Motion to compel David Gingras declaration

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

SARAH JONES, a/k/a/ JANE DOE, Plaintiff, v. DIRTY WORLD ENTERTAINMENT RECORDINGS LLC dba THEDIRT.COM, HOOMAN KARAMIAN aka NIK RICHIE aka CORBIN GRIMES, DIRTY WORLD, LLC dba THEDIRTY.COM, and DIRTY WORLD ENTERTAINMENT, LLC dba THEDIRTY.COM, Defendants.

Case No. 2:09-cv-00219-WOB Judge William O. Bertelsman AFFIDAVIT OF DAVID S. GINGRAS IN SUPPORT OF DEFENDANTS DIRTY WORLD, LLC AND NIK LAMAS-RICHIE’S MOTION TO COMPEL

I, David S. Gingras declare as follows:

1. My name is David Gingras. I am a United States citizen, a resident of the State of

Arizona, am over the age of 18 years, and if called to testify in court or other proceeding I could and

would give the following testimony which is based upon my own personal knowledge unless

otherwise stated.

2. I am an attorney licensed to practice law in the States of Arizona and California, I am

an active member in good standing with the State Bars of Arizona and California and I am admitted to

practice and in good standing with the United States District Court for the District of Arizona and the

United States District Court for the Northern, Central, and Eastern Districts of California.

3. I am admitted pro hac vice in this matter on behalf of Defendants Dirty World, LLC

d/b/a THEDIRTY.COM and Nik Lamas Richie a/k/a Nik Richie (“Defendants” or “DW”).

4. In early 2011, Defendants served Plaintiff Sarah Jones (“Plaintiff” or “Ms. Jones”) with

a series of written discovery requests including interrogatories and requests for production of

documents. Ms. Jones originally answered these requests in July 2011.

2

5. As this case was pending, on March 29, 2012, Ms. Jones was indicted and charged with

several felonies relating to an unlawful sexual relationship which allegedly occurred between her and

one of her former students in late 2011. Ms. Jones subsequently pleaded guilty to reduced charges in

the case on October 10, 2012. While Ms. Jones’s criminal case was pending, discovery in this matter

was stayed.

6. Following Plaintiff’s criminal convictions and upon reopening of discovery, Defendants

requested that Ms. Jones supplement certain of her responses to the written discovery propounded by

Defendants in 2011.

7. On November 13, 2012, Ms. Jones served Defendants with her supplemental discovery

responses, a copy of which (excluding documents) is attached hereto as Exhibit A.

8. Upon reviewing Ms. Jones’s supplement responses, I determined that many of her

responses were insufficient and/or unacceptable for various reasons. As a result, on November 14,

2012, I sent a lengthy email to Ms. Jones’s counsel explaining my concerns and asking him for his

position as to each point. A copy of my email to counsel is attached hereto as Exhibit B.

9. Five days passed with no response from Ms. Jones’s counsel. As such, on November

19, 2012, I sent a second email requesting a response from counsel. A copy of my email is attached as

Exhibit C.

10. On November 20, 2012, I finally received a response from Ms. Jones’s counsel, a copy

of which is attached hereto as Exhibit D. Although this response addressed some of my concerns with

Ms. Jones’s supplemental discovery responses, it ignored several important issues and took positions

which I believed were erroneous.

11. For example, Ms. Jones’s counsel continued his refusal to answer any discovery which

related to Ms. Jones’s status as a public figure. This position was based on counsel’s assertion that:

“During the timeline of this case, the Court ruled she was not a public figure. There was a Court

Order.”

12. Based on my knowledge of this matter, Plaintiff’s argument is not correct. Although

the district court has expressed a preliminary view suggesting that Plaintiff may not be a public figure,

that comment was made in an order denying Defendants’ Motion for Summary Judgment and Plaintiff

3

did not cross-move the court for a finding regarding Plaintiff’s status as a public or private figure.

Thus, this important question has not been adjudicated and is not the subject of a final ruling or order.

Furthermore, Defendants contend that the disputed discovery (which Plaintiff has refused to answer)

would clearly establish that Plaintiff was and is, in fact, a public figure.

