The judge appeared to be beyond frustrated that this has drug on a year now, and as many of you have pointed out he is ever mindful of removing appeal issues.
Much like he has told the defense at times, "You can ask for it...it doesn't mean you are going to get it", unfortunately he told Mr. Nejame, go head and file your bad faith motion, ( my take on it, because of the sequence of how he said he was ruling now, the TES motion would be after the fact, and therefore be purely perfunctory, not at all a part of his decision making on this matter).
I wish that weren't what happened. The thing I know, judging by everything else he has done in the case up until now, is he is very careful, he does not mis-speak, when he says something he means precisely what he said, verbatim.
We do know that the defense has acted in bad faith. That will be easily proved in the hearing for the reasons we have set out in this thread, many times. Thew blew off the judge's order for eight months. We knew they understood the order by the mere fact that they indeed made an appointment to come to review the documents, ( they just never rescheduled after they canceled ). So, they disregarded the order, and then intended to defy it by setting up appointments for the document copying company ( The Presentation Group ) to go to copy the documents. Meanwhile they have filed frivolous motion after motion wasting the court's time, and costing TES additional legal work. Indeed the motion they filed regarding the reporter ( they claimed Mr. nejame allowed the reporter to review all the docs ) was blatantly bad faith as the reporter himself had called Mr. Baez to clarify for him that the reporter NEVER was given access to anything that wasn't already released in discovery. Even so, in bad faith ( knowing it was a lie ) Mr. Baez forged ahead with the public accusations against TES and Mr. Nejame. We know, I have been outraged about it enough to post the poof several times, that three times the defense lied to the court and claimed a ethical violation on the part of Mr. Nejame, that he has a conflict of interest from once having represented mom and pop at one time. All three times Brad Conway notified the court that is NOT true, there is no conflict, indeed he wanted it on the record that if there were any imagined conflict, his clients ( mom and pop) have instructed him to waive it in open court. The bad faith argument, for goodness sake...I could write the legal argument on my lunch break, the record is replete with examples.
The judge is allowing the record to be complete , so therefore he told Mr. Nejame his discussion will be heard in open court, and it will be part of the permanent file. This judge told us in a recent hearing he likes to sanction folks who step outside of the rules. He may very well sanction ( discipline on the record ) and fine the defense for the expense and unnecessary time TES had had to spend on their nonsense. Not just for this matter, but to put them on notice for their future ethical behavior as officers of the court. How do they say that.....to lay a record? I'll say. Somebody ought to.
However, that is a side matter, it seems to me, to the judge.
He is a big picture type of thinker. The question at the top of his pad is how could this matter be raised on appeal. Therefore, no need to wait until Mr. Nejame gets his day in court over the bad faith, the judge already ORDERED the terms of how the TES documents will be reviewed.
He sees these as effectively two separate matters.
For the next time that these two lawyers make wholly unsubstantiated claims against a fellow attorney in open court, and act in bad faith...he may indeed make them take their public admonishment.
For the sake of this trial, he is going to allow the access to the search documents, all of them, so long as he is the one who approves them being released in discovery.
The two matters are in his mind , mutually exclusive.
Yes, Mr. Nejame is indeed asking him to reconsider his decision based on his arguments. He has every right to do so. I just think, judging only on his past decisions, this is very, VERY unlikely to happen. I am again reminded of what he told the defense when they were in a similar situation..."You can ask, that doesn't mean you are going to get it".
Judge Perry had studied the matter from top to bottom, and was in court that morning to announce his learned decision, not to arrive at it, thus the side bar and ten minute resulting ruling.
That is my take on it.
View attachment response to baez.pdf
View attachment Tes compilation.doc
www.docstoc.com/docs/27552747...al-Docs-Notice
View attachment Mr. Miller interview.pdf Please don't misunderstand, I do not buy into what the defense is doing or has done. The Judge is not fooled by them either, not at all. He is just doing the same thing Judge Strickland did by stepping aside, putting the sanctity of the jury verdict first, that is beyond reproach by appeal efforts. This is not his first rodeo.
This is one of those really dicey situations in which you need to protect the identities of TES volunteers, but also need to make "appeal-proof" decisions. KWIM? 
