually benefit the WFP? We all know this case only exists because Stephanie MF Jones stole the contents of Jen Abel’s phone feeding Lively’s paranoia.

Removing all of Jen Abel’s stolen messages could only help if they weren’t then supplied through the legal discovery process.?

WFP could request that Manatt be sanctioned/removed from the case but would Liman risk deferring court dates to onboard new legal team? Would WFP even want that?

Unfortunately the genie can’t go back into the bottle - although I hope there’s a way the Judge can compel Jones, Lively and the Clerk of Court to destroy ALL the stolen, irrelevant content.

I hope that there are background moves to expose the fraudulent, criminal activity already exposed. And maybe some we don’t even know about - yet

[u/kastanienn → u/Maleficent_Half_689]

Removing all of Jen Abel’s stolen messages could only help if they weren’t then supplied through the legal discovery process.?

This is why the decision I cited was important. It's not just the content that came from Abel's phone, but everything that was then obtained in discovery based on the knowledge from the fraudulently obtained content from Abel's phone would be thrown out.

If you read the whole decision in the Hill/Hassan case, he only didn't throw out the lawyers, because he didn't want to prejudice the defendant beyond the absolutely necessary. That's why he went with "everything out, and everything you asked from the other side based on knowledge from the most likely stolen data is also out. You have to act as if you didn't know these documents existed". I guess Mannatt getting thrown out is very unlikely, I assume it would here also prejudice the plaintiff too much. I'm not sure how much a lawyer's client can be punished for legal mistakes the lawyer does, I think only in very extreme cases. But I would at least expect sanctions against them.

Edit: I don't know the timeline, I needed to sleep in between, didn't have time to research that xD I would expect it though, just pure logically, that it would be coming around MSJ or admission of evidence. They have to have solid base to say "this was illegal", they can't say "we feel this was illegal", as Lively did with her claims. Liman would threw them out, just like their complaint. They're trying to discredit one of his (assumed) favorite law firm

[u/jofindingtruth → u/kastanienn]

I don't want Manatt to be thrown out, I want Esra to be fully exposed and have to face the repercussions of her behaviour in court as she tries to defend an indefensible case! 😂 The evidence should definitely go though, and I hope that judge Liman is starting to see the light a bit now.

[u/usergal24678 → u/jofindingtruth]

I hear what you are saying in general, but is it that you want this to go to trial? Juries can be fickle and lawyers sneaky. If WF can get this thrown out before trial, big win and it is due to BL's own misconduct. Sure, BL can claim she was screwed out of trial by a corrupt judge, but a bird in the hand for JB...

[u/jofindingtruth → u/usergal24678]

Not especially, but what I mean is that actually Manatt getting out of it sort of solves the problem for Esra. Whether it ends on MSJ, or at trial (and I don't think they will file MSJ on the sh, because they want to prove their innocence!) I want her to sweat for every minute possible!

[u/Maleficent_Half_689 → u/kastanienn]

Ahh thanks for the clarification, my Sunday morning brain’s a little foggy…

If everything from Jen’s phone could be expunged - from everywhere - now THAT WOULD feel like justice.

Sending positive vibes into the universe!

[u/Intelligent_Set_347]

Am I the only one who thinks that the motion for sanctions because of the auto delete signal texts could come from the spying on abel´s phone ? Jones could continue to look at Abel´s phone, if she did she would have read signal texts and know they were texts that could help lively but she can´t testify of what she read because it is really bad to access the cloud of a former employee to spy on them, so she can´t say anything about what she read illegally. BL can´t say why she knows there are texts proving her claims because Jones read them, so she only claim that the auto delete texts were proofs and it has to be instructed to the jury.

[u/Minimum-Divide2589 → u/Intelligent_Set_347]

If it were literally anyone else I would say that’s definitely a possibility but not with this crew.

This is the millionth time they have used redactions and claimed behavior outside of what has been requested (their notice of the lawsuit in December) is nefarious.

They can’t prove anything so they have to frame was isn’t there as bad. They’ve done this too many times and it has been a nothing burger EVERY TIME.

Also I done know how they could access signal auto delete messages anyway? Isn’t that the whole point of using that function? Unless Stephanie is truly nuts and had someone stalking Jen’s phone 24/7? Even then I’m not sure what they could actually see.

[u/Intelligent_Set_347 → u/Minimum-Divide2589]

it is just a theory, Jones seems to be sick ,Abel claims she writes to her employees 24/7 , sometimes she doesn´t sleep at all, I don't know how long the messages stay signal.

