Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[AZlawyer]

BBM.

This is from the Responses to the Request For Production of Documents Set Two:

https://roa.sdcourt.ca.gov/roa/faces...2176274187.pdf

So, this request for phone records is FROM Dina and her attorney, TO the Plaintiffs.

Why exactly is it the responsibility of the Plaintiffs to provide phone records of one of the defendants, TO another of the defendants??

That just sounds beyond absurd to me. As absurd as it would be for DINA to ask the Plaintiffs to provide her with her OWN phone records, lol! Why exactly is it that Dina and her attorney feel it is appropriate in any way for them to try to compel a co-defendant's phone records?

And as far as Jonah's phone records, isn't that more appropriately handled by serving him and his phone carrier with a subpoena?

How is it that Dina and her attorneys suspect that the Plaintiffs even HAVE these records??

This whole line of thought just seems beyond absurd to me. If Dina wants Adam's phone records, she and her attorney should just call up Adam and his attorney and ASK for them. And if they say "no", then subpoena them. I don't understand at all why the plaintiffs are even being asked to do this.

The link didn't work for me. But your description and the snippet you quoted certainly imply that Dina thinks the Zahaus have copies of Adam's and Jonah's phone records. My best guess would be that Dina believes those items were released to the Zahaus by the police. It is perfectly appropriate to ask the opposing party for records that the opposing party, in turn, got from governmental entities or phone companies. Governmental agencies and phone companies can be annoying about complying with subpoenas, whereas opposing parties can pretty easily be made to comply.

However, the requests do suggest that Dina is not super-tight with Adam and Jonah at the moment.

 

[bourne]

The link didn't work for me. But your description and the snippet you quoted certainly imply that Dina thinks the Zahaus have copies of Adam's and Jonah's phone records. My best guess would be that Dina believes those items were released to the Zahaus by the police. It is perfectly appropriate to ask the opposing party for records that the opposing party, in turn, got from governmental entities or phone companies. Governmental agencies and phone companies can be annoying about complying with subpoenas, whereas opposing parties can pretty easily be made to comply.

However, the requests do suggest that Dina is not super-tight with Adam and Jonah at the moment.

BBM. Along with Dina's WDS against Jonah for Max's death and Jonah recently obtaining both an order of protection and seeking damages from Dina for the cost of the WDS, I'd say your statement that Dina is not super-tight with Adam and Jonah is an understatement. Appears evident that Dina is also attempting to throw Adam under the bus for Rebecca's murder since she intentionally omits him out of every defense she has given to the media and even the wording in her motions to court suggests that if Rebecca was murdered, it must have been Adam...I highly doubt Jonah will be providing Dina with an alibi at the hospital during Rebecca's murder, and I believe this rift between Jonah/Adam vs. Dina/Nina will help progress the Zahau's WDS to a full-fledged trial and there will finally be JUSTICE for Rebecca

Re: your answer about the law, this would mean that the Zahaus are allowed to request phone records and whatever documents they believe Dina and Nina and Adam have in their possessions as well, correct? Since this is "discovery" process and what's fair for one party is fair for the opponent also? Except in this case, I think the Zahaus might prefer to ask the phone companies directly as there already was a major discrepancy in time listed on Nina's phone records as to when she texted Rebecca -- by a WHOLE HOUR -- and they were both in the same time zone. The discrepancy suggests to me that Nina tampered with her phone records to distort the times that Tuesday night...To me, a POI in a WDS who tampers with evidence in order to skew facts means this person cannot be trusted and is a liar. I would not trust this person to produce legitimate, unadulterated evidence such as phone records.

 

[AZlawyer]

BBM. Along with Dina's WDS against Jonah for Max's death and Jonah recently obtaining both an order of protection and seeking damages from Dina for the cost of the WDS, I'd say your statement that Dina is not super-tight with Adam and Jonah is an understatement. Appears evident that Dina is also attempting to throw Adam under the bus for Rebecca's murder since she intentionally omits him out of every defense she has given to the media and even the wording in her motions to court suggests that if Rebecca was murdered, it must have been Adam...I highly doubt Jonah will be providing Dina with an alibi at the hospital during Rebecca's murder, and I believe this rift between Jonah/Adam vs. Dina/Nina will help progress the Zahau's WDS to a full-fledged trial and there will finally be JUSTICE for Rebecca

Re: your answer about the law, this would mean that the Zahaus are allowed to request phone records and whatever documents they believe Dina and Nina and Adam have in their possessions as well, correct? Since this is "discovery" process and what's fair for one party is fair for the opponent also? Except in this case, I think the Zahaus might prefer to ask the phone companies directly as there already was a major discrepancy in time listed on Nina's phone records as to when she texted Rebecca -- by a WHOLE HOUR -- and they were both in the same time zone. The discrepancy suggests to me that Nina tampered with her phone records to distort the times that Tuesday night...To me, a POI in a WDS who tampers with evidence in order to skew facts means this person cannot be trusted and is a liar. I would not trust this person to produce legitimate, unadulterated evidence such as phone records.

