Shawn Shearer claims to be a lawyer of “integrity” based on his website shearerlaw. This blog post will make you question this lawyer’s license, background, and if anything his moral compass as a human being.
Hi Shawn, there is this thing in the United States called the first amendment.
Remember Shawn…. everything stated is a TRUE STATEMENT, therefore not defamation(DEFAMATION PER SE Per Texas Law). Good luck 😉
Please refer to this article by above the law, in reference to this article as there are many parallels.
Shawn, old buddy old pal… did you think I was really going away?
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Shawn Shearer – a History of Deception, Lies, and Deceit
On or around April or May Shawn Shearer sent my father what appears to be a demand letter.
This was the first time I had heard of his name and or knowledge of him what so ever.
But he knew me very well, I will explain below. For an attorney, most of his references are deemed at the very least “creepy” “absurd” “overly broad”. For example, he attempts several times to subpoena me and refers to my legal name AND my Instagram handle (Exhibit 2 & 3) (This is very significant as later I will find out he is stalking me on social media and at the very least is a clear invasion of privacy)
Significant in that I was also living at Amey’s household aka (AmeyAimstar1)
Shawn is it against the law for my respectable company Moncada Marketing and I to hold a fundraiser for my dead sister and my niece that is now an orphan?
How come you did not include a picture of my parents at the fundraiser but included a picture of me? (prob because they could not even afford to fly out to it)
Ironically I broke “even” on the event but was accused of “raising funds to legal fees”, what a joke.
Accusing me of leveraging the death of my sister, absolutely disgusting.
Here is a true copy uploaded to evidence, where Mr.Shawn Shearer accuses my sister of committed suicide, again absolutely disgusting and in fact untrue.
And I will do you the common courtesy of offering my condolences for your loss. However, this is all the more reason you should have been considerate of what I was going through. Especially given the fact you specifically knew as you/your affiliates/client were watching my Instagram story.
Also not true:
My dad never owned a McLaren, nor has my family ever invested in ANY of my companies, and the most ironic part was there was never a class action filed against me. The actual truth was that I was erroneously named in the class action(And my name was misspelled) as I had left that company two years ago, ironically for the actual business practices.
Furthermore, my past business partners are not very happy to be mentioned in a chapter 7 case in a completely different jurisdiction. Considering they are personal friends with senators and past presidents.
The most interesting thing he files a discharge ability Action against my father’s chapter 7-bankruptcy case. However, after further review, he in fact merely accuses my dad of what he did in the northern district of Texas, located in Dallas Texas.
Shawn, did you file bankruptcy in 2016?
Is it true you entered an employment agreement right before you filed bankruptcy with your own law firm for $8,000 dollars a month because you knew ordinary income is exempt?
Is it true that you did not notify your trustee that you had a settlement of $65,000 one day after filing bankruptcy?
See below for reference:
Is it true after four weeks you had to be called into court and you produced the $65,000 but it ended up in the 3 different bank accounts?
Source: Case 16-03128-bjh Doc 8 Filed 09/26/16 Entered 09/26/16 15:42:46
Significant in the fact he “games the system” something he accuses others of doing in the southern district of Texas.
Crime Details – 02/05/2018 – DALLAS, TX – Shawn Shearer
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03 , 20.04 , 21.11 , or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b) , 71.003 , or 71.005, Family Code ; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code , or Section 51.02(13) or (14), Family Code , or an employee of that person:
(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or
(B) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract;
(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer;
(5) a person the actor knows is emergency services personnel while the person is providing emergency services;
(6) a pregnant individual to force the individual to have an abortion; or
(7) a person the actor knows is pregnant at the time of the offense.
(b-1) Notwithstanding Subsection (b), an offense under Subsection (a)(1) is a felony of the third degree if the offense is committed:
(1) while the actor is committed to a civil commitment facility; and
(A) an officer or employee of the Texas Civil Commitment Office:
(i) while the officer or employee is lawfully discharging an official duty at a civil commitment facility; or
(ii) in retaliation for or on account of an exercise of official power or performance of an official duty by the officer or employee; or
(B) a person who contracts with the state to perform a service in a civil commitment facility or an employee of that person:
(i) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by the state to provide the service; or
(ii) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract.
(b-2) Notwithstanding Subsection (b)(1), an offense under Subsection (a)(1) is a felony of the second degree if the offense is committed against a person the actor knows is a peace officer or judge while the officer or judge is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a peace officer or judge.
(b-3) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if:
(2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03 , 20.04 , or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b) , 71.003 , or 71.005, Family Code ; and
(3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is:
(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04 ;
(2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either:
(A) while the participant is performing duties or responsibilities in the participant’s capacity as a sports participant; or
(B) in retaliation for or on account of the participant’s performance of a duty or responsibility within the participant’s capacity as a sports participant; or
(3) a Class A misdemeanor if the offense is committed against a pregnant individual to force the individual to have an abortion.
(d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer or emergency services personnel.
(e) In this section:
(1) “Emergency services personnel” includes firefighters, emergency medical services personnel as defined by Section 773. 003, Health and Safety Code, emergency room personnel, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations.
(2) Repealed by Acts 2005, 79th Leg., ch. 788, § 6.
(3) “Security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code , or a noncommissioned security officer registered under Section 1702.221, Occupations Code .
(4) “Sports participant” means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member.
(f) For the purposes of Subsections (b)(2)(A) and (b-3)(2):
(1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b) , 71.003 , or 71.005, Family Code , if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and
(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed.
(g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections
OffenseDescription1: ASSAULT FV Case Number: M-1852160
Charges Filed Date: 03/01/2018
Dallas County Felony and Misdemeanor Courts Case Information
¢JI66 DA CASE ID MA1852160 JUDCL CASE ID MA1852160
A010 DEF NAME SHEARER C010 DEF NAME SHEARER
J U D I C I A L I N F O R M A T I O N
A010-020-030-040 FILE DATE 030118
DEF NAME SHEARER_SHAWN_ERIC_________________ RACE W SEX M DOB 11271967 AGE 52
DEF ADR1***************************************** AC ___ PH _______ SS ***********************
DEF CITY DALLAS______________ ST TX ZIP 75219 DLNUM ************** DLST __
OFF ASSAULT_FV__________________ DT 020518 TYP/CL M A GOC/CAT _ D CODE AS000000
COMT __________ SID NUM ________ OF AMT ________
COMPLAINANT *********************************** TAPE # 0____ ARREST DATE 020518
JUV STAT N REPEAT OFFENDER N CAREER OFFENDER N ORIG-LOC DSO____ CURR-LOC B
FILING AGENCY*************** SER/CAS NO******************** ARREST NUM ______________
LAI NUM******************** AIS/DSO NO******************** BOOKIN NUM ______18006141
JP FILE DATE 000000 JP CASE ID __________ JP COURT ID __ FED _ EVH _ AFF _
MAGISTRATE DATE 020518 MAGIS COURT 0J MAGIS JUDGE BRONCHETT BOUND OVER _
EXAM TRIAL DATE 000000 EXAM COURT __ EXAM JUDGE ______PAF IND METH CAI
GJ/H/R DT ______ _ GJ# ________ GJ/W/FILE 030118 GJ DS X DA DSP A ACC Y REAS _
DA DISPOS DATE 022818 MISDEMEANOR REDUCTION _ SENTENCE PROBATED _
JUDCL CASE ID MA1852160 GJ CT __ PROS STAT _ ___ PROS NAME _______________
COURT ASSIGNED TO MN DATE ASSIGNED 020518 ASSIGNED BY O REASON B
PRECEEDING DA CASE ID ___________ SUCCEEDING DA CASE ID ___________
TRN __________ TRS ____ WARRANT STATUS R STATE OFF CD 13990031__
¢JI66 DA CASE ID MA1852160 JUDCL CASE ID MA1852160
A010 DEF NAME SHEARER C010 DEF NAME SHEARER
DATE BOND SET 020518 AMT ___1500.00 TYPE __ SET BY COURT 0J JUDGE BRONCHETT
REC NO 01 _
SETS AND PASSES
SET FOR DATE 030618 SET FOR TIME 0900 SET TYPE FIRS PASSED TO DATE ______
SET DISPOSITION CODE __ PASSED GENERALLY _ COMMENTS AIS_UPDT______________
STATES RECOMMENDATION __________________ KIOSK ___ REC NO 01 _
SET FOR DATE 032618 SET FOR TIME 0830 SET TYPE ANNO PASSED TO DATE ______
SET DISPOSITION CODE __ PASSED GENERALLY _ COMMENTS ______________________
STATES RECOMMENDATION __________________ KIOSK ___ REC NO 01 _
SET FOR DATE 041618 SET FOR TIME 0830 SET TYPE ANNO PASSED TO DATE ______
SET DISPOSITION CODE __ PASSED GENERALLY _ COMMENTS ______________________
STATES RECOMMENDATION __________________ KIOSK ___ REC NO 01 _
¢JI66 DA CASE ID MA1852160 JUDCL CASE ID MA1852160
A010 DEF NAME SHEARER C010 DEF NAME SHEARER
SETS AND PASSES
SET FOR DATE 060418 SET FOR TIME 0830 SET TYPE HEAR PASSED TO DATE ______
SET DISPOSITION CODE __ PASSED GENERALLY _ COMMENTS PRE-TRIAL_____________
STATES RECOMMENDATION __________________ KIOSK ___ REC NO 01 _
SET FOR DATE 060518 SET FOR TIME 0830 SET TYPE TRIL PASSED TO DATE ______
SET DISPOSITION CODE __ PASSED GENERALLY _ COMMENTS ______________________
STATES RECOMMENDATION __________________ KIOSK ___ REC NO 01 _
ASSOCIATED NAME DECLINED,_DECLINED_________________ NAME REF CODE CD1802060
CT APPOINTED _ BAR NO 00000000 BOND MAKER _ DT BOND MADE 000000 _
ASSOCIATED NAME NICOLE_KNOX_(214)740-9955__________ NAME REF CODE DD1803020
CT APPOINTED _ BAR NO ________ BOND MAKER _ DT BOND MADE ______ _
GENERAL COMMENTS WS DATE
B080 AI05_UPDATE.ISSUED_02052018_TYPE_OC_____________________ B 020618 01 _
¢JI66 DA CASE ID MA1852160 JUDCL CASE ID MA1852160
A010 DEF NAME SHEARER C010 DEF NAME SHEARER
GENERAL COMMENTS WS DATE
B080 RECALL_ANY_AND_ALL_WARRANTS_ON_THIS_CASE________________ R 060418 01 _
DEF NAME SHEARER_SHAWN_ERIC___________ OFFENSE CD AS000000 STATE CD 13990031__
DESC ASSAULT_FV__________________ COMT __________ TYP/CL M A GOC _
GJ COURT __ CURRENT COURT MN PREVIOUS COURTS __________ CHOV DT ______
¢JI66 DA CASE ID MA1852160 JUDCL CASE ID MA1852160
A010 DEF NAME SHEARER C010 DEF NAME SHEARER
C020-01-02 CT DISP NO 01
VERDICT DATE 060418 BY JG DISP DISM TC __ DISM TYP DA__ VOL 033 PAGE 0808
SENTENCE DATE ______ BY __ TO _ YEARS ____ MTHS ____ DAYS ____ HOURS ____
SENTENCE TO BEGIN ______ SENTENCE VOL ___ PAGE ____ DISCHARGE N TYPE _ NUM __
PROBATED SENTENCE TO _ YEARS ____ MONTHS ____ DAYS ____ MULT SENT _
PROBATED FOR YEARS ____ MONTHS ____ DAYS ____ PROBATION START DATE ______
SPEC COND 1 __ __________ FOR ___ _ 2 __ __________ FOR ___ _
FINE CODE _ AMT ______0.00 COST CODE _ AMT ____0.00 PAYMENT DUE ______
DESC ____________________________ COMT __________ TYP/CL _ _ GOC _
COUNTY CODE ________ STATE CODE __________
PROBATION REVOCATION FILE DATE ______ WARRANT ISSUED DATE ______
DISPOSITION COMMENT COMPLAINING_WITNESS_UNAVAILABLE_________________ _
_______________________________ DATE 060418 _
How I Caught Shawn Shearer Invading My Privacy
Not only does a common-law right to privacy exist under Texas law, but also the Texas Constitution protects personal privacy from “unreasonable intrusion” meaning that one person cannot intentionally intrude upon the seclusion, solitude, or private affairs of another by the physical invasion of the other’s property or by eavesdropping on the other’s conversation via wiretaps, microphones, or spying
§ 652B Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.
Wait so let me get this straight, in the subpoena you upload to evidence you complain that my residence shows Texas, but literally one week after I move back to San Diego, you declare in writing that “I live in California“, well that’s because you are cyber stalking me(or your affiliates or your clients affiliates). Why you so obsessed with me?
Relevance Shown Below:
Significant in the fact he on multiple occasions Mr. Shawn Shearer attempts to Subpoenas me and refers to my legal name and my Instagram handle @TerryAsher
Notice from Document 85, He redacts or omits the Navigation bar as to not expose the Facebook Profile is he is viewing from? This is very significant.
