Vexatious Litigation

[Cynthia]

I am very hopeful that the Judges will see and decide appropriately, Lilly. It's pretty straightforward and basic.

So to continue, and put the posted dialog above in context and explain with the pertinent documents so that all can see and understand that...

Pickle and Joy filed this Appeal seeking to get the dismissal of the lawsuit against them either overturned or changed to a dismissal with prejudice against 3ABN, on Dec 3, 2009. The Judge had dismissed it without prejudice, meaning he made no findings whatsoever, as the case hadn't even progressed to a trial of the merits yet, and was as one Judge in the lawsuit put it:" A discovery morass".

"This straight forward case rapidly degenerated into a discovery morass accompanied by a series of ad hominem
attacks on plaintiff [3ABN, and DS] and his counsel and, eventually, on the district judge initially assigned to this case."

In addition to their off base and irrelevant personal attacks and accusations, Pickle and Joy continually tried to argue the merits of their case all throughout the discovery phase which was drug out and prolonged due to only they, themselves. Never appearing to comprehend or acknowledge that it wasn't time to do that. They are still doing the same thing in their Appeal case---> ad hominems, attempting to argue the merits of a dismissed case rather than their reasons for appealing the dismissal of the lawsuit, etc, while refusing to hear what's said by either the opposing attorneys or the Judges in the main case and related ones. It is beyond ridiculous as far as I am concerned, and is exactly the same kind of behavior and actions thing which prevented ASI from being able to help before the lawsuit was even filed, but to continue...

Pickle and Joy's first brief was due on Dec 6, 2010 making 3ABN's reply brief due 30 days later.

So on Nov 15, 2010 Pickle and Joy filed "NOTICE (Designation of Appendix & Issues for Review)" then on the 16th and 17th Pickle began to try to engage 3ABN's attorney in the dialog and arguments quoted above causing the attorney to send the following on the 17th: "APPELLEES’ DESIGNATION OF ADDITIONAL PARTS TO BE INCLUDED IN THE APPENDIX"
That document stated the following:

Pursuant to Federal Rule of Appellate Procedure 30(b)(l), Appellees Three Angels
Broadcasting Network, Inc. and Danny Lee Shelton hereby designate additional parts of
the record to which it wishes to direct the Court’s attention. Pursuant to the cited Rule,
“the Appellant must include the designated parts in the appendix.”

This designation expressly excludes any materials filed in the District Court under
seal or that should have been filed under seal because they were produced under the
Protective Order issued by the District Court in this case.

APPELLEES HEREBY GIVE NOTICE TO APPELLANTS of the requirement
that the inclusion of any material that was filed under seal in the District Court or that has
been designated as subject to the Protective Order issued by the District Court in this case
must be filed under seal with the First Circuit Court of Appeals, and that as to such
material there must be a “specific and timely motion” in compliance with the court’s
rules regarding the filing of sealed materials. See First Circuit Court of Appeals Local
Rule 30.0(g). Failure to adhere to this Rule will result in a motion for sanctions against
the Appellants.

APPELLEES GIVE FURTHER NOTICE TO APPELLANTS that their inclusion
in the Appendix of filings and materials outside the record that are irrelevant to the orders
from which the Appellants appeal is unreasonable and vexatious and may subject them to
an award of costs and other sanctions authorized by First Circuit Court of Appeals Local
Rule 30.00).

On the due date for their appeal brief Pickle and Joy asked for more time to file it which was granted. Their 128 page "Brief" was filed on Dec 13, 2010 - again making 3abn's reply brief due 30 days later. BUT..

Three days later Pickle and Joy filed a "supplemental appendix" along with another brief. This "supplemental brief" and additional appendix were filed under seal. ( meaning they're not available to the public or those outside the case) They were both filed then an 11 page "Motion to file under seal" and a 18 page "Affidavit by Bob Pickle" (which are available publicly) were filed. All of the documents filed doing exactly what Pickle and Joy had been warned NOT to do.

