4/5/24 Status Conference Call
An in-person status conference was held on 3/25/24, which counsel for both sides attended. During that status conference, the following was stated by the Court:
“…And then that would bring those officers and directors under my jurisdiction, so that I, if they continue to be obstinate and not cooperative, could find them in contempt personally…”
“So, I can just tell you from what I’ve reviewed the statement of what was produced and all of these outcomes, the response that was, sent in by BCS. And I can tell you that, this outcome was nothing short of disturbing. It was a final chance for the officers and directors to do their duty and not put BCS in a position that, creates problems for the organization.”
“..yet here we are with some possible efforts to evade service, some unsuccessful efforts to obtain documents from them…”
“I certainly have the option to sua sponte issue terminating sanctions, which, miss Magill, I don’t know if you understand what that means, but it means you lose. It means your case is over.”
“So the only recourse for a court addressing the subpoenas is contempt, which means monetary sanctions, jail time, pretty much that’s it.”
Counsel for McNamara and Whiteley also stated the following regarding the defendant’s pending Motions for Summary Judgment:
“But my preference, is to have the court grant our evidentiary sanctions and we win our motion for summary judgment.”
“Our motions for summary judgment are largely based on the no evidence standard that BCS has no evidence. And that’s 2 different things. Some of the evidence they present in their motions are just inadmissible character evidence, stuff that the court can never consider. Other stuff is stuff that the court may be able to consider except for their attorneys didn’t do a good job at presenting it. They made it through their lack of proper foundation. They didn’t the authentication. It’s inadmissible.”
Based on the statements made in the 3/25/24 in-person conference, monetary and evidentiary sanctions seemed imminent for BCS. As well as a ruling on both Whiteley and McNamara’s pending Motions for Summary Judgments. While BCS was paying nothing for their attorneys since they were pro bono, BCS could have possibly been liable for attorney fees under the California Statute they brought if they lost the Motions for Summary Judgments and the defendants moved for their attorney’s fees.
Approximately eleven days later, the court held another status conference – this time by telephone. In this conference, BCS’ counsel, John Gibson, states that BCS will be filing a Motion to Dismiss in hopes of preventing an award of costs or fees – which seems to imply, in this writer’s humble opinion, concern about losing the case and the defendants being awarded attorneys fees and costs under the statute. The Honorable Judge goes on to warn BCS’ attorney that this will not affect the monetary sanctions – and it will only potentially affect an award of fees under the applicable statutes brought in this case. Specific statutes – such as California Statute 502(c), which BCS brought in this case – allow for a civil cause of action and the potential award of attorney’s fees to the prevailing party.
Given the following facts:
- Monetary sanctions for the pending sanctions motions were going to be considered regardless of the case being dismissed
- The discovery period had closed on the case, meaning it was unlikely new discovery motions/sanctions would be filed in the future
- BCS was not paying anything for their attorneys as they were pro-bono
The only logical opinion this writer can form is that BCS did not have faith that their case would survive the pending Motions for Summary Judgment.
Below is the transcribed audio from that telephonic status conference.
Court: And it’ll be about 5 minutes. Okay. So, again, so sorry for the inconvenience. I will be back with you shortly.
Gibson: Thank you, your Honor.
Tate: Thank you, Judge.
Gibson: What was that? I’m sorry.
Court: Okay. Testing. Testing. 123. Is that working? Well, I don’t hear it, but it looks like see how it’s Yes. It’s going.
Technician: Well, that’s the only way we can do a quick test if we hang up the call and then see if it’s here, but it looks like it’s recording.
Court: Let me ask the parties. Okay. I believe that this should be recorded. Mister Gibson said that maybe we don’t need a recording. Let me hear from defendant.
Technician: Yes.
Court: Because I listen Hold on. Hold on. Hold on. Go ahead. I’m talking to the parties now. Let me hear from the defendants if you have any concerns about this not being recorded.
Tate: I have no concerns, your honor.
Court: No concerns? So, we can proceed without a recording?
Technician: Okay.
Court: So here’s what we’re going to do. Okay. It appears that we’re recording, so I’m not we’re going to say, we’re going to leave the status quo. If it records, we’re super lucky. And if it doesn’t record, nobody cares. Right?