One of your canarydrops was triggered.
One of your canarydrops was triggered.
Shawn Shearer Shawn E Shearer Shawn Eric Shearer
Currently, the Scumbag Shawn Shearer has a CEASE AND DESIST filed (Yet to be ruled on due to coVid-19 Restrictions)
See a true copy below:
EMERGENCY MOTION FOR ORDER DIRECTING KAYO FORTUNE, LLC AND ITS COUNSEL TO APPEAR AND SHOW CAUSE WHY THEY SHOULD NOT BE DIRECTED TO CEASE AND DESIST THIS APPLICATION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE APPLICATION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE YOUR RESPONSE WITHIN 21 DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE APPLICATION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE APPLICATION MAY BE GRANTED WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE APPLICATION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE APPLICATION AT THE HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY. EMERGENCY RELIEF HAS BEEN REQUESTED. IF THE COURT CONSIDERS THE MOTION ON AN EMERGENCY BASIS, THEN YOU WILL HAVE LESS THAN 21 DAYS TO ANSWER. IF YOU OBJECT TO THE REQUESTED RELIEF OR IF YOU BELIEVE THAT THE EMERGENCY CONSIDERATION IS NOT WARRANTED, YOU SHOULD FILE AN IMMEDIATE RESPONSE.
8. As set forth in more detail below, despite being subject to the Local Rules, counsel for Kayo has from the outset of the Gulfstream case attacked and threatened the chapter 7 trustees, Som and Will as well as their respective counsel. The attacks are sometimes ad hominem with Mr. Shearer repeatedly referring the chapter 7 trustees and their counsel as racists. Not only is such conduct not permitted by the Local Rules, in the Fifth Circuit, the behavior is unacceptable and sanctionable if it does not stop. Krim v. First City Bancorp, 282 F2d 864 (5th Cir. 2002) (monetary sanction affirmed: “Here, the bankruptcy court repeatedly urged Greenfield not to engage in personal attacks.”)
9. The Trustee requests that a show cause order be issued and asks the Court to consider whether the conduct of counsel to Kayo Fortune, LLC, Shawn Shearer, related to this case, is in violation of the applicable rules of conduct including the Local Rules. The Trustee asserts that such conduct falls far outside the scope of conduct permitted under the Local Rules for the Southern District of Texas, the Texas Rules of Professional Conduct, and the Texas Lawyers Creed. See ¶¶21-24 below.
The Kayo proof of claim in the Gulfstream case attaches a state court petition filed by Kayo in Midland County, for fraud, quantum meruit, implied contract, and civil conspiracy. It names as defendants Gulfstream, Dorrity, and Moncada family members.
10. Under this Court’s inherent authority and 11 U.S.C. § 105, this Court should (i) order Mr. Shearer and Kayo to cease and desist this behavior, and (ii) impose such additional orders as this Court considers appropriate under the circumstances in light of such conduct.
11. Section 105’s plain language grants bankruptcy courts broad remedial authority. It provides: The Court may issue any order, process, or judgment that is necessary or appropriate to carry out the provision of this title. No provisions of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent abuse of process, 11 U.S.C. § 105(a) (emphasis added).
“[T]he plain meaning of § 105(a) encompasses any type of order, whether injunctive, compensative or punitive, as long as it is ‘necessary or appropriate’ to carry out the provisions of the Bankruptcy Code.'”. In Re Cano, 410 B.R. 506 (Bankr. S.D. Tex. 2009) quoting Jove Engineering, Inc. v. Internal Revenue Service, 92 F.3d 1539 (11th Cir.1996).
III. Reason for Relief Sought: A. Ad Hominem Attacks from the Start
13. Within 15 days of initiation of the Gulfstream case, Mr. Shearer began making a variety of vile, ad hominem attacks(which is clearly proven in the past court cases, showing a history of abuse of the legal system) on the Trustee and his counsel, as well as on Mr. Sommers and his counsel, including but not limited to: (i) characterizing them as members of a Houston bankruptcy “cabal”, (ii) repeatedly calling both Trustees and their counsel racists and characterizing their actions as a product of racial bias, (iii) hurling epithets such as “lazy”, “vultures”, and “embarrassments to the profession”, (iv) baselessly accusing the Trustee’s counsel of lying, destroying evidence, and interfering with law enforcement, and (v) accusing both trustees of conflicts due to, in Mr. Sommer’s case, an Indiana childhood, and in this Trustee’s case, apparently his wife’s attendance of Indiana University, see ¶¶15-17 below.
E. Pending Sanctions Request & Rule 5A Notice to Chief Judge
20. Unfortunately, the Trustees, and their respective counsel, appear not to be the only targets of Mr. Shearer’s unprofessional conduct. Counsel defending an adversary brought against Moncada by Kayo (through Mr. Shearer) has a pending request for sanctions against him.
See docket 31 in adversary proceeding no. 19-3626. In that filing, Moncada, through counsel has described similar toxic behavior and accusations of racism. According to the filing it “is intended to be written notice to the Chief Judge of the Court under Rule 5.A. of the Rules of Discipline. See ¶26 of docket 31 in adversary proceeding no. 19-3626.
14. Recently, Mr. Shearer threatened to file civil rights lawsuits (and take other unspecified action) against counsel for the Trustee. In addition, Mr. Shearer compared the conduct of the Trustees to the kind of conduct that has brought about the Black Lives Matters protests. See June 14, 2020 letter emailed at 2:30 a.m. within Exhibit A hereto at 000134. 15. The Trustee is aware that in some cases there are creditors, and sometimes even their counsel who direct their frustration and upset at the Trustee.
However, in his almost thirty (30) years as a chapter 7 trustee, the undersigned Trustee has never seen an attorney engage in so many– and such vile –personal attacks and threats as does Mr. Shearer. The Trustee, and his counsel, unequivocally state Mr. Shearer’s attacks and charges of personal bias and racism are not true. And based on their experience over many years of working on cases administered by Sommers, Trustee and his counsel do not believe the allegations of racism on his part are anything other than the worst kind of bullying by Mr. Shearer(You ain’t’ no bully hahaha).
4 One theme(there’s so many, it’s hard to follow) in Mr. Shearer’s correspondence has been that, according to Mr. Shearer, some of the missing vehicles are in Indiana in the hands of persons affiliated with an Indiana meth ring. According to Mr. Shearer, this makes any Indiana connections suspicious.
C. Recent Explicit References to Family Members 16. While the Trustee has ignored the personal attacks until now, in Mr. Shearer’s June 22nd letter to the Trustee’s attorney, Mr. Shearer, for no legitimate reason, referred to the Trustee’s assistant, who is his wife, Lynn Williams, then writing “…I have met more people from Indiana in this case then I have met in my whole life, combined.” See Exhibit A hereto at 000106. In view of Mr. Shearer’s oft-expressed suspicions regarding Ron Sommers, for the reason of his Indiana childhood, see footnote 4 herein, Mr. Shearer’s recent comments regarding Indiana seem to relate to Mrs. Williams having attended graduate school at Indiana University, though Mr. Shearer’s Indiana theories are sometimes difficult to follow(Trust me you’re not the only one LOL). Mr. Shearer appears to believe it is appropriate to do some kind of investigation into the Trustee’s wife’s background. The extent and/or nature of this investigation is unknown.
17. In almost thirty years of practice as a Trustee, the Trustee has never seen a lawyer make an issue out of his assistant’s background and/or role. The Trustee cannot conceive what legitimate basis Mr. Shearer has to refer to his wife and/or her background as it relates to this case. Neither the Trustee nor his assistant prior to his appointment, in this case, had any connection to or experience with George Moncada, Gulfstream, Kayo, Mr. Shearer or any other party related to the Gulfstream case.
18. Unfortunately, this is not the first reference by Mr. Shearer to a professional’s family member; the first being Mr. Shearer’s reference to the brother of Trustee’s counsel in a June 12, 2020 letter. See Exhibit A hereto at 000028. There are no connections between the brother of Trustee’s counsel and the parties or cases. Taken in the context of the increased pace and volume of the vitriol, the references to family are disturbing. The Trustee regrets that he failed to seek Court intervention sooner.
Currently, the Scumbag Shawn Shearer has a Protective Order filed (Yet to be ruled on due to coVid-19 Restrictions)
See a true copy below:
TRUSTEE’ MOTION FOR SHOW CAUSE ORDER THIS MOTION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE MOTION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE YOUR RESPONSE WITHIN TWENTY-ONE (21) DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE MOTION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE RELIEF MAY BE GRANTED WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE MOTION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE MOTION AT THE HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY.
On October 3, 2019, Mr. Shearer began a written line of inquiry as to the Trustee’s position on whether the debt owed to Kayo Fortune was actually the primary obligation of Gulfstream Trucking (despite not being listed as a such in the promissory note) and of which the Debtor was merely a guarantor Case 19-33426 Document 85 Filed in TXSB on 06/28/20 Page 3 of 74 (despite being listed as the maker). At this point, Mr. Shearer began a pattern of behavior that has persisted to date(which can clearly be linked to past court cases where he abuses the legal system).
Ad Hominem Attacks 11.
As noted above, starting with the October 3, 2019 correspondence from Mr. Shearer, a series of ad hominem attacks commenced including, but not limited to: (a) repeated references to a Houston bankruptcy “cabal” and conspiracy see Exhibits B, C, D and G; (b) personal and ageist based attacks on the Trustee, see Exhibits D, E, F and G; (c) baseless accusation of racism, see Exhibits C, E, F, G, H, I, J, K and L; (d) personal attacks on counsel for the parties, see Exhibits B, E and I; (e) threats to file civil rights claims against the parties, see Exhibits I and J; (f) accusations of withholding evidence, blocking, and “tipping off” of the Debtor, see Exhibits E, H and I; (g) explicit references to the Trustee’s wife and attempts to make the Trustee’s residence as a child in Indiana an issue of relevance in the case, see Exhibits F, I, K and M.
Under this Court’s inherent authority and 11 U.S.C. § 105, this Court should (i) order Mr. Shearer and Kayo to cease and desist this behavior, and (ii) impose such additional orders as this Court considers appropriate under the circumstances in light of such conduct. Section 105’s plain language grants bankruptcy courts broad remedial authority. It provides: The Court may issue any order, process, or judgment that is necessary or appropriate to carry out the provision of this title. No provisions of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent abuse of process
11 U.S.C. § 105(a) (emphasis added). “[T]he plain meaning of § 105(a) encompasses any type of order, whether injunctive, compensative or punitive, as long as it is ‘necessary or appropriate’ to carry out the provisions of the Bankruptcy Code.'”. In Re Cano, 410 B.R. 506 (Bankr. S.D. Tex. 2009) quoting Jove Engineering, Inc. v. Internal Revenue Service, 92 F.3d 1539 (11th Cir.1996). In addition to § 105, courts have inherent powers in all proceedings, including bankruptcy, to “achieve the orderly and expeditious Case 19-33426 Document 85 Filed in TXSB on 06/28/20 Page 8 of 74 disposition of cases.” In re Cano, citing 92 F.3d at 1553, in turn citing Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991).
Bad Conduct Not Excused by Lack of Admission to the Southern District of Texas
16. Mr. Shearer is not licensed in the Southern District of Texas. Mr. Shearer was, however, as stated above, admitted pro hac vice in both the Moncada and Gulfstream bankruptcy cases. Mr. Shearer is clearly not complying with the Rules of Conduct found in the Local Rules for the Southern District of Texas, which incorporates the Texas Rules of Professional Conduct. See, Appendix A, Rule 1, A.; Appendix C., N. and Appendix D., C., D., E., F., G., H. and K; see also In re American Airlines, Inc., 972 F.2d 605 (1992) (also applying ABA model rules in a disqualification dispute). 17. Mr. Shearer’s conduct violates the Rule of Discipline of the United States District Courts of the Southern District of Texas.
“Lawyers who practice before this court are required to act as mature and responsible professionals and the minimum standard of practice shall be the Texas Disciplinary Rules of Professional Conduct.” “Violation of the Texas Disciplinary Rules of Professional Conduct shall be grounds for disciplinary action, but the court is not limited by that code. In re Adoption of Amendment of Rules of Discipline, Appendix A, of the Local Rules of Procedure, General Order No. 2007-8, June 19, 2007.”
18. Rule 4.04 of the Texas Disciplinary Rules of Conduct, on “Respect for Rights of Third Persons” states that “a lawyer shall not use means that have no substantial purpose other than to embarrass … or burden a third person…” Comment 1 to this Rule states “… a lawyer should avoid the infliction of needless harm.”
19. Mr. Shearer’s behavior also violates the Texas Lawyers’ Creed, adopted on November 7, 1989, by the Texas Supreme Court and the Texas Court of Criminal Appeals. “A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. … I will be courteous, civil, and prompt in oral and written communications. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. … I will refrain from excessive and abusive discovery. . .”
20. Moreover, the Trustee believes communications, as set out in the attached exhibits amount to “antagonistic or obnoxious behavior” prohibited by the Local Rules of the Southern District. [E]ffective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adherer to the higher standard of conduct which judges, lawyers, clients, and the public may rightfully expect.