13. In addition, after reviewing Plaintiff’s responses to my concerns, I also noted that

Plaintiff’s counsel had failed to address a specific concern which related to Plaintiff destroying or

failing to preserve important emails about which she had previously testified.

14. To clarify this issue, on November 20, 2012, I sent another follow-up email requesting

that Plaintiff confirm that she had either destroyed the emails at issue or that she would produce them

if they still existed. A copy of my email is attached hereto as Exhibit E.

15. On November 26, 2012, I received a response from Plaintiff’s counsel with a statement

written by Ms. Jones confirming that she had destroyed some of the emails at issue which she

described as “predominately the derogatory ones”. However, Ms. Jones offered no explanation for her

failure to produce other emails about which she had previously testified. Copies of counsel’s email

and Ms. Jones’s statement are attached hereto as Exhibit F.

16. I am aware that pursuant to Local Rule LR 37.1, I am required to meet and confer with

opposing counsel in an effort to resolve any discovery dispute without court intervention. Based on

the facts described above, I certify that I have made a good faith effort to resolve this matter but have

been unable to do so.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

EXECUTED ON: November 30, 2012.

/S/David S. Gingras

David S. Gingras

David S. Gingras, Esquire (admitted pro hac vice)

GINGRAS LAW OFFICE, PLLC

3941 E. Chandler Blvd., #106-243

Phoenix, AZ 85048

480.668.3623

4

and Alexander C. Ward, Esquire

HUDDLESTON BOLEN LLP

855 Central Avenue, Suite 301

P.O. Box 770

Ashland, KY 41105

606.329.8771

and

Alexis B. Mattingly, Esquire

HUDDLESTON BOLEN LLP

611 Third Avenue

P.O. Box 2185

Huntington, WV 25722-2185

304.529.6181

Counsel for Defendant,

Nik Lamas-Richie

5

CERTIFICATE OF SERVICE

I hereby certify that on November 30, 2012, I electronically filed the foregoing with the Clerk of the

Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of

record.

/s/ David S. Gingras

Counsel for Defendants,

Dirty World, LLC and

Nik Lamas-Richie

Exhibit A

7. Plaintiff objects to the Discovery Requests that seek to obtain "all, "each," or"every" document, item, or other such piece of information to the extent that suchdiscovery is overly broad and unduly burdensome.

8. Plaintiff objects to the Discovery Requests to the extent such DiscoveryRequests seek to have Plaintiff create documents not in existence at the time of therequest.

9. Plaintiff objects to the Discovery Requests to the extent that such DiscoveryRequests are not limited to any stated period of time or relate to a stated period of timethat is longer than is relevant for purposes of the issues in this litigation, as suchdiscovery is overly broad and unduly burdensome.

10. Plaintiff objects to the Discovery Requests to the extent they seek informationnot within Plaintiffs possession, control, or custody or to the extent the DiscoveryRequests request that Plaintiff provide information that Plaintiff does not maintain.

11. Plaintiff objects to the Discovery Requests to the extent they are repetitive andoverlapping and will only produce a document once, regardless of how many separateDiscovery Requests to which a document may be responsive.

12. By responding to individual Discovery Requests, Plaintiff makes norepresentation that any documents responsive to such request are in existence.

13. Plaintiff objects to the Discovery Requests to the extent they exceed thenumber permitted by the Civil Rules.

14. The development of Plaintiffs positions and potentially responsiveinformation to the Discovery Requests is necessarily ongoing and continuing. Plaintiffexpressly reserves the right to supplement or modify its discovery responses based on itsongoing inquiry.

/s/ Eric C. Deters

INTERROGATORIES

1e Please state your full name, date of birth, marital status, social security numberand any other names or nicknames that you have ever been known by includingwith your Answers the respective dates that you were known by that name ornickname.

ANSWER: Sarah Elizabeth Jones, 4-8-1985, 407-33-1217, Sarah Jones. Divorced.

