Motion For Sanctions

Case 3:15-cv-00286-EDL Document 239 Filed 11/03/17 Page 1 of 29
1 PETER W. ALFERT, SBN 83139

LAW OFFICES OF PETER ALFERT, PC
2 200 Pringle Ave., Suite 450
Walnut Creek, California 94596
3 Telephone: (925) 279-3009
Facsimile: (925) 279-3342
4
TODD BOLEY, SBN 64119
5 LAW OFFICE OF TODD BOLEY
2831 Mariner Square Dr., Suite 280
6 Alameda, CA 94501
Telephone: (510) 836-4500
7 Facsimile: (510) 649-5170
8 Attorneys for PLAINTIFFS
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 NATALIE BURKE and M.B., a minor by and No. 3:15-cv-00286 EDL

through her guardian ad litem NATALIE
12 BURKE, PLAINTIFF M.B.s MOTION FOR
SANCTIONS AGAINST EDRINGTON,
13 Plaintiffs, SCHIRMER & MURPHY AND DOLORES
DONOHOE
14 v.
DATE: December 12, 2017
15 BRENTWOOD UNION SCHOOL DISTRICT, TIME: 2:00 p.m.
MATTHEW DAILEY, KELLY MANKE, DEPT: Courtroom E, 15th Floor, S.F.
16 JENNIFER WHITNEY, DANA EATON, and
DOES 1-30, Hon. Elizabeth D. Laporte
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Defendants.
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PLAINTIFFSMOTION FOR SANCTIONS 3:15-cv-00286 EDL

1 CONTENTS
I. INTRODUCTION .............................................................................................................. 1
2
II. PROCEDURAL BACKGROUND OF CASE .................................................................... 1
3
III. EMAILS PRODUCED AUGUST 10, 2017 PURSUANT TO COURTS ORDER
4 RE ATTORNEY-CLIENT WAIVER ................................................................................. 5
5 A. WAIVER PRODUCTION REVEALED MISCONDUCT BY

ESM/DONOHOE WAS WILLFUL ........................................................................ 5
6
1. ESM/DONOHOES REPRESENTATION THAT DOCUMENTS
7 WERE NOT COLLECTED OR PRODUCED BASED ON A
MISUNDERSTANDINGOF THIS COURTS NOV. 6, 2015
8 ORDER (DOC. 35) WAS FALSE. .............................................................. 5
9 2. ESM/DONOHOES REPRESENTATIONS THAT THEY HAD NO

DOCUMENTS TO PRODUCE IN CONNECTION WITH BOTH
10 DEFENDANT MATTHEW DAILEYS FEBRUARY 18, 2016
DEPOSITION AND HIS COURT-ORDERED DEPOSITION
11 AUGUST 4, 2016 WERE FALSE. .............................................................. 6
12 3. ESM/DONOHOES REPRESENTATIONS CONCERNING WHEN

THEY LEARNED THAT EMAILS WERE NOT RETAINED
13 BECAUSE OF A PROBLEM WITH BUSDS JOURNALING
ARCHIVE WERE FALSE .......................................................................... 7
14
B. WAIVER PRODUCTION REVEALED NEW EVIDENCE AND FACTS
15 PREVIOUSLY UNKNOWN TO PLAINTIFFS AND UNAVAILABLE
FROM ANY OTHER SOURCE ............................................................................. 8
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4. ESM/DONOHOE WITHHELD EMAILS IN THEIR POSSESSION
17 WHICH PROVE BUSD SPECIFICALLY GRANTED J.L.
PERMISSION TO ATTEND AMS ON A SEPTEMBER, 2013
18 INTRA-DISTRICT TRANSFER TO BE REVOKED IF J.L. WAS
DISRUPTIVE.......................................................................................... 8
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5. ESM/DONOHOE WITHHELD M.B. EMAILS IN THEIR
20 POSSESSION WHICH DOCUMENT DEFENDANTS
KNOWLEDGE THAT M.B. WAS BEING SEXUALLY
21 HARASSED BY AMS STUDENTS AS EARLY AS MARCH,
2013. ........................................................................................................... 9
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IV. VIOLATIONS OF COURT ORDERS.............................................................................. 11
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V. BASED ON THE MISCONDUCT OF ESM/DONOHOE, PLAINTIFF M.B. IS
24 ENTITLED TO RECOVER COSTS AND ATTORNEYSFEES FOR THE
DEPOSITIONS OF SIXTEEN DISTRICT EMPLOYEES ............................................... 14
25
C. THE FALSE TESTIMONY OF WITNESSES RELIED ON THE
26 CONCEALMENT OF EVIDENCE BY ESM/DONOHOE ................................... 14
27 D. IF ESM/DONOHOE HAD NOT CONCEALED EVIDENCE, THE

DISTRICTS 30B6 WITNESSES COULD NOT HAVE TESTIFIED
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i
PLAINTIFF M.B.s MOTION FOR SANCTIONS AGAINST 3:15-cv-00286 EDL
EDRINGTON, SCHIRMER & MURPHY AND DOLORES DONOHOE
1 FALSELY AS TO MATTERS WITHIN THEIR PERSONAL

KNOWLEDGE ..................................................................................................... 16
2
6. 30(B)6 WITNESS DAVID HARRELL TESTIFIED FALSELY
3 AND IN CONTRADICTION TO THE EVIDENCE WITHHELD
BY ESM/DONOHOE ............................................................................... 16
4
7. 30(B)6 WITNESS JENNIFER WHITNEY TESTIFIED FALSELY
5 AND IN CONTRADICTION TO THE EVIDENCE WITHHELD
BY ESM/DONOHOE ............................................................................... 18
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8. 30(B)6 WITNESS GEORGE LOFTIS TESTIFIED FALSELY AND
7 IN CONTRADICTION TO THE EVIDENCE WITHHELD BY
ESM/DONOHOE. ..................................................................................... 19
8
VI. BASED ON THE MISCONDUCT OF ESM/DONOHOE, PLAINTIFF M.B. IS
9 ENTITLED TO RECOVER COSTS AND ATTORNEYSFEES FOR
PREPARING MOTIONS TO COMPEL AND OPPOSITIONS TO SUMMARY
10 JUDGMENT MOTIONS.................................................................................................. 20
11 VII. LEGAL STANDARD ...................................................................................................... 22
12 VIII. CONCLUSION ................................................................................................................ 24
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1 TABLE OF AUTHORITIES
2 Page No.
4 CASES
5 Chambers v. NACSO, Inc.

501 U.S. 32 L.Ed.2d 27 (1991) ......................................................................................... 23
6
Fjelstad v. American Honda Motor Co., Inc.
7 762 F.2d 1334, 1338 (9th Cir.1985) .................................................................................. 23
8 Fox v. Vice
563 U.S. 826..................................................................................................................... 24
9
Goodyear Tire & Rubber Co. v. Haeger
10 ___ U.S. ___, 137 S. Ct. 1178 (2017) .............................................................................. 24
11 Keithley v. Homestore.com, Inc.

No. C-03-04447 SI (EDL), 2009 WL 55953 ............................................................... 22, 23
12
Oregon RSA No. 6, Inc. v. Castle Rock Cellular of Oregon Ltd. P'ship
13 76 F.3d 1003 (9th Cir. 1996)............................................................................................. 23
14 Resolution Trust Corp. v. Dabney