Currently, the Scumbag Shawn Shearer has a ANOTHER Protective Order filed (Yet to be ruled on due to coVid-19 Restrictions)
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL, DEFENDANT’S REQUEST FOR PROTECTIVE ORDER, AND DEFENDANT’S REQUEST FOR SANCTIONS AGAINST COUNSEL
1. To fully understand the discovery dispute at issue, the Court must look first to the conduct of Plaintiff’s counsel in this case. Plaintiff’s counsel, Shawn Shearer, a Dallas attorney who is unfamiliar with this Court’s practices and with the bar of bankruptcy attorneys here in the Southern District of Texas Houston Division, has come into this case with wild conspiracy theories and conduct that is unprofessional at best, uncivil and offensive at worst. Mr. Shearer’s unprofessional conduct has washed over into his discovery tactics in this case, and he should be stopped. Defendant asks that Plaintiff’s motion to compel be denied and a protective order entered to stop Mr. Shearer’s abusive discovery conduct.
Mr. Shearer’s Unprofessional and Abusive Conduct
2. Mr. Shearer’s unprofessional and abusive conduct began early in the main case. The undersigned was first contacted by the Defendant for representation on Monday November 25, 2019, just 3 days before the answer to the adversary was due. The undersigned immediately contacted Mr. Shearer asking for a 2-week extension of the answer deadline given the Holiday and the need to come up to speed on the file. Mr. Shearer responded that day stating:
(Exhibit 1). Although this answer seemed insensitive and overly curt, the undersigned thanked Mr. Shearer for the professionalism and moved forward with a quick client meeting, engagement as counsel, and a timely answer.
3. Mr. Shearer’s communications went downhill from that point quite quickly. In preparing the Defendant’s answer, the undersigned reviewed the adversary complaint and the docket sheet in the adversary and noticed that Mr. Shearer had named Gulfstream Trucking, LLC as a defendant and moved for default judgment against Gulfstream. Since that entity was a chapter 7 debtor, this constituted a violation of the automatic stay. Assuming the best of the Plaintiff and Mr.Shearer, on December 6, 2019, the undersigned called Mr. Shearer, got voicemail, and left a message that Gulfstream was in bankruptcy and his action against Gulfstream were a violation of the stay. On December 11, 2019, Mr. Shearer responded with an email that was abrasive and accusatory: Matt – I received your voice mail last Friday (12/6) in which you advised me that Gulf Stream Trucking had filed a bankruptcy proceeding and that Randy Williams had been appointed trustee.
I am not sure where you got this information, but it is incorrect. I did a Pacer search before filing the Default and I just did another Pacer search for Gulf Stream Trucking. The only proceeding that comes up is the adversary proceeding in which you represent Moncada. I have a few questions for you. Who gave you the information that Gulf Stream Trucking had filed bankruptcy? You seem to have received bad information. Whoever did give that information to you was either deceiving you or their plan to have you extend an answer two weeks was necessary for them to get the bankruptcy filing package done. Also, how could you possibly know the trustee appointed in a un-filed bankruptcy case? If it came from Moncada, you now know his proclivity for deception, misinformation, and outright lying (which I can prove at this point). If your inside track grapevine lets you know who will be representing Gulf Stream Trucking, please let me know so I can make contact with them. (Exhibit 2). Despite the abrasive nature of the email, the undersigned wantED to keep the case on track and streamlined. The undersigned replied to Mr. Shearer’s email by attaching the pleadings showing the Gulfstream case. On December 11, 2019, Annie Catmull, counsel for Gulfstream’s Chapter 7 Trustee Randy Williams, sent Mr. Shearer an email warning him that his actions constituted a violation of the automatic stay. (Exhibit 3).
4. Mr. Shearer’s response to simply being told his actions of proceeding against Gulfstream were a violation of the stay was explosive and vicious. Attached as Exhibit 4 is the full letter that Mr. Shearer sent to the Defendant’s Chapter 7 Trustee Ron Sommers, Mr. Sommers’ counsel Marc Myers, Gulfstream’s Chapter 7 Trustee Randy Williams, Mr. Williams’ counsel Ms. Catmull, the Defendant’s main case counsel Jennifer Casey, and the undersigned. The Court should certainly read this entire letter to get the full impact of Mr. Shearer’s rank unprofessional attacks.
Some select portions starting on the first page will have to do: The cloak and dagger cabal game seeking administrative fees is old(Used several times even in past cases). It does not take an “experienced” bankruptcy attorney in Houston to see it. The fact that both Mr. Meyers and Mr. Probus have both seen fit to e-mail me, both espousing their greatness in the bankruptcy field and “in” status in the Houston bankruptcy community, just tells, me once again, that this community of lawyers in not performing their statutory functions, but instead gaming the system for personal profit. I know this is the game of the “in the know” bankruptcy bar of Houston. I am not sure that this is how the game is supposed to work. A simple perusal of the public record reveals the repeated enterprise of rotating positions as trustee, counsel to trustee, counsel to a subsidiary, trustee of a subsidiary, etc. Anybody with a brain that has been around bankruptcy at all knows how this ends – my early guess is that Moncada throws in about $250,000 to $400,000 that is divided up among you as administrative fees and this group walks off to do the same thing again.
That is the incorrect, wrong, unjust, lazy, unethical, and improper result.
None of you has worked with me before. None of you knows my experience. I will tell you this about my experience, I have seen frauds before, as have each of you. The question that each of us must ask is how we react to the fraud. Do you expose it and do right? Or, do you game the system to personally profit? Each of us has our own answer to these questions. I know mine. And, I also now know each of yours. As you know, my client is a former NFL wide receiver with a pristine career and record. This is the first season in his memory that he is not playing football. I am now going to have to explain this nearly inexplicable situation to him before he makes public statements about the process and gives warnings to those now playing or playing in the future as to how society treats these men when they leave the game. He played only a few years but did well. But, he will never make the same money again. Then, just as he was retiring, a fraudster comes by and takes $400,000 (do any of you know what it takes – after taxes and agent fees, practices and games, to net $400,000 in the NFL – and factor in the impact to the mind and body).
And then, to top it off, representatives of the United States Trustee not only allow that to occur, but gather their friends together to feast. This cautionary tale will be told. (Exhibit 4).
Mr. Shearer does not stop with just accusing the United States Trustee’s counsel and two of the most experience, honest and ethical Chapter 7 Trustees in the Southern District and the State of Texas with fraud and conspiracy.
Mr. Shearer continues in the letter to essentially accuse the trustees and counsel, including the undersigned, of racially motivated conduct: The bankruptcy vultures of the Houston bankruptcy bar (of which both Mr. Meyers and Mr. Probus have reminded me is an exclusive group) have found a viable carcass to circle, and this all designed to create administrative claims to fund a group of white lawyers ahead of my African-American client. There are now more lawyers running-up administrative costs than there are material creditors in this case. For what reason? I do not even need to imagine. This group knows that there are funds for this estate and the whites only feeding trough has been opened. (Exhibit 4, p. 2-3). When this case started, notice of an insolvent estate was sent to the creditors. Now, the Gulfstream filing says there are more than $400,000 in assets available, but now four more white lawyers have lined to take them. That $400,000 belongs to my African-American client. (Exhibit 4, p. 3-4). I do not understand why the United States Trustee, represented by each of you, is not looking at this situation with any interest. Is it too upsetting that an AfricanAmerican should have his funds returned? (Exhibit 4, p. 4). This is simply a game of keep-away for profit. It is truly disgusting that a hardworking 28 year-old African American man who has raised himself up and followed the system as presented to him, is not afford the protection or assistance of representatives of the United States Trustee. Instead of assisting in exposing the fraud, this group of representatives is spending hours trying to profit from my client’s loss at the hands of Mr. Moncada. I ask you to do your jobs. (Exhibit 4, p. 5). 5.
To say the absolutely least, the undersigned was shocked and offended. The letter was filled with vicious libel. The undersigned has practiced law for 32 years in this district, representing debtors, creditors and trustees. He has prided himself on ethical representation of clients. And on a more personal note, as many in the bar in Houston know, the undersigned is married to an African-American women and has a bi-racial child. He has supported African American causes in the Houston area. He was a board member at the founding of the Houston Museum of African American Culture.
To be accused of using his white privilege to take advantage of an African-American was deeply offensive. To hear similar accusations leveled against his colleagues, all of whom he knew to be equally just, fair, and ethical was infuriating.
6. The undersigned immediately called Mr. Myers, counsel for the Defendant’s Trustee Mr. Sommers, and discussed the letter. Mr. Myers informed the undersigned that Mr. Shearer had sent him a similarly outrageous and inflammatory email as early as October of 2019, making wild accusations.
7. Returning to the automatic stay violation that led to Mr. Shearer’s outburst, the Court should note that although warned of the violation by the Trustee’s counsel and notice of Gulfsteam’s Chapter 7 filing in the adversary (See Doc. No. 10), Mr. Shearer left Gulfstream as a party and the motion for default pending. It was not until after this Court confronted Mr. Shearer about the situation at the initial scheduling conference on January 30, 2020, that Mr. Shearer acknowledged that Gulfstream was not a proper party and action against Gulfstream was not proper.
8. Late in the evening on January 30, 2020, Mr. Shearer served the Plaintiff’s first round of discovery requests on the undersigned, consisting of 121 requests for admission, 47 requests for production of documents, and 20 interrogatories. On February 28, 2020, the undersigned served Defendant’s responses on Mr. Shearer. (See Exhibits 5, 6, 7, and 8). The undersigned offered to have the documents scanned and placed into a DropBox for Mr. Shearer’s convenience, as there were literally thousands of pages of documents being produced. He declined, insisting on coming to Houston and reviewing the documents in counsel’s office.
9. As this Court knows, in early March of 2020, COVID-19 hit this country. Many offices began to have employees work remotely. Many businesses began to shut down. Still, Mr. Shearer insisted on coming to Houston to review the documents in the undersigned’s office. The undersigned’s firm decided to close its office and have all employees work remotely, and Friday, March 13, 2020, was to be the last day the office would be open. That was the day Mr. Shearer came to town. Mr. Shearer stayed all day into the late afternoon/early evening, flagging documents laid out on a conference table for scanning and sending to him.
10. On March 29, 2020, Mr. Shearer inquired about production of the documents, and the undersigned explained that only one staff person was in the office each day to handle all administrative matters for the firm (mail, deposits etc) all legal support and there simply were not sufficient resources to scan the thousands of pages being produced.
11. Knowing that COVID was still raging and that the City of Houston was on lock down, Mr. Shearer continued pressing for immediate production of the documents. Mr. Shearer targeted his communications to be as harassing as possible, sending an email about the document production to the undersigned on Easter Sunday at 7:12 p.m.:
On Apr 12, 2020, at 7:02 PM, Shawn Shearer <firstname.lastname@example.org>
wrote: Matt – Any ETA on getting the documents scanned and Bates stamped? Another two weeks has now passed. It has been a month since I tabbed the documents for production, and it has been two and a half months since the RFP was served, and I still do not have responsive documents in my possession.
Shawn E. Shearer
The Law Office of Shawn Shearer,
P.C. 3839 McKinney Avenue #155-254 Dallas, TX 75204
(214) 272-9533 www.shearerlaw.pro</email@example.com>
(Exhibit 9). When the undersigned responded with incredulity that Mr. Shearer would choose Easter Sunday evening to bother him and asked for an explanation of why, Mr. Shearer replied in the most caustic way possible, accusing the undersigned of religious and racial intolerance:
On Apr 12, 2020, at 8:24 PM, Shawn Shearer <firstname.lastname@example.org> wrote:
Matthew: It is a long standing practice of mine to send emails to lawyers who are derelict in their responses and work owed me and the court on Sunday evenings so that those lawyers can get a start on the work on which they are behind on Monday morning. I gave you two weeks this time, before I asked.
Do you have Covid, Mathew? I was not aware that you had been diagnosed.
Unless you have, I am uncertain as to why you are unable to work. I work every day. Also, what makes you think I celebrate Easter(Actually listed online as Christian Ironically[See below]) or view it as any different than any other Sunday?
Summary: Shawn Shearer is 52 years old and was born on 11/27/1967. Shawn’s current home is located at Dallas, TX. Shawn also answers to Shawn Shear, Shawn E Shearer and Shawn Eric Shearer, and perhaps a couple of other names. We know that Shawn’s political affiliation is unknown; ethnicity is Caucasian; and religious views are listed as Christian.