Gibson: That’s right. Got it. John Gibson with BCS. Yeah.
Tate: Yeah. That’s right.
Court: Okay. Alright. Alright. Well then, hold on one second. And, Dave from XP, thank you so much.
Technician: We’ll look at this recording now again.
Court: Ok. Thank you. Sounds good. Thank you. Alright, folks. Seriously, so here’s the here’s the thing. The reason that I am having to deal with technology is because we’re starting before 9 o’clock, and my courtroom deputy is not here. And we’re starting before 9 o’clock because I’m on a criminal duty today. And so, and I’ve been the entire week. So, I was trying to take care of as much business as possible through this workaround. But as I may have said to you in the past, and I always try to say and warn the parties, God help us all when I’m in charge of technology. But, anyway, here we are.
So let me call the case, so that we have in in case we are recording and so that we make formal appearances on the record. Calling case 22 dash 2052, breaking code silence versus Catherine McNamara et al. Counsel, if you could please make your appearances starting with the plaintiff.
Gibson: Good morning, your honor. John Gibson of DLA Piper for the plaintiff’s Breaking Code Silence.
Court: Good morning, mister Gibson.
Lueddeke: Good morning, your honor. Jason Lueddeke on behalf of plaintiffs Breaking Code Silence.
Court: Good morning, mister Lueddeke.
Tate: Good morning, your honor. This is Adam Tate on behalf of the defendants.
Court: Good morning, mister Tate. We are here, because I wanted to kind of organize ourselves and take care of some housekeeping matters before I turn to the adjudication of defendant’s motion for evidentiary sanctions, which has been pending for months. Alright. The reason we have spent months before I’m absolutely adjudicating this motion is that I have tried every possible trick I know to try to get the parties to reach a resolution on the motion, sort of, the very, harsh sanctions that could result from this motion. I have to say, I am not the only one who has worked hard on this, but parties have worked very hard on trying to reach resolution.
I am sad to say that short of anything new that I may hear today, our efforts have been, though ambitious and well intentioned, an epic sale. So, that leaves us with, we’re here on where we go next on this motion, which I believe needs to be updated. But before I proceed with my thoughts on where we are, it does appear well, mister Gibson said to me, before we were on a recorded line that, he that there is some updates that might be worthwhile for the court to hear before we proceed. So, mister Gibson, if you could please give us whatever news you have.
Gibson: Thank you, your honor. So sometimes success is delayed, and I’m happy to report that as a result of the court’s thorough work with the parties during the last IDC and all the time the court’s been with us that the meeting, we did some, thorough discussions and serious discussions with our client, and BCS has authorized us to voluntarily dismiss this case as long as the dismissal is not encumbered by or accompanied by, an award of cost or fees or monetary sanctions that would, effectively end the life of BCS as an organization and you’re driving the bankruptcy. But, otherwise, BCS can issue it voluntarily dismiss. We just didn’t get a chance to call the paperwork back then.
Court: And so, let me make sure I understand. As long as a dismissal is not accompanied by an award of fees that would end BCS or throw it into bankruptcy okay.
Gibson: Yes
Court: Ok. This is now a settlement communication. Has this been communicated to mister Tate? Is this the first time he’s hearing of this?
Gibson: No. This is the first time he’s hearing of it because it’s, you know, very recent news
Court: Okay. Mister Tate?
Tate: There’s no possibility that I can, even discuss, settlement communication without presenting it to my clients and discussing it with them.
Court: Okay. So where would you folks like to go from here? Keeping in mind that I have absolute and complete control over the schedule of this case and any pending dates, would you folks like to pencil down right now and see if you can resolve this case before we spend any more money on this motion and the and the motions for summary judgment.
Tate: My preference would be, let’s go ahead and schedule out, like you had intended, and then, within the next day or 2, you know, I will communicate with my clients and get back to John Gibson on a settlement offer. And if, you know, if we can resolve this case, we can resolve this case. But if not, then at least we’ve got a plan going forward, dates, and the way to get our motion resolved.