2. Please state your current address and all the addresses where you have resided forthe last twenty (20) years, giving the inclusive dates of residency for each

{H0650876.1 }

DG

Highlight

residence. Further, please indicate all individuals by name, and current address,with whom you shared or continue to share such residence(s).

ANSWER: 12981 Wynewood Trail, Independence KY, 41051- Aug 2011- Present1884 Mimosa Trail, Florence KY, 41042 -- July 2010 to Aug 2011104 Winding Way, Covington KY - Aug 2009 to July 201012981 Wynewood Trail, Independence KY, 41051 - 1999 to Aug 20093205 Royal Oak Ct. Edgewood KY, 41017 -1985 to 1999

3. Please describe in detail your educational and vocational training, background,and experience, listing the name and business address of each school, traininginstitution, or course of study or training, the dates of attendance, and any degreeor certification obtained. Please also identify any documents of or reflecting anyof the factual information contained in your response to this Interrogatory.

ANSWER: BA inEducation, major math and English - NKU -- 2008

4. Please state all injuries or conditions that you assert you sustained as a result ofthe allegations that are the subject of this civil action. For each such injury orcondition, please state:

a. The nature of the injury or condition; humiliation, emotional distress,

embarrassment, mental and physical pain and suffering, depression, anxiety, panic

attacks

b. The name and address of each and every physician who has treated orexamined you for such injury or condition; Troy Schumann, SummitMedical Group. Steve Durkee, 519 Licking PikeWilder, KY 41071

c. The dates on which you were treated or examined by each physician; and,See medical bills

d. Whether the injury or condition has resulted in a disability and, if so, theextent of such disability and whether such disability is permanent ortemporary; No.

ANSWER: Answered above.

5. Cheryl Jones- Mother 12981 Wynewood Trail, Independence, KY 41051, 859-957-7549

Charlotte Jacobs- Cincinnati Ben-Gals Head CheerleadingCoach, 513-236-1643

6. If you claim that you have lost any wages, salary, compensation, fringe benefits orthe like as a result of the injuries that are the subject of this civil action, pleasestate:

{H0650876.1 }

DG

Highlight

Exhibit B

David Gingras

From: David S. Gingras [[email protected]]Sent: Thursday, November 15, 2012 12:03 PM

To: 'Eric Deters'Cc: 'ABM'; '[email protected]'; '[email protected]'Subject: RE: Sarah Jones v. Dirty World, LLC

Page1 of 4

11/30/2012

Eric,

Per your request, here are a list of the issues we have with Ms. Jones's Nov. 13, 2012 discovery responses. Forease of reference I'll number each point separately and then offer a few comments about each one.

#1 -- The interrogatory responses I received contained a verification page which was not signed. I'm sure thiswas merely an oversight since the verification page for the document responses was signed. Please provided anexecuted verification page for the interrogatory responses.

#2 -- Interrogatory 10 asked Ms. Jones to explain her damages and subpart (b) asked for a total amount ofdamages sought (the answer was $1,000,000) while subpart (c) asked for "an explanation for the factual basis forthis amount".

The response was "See Deposition".

Even if Ms. Jones had explained the specific factual basis for her damages in her deposition (which she did not),this response is unacceptable. Rule 33(b)(3) requires that "Each interrogatory must, to the extent it is notobjected to, be answered separately and fully in writing under oath." Simply referring to 175 pages of depositiontestimony and expecting us to guess which parts Ms. Jones thinks are supportive of her position is unacceptable.As such, we need a full and complete written response to this interrogatory.

#3 -- Interrogatory 13 asked Ms. Jones to identify any person who she believed may be the original author of anyallegedly defamatory material posted on thedirty.com about her, and to state the reason for her belief.

Ms. Jones responded by stating "Nik Richie, and other unknown persons, are authors of the defamatory material."

Although this was partially responsive to the question asked, Ms. Jones failed to offer any explanation as to thebasis for this belief. Again, we need a full and complete written response to this interrogatory.

#4 -- Interrogatories 22 and 23 asked for information about Ms. Jones's television appearances and videotapedinterviews. The only response given was "See Google".

Pursuant to Rule 37(a)(4), this response is regarded as a complete failure to respond. Again, we require a fulland complete written response to this interrogatory.