Or that any specific person celebrates Easter, or should? Are you trying to convert me, Matthew? Are you suggesting that Christian holidays are somehow held in higher esteem by the Houston legal community than the holidays celebrated by others? Are you shaming me for possibly being Jewish or Muslim? I feel like that’s exactly what you are doing. Demanding that I announce my religion and account for it. In fact, you have demanded exactly that. This is troubling. This response suggests to me, that you view Christian holidays as state holidays. Which explains a lot about why my client continues to receive no cooperation in this matter. You have a fundamental misunderstanding about the function of the government. That is becoming more clear to me each day that you kick this down the road. Do you work during Passover? How about Kwanza? Ramadan? My guess is – yes. Because those are not white people holidays. So perhaps it is you who should explain why you believe that you are exempt from doing your job on any day – when this bankruptcy process is not in any way shut down. It seems to me that this is the perfect time for Mr. Moncada to get his paperwork in order, given that his movement’s are restricted. Also – why did you check your work email on Easter if you aren’t working? So you can use the opportunity to try to shame non-Christians and demand accountability from lawyers who contact you on a holiday that you celebrate?
Or are you also working on Easter – but simply not on getting my client what he’s been requesting for weeks? Why else check your email? Please get me what I requested. You do not want this fight with me. – Shawn Shearer
Shawn E. Shearer
The Law Office of Shawn Shearer, P.C.
3839 McKinney Avenue #155-254 Dallas, TX 75204
12. On April 14, 2020, Mr. Shearer served a second set of requests for production with 10 additional document requests, which Defendant responded to timely. (Exhibit 10).
13. On May 9, 2020, the undersigned was able to have the documents scanned, placed into a DropBox folder, and sent to Mr. Shearer. There was confusion over what Mr. Shearer had flagged, so the undersigned had all of the documents that were provided for inspection on March 13, 2020 scanned and placed into the DropBox. As the undersigned had explained to Mr. Shearer, these documents, when combined with documents already in the possession of the Trustees, were all that the Defendant had to produce that were responsive and not subject to objection. There were over 2,000 pages of documents that were produced to Mr. Shearer.
14. On May 14, 2020, Mr. Shearer served a third request for production of documents, which the Defendant has just responded to. (Exhibit 11).
15. On May 28, 2020, Mr. Shearer served yet another full round of discovery consisting of 57 requests for admissions, 9 requests for production of documents, and 5 interrogatories. (See Exhibits 12, 13, and 14).
16. Since February 25, 2020, Mr. Shearer has served 36 subpoenas on various third parties. (Exhibit 15). The persons subpoenaed range from Gulfstream’s Chapter 7 Trustee, to the Defendant’s employer, to the Defendant’s son, to various banks that most likely are protected under the Bank Secrecy Act, to Ye Old Pancake House. None of these subpoenas or proof of their service have been filed with the Court, but the Plaintiff must have had success with them. In response to Defendant’s requests for production of documents, Mr. Shearer produced over 8,000 pages of documents.
17. Mr. Shearer has obtained thousands of pages of Defendant’s documents that the Defendant had provided to the Defendant’s Chapter 7 Trustee in this case as well, which Mr. Myers sent to the undersigned on May 23, 2020, to show the production. It is the undersigned’s understanding that Mr. Shearer has continued recently to harass both the Defendant’s Chapter 7 Trustee and Gulfstream’s Chapter 7 Trustee with additional abusive and accusatory correspondence. III. Why Plaintiff’s Motion Should be Denied
18. The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Only after the moving party establishes that the request is withing the scope of permissible discovery does the burden shift to the party resisting discovery to show why the discovery is irrelevant, overly broad, or unduly burdensome or oppressive and should not be permitted. Abraham v. Alpha Chi Omega, 271 F.R.D. 556, 559 (N.D. Tex. 2010), citing Spiegelberg Mfg., Inc. v. Hancock, 2007 U.S. Dist. LEXIS, 2007 WL 4258246 (N.D. Tex. Dec. 3, 2007). The court must limit the extent of discovery if it determines that the discovery is unreasonably cumulative or duplicative, can be obtained from some other source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case, the amount in controversy, the parties’ resources,, the importance of the issues at stake, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2).
19. The Plaintiff’s motion to compel, in a long and largely incomprehensible fashion, seems only to complain generally that the objections raised by Defendant are not valid objections. However, in the initial portion of the motion, the Plaintiff identifies only the following requests it seeks to compel: Request Numbers 11, 12, 14, 15, 17, 19, 26, 28, 29, 30, 32, 36, 38 and 39 – 43 of Plaintiff’s First Set of Requests for Production; and Interrogatory Nos. 2, 3, 11, and 12. The Defendant has attached the full responses to the requests to this response. The Court can see from its own review of the requests and responses that the objections were appropriate and specific objections, tailored to each request. However, the specifics supporting the objections are detailed below.
Requests for Production
20. The requests for production at issue and the response with objections that Defendant provided are listed below along with additional argument as to why the objections to the requests are valid and why the information requested is not discoverable or should be limited under Rule 26. REQUEST NO. 11: Produce all documents and communications between you and any of the following individuals, at any time, regarding or related to raising capital (debt or equity), or to the operation of, a trucking or hauling business of any type, including without limitation the business of GS Trucking: Terry Moncada (aka Terry Asher), Debra Moncada, or Ricky Aranda.
RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. Further, the Defendant objects to this request on the grounds that it is overly broad and unduly burdensome, by asking for documents relating in any way at any time to the operation of any trucking or hauling business.
Subject to and without waiving the foregoing objections: Defendant will produce for inspection those documents evidencing communications between him and Terry Moncada, Debra Moncada, and Ricky Aranda regarding the loan from Kayo, if any. This request asks for information without any time limitation and without any limitation on the business being conducted. It goes well outside of any transaction that is at issue in this case that could impact on the case. It would force the Defendant to try to locate and produce documents of any business venture he has ever conducted. The Defendant produced all of the documents in his possession that were relevant to the issues in this case subject to the objections. REQUEST NO.
12: Produce all documents and communications between you and Dorrity (as defined above to include, among others, Kati Christy (aka Kati Dorrity) and James Robert “JR” Christy) from and after July 1, 2017.
RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. Further, the Defendant objects to this request on the grounds that it is overly broad and unduly burdensome, by asking for all documents of any communications not limited in scope. Subject to and without waiving the foregoing objections: Defendant will produce for inspection those documents evidencing communications between him and Terry Moncada, Debra Moncada, and Ricky Aranda regarding the loan from Kayo, if any. The Defendant produced all of the documents in his possession relating to the loan transaction at issue. The Plaintiffs’ request asked for any communications between these persons without any limitation as to the subject matter for a three year period.
REQUEST NO. 14: Produce all documents relied upon by you in conducting the business of GS Trucking from March 12, 2018 through November 26, 2019. [Note: A complete response to this Request will include all financial statements, accounting statements, bank statements, e-mails and communications regarding business operations.]
RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. Further, the Defendant objects to this request on the grounds that it is overly broad and unduly burdensome. By asking for all documents relied on in conducting the business of GS Trucking, there is no limit to the subject area at all. This could literally mean anything. The Defendant has already produced all of the documents in his possession relating to the GS Trucking business in response to other requests, but to ask for any document the Defendant relied on in running the business could mean anything and is wildly overbroad and burdensome.
REQUEST NO. 15: Produce all promissory notes executed by you, individually or on behalf of GS Trucking, as borrower or guarantor.
RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. Again, all of the documents in Defendant’s possession regarding GS Trucking were produced. However, to request any promissory note the Defendant has executed, without any limitation as to time and not limited to GS Trucking’s business is wildly irrelevant to any issue in this case and would be overly burdensome. Defendant could be forced to go back and produce anything he has executed in his entire lifetime of business in any business he has ever been involved in.
NO. 17: Produce all IRS Forms 1099 and W-2, issued by you or GS Trucking for tax year 2018. RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. The 1099 and W-2s have no relevance to any of the discharge claims raised by Plaintiff in its adversary. Nevertheless, the tax returns were produced to the Trustees in these cases, individually and for GS Trucking. To the extent the Plaintiff contends it does not have them, the Defendant will produce any of these documents he has that relate to the GS Trucking business. REQUEST
NO. 19: Produce all documents and communications between you and the person you have identified in Section 341 testimony in G. Moncada Chapter 7 and the GS Trucking Chapter 7 as Dorrity’s ex-girlfriend.
RESPONSE: Defendant objects to this request on the grounds that it is requesting documents that are wholly irrelevant and not reasonably calculated to lead to the discovery of relevant information or admissible evidence. These documents were actually produced. To the extent that the Plaintiff cannot locate them, Defendant will produce them again.
REQUEST NO. 26: Produce all documents and communications (including all contracts or proposed contracts) between you or GS Trucking and any of the following companies and individuals, their agents, employees, or officers related to your or GS Trucking’s actual, proposed, contemplated, or represented trucking and hauling business:
Page 14 of 16, tired of copy and pasting.
Shawn Shearer Abusive Correspondence
United States District Court, N.D. Alabama, Southern Division.
December 14, 2018.
Steven B Barger, Plaintiff, represented by David A. Zeitlin, ZEITLIN & ZEITLIN, P.C. & Shawn E. Shearer, THE LAW OFFICE OF SHAWN SHEARER PC.
First Data Corporation, Frank Bisignano, Dan Charron, Anthony Marino, Karen Whalen & Rhonda Johnson, Defendants, represented by Arnold William Umbach, III, STARNES DAVIS FLORIE LLP & Gary B. Eidelman, SAUL EWING ARNSTEIN & LEHR LLP, pro hac vice.
KARON OWEN BOWDRE, Chief District Judge.
In the movie Groundhog Day, weatherman Phil Connors finds himself stuck in a time loop in Punxsutawney, Pennsylvania. Each day, he wakes up to the same song, reports on the same news story, and relives the same 24 hours. Likewise, each day since Defendants filed their motion to compel Grant Barger’s deposition, this court feels as if it has relived the same 24 hours as Mr. Barger continues to file motions and notices repeating the same arguments. Today, the court ends that time loop.
The late Judge Acker said it best: “Before the court are oceans of motions, motions to compel, motions to quash, and motions for protection.” E.A. Renfroe & Co. v. Rigsby, No. 06-AR-1752-S, 2008 WL 11376585, at *1 (N.D. Ala. June 24, 2008). This matter comes before the court on “Defendants’ Motion to Compel Third Parties Phillip Morgan, Grant Barger and Barger Consulting Group to Comply with Deposition Subpoena and Memorandum in Support of Law Thereof.” (Doc. 1). The underlying case, Barger v. First Data Corp. (1:17-CV-04869-FB-LB), is pending in the U.S. District Court for the Eastern District of New York. Defendants First Data Corporation, Frank Bisignano, Dan Charron, Anthony Marino, Karen Whalen, and Rhonda Johnson served third-party subpoenas on Phillip Morgan, Grant Barger, and Barger Consulting Group, seeking both depositions and documents. Phillip Morgan, Grant Barger, and Barger Consulting Group all reside in Alabama. Defendants filed their motion to compel in this court on September 24, 2018. (Doc. 1).
On September 26, Mr. Barger, acting pro se, filed his “Motion to Strike, Deny or Consolidate” in response. (Doc. 2). On October 5, Mr. Barger filed his “Response to Motion to Compel & Motion to Quash & for Protective Order.” (Doc. 5). On October 15, Defendants filed “Movants’ Reply to Opposition to Motion to Compel and Opposition to Motion to Quash and for Protective Order.” (Doc. 9). Mr. Morgan never responded to Defendants’ motion. The motion to compel is now ripe for review.
This case originated as a wrongful termination action in the U.S. District Court for the Eastern District of New York. Plaintiff Steven Barger, a business consultant, filed a complaint against his former employer, First Data Corporation, and several executives. Plaintiff Steven Barger alleges that Defendants wrongfully terminated him in violation of the Family Medical Leave Act and the Americans with Disabilities Act, failed to reasonably accommodate his disability, discriminated against him based on disability, and retaliated against him. See (Docs. 1 & 34 in 1:17-cv-04869-FB-LB).
Defendants seek testimony and document production from Phillip Morgan, Grant Barger, and Grant Barger’s consulting business. Mr. Morgan is Plaintiff Steven Barger’s accountant, and Mr. Barger is Plaintiff Steven Barger’s son. (Doc. 1 at 2). In his deposition, Plaintiff Steven Barger claimed that prior to working at First Data in 2014, he had a “lucrative consulting” business working for his son’s consulting business(jeez I wonder where he got that idea????). (Id.). But Plaintiff Steven Barger’s tax returns from 2012 and 2013 indicate a significantly lower income than he claimed in the deposition. Plaintiff Steven Barger claimed that the money that he earned as a consultant at his son’s business, but did not report on his taxes, was “left in Mr. Barger’s company.”
Plaintiff Steven Barger first began working for First Data as an independent consultant, and then later became an employee of First Data. While Plaintiff Steven Barger was an independent consultant with First Data, his son’s business, Barger Consulting Group, sent invoices to First Data for his services. During the three and a half months he worked for First Data as an independent consultant, Plaintiff Steven Barger stated that he charged First Data a monthly fee of $30,000. First Data explained that, given Plaintiff Steven Barger’s monthly fee, Barger Consulting Group should have billed the company for $105,000 for Plaintiff Steven Barger’s services. Instead, Barger Consulting Group billed First Data for $170,000. When questioned in his deposition about his income and tax return discrepancies, Plaintiff Steven Barger told Defendants to ask his accountant, Mr. Morgan, and his son, Mr. Barger.