Sure, the Zs can make the same kind of discovery requests. Often, a party will request documents from the other side and then request the same thing from a third party just to compare the two versions.

 

[bourne]

Sure, the Zs can make the same kind of discovery requests. Often, a party will request documents from the other side and then request the same thing from a third party just to compare the two versions.

Thanks! If the Zahaus find that the phone records from Nina is wholly different from that provided by Nina's phone company, can they request that Nina be brought up on fraud, evidence-tampering and obstruction of justice to Rebecca's wrongful death investigation charges?

 

[AZlawyer]

Thanks! If the Zahaus find that the phone records from Nina is wholly different from that provided by Nina's phone company, can they request that Nina be brought up on fraud, evidence-tampering and obstruction of justice to Rebecca's wrongful death investigation charges?

Altering evidence in a civil case would not constitute any of the things you listed, but it would constitute "spoliation of evidence." A party can be sanctioned for spoliation of evidence--anything from a monetary fine to having certain facts established against her (like whether a certain phone call was made) to having judgment entered against her by default.

 

[bourne]

Thanks AZlawyer. Cool re: spoliation of evidence. Never heard this term before. So a judgment can be entered against Nina if it's found that Nina altered evidence. Does this mean she would have to pay full $10M?

 

[justice be served]

Zahau Amended Complaint posted on docket May 21, 2015:

https://roa.sdcourt.ca.gov/roa/face..._05-21-15_Amended_Complaint_1432745875907.pdf

This probably belongs on this thread.

 

[AZlawyer]

Thanks AZlawyer. Cool re: spoliation of evidence. Never heard this term before. So a judgment can be entered against Nina if it's found that Nina altered evidence. Does this mean she would have to pay full $10M?

That's only one possible sanction, as I mentioned (and it's the harshest possible sanction). But the $10M is just a number thrown out in the Complaint. It doesn't mean anything at all. Damages would still have to be proved.

 

[IQuestion]

That's only one possible sanction, as I mentioned (and it's the harshest possible sanction). But the $10M is just a number thrown out in the Complaint. It doesn't mean anything at all. Damages would still have to be proved.

Morning AZLawyer (BBM & colorized) I remember a wrongful death suit, a man killed in an accident. LE, at the scene REFUSED to take statements from witnesses...I KID YOU NOT! The family of the deceased, hired their own detectives, who tracked down the witnesses who had been ignored by LE.
The jury (was so appalled... my interpretation of their motivation) they awarded the victim's family 10 times more than the amount of the original lawsuit. California is the one state in which I have seen multiple judgments in excess of amounts requested.
(I know, I'm windy) Isn't it possible a jury could/can/would award damages (actual & punitive) in excess of 10 million dollars.
(I know, I know...windy:blushing Lastly, if "you" had a defendant who just couldn't stop bashing the deceased victim, and unable to control their disdain for the family of the deceased...What would you do in order to "keep your client's mouth shut?" 1) Continually ask the client to stop?
2) Make excuses for their behavior? 3) Sever the relationship with the client? or 4)? 5)? 6)? (4, 5 & 6 are available for YOUR additional options....)
Thank you in advance, IQ.

 

[AZlawyer]

Morning AZLawyer (BBM & colorized) I remember a wrongful death suit, a man killed in an accident. LE, at the scene REFUSED to take statements from witnesses...I KID YOU NOT! The family of the deceased, hired their own detectives, who tracked down the witnesses who had been ignored by LE.
The jury (was so appalled... my interpretation of their motivation) they awarded the victim's family 10 times more than the amount of the original lawsuit. California is the one state in which I have seen multiple judgments in excess of amounts requested.
(I know, I'm windy) Isn't it possible a jury could/can/would award damages (actual & punitive) in excess of 10 million dollars.
(I know, I know...windy:blushing Lastly, if "you" had a defendant who just couldn't stop bashing the deceased victim, and unable to control their disdain for the family of the deceased...What would you do in order to "keep your client's mouth shut?" 1) Continually ask the client to stop?
2) Make excuses for their behavior? 3) Sever the relationship with the client? or 4)? 5)? 6)? (4, 5 & 6 are available for YOUR additional options....)
Thank you in advance, IQ.