Gibson: Just to clarify, though, this is this is, John Gibson. While I suppose it’s a kind of a settlement offer, we actually intend to file a motion, a dismissal, voluntarily under Rule 41. And, of course, the court has had discretion as to how it treats that, but that’s our intention, and we plan to file it actual later today. We’re just hoping to have it does not carry with it a monetary detriment to BCS to force it out of business, essentially.
Court: Well, so, mister Gibson, I’m not sure that you can do I mean, I’m not sure that you can do what you’re trying to do by filing a rule 41 dismissal request, right? I don’t know that those requests can come encumbered with, a request for no award of fees. And, you know, maybe you’ve done your research, and you have found that that is the case. In which case, of course, I will adjudicate any such motion according to the applicable laws but just a heads up, I understand it’s not a settle- well, maybe it’s a settlement communication, but maybe it’s not. But I don’t know that you can achieve that goal under rule 41. And, again, I have not done the research. You folks know whether fees are available in this case or not. All of that is something that you folks would brief. You certainly have every right to file a rule 41 voluntary dismissal request. I guess it would be under (a)2. Right?
Gibson: That’s right.
Court: Okay. So, so again, you know, it will play out the way it will play out. But if I get a rule 41 request for dismissal, then, obviously, I’m going to adjudicate that before I spend the court’s resources adjudicating everything else that’s pending, to determine whether to grant that dismissal request or not. If it’s granted, then then game over. If it’s not granted, then we return to this. It’s actually where I am where how I would probably proceed with this. So we can do that.
That said, mister Gibson, I would note that there are, whether or not there are attorney fees available under the pending statutes, right? Or the statutes that are that are at issue in this case, there are attorney fees that are available for these motions. And so, I would be… I will tell you I would probably be hard pressed to… I already said that defendants are entitled to attorney fees under the Slack motion, Right? And that’s just kind of pending and hanging there, which I said let I that I would adjudicate this later and the fees are taken under submission. There were fees in this case. So, I don’t know what is meant by, fees that would break BCS or that would throw it into bankruptcy. I don’t know what that number is, but you have to be aware that that there are discovery motion fees that may be awarded as part of your plan. I just want to make sure you’re aware of that. I don’t know how you’re going to frame your rule 41 dismissal request.
Gibson: Thank you, your Honor. We appreciate knowing that.
Court: Okay. So, that said, I will say for settlement purposes, and you folks will do what you will do, either way, they’re likely to happen. Right? So if the intent is to stop the bleeding, maybe you let those happen and it will be what it will be. I don’t know. I’m just saying that. So, I am happy to give you my thoughts regarding the motion and where we go from here so that, the parties can take that into consideration as they are trying to decide where to go next with this settlement communication slash forthcoming rule 41 dismissal request. And it sounds like that is what mister Tate would prefer. Is that right, mister Tate?
Tate: That is correct, your Honor. Thank you.
Court: Okay. Alright. Well, since we’re here, let me just tell you what I think and where we would go next. And, and we can kind of talk our way through it if the parties have any questions. There is no question in my mind that the circumstances that underpin the motion, the original motion when it was filed, have changed significantly. It’s my understanding from what I’ve read through the phase one process that additional documents were produced, or at the very least, there have been declarations stating that no such documents exist, at least at this time. Maybe they existed once upon a time, but at least at this time, they don’t exist.
So to avoid a waste of judicial resources, I think the motion needs to reflect the current state of affairs as of this moment with the information that we all know post phase 1. Now I am unable to determine the current state of affairs even with what I’ve read along the way through the various informal discovery conferences. You may recall that I requested a status report from plaintiff sorry. From defendant, and I received one, and then there was a response from plaintiff, which contradicted some of what was said by the defendant. So, I really have no idea what the state of affairs is. Defendants’ believe that some documents have not been produced. Plaintiff’s believe that those documents have been produced.
So, I have no evidence in front of me, and I’m completely unable to figure out what the state of affairs is. So the motion is going to have to be stored up in to bring it up to date. I will say that even if I could determine the current state of affairs, I don’t think it’s my place to figure out what issues the funders choose to stand on versus what they would be willing to walk away from given the new information they received from phase 1. So, you know, that’s yet another reason for me not to be the one to figure out the current state of affairs. So, I want to share with you my thoughts about where we stand.