Defendants continue to investigate the discrepancies in Plaintiff Steven Barger’s tax returns and income to support their after-acquired evidence defense. The U.S. District Court for the Eastern District of New York issued third-party subpoenas to compel testimony and document production by Phillip Morgan and Grant Barger, who work and reside in the Northern District of Alabama, and Barger Consulting Group, Mr. Barger’s business. (Doc. 1 at 1). The subpoena for Mr. Morgan seeks various documents and communications with Barger Consulting Group and Plaintiff Steven Barger regarding their tax returns and deductions, in addition to various documents regarding how Barger Consulting Group billed its clients. (Doc. 1-1 at 52-55). The subpoenas seek the same categories of documents from Mr. Barger and Barger Consulting Group: personnel file and tax documents relating to Plaintiff Steven Barger; documents regarding Barger Group LLC’s contracts, invoices, financial statements, retainer fees, billing rates, tax returns, information used in the preparation of filing tax return, and profits and losses records, all for the years 2010 through 2017; and communications with Plaintiff Steven Barger, Mr. Morgan, and Shawn Shearer and his law firm concerning the underlying case. (Doc. 1-1 at 66-67, 73-74).
Those subpoenas were served on Mr. Morgan on August 28, 2018, and on Mr. Barger, individually and on behalf of Barger Consulting Group, on September 8, 2018. (Doc. 1-1 at 57, 78). Defendants scheduled both Mr. Morgan’s and Mr. Barger’s depositions on September 17, 2018, in Birmingham, Alabama.
Defense counsel followed up the subpoenas with emails to Mr. Morgan and Mr. Barger to discuss the subpoenas and document requests. Defense counsel exchanged several emails with Mr. Morgan and Mr. Barger, but neither third party consented to being deposed.
Mr. Barger then filed a motion to quash the subpoena on September 13, 2018, in a different action before this court. See (Doc. 1 in No. 2:18-mc-01491-KOB). This court denied the motion to quash. See (Doc. 4 in No. 2:18-mc-01491-KOB). Mr. Barger subsequently supplemented the motion to quash, indicating to the court that defense counsel canceled the deposition at issue. See (Doc. 6 in No. 2:18-mc-01491-KOB). On September 19, 2018, the court vacated its earlier Order and found the motion to quash as moot, closing the case, because the deposition was seemingly canceled. See (Doc. 7 in No. 2:18-mc-01491-KOB).
Defendants then filed the motion to compel at issue in this case on September 24, 2018. (Doc. 1). Defendants seek to compel third parties Mr. Morgan, Mr. Barger, and Barger Consulting Group to comply with the deposition subpoenas duces tecum. On September 26, 2018, Mr. Barger filed his “Motion to Strike, Deny or Consolidate.” (Doc. 2). He subsequently filed his “Response to Motion to Compel & Motions to Quash & for Protective Orders” on October 5. (Doc. 5). Defendants filed “Movants’ Reply to Opposition to Motion to Compel and Opposition to Motion to Quash and for Protective Order” on October 15. (Doc. 9).
At this point, the filings spun out of control. On October 18, Defendants filed “Supplement to Movants’ Reply to Opposition to Motion to Compel and Opposition to Motion to Quash and for Protective Order” in response to allegations by Mr. Barger via email that Defendants had not fulfilled their duty to meet and confer. (Doc. 10).
Mr. Barger then filed his “Reply to Opposition to Motions to Quash & for Protective Orders” on October 19. (Doc. 11). Among other things, Mr. Barger notified Defendants that Barger Consulting Group, the company they had subpoenaed, was not the name of his company. In an attempt to fix the naming mistake, Defendants filed their “Notice of Correction” on October 19. (Doc. 12).
Mr. Barger then filed two motions for Rule 11 sanctions against Defendants and defense counsel. (Docs. 13 & 14). On October 24, Defendants filed “Defendants’ Opposition to Grant Barger’s (1) Motion for Sanctions (ECF No. 13) and (2) Objection to Notice of Correction and Motions for Sanctions (ECF No. 14).” (Doc. 15). Barger concluded by filing his “Reply in Support of Grant Barger’s Motion for Rule 11 Sanctions (Docket No. 13) and Objection to Notice of Correction and Motions for Sanctions (Docket No. 14)” on October 29. (Doc. 16).
Defendants seek the deposition of Mr. Morgan and Mr. Barger in addition to documents produced by Mr. Morgan, Mr. Barger, and Barger Consulting Group. The court will address the motion in reference to each third party in turn.
- Mr. Morgan
Defendants seek the testimony of Phillip Morgan in support of its after-acquired evidence defense to Plaintiff Steven Barger’s wrongful termination claims. Rule 45 of the Federal Rules of Civil Procedure provides several instances in which the court may quash a subpoena. But all of those instances require a timely motion by the person or entity subject to the subpoena. See Fed. R. Civ. P. 45(d)(3). Mr. Morgan has not filed any response in this action.
Mr. Barger has included Mr. Morgan in several of his responses and motions. But because Mr. Barger is pro se and not an attorney, Mr. Barger cannot represent Mr. Morgan. Mr. Barger clarifies in his second responsive filing that he seeks to prevent Mr. Morgan from “be[ing] required [to] testify or turnover [sic] documents about me and my business and my documents for the same reasons I argued in my Motion to Quash.” (Doc. 5 at 2 n.1).
“When a subpoena is directed to a nonparty, any motion to quash . . . generally must be brought by the nonparty.” E.A. Renfroe & Co., 2008 WL 11376585, at *3-4 (quoting 9 Moore’s Federal Practice § 45.50 (3d ed. 2008)). The court recognizes that parties may have standing to challenge a non-party subpoena based on the party’s personal right or privilege over the information subpoenaed. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (holding that defendants lacked standing to challenge a non-party subpoena when they were not in possession of the materials and did not allege a personal right or privilege); Shepherd v. Castle, 20 F.R.D. 184, 188 (W.D. Mo. 1957) (“Unless a party to an action can make claim to some personal right or privilege in respect to the subject matter of a subpoena duces tecum directed to a non-party witness, the party to the action has no right to relief. . . .”); see also Auto-Owners Ins. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (finding that defendants failed to show an expectation of privacy in their business transactions, and therefore could not establish a personal right as to those records). At least one court has held that non-parties also may have standing when challenging subpoenas against other non-parties to obtain information to which the challenging non-party has a personal right or claim of privilege. See Estate of Ungar v. Palestinian Authority, 332 F. App’x 643, 645 (2d Cir. 2009) (holding that a non-party had standing to challenge a subpoena over records maintained by its law firm, a different non-party).
Mr. Barger simply requests that “[Mr.] Morgan not be required [to] testify or turnover [sic] document[s] about me and my business and my documents for the same reasons I argued in my Motion to Quash.” (Doc. 5 at 2 n.1). But nowhere does Mr. Barger allege that he has a personal right or claim of privilege over any of these documents. Without any evidence proving that he has such a right or privilege, the court cannot find that he has standing to challenge Mr. Morgan’s subpoena.
Because Mr. Morgan has not responded to the motion to compel or offered any argument why he should not be required to comply with the subpoena, the court will GRANT the motion to compel with respect to Mr. Morgan.
- Mr. Barger
Mr. Barger offers several reasons why the court should quash the subpoena seeking his deposition and production of documents. He contends that (1) Defendants lied to this court and the U.S. District Court for the Eastern District of New York; (2) no outstanding subpoena exists; (3) Defendants failed to meet and confer with him prior to filing their motions compelling his compliance with the subpoena; (4) the subpoena requests privileged information; (5) the information sought is duplicative; (6) Defendants are solely requesting certain documents to build a case against Mr. Barger, not for use in the underlying matter; (7) the information requested contains trade secrets; (8) he does not possess some of the documents requested; and (9) the subpoenas are overbroad and irrelevant. This court will discuss each argument raised.
Under Rule 45(d)(3) of the Federal Rules of Civil Procedure, the court must quash or modify a subpoena on timely motion if the subpoena (1) “fails to allow a reasonable time to comply,” (2) “requires a person to comply beyond the geographical limits specified in Rule 45(c),” (3) “requires disclosure of privileged or other protected matter,” or (4) “subjects a person to undue burden.” The court may quash or modify the subpoena on a timely motion if the subpoena requires “disclosing a trade secret or other confidential research, development, or commercial information.” Fed. R. Civ. P. 45(d)(3)(B).
Look Familiar? WTF!!!???
19 A. I have not because I don’t think they’re the property of the estate. They’re — there are client names, there are client transactions in there, and I — I think I have an ethical obligation to object to turning them over.
23 Q. Okay, do you have those bank statements with you today? Yes, I do.
24 A. I have not because I don’t think they’re the property of the estate. They’re — there are clients’ names, there are client transactions in there, and I — I think I have an ethical obligation to object to turning them over.
10 Okay, do you have those bank statements with you today?
11 A. Yes I do
12 Q. Can I see them, please?
- 22 Q. And there’s no client information on any of those three sheets —
To begin, Mr. Barger notes that “I did not have an opportunity to object to the subpoenas because they were determined to be moot. If I had the opportunity to do so, I would say the following. . . .” (Doc. 5 at 15). As the court will later explain, the court never found the subpoenas to be moot. The court only found that the motion to quash the subpoena was moot. The subpoenas are not moot.
So, Mr. Barger’s objections would have been untimely under Rule 45. Under Rule 45, an objection must be served “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed. R. Civ. P. 45(d)(2)(B). Because he filed his objections on October 5, 2018, twenty-seven days after the subpoena was served, Mr. Barger’s objections were untimely. Because Mr. Barger is pro se and clearly was confused regarding the status of the subpoenas after the court found as moot his initial motion to quash, the court will assume arguendo that he timely raised his objections.
- Lies to the court
Mr. Barger argues that Defendants lied to Judge Bloom of the Eastern District of New York by suggesting that Plaintiff Steven Barger’s representations to Joe Plumeri about his monthly income are the only reason why Defendants seek Mr. Barger’s deposition. Mr. Barger alleges that the lies continued in the motion to compel in which Defendants misstated the length of time Plaintiff Steven Barger consulted with First Data and omitted any mention of Mr. Barger’s attempts to speak with defense counsel prior to the deposition.
Lying to the court is not a ground upon which the court may or must quash a subpoena. See Fed. R. Civ. P. 45(d)(3). In addition, the court is unconvinced that the Defendants lied to the court. Mr. Barger contends that he knows nothing about Plaintiff Steven Barger’s relationship with Joe Plumeri, and so the Defendants’ reason for seeking Mr. Barger’s deposition must be pretextual. But after denying that he has knowledge of Plaintiff Steven Barger and Mr. Plumeri’s relationship, Mr. Barger provides the court with several details about the relationship, like that their friendship goes back three decades. Even if Mr. Barger were to lack any knowledge of the relationship, he may simply state such in his deposition.
Mr. Barger complains that Defendants request 16 categories of information regarding this relationship and Plaintiff Steven Barger’s activities as a consultant. But Mr. Barger fails to address—and this court cannot see—how Defendants lied and how any such lying would affect the validity of this facially fair and relevant subpoena.
Mr. Barger alleges that Defendants omitted mentioning Mr. Barger’s attempts to speak with defense counsel. This court recognizes that Mr. Barger has repeatedly reached out to defense counsel about the information they sought from him. The court fails to see why Mr. Barger is so resistant to this subpoena when he was so eager to respond to defense counsel in August 2018 when he emailed defense counsel offering to speak with them prior to even being served a subpoena.
Mr. Barger has not provided evidence that Defendants lied to the court; regardless, lying to the court is not a reason to quash a subpoena under Rule 45(d). So this argument fails.
- No subpoena exists
Mr. Barger next argues that no outstanding subpoena exists for his deposition or production of documents. He bases this assertion on this court’s September 19, 2018 Order in a related matter, Case No. 2:18-mc-01491-KOB, that mooted his prior motion to quash. In that related matter, Mr. Barger had filed a “Motion to Quash and Motion for Protective Order” regarding the same subpoena at issue in this matter. See (Doc. 1 in 2:19-mc-01491-KOB). His argument rested primarily on being unavailable on September 17, 2018, the date defense counsel scheduled his deposition. Mr. Barger later represented to the court that defense counsel had canceled the scheduled deposition at issue. Because Mr. Barger’s argument had been resolved— he was no longer required to sit for a deposition on September 17—the court found Mr. Barger’s motion to quash as moot. See (Doc. 7 in 2:18-mc-01491-KOB).
The court never found the subpoena moot. The subpoenas in this case remain ripe, and so this argument fails.
iii. Failure to meet and confer
Mr. Barger also contends that defense counsel never met and conferred with him prior to filing their motion to compel. Defendants submitted their “Supplement to Movants’ Reply to Opposition to Motion to Compel and Opposition to Motion to Quash and for Protective Order” to address this argument. (Doc. 10). But the court need not reach Defendants’ supplement to find proof that Defendants did indeed attempt to meet and confer.
