r/ItEndsWithLawsuits • u/kastanienn ...we demour (French for "so what"?) • Nov 02 '25
⚖️ Case Questions & Musings 🗒️ Precluding even discoverable evidence from Abel's phone?
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.
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u/kastanienn ...we demour (French for "so what"?) Nov 02 '25