I mean, I don’t think I need to hear from, from defendants at this point which of the many custodians that defendants intend to press forward with on their motion. You know, I can see that there are several that, you know, if I were in defendant’s shoes, I probably wouldn’t pursue given what happened in phase 1. But, you know, that’s just me, and it doesn’t matter what I would pursue. But the point is, I don’t think I need to hear today, which ones. I think that that’s going to which ones defendants would pursue.
I do think that, that it’s something that would have to be stated very, very clearly in the motion. So here’s kind of how I I see my analysis of the motion, and I say this to you so that you can think about how to bring this motion up to date.
I don’t want complete rebriefing. I think that that’s a complete waste of resources. I understand where the parties are going. My problem is I don’t have the facts necessary to adjudicate it. You may recall that when I got the motion at the beginning, what I I didn’t have was the facts regarding what the prejudice was to defendants, and that’s why I proposed the phase 1, phase 2 approach.
Now I think we have more information, and now that the motion needs to be updated to reflect the specific what is missing and the specific prejudice. What is missing meaning what documents have not been produced.
So here’s how my thought is. Here’s how I’m thinking I’m going to approach the order. The first question, obviously, is does BCS have an obligation to produce the documents that you’re fighting over. Right?
I’ve already told you my preliminary thought is, yes, under the electronic discovery order, and, by the way, also under a rule 34 officer and director analysis. So, let’s assume the answer to that is yes. Then the next question is, what are the defendants actually contending have not been produced? And, again, I think that that needs to be updated based on what happened in phase 1. Then as to those documents, is it still relevant to the case in light of how the case has been reduced through the stipulation? Footnote more on this stipulation later because I have a question about that. But in any event, for purposes of this discovery motion, are those documents still relevant?
And then the question, I guess, is do the documents exist once upon a time, and what evidence, non-speculative evidence do defendants have that these documents that haven’t been produced actually existed? If they did exist once upon a time, what non-speculative evidence do defendants have that they exist now? And the reason I asked that question, in my mind is if they exist now but haven’t been produced, we’re going down the road of 37(b) sanctions. But if they existed once upon a time but haven’t but don’t exist now, then I think we go down spoliation under 37(e). And I have no idea if defendants intend to go down the spoliation route, if they ever intended. I think that there are hints that defendant believes that documents have been spoliated, but the motion doesn’t address spoliation in in in in great detail. But the updated motion, if defendants are going to pursue as spoliation theory, is going to have to address it.
So I don’t that’s how I need that’s how I want to approach the order, and so the motion is going to have to be updated to reflect that. And so, let’s say we’re going down the 37 b sanctions route, that is documents did exist, documents still exist, but they’re being withheld, AKA Jesse Jensen, and others, but Jesse Jensen is the primary offender of this. Do the parties agree as to what’s being withheld? And then and then as to those, can what sanctions are specifically are being requested by defendant?
The motion, is the original motion says things like, no testimony or documents from people who have not done a search. That’s not going to be helpful here, because I don’t know who’s done a search and who hasn’t done a search or who agrees to do a search or who doesn’t agree to do a search. I think we’re past that now. So I think that we have I need more detail as to what specific 30(b) sanctions are going to be sought.
And they don’t have to be they can be evidentiary sanctions by custodian, but if that’s the case, then I need to know what the name of the custodian, what specifically is being withheld by that custodian, obviously, what evidence you have that it actually existed once upon a time, that it now exists. And then what is the specific sanction that is being requested as to that evidence? And I don’t know what’s the best approach to this is by custodian or by issue. Right?
Jesse Jensen is a perfect example. He’s withholding all of his Signal communications. Right? I mean and those were about the investigation that was done. So maybe it becomes an issue sanction rather than just a Jesse Jensen sanction, or by the establishment of certain facts. I need very specific wording from defendant as to if you want certain facts established. I want the wording. What fact do you want established, Right? I don’t want to… I’m not going to create the ultimate request for you. So, you need to be very, very specific, mister Tate, about what you’re looking for. Right?