Under Rule 37, a motion for an order compelling disclosure or discovery “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Mr. Barger misunderstands the meaning of Rule 37. The rule requires the parties to “confer or attempt to confer,” not necessarily a successful remediation of the dispute before turning to the court. Id. (emphasis added).
Defendants’ original motion, the motion to compel, does include exhibits demonstrating Defendants’ attempts to meet and confer with Mr. Barger. Mr. Barger emailed defense counsel on August 14 to discuss scheduling a time to speak. (Doc. 1-2 at 40-49). After Defendants served the subpoena on Mr. Barger on September 8, (doc. 1-1 at 78), defense counsel emailed Mr. Barger on September 11 to set up a date for his deposition, (doc. 1-2 at 10). Mr. Barger responded that defense counsel should have followed up sooner, as he had emailed defense counsel on August 14 to discuss the deposition. Mr. Barger did not respond to defense counsel’s inquiry about scheduling, but berated defense counsel for “the cloak and dagger drama of demanding a bunch of papers that I never agreed to give.”
And I quote from the southern district of Texas:
“The cloak and dagger cabal game seeking administrative fees is old. It does not take an “experienced” bankruptcy attorney in Houston to see it.” Source: (Pacer.com)
(Id.). Defense counsel followed up with another letter asking Mr. Barger if he was available for a deposition on September 17. (Id. at 13). Rather than respond to the letter, Mr. Barger filed a motion to quash in this court. See (Doc. 1 in 2:19-mc-01491-KOB).
The record shows plenty of attempts to meet and confer between Defendants and Mr. Barger. Rule 37 does not require the parties to successfully meet and confer, nor does it require such a conference to be in person. The email and letter chains back and forth represent attempts between defense counsel to schedule Mr. Barger’s deposition and Mr. Barger’s concerns regarding the deposition. For example, when Mr. Barger emailed defense counsel that he did not know why he was being subpoenaed, defense counsel explained why his testimony was relevant to the case and why the deposition must be scheduled quickly. (Doc. 1-2 at 10).
While defense counsel and Mr. Barger were woefully unsuccessful at mediating their own disputes, the court recognizes that Defendants did attempt to confer with Mr. Barger prior to reaching out to the court. Therefore, because Defendants did attempt to meet and confer before filing the motion to compel, this argument fails.
- Privileged information
Mr. Barger argues that the subpoena requests information about his confidential communications with employees of the Law Office of Shawn Shearer. Item 18 of Mr. Barger’s subpoena requests “[a]ll communications and ESI that you have had with Shawn Shearer, Brenda Barger, or the Law Offices of Shawn Shearer since August 10, 2018, concerning Barger v. First Data Corporation et al.” (Doc. 1-1 at 67). According to Mr. Barger, the law firm “has provided [him] corporate and legal advice about [his] business.” (Doc. 5 at 12). Defendants also note that Shawn Shearer is Mr. Barger’s brother-in-law. (Doc. 1 at 2).
The attorney-client privilege protects confidential communications made between the lawyer, in his professional capacity, and the client for the purpose of securing legal advice. See United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (citing United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973)) (finding that communications with a lawyer in his capacity as a Deputy Counselor were subject to attorney-client privilege when the defendant approached him for legal advice). The burden of proving that the attorney-client privilege existed rests on the individual invoking that privilege. See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013) (holding that defendant failed to adequately assert attorney-client privilege).
Under Rule 37, the court must quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver apples.” Fed. R. Civ. P. 37(d)(3)(a)(iii). To withhold information because of privilege, a party must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed.” Fed. R. Civ. P. 26(b)(5)(A). “Filing a privilege log has become the `universally accepted mean[s] of asserting privileges in discovery in the federal courts.'” Smith v. Café Asia, 256 F.R.D. 247, 250 (D.D.C. 2009) (quoting Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C. 1999)). Once Mr. Barger produces a privilege log, the court can then determine whether the communications at issue are privileged.
While a court may waive privilege when a party fails to produce a privilege log, waiver is a harsh sanction typically reserved for situations absent excessive delay or bad faith by the proponent. See Pub. Serv. Co. of NH v. Portland Nat. Gas, 218 F.R.D. 361, 363 (D.N.H. 2003) (“[U]sing Rule 33(b)(4) to justify a waiver finding when the responding party invokes a privilege but initially fails to produce a privilege log with its discovery responses is unnecessarily harsh.”); see also Smith v. James C. Hormel Sch. of Va. Inst. of Autism, No. 3:08cv00030, 2010 WL 3702528, at *4-5 (W.D. Va. Sept. 14, 2010) (“Given the sanctity of the attorney-client privilege and the seriousness of privilege waiver, courts generally find waiver only in cases involving unjustified delay, inexcusable conduct and bad faith.”).
Because Mr. Barger is pro se, the court recognizes that he is unfamiliar with the Federal Rules of Civil Procedure. Therefore, the court will defer ruling on the motion to compel as to item 18 in the subpoena until Mr. Barger files a privilege log. Mr. Barger shall file a privilege log that describes the documents protected by attorney-client privilege in accordance with Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure on or before January 7, 2019. Failure to file a privilege log by the deadline will result in Mr. Barger’s waiver of the attorney-client privilege as to the documents requested in item 18, and the court will grant the motion to compel as to item 18.
- Duplicative information
Mr. Barger contends that because Defendants obtained the invoices from Mr. Barger’s business through other discovery in this case, Mr. Barger does not have to produce the invoices in his possession. He also claims Defendants lack a reason to look at business records of billings to other clients from 2010 through 2017. The latter argument will be discussed later with Mr. Barger’s relevance challenge.
Under Rule 45, the court must quash or modify a subpoena that “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). The court also has a duty to minimize imposing an undue burden on a third party. Id. 45(d)(1). But Mr. Barger never alleges that the information requested would be a burden to produce, merely that the information sought has been produced by another party.
Another district court has found an undue burden present when a non-party demonstrated that the information sought was readily accessible elsewhere. See Breland v. Levada EF Five, LLC, CA 14-0158-CG-C, 2015 WL 12995098, at *6 (S.D. Ala. Apr. 30, 2015) (finding that documents were readily accessible via another source when the non-party attached the documents from that source to his motion). But a different district court has also found no undue burden when a probability exists that a potentially duplicative search may unearth additional materials relevant to the main issues of the case. See Williams v. Sunbelt Rentals, Inc., No. 8:04-cv-1395-T27MSS, 2005 WL 8160097, at *3 (M.D. Fla. Oct. 12, 2005) (holding that the search was not a burden when it would only take a few hours and the previous search from another source turned up numerous missing pages).
Here, Defendants note that Plaintiff Steven Barger was unable to explain discrepancies in his tax returns and told Defendants that his accountant and son could answer these questions. Plaintiff Steven Barger also could not explain questions regarding “suspect invoices that he and G. Barger’s company submitted to First Data.” (Doc. 9 at 6). In light of the probability of unearthing new, relevant material and Mr. Barger’s failure to allege any time or monetary burden in producing this discovery, this argument also fails.
- Improper purpose
Mr. Barger argues that Defendants seek his deposition for an improper purpose. He fears that “First Data is trying to use the subpoenas to develop a case against me.” (Doc. 5 at 14). Whether the deposition of Mr. Barger and production of the requested documents results in a case against Mr. Barger is not a question for this court. Defendants subpoenaed Mr. Barger for his close relationship with his father, Plaintiff Steven Barger, and Plaintiff Steven Barger’s work for Mr. Barger’s consulting business, which has resulted in allegedly suspect invoices submitted to First Data. The court finds that the financial information and communications with Plaintiff Steven Barger requested is highly relevant to the Defendants’ case. Therefore, this argument fails.
vii. Trade secrets
Mr. Barger alleges that the information sought regarding his clients and billing rate from 2010 to 2017 is a trade secret. He notes that “[t]here could be significant damages to my business if clients know I am revealing their information.” (Doc. 5 at 14).
Wait wait… Does this remind you of his own bankruptcy case?
Wait wait… Doesn’t this look familiar with what Shawn Shearer claims in his own pathetic bankruptcy case in the northern district of Texas and I quote “I have not because I don’t think they’re the property of the estate? They’re — there are client names, there are client transactions in there, and I — I think I have an ethical obligation to object to turning them over.”
Response from Council and Mr.Shawn Shearer:
Q.Okay, so there is —
A. 35,000, 25,000, 4,948.66
Q. And there’s no client information on any of those three sheets —
23 sheets —
24 A. Oh, no —
25 Q. — of papers?
LIES LIES LIES AND MORE LIES… T T T T TODAY JR!
vii. Trade secrets
Mr. Barger alleges that the information sought regarding his clients and billing rate from 2010 to 2017 is a trade secret. He notes that “[t]here could be significant damages to my business if clients know I am revealing their information.” (Doc. 5 at 14).
Under Rule 45, the court may quash or modify a subpoena if it requires “disclosing a trade secret or other confidential research, development, or commercial information.” Fed. R. Civ. P. 45(d)(3)(B)(i). The burden to establish that the information sought is a trade secret and the harm of its disclosure rests on the party seeking to avoid discovery. See Sams v. GA West Gate, LLC, 316 F.R.D. 693, 698 (N.D. Ga. 2016) (“The party resisting discovery must first establish that the information sought is a trade secret [or otherwise confidential] and then demonstrate its disclosure might be harmful.”). Once the movant meets this burden, “the burden shifts to the requesting party to show a `substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.'” Id. (quoting Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006)). The court then applies a balancing test:
[T]his Court must balance [Defendants’] need for discovery against the burden imposed upon [Mr. Barger], along with [his] interest in keeping the requested information confidential. Other factors this Court should consider are the relevance of the requests, the breadth of the request, the time period covered by the requests, and the particularity with which the documents are described. The status of a person as a non-party is a factor that weighs against disclosure.
Matter of Subpoena Issued to Interconn Res., Inc., CV 3:06CV714, 2008 WL 11375414, at *2 (N.D. Ala. Sept. 30, 2008) (quoting Fadalla v. Life Auto. Products, Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007) (internal citations omitted)).
A mere conclusory statement that information sought may contain a trade secret or could be harmful is insufficient. See Sams, 316 F.R.D. at 698 (“Movant’s conclusory statement that the subpoena is too broad and that `some‘ of the responsive documents [may be confidential] does not come close to carrying its burden.”); AAL USA, Inc. v. Black Hall Aerospace, Inc., No. 2:16-cv-02090-KOB, 2018 WL 2463710, at *2 (N.D. Ala. Feb. 22, 2018) (finding that movant failed to establish information was confidential when it merely recited the subpoena requests). Here, Mr. Barger contends that turning over the identities of his clients and billing rates would harm his business, but provides no further details.
Federal courts have held that customer lists and billing rates may be trade secrets, particularly when the holder of such information takes steps to maintain the confidentiality of that information. See Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 668 (S.D. Tex. 2010) (finding that billing rates and client lists are confidential when the owner took steps to keep that information secret, even though the information previously was publicly available); Feldman v. Cmty. Coll. of Allegheny, 85 F. App’x 821, 827-28 (3d Cir. 2004). But see Peter Kiewet Sons’, Inc. v. Wall St. Equity Grp., Inc., No. 8:10CV365, 2011 WL 5075720, at *7 (D. Neb. Oct. 25, 2011) (holding that business documents exchanged with clients cannot be trade secrets when the party seeking to avoid discovery simply claims the information is confidential “without further substantiation,” and noting that “even if any of the information or documents sought are indeed confidential, the proper course of action is to enter into a protective agreement . . . not deny the requests altogether”). Mr. Barger has offered no evidence that his client lists are confidentially maintained and not publicly known.
But even assuming that Mr. Barger’s customer lists and billing rates are trade secrets, Mr. Barger has failed to establish that disclosure would be harmful. In Fadalla v. Life Automotive Products, Inc., the court found that the party demonstrated disclosure of a client list was harmful when it required the party to breach its non-disclosure and secrecy agreements with its clients. See 258 F.R.D. at 506. While the court surmises that situations exist in which client identities and billing rates can be harmful if released, Mr. Barger has offered no evidence or argument that disclosing his business consulting clients or billing rate presents such a risk.
Further, the court finds the “Stipulated Order Regarding Confidentiality of Discovery Material” jointly filed and ordered by Magistrate Judge Bloom in the underlying case is sufficient to protect against the leakage of any potentially confidential information. See (Doc. 23 in 1:17-cv-04869-FB-LB). Therefore, because Mr. Barger has failed to establish that the information sought is a trade secret that if disclosed would result in harm, this argument fails.
viii. Wrong third party
Mr. Barger contends that because the subpoenas seek information belonging to entities, namely Mr. Barger’s consulting limited liability company, he lacks the authority to turn over the documents. Subpoenas duces tecum command a person to “produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). A subpoena cannot require an individual to produce documents over which he lacks possession. See Learning Connections, Inc. v. Kaufman, Englett & Lynd, PLLC, 280 F.R.D. 639, 640 (M.D. Fla. 2012) (holding that a protective order was appropriate when the movant submitted an affidavit that she did not have possession of the documents, which the opposing side did not refute).