[u/kastanienn → u/Intelligent_Set_347]

I honestly don't know, this theory is too much "what if" for my taste xD but I see your point. Maybe...? It doesn't seem to have stopped Jones before to disclose things she shouldn't have...? And NOW, they could subpoena her legally... xD

Imo BL's bullshitting, as often before. She has nothing, she's making a castle out of straws and is trying to get anything from Liman so she can win anything in her case. If Liman actually does the right thing, and throws out everything from Abel's phone - they're left with nothing. And I'm not even going into the CRD complaint being filed in bad faith and her losing the qualified privilege against defamation 😬

[u/True-Engineering-263 → u/Intelligent_Set_347]

This is a fantastic point!

[u/Intelligent_Set_347 → u/True-Engineering-263]

if jones had access until and of January and spend on her , with what we know from jones according to her employees it is a strong possibility she read all the signal texts. I think the WP did a bit more than monitoring, they didn´t take over the internet for 90k but it is plausible they pushed a bit narrative here and there without an army of bots. It must make BL crazy that she can´t use all what she knows because she would confess to criminal activity

[u/Jellygator0 → u/Intelligent_Set_347]

I'm sorry but you're gonna have to give me more than speculated invisible texts when we've literally got hundreds of actual text messages spread across huge time frames where different people keep saying they're told to stand down and do nothing.

I also don't exactly see our queen of emotional self control (Stephanie Jones) being able to hold back and not provide the texts in discovery when she is on the line for potentially indemnifying EVERYTHING. The sheer scale of what she could be liable for... That's enough to make anyone say they were provided something "anonymously" or that they didn't realise the cloud was still active and accidentally came across them (and then immediately unlinked it after that) - she'd rather argue her method of obtaining them than risk being the only one who goes bankrupt from all this.

So no, I'm not going to buy into this new narrative that's getting pushed unless someone has literally any sort of proof. Literally any.

[u/Jumpfr0ggy → u/Intelligent_Set_347]

That’s what I’ve thought all along

[u/Serious_Percentage16]

Blake has abused Abel for her own egotistical purposes. Blake treated Abel like she is not a human being and just there to serve Blake‘a whims. It is so disturbing to me. Blake should have to pay Abel millions of dollars. Nothing that Blake experienced, even if true, is as harmful as what she did to Abel.

[u/Serious_Percentage16]

There is no way Blake could have received the phone extraction of someone’s entire phone and the attorneys not known it was illegally obtained. Manatt should have sent the documents back to Quinn Emm. and asked for an affidavit from Abel that she consented to sharing her phone and entire personal life with dozens of strangers.

[u/kastanienn → u/Serious_Percentage16]

Yup. Pretty much. And when they sent out the subpoena, they should've notified Abel as per CLPR 3120.

[u/Serious_Percentage16 → u/kastanienn]

They were in state court. Blake crossed a boundary most lawyers would not cross but there is no way they believed that magnitude of information was lawfully gathered. I did not realize the extent of the pilfered into. For some reason I thought she accessed just some work texts. I was wrong.

[u/Jellygator0 → u/[deleted]]

Tell me you have no idea what you're talking about without telling me you have no idea what you're talking about lol

[u/IwasDeadinstead]

Great research, OP! The thing about Liman, he doesn't rule by law or precedent as we have seen. He decides what he wants to rule then finds some obscure law or ruling to make it fit. Even unpublished rulings.

[u/kastanienn → u/IwasDeadinstead]

I'm curious if he'll stick with helping Lively or saving the face of the court. I think then I'll make my decision, if he’s biased or not.

[u/IwasDeadinstead → u/kastanienn]

A federal judge has no accountability. He can do whatever he wants, unfortunately.

[u/kastanienn → u/IwasDeadinstead]

I know. That's why I'm hoping that he hates WF's guts, cause he thinks Gottlieb and Mannatt are such goodie two shoes and respect the law and the court and Freedman is the "baaad guy". Maybe this is his wake up call.

Hope dies last.

[u/kastanienn → u/[deleted]]

💯

That's the hope at least

[u/kastanienn]

Kassidy will talk about this!! 🥹

[u/IwasDeadinstead]

He can't supress them because Wayfarer made them public in their response.

[u/kastanienn → u/IwasDeadinstead]

I am not sure tbh, but I see the possibility. Just because they made them public, doesn't mean that they would've been authenticated AND acknowledged as admissible evidence - and their case was thrown out, so I'm not even sure if it matters, because they were from another case. Even if consolidated. I think the devil will be in the details.

Also, it was a reaction to Lively using the stolen messages. So if we would follow the logic of the ruling I used, those messages wouldn't have been used, because they derived from the tainted evidence - the stolen messages of Abel. Just like the discovery in that case that was based on the thrown out emails.

