Author Topic: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery  (Read 18501 times)

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Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #90 on: May 01, 2013, 03:11:01 PM »
All I get for the newly-added links is "Error 404: File not found."

Yeah, me too.  But I figured out "the code" and was able to get them.

Minutes from April 3 Docket Sounding

Order to Inspect and Photograph Evidence

Let me know if you want any of the other ones.  The Affidavit of Fees is a filing from April 10.  I don't know if it's a repeat by the clerk, or just getting around to making a public link.
« Last Edit: May 01, 2013, 03:13:07 PM by cboldt »

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #91 on: May 01, 2013, 03:37:51 PM »
Yeah, me too.  But I figured out "the code" and was able to get them.

Minutes from April 3 Docket Sounding

Order to Inspect and Photograph Evidence

Let me know if you want any of the other ones.  The Affidavit of Fees is a filing from April 10.  I don't know if it's a repeat by the clerk, or just getting around to making a public link.

Thank you.

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #92 on: May 01, 2013, 03:44:11 PM »
A strange line in the minutes: "Court does not find there has not been a discovery violation ...."

I don't have the patience right now to go back through the YouTube video of the hearing, but I assume Nelson said there wasn't a discovery violation.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #93 on: May 01, 2013, 03:48:41 PM »
A strange line in the minutes: "Court does not find there has not been a discovery violation ...."

I don't have the patience right now to go back through the YouTube video of the hearing, but I assume Nelson said there wasn't a discovery violation.

I think it's a typo in the minutes.  My recollection from the hearing is that Nelson found no violation, and further found that any timing issues with production did not prejudice defendant.

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #94 on: May 01, 2013, 04:02:03 PM »
I think it's a typo in the minutes.  My recollection from the hearing is that Nelson found no violation, and further found that any timing issues with production did not prejudice defendant.

If she found no discovery violation, why would the issue of prejudice arise? It seems to me that once the court determines there hasn't been a violation, the issue of prejudice is moot.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #95 on: May 01, 2013, 04:10:03 PM »
If she found no discovery violation, why would the issue of prejudice arise? It seems to me that once the court determines there hasn't been a violation, the issue of prejudice is moot.

You are correct, but as a matter of rendering a legal opinion, it's common practice to make a finding relating to every element.  For sanctions, there has to be 1) a violation that 2) prejudices the opponent.  So, Nelson makes findings on both elements, even though a negative finding on either one renders the other one moot.

Offline RickyJim

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #96 on: May 01, 2013, 04:20:45 PM »
Who proposed such a theory?

I think Brenton was deposed again because he had done more work on the phone, and gotten more information.
I previously had suggested that the defense should have deposed DeeDee right away and stop waiting for her address since they don't have the money to hire a PI to ask the neighbors about her anyway.  I was shouted down when I said that I can't see why Judge Nelson wouldn't grant a second depo if information came to light justifying it.  How do you know Brenton had done new work on the phone?  If one can give a good reason for deposing him again because some important new information came to light, the same should be true for DeeDee

Offline DebFrmHell

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #97 on: May 01, 2013, 07:00:12 PM »
You are correct, but as a matter of rendering a legal opinion, it's common practice to make a finding relating to every element.  For sanctions, there has to be 1) a violation that 2) prejudices the opponent.  So, Nelson makes findings on both elements, even though a negative finding on either one renders the other one moot.
So what was the point in deciding if any monetary funds would go to the Defense if she had already ruled a negative?

I thought I heard her say "you need money" which makes me think she was mocking the Team for some reason.  This is a team that is making a million dollar defense on a budget of about 200k while the State has unlimited funds.

Offline FromBelow

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #98 on: May 01, 2013, 08:50:34 PM »
Just an FYI for those that didn't know. You can directly link to a specific time in a youtube video.

http://www.mattcutts.com/blog/link-to-youtube-minute-second/

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #99 on: May 01, 2013, 08:52:24 PM »
How do you know Brenton had done new work on the phone?

Brenton was first deposed on Sept. 26, 2012. On Jan. 13, 2013 Brenton took the cellphone to Cellebrite in New Jersey for analysis. Brenton was deposed again on Feb. 28, 2013.