73 F3d 262 (10th Cir. 1995) ............................................................................................. 23
15
CODE
16
28 USC 1927............................................................................................................................. 23
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27
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iii
1 I. INTRODUCTION
2 Plaintiff M.B. alone, brings this motion for sanctions against defense counsel, Edrington,
3 Schirmer and Murphy (ESM) and attorney Dolores Donohoe (Donohoe), hereinafter
4 collectively referred to as ESM/Donohoeto recover those costs incurred and attorney time
5 directly impacted by ESM/Donohoes discovery misconduct and deliberate concealment of critical
6 evidence in violation of multiple court orders. ESM/Donohoe made intentional
7 misrepresentations, misled the Court and Plaintiff through statements made in open court and in
8 filed declarations, all to conceal the fact that key documents in ESM/Donohoes possession were
9 withheld since November 21, 2015.
10 ESM/Donohoes misconduct was a calculated attempt to gain a prejudicial advantage over
11 minor plaintiff M.B. to defeat her claims. It is indisputable that ESM/Donohoes intentional
12
misconduct caused plaintiff M.B. to expend substantial additional case costs and incur additional
13
attorney time and resulted in substantial expenditures of judicial resources and significant delays.
14
Initially, some of ESM/Donohoes misconduct was revealed by documents produced after
15
the Courts second and third orders compelling documents (Docs. 80, 110), but the full scope of
16
17 their misconduct - and the evidence that the misconduct was deliberate - was revealed in
18 documents produced after the Courts fourth order on July 14, 2017 compelling production of
19 withheld emails and finding attorney-client privilege was waived based on ESM/Donohoes failure
20
to timely advise plaintiff of more than 774 withheld emails. (Doc. 229)
21
II. PROCEDURAL BACKGROUND OF CASE
22
On Jan. 21, 2015, plaintiff filed the complaint, bringing claims under Title IX and for
23
violations of California Education Code 220. (Doc. 1) The case was assigned to the Hon.
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Elizabeth Laporte (Doc. 2) and the parties consented to magistrate jurisdiction. (Docs. 5, 12).
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On May 4, 2015, the Court issued its Case Management and Pretrial order setting March
26
15, 2016 as the deadline to complete fact discovery. (Doc. 23)
27
On October 5, 2015, Plaintiff M.B. filed a Motion to Compel all documents related to
28
1
1 student J.L. (Doc. 29) and defendants did not oppose the motion (Doc. 32).
2 On Nov. 6, 2015, the Courts Order Granted PlaintiffsMotion to Compel. (Doc. 35)
3 On December 8, 2015, ESM/Donohoe produced what is now known to be only selected
4 documents from J.L.s student file. (21 Alfert Decl.)
5 On January 15, 2016, the parties attended the first Settlement Conference with Magistrate
6 Maria-Elena James and the case did not settle. (Doc. 41)
7 On May 25, 2016, Plaintiff filed a Motion to Reopen Discovery and Compel depositions.
8 (Doc. 59)
9 On June 21, 2016 ESM/Donohoe filed a Motion for Summary Judgment arguing that
10 Plaintiffshad insufficient evidence to establish a genuine dispute as to any material fact and had no
11 evidence that Manke, Whitney or Dailey acted with deliberate indifference to any known peer
12 sexual harassment. (Ex. O to Alfert Decl., Doc. 68, pp. 1:8-9, 7:17-28)
13 On July 6, 2016, the Court issued an Order Granting PlaintiffsMotion to Reopen
14 Discovery and ordering the further depositions of defendant Matt Dailey, school psychologist
15 Helen Pursell, principal Rusty Ehrlich and school secretary Barbara Rios. The Courts
16 order stated the depositions should proceed as soon as possible after the production of any
17 relevant additional documents.(Ex. P to Alfert Decl., Doc. 80, p. 9:4-5, 10:16-17, 11:9-11)
18 On July 5, 2016, Plaintiff filed an Opposition to Motion for Summary Judgment. (Doc. 76)
19 On July 19, 2016, plaintiffscounsel sent an email to Donohoe requesting documents be
20 produced pursuant to the Courts Order in connection with the court-ordered depositions. (Ex. K
21 to Alfert Decl., Doc. 204-8)
22 On July 20, 2016, Donohoe responded by email confirming I read the order the same way
23 you do I have instructed all witnesses and the administration to look for any documents relating
24 to JL As of today, I have not located any additional documents If any are located, they will be
25 provided to you. Be assured, I am not withholding records and do not appreciate the accusation
26 that I or my client is doing so.(Ex. K to Alfert Decl., Doc 204-8 at p. 2)
27 Between July 22, 2016 and August 17, 2016, the court-ordered depositions of Matthew
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2
1 Dailey, Helen Pursell and Rusty Ehrlich were conducted and ESM/Donohoe produced no
2 documents in connection with the depositions. As described below, these witnesses testified falsely
3 and in contradiction to the documents withheld by ESM/Donohoe in violation of court orders. (
4 24-28 Alfert Declaration, hereinafter Alfert Decl)
5 On August 21, 2016, Plaintiffs filed their first Supplemental Brief in Opposition to
6 Defendants Motion for Summary Judgment. (Doc. 97)
7 On Aug 26, 2016, ESM/Donohoe filed a Reply in support of Motion for Summary
8 Judgment claiming J.L. never exhibited sexualized behavior towards other children, and there
9 were no reports of J.L. picking on other children.(Ex. Q to Alfert Decl., Doc 100 p. 7:16-17).
10 On Aug. 27, 2016, Plaintiffs filed a Motion to Enforce Courts July 6, 2016 Order, Compel
11 Depositions and to Compel Production of Electronically Stored Information (ESI). (Doc 102)
12 On August 31, 2016, the parties met and conferred pursuant to the Courts direction and
13 ESM/Donohoe advised plaintiffs counsel for the first time that they had never conducted a search
14 for emails relating to J.L.s misconduct. Plaintiffs counsels sent ESM/Donohoe an email
15 confirming their shock at hearing this. Donohoe responded by email stating I am shocked to hear
16 you are shocked about my position I am offended by your continued accusation that I am
17 withholding documents. It is neither accurate nor professional. (Ex. R to Alfert Decl., August
18 31, 2016 email exchange with Donohoe)

19 At the Sept 6, 2016 hearing on Plaintiffsmotion to compel, Donohoe represented to the
20 Court she had misunderstoodthe Courts Nov 6, 2015 Order (Doc. 35) to have excluded
21 complaints about J.L. not in a student file. (Ex. S to Alfert Decl., excerpts of 9/6/16 hearing)
22 On September 7, 2016, the Court Granted PlaintiffsMotion to Compel and Ordered
23 ESM/Donohoe to produce emails within two weeks, by September 20, 2016. (Doc. 110)
24 On September 19, 2016, individual defendants Matthew Dailey, Kelly Manke and Jennifer
25 Whitney filed Substitutions of Attorney substituting attorney Louis Leone and the Leone & Alberts
26 firm in place of Dolores Donohoe and the Edrington Schirmer & Murphy firm. (Docs. 114 117)
27 (See 138 to Alfert Decl.)
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1 On September 28, 2016 the parties attended the second Settlement Conference with
2 Magistrate Judge Jacqueline Corley and the case did not settle. (Doc. 132)
3 On October 14, 2016, PlaintiffsFiled a Motion to Compel production of ESI and for
4 discovery relating to the deletion of the email accounts of Defendants Dailey and Manke during the
5 litigation. (Doc 138) In connection with the motion and reply, Plaintiff submitted two declarations
6 from the president of Convergent Computing, Rand Morimoto (Docs. 138-1 and 144-1).
7 On February 10, 2017, Plaintiff filed their Second Supplemental Opposition to Defendants
8 Motion for Summary Judgment (Doc 174) Plaintiff submitted declarations from Edward Dragan,
9 Ed.D. and Lynn Ponton, M.D. (both filed under seal with Doc. l72).
10 On February 21, 2017, the parties attended the third Settlement Conference with Magistrate
11 Judge Jacqueline Corley and the case did not settle. (Doc. 178)
12 On March 7, 2017, the parties attended the fourth Settlement Conference with Magistrate
13 Judge Jacqueline Corley and the case did not settle. (Doc. 189)
14 On April 7, 2017, the Court issued its Order Granting in Part and Denying in Part
15 DefendantsMotion for Summary Judgment. (Doc. 200)
16 On May 5, 2017, Defendant BUSD produced a privilege log for 774 emails withheld on the
17 basis of attorney-client/work product privileges. (Ex. Z to Alfert Decl., May, 2017 privilege log)
18 On May 22, 2017, Plaintiffs filed a motion to deem the attorney client privilege waived and
19 to compel production of withheld emails. (Doc 204)
20 On July 14, 2017, the Court issued its Order on PlaintiffsMotion to Compel finding
21 the attorney-client privilege had been waived as to all non-core attorney-client
22 communications and ordered production by August 10, 2017. (Doc. 229)
23 On August 29, 2017 the parties participated in the fifth settlement conference with
24 Magistrate Judge Jacqueline Corley and the case thereafter settled. (Doc. 235)
25 Counsel for Plaintiff M.B. took sixteen depositions of Defendant District employees. As a
26 direct result of the intentional misconduct by ESM/Donohoe, all of these depositions were
27 conducted without any of the key emails and records ESM/Donohoe intentionally withheld and the
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1 witnesses testified in contradiction to their own withheld emails. ( 25-28 Alfert Decl.)
2 III. EMAILS PRODUCED AUGUST 10, 2017 PURSUANT TO COURTS ORDER RE

