United States District Court, N.D. California
ORDER REGARDING PLAINTIFFS' INSCRUTABLE RECORD ON
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
moved for summary judgment on March 7 (Dkt. No. 65). On March
16 an order granted a stipulated request to continue the
deadline for plaintiffs' response from March 21 to March
23 (Dkt. No. 86). Plaintiffs requested this relief (to which
defendants acquiesced) “due to the large number and
complexity of the issues, and because Plaintiffs' counsel
has the flu, with symptoms including fever and
migraines” (Dkt. No. 85). The stipulation provided no
sworn evidence of plaintiffs' counsel's illness, but
it stated “[p]laintiffs assert that granting two extra
days would allow them to prepare a more proper
March 22, plaintiffs sought to enlarge the page limit on
their opposition from twenty-five to thirty pages (Dkt. No.
88). An order enlarged the page limit to twenty-eight pages
(Dkt. No. 89).
March 23, plaintiffs filed their opposition (Dkt. No. 91).
The brief in support was thirty pages long. An amended brief
reduced its length to 28 pages (Dkt. No. 93).
record submitted in support of plaintiffs' opposition was
incomprehensible. Although most declarations in support of a
brief identify and authenticate each exhibit appended
thereto, the declaration of Daniel Bakondi, counsel for
plaintiffs, simply stated, “[a]ttached to this
declaration is the Plaintiff's evidence in opposition
that I was able to submit prior to the deadline to file, as
described in my complaint. There is additional evidence that
I request time to submit” (Dkt. No. 91-1, Bakondi Decl.
¶ 5). Attorney Bakondi explained that he had been sick
and that he had “been unable to complete [his]
Opposition or shorten it as ordered or submit all the
evidence [he] ha[s] due to [his] running out of time”
(id. ¶ 2). He offered no explanation of why the
extension that had already been granted due to his illness
was insufficient. He never filed a formal motion requesting
filed five additional documents. On the Court's
electronic filing system, four were labeled “Exhibit
attach, ” and another was labeled “Exhibit”
(Dkt. Nos. 91-2-91-6). One document was 213 pages long, and
appeared to contain a multitude of different documents. There
was no discernible way to identify where one document ended
and the next began, such as with a cover page at the start of
each document. Worse, there was no way to determine which
document was which. (Some documents had bates stamps or
exhibit stamps from depositions, but those references were
useless.) The other documents appended in docket entry 91
appeared to be individual transcripts, but Attorney
Bakondi's declaration never identified or authenticated
addition to the exhibits submitted with Attorney
Bakondi's declaration was a separate filing, filed at
12:34 a.m. on March 24 (after the deadline), labeled
“Exhibits” (Dkt. No. 92). The primary document in
that docket entry is an unlabeled 710-page document that
included a collection of hundreds of different documents.
Again, there was no discernible way to identify where one
document ended and the next began or which document was
which. The six documents appended to that document entry were
also each simply labeled “Exhibit.” They varied
in length: 1 page, 17 pages, 56 pages, 83 pages, 300 pages,
and 285 pages. As with the other exhibits already discussed,
these additional documents were unlabeled, undifferentiated,
brief exacerbated the issue. Most briefs cite exhibits by
their title, and then identifying either the docket entry and
page number or the exhibit number and the name of the
declarant authenticating the document. Our plaintiffs'
counsel failed to do so. Instead, they simply referred to
documents by some idiosyncratic shorthand without providing a
key. Some examples of citations to the record will suffice:
“Police Commission hearing 10.17.2007” (Pls.'
Amd. Opp. at 14), “Chan's rejections, 25
appl.” (ibid.), “Contoller's
figures, Security Contracts” (id. at 15),
“History” (id. at 17, 21), “Union
Square CBD, Yerba Buena, Castro” (id. at 18),
“3 beats doc, Depos, Decl.” (id. at 21).
To be clear, these citation issues existed in the thirty-page
version of plaintiffs' brief as well as the amended
twenty-eight page version.
counsel did not timely file chambers copy of their massive
and unintelligible record, in violation of Civil Local Rule
5-1(e)(7). An order requested that plaintiffs' counsel
provide chambers copies “organized with tabs
delineating and identifying each separate exhibit”
(Dkt. No. 97). Plaintiffs' counsel lodged chambers copies
and filed a supplemental declaration identifying each exhibit
by the number on the tab separating the documents in the
chambers copies (Dkt. No. 98).
review of that declaration, it became apparent that
plaintiffs' counsel's sloppiness had completely
deprived defendants of any meaningful opportunity to respond
to the factual record, and imposed on the Court the Herculean
task of making sense of the record. “The district court
need not examine the entire file for evidence establishing a
genuine issue of fact, where the evidence is not set forth in
the opposing papers with adequate references so that it could
conveniently be found.” Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).
plaintiffs' counsel has served us reams of purported
evidence, but offered no way to decode the mess. The
supplemental declaration and organized chambers copies
provide some assistance, but there remains no way to
correlate references in plaintiffs' brief to the
documents. Moreover, it does not appear the organized
chambers copies have been provided to defense counsel, so
now, more than one week after they filed their reply, there
is still no way defense counsel could feasibly address the
Bakondi's “illness” can only explain a small
measure of the egregious mess before us (and to that extent,
his failure to request an adequate extension is to blame).
The fault for this problem lies with Attorney Bakondi's
work product, not with the plaintiffs themselves.
Court is mindful that many of our plaintiffs are elderly
(and, indeed, some have deceased), and they deserve their day
in court. But the defendants also have the right to a fair
summary judgment ...