In addition to that, to the best of my knowledge there was no authorization for their filing of a "supplemental brief" as they did. USlegal.com says the following:

Supplemental brief is an additional brief on appeal filed by consent of court or pursuant to rules of court. On occasion, courts may permit or order the parties to file supplemental briefs which call attention to new cases, new legislation, or other intervening matter unavailable at the time of the party's last filing. Generally, an issue or claim may not be asserted for the first time in a supplemental brief. A supplemental brief is not the place to raise additional demands for relief. Appellate courts disapprove of the practice of asserting new issues in reply or supplemental briefs. [Colo. Off-Highway Vehicle Coalition v. United States Forest Serv., 357 F.3d 1130 (10th Cir. Colo. 2004)]. However courts possesses authority to require supplemental briefs from counsel on any issue where confusion or doubt remains. [In re Order of First Dist. Court of Appeal etc., 556 So. 2d 1114 (Fla. 1990)]

Generally, rules do not permit the filing of supplemental briefs without leave of court, but there are some occasions, particularly after a case is orally argued or submitted on the summary calendar, where the court will call for supplemental briefs on particular issues. [USCS Ct App 5th Cir, Loc R 28]

Predictably, 3ABN's Attorney responded by doing exactly what he had informed them first by email and then by Notice that he would. He filed a motion for sanctions against the two outlining the problems with their "vexatious" conduct and actions making this necessary.

It is not hard to comprehend, and as far as I am concerned the duo, (and their little fan club and fellow accusers) are without excuse for continually refusing to hear or understand what the issues and problems really are, and what is really being said, and what has been revealed, and what hasn't. There is no excuse for acting so obtuse and hard headed and arrogant and prideful. No excuse for acting like they know more than anyone else, including the Judges.

( including entire churches, ministry boards, ASI, the IRS, investigating police, DA's, CA state authorities, the EEOC, outside auditors, and actual witnesses - all of who are more educated and aware of all of the facts and were involved whereas these two, NEVER were. Yet they call all liars, sinners and wrong as if they alone know all and can judge the events and people. I have no hesitation in stating that I know that God did not call or appoint them this work and spirit of criticism, condemnation, faultfinding and judgment of things and people, and ministries.)

Simpson has had to adapt to these two by using plain English to explain things in the most elementary level in all of his filings so that they will be understood, and has bent over backwords and been more than patient due to this and their "pro se" status. I am of the opinion, enough is enough. They need sanctions imposed against them. This waste of time and money they are causing for their own donors and for 3ABN and theirs goes far beyond anything reasonable, logical, Christian, or even sane.

But I digress, here's Simpson's 8 page response and motion for sanctions, filed 12/27/10:

Appellees Three Angels Broadcasting Network, Inc. (“3ABN”) and Danny
Lee Shelton (“Appellees”) submit this response to Appellants’ (Defendants below)
Motion to File Under Seal, and ask that the Court reject Appellants’ attempted
filing of (1) “Sealed Exhibits for Supplemental Appendix Pages SE 001-SE 158
Filed Under Seal”; (2) “Affidavit of Robert Pickle Filed in First Cir. Case No. 08-
2457 Filed Under Seal”; and (3) “Sealed Supplemental Brief of Defendants-
Appellants Filed Under Seal.” Appellees further move for an award of sanctions
against Appellants on the authority of 1st Cir. R. 38.0, which authorizes sanctions
for vexatious litigation.

The sealed exhibits that Appellees want to file include (1) exhibits that were
expressly rejected for filing by the district court and are therefore not part of the
district court record; and (2) an affidavit by Robert Pickle that was expressly
rejected by this Court’s order dated December 4, 2009 in the prior appeal of this
case.

These documents are not properly part of the appellate court record because
they were not first made part of the district court record. See Fed. R. App. P. 10(a).
Appellants may be acting pro se, but they have previously been educated by this
Court that such documents “are not properly considered as part of the record in this
appeal.” (See Order dated Dec. 4, 2009). Appellants have nonetheless now filed
thousands of pages of documents with this Court, in paper form and on a CD, that
are not properly part of the appellate record. Further, the proffered exhibits are
completely irrelevant to the issues on appeal.