ATTORNEY-CLIENT WAIVER
3
In response to the Courts July 14, 2017 Order, ESM/Donohoe produced 9,904 documents
4
and emails on August 10, 2017. ( 26 Alfert Decl.) These emails will hereinafter be collectively
5
referred to as the Waiver Production. The emails produced in the Waiver Production included
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previously withheld evidence which (1) revealed the scope of the misconduct by ESM/Donohoe
7
and confirmed it was deliberate; and (2) revealed totally new evidence and facts previously
8
unknown to plaintiffs and unavailable from any other source withheld throughout the litigation.
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A. Waiver Production Revealed Misconduct by ESM/Donohoe Was Willful
10
The Waiver Production contained emails which establish that ESM/Donohoe intentionally
11
misled this Court and Plaintiff repeatedly to gain a prejudicial advantage over minor plaintiff to
12
defeat her claims. The Waiver Production included Transmission Reports which evidenced the
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dates on which ESM/Donohoe received the withheld emails. ( 16-22, 26-32 to Alfert Decl.)
14
1. ESM/Donohoes representation that documents were not collected or produced
15 based on a misunderstandingof this Courts Nov. 6, 2015 Order (Doc. 35) was
false.
16
The Waiver Production included multiple emails confirming ESM/Donohoe fully
17
understood that the Courts Nov. 6, 2015 Order (No. 35) required production of complaints re J.L.
18
which were not contained in J.L.s file. This is in direct contradiction to Donohoes
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representations to the Court at the Sept. 6, 2016 hearing that she misunderstoodthe order to have
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excluded any documents not contained in a student file. (Ex. XX to Alfert Decl., excerpt of the
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transcript of Sept. 6, 2016 hearing) The Aug., 2017 Waiver Production included an email sent by
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Donohoe to the District on November 9, 2015, three days after the court issued its order, attaching
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a copy of the order (Doc. 35) and stating The Court has issued the attached order that the District
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produce J.L. records. These include: 2) Complaints made by students or staff about him. I would
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need any documents relating to other complaints that are not in his file. We have to produce the
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above by December 6, 2015.(emphasis added) (Exs. L and M to Alfert Decl., BUSD 76857 and
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76522) Emails produced in the Aug., 2017 Waiver Production establish that email complaints
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1 about J.L. were in ESM/Donohoe possession but withheld. ( 16-22, 26-28 Alfert Decl.)
2 On Aug. 31, 2016, one week before the Sept. 6, 2016 hearing, ESM/Donohoe told Plaintiffs
3 counsel during the court-ordered meet and confer that no search for J.L. emails had been done.
4 (Ex. R to Alfert Decl., Donohoe August 31, 2016 email at pg. 2) This representation was clearly
5 false as established in emails produced in the Waiver Production. Some of the documents in
6 ESM/Donohoes possession as early as Nov 21, 2015 were withheld until Nov, 2016 and some
7 continued to be withheld until the Waiver Production in August, 2017. (16-28 Alfert Dec.)
8 2. ESM/Donohoes representations that they had no documents to produce in

connection with both Defendant Matthew Daileys February 18, 2016 deposition
9 and his court-ordered deposition August 4, 2016 were false.
10 The Waiver Production included an email Donohoe sent to the Districts IT department before
11 the first deposition of Dailey stating We need to get that done before Fridays deposition of Matt
12 Dailey. There is a protective order in place and the court has ordered documents about J.L.
13 produced pursuant to that order. (emphasis added) (Ex. L to Alfert Decl., BUSD 076857) In
14 response, Systems Administrator Renee Stewart confirmed she had performed a search and turned
15 over a DVD containing J.L. emails responding to Donohoe I placed the DVD containing the
16 Outlook PST file on Gregs chair. (Ex. DDD to Alfert Decl., BUSD 082960). As explained
17 below, no emails were produced for either of Daileys depositions, in violation of Court orders
18 (Doc. 35 and Doc. 80).
19 a. February 18, 2016 Deposition of Defendant Dailey
20 ESM/Donohoe intentionally withheld critical J.L. emails in their possession, did not
21 produce any documents in connection with Daileys February 18, 2016 deposition and stated no
22 such documents existed. ( 16-32 65-71, 74-79 Alfert Decl.) Dailey testified contrary to the
23 evidence contained in the withheld emails. (65, 68, 74 - 79 Alfert Decl.) In response to
24 Plaintiffs follow up requests for documents which should have been produced, Donohoe sent a
25 Feb. 25, 2016 letter stating Mr. Dailey does not work for the District. He did not have any
26 documents to produce. (Ex. N to Alfert Decl, Donohoes Feb., 2016 letter) Emails produced in
27 the Waiver Production establish that at that time, ESM/Donohoe already had in their possession
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1 critical J.L. emails sent and received by Dailey which had been collected, but ESM/Donohoe
2 intentionally withheld them from Plaintiff M.B.. ( 16-22, 26-32, 74-79 Alfert Decl.)
3 b. August 4, 2016 Court-Ordered Deposition of Defendant Dailey
4 ESM/Donohoe withheld critical J.L. emails in their possession, did not produce any
5 documents in connection with the court ordered second deposition of Dailey Aug. 4, 2016, and
6 stated no documents existed and no records were being withheld. ( 23-29 Alfert Decl.) At his
7 second court-ordered deposition, Dailey testified contrary to evidence contained in the withheld
8 emails. ( 23-29, 74-79 Alfert Decl.) When Plaintiff requested documents for Daileys second
9 deposition, Donohoe sent a July 20, 2016 email stating I read the order the same way you do I
10 have instructed all witnesses to look for any documents relating to J.L As of today, I have not
11 located any additional documents If any are located, they will be provided to you. Be assured, I
12 am not withholding records and do not appreciate the accusation that I or my client is doing so.
13 (Ex. S to Alfert Dec., Doc. 204-8) Emails and Transmission Reports produced in the Waiver
14 Production establish that at the time, ESM/Donohoe was withholding Daileys J.L. emails and
15 records already in their possession. ( 16-22, 26-32, 74-79 Alfert Decl.)
16 3. ESM/Donohoes representations concerning when they learned that emails were

not retained because of a problem with BUSDs journaling archive were false
17
ESM/Donohoe filed a letter with the Court on Sept. 20, 2016, claiming it was only during
18
email searches ordered by the Court Sept. 6, 2016 that they first learned the Districts archive
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system, Lightspeed, was periodically downduring certain time periods and that emails sent or
20
received during that time may not be retained. (Ex. T to Alfert Decl., Doc 119, p.1 at 1)
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Emails now produced in the Waiver Production confirm EMS/Donohoes repeated
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representations to this Court and Plaintiff that they only learned of this problem in Sept., 2016
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duringthe court-ordered ESI search were false. ( 38-42 Alfert Decl.) Donohoe filed a
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Declaration with this Court on Oct. 25, 2016 attesting under oath that it was not until Sept., 2016,
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during Defendants court-ordered ESI search that counsel learned the Districts journaling system
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was intermittently down during and emails were not retained. (Ex. U to Alfert Decl. Doc 143-1 at
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p. 2, 6, 8)
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1 The Waiver Production included an email proving Donohoes representations to this Court
2 were false. A Jan. 28, 2016 email from BUSDs Systems Administrator (2 months before
3 discovery originally closed) reported in connection with email searches in this case, I do need to
4 mention that we had various blocks of time that our journaling/archiving server wasnt working
5 so any mail sent/received during the broken time periods were not journaled and would not be
6 retrievable. (Ex. V to Alfert Decl., BUSD 074783)
7 ESM/Donohoes concealment of their prior knowledge that the archive system was broken
8 during relevant time periods at issue in this case, and that emails would not be retrievable during
9 those periods, resulted in substantial delay. The forensic recovery did not begin until after the
10 Courts Sept. 6, 2016 court order compelling ESI and the production continued for many months.
11 ( 38-42 to Alfert Decl.)
12 B. Waiver Production Revealed New Evidence and Facts Previously Unknown to

Plaintiffs and Unavailable From Any Other Source
13
The Waiver Production contained new emails which had never been previously produced
14
and which establish facts previously unknown to plaintiffs and unavailable from any other source.
15
( 43-47 to Alfert Decl.) ESM/Donohoe intentionally withheld this evidence from plaintiffs for
16
nearly two years, throughout the litigation, in violation of multiple court orders and until after the
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courts ruling on summary judgment. ( 43-46 to Alfert Decl.)
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4. ESM/Donohoe withheld emails in their possession which prove BUSD specifically
19 granted J.L. permission to attend AMS on a September, 2013 intra-district transfer
to be revoked if J.L. was disruptive.
20
ESM/Donohoe filed a brief in support of their motion for summary judgment alleging that
21
the District was neither deliberately indifferent nor negligent in their supervision of J.L.. At the
22
time, ESM/Donohoe suppressed key evidence contradicting the claims. (43-58 Alfert Decl.)
23
The Waiver Production included multiple emails provided to ESM/Donohoe at least as
24
early as Nov., 2015, but withheld from plaintiff, which reveal the District granted J.L. permission
25
to attend AMS based on an intra-district transfer on September 20, 2013 (before his assaults on
26
M.B.) which was to be revoked if J.L.s continued to be disruptiveat AMS. In one withheld
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email, Dailey and Manke were notified on Sept. 20, 2013, that BUSD would allow J.L. to continue
28
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1 to attend AMS but warned In the event student continues to be disruptive, his transfer to remain
2 at AMS can be revoked1. (emphasis added) (Ex. W to Alfert Decl., BUSD 053530-053531)
3 ESM/Donohoe also withheld the Sept. 19, 2013 email from Student Services Director Jan
4 Steed to Manke and Whitney with a subject line Good bye Mr. J.L. Steeds email confirms that
5 BUSDs Private Investigator verified J.L.s residency falsificationand advised defendants
6 September 20, 2013 will be J.L.s last day in the BUSD. Period. Drop him at the end of the day on
7 Friday.(Ex. Y to Alfert Decl., BUSD 52250, 052251)
8 While ESM/Donohoe had these emails since Nov. 21, 2015, they were intentionally
9 withheld throughout the litigation in violation of multiple court orders and until after the courts
10 April 7, 2017 ruling on defendantsmotion for summary judgment and were only ultimately
11 produced in the August, 2017 Waiver Production. ( 43-58 Alfert Decl.)
12 5. ESM/Donohoe withheld M.B. emails in their possession which document