#5 -- Interrogatory 27 asked Ms. Jones to identify anyone who has made comments which show that the eventsdescribed in her Complaint has resulted in injury to her reputation and/or career.

The response was: "See the internet, blogs and comments after news reports on the internet. Seeattached."

Again, advising defendants to "see the internet" for the requested information is disrespectful to the court and tothe seriousness of these proceedings and is tantamount to a complete failure to respond to the question asked.Again, we require a full and complete written response to this interrogatory.

#6 -- Request for Production #1 asked for copies of "all photographs, motion pictures, videotapes, charts, maps ordrawings" that pertain to this lawsuit.

The response was: "See thedirty.com postings pertaining to their [sic] lawsuit."

Again, this response is entirely non-responsive and unacceptable. There are more than 112,000 separate posts

on thedirty.com and more than 3 million comments about those posts. Ms. Jones is aware of which pages pertainto this lawsuit; we are not. As such, we are entitled to a full and complete response to this request.

#7 -- Request for Production #5 asked for copies of all documents which Ms. Jones alleges are proof thatdefendants were negligent or otherwise culpable as set forth in her Complaint.

The response was: "See attached".

This response is unacceptable. Rule 34(b)(2)(E)(i) requires that when responding to a request for production, theresponding party "must produce documents as they are kept in the usual course of business or must organize andlabel them to correspond to the categories in the request."

Ms. Jones is obviously not in business and RFP #5 did not request business records. As such, you mustorganize and label the documents which you believe are responsive to RFP #5 so that we can understand whichdocuments relate to that request and which do not.

#8 -- Request for Production #13 asked for copies of all documents concerning any criminal actions in which Ms.Jones was a party.

The response was "none".

Obviously, while this may have been an accurate response when these were originally served, this is no longerthe case. Although we have received some documents from the Edgewood police department, this does notexcuse you from fully responding to the request (the Edgewood police do not have many documents such ascourt pleadings which your office does have).

#9 -- Request for Production #15 and 16 asked for certain documents relating to Ms. Jones's defamation claimand which might show that any of the alleged statements were false. RFP # 18 and 19 asked for other relevantdocuments. The response to each was: "See attached".

As noted above, the form of this response does not comply with Rule 34. You must organize and label yourresponses so that we can understand which documents are related to which request.

#10 -- Request for production 22 asked for a copy of any Ben-Gals handbook/code of conduct. RFP #23 askedthe same question relating to the Kenton County School Board.

The response to both requests was: "See attached", but no responsive documents were attached. Pleaseexplain.

#11 -- Request for Production 30 asked for any/all correspondence sent to/from any of Sarah's co-workers orsuperiors at school which related to the claims at issue in this case.

The response was an objection due to the request being overly broad.

This objection is without merit. Sarah's claims are based in large part on alleged harm to her professional careeras a teacher, and Sarah has testified that she received numerous emails which were both supportive of her andalso some which were harassing/inappropriate. As such, we are entitled to any correspondence as requested inRFP #30.

#12 -- Request for Production 31 asked for a variety of correspondence relating to the claims at issue in this case.

The response was "Attached". However, it does not appear that any responsive documents were attached.Please explain, and please note that Ms. Jones has previously testified that she received numerous emails whichwould be responsive to this request. As such, we expect that she will either produce the emails as requested, orshe will avow that she destroyed them despite knowing that she had a duty to preserve them.

#13 -- Request for Production #32--35 requested material which is relevant to Ms. Jones's status as a publicfigure.

The only response given was an objection.

Page2 of 4

11/30/2012

While I understand that you contend that Ms. Jones is not a public figure, we are entitled to evidence to thecontrary. As such, a full and complete response to RFP #32--35 must be provided.

In closing, please note that this matter has been pending for nearly three years, and many of these discoveryrequests have been known to you and your client for many months. As such and with the close of discoveryquickly approaching, please provide me with your position as to each of the above points by Monday, November19, 2012.