Offline nomatter_nevermind

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #100 on: May 01, 2013, 09:44:38 PM »
I was shouted down

You mean other people expressed opinions on the subject?

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #101 on: May 01, 2013, 09:55:50 PM »
So what was the point in deciding if any monetary funds would go to the Defense if she had already ruled a negative?

I thought I heard her say "you need money" which makes me think she was mocking the Team for some reason.  This is a team that is making a million dollar defense on a budget of about 200k while the State has unlimited funds.

The legal standard she applied in court was from the Richardson case, which is associated with violations of discovery  that prejudice a case.  I assume there is a lesser form of action or inaction that can be used to shift costs or expenses to the opponent, and in the civil litigation arena, this threshold is crossed on the filing of a Motion for Specific Discovery, provided the requestor has been diligent in requesting the evidence, and the evidence exists.  Just saying, the legal standard for cost shifting is not (only) in Richardson, although Richardson allows cost shifting, so the finding of "no violation" doesn't preclude cost shifting.

In simpler terms, I think the word "violation" in a Richardson hearing is synonymous with "withholding of evidence."  IOW, if technically discoverable and compelled evidence is turned over at a reasonable time before trial, there is NO violation.  See Criminal Discovery in Florida, near the bottom at "Discovery Violations" (search for "Richardson").  Being tardy or recalcitrant or obstinate isn't a violation, unless it concludes with withholding of compelled discovery.

I think "violation" and "prejudice" can be entwined (depending on the evidence), but if the withholding is cured long enough before trial, then there won't be either a violation or prejudice.  If the disclosure happens during trial, then there is a violation, and attention turns to the effect on the outcome of the trial.

Nelson's remark about money was her following the legal standard in Richardson.  If there is a violation, there also has to be a procedural prejudice to the movant.  She asked O'Mara what was the procedural prejudice to Zimmerman, and O'Mara said that the delay interfered with his ability to prepare for trial.  To that, Nelson said "but you are asking for money," implying that O'Mara should be (maybe additionally) asking for a continuance in order to meet the Richardson standard for discovery violation / procedural prejudice.

Offline nomatter_nevermind

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #102 on: May 01, 2013, 10:26:05 PM »
I thought I heard her say "you need money" which makes me think she was mocking the Team for some reason.

Nelson said "but you are asking for money,"

At first I didn't realize what DFH was talking about.

I think this bears emphasizing. Nelson wasn't making a snide remark about the defense's financial situation. She was taking notice of the kind of sanctions the defense asked for in their motion.


Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #103 on: May 01, 2013, 10:51:10 PM »
Nelson's remark about money was her following the legal standard in Richardson.  If there is a violation, there also has to be a procedural prejudice to the movant.  She asked O'Mara what was the procedural prejudice to Zimmerman, and O'Mara said that the delay interfered with his ability to prepare for trial.  To that, Nelson said "but you are asking for money," implying that O'Mara should be (maybe additionally) asking for a continuance in order to meet the Richardson standard for discovery violation / procedural prejudice.

I don't think she was correct. She mixed up the purpose of the motion -- monetary sanctions -- with the purpose of a Richardson hearing, which is to determine if there's been procedural prejudice due to a discovery violation. Because the motion for sanctions alleged a discovery violation, a Richardson hearing was required; but that doesn't mean procedural prejudice is restricted to monetary damages.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #104 on: May 01, 2013, 11:42:00 PM »
I don't think she was correct. She mixed up the purpose of the motion -- monetary sanctions -- with the purpose of a Richardson hearing, which is to determine if there's been procedural prejudice due to a discovery violation. Because the motion for sanctions alleged a discovery violation, a Richardson hearing was required; but that doesn't mean procedural prejudice is restricted to monetary damages.

The options run in both directions.  Procedural prejudice can result in dismissal of the charge, exclusion of evidence, retrial, compensation for expenses and cost, and so on.

But, the right to compensation for expenses and cost does not depend on finding either a (Richardson) discovery violation, or procedural prejudice.

O'Mara's right to compensation has been preserved.  She'll hear that after the criminal trial is resolved.

 

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