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Welp, we have some news —

To recap – on March 30th, I filed a notice informing the bar judge that Jim Lee failed to comply with his disclosure obligations. Here’s that notice:

• Gingras Notice of State Bar’s Failure To Comply With Disclosure Rules

Yesterday, April 1st, Jim Lee filed something which is sort of strange. Rather than responding to my thing, he asked the judge to tell him what, if anything, he should do in response to my notice. Here’s Jim’s thing –

• State Bar’s Request Re: Gingras Notice

In fairness to Jim, the rules are a little confusing, so I see his point.

The rule I am following is Ariz. Supreme Court Rule 58(f)(3) which says this (it’s a bit long but I will include the full text for completeness):

Sanctions for failure to make disclosure or discovery. Following a good faith effort to resolve a discovery issue, either party may file a notice of failure to comply with discovery rules, which shall include a statement that an attempt was made to resolve the issue. A hearing, which may be telephonic, shall be held within five (5) days of the date the notice is filed. Evidence of compliance and non-compliance may be produced at the hearing. The presiding disciplinary judge shall enter appropriate orders at the conclusion of the hearing, which are limited to the sanctions set forth in subsections (A) and (B) of this rule.

(A) Willful violation of the disclosure or discovery rules. Evidence that is not disclosed as required by these rules shall not be admitted at hearing by the non-compliant party if the presiding disciplinary judge concludes that non-compliance was willful. In making findings of fact about the allegations of misconduct, the presiding disciplinary judge shall conclude that responses to specific interrogatories and requests for admissions and production would have been adverse to the non-compliant party.

(B) Other violations of the disclosure or discovery rules. The presiding disciplinary judge may utilize any of the following sanctions for non-willful violations of the disclosure or discovery rules:

(i) An order refusing to allow the non-compliant party to support or oppose designated allegations, claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(ii) An order striking out pleadings or parts thereof, or staying further proceedings until the disclosure or discovery rules or presiding disciplinary judge order is obeyed, or dismissing designated allegations in the complaint or defenses thereto, or rendering a judgment by default against the non-compliant party.

So if you look at Rule 58(f)(3), it provides for a NOTICE to be filed, not a MOTION. Normally, when a party files a motion, the other side files a response, then the moving party files a reply.

Rule 58(f)(3) doesn’t follow that usual process, and like I said before, it’s clearly set up to treat these matters like an emergency (by requiring the court to set a hearing within 5 days). So, I think it was fair for Jim Lee to ask the the judge for some guidance.

Just a few minutes ago, the judge answered Jim’s question:

• Order Setting Telephonic Conference

In this order, the PDJ set a phone conference for Monday afternoon. At first, I thought – hang on, the rule says this hearing MUST be held within 5 days after my notice was filed, and March 30 to April 6 is more than 5 days. Except it’s not – under the rules, when any period is less than 11 days, you don’t count weekends. So we’re good.

Now, what’s going to happen? Well, the text of the rule is pretty clear. First, evidence of compliance and non-compliance can be offered. But that’s kind of perfunctory at this point – my notice IS my evidence of non-compliance, and I will speak about this during the call (verbal testimony IS evidence, for all you law wonks).

I guess that means Jim can also offer evidence of compliance….except none exists. He literally has not told me ANYTHING meaningful about Mata’s testimony, and his last disclosure statement (which was late) seemed to say he wasn’t even sure WHAT Mata was going to say. That’s a textbook violation of the rules.

So if the judge agrees with me and finds a violation, what’s next? Pretty simple: “The presiding disciplinary judge shall enter appropriate orders at the conclusion of the hearing, which are limited to the sanctions set forth in subsections (A) and (B) of this rule.”

So, the judge cannot issue any other sort of order…like, for example, an order that says Jim Lee gets more time to respond. The rule is STRICT — if Jim has not complied with the rules (which he clearly has not), then the court MUST impose a sanction.

If Jim Lee’s failure was “willful”, the sanction is clear: “Evidence that is not disclosed as required by these rules shall not be admitted at hearing by the non-compliant party.”

Here, the “evidence” Jim Lee has failed to disclose is a fair summary of Mata’s testimony. During the meet-and-confer call, I asked Jim to just answer the damn question: “Did you ever talk to Mata about the Planned Parenthood issue, and, if so, what did she say?”

Jim’s response: “I refuse to answer your question.”

OKAY, so that’s a willful violation of the disclosure rules. Hence, there is really only one possible outcome here — the PDJ must issue an order that says Mata can’t testify. She’s out.

I wonder if Jim Lee realizes this is actually BAD for both of us? And arguably, it’s GOOD for Mata….kind of.

It’s bad for Jim, because it means he will automatically lose that part of the case. It’s also bad because he’s kind of guaranteed to get nailed with fees/damages once my anti-SLAPP motion is filed…because without Mata’s testimony, he will lose that part of the case…which is a BIG deal.

Of course, if Mata is excluded as a witness, that means she doesn’t have to turn over the CJC records….yet. That would probably moot my Motion to Compel (which would suck).

But that doesn’t mean she is out of the woods. Not even close.

As I have said before — the truth WILL come out, so if the PDJ says Mata can’t testify, I will then immediately sue the CJC in federal court under this amazing case – Civil Rights Corp. v. LaSalle.

NOTE – I don’t need a law license to represent myself in federal court, so even if Jim Lee yanks my AZ ticket before then, this won’t have any impact on my ability to ask the federal court to FINALLY make the CJC hand over the records it is hiding. And trust me – I didn’t come this far to give up on the 1-yard line. No, no, no — we’re all-in at this point.

P.S. I had a really nice email exchange today with a person who reached out with some questions about law/lawyering, and Laura’s case.  I won’t share the person’s name for privacy reasons, but the email had some unbelievably kind comments which I’ll just share:

I have seen your name regarding Laura Owens case, and I really admire your unwavering loyalty and fierce defense of your clients.

[additional comments]

I can’t express how much I admire your passion and strength in your faith in justice and the letter of the law.

[additional comments]

Know that someone’s looking up to you, trying to comprehend how you make it all seem so easy.

I wrote back (twice) with words of gratitude, appreciation and encouragement.

To my new friend: I meant everything I said in my response, and I really appreciate you taking the time to remind me there ARE nice people out there. I sometimes find that hard to remember, given the shitstorm my life has become.

But I sense the clouds are lifting and blue skies may be just around the corner.