defendantsknowledge that M.B. was being sexually harassed by AMS students as
13 early as March, 2013.
14 The motion for summary judgment filed by ESM/Donohoe claimed that there was no
15 evidence Manke, Whitney or Dailey acted with deliberate indifference to any known peer sexual
16 harassment. (Ex. O to Alfert Decl., Doc. 68, p. 7:17-28) At the time they filed the motion,
17 ESM/Donohoe was withholding key evidence of the prior knowledge of Manke, Dailey and
18 Whitney that M.B. was being sexually harassed at AMS. ESM/Donohoe also suppressed evidence
19 defendants were deliberately indifferent to the known peer sexual harassment of M.B.. The emails
20 documenting Manke, Dailey and Whitneys knowledge M.B. was sexually harassed, bullied and
21 threatened and evidence of deliberate indifference in not responding to a widespread bullying
22 problem at AMS, were provided to ESM/Donohoe in Jan. and Feb. 2016 but were withheld. (51-
23 58 Alfert Decl.)
24 The Waiver Production included emails ESM/Donohoe had as early as Jan., 2016, which
25 show reports were made to Dailey, Whitney and Manke in March and May, 2013 that M.B. was
26
1
27 While ESM/Donohoe withheld these emails, Jan Steed testified in April, 2016 that J.L. could not
be removed from AMS without his mothers permissions. (Ex. X to Alfert Decl., Steed Depo, 38:5-
28 39:6)
9
1 being sexually harassed, bullied and physically threatened by AMS students. (51-58 Alfert Decl.)
2 The withheld emails sent to defendants Dailey, Whitney and Manke in March, 2013 and
3 May, 2013 reported M.B. was being sexually harassed, called a slut, whoreand bitch,
4 bullied and physically threatened on the AMS campus by students. (Ex. E to Alfert Decl.,
5 BUSD036764-036766) The emails reported M.B. was being threatened by AMS students,
6 including one student purposefully running into her and threatening to bitch slapher, constant
7 taunts making fun of M.B.s hair, clothes, shoes, etc., and that M.B. was scared for her safety at
8 AMS, scared to go to school and was so upset every day she would beg her mother to keep her
9 home or pick her up early. (Ex. E and Ex. D to Alfert Decl., BUSD036764-036766, BUSD
10 036781-36783) One email included a request from M.B.s mother that AMS report the students
11 threats against M.B. to police. (Ex. F to Alfert Decl., BUSD051864-051865) Also withheld was
12 an email from M.B.s teacher confirming that the harassment of M.B., who she called a wonderful
13 role-model studenthad been ongoinghad escalatedand definitely needs to be addressed.
14 (Ex. E to Alfert Decl., BUSD036764-036766) Another withheld email provides evidence of
15 defendantsdeliberate indifference to M.B.s bullying and harassment and complains of the
16 defendantsfailure to address a widespread and ongoing bullying problem at AMS. M.B.s father
17 wrote in a March 13, 2013 email to defendant Whitney it has come to my attention that this girl
18 has been doing this for longer than I thought and not just to my daughter. How much is really too
19 much and why is this student allowed to continually do this to my daughter and other students?
20 The verbal threats are beyond enough concluding This has gone too far and it seems like my
21 child is the only one to be continually harassed by this girl. I need a resolution. (Ex. D to Alfert
22 Decl., BUSD 036781-36783)
23 After the Courts April 7, 2017 ruling on defendantssummary judgment (Doc. 200),
24 ESM/Donohoe advised plaintiff for the first time they were withholding many hundreds of emails
25 and provided a privilege log on May 5, 2017. (Ex. Z to Alfert Decl., May 5, 2017 ESM/Donohoe
26 letter and privilege log) None of these emails documenting the defendantsprior knowledge M.B.
27 was being sexually harassed and bullied at AMS were on the privilege log. (60, 61 Alfert Decl.)
28
10
1 ESM/Donohoe had these emails since Jan. and Feb., 2016, but withheld them throughout the
2 litigation, in violation of the courts order (Doc. 80), until after the courts April 7, 2017 ruling on
3 defendantsmotion for summary judgment, and only ultimately turned them over in the August,
4 2017 Waiver Production. ( 52- 62 Alfert Decl.)
5 IV. VIOLATIONS OF COURT ORDERS
6 ESM/Donohoe engaged in a pattern of misconduct in this case involving multiple repeated
7 acts which caused plaintiff M.B. to expend substantial additional case costs and incur additional
8 attorney time, resulted in substantial expenditures of judicial resources and caused significant
9 delays in the case. (63 Alfert Decl.) This Court provided ESM/Donohoe multiple opportunities to
10 rectify their initial wrongdoing, but the attorneys continued to violate each subsequent court order
11 compelling production of the emails in their possession which had previously been provided to
12 them by their client2. (64 Alfert Decl.) ESM/Donohoe continued their discovery misconduct by
13 repeatedly claiming no documents existed and none were being withheld and continued to conceal
14 key evidence in a calculated attempt to defeat M.B.s claims. As described below, the Districts
15 witnesses, including the defendants and the Districts 30(b)6 witnesses, then testified contrary to
16 the evidence contained in their own withheld emails.
17 Courts November 6, 2015 Order Document 35
18 This order required production of all complaints regarding J.L. Emails produced in the
19 Waiver Production establish that ESM/Donohoe understood the order, instructed the District to
20 conduct the search and that ESM/Donohoe received the emails from the District but withheld them.
21 District witnesses, including the individual defendants and the 30(b)6 witnesses, then testified
22 contrary to the evidence contained in their own withheld emails. (66,67, 74-79, 87-92 Alfert Dec.)
23 Courts July 6, 2016 Order Document 80
24 This order required production of all relevant documents in connection with the depositions
25 of defendant Matthew Dailey, school psychologist Helen Pursell, and principal Rusty Ehrlich.
26
2
Daily also testified he turned over his notebook regarding J.L. to counsel in this litigation. In this
27 circumstance, because this missing evidence is not forensically recoverable as was ESI, plaintiff is
forced to take the word of Ms. Donohoe that it never existed. (Ex. AA to Alfert Decl., Dailey Depo
28 Vol. 1, p.126:18-127:23)
11
1 ESM/Donohoes own emails produced in the Waiver Production establish that ESM/Donohoe
2 understood the order but withheld responsive emails in their possession and claimed no such
3 documents existed. ( 67 Alfert Decl.) District witnesses, including Dailey, Pursell and Ehrlich
4 testified contrary to their own withheld emails. ( 16-22, 68, 72 -79 Alfert Decl.)
5 Courts September 7, 2016 Order Document 110
6 This order required production of J.L. emails within two weeks, by September 20, 2017.
7 Emails produced in the Waiver Production establish that ESM/Donohoe violated this order by
8 withholding responsive emails already in their possession. District witnesses, including the
9 individual defendants and the 30(b)6 witnesses, had already testified contrary to the evidence
10 contained in their own withheld emails. ( 16-22, 69, 72-79 Alfert Decl.)
11 Courts July 14, 2017 Order Document 229
12 The Court found that the attorney client privilege had been waived and ordered production
13 non-core attorney-client documents and emails from the [email protected]
14 produced by August 10, 2017. ESM/Donohoe is still violating this order by withholding emails
15 between Donohoe and BUSDs IT department on November 20 and 21, 2015. (143 Alfert Dec.)
16 Evidence In ESM/Donohoes Possession Withheld in Violation of Courts Orders
17 The Waiver Production included Transmission Reports, generated by the Districts archive
18 server Lightspeed, which established the date on which ESM/Donohoe received documents which
19 are the subject of this motion. ( 16-22, 70 to Alfert Decl.) Set forth below is some of the key
20 evidence concealed by ESM/Donohoe by withholding documents in violation of Court orders.
21 None of this evidence was available to Plaintiff M.B. during the depositions of defendants or
22 district employees and some was not available to oppose the summary judgment because it
23 continued to be withheld in violation of Court orders until Aug, 2017. ( 16-32, 43-59, 70-71
24 Alfert Decl.)
25 i By May, 2009, the District received written reports from teachers of J.L.s
aggressive sexualized behaviors toward female students and engaging in fighting,
26 threats and harassment of students (Ex. BB and UU to Alfert Decl., BUSD 036443,
036444, 036447, 036453, 036454, 036457, 36449)
27
28
12
1 i In October, 2010, the District identified J.L. as requiring Tier IIIBehavior

Intervention Services requiring intensive behavior support for high risk students
2 (Ex. CC to Alfert Decl., BUSD 22201)
3
i By September, 2012, Defendants Dailey, Manke and Whitney received written
4 reports that J.L. was bullying, harassing, threatening and intimidating students and
threatening physical violence towards female AMS students (Ex. DD to Alfert
5 Decl., BUSD 5875-5877)
6 i By October, 2012 the individual Defendants Dailey and Whitney received reports
7 from AMS counselor that J.L. was bullying, threatening calling the n-word, fag,
dumb ass and assholeand bullying a female student (Ex. EE to Alfert Decl.,
8 BUSD 052404-52405)
9 i By November, 2012, the individual Defendants received written reports that J.L.s
issues were clinical in natureand he likely suffered from disorders such as
10 ADD/ADHD, Oppositional Defiant Disorder, intermittent Explosive Behavior,
11 Mood Disorder (Ex. H to Alfert Decl., BUSD 21713-2174)
12 i By November, 2012, District psychologist George Loftis made a recommendation to

