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Byard v. City & County of San Francisco

United States District Court, N.D. California

April 6, 2017

ALAN BYARD, et al., Plaintiffs,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          ORDER REGARDING PLAINTIFFS' INSCRUTABLE RECORD ON SUMMARY JUDGMENT

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

         Defendants 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 response” (ibid.).

         On 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).

         On 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).

         The 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 an extension.

         He then 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 them.

         In 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, and unauthenticated.

         Plaintiffs' 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.

         Plaintiffs' 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).

         Upon 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).

         Here, 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 evidence.

         Attorney 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.

         The 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 ...


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