Plaintiff’s Motion for Payment Plan and Extension to Pay Discovery Sanctions Amount

8/26/24

Below is the Plaintiff’s Reply in Support of Motion for Payment Plan and Extension to Pay Discovery Sanctions Amount [ECF 212] and the accompanying declaration by Magill.

We want to briefly note why we chose to redact certain parts of the declaration below. We did not want to act as a bully pulpit for Jennifer Magill’s legal disputes and allegations against non-parties in this case. As the public record and this page can attest, we have our own experiences with potentially life-ruining claims made against us by Jennifer Magill and Breaking Code Silence. The party she accuses of serious claims has never been arrested, charged, or convicted of any allegations she makes against this party. Much like her allegations against the parties involved in this case, it was noted by the court in her other dispute that her allegations appeared to be timed closely after the third party sought to extradite themselves from their situation involving her.

As with several other motions and declarations involving Breaking Code Silence or Jennifer Magill, many allegations are made against McNamara and Whiteley, but no evidence beyond the declaration is offered. Some of the allegations included are:

  • BCS states that their fundraising could be impacted by this website’s continued existence – Google search results can depend on region, an individual’s search and browsing history, and dozens of other factors. However, we would note that when searching the term Breaking Code Silence, this website was not returned on the first page of the results for either administrator. Nevertheless, almost every document this website posts is part of the public record or discusses documents in the public record. The bringing of the federal action, which continued for over two years, was a choice made by Breaking Code Silence, not Whiteley or McNamara. Based on the evidence provided in this case, it is believed that Breaking Code Silence sought to bring this action well before any alleged de-indexing.

  • BCS claims that Whiteley and McNamara continue to criticize BCS and its Board, Officers, and volunteers on this website and that it cost them relationships with unnamed partners. – When this lawsuit was initiated, the press was informed of this case almost immediately. Both McNamara and Whiteley immediately received personal, professional, and social media backlash that came with the nature and gravity of the allegations. McNamara and Whiteley both believe that posting these public documents and related opinions are guaranteed freedoms under the Consitution of the United States, the Arizona Constitution, and the California Constitution.

  • Defendants unilaterally reached out to a third party with whom Magill currently has an ongoing legal dispute with – Neither McNamara nor Whiteley unilaterally initiated contact with this party.

  • Magill claims that McNamara was somehow privy to the history of the allegations – This dispute between Magill and the third party did not begin until long after McNamara and Whiteley had left Breaking Code Silence. To the best of either of their recollections, Whiteley and McNamara can only recall Magill making positive or endearing statements relating to this third party during their time at Breaking Code Silence.

PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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JOHN S. GIBSON (SBN 140647)
john.gibson@us.dlapiper.com
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4735
Tel: 310.595.3000
Fax: 310.595.3300
Attorneys for Plaintiff
BREAKING CODE SILENCE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) non-profit,
Plaintiff,
v.
MCNAMARA, an
individual, JEREMY WHITELEY, an
individual, and DOES 1 through 50,
inclusive,
Defendants.
CASE NO. 2:22-CV-002052-SB-MAA
Hon. Maria A. Audero
PLAINTIFF’S MOTION FOR
PAYMENT PLAN AND
EXTENSION TO PAY
DISCOVERY SANCTIONS
AMOUNT [ECF 212] Hearing Date: September 25, 2024
Hearing Time: 10:00 a.m.
Complaint Filed: March 28, 2022
Trial Date: Not Set
Case 2:22-cv-02052-MAA Document 218 Filed 08/26/24 Page 1 of 7 Page ID
#:9176
PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT on September 25, 2024, at 10:00 a.m., or
as soon as the matter may be heard in Courtroom 880 of the Roybal Federal Building
and United States Courthouse, located at 255 E. Temple St., Los Angeles, California
90012, Plaintiff Breaking Code Silence (“BCS”) will and hereby does move, pursuant
to the Court’s July 25, 2024 Order (ECF 212), for an order approving Plaintiff’s
Motion For Payment Plan And Extension To Pay Discovery Sanctions Amount.
The Motion is made on the following grounds. BCS is unable to pay the
$15,432 sanction award within the 30-day window required in the Order based on its
financial condition. BCS currently has less than $300 in its bank account and is
obtaining nominal donations, in amounts which have decreased since and through the
progression of this lawsuit. BCS therefore proposes to pay an initial lump sum
followed by timed payments based on its available funds and contributions by
individuals. BCS and Defendants met and conferred but were unable to agree on a
payment plan, thus necessitating this Motion.
The Motion is based on the Notice, Memorandum of Points and Authorities,
Declaration of Jennifer Magill, such matters of which the Court may take judicial
notice, all pleadings and other documents on file with the Court, and such other
matters as may be presented at the hearing on the Motion.
Dated: August 26, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ John S. Gibson
John S. Gibson
Attorneys for Plaintiff
BREAKING CODE SILIENCE
Case 2:22-cv-02052-MAA Document 218 Filed 08/26/24 Page 2 of 7 Page ID
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PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Breaking Code Silence (“BCS”) is currently unable to pay Defendants the
$15,342 ordered within 30 days of the Court’s July 25, 2024 Order based on BCS’s
current financial condition. BCS currently has less than $300 in its bank account.
Declaration of Jennifer Magill (“Magill Decl.”) ¶ 3. BCS explained in its section of
the Joint Stipulation concerning attorneys’ fees, that the imposition of fees on BCS
would be ruinous for it. See ECF 211 at 6. The Court graciously acknowledged this
possibility and stated in its Order that payment could be “on a later date or dates by
agreement of the parties or further order of the Court upon properly noticed motion.”
ECF 212 at 37. BCS heeded the Court’s invitation and promptly contacted
Defendants to discuss a payment schedule. Unfortunately, Defendants insisted on a
payment timeline that is impossible given BCS’s assets and the pace at which it has
been receiving limited donations.
BCS requests that the Court issue an order approving the payment plan detailed
herein, or such other extension that the Court deems just and fair.
II. RELEVANT BACKGROUND
The Court is well acquainted with BCS, its mission, and the facts pertinent to
this dispute that stem from the deteriorated relationship between BCS and Defendants,
to put it mildly. Accordingly, BCS now provides background related only to the
Court’s Order (ECF 212), BCS’s financial condition, and this Motion.
On July 30, 2024, shortly after the Order issued, BCS contacted Defendants to
discuss a potential payment plan that would realistically allow it to pay the sanctions
amount of $15,342. The parties continued to confer and communicate about a
payment plan but were unable to agree on one.
BCS now proposes the following:
1. On or before September 30, 2024, BCS will make an initial cash
payment to Defendants of $2,500.
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PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
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2. The remaining balance (the “balance”) will be paid in quarterly
increments. Each quarterly payment will be a minimum of 50% of all
non-grant funds raised during the preceding quarter, plus interest on the
payment amount at an annualized rate of 5.5%. BCS will provide
Defendants a report sufficient to account for non-grant funds raised and,
on request, reasonable and sufficient documentation to corroborate the
reported amount(s).
3. The final order of the court will create a security interest on behalf
of Defendants as to BCS—which is intended to protect Defendants in the
event BCS dissolves or files for bankruptcy prior to completing the
payment schedule.
Of note, since its earlier offers, BCS’s CEO was unable to secure a loan she
sought to cover the initial proposed payment. Ms. Magill is now unable to make a
personal contribution given financial obligations that have arisen and are detailed in
her declaration.1