AMS that a Behavior Support Plan for J.L. be established in the seventh grade. (Ex.
13 FF to Alfert Decl., BUSD 61883-61884)
14 i By January, 2013, the District referred J.L. to SARB and identified him as a habitual
truant. (Ex. GG to Alfert Decl., BUSD 005142)
15
16 i By March, 2013, Defendants received written reports that M.B. was being sexually
harassed, threatened and bullied by AMS students on campus. (Exs. E, D, F to
17 Alfert Decl., BUSD 36764-36766, BUSD 36781-36783, BUSD 51864-51865)
18 i By May, 2013, Defendants Dailey and Whitney received reports of J.L.s classroom
takeover from a parent and teacher reporting J.L. entered a sixth grade classroom,
19 stood on tables and threatened and harassed students and the teacher, refusing to
20 leave. (Ex. HH to Alfert Decl., BUSD 50060-50061)
21 i By February, 2014 Defendants knew that sexting was occurring on the AMS
campus among AMS students. (Ex. II to Alfert Decl., BUSD 021024)
22
23 On June 5, 2017, ESM/Donohoe admitted in a court filing that ESM had all emails sent to
24 the [email protected] account in their possession by January, 2016. (Ex. J to Alfert
25 Decl., Doc 206 p.17:16-22) The emails were accessible to ESM/Donohoe since their transmission
26 to the [email protected] account on Saturday, November 21, 2015. ESM/Donohoes
27 privilege log identifies several emails between Donohoe and Greg Hetrick, the District employee
28 responsible for the search and collection of emails in this case - using her ESM firm email account,
13
1 on that same Saturday Nov. 21, 2015, as well as six times the day before. (Ex. JJ to Alfert Decl.,
2 excerpt of privilege log) ESM/Donohoe continues to withhold those email communications in
3 violation of the Courts July 14, 2017 Order (Doc. 229) compelling production. ( 19, 20, 80, 143
4 Alfert Decl.) All depositions of District employees proceeded without Plaintiff M.B. receiving any
5 of this evidence and the witnesses all confidently testified in direct contradiction to the content of
6 those withheld emails on which they were the recipient or the sender. (71-79 Alfert Decl.) As a
7 direct result of the misconduct of ESM/Donohoe in withholding critical evidentiary documents,
8 ESM/Donohoe prevented plaintiff M.B. from eliciting facts from the District employees which
9 would support her claims.
10 V. BASED ON THE MISCONDUCT OF ESM/DONOHOE, PLAINTIFF M.B. IS

ENTITLED TO RECOVER COSTS AND ATTORNEYSFEES FOR THE DEPOSITIONS
11 OF SIXTEEN DISTRICT EMPLOYEES
12 Plaintiff M.B. has established that ESM/Donohoe willfully withheld the critical
13 documentary evidence in violation of multiple Court orders. Plaintiff M.B. did not have the benefit
14 of key documentary evidence in the possession of ESM/Donohoe but withheld during all of the
15 District employeesdepositions. (71-79, 81, 87-94 Alfert Decl.) Plaintiff M.B. had to rely on the
16 testimony of Districts employees to obtain facts to support her claims. However, as described
17 below, the District employees testified in direct contradiction to their own withheld emails in an
18 attempt to defeat plaintiff M.B.s claims. (82 Alfert Decl.) As a direct result of the misconduct of
19 ESM/Donohoe in withholding critical evidence, ESM/Donohoe prevented plaintiff M.B. from
20 eliciting facts from the District employees which would support her claims. Accordingly, Plaintiff
21 M.B. is entitled to recover costs associated with taking sixteen depositions of District employees
22 and attorney time spent in preparing for and taking those depositions. (71 Alfert Dec.)
23 C. The False Testimony of Witnesses Relied on the Concealment of Evidence by

ESM/Donohoe
24
Perhaps most disturbing in this case is the fact that the intentional misconduct by
25
ESM/Donohoe in withholding key evidence and stating the evidence did not exist ultimately relied
26
upon the concerted false testimony of the witnesses in order to succeed. In turn, the witnesses who
27
testified contrary to the content of the withheld emails also relied upon ESM/Donohoes
28
14
1 concealment of their own emails which would have proven the falsity of their testimony.
2 The concerted false testimony of the witnesses, including defendants and the districts 30b6
3 witnesses, prevented plaintiff from discovering key evidence in the possession of ESM/Donohoe
4 which proved defendantsknowledge of J.L.s sexual harassment, bullying and violence, their
5 knowledge of J.L.s habitual truancy, defendantsongoing discussions as to the clinical causes of
6 J.L.s misconduct at AMS, defendantsprior knowledge of sexting among AMS students and their
7 prior knowledge of the sexual harassment and bullying of M.B. by AMS students. (Exs. BB, CC,
8 DD, G, FF, GG, E, D, F, HH, II to Alfert Decl., BUSD 036443-036444, BUSD 22201, BUSD
9 5875 5877, BUSD 21741, BUSD 61883-61884, BUSD 005142, BUSD 36764-36766, BUSD
10 36781-36783, BUSD 51864-51865, BUSD50060-50061, BUSD 021024)
11 It has been established that ESM/Donohoe intentionally concealed this evidence during the
12 litigation and Plaintiff was required to rely on the testimony of BUSD witnesses. However, the
13 District witnesses, including defendants and the 30(b)6 witnesses testified falsely, knowing that
14 documents contradicting their sworn testimony were withheld from Plaintiff by EMS/Donohoe.
15 (71-116 Alfert Decl.) While ESM/Donohoe withheld evidence, more than one of defendants
16 experts relied on this absence of evidence to dispute plaintiff M.B.sclaims. (84-86 Alfert Decl.,
17 Ex. KK to Alfert Decl., Excerpt of Report of Pamela Mills, Ph.D.)
18 Plaintiffs case was made significantly more expensive and consumed enormous amounts
19 of plaintiffs attorney time as a direct result of ESM/Donohoes repeated discovery violations,
20 defiance of court orders and suppression of key evidence and the resulting false testimony of
21 witnesses. ESM/Donohoes repeated violations of the Courts orders were intentional. Plaintiff
22 M.B. was significantly prejudiced by ESM/Donohoe misconduct. ESM/Donohoe should now pay
23 for Plaintiffs increased costs and attorney time expended due to ESM/Donohoes intentional
24 discovery misconduct. Plaintiff has not requested fees and costs for any work prior to the Nov. 6,
2015 order (35). Plaintiff has also limited her request for increased costs and attorney time to only
25
that directly impacted by the intentional misconduct by ESM/Donohoe. ( 130-132 Alfert Decl.)
26
Knowing that evidence of J.L.s bullying was withheld from Plaintiff Manke, Dailey and
27
Whitney each testified falsely at their depositions about J.L.s bullying. (87-94 Alfert Decl.)
28
15
1 On April 18, 2016, Manke testified that as principal at AMS, she was unaware of any report
2 that J.L. was bullying other students. ( 88-89 and Ex. LL to Alfert Dec, Manke Depo p. 66:5-9).
3 On April 6, 2016, Whitney testified (as 30(b)(6) witness regarding J.L.s discipline issues at
4 AMS) that she was unaware of any incidents of discipline with J.L. other than one incident when
5 he left P.E. class early. ( 90-91 and Ex. MM to Alfert Decl., Whitney Vol. II 29:8-18, 30:6-12).
6 On Feb. 18, 2016, Dailey testified he was unaware of any bullying by J.L. other than two
7 undocumented incidents. (Ex. AA to Alfert Dec., Dailey Vol. I, pp. 33:21-25, 34:1-25, 35:1-6).
8 ESM/Donohoe withheld multiple emails documenting reports to Dailey, Whitney and
9 Manke of J.L.s bullying, harassment and threats. (94-101 Alfert Dec.) The testimony of BUSD
10 employees juxtaposed with their own emails withheld by ESM/Donohoe demonstrates a clear
11 pattern of intentional deceit and discovery abuse which should not be ignored by this Court. It begs
12 credulity that so many BUSD employees would independently provide testimony that is directly
13 contradicted by their own emails which were withheld by ESM/Donohoe. Even more damning is
14 the fact that the records contradicting deposition testimony were in ESM/Donohoe possession at
15 the time the testimony was given. (94-101 Alfert Decl.)
16 D. If ESM/Donohoe had Not Concealed Evidence, The Districts 30b6 Witnesses Could
Not Have Testified Falsely as to Matters within their Personal Knowledge
17
ESM/Donohoe premised their defense on the claim that there was no evidence the District was
18
aware of sexual harassment, bullying or sexting at AMS. Three individuals were designated as the
19
Districts 30(b)(6) witnesses regarding J.L. for specific categories and all three testified falsely in
20
direct contradiction to the documents ESM/Donohoe withheld. (94-95 Alfert Decl.)
21
6. 30(b)6 witness David Harrell testified falsely and in contradiction to the
22 evidence withheld by ESM/Donohoe
23 David Harrell was designated as the 30(b)(6) regarding counseling of J.L. at AMS and testified
24 falsely and in contradiction to the evidence withheld by ESM/Donohoe. (96 Alfert Decl.)
25 At deposition, Harrel testified that he did not know who J.L. was, he had never heard of J.L.
26 before coming to his deposition, he had never talked to J.L., no one had ever talked to him
27 about J.L. and he had never discussed J.L. with Loftis, Manke, Dailey, Whitney or anyone.
(Ex. NN to Alfert Decl., Harrell Depo p. 19:11-14, 22:7-16, 36:4-23)
28
16
1 ESM/Donohoe withheld emails documenting Harrells knowledge about J.Ls bullying in their
2 possession as early as Nov. 21, 2015 and in case by January, 2016. (74-76, 80, 98, 99-101 104
3 Alfert Decl.) Emails ESM/Donohoe withheld reveal that as soon as J.L. entered AMS, a student
4 approached Harrell and reported that J.L. was threatening and bullying him and Harrell emailed
5 Dailey and Whitney on October 22, 2012 reporting J.L. was bullying and threateningJ.P. calling
6 him the n-word, fag, dumb ass, assholeand J.L. threatens J.P. that hes going to beat him up
7 and that J.L. pushed J.P. into bushes before 2nd period, and that J.P. says J.L. bullies a female
8 student I.G.. (Ex. EE Alfert Decl., BUSD0052404-52405)
9 ESM/Donohoe withheld an email sent to Harrell October 31, 2012 which attached J.L.s
10 seventh grade behavior intervention form documenting multiple incidents of J.L. bullying two
11 different students, threatening violence, deliberate bullying, threatening to have a female student
12 beaten up and harassing and intimidating students. (Ex. DD to Alfert Decl., BUSD 005875-5877).
13 ESM/Donohoe withheld the behavior form containing these entries and instead produced an
14 altered form without the bullying, threatening and harassment entries. (100 Alfert Decl.) (Ex.
15 CCC to Alfert Decl., BUSD 836-838)
16 ESM/Donohoe withheld a Nov. 5, 2012 email from Harrell to psychologist Loftis and Dailey,
17 Manke and Whitney stating I can almost assure you that if any child psychiatrist read J.L. cum
18 that psychiatrist would most probably prescribe a medication.; and that J.L.s records indicate a
19 tremendous amount of impulse control problems, anger issues, oppositional defiance, etc. There is
20 an overwhelming amount of evidence indicating J.L.s issues are most probably of a clinical nature
21 (ADD/ADHD, Oppositional Defiant Disorder, Intermittent Explosive Behavior, Mood Disorder,
22 etc.) ESM/Donohoe had this email as early as Feb, 2016 but withheld it until Dec., 2016. (Ex.
23 HH to Alfert Decl., BUSD 50060-50061)
24 ESM/Donohoe also withheld Harrells Jan. 6, 2014 email to Dailey confirming J.L. had a
biochemical imbalance that most probably required medication has an inability to maintain
25
appropriate interpersonal relationships which meets the eligibility requirements of emotionally
26
disturbed and...hes most often oppositional-defiant with extreme impulsivity issues.(Ex. OO to
27
Alfert Decl., BUSD 68697 - 68698)
28
17
1 Confident that ESM/Donohoe had withheld all of his own emails, Harrell testified in direct
2 contradiction to them. (97, 101 Alfert Decl.) With all of these emails in their possession,
3 EMS/Donohoe again made false representations to this Court and Plaintiff, stating in a document
4 filed with the court October 25, 2016 that Harrell did not testify falsely in his deposition stating
5 That he did not know J.L. was true he never met him.(Ex. PP to Alfert Decl., Doc 143, p.
6 7:10-11). ESM/Donohoes attempt to cover up a lie with another lie also unraveled when additional
7 documents ultimately produced established that not only had Harrell personally met J.L. and
8 specifically discussed the psychological bases of his misconduct with defendants, he had directly
9 intervened with J.L. in March, 2014 in what Harrell called J.L.s acts of abusive violencetowards
10 the AMS secretaries. (Ex. QQ to Alfert Decl., BUSD005208)
11 The withheld contradictory documentary evidence was in the possession of ESM/Donohoe at
12 the time of the Harrell 30(b)6 deposition. (104 Alfert Decl.)
13 7. 30(b)6 witness Jennifer Whitney testified falsely and in contradiction to the