Mr. Barger states that, because some of the documents requested are not in his possession but in that of his consulting business, he cannot produce those documents. Specifically, the documents requested under items 1 through 16 of the subpoena to Mr. Barger appear to be business records that likely are not in his individual possession. (Doc. 1-1 at 66-67). Defendants have offered no evidence or argument that these documents actually are within Mr. Barger’s possession or control. To the extent the documents requested in items 1 through 16 are in possession of the limited liability company, to which Defendants have also issued a subpoena seeking the same records, the court will DENY Defendants’ motion to compel the subpoena as to documents over which Mr. Barger does not have possession.
- Overbreadth and irrelevance
Mr. Barger challenges the subpoena as being overbroad and irrelevant. Mr. Barger brings three specific challenges to relevancy and breadth of the requests. First, he argues that the documents requested involve an eight-year period and are disproportionate to the needs of the case and broader than necessary to determine Plaintiff Steven Barger’s monthly income prior to being hired by First Data. Second, he asserts that his contracts, agreements, and billing practices are irrelevant to the case, particularly those contracts before First Data hired Plaintiff Steven Barger and after First Data terminated Plaintiff Steven Barger. Third, Mr. Barger claims that the documentation of Plaintiff Steven Barger’s consulting expenses in connection with Mr. Barger’s consulting firm between 2010 and 2017 has “nothing to do with Plaintiff Barger’s income.”
Rule 26 limits discovery to:
the nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Generally speaking, `relevance’ for discovery purposes is broadly construed.” Food Lion, Inc. v. United Food & Commercial Workers Intern. Union, AFL-CIO-CLC, 103 F.3d 1007, 1012 (D.C. Cir. 1997).
In the underlying district court case in New York, Plaintiff Steven Barger alleges that Defendants wrongfully terminated him in violation of the Family Medical Leave Act and Americans with Disabilities Act, and he seeks millions of dollars in damages. See (Doc. 34 in 1:17-cv-04869-FB-LB; Doc. 9 at 9 in 2:18-mc-01569-KOB). Defendants argue that the information sought “goes directly to Defendants’ defenses to [Plaintiff Steven Barger’s] claims for damages under an after-acquired evidence defense.” (Doc. 9 at 9).
After-acquired evidence of an employee’s wrongdoing may mitigate damages owed for wrongful termination by the defendant. See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360 (1995) (“[W]e must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered.”).
So, Defendants here seek to obtain information regarding Plaintiff Steven Barger’s activities when he worked as a consultant for Mr. Barger’s consulting firm. The information sought—including Barger Consulting Group’s tax returns, contracts with clients, invoices sent to clients, and process of determining consulting fees, in addition to Plaintiff Steven Barger’s expenses while he was consulting between 2010 and 2017—are highly relevant to Defendants’ defense. Information regarding an employee’s wrongdoing is relevant “not to punish the employee, or out of concern `for the relative moral worth of the parties,’ but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.” McKennon, 513 U.S. at 361 (quoting Perma Life Mufflers, Inc. v. Int’l Parts Corp., 392 U.S. 134, 139 (1968)).
Federal courts are wary of allowing “fishing-expedition discovery” by employers to find evidence of wrongdoing. Premer v. Corestaff Servs, L.P., 232 F.R.D. 692, 693 (M.D. Fla. 2005). Instead, they “must have some preexisting basis to believe that after-acquired evidence exists before it can take on additional discovery.” Maxwell v. Health Ctr. of Lake City, Inc., No. 3:05-CV-1056-J-32MCR, 2006 WL 1627020, at *5 (M.D. Fla. June 6, 2006). But Defendants here are not on a fishing expedition. Plaintiff Steven Barger in his deposition gave rise to inferences of misconduct and directed Defendants where to uncover more information.
The court disagrees with Mr. Barger’s insistence that this information “has absolutely nothing to do with Plaintiff Barger’s employment by First Data . . . and his claim that First Data violated the FMLA and ADA when they terminated him.” (Doc. 5 at 16). Plaintiff Steven Barger represented that he left a “lucrative consulting” business to work for First Data, but he only received $16,210 in 2013 from that business. (Doc. 1-1 at 22). If Plaintiff Steven Barger misrepresented his success, and therefore his experience and qualifications, to First Data and First Data relied upon those misrepresentations, Plaintiff Steven Barger may have committed wrongdoing that would mitigate First Data’s damages.
In his deposition, Plaintiff Steven Barger indicated that he earned more than the income reported on his tax returns, but that the money “all went to the Barger Group, everything got paid to the Barger Group.” (Doc. 1-1 at 23). So, if Plaintiff Steven Barger in fact had a lucrative consulting practice, the business’s financial records—including its tax returns, financial statements, and invoices sent to clients—should reflect that success, and would explain away the discrepancy between Plaintiff Steven Barger’s comments about his income.
But Plaintiff Steven Barger also failed to answer several important questions regarding his tax reports. For example, he was unable to explain why he included business expenses on his personal tax return to offset his income from the consulting practice. (Doc. 1-1 at 24-25). Specifically, he could not explain why the rent for his home office jumped from $1,500 to $22,900 for six months or why his income decreased from $77,000 in 2011 to under $20,000 in 2012 and 2013, “other than the fact that [Plaintiff Steven Barger] started working . . . at the Barger Group.” (Id. at 27). Because of the discrepancies in the tax reporting relating Plaintiff Steven Barger to the Barger Consulting Group, analyzing the Barger Consulting Group’s broader financial records—including billing rates and contracts with clients to determine the actual income generated—may give a more accurate picture of the financial status of the company, and thus whether Plaintiff Steven Barger actually had a lucrative consulting business.
Therefore, because the information sought seems highly relevant to Defendants’ after-acquired evidence defense, this argument, too, fails.
Accordingly, the court will GRANT IN PART and DENY IN PART Defendants’ motion to compel. (Doc. 1). The court will GRANT the motion as to the information requested in items 1 through 16 to the extent Mr. Barger possesses that information and will GRANT the motion as to the information in items 17 and 19. The court will DENY the motion as to the information requested in items 1 through 16 to the extent Mr. Barger lacks possession over that information. The court will DEFER ruling on the motion to compel as to item 18 until it can determine whether the information sought is privileged.
- Barger Consulting Group
In his “Reply to Opposition to Motions to Quash & for Protective Order,” Mr. Barger points out that Barger Consulting Group is not a real Alabama company. (Doc. 11). Mr. Barger owns The Barger Group LLC. (Doc. 14 at 4). After Mr. Barger notified Defendants of their naming mistake in his motion, Defendants promptly filed a Notice of Correction to amend the company name from Barger Consulting Group to The Barger Group LLC in each of its prior filings. (Doc. 12).
Based on the information Defendants have sought since the beginning of this motion to compel, the court is certain that Defendants intended to serve a subpoena on The Barger Group LLC, not the similarly named nonexistent Barger Consulting Group. In their motion to compel, Defendants explained that they sought to depose Grant Barger’s company for which Plaintiff Steven Barger worked. (Doc. 1 at 2).
But, because the Defendants have not served a subpoena on The Barger Group LLC, the court cannot enforce the motion to compel against it. Therefore, the court must DENY the motion to compel as to Barger Consulting Group.
- Motions for Rule 11 Sanctions
Mr. Barger also moved this court for Rule 11 sanctions against Defendants and defense counsel. Rule 11 allows the court to sanction an attorney, law firm, or party that presented to the court (1) information for an improper purpose, such as harassment or delay; (2) a claim, defense, or legal contention not supported by existing law or that was frivolous; (3) a factual contention without evidentiary support; or (4) a denial of factual contention without evidentiary support (or not specifically identified as being based on belief or lack of information). See Fed. R. Civ. P. 13(b)-(c).
“The goal of Rule 11 sanctions is to `reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuvers.'” Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001) (quoting Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir. 1987) (en banc)). The court determines whether Rule 11 sanctions are appropriate by considering “reasonableness under the circumstances.” Donaldson, 819 F.2d at 1556.
While the court is impressed by defense counsel and Mr. Barger’s inability to cooperate on any matter, regardless of how small, the court sees no frivolous, meritless, or bad faith claim, defense, motion, or filing on behalf of Defendants. Therefore, the court will DENY both of Mr. Barger’s motions for Rule 11 sanctions. (Docs. 13 & 14).
For the reasons stated above, the court will GRANT IN PART and DENY IN PART Defendants’ motion to compel. (Doc. 1). The court will GRANT in full the motion against Mr. Morgan and DENY in full the motion against Barger Consulting Group. As to Mr. Barger, the court will GRANT the motion as to the information requested in items 1 through 16 to the extent Mr. Barger possesses that information and will GRANT the motion as to the information in items 17 and 19 and as to the deposition. Mr. Barger shall appear for his deposition to be scheduled by defense counsel while allowing Mr. Barger reasonable time to comply subject to Rule 45(d)(3)(A)(ii). The court will DENY the motion as to the information requested in items 1 through 16 to the extent Mr. Barger lacks possession over that information.
The court will DEFER ruling on the motion to compel regarding Mr. Barger’s claim of privilege as to the documents requested in item 18. Mr. Barger shall file a privilege log detailing which communications requested are protected by the attorney-client privilege on or before January 7, 2019. Failure to do so will result in a waiver of Mr. Barger’s privilege, and the court will grant the motion to compel as to item 18.
The court will DENY Mr. Barger’s motions for Rule 11 sanctions. (Docs. 13 & 14).
The court will enter a separate Order consistent with this Memorandum Opinion.
DONE and ORDERED.
Kelly v. First Data Corp.
This action arises from various disputes between Kelly and her former employer, Defendant First Data Corporation (“First Data”), which is one of the seven defendants against whom Kelly has asserted claims here (collectively “Defendants”). Although Kelly has set out her allegations at length in a 354-paragraph Complaint (Doc. 1), the Court need focus on only a specific portion of those allegations that relate to her retaliation claims, as Kelly limits her Objection to that precise part of her Complaint.
As to the remaining allegations and claims, Magistrate Judge Bowman’s R&R nicely summarizes and resolves the parties’ arguments relating to those disputes. Because the parties did not object to Magistrate Judge Bowman’s findings on these issues, they are irrelevant to the Court’s undertaking here. More specifically, in her R&R, Magistrate Judge Bowman recommended that the Court dismiss seven of Kelly’s eight asserted claims, leaving Kelly to move forward only on her claim that First Data failed to accommodate her disability, thereby violating the ADA (Count II).
And, as for the seven counts that the R&R recommends dismissing, Kelly’s only objection is that the R&R allegedly did not consider certain evidence relating to her retaliation claims (Counts IV and V). While the Court has an obligation to review the R&R de novo, the obligation extends only to the portion of the R&R to which Kelly has properly objected. See Fed. R. Civ. P
Rule 1.7 Conflict of Interest
 Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of “informed consent” and “confirmed in writing,” see Rule 1.0(e) and (b).
 Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).
 A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.
 If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9. See also Comments  and .
 Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
 Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
 Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
 Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
Lawyer’s Responsibilities to Former Clients and Other Third Persons
 In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director.
Personal Interest Conflicts
 The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client, or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).
 When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.
 A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. See Rule 1.8(j).
Interest of Person Paying for a Lawyer’s Service
 A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.
 Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.
 Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).
 Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest.
 Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer’s multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a “tribunal” under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).
 Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments  and  (effect of common representation on confidentiality).
 Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client’s interests.
Consent Confirmed in Writing
 Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.
 A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time. Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.
Consent to Future Conflict
 Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).
Conflicts in Litigation
 Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.
 Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.
 When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.
 Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment . Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. See Comment .
 For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer’s relationship to the parties involved.
 Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.
Special Considerations in Common Representation
 In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients’ interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.
 A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.
 As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client’s trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.
 When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer’s role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c).
 Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.
 A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations to either the organizational client or the new client are likely to limit materially the lawyer’s representation of the other client.
 A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer’s resignation from the board and the possibility of the corporation’s obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation’s lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer’s recusal as a director or might require the lawyer and the lawyer’s firm to decline representation of the corporation in a matter.
Seidel v. The Shearer Law Group, PC et al
The — when the money came in post-petition, the debtor didn’t tell the trustee about it, he had to find out about it. And when he found out about it, there was a — there was a subsequent creditors’ meeting where the trustee had Mr. Shearer agree that that money would stay put and would not be spent until it could be resolved as to who the owner of those funds were. The bankruptcy was filed on February the 1st of this year. The — Mr. Seidel hired us because he could not work out an arrangement with Mr. Shearer to pay the funds over or any kind of a settlement with respect to those funds.
And so one of the first things that happened in this case, and the reason that we’ve got — that we think we have a problem in this case to come to this court with is that I had a phone call with Mr. Shearer about three weeks ago, and during the course of that phone call, we found out that there had been an agreement with Mr. Seidel to hold those funds and not to spend them. There was an email that was — that Mr. Seidel sent that confirmed that agreement.
And during the course of that phone call three weeks ago — it was on a Friday afternoon — Mr. Shearer told me that he did not have the money in the bank — in a bank account and that the money was a combination of checks and cash.