RESPONSE TO FACT SECTION

Appellants seek to file under seal (a) exhibits that they have previously been
forbidden from filing; (b) Robert Pickle’s affidavit previously filed and rejected by
this Court in the prior appeal; and (c) a supplemental brief addressing the newly
filed exhibits.

A. The New Exhibits.

Appellants have submitted for filing under seal a packet of bound exhibits,
captioned “Sealed Exhibits For Supplemental Appendix Pages SE 001-SE 158.”
Appellants assert that “The exhibits and affidavit were offered to the lower court”
in connection with electronic docket entries 153 and 173. (Defendants’ Motion to
File Under Seal, p. 1). Docket entries 153 and 173 are motions by Defendants in
the district court for leave to file documents under seal. Appellees opposed those
motions on various grounds, primarily relevance. See Doc. 158 and Doc. 174.
Agreeing with Appellees, the district court denied Appellants’ motions. See
Electronic Order by Judge Saylor dated 4/15/2009 (denying the motion at docket
number 153, and stating “The documents do not appear to be relevant and were not
considered by the court in connection with the underlying dispute.”); Doc. 193 at
p. 3 (denying the motion at docket number 173, and stating “The relevance of the
documents is unclear…Furthermore, to the extent that the materials are subject to
the Confidentiality and Protective Order issued by Magistrate Judge Hillman in
this matter on April 17, 2008, they should have been returned to plaintiffs some
time ago.”).

Thus, the district court did not permit the filing of these documents, and this
Court’s scope of review will be limited to reviewing that decision on an abuse of
discretion standard. The documents may not be considered as part of that review.

B. The Pickle Affidavit.

Appellants next seek to file a document captioned “Affidavit of Robert
Pickle Filed in 1st Cir. Case No. 08-2457.” Although appearing to concede that
this document was filed for the first time in the first appeal of this matter,
Appellants confusingly assert that “The exhibits and affidavit were offered to the
lower court.” (Def. Mot. to File Under Seal p. 1). The Pickle affidavit manifestly
was filed in this Court, not the district court.

The Pickle affidavit was part of a motion to enlarge the record on appeal to
include the matters in the affidavit. This Court entered an Order on December 4,
2009, denying the motion. The Court advised that documents not submitted to the
district court prior to the appeal “are not properly considered as part of the record
in this appeal.”

Appellants have now frustrated the order of Judge Saylor by filing in the
Court of Appeals documents that they were expressly forbidden to file in the
district court, and have also frustrated the order of this Court which denied the
Appellants’ motion to enlarge the record on appeal. The first time around,
Appellants understood perfectly well that if they wanted to expand the record on
appeal, they had to file a motion under Fed. R. App. P. 10(e). They did so, and lost
their motion. This time around, they disguised their motion to expand the appellate
record as a motion to file the same documents under seal. They still lose.

ARGUMENT

I. Leave to File the New Exhibits and the Pickle Affidavit Should be
Denied.

“The following items constitute the record on appeal: (1) the original papers
and exhibits filed in the district court; (2) the transcripts of proceedings, if any; and
(3) a certified copy of the docket entries prepared by the district clerk.” (Fed. R.
App. P. 10(a)). “If any difference arises about whether the record truly discloses
what occurred in the district court, the difference must be submitted to and settled
by that court and the record conformed accordingly.” Fed. R. App. P. (10)(e)(1).
The exhibits contained in Appellants’ supplemental appendix were excluded
by order of the district court. The Pickle affidavit was never in the district court
record. Thus, they are not properly part of the record on appeal.