And then with respect to those sanctions and I understand, mister Tate, that your clients don’t want terminating sanctions, and I will respect that. But if the sanctions that you’re seeking are sanctions that could on some by either by me or on some appellate level, be considered to be tantamount to terminating sanctions, and there’s plenty of law on this, then I need to see an analysis under the Leon factors. And I’m going to leave it at Leon.
If you want to cite for this, I will give it to you at the end of the of our discussion. But, there are 5 factors under this Leon case. I don’t remember the exact sites. That has to be addressed for anything that is terminating sanctions or tens amount to terminating the sanctions. If okay. So it’s Leon versus IDX Systems Corp 464f3rd9519th Circuit 2006, which I believe I’ve adopted you a Supreme Court analysis that looks at these factors.
Anyway, so that’s 37(b). If you’re going to go down the spoliation route, I need a fulsome analysis regarding the prima facia case as spoliation, which is the duty to preserve. I need evidence regarding when that duty arose and when these document when you claim these documents were destroyed. And just, you know, are they lost because of a failure to because reasonable steps weren’t taken to preserve, and can they can they not be replaced or restored through other discovery.
And so if you need that, then then you got to tell me, are you going to go down the intentional route or are you going to go down the prejudice route? And if you’re going down the intentional route, I need the evidence regarding the intentional spoliation. And assuming you can establish that, and I don’t know if you can, but in case you can, then if you want you don’t want terminating sanctions. So, my assumption is you’re going to go down the route of adverse jury instructions with a presumption.
I need to know the exact language for the adverse jury instruction and your thoughts and your legal analysis regarding whether that presumption should be mandatory or permissive. If you’re going to go down the prejudice route, then I need the specifics on what is the prejudice and what is the specific measure to cure that prejudice that you are seeking. So that’s how I’m thinking this motion is going to be analyzed, but if you look at if you look at the motion from both sides, this information everything that I need is not currently there. So it will have to be addressed, and we can create a schedule for the supplement to the motion, a response from plaintiff to the supplement, and then an optional reply.
Okay. So that’s one. That’s the first thing I wanted to discuss with you folks. The second thing I want to discuss is the fees portion of this motion. I made a preliminary comment a while back that not all the fees requested by defendants in the original motion were recoverable. And, mister Tate, you filed a declaration require requesting an opportunity to brief the issue. I think that’s a fair request, and it’s something that I will consider granting and probably will grant if I decide to award fees under the motion.
So what I would propose is that we proceed with the motion being adjudicated as to the non-fees sanction and then also an adjudication of the fees sanction to be limited as to whether defendants are entitled to the fees sanction or not. And if they are, then, mister Tate, you’d get an opportunity to briefly this additional issue that you want to brief, and, of course, defendants would get an opportunity to respond. But if they’re not if it if I decide not to award sanctions, the monetary sanctions under this discovery motion, then no one needs to waste time on what on on updating the fees portion of the sanction. So that’s my thought.
Either way, you’d have to update the motion with additional fees and costs in the bringing of the motion that have been extended since the original filing of the motion. Right? Remember, we stopped, and then I’ve held, you know, I’ve held all these informal discovery conferences, query whether those are recoverable or not. I know you want to argue that they are, mister Tate. But nevertheless, we still have the fees for the subpoenas, and the fees and the cost associated with the subpoenas that were part of the agreement of the parties, when we when they agreed to proceed with what I have proposed as the phase 1, phase 2 approach. So, the motion would have to be updated as to that as well. So, I propose making a final determination as to fees altogether with the slack motion. And then so that’s so that’s my proposal. I’m open to discussion on that.
And then the third thing I would like to discuss with the parties is the stipulation that was entered reducing the scope of the case. It reduces it limits the allegations, right, to the unauthorized the allegedly unauthorized access and the de-indexing of the website. What the stipulation doesn’t do and I didn’t think about it at the time of the stipulation, but now that I’m looking at some reject my motions, I am thinking about it. What it doesn’t address is whether the same claims for relief remain pending. So, under the operative complaint, there are 2 claims under the Federal Computer Act. There’s only one under the state claim the Computer Act, and so I’m not addressing that right now with you, but there are 2 claims under the Federal Computer Act. They’re both under 18 USC section 1030, but one of them is section 1030 a 2 c, which involves going into the account and merely obtaining information. And then 1038 size c, which involves going into the account and causing damage, which here is the, obviously, the alleged indexing of the domain.