evidence withheld by ESM/Donohoe
14
Defendant Whitney was designated as the 30(b)(6) regarding discipline of J.L. and SARB
15
and testified falsely and in contradiction to the evidence withheld by ESM/Donohoe. At
16
deposition, Whitney testified falsely that she did not recall any issues of discipline relating to
17
J.L. at AMS other than one occasion when he left P.E. with another student, that no one had
18
ever discussed J.L. with her other than Dailey, that no one in the district ever discussed the
19
possibility of having a SARB with J.L. for his attendance issues and that J.L. did not have
20
any attendance problem at AMS. (Ex. RR to Alfert Decl, Whitney 30b6 Depo, pp. 19:8-18,
21
30:24-31:13, 49:25-50:2, 50:20-51:2)
22
ESM/Donohoe withheld the evidence of Whitneys knowledge of J.L.s discipline issues,
23
habitual truancy and referral to SARB his first year at AMS. (106, 108 Alfert Decl.) Evidence
24
ESM/Donohoe withheld reveals Whitney had received multiple emails reporting J.L.s bullying
25
and harassment of students and counselor Harrells reports that J.L.s behavior disorder was
26 clinical and required medication. (Ex. H to Alfert Decl., BUSD 01679) ESM/Donohoe also
27 intentionally withheld BUSDs February 6, 2013 Referral for J.L. to SARB and J.L.s Official
28
18
1 Truancy Notice his first year at AMS (Ex. SS to Alfert Decl., BUSD005142) which identified J.L.
2 as a habitual truant3. Whitney was the individual in charge of SARB, and as the witness
3 designated as the 30(b)(6) for SARB and discipline, Whitney knew that the District identified J.L.
4 as a habitual truant. Confident that ESM/Donohoe had withheld her own emails, Whitney testified
5 in direct contradiction to them. (109 Alfert Decl.) While ESM/Donohoe withheld the Districts
6 referral of J.L. to SARB, defense expert Pamela Mills, Ph.D. claimed that J.L.s level of absences
7 and the times that he was tardy did not rise to the level that he would have been referred to
8 SARB (Ex. KK to Alfert Decl., Excerpt of report of Defense Expert Pamela Mills, Ph.D.)
9 8. 30(b)6 witness George Loftis testified falsely and in contradiction to the

evidence withheld by ESM/Donohoe.
10
Loftis was designated as the 30(b)(6) witness regarding J.L.s Behavior Support Plan (BSP)
11
and testified falsely and in contradiction to the evidence withheld by ESM/Donohoe. (110-114
12
Alfert Decl.) At deposition, Loftis testified falsely that J.L.s Behavior Support Plan from
13
elementary school was never put into effect, that he never discussed J.L. with Manke, he
14
never discussed J.L. with Harrell, that while J.L. was at AMS no one ever came to him about
15
J.L.s behaviors, that while J.L. was at AMS no one ever discussed with him whether JL may
16
need some special services, that he did not know whether J.L.s behavior improved at AMS
17
and that at Pioneer J.L. was not a Tier III student. (Ex. TT to Alfert Decl., Loftis Depo 61:21-
18
62:1, 78:8-10, 80:12-14, 80:18-81:2, 81:18-21, 84:9-12, 102:16-19)
19
Confident that ESM/Donohoe had withheld all of his own emails, Loftis testified in direct
20
contradiction to them. (112 Alfert Decl.) ESM/Donohoe withheld the evidence documenting that
21
AMS did contact Loftis about J.L.s misconduct and behaviors almost immediately after he started
22
at AMS, that Loftis was told by counselor Harrell that J.L.s behaviors escalated and worsened at
23
AMS and Loftis was a part of multiple discussions with Harrell, Manke and Dailey about different
24
psychiatric disorders which bay be the cause of J.L.s misconduct as well as J.L.s need for
25
medication. (113 Alfert Decl.) ESM/Donohoe also withheld emails showing that when J.L. was
26 in seventh grade, Loftis made a recommendation to AMS that they should establish a Behavior
27
3
28 Habitual truancy is one of the diagnostic criteria for diagnosing a conduct disorder in a child.
19
1 Support Plan for J.L. and Loftisemail telling Harrell that J.L. required outsidecounseling but
2 may not have insurance to pay for that and remarking family is pretty ghetto by the way. So, the
3 apple does not .(Ex. FF to Alfert Decl., BUSD 061883-61884). ESM/Donohoe also withheld
4 the October, 2010 District email identifying J.L. as Tier III(Ex. CC to Alfert Decl., BUSD
5 22201) All of these emails were in ESM/Donohoes possession at least as early as November 21,
6 2015 but were withheld in violation of multiple court orders and the 30(b)6 witnesses testified in
7 contradiction to them. (110-114 Alfert Decl.)
8 The concerted testimony of the 30(b) witnesses, defendants Manke, Dailey and Whitney, and
9 other District witnesses, jointly concealed the communications in emails exchanged among each
10 other discussing J.L.s severe behavior disorders, his bullying and harassment at AMS, the clinical
11 causes of his behaviors and his need for medication, counseling and a new BSP. (115 Alfert
12 Decl.) The boldness of defendantsobviously false testimony can only be explained by the
13 witnessesknowledge that their own emails had been withheld from plaintiffs by ESM/Donohoe.
14 The effect of ESM/Donohoe withholding emails sent and received by the defendants and other
15 district witnesses infected every deposition taken in the case as all depositions of District
16 employees took place prior to the production of any of the withheld emails. ESM/Donohoes
17 conduct prevented M.B. from eliciting facts through the depositions of District employees which
18 would support M.B.s claims. (116 Alfert Decl.) Accordingly, M.B. should recover the costs and
19 attorney time expended in connection with the depositions of District witnesses.
20 VI. BASED ON THE MISCONDUCT OF ESM/DONOHOE, PLAINTIFF M.B. IS