II. Leave to File a Supplemental Brief Under Seal Should be Denied.

“If discussion of confidential material is necessary to support the motion to
seal, that discussion shall be confined to an affidavit or declaration, which may be
filed provisionally under seal.” 1st Cir. R. 11.0(c)(2). “If the court of appeals
denies the movant’s motion to seal, any materials tendered under provisional seal
will be returned to the movant.” Id.

The rules of this Court do not authorize a supplemental brief relating
specifically to exhibits filed under seal. See 1st Cir. R. 28.1 (requiring “a specific
and timely motion” in order to have a brief sealed). Thus, there is no authority for
the Appellants’ supplemental brief and it must be stricken.

Further, Appellants’ word count certificate for their primary brief indicates
its length is 13,982 words -- 18 words shy of the limit. See 1st
Cir. R. 32(7)(B)(limiting principal brief to 14,000 words). The supplemental brief,
except for the first 18 words, puts Appellants over their limit. This provides an
additional basis to reject the supplemental brief.

III. Appellants Should be Sanctioned.

“When any party to a proceeding before this court…files a motion, brief, or
other document that is frivolous or interposed for an improper purpose, such as to
harass or to cause unnecessary delay, or unreasonably or vexatiously increases
litigation costs, the court may, on its own motion, or on motion of a party, impose
appropriate sanctions on the offending party….” 1st Cir. R. 38.0.

In its order entered December 4, 2009, this Court told the Appellants that the
record on appeal would be limited to documents that had been submitted to the
district court before the appeal was filed. Appellants understood this basic tenet of
appellate practice, as evidenced by the fact that they brought a motion to enlarge
the record in their first appeal.

Now, however, they have attempted to circumvent Judge Saylor and this
Court by filing documents that unless rejected, will enlarge the record on appeal.
There is no possibility that Appellants failed to understand that what they were
doing was improper. They were told not to file these documents first by Judge
Saylor, then by this Court, and finally, repeatedly, by the undersigned.(See email
exchanges attached to Affidavit of Robert Pickle [dated 12/3/2010] at Ex. A).
[NOTE: the ones - I, Cindy- already quoted at the beginning of this topic.]

Moreover, instead of asking permission to file the confidential materials,
appellants have already cited to and discussed the existence of these materials in
their appellate brief. Appellants’ conduct in bringing a disguised version of a
motion that this Court had previously denied merits sanctions. Appellants should
be directed to pay Appellees’ reasonable attorneys’ fees related to this motion, in
an amount to be established by affidavit.

CONCLUSION

In summary, Appellees respectfully ask this Court to deny Appellants’
Motion to File Under Seal, and further request they be awarded their attorneys’
fees in connection with this motion.

[Cynthia]

To continue, over on adventtalk. Daryl Fawcett pops in and asks a question and Bob replies..

From: Bob Pickle
Re: Simpson moves for sanctions against Joy and Pickle
« Reply #17 on: January 05, 2011, 08:56:19 PM »

from: Daryl Fawcett on January 05, 2011, 04:52:19 PM
When will this finally end?

It is ridiculous, isn't it?

I agree with Bob, while not understanding how he cannot see his pivotal role and how he is the cause of so much ridiculousness. It becomes more ridiculous all the time in what I am starting to think is a theatre of the absurd...

So after Simpson files the document above? Pickle and Joy respond not just once but twice, and add another Pickle affidavit again. Like their initial motion to file under seal, their arguments are so convoluted, warped and confused it is hard to make heads of tails of them, or to extract them from all the irrelevant ad hominems and unrelated and unsupported accusations they once again throw into the mix. (Like a dog with a bone, refusing to let go, and still trying to justify themselves and argue the merits of a case that never made it that far, and had no valid reason to continue. You can review the reasoning behind 3ABN's decision here if needed: PRESS RELEASE -- 3 Angels Broadcasting Network Drops Lawsuit) But don't take my word for it, see for yourself if you can understand, as Pickle posted their responses to the reply by 3ABN and motion for sanctions here on adventtalk: http://www.adventtalk.com/forums/index. ... l#msg30179