Sure, the damages could be a lot more or a lot less than 10 million. The number recited in the Complaint, if any, is just completely irrelevant to the calculation.

Generally, if a client insists on "shooting himself in the foot" despite my advice, I resign from the representation.

 

[K_Z]

Altering evidence in a civil case would not constitute any of the things you listed, but it would constitute "spoliation of evidence." A party can be sanctioned for spoliation of evidence--anything from a monetary fine to having certain facts established against her (like whether a certain phone call was made) to having judgment entered against her by default.

Could you comment/ explain the plaintiff's choice to use "conversion" instead of "spoliation of evidence" as a cause of action? Or am I understanding "spoliation" incorrectly, and it is a ruling made by a judge, rather than an allegation by plaintiff? It's all very interesting, but confusing, especially to us laypeople!

The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had "consciousness of guilt" or other motivation to avoid the evidence. Therefore, the fact finder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.

http://en.wikipedia.org/wiki/Spoliation_of_evidence

Thank you!

(Proud student of the AZlawyer School of Law for Laypeople!)

 

[AZlawyer]

Could you comment/ explain the plaintiff's choice to use "conversion" instead of "spoliation of evidence" as a cause of action? Or am I understanding "spoliation" incorrectly, and it is a ruling made by a judge, rather than an allegation by plaintiff? It's all very interesting, but confusing, especially to us laypeople!



http://en.wikipedia.org/wiki/Spoliation_of_evidence

Thank you!

(Proud student of the AZlawyer School of Law for Laypeople!)

Spoliation of evidence is not a cause of action (usually and in most states, although as the snippet you posted notes, there are exceptions). It is a description for something done to evidence that would have been relevant in a civil case. The remedy is not another lawsuit and damages--the remedy is a fine or other penalty issued by the court in the lawsuit that's already going on or about to go on. The penalty might include assuming certain facts to be true for purposes of the trial, or even entering a default judgment on the underlying claim against the wrongdoer. A common example nowadays is the deletion of emails. So it's something you can be punished for in civil court, but not something you can be sued for (again, usually and in most states).

Conversion is theft. This is a cause of action. The remedy is damages. It's something you can be sued for in civil court.

 

[K_Z]

Hello-- a couple questions related to property seized under search warrant 4 years ago.

https://roa.sdcourt.ca.gov/roa/face...Other_and_Supporting_Docume_1437675106288.pdf

1. As we can see from San Diego ROA #211 (47 pg, above), San Diego Sheriff’s Department has retained a substantial amount of personal property that was seized under search warrant back in 2011, when Rebecca Zahau’s death was being investigated. (150 pieces of evidence is repeatedly mentioned, but not all will be personal property, I suppose.) We now know that both Jonah’s and Rebecca’s personal property remains in the evidence storage facility—4 years after the investigations were concluded and no criminal charges filed. (Among the items are Rebecca’s cell phone, computer, and camera, and Jonah’s computer.)

My question is how or why is this permitted? Why does the owner of personal property have to sue the SDSO to have personal property returned more than 4 years later? Is there no ordinary or usual procedure to ensure personal property is returned once a case is closed and no criminal charges are filed? From the SDSO perspective, it’s costly and time consuming (and space consuming) to hold items “forever” in an evidence locker. From the family/ next of kin/ living owner perspective, it’s unacceptable that personal property can be held “forever”, requiring the owners to have to go to great lengths and expense to get their property back (such as filing a lawsuit). I could see the procedure being more difficult when the owner of the property is deceased, but Jonah is alive and well. Why can he not get his computer, and other property back using ordinary procedures?

Can you explain the legal basis for holding/ returning personal property seized in a search warrant, that ultimately is a closed case with no criminal charges? Is there a reasonable and legal explanation for this, 4 years later? Or is this a serious deficit at SDSO in how seized property is handled over the long term?

2. I do see this as an “end run” for Dina to try to get Jonah’s hard drive, and it seems like the court judge thinks so, too. I don’t think Jonah’s computer has a single thing to do with Dina defending herself against the Zahau Wrongful Death lawsuit, but I do see where Dina having Jonah’s computer could be of benefit in her Wrongful Death lawsuit against him. Why would Dina’s attorneys “refuse” to file additional court papers to compel SDSO to release Jonah’s computer? I don’t understand the strategy there. If they really want the computer, why not do what the judge tells them to do? Is there some benefit to having the judge deny their request, after being told how to properly file and amend the request?