ENTITLED TO RECOVER COSTS AND ATTORNEYSFEES FOR PREPARING
21 MOTIONS TO COMPEL AND OPPOSITIONS TO SUMMARY JUDGMENT MOTIONS
22 Plaintiff M.B. was forced to file a motion to reopen discovery and bring multiple motions to
23 compel production of documents after it was determined that ESM/Donohoe had concealed
24 evidence and was withholding key emails. (117 Alfert Decl.)
25 While concealing critical evidence, ESM/Donohoe filed a motion for summary judgement
26 motion asserting plaintiff M.B. had no evidence to support her allegations. (51-59, 118-120 Alfert
27 Decl.) On Aug. 26, 2016, ESM/Donohoe filed a Reply Memorandum in support of their Motion for
28 Summary Judgment which contended J.L. never exhibited sexualized behavior towards other
20
1 children, and there were no reports of J.L. picking on other children.(Ex. Q to Alfert Decl., Doc
2 100 p. 7:16-17). It was not until January, 2017 that ESM/Donohoe produced the Districts
3 documents detailing J.L. prior sexualized aggressive behavior, threats, fighting and harassment of
4 students at the Districts elementary school. (Ex. UU to Alfert Decl. Educators Handbook
5 documents produced as BUSD 036443-36444, 36447, 36449) At the time ESM/Donohoe filed this
6 motion, they were withholding emails from district employees to Defendants Dailey, Manke and
7 Whitney reporting J.L.s bullying and threats of violence toward other AMS students (120 Alfert
8 Decl., and Ex. EE and DD to Alfert Decl., BUSD 52404-52405, BUSD 5875-5877). At the time
9 ESM/Donohoe filed their summary judgment and reply briefs they were also withholding emails
10 they had in their possession since at least Feb. 2016, from a parent and a teacher to defendants
11 Dailey, Whitney and Manke reporting J.L.s classroom takeover during his seventh grade year at
12 AMS when J.L. entered a sixth grade classroom, stood on tables, threatened and harassed students
13 and a substitute teacher, and refused to leave. (Ex. HH to Alfert Decl., BUSD 50060-50061).
14 ESM/Donohoe asserted it the Reply brief filed Aug 26, 2016 that plaintiff had no evidence
15 the District had prior, actual knowledge of any sexting incident prior to the police investigation in
16 March 2014. (Ex. Q to Alfert Decl., Doc. 100: 10:1-2) However, in Jan, 2017 ESM/Donohoe
17 produced documents proving defendant Dailey had investigated and documented a different
18 sexting incident at AMS before M.B. came forward. (Ex. II to Alfert Decl. BUSD 021024)
19 Plaintiff M.B. was forced to oppose Defendantsmotion for summary judgment without
20 critical evidence that ESM/Donohoe intentionally withheld. Plaintiff M.B. was required to file
21 multiple supplemental oppositions because of ESM/Donohoes piecemeal production of withheld
22 evidence4. (120,121 Alfert Decl.) Plaintiff M.B. was entitled to the evidence which directly
23 supported her claims which was concealed and withheld by ESM/Donohoe and this evidence
24 should have been available to plaintiff at the time of Plaintiffs original opposition to the motion
25
4
In Brennon B. v. West Contra Costa Unified School Dist. (Contra Costa Sup. Ct. No. MSC13-
26 01676), a Title IX case alleging the sexual assault of minor plaintiff by another student inside the
school bathroom, ESM was sanctioned $20,000 in March, 2015 while Burke was pending, for
27 discovery abuse including withholding documents plaintiff was entitled to and producing
documents in a piecemeal fashion. (Exs. VV and WW to Alfert Decl., Declaration of Plaintiff
28 Counsel Micha Liberty filed in Brennan and March 12, 2015 Order)
21
1 for summary judgment. Because ESM/Donohoe brought the motion for summary judgment in bad
2 faith while concealing evidence in their possession, ESM/Donohoe should pay the attorneysfees
3 incurred by M.B. in connection with opposing the motions for summary judgment.
4 Plaintiff M.B. is entitled to recover the costs for the expert declarations of Drs. Ponton and
5 Dragan which were obtained to support plaintiffs second supplemental opposition to the motions
6 for summary judgement which was made necessary by the piecemeal partial disclosure of withheld
7 documents which should have been available to the experts at the time of plaintiffs original
8 opposition. The withheld documents required plaintiff M.B. to incur duplicative expert costs in
9 order to oppose the motion for summary judgment filed by EMS/Donohoe. (127 Alfert Decl.)
10 Plaintiff M.B. should recover from ESM/Donohoe attorney fees in connection with
11 attendance at four settlement conferences which were conducted without the benefit of the key
12 documentary evidence being intentionally withheld by ESM/Donohoe. (128 Alfert Decl.) Had
13 ESM/Donohoe complied with its discovery obligations and produced the withheld evidence at the
14 outset, the case would not have required five settlement conferences to resolve. (129 Alfert Decl.)
15 The attorney time incurred by M.B. on multiple unproductive sessions was a direct result of the
16 misconduct of ESM/Donohoe and the Court should order ESM/Donohoe to pay these fees.
17 Plaintiff M.B. produced Edward Dragan for deposition on March 21, 2017 in response to
18 the notice of deposition served by ESM/Donohoe. The deposition proceeded without plaintiffs
19 consultant Dr. Dragan having critical evidence that ESM/Donohoe intentionally withheld in
20 violation of multiple court orders. (130 Alfert Decl.) The testimony of Dr. Dragan was based on
21 an incomplete record of evidence based on ESM/Donohoes intentional misconduct and M.B.
22 expended additional costs and incurred additional attorney fees as a direct result of the misconduct
23 of ESM/Donohoe. Accordingly, the Court should order ESM/Donohoe to pay the associated costs
24 and fees. Plaintiff M.B. is entitled to fees in connection with the filing of this motion. Keithley v.
25 Homestore.com, Inc., No. C-03-04447 SI (EDL), 2009 WL 55953, at *6 (N.D. Cal. Jan. 7, 2009)
26 VII. LEGAL STANDARD
27 This Court is well equipped to award appropriate relief to remedy the Defendantsabuse of
28
22
1 the litigation process. Under FRCP 37(b)(2), a court may award sanctions, including reasonable
2 expenses caused by failure to comply with discovery obligations or discovery orders. Fjelstad v.
3 American Honda Motor Co., Inc., 762 F.2d 1334, 1338 (9th Cir.1985) The lack of bad faith does
4 not immunize a party or its attorney from sanctions, although a finding of good or bad faith may be
5 a consideration in determining whether imposition of sanctions would be unjust, and the severity of
6 the sanctions.Keithley v. Home Store.com, Inc., 2008 WL 3833384, at *23 (N.D. Cal.
7 2008)(Laporte, J.)(citation omitted)
8 FRCP 26(g) requires attorneys who sign a discovery response to certify that it is complete
9 and correct as of the time it is madeand permits a court to impose an appropriate sanction on the
10 signer sanctions which may include an order to pay the reasonable expenses, including attorney's
11 fees, caused by the violation. Oregon RSA No. 6, Inc. v. Castle Rock Cellular of Oregon Ltd.
12 P'ship, 76 F.3d 1003, 100708 (9th Cir. 1996)(defendants attorney falsely claimed that document
13 sought in discovery was confidential)
14 28 USC 1927 authorizes an award of costs as against an attorney who multiplies the
15 proceedings in any case unreasonably and vexatiouslyincluding the excess costs, expenses, and
16 attorneys' fees reasonably incurred because of such conduct. Resolution Trust Corp. v. Dabney,
17 73 F3d 262, 266 (10th Cir. 1995)(sanctions awarded for improperly directing a witness not to
18 answer deposition questions).
19 Finally, under its inherent power to control the judicial process, the Court may enter
20 sanctions for bad faithconduct in litigation. See Chambers v. NACSO, Inc., 501 U.S. 32, 45-46,
21 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (recognizing the inherent power of the courts to impose
22 appropriate sanctions where conduct disrupts the judicial process) The court's inherent powers are
23 governed not by rule or statute but by the control necessarily vested in courts to manage their own
24 affairs so as to achieve the orderly and expeditious disposition of cases.Id., 501 US at 43, 111
S.Ct. at 2132 (internal quotes omitted)
25
Recently, the Supreme Court approved the award of sanctions against a tire company that
26
had withheld evidence of internal test data that showed the tires overheated at high speed.
27
Goodyear Tire & Rubber Co. v. Haeger, ___ U.S. ___, 137 S. Ct. 1178, 118788, 197 L. Ed. 2d
28
23
1 585 (2017). There, the plaintiff moved for sanctions when it discovered the suppressed evidence
2 after it had settled its claims against the company. The Court held that the inherent power of
3 federal courts includes the right to [instruct] a party that has acted in bad faith to reimburse legal
4 fees and costs incurred by the other side. Id. 137 S. Ct. at 1186.
5 In determining the costs incurred by the misconduct, the sanctioning court need not, and
6 indeed should not, become green-eyeshade accountants(or whatever the contemporary equivalent
7 is). Id., 137 S.Ct. at 1187 (quoting Fox v. Vice, 563 U.S. 826, 836, 131 S.Ct. 2205, 180 L.Ed.2d
8 45. The Court directed that:
9 The essential goal in shifting fees is to do rough justice, not to