They filed 38 pages.... but what is more absurd to me is that they added a motion for sanctions against 3ABN in their response also. Their reason? They claim that 3ABN's motion against them for their vexatious conduct and litigation is frivolous and harassing, improper,and lacks merit, etc.. although no legal reasons or any legit examples, or documentation supports any of these assertions, or rebuts the merit of 3ABN's motion... Quoting:

Defendants hereby respond to Plaintiffs’ frivolous and harassing motion for
sanctions against Defendants, and, pursuant to 1st Cir. Loc. R. 38.0, 28 U.S.C. §
1927, and the court’s inherent powers, move this Court to sanction Plaintiffs and
their counsel for filing their frivolous, harassing, and otherwise improper response
and motion (“PR”).

Plaintiffs’ filing is frivolous because it obviously lacks merit. It is harassing
because it is part of an ongoing campaign to intimidate Defendants into silence. It
is otherwise improper because it covertly seeks the preclusion of review of issues
on appeal, defies this Court’s December 4, 2009, order, and is part of an ongoing
campaign to abuse the confidentiality order issued in the underlying case.

This isn't going to fly... they are accusing 3ABN of what they themselves have done and are still doing, as usual. IMO they need to learn that things are not obvious or so, just because they claim they are, or don't like what's said. Again, it's past time for the court to say "enough is enough". But, we will see...

Here is Atty Simpsons, as always, much shorter, to the point, relevant, and easy to understand reply. Filed Jan 10, 2011:

INTRODUCTION

Appellees Three Angels Broadcasting Network, Inc. and Danny Lee Shelton
(“Appellees”) submit this Response to Defendants’-Appellants’ Motion for
Sanctions (Doc. 5515545). The underlying motion by Appellants Bob Pickle and
Gailon Joy is at least their fourth attempt to insert these extraneous materials – raw
discovery documents produced under the protective order entered below that were
never used by the district court to decide the issues on appeal – into the record of
this case. The district court denied Appellants permission to file these documents
twice. The district court also ordered – twice – that Appellants return these
documents to Appellees because they had been obtained under the terms of the
protective order, and the case was now concluded save the appeal. Appellants
have flouted the district court’s orders, as they have flouted this Court’s December
4, 2009 order in the first appeal of this case denying them leave to file these very
same documents.

The apparent motive for Appellants’ extraordinary efforts to add these
irrelevant documents to the record is to create a permanent repository of discovery
materials that Appellants have been ordered to return to the Appellees. Appellants
fancy themselves internet “ecclesiastical journalists,” and used their status as
defendants in this litigation to obtain documents for extra-litigation purposes.
Having won a limited right to see these materials, they don’t want to give them up
merely because the lawsuit ended.

Appellees therefore opposed the latest effort by the Appellants to sneak
these documents into the record, and made a request for their attorneys’ fees
because, after three failed attempts, Appellants should have known better than to
try again. Appellants respond that it is the Appellees’ position that is so frivolous
that it merits an award of sanctions. Appellants’ motion for sanctions should be
denied.

REPLY TO FACT SECTION

Appellees demonstrated in their fact section that the exhibits that are subject
to the motion have been rejected for filing twice in the district court and once in
this Court. Appellants respond that 33 pages were previously filed under seal as
part of another exhibit relating to a matter that is not challenged on appeal, but
appear to concede that the rest are not found in the record.

A. Sealed Exhibits 1 – 33.

Appellants originally described all of the exhibits they wished to file under
seal as documents that were “offered to the lower court,” but not actually filed, in
connection with electronic docket entries 153 and 173. (See Defendants’ Motion
to File Under Seal, p. 1). It is a matter of record that the district court denied
Appellants’ motions to file those documents, so they never became part of the
district court record. (See Electronic Order by Judge Saylor dated 4/15/2009 and
Doc. 193).