III. ARGUMENT
BCS requests that the Court set a reasonable payment plan that takes into
account its financial condition and limited access to funds. The Court has discretion
to issue discovery sanctions and set payment terms for monetary sanctions. See
generally Burkhardt v. Golden Aluminum, Inc., Civil Action No. 22-cv-01573-NYWMEH, 2024 U.S. Dist. LEXIS 1368, 2024 WL 37975, at *8-9 (D. Colo. Jan. 3, 2024)
(“the Court acknowledges the possible financial difficulties associated with paying
the $2,772.50 fee award in full by January 31, 2024”; granting leave to file a motion
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BCS clarified its ability to pay fully is directly impacted by its ability to raise funds,
and that the fundraising could be impacted by issues within Defendants’ control
detailed in the Magill Decl.
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PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
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“requesting that Plaintiff be permitted to pay the fee award pursuant to a
reasonable payment plan.”).
As mentioned above and provided in the accompanying declaration of its CEO,
Ms. Magill, BCS finds itself in dire financial conditions. Magill Decl. ¶¶ 3, 5. It has
no liquid assets or other meaningful investments and relies entirely on volunteers and
charitable contributions to continue to operate. Id. BCS is nonetheless willing to
make a meaningful cash payment of $2,500 in September, which covers nearly a sixth
of the sanctions amount. This good faith payment will be funded by a personal loan
that a BCS Board member will borrow. Id. ¶¶ 6-7.2

In addition, BCS is willing and able to make quarterly payments to cover the
balance and pay interest. Those payments will be based on a minimum of 50% of all
non-grant funds raised during the preceding quarter, and pay annualized interest to
account for the timing of payment. Should BCS’s financial outlook improve, that
means it would be giving 50% of one of its most important revenue sources to
Defendants. BCS demonstrated with competent evidence that it has in the past
received significant donations, including a single donation of $5,000. ECF 187-15.
In other words, payment could be complete in a few quarters if funding is favorable.
BCS also is willing and able to take additional measures to ease Defendants’
concerns about receiving payment. It is willing to provide Defendants a report stating
the funds received and that are available, along with reasonable documentation
sufficient to corroborate the amounts concerning non-grant funds upon request. This
would give Defendants transparency about BCS’s condition and ability to pay.
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The sanctions amount is significant to the individuals who sought to contribute
personal funds to its payment. Among other things, Ms. Magill is facing challenging
economic, personal, and legal complications, including some involving a subpoena to
Defendant McNamara issued by her ex-husband. Those are discussed in more detail
in her declaration. Magill Decl. ¶¶ 4, 6-7.
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PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
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CASE NO. 2:22-CV-002052-SB-MAA
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Finally, BCS has proposed that the Court’s Order serve as a security interest to
assuage Defendants’ concern about BCS’s condition.
At bottom, BCS requests that it be given an opportunity to secure the funds
necessary to pay the sanctions amount that the Court has ordered. BCS wishes to put
this dispute behind it and move forward with its mission to help survivors of the
troubled teen industry. A reasonable payment plan could allow BCS to do so without
facing financial paralysis or worse.
IV. CONCLUSION
For the foregoing reasons, BCS requests that the Court issue an order granting
BCS’s payment plan or issue such order as it deems just and fair.
Dated: August 26, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ John S. Gibson
John S. Gibson
Attorneys for Plaintiff
BREAKING CODE SILIENCE
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PLAINTIFF’S MOTION FOR PAYMENT PLAN AND
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants, certifies that this brief
contains 1,025 words, which complies with the word limit of L.R. 11-6.1.
Date: August 26, 2024 /s/ John S. Gibson
John S. Gibson
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