And I was very concerned when I heard that there was cash, for the main reason that the money didn’t come to the estate in cash, and that meant that he had to have, at some point, gone to the bank and cashed checks and —
THE COURT: Well, let’s stop. Because — but it didn’t — it didn’t come to the estate at all.
MR. PRONSKE: That’s —
THE COURT: The — 11
MR. PRONSKE: — correct.
THE COURT: The monies are payable to Mr. Shearer’s law firm.
MR. PRONSKE: That’s correct.
And I asked him to — I told him we needed an accounting of that quickly, and he assured me during that phone call that all of the money would be deposited in the bank within twenty-four hours and that we would get a statement to that effect. We still don’t — to this day don’t know if that was done, because we’ve asked him probably fifteen times in emails, a couple of phone conversations, mostly in emails to provide us with the simple bank records just to show that that money is where it — he says it is, and we can’t get that information from him. We were told by him, even before this hearing started today — and I started sending him emails Thursday, but we’ve been trying to meet with him for three weeks.
And there were only two days that Ms. Goolsby and I couldn’t meet. We had a 13 Fifth Circuit argument in Mississippi and we were gone for a 14 couple of days. Other than that, we’ve been trying to meet with him for three weeks. And we — and we even had a meeting set up and he canceled the meeting thirty minutes before the meeting.
We can’t get him to meet with us, we can’t get him to show us the bank document. And so, understandably, Your Honor, we’re concerned when we’re told that the money’s in cash and we can’t get anything from him that shows the existence of those funds. We’re concerned about —
Possible Sactionable Offenses Found On Shawn Shearer …
Regrettably, an increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth-doing anything to win, regardless of the consequences…
Our adversarial system of civil justice is premised on the search for the truth. Lawyers are expected to act in good faith in the course of litigation and discovery is expected to be accomplished voluntarily. In order to encourage litigants to act in good faith, the Federal Rules of Civil Procedure specifically require parties to affirmatively disclose all relevant information without the necessity of court orders compelling disclosure. Malautea v. Suzuki Motor Company, Ltd. 987 F.2d 1536 (11th Cir. 1993); Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (11th Cir.1986). These rules are designed to ensure that the ultimate resolution of disputed issues is based on a full and accurate understanding of the facts. United States v. The Procter & Gamble Company, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077; Hickman v. Taylor, 329 U.S. 495, 500-01, 67 S.Ct. 385, 388-89, 91 L. Ed. 451 (1947).
Unfortunately, procedural manipulation designed to frustrate the resolution of disputes has become a common strategy. An “increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth-doing anything to win, regardless of the consequences…”. For instance, large corporations frequently stonewall, withhold documents, and generally obfuscate and delay discovery because it is more beneficial for them not to comply with discovery than to produce documents that would reveal potentially damaging evidence; evidence that would become available to other claimants and plaintiffs throughout the country and the world. In order to combat these abuses, the Federal Rules of Civil Procedure have vested courts with the power to impose sanctions for misconduct. In addition to the Federal Rules of Civil Procedure, various statutes, as well as the court’s inherent power to impose sanction for bad faith conduct, provide a wealth of authority for the imposition of sanctions. Litigants, however, often fail to utilize sanctions to properly combat discovery abuses. The goal of this presentation is to provide the reader with a general understanding of the law governing sanctions. The materials will focus on strategies for obtaining and avoiding sanctions as well as the laws, statutes, and powers through which sanctions may be imposed on attorneys and parties.
II. Case Law
Frequently, the motivation to resist discovery is so great that offenders will not comply with discovery. Only by imposing harsh sanctions against a willfully deceitful and evasive litigant do the courts take the advantage out of such misbehavior and turn it into a decided disadvantage. While courts are often reluctant to impose the harshest of penalties, the following are a few examples of cases in which the misconduct was so egregious as to bring about severe penalties on the parties and in some cases the attorneys as well.
A. In re Tuto Wells Contamination Litigation, 120 F. 3d 368 (3d Cir. 1997).
The Court of Appeals affirmed a $120,000 sanction against a law firm for their part in suppressing a report by a professional engineer summarizing the results of soil and liquid tests in connection with a large environmental lawsuit. The sanctions represented the attorney fees and costs incurred by counsel in brining the suit and in connection with the sanction proceedings. Sanctions in the amount of $750,000 against the defendant party and the suspension of the defendant’s attorneys from the practice of law were reversed on procedural grounds.
B. Chambers v. NASCO, 501 U.S. 32 (1991)
Sanctions in the form of attorney’s fees and expenses totaling almost $1 million were upheld by the Supreme Court for the petitioner’s (1) attempt to deprive the court of jurisdiction by acts of fraud, (2) filing false and frivolous pleadings, and (3) attempting, by other tactics of delay, oppression, harassment, and massive expense to reduce the respondent to exhausted compliance.
C. In re E.I. Dupont De Nemours & Comp., 918 F. Supp. 1524, reversed 99 F. 3d 363 (11th Cir. 1996)
In re E.I. Dupont was a products liability action involving claims that fungicide was contaminated with herbicides which damages the plants and the plaintiff’s nursery. Plaintiffs sought sanctions based on the defendant’s failure to disclose test data that was central to plaintiffs’ claims and that defendant had agreed to turn over to plaintiffs in return for access to plaintiffs’ property to conduct tests. The District Court, Elliott, J., held that the evidence established that the defendant was using its “in-house legal staff, …and others to carry out a deliberate effort to restrict legitimate discovery in this and similar cases.” The court sanctioned the defendant $6.8 million for discovery abuses and $100 million for civil contempt, which contempt could be purged by compliance with court orders and publication of advertisements acknowledging wrongdoing.
On appeal, the imposition of sanctions was reversed as the Court of Appeals held that the sanctions imposed were criminal in nature, in that they were neither compensatory nor coercive, and thus the district court failed to afford Dupont the procedural protection the Constitution requires for the imposition of criminal sanctions.
D. Poole v. Textron, 192 F.R.D. 494 (D. Md 2000)
Pursuant to Rules 26(g) and 37 of the Federal Rules of Civil Procedure as well as the court’s inherent power to impose sanctions, the court in Poole sanctioned the defendant $37,000.00 in expenses and attorney fees for engaging in “improper discovery tactics [which] were willful inexcusable and not in good faith.”
E. Carlucci v. Piper Aircraft Corp., 775 F. 2d 1440 (11th Cir. 1985).
Attorney found to have acted in bad faith during discovery in a wrongful death action was fined $10,000 pursuant to Federal Rule of Civil Procedure Rule 37. The decision was affirmed in part and reversed and remanded in part. The Court of Appeals held that the trial court failed to set forth an accounting adequate to justify the figure it adopted, but noted that it appears that defense counsel’s misconduct may well have amounted to $10,000. The Court of Appeals even went so far as to state that on remand, upon a full accounting, the trial court may in its discretion, determine that a sanction greater than $10,000 is warranted.
F. Malautea v. Suzuki Motor Company, 987 F. 2d 1536 (11th Cir. 1993)
In Malautea v. Suzuki Motor Company the court pursuant to its inherent powers fined each defendant $5000.00 and each defense attorney $500.00 for continually and willfully resisting discovery and deliberately withholding discoverable information.
II. Seeking Sanctions
If you run up against a corporate giant or any other party who willfully engages in discovery misconduct, the following pointers will assist you in obtaining sanctions.
A. Set the Tone Early
Let your opposition know right from the inception of the lawsuit that every delay or discovery violation will be met with a prompt motion to compel and/or for sanctions. If you anticipate having problems with obtaining discovery consider filing a notice of hearing with your initial discovery request. The hearing can be set for 50 days after service of the complaint and initial discovery requests, or shortly after the discovery is due depending on your jurisdiction. This accomplishes two things. First, it puts opposing counsel on notice that you don’t intend to let them get away with any dilatory tactics. Second, if, and when, you receive inadequate responses, you will have a quick hearing date and negate the opposing party’s attempts at delay.
B. Litigate in Good Faith.
When your opposition engages in misconduct you must resist the temptation to respond in kind. Continue to meet your discovery obligations in a timely and proper manner. The court is much more likely to impose sanctions if your hands are clean.
C. Maintain a Paper Trail
At every step document your good faith attempts to comply with discovery and to resolve discovery disputes. Each dispute should be followed by correspondence. Your correspondence should respectfully remind the opposing party that they are in violation of discovery rules and offer them the opportunity to resolve the dispute amicably and timely.
D. Pick and Choose Your Battles
Don’t overuse sanction requests. Repeatedly requesting sanctions for trivial disputes will numb the court to the egregious conduct of opposing counsel. Save your motions for more serious violations or wait until you can present the court with a series of violations.
E. Know your Judge
Some judges are more likely than others to impose sanctions. It won’t do you any good to ask for sanctions from a judge who is only inclined to admonish the opposing party. In these situations request a special master to govern over disputes in the case. The special master will be far more inclined to impose sanctions for misconduct.
Defamation Libel Slander – Defamation Per Se
Made a false statement of fact about the plaintiff to a third party; Made a statement that caused the defendant reputational or material harm; Acted either negligently or purposefully. Texas also has a defamation charge known as “defamation per se.” It refers to some statements that anyone would, or should, know are likely to injure a person’s reputation.
Disclosing a Minor’s Name Into Evidence
RULE 21c. PRIVACY PROTECTION FOR FILED DOCUMENTS.
(a) Sensitive Data Defined. Sensitive data consists of: (1) a driver’s license number, passport number, social security number, tax identification number, or similar government-issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, a home address, and the name of any person who was a minor when the underlying suit was filed.
Family Lawyer – Not Statutory but common law. The Court can order the redaction and sanction the party that made the error, awarding costs and fees.
If an Attorney has defamed you, even if it’s not your attorney, you can file a bar grievance against them. However, so long as they did not profit off your trademark, that would not be an infringement as trademarks are often used into the public records of court cases. However, if you were not relevant to your father’s case, you could claim for invasion of privacy against the attorney.
See below where Mr.Shawn Shearer admits I have little to no relevancy to the case whatsoever:
The Lead Case as it appears on Pacer is improperly designated In re George Moncada and Terry Moncada. Terry Moncada is debtor’s son and is not a party to these proceedings. [See Exhibit 43]
I raised this issue during the first quarter of 2020, and nothing has been done. The title to the lead case (1933426) as it appears on the dockets (see attached) remains “George Lionel Monc and Terry Moncada.” Terry Moncada name must be removed. Terry is Jorge (aka George) Moncada’s son. The title makes it appear as if Terry is Jorge’s spouse, and that needs to change. Jorge’s spouse is not a debtor in the case. Jorge’s son, Terry, is not a debtor in the case. The stay in the case does not apply to Terry or his assets. Terry is not entitled to a discharge.
So as to avoid any confusion, action must be taken to remove Terry Monc from appearing as a named party to these Chapter 7 proceedings.
Objectively speaking he is correct, and attempts to remedy the situation; however, this does not excuse his behavior towards me specifically, my family, or other neutral third parties.
Possible Personal Injury
Following a traumatic event, filing a personal injury lawsuit may be the last thing on your mind. Unfortunately, as your medical bills start to mount, and you find yourself unable to return to work or even perform the same activities of daily life that you could before the accident, you soon realize you need help. If your accident was the result of somebody else’s negligence, you understandably expect that person to compensate you for your losses.
All too often, that is easier said than done. While insurance adjusters may seem like they want to help, their initial offers typically will not cover the full cost of your injuries. More often than not, the insurance carrier will fight to minimize, deny, or delay your claim. Most accident victims quickly realize it is in their best interests to hire an experienced Dallas personal injury lawyer.
Intentional Infliction Of Emotional Distress
You can sue for intentional infliction of emotional distress if you can prove that there was intentional conduct involved.
Like any part of the treatment and recovery process involved in personal injury claims, you should always document all of the symptoms and challenges you suffer as they relate to your injuries. The list of ways that individuals can be impacted by emotional distress and can vary from person to person and situation to situation.
Some common emotional stress symptoms include:
- Loss of sleep
- Loss of appetite
- Recurring fear
- … and more
Many more symptoms of emotional stress exist that should be noted and documented whenever possible.
Disclosure of Email & Password
Yes, if this was done wrongfully, the attorney can be sanctioned by the ethics board or the courts.
You should also file a motion to seal ASAP so the information is not public.
Multiple Attempts Of Entrapment – Defined in Texas Penal Code Section 8.06
I wish to not disclose this as this is an “ongoing investigation”
Cyber Stalking, Facebook & Instagram(Yes I caught you AND your client)
Thank you https://www.stationx.net/
Currently Under Investigation – Conspiracy, Harassment, & Possible Stalking
18 U.S. Code § 241.Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
“The ramifications could be great if you could prove that this plot against you is a real thing happening. Consider harassment laws if you feel that you are being harassed. Stop dealing with those toxic people“
Lonnie, couldn’t agree with you more… when referring to the “ramifications” so it’s Intrusion on seclusion, in addition to possible harassment?
File a Grievance – State Bar Of Texas
“May the good Lord have mercy on your soul.”
To be continued…
The next phase is to release this article to 2.7 million Journalists. Stay tuned!
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