If I do not receive your response by that date, we will move to compel and will request a mandatory award ofattorney's fees pursuant to Fed. R. Civ. P. 37(a)(5)(A).

If you have any questions, please let me know.

David S. Gingras, [email protected].: (480) 668-3623Fax: (480) 248-3196

From: Eric Deters [mailto:[email protected]]Sent: Thursday, November 15, 2012 5:03 AMTo: [email protected]: RE: Sarah Jones v. Dirty World, LLC

Relative to your email, please email me what you believe is a deficiency.

From: David S. Gingras [[email protected]]Sent: Wednesday, November 14, 2012 3:53 PMTo: Eric Deters; [email protected]: [email protected]; [email protected]; Loretta LittleSubject: RE: Sarah Jones v. Dirty World, LLC

Eric,

Alexis Mattingly has sent me your client's updated discovery responses (responses to interrogatories andrequests for production). I need to meet and confer with you regarding several deficiencies which, if notimmediately addressed, will result in defendants filing a motion to compel.

Because we have a very short amount of time left, please let me know when you'd like to discuss this issue,preferably before the end of this week.

I look forward to your response. Thanks.

David S. Gingras, [email protected].: (480) 668-3623

Page3 of 4

11/30/2012

Exhibit C

David Gingras

From: David S. Gingras [[email protected]]Sent: Monday, November 19, 2012 10:15 AM

To: 'Eric Deters'Cc: 'ABM'; '[email protected]'; '[email protected]'Subject: RE: Sarah Jones v. Dirty World, LLC

Page1 of 5

11/30/2012

Eric,

I haven't received any response from you re: the email below.

If you intend to respond, please do so by the close of business today.

If I don't hear from you, we will file our Motion to Compel tomorrow.


Exhibit D

David Gingras

From: Eric Deters [[email protected]]

Sent: Tuesday, November 20, 2012 5:58 AM

To: [email protected]; Eric Deters

Cc: 'ABM'; [email protected]; Loretta Little

Subject: RE: Sarah Jones v. Dirty World, LLC

Attachments: Verification Form.wpd

Page 1 of 6

11/30/2012

In response to your discovery email:

1. Sarah has given another deposition and answered your questions.

2. Here’s another verification page for the Interrogatories. It will be signed and notarized before 9 AM.

3. The $1,000,000 was chosen by me as her counsel (#2). It’s spelled out in her deposition and our answer. The emotional, mental, stress, humiliation, pain and suffering from the libels is the basis.It’s that simple. Also, see the attachments produced reflecting all the nasty comments on the internet.

4. #3- Who submitted it is unknown to her and Nik denied knowing at his deposition.

5. #22/23- Sarah answered this at her deposition. The Google reference was simply that it would have all the television interviews given. She answered this in detail at her deposition. And you are wrong. She’s allowed to reference a deposition.

6. #27- Our attachments we provided you are more than sufficient to document our response. We rely upon them. We don’t need more. These also help support the damages. We gave you an inch stack or better of examples we will introduce at trial. That stack is enough for our damages.You don’t need to worry about any surprises not provided in that stack. They are a sample. We will use them. The jury will be told they are a sample.

7. Req. #1- Again. We rely upon the stack submitted. And it’s silly you want to deny knowledge of your own website posts.

8. Req. #5- Your request was broad- “negligent?” “otherwise culpable.” Again we rely upon every

document we produced. What is not clear. Every. If you disagree, that’s your problem. We maintain all which we produced is responsive to this question.

9. #13 You acquired the entire police file. We gave you transcripts of the Grand Jury and interviews

by police and the texts. We have nothing more responsive to your request.

10. #15 and 16 Request- Her medical records we attached were responsive to this request. She will testify as to this issue. We don’t need more than the medical records and her testimony.

11. #22/#23- We do not have in our possession and have no means of acquiring. Defendant has been issuing subpoenas and can do so to acquire same.

12. #31- We produced the pile of postings etc. There are no other “correspondence” she has.

13. #32-35- Sorry. During the timeline of this case, the Court ruled she was not a public figure.There was a Court Order. She’s now a public figure as a result of the Cody York case. But, we are only seeking damages up to February 1, 2011. Therefore, the fact she’s a public figure now is not relevant. The Court already ruled.