So as I started to look at the MSJs, I don’t think that that this distinction is addressed. I believe, but I could be wrong, and so I want to raise it for discussion, that the plaintiffs may have abandoned a 2 c in light of the reduced allegations, but I’m not sure. And I need to know that as I am deciding the MSJs. So, those are the three things that I wanted to discuss today.
I am happy to table this discussion, so that the parties can continue settlement discussions that have been, that have been made during this call. I’m happy to answer any questions that the parties may have. I don’t think I need argument on anything right now, but I just wanted to bring this to the party’s attention. And I’m also happy to set a briefing schedule for the for the supplementation of the motion. Now I said everything. Okay. Let me hear first from mister Tate since this is your motion.
Tate: Thank you, your honor. I think that the court is approaching it the correct way. I did my very best to take all the notes, and I think I caught everything, so the court would, issue a minute order with the briefing schedule, I think that that would be very helpful to me just to make sure that I am, doing everything that I’m supposed to be done, but I don’t really have any comments or arguments, on the courts before I think it’s appropriate.
Court: Okay. I would like to I would like to discuss a briefing schedule with the parties. Again, as you know, I’m in complete control of the schedule in this case, and it’s not my intent to create a very tight schedule where one is not necessary. And given everything that I said about the supplementation, I think it would be helpful to have the parties weigh in on how much time they would need to be able to do the supplementation and the response and the reply. Do you have any thoughts about that, mister Tate?
Tate: I am of 2 minds. 1, I am anxious to resolve this case and have a motion for summary judgment heard on the second on the on the other hand, it there’s quite a bit of work to be done on this renewed motion. So, I think that I would need at least 2 weeks to be able to renew that motion. But I wouldn’t be interested in pushing it this out by months and months.
Court: Yeah. No. Me neither. Me neither. I do think we need to get we need to resolve this motion so that I can turn to the MSJ. I assuming we’ll see what plaintiff does with respect to a rule 41 motion, which may throw all of this… which may create a little bit of havoc. But, you know, I’m not complaining about it. I’m just saying it may make all of this kind of moot. So, but let’s assume let’s just let’s just figure out a schedule for now. And then if plaintiff, throws a bit of a monkey wrench, and I don’t say that pejoratively, mister Gibson, But if plaintiff throws a monkey wrench into that schedule, then I will change the schedule. Okay?
So, 2 weeks, you said at least 2 weeks. Do you need more, mister Tate, or is 2 weeks enough for your…
Tate: Let’s just go ahead and put it, so 2 weeks from this Monday, right? So that I can have the second weekend to work on… sorry, the 3rd weekend rather to work on it.
Court: So Okay…
Tate: So, I could definitely have it filed by April 22nd.
Court: Okay. Alright. Mister Gibson, I know you have something else in mind from what you’ve said, but let’s just pretend we’re going to… we’re going to rule on this motion. How much time do does plaintiff need after it receives the supplementation to respond?
Gibson: Sure, your honor. I, what I do I have is I have a cure a trial starting on April 15th It may go about 2 weeks. And so, I you know, the 1st week, I just won’t be able to look at anything. But let me ask my colleague on the line, what’s your schedule? He received this on Monday, 22nd? Will you be able to turn around in 2 weeks?
Lueddeke: Um I think so. I.. I think so. Umm 22nd. I think that’s… that’s reasonable. Yeah…
Court: So that would take you to maybe 6th?
Gibson: May the 6th.
Lueddeke: Yeah.
Court: Okay. So, the response. And then, how about a week for an optional reply, mister Tate?
Tate: That would be fine.