achieve auditing perfection. Accordingly, a district court may take
10 into account [its] overall sense of a suit, and may use estimates in
calculating and allocating an attorney's time. The court may decide,
11 for example, that all (or a set percentage) of a particular category of
expenses say, for expert discovery were incurred solely because
12 of a litigant's bad-faith conduct. And such judgments, in light of the
trial court's superior understanding of the litigation, are entitled to
13 substantial deference on appeal.
14 Ibid. (internal quotation marks and citations omitted)
15 If the misconduct is serious enough, this standard permits a trial court to shift all of a
16 party's fees, from either the start or some midpoint of a suit, in one fell swoop. Ibid. For
17 instance,if a court finds that a lawsuit, absent litigation misconduct, would have settled at a
18 specific time for example, when a party was legally required to disclose evidence fatal to its
19 position then the court may grant all fees incurred from that moment on.Id., 137 S.Ct. at 1188.
20 The severity of the misconduct and its effect on this entire litigation warrants the award of costs
21 and attorneysfees Plaintiff M.B. has requested.
22 VIII. CONCLUSION
23 The repeated discovery misconduct by ESM/Donohoe caused plaintiff M.B. to incur
24 substantial additional case costs, consumed this Courts time, required M.B.s attorneys to expend
25 significant additional time to identify and obtain concealed evidence through multiple court orders
26
and resulted in substantial expenditures of judicial resources and significant delays in the case. All
27
of the depositions in the case were tainted. Plaintiff was required to file four motions to compel
28
24
1 and/or enforce prior court orders. As set forth in detail above, ESM/Donohoe willfully violated the
2 first three Court Orders prior to the court-ordered Waiver Production in August, 2017. Plaintiff
3
M.B. was required to file three separate oppositions to defendantsmotions for summary judgment
4
and plaintiffsexperts were required to write supplemental declarations in support of the
5
oppositions because ESM/Donohoe continued to intentionally withhold documents in violation of
6
court orders. (133 Alfert Decl.) ESM/Donohoe failed to participate in good faith at four
7
8 mandatory settlement conferences because they were withholding key evidence which M.B. was
9 entitled to and the case did not settle until the fifth settlement conference, after the court-ordered
10 Waiver Production in Aug, 2017. During the settlement conferences, ESM/Donohoe continued to
11
withhold key evidence in violation of prior court orders. (134 Alfert Decl.)
12
The discovery misconduct in this case warrants an award to plaintiff M.B. in the amount of
13
the total additional costs incurred and additional attorney time expended as a direct result of
14
ESM/Donohoes intentional discovery misconduct. (135 Alfert Decl.)
15
Plaintiff M.B. is entitled to two thirds of any costs and fees award by this Court. For all of
16
the foregoing reasons, Plaintiff M.B. respectfully request that this Court order that Plaintiff M.B.
17
recover $156,724.10 in costs and $ 382,142.50 in fees from ESM/Donohoe. Such an award is
18
clearly reasonable given the severity of the misconduct and its consequences on this litigation.
19
Counsel for Plaintiff met and conferred with ESM prior to filing this motion ( 140-144
20
Alfert Decl.)
21
Dated: November 3, 2017 LAW OFFICES OF PETER ALFERT, PC
22
23
By: /s/ Peter W. Alfert
24 PETER W. ALFERT
25
26
27
28
25

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Case 3:15-cv-00286-EDL Document 239 Filed 11/03/17 Page 1 of 29

1 PETER W. ALFERT, SBN 83139

8 Attorneys for PLAINTIFFS

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

11 NATALIE BURKE and M.B., a minor by and No. 3:15-cv-00286 EDL

PLAINTIFFSMOTION FOR SANCTIONS 3:15-cv-00286 EDL

5 A. WAIVER PRODUCTION REVEALED MISCONDUCT BY

9 2. ESM/DONOHOES REPRESENTATIONS THAT THEY HAD NO

12 3. ESM/DONOHOES REPRESENTATIONS CONCERNING WHEN

27 D. IF ESM/DONOHOE HAD NOT CONCEALED EVIDENCE, THE

1 FALSELY AS TO MATTERS WITHIN THEIR PERSONAL

11 VII. LEGAL STANDARD ...................................................................................................... 22

12 VIII. CONCLUSION ................................................................................................................ 24

5 Chambers v. NACSO, Inc.

11 Keithley v. Homestore.com, Inc.

14 Resolution Trust Corp. v. Dabney

5 directly impacted by ESM/Donohoes discovery misconduct and deliberate concealment of critical

6 evidence in violation of multiple court orders. ESM/Donohoe made intentional

9 withheld since November 21, 2015.

10 ESM/Donohoes misconduct was a calculated attempt to gain a prejudicial advantage over

3 On December 8, 2015, ESM/Donohoe produced what is now known to be only selected

4 documents from J.L.s student file. (21 Alfert Decl.)

13 On July 6, 2016, the Court issued an Order Granting PlaintiffsMotion to Reopen

21 to Alfert Decl., Doc. 204-8)

26 that I or my client is doing so.(Ex. K to Alfert Decl., Doc 204-8 at p. 2)

3 and in contradiction to the documents withheld by ESM/Donohoe in violation of court orders. (

4 24-28 Alfert Declaration, hereinafter Alfert Decl)

6 Defendants Motion for Summary Judgment. (Doc. 97)

18 31, 2016 email exchange with Donohoe)

22 On September 7, 2016, the Court Granted PlaintiffsMotion to Compel and Ordered

27 (See 138 to Alfert Decl.)

15 DefendantsMotion for Summary Judgment. (Doc. 200)

21 the attorney-client privilege had been waived as to all non-core attorney-client

22 communications and ordered production by August 10, 2017. (Doc. 229)

2 III. EMAILS PRODUCED AUGUST 10, 2017 PURSUANT TO COURTS ORDER RE

8 2. ESM/Donohoes representations that they had no documents to produce in

18 (Doc. 35 and Doc. 80).

19 a. February 18, 2016 Deposition of Defendant Dailey

3 b. August 4, 2016 Court-Ordered Deposition of Defendant Dailey

15 records already in their possession. ( 16-22, 26-32, 74-79 Alfert Decl.)

16 3. ESM/Donohoes representations concerning when they learned that emails were

6 retrievable. (Ex. V to Alfert Decl., BUSD 074783)

11 ( 38-42 to Alfert Decl.)

12 B. Waiver Production Revealed New Evidence and Facts Previously Unknown to

5 BUSDs Private Investigator verified J.L.s residency falsificationand advised defendants

7 Friday.(Ex. Y to Alfert Decl., BUSD 52250, 052251)

11 produced in the August, 2017 Waiver Production. ( 43-58 Alfert Decl.)

12 5. ESM/Donohoe withheld M.B. emails in their possession which document

21 threatened and evidence of deliberate indifference in not responding to a widespread bullying

13 role-model studenthad been ongoinghad escalatedand definitely needs to be addressed.

14 (Ex. E to Alfert Decl., BUSD036764-036766) Another withheld email provides evidence of

15 defendantsdeliberate indifference to M.B.s bullying and harassment and complains of the

22 Decl., BUSD 036781-36783)

4 2017 Waiver Production. ( 52- 62 Alfert Decl.)

5 IV. VIOLATIONS OF COURT ORDERS

6 ESM/Donohoe engaged in a pattern of misconduct in this case involving multiple repeated

16 the evidence contained in their own withheld emails.

17 Courts November 6, 2015 Order Document 35