We have fully compiled with the discovery requests.

*Drafted/Not proofed at time of sending

From: David S. Gingras [[email protected]]Sent: Monday, November 19, 2012 12:14 PMTo: Eric DetersCc: 'ABM'; [email protected]; Loretta LittleSubject: RE: Sarah Jones v. Dirty World, LLC

Eric,

I haven't received any response from you re: the email below.

If you intend to respond, please do so by the close of business today.

If I don't hear from you, we will file our Motion to Compel tomorrow.


From: David S. Gingras [mailto:[email protected]]

Page 2 of 6

11/30/2012

Exhibit E

David Gingras

From: David S. Gingras [[email protected]]

Sent: Tuesday, November 20, 2012 8:50 AM

To: 'Eric Deters'

Cc: 'ABM'; '[email protected]'; 'Loretta Little'


Page 1 of 6

11/30/2012

Eric,

I am about to leave town for the holiday and I will need to review other parts of your response before I decide whether you have complied with your obligations.

However, after reading your comments I am still confused about one specific thing, and I would therefore like you to clarify your position on this one issue before we talk about anything else.

As noted in points #11 and 12 in my email to you below, we asked Ms. Jones to produce correspondence relating to the case. This includes correspondence that Ms. Jones previously testified about in the default damages hearing relating to Dirty World Entertainment recordings.

In her written statement, Ms. Jones referred several times to two different categories of emails that she received relating to the case: 1.) "inappropriate" emails she received after the posts on thedirty.com; and 2.) supportive emails from parents. Both of these categories of correspondence are within the scope of our prior production requests, but to date, Ms. Jones has failed to produce a single responsive document from either category.

There are only three possible explanations for this:

1.) Ms. Jones actually received the emails she claims to have received, and she still has them.2.) Ms. Jones actually received the emails she claims to have received, and she destroyed them.3.) Ms. Jones lied about receiving these emails in an effort to generate sympathy from the court.

To be clear: I need a written response from your client, under oath, which tells me which of the above explanations is correct. If none of the three explanations are correct, then please provide a full and complete explanation as to why your client cannot produce the emails which she previously testified about.

I do not care if you think that Ms. Jones has answered this elsewhere. Even if that is true, it does not relieve you or your client from your obligations to fully and honestly respond to all written discovery requests under the rules.

Again, this is NOT intended to represent a full response to your comments below. I will follow up with you shortly regarding any additional matters which need to be discussed prior to seeking relief from the court.


From: Eric Deters [mailto:[email protected]] Sent: Tuesday, November 20, 2012 5:58 AM

To: [email protected]; Eric DetersCc: 'ABM'; [email protected]; Loretta Little


In response to your discovery email:

1. Sarah has given another deposition and answered your questions.

Page 2 of 6

11/30/2012

Exhibit F

David Gingras

From: Eric Deters [[email protected]]

Sent: Monday, November 26, 2012 9:02 AM

To: [email protected]

Cc: Eric Deters


Attachments: Emails Relating to the Case.doc

Page 1 of 1

11/30/2012

David- Attached is Sarah's Response which is my response.

From: Eric Deters

Sent: Monday, November 26, 2012 7:14 AMTo: [email protected]: RE: Sarah Jones v. Dirty World, LLC

I'll meet Sarah today and respond to your Tuesday email.

Emails Relating to the Case

When receiving emails, predominately the derogatory ones, I deleted them.

While teaching I had a smart board, where emails would potentially be

displayed on the screen in which this happened. As soon as the emails came

through, I disposed of them. In my deposition, I was asked if I still had a

copy of those. I told them I didn’t have a copy but I would look to see if

they were possibly in the deleted items in my email. These emails, along

with the positive emails were sent over my school email, which I do not

have access to. I did not destroy them intentionally; I simply deleted them

as I would any other email. Other messages sent via email or Facebook are

not in my possession as I did not save or print them. However, I stand by

that I did receive them.

Technology

Motion to compel David Gingras declaration