Court: So that takes us to May 13th. Okay. Alright. And, again, mister Tate, this will not involve updating the number of hours for the fee part of the motion, the fees part of the motion, nor will it involve your argument regarding what you think should be recoverable or not. In your motion, you made the assumption that everything should be recoverable. Now you’ve asked for an opportunity to address what should be recoverable or to address or to argue that everything should be recoverable, which is fine. So you would update the number of hours, and you would update, and you would make your argument at a later date. That is not part of what we’re talking about here. Is that clear to everybody?
Tate: Yes, ma’am.
Gibson: Yes, ma’am.
Court: Okay. And in that regard, I have I will have once you supplement, under the schedule, I will have what I need to decide whether fees are warranted or not. And then we’ll proceed after that for an award if I think that fees are warranted. Okay? Does that make sense?
Tate: Yes, ma’am.
Gibson: Yes, your honor.
Court: Okay. Okay. Alright. So we have a plan as to that, and then that leaves the third issue, that I raised, which is why do what claims are actually left here? Do we need discussion on this? Would the parties like to circle back with me? I don’t need an answer to whether a to c remains in the case until I need to do the summary judgment motions, because I don’t think it’s well, I don’t know. Mister Tate?
Tate: My understanding, and I guess that it is plaintiff’s complaint, but, you know, they’re obviously you mentioned the 2 the 2 prongs to that, but we stipulated to limit the claims down to the de-index. There’s no information to be gathered or learned from the indexing. It’s allegedly let’s see a few buttons and telling Google, please don’t index this website anymore. So I believe that it has been limited down just to just the damage component, not the obtaining information component. That component, I believe, was tied to other prongs of the complaint, which have now been stipulated away.
Court: Okay. Mister Gibson, my intent is not to put anybody on the spot to make a decision without checking with their clients. I just I want to raise the issue. If it’s something that can be resolved, that’s fine. If not, I want to give you a heads up that I need it resolved before I turn to the summary judgment motion. Mister Gibson?
Gibson: Thank you, your honor. I’m very impressed with your intern. I think we would love to just take a look at that. Of course, it’s really, like, prepare to respond, but I think we should take a look at that and get back to your honor. But I just have to ask, when is your honor… when is your honor’s thinking of turning to summary judgment motions?
Court: Not until we resolve this this motion this… this discovery motion. Only because the results of the discovery motion could be a game changer on the summary judgment motion, right? So I need to resolve the evidentiary… I need to figure out what evidence is actually available for that… for those 2 MSJ’s. So we need to resolve this discovery motion, first.
Gibson: Thank you, your honor. Can we then come back to the court either with some kind of, you know, short supplemental filing or perhaps the next agency or argument on the discovery issues? We could, clarify our position on that.
Court: Okay. That’s fine. I am probably not going to have oral argument on the discovery issues. I’m required to give the parties… the party that made the sanctions.. with monetary sanctions an opportunity to be heard, but the law, the state of the law is that an opportunity to breathe equals an opportunity to be heard. So, I’m probably not going to need oral argument. Nevertheless, that just means you have to find a way to get this information to me one way or the other. And I leave it to the parties. I right now, I just wanted to raise the issue.
But I but, mister Tate, I want to make sure that you are going to be that that this doesn’t need to be resolved before resolution of the discovery motion because remember, you’re going to have to address relevance.
Tate: Understood, your honor. I’ll talk with mister Lueddeke. I’m pretty confident in my position and assistance with what the party’s meant when we enter the stipulation, and I’m hopeful that there won’t be any pushback. But let me talk to mister Lueddeke and hope that we’re all on the same page.
Court: Okay. Alright. Okay. Well, then that takes care of the items on my agenda. Is there anything I can do for the parties beyond this?
Tate: Not from the defendants. Thank you for, accommodating us before 9 o’clock. I really appreciate it.
Court: Of course. No. Of course. Happy to. Mister Gibson?
Gibson: Yes. Thank you, your honor. Thank you, your honor. Yes. I think nothing else for BCS. We appreciate the court’s time very much.
Court: Alright. Thank you all very much. I appreciate your time, and I will issue an order with the supplementation briefing schedule. And then it will be what it will be. And mister Gibson will see what you file. And, if I if I need to suspend the supplementation schedule, I will.
Gibson: Thank you, Your Honor.
Court: Alright. Thank you, folks. Court is dismissed.