Thanks in advance!

 

[AZlawyer]

Hello-- a couple questions related to property seized under search warrant 4 years ago.

https://roa.sdcourt.ca.gov/roa/face...Other_and_Supporting_Docume_1437675106288.pdf

1. As we can see from San Diego ROA #211 (47 pg, above), San Diego Sheriff’s Department has retained a substantial amount of personal property that was seized under search warrant back in 2011, when Rebecca Zahau’s death was being investigated. (150 pieces of evidence is repeatedly mentioned, but not all will be personal property, I suppose.) We now know that both Jonah’s and Rebecca’s personal property remains in the evidence storage facility—4 years after the investigations were concluded and no criminal charges filed. (Among the items are Rebecca’s cell phone, computer, and camera, and Jonah’s computer.)

My question is how or why is this permitted? Why does the owner of personal property have to sue the SDSO to have personal property returned more than 4 years later? Is there no ordinary or usual procedure to ensure personal property is returned once a case is closed and no criminal charges are filed? From the SDSO perspective, it’s costly and time consuming (and space consuming) to hold items “forever” in an evidence locker. From the family/ next of kin/ living owner perspective, it’s unacceptable that personal property can be held “forever”, requiring the owners to have to go to great lengths and expense to get their property back (such as filing a lawsuit). I could see the procedure being more difficult when the owner of the property is deceased, but Jonah is alive and well. Why can he not get his computer, and other property back using ordinary procedures?

Can you explain the legal basis for holding/ returning personal property seized in a search warrant, that ultimately is a closed case with no criminal charges? Is there a reasonable and legal explanation for this, 4 years later? Or is this a serious deficit at SDSO in how seized property is handled over the long term?

2. I do see this as an “end run” for Dina to try to get Jonah’s hard drive, and it seems like the court judge thinks so, too. I don’t think Jonah’s computer has a single thing to do with Dina defending herself against the Zahau Wrongful Death lawsuit, but I do see where Dina having Jonah’s computer could be of benefit in her Wrongful Death lawsuit against him. Why would Dina’s attorneys “refuse” to file additional court papers to compel SDSO to release Jonah’s computer? I don’t understand the strategy there. If they really want the computer, why not do what the judge tells them to do? Is there some benefit to having the judge deny their request, after being told how to properly file and amend the request?

Thanks in advance!

1. There are probably less formal procedures for Jonah to get his stuff back (e.g., asking the agency with prosecutorial authority over the alleged crime to send a letter to the SDSO stating that the evidence is no longer required and may be released). It sounds like he never asked for it until recently, and pretty much nothing happens in a bureaucracy if you don't ask. But from a footnote to his motion, it also sounds like informal efforts didn't work and he's having to get a court order. My best guess is that this was simply because Dina's subpoena was pending and the SDSO didn't think it was OK for it to release the evidence under that circumstance.

2. First, the computer might be relevant to both lawsuits. For example, if Rebecca used it, it might show that she was Googling "how to throw yourself off a balcony while tied in knots." Second, IIRC the "additional papers" were to comply with a statute regarding seeking personal consumer information, and Dina's attorneys decided that they wanted to make the argument that the statute didn't apply. (Presumably, there are parts of the statute besides the mere filing of papers that they don't like--e.g., a limitation on the information that they can obtain.) If they filed the papers, they might give up the right to say that they didn't need to comply with that statute.

 

[bourne]

AZLawyer, are we able to get hold of depositions e.g., via FOIA already completed from the WDS? E.g., Adam's deposition? I'm sure many of us would like to read the depo in its entirety.

 

[LuckyLucy2]

AZLawyer, could you weigh in on the hypothetical deposition questions that are being propsed on the other thread, and give us your opinion on whether they would even be allowed?

Could you also give us some insight into how the process works and how and by whom the questions that are asked are decided? Do each side's attorney get to "approve" the questions? Does the Judge have any input into what questions they are or are not allowed to ask?

Thank you!

 

[K_Z]

AZLawyer, could you weigh in on the hypothetical deposition questions that are being propsed on the other thread, and give us your opinion on whether they would even be allowed?

Could you also give us some insight into how the process works and how and by whom the questions that are asked are decided? Do each side's attorney get to "approve" the questions? Does the Judge have any input into what questions they are or are not allowed to ask?

Thank you!