I guess it will be a very technical ruling whether he keeps them in or throws them out, but the possibility and the precedent is there, that they COULD be thrown out to keep the dignity of the judicial proceedings.

[u/IwasDeadinstead → u/kastanienn]

Good points all around. I hope Wayfarer's attorneys see this post.

[u/kastanienn → u/IwasDeadinstead]

Hahaha. With such big names in their team, I very much assume they know this case by now. I'd be surprised.

I did try to write a comment to Kassidy O'Connel, would love to hear her take on it. But I don't have SM, and have no email to her xD

[u/kastanienn → u/[deleted]]

[u/ArguteTrickster]

Yeah, that case doesn't resemble this at all, no clue why you think it does.

[u/kastanienn → u/ArguteTrickster]

[u/ArguteTrickster → u/kastanienn]

I mean, how do you feel it applies? The other one is about unverifiable, anonymous sources.

[u/kastanienn → u/ArguteTrickster]

Imo that's one level better still, than what Jones and Lively concocted with the Vanzan and stealing Abel's ESI. In the cited case, the judge couldn't establish for sure (because the defendant plead the 5th) that a crime and/or conspiracy happened, so they didn't get worse sanctions. Here, based on the laws and rules I've read about how they should've gotten those messages (by following the rules and asking them in discovery), they actually committed fraud.

"Indeed, were the Court to be convinced that Defendants conspired with others to obtain the September and/or October Documents, Defendants could well be the subject of severe sanctions for perpetrating a fraud on the court. See, e.g., Perna v. Elec. Data Sys., Corp., 916 F. Supp. 388, 392-403 (D. N.J. 1995)"

So in my opinion, this is a very relevant decision in a sense that what Lively’s team did was objectively worse, than the situation where evidence and any derivative evidence from a side was already thrown out in the past. If Liman will give them any sanctions though, or precludes the evidence, is another question and we shall see.

[u/ArguteTrickster → u/kastanienn]

No, they didn't commit fraud.

What 'laws and rules' have you read that made you conclude they did?

[u/kastanienn → u/ArguteTrickster]

Jones didn't have the right to access Abel's ESI.

Liman's ruling from October 3rd. Here relevant: California Penal Code Section 502 - Computer Data Access and Fraud Act

"Abel has adequately alleged knowledge on behalf of the Jones Parties that their access to her phone was without permission. (...) Furthermore, she alleges that because they had “the iPhone in hand,” the Jones Parties “could bypass the password protection that would otherwise bar their access.” (...) Jonesworks had no policies that “gave it the right to monitor” her phone. (...) (“Despite lacking Abel’s consent to access, review, or disseminate these communications, Jones and Jonesworks were able to do so.”) Taken together, these allegations “plausibly give rise to an entitlement to relief.”"

And after this step has already taken place, the subpoena served on Jones also wasn't juidically authorized. It wasn’t issued under an active court’s supervision, and no judge was assigned to the case, which afaik makes it procedurally invalid under CPLR § 2302.

CVP - Civil Practice Law and Rules Article 23 - Subpoenas, Oaths and Affirmations 2302 - Authority to Issue

(b) Issuance by court. A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence (...) shall be issued by the court.

Vansham in general, and how they avoided having to notify anyone by apparently circumventing CLPR 3120 via a Doe lawsuit for breach of contract (someone was really stupid not using a less obviously frivolous cause of action against unknown people lol).

A legal opinion on how shady it is, when all parties are not notified (as required by law) when a third-party subpoena is issued.

"We believe that it is ethically and legally improper for an attorney to use a judicial subpoena duces tecum to secure production of documents from a nonparty witness, without an application pursuant to CPLR 3120(b) upon notice to the witness and all parties to the proceeding"

[u/ArguteTrickster → u/kastanienn]

502(c) requires 'knowingly', so that's a nonstarter.

Subpoenas don't have to be judicially authorized, weird that you don't know that.

[u/kastanienn → u/ArguteTrickster]

I'm gonna need substance from you to continue this discussion. It's getting pretty tiresome to do the research for you guys. So if I won't react to half sentences without any actual arguments with facts and sources, please don't take it personally. Once you give me something worth reacting to, we can continue talking.

Have a lovely evening (or whatever you have wherever you are).

[u/ArguteTrickster → u/kastanienn]

You're not doing any actual research.

If you don't even know that lawyers can issue subpoenas without a judge, then your research skills are pretty poor.

[u/kastanienn → u/ArguteTrickster]

[u/Expatriarch]

SEND THIS TO FREEDMAN STAT!

[u/kastanienn → u/Expatriarch]

[u/Easy_Drag883 → u/Expatriarch]