AZLawyer responded to these kinds of questions about depositions, in the other thread. (Thanks AZL!) Here's the post:

http://www.websleuths.com/forums/sh...-2013-in-California-3&p=11987014#post11987014

 

[AZlawyer]

AZLawyer, are we able to get hold of depositions e.g., via FOIA already completed from the WDS? E.g., Adam's deposition? I'm sure many of us would like to read the depo in its entirety.

No. Depositions are not public record unless and until they are filed with the court for some reason. Often, portions of depositions are filed as exhibits to a motion or similar document. Rarely, full depositions are filed this way as well. Very often, full depositions are filed with the court when trial is about to start. If there is a settlement or the case is resolved on motion, the public may never get to see the depositions.

Sometimes, unethical court reporters will sell a copy of the deposition as well lol.

 

[K_Z]

Hello AZLawyer,

Dina’s attorneys in the Zahau state WDS have filed a subpoena to San Diego Sheriff’s office to obtain a “batch” of held-over evidence from the investigation of Rebecca’s death back in 2011—IIRC, there is about 150 pieces of evidence in the batch of evidence requested by Dina’s subpoena.

One of those pieces of evidence is a computer belonging to Jonah, that was seized from the mansion in Rebecca’s death investigation back in 2011. On Sept 4, there is a hearing to determine the outcome of Jonah’s request to quash that subpoena.

If Jonah’s request to quash that subpoena is successful/ granted, what happens next to both his computer, as well as the other 149-ish pieces of evidence still held by SDSO? Does Jonah’s request to quash “represent” the other 149 pieces of held evidence as well, or only his one computer? For example, will DS and her attorneys get to have the “other 149” pieces of evidence, or do they have to do something specific to request each individual piece if the request to quash is granted?

Am I correct in assuming that if the request to quash the SDSO subpoena is NOT granted, SDSO will be compelled to produce everything requested in the 150 item “batch” to Dina and her attorneys?

And if Dina successfully receives Jonah’s computer through motions within this lawsuit, can she use anything she finds on it as evidence in her Maricopa County Wrongful Death Lawsuit against Jonah?

Can you walk us through what is being requested, and the subsequent situation, if the request to quash the subpoena is granted?

Thanks very much for your insight into this rather complicated set of motions.

 

[AZlawyer]

Hello AZLawyer,

Dina’s attorneys in the Zahau state WDS have filed a subpoena to San Diego Sheriff’s office to obtain a “batch” of held-over evidence from the investigation of Rebecca’s death back in 2011—IIRC, there is about 150 pieces of evidence in the batch of evidence requested by Dina’s subpoena.

One of those pieces of evidence is a computer belonging to Jonah, that was seized from the mansion in Rebecca’s death investigation back in 2011. On Sept 4, there is a hearing to determine the outcome of Jonah’s request to quash that subpoena.

If Jonah’s request to quash that subpoena is successful/ granted, what happens next to both his computer, as well as the other 149-ish pieces of evidence still held by SDSO? Does Jonah’s request to quash “represent” the other 149 pieces of held evidence as well, or only his one computer? For example, will DS and her attorneys get to have the “other 149” pieces of evidence, or do they have to do something specific to request each individual piece if the request to quash is granted?

Am I correct in assuming that if the request to quash the SDSO subpoena is NOT granted, SDSO will be compelled to produce everything requested in the 150 item “batch” to Dina and her attorneys?

And if Dina successfully receives Jonah’s computer through motions within this lawsuit, can she use anything she finds on it as evidence in her Maricopa County Wrongful Death Lawsuit against Jonah?

Can you walk us through what is being requested, and the subsequent situation, if the request to quash the subpoena is granted?

Thanks very much for your insight into this rather complicated set of motions.

I believe JS asked to quash and/or limit the subpoena, but really only discussed the computer in his motion. IMO he did not present grounds to quash the whole thing, and the judge will not do so. So they should be allowed to look at the other 149 items.

Also, Dina's attorneys have made clear that, "for now" anyway, they just want to look at the physical computer, not to actually power it up and copy the data. Odd, but OK.... So I think they will be allowed to do that when they look at the other 149 items.

Ultimately, Dina should be able to get some of the information from the computer, but I think it is unlikely that she will be allowed to copy the whole thing. She will probably need to specify what she wants and may have to rely on JS to find and produce those things. Alternatively, the judge might agree to a procedure whereby a neutral third party locates and produces the requested information from the computer.

If she does find anything that relates to her WD lawsuit against JS, she should be able to use it, yes.