Now, however, Appellants have changed their tune. They claim that 33
pages (of the thousand-plus pages that they move to file under seal) happened to be
part of an exhibit that was filed under seal with the district court in connection with
a motion. (Brief p. 1). Specifically, they say that Sealed Exhibits 1-33, were filed
in the district court on July 21, 2008 as part of a different filing under seal in the
district court, Docket No. 93. Appellants say that because these 33 pages were
filed in the district court under seal in connection with an order (which is not
challenged on appeal), they ought to be allowed to file the same documents under
seal now.

Upon investigation, Appellants are correct in their assertion that the 33
pages designated as Sealed Exhibits 1-33 were in fact part of a larger exhibit that
was filed under seal in the district court as Doc. 93. Doc. 93 was filed as part of
Appellants’ opposition to a motion that the Appellees’ had filed seeking protection
from Appellants’ abusive discovery requests. (See Doc. 74). The magistrate judge
granted Appellees’ motion and struck Appellants’ discovery requests in their
entirety. (Doc. 106). Appellants did not contest this order below and have not
designated it as part of their appeal; thus, Doc. 93 is not relevant to the appeal and
the 33 pages of it that Appellants wish to file again should not be allowed simply
because they were coincidentally filed in the district court in connection with a
controversy that is no longer live.

B. Sealed Exhibits 34-153, 156-158.

Appellants next offer a set of records that they characterize as pertaining to
“Plaintiffs’ wrongful termination of Trust Services employees who blew the
whistle regarding misconduct…” (Brief p. 2). Deceptive statements like this
contaminate much of the Appellants’ writings. The Court should be aware that the
only evidence in the record regarding the terminated Trust Services employees is
that they filed charges of wrongful termination with California authorities and the
U.S. Equal Employment Opportunity Commission; the charges were investigated
and dismissed for insufficient evidence to believe that wrongdoing had occurred.
(Doc. 123 – Affidavit of Dr. Walt Thompson at ¶ 6). No contrary evidence was
ever offered or received below.

Appellants admit that these documents – Sealed Exhibits 34-153 and 156-
158, were merely proffered to the district court in connection with a motion to file
under seal. They were not actually filed with the district court. (Brief p. 2). Thus,
the Appellants seek in substance to enlarge the appellate record to include 121
pages that are found nowhere else in the district court record.

Having been told several times that they may not file these documents,
Appellants try to re-interpret this Court’s order of December 4, 2009 denying them
leave to supplement the appellate record as instead inviting them to file these
documents. (Brief p. 2). The tortured analysis is based on language in the Court’s
December 4 order indicating that this Court mistakenly believed that the
documents had been “submitted” to the district court after the original Notice of
Appeal, and were therefore not part of the record for the first appeal but would be
part of the record for the second appeal. In fact, the documents were offered but
not filed with the district court because local rules require that leave be sought and
granted prior to filing anything under seal. (U.S. District Court, Dist. of Mass.,
Local Rule 7.2(d)). Thus, in the district court the Appellants did not file the actual
documents themselves, and the dicta indicating that the records would be part of
the record for the second appeal was in error.

Instead of correcting this Court’s misunderstanding that these documents
had already been filed in the district court, Appellants now exploit it. They pretend
that the Court’s order denying them permission to file these documents in the first
appeal is an invitation to file them now because “this Court has already determined
that the documents in question … ‘are part of the record on appeal.’” (Brief p. 3).
This absurd analysis fails to account for the fact that this Court denied leave to
enlarge the record to include these records. Merely saying that these documents
are in the record does not make it so.

C. Sealed Exhibits 154-155, 159.

Appellants appear to concede that Sealed Exhibits 154-155 and the CD
containing more than a thousand pages of raw discovery materials labeled as
Sealed Exhibit 159 have not been previously filed with the district court of this
Court. (Brief p. 3). These documents are also not presently in the record.

D. “The Pickle Affidavit.”

Finally, Appellants concede that the Pickle Affidavit filed in connection with
the motion to file under seal is not found elsewhere in the record, except in
connection with the denied motion made in this Court to file under seal. (Brief p.
3). This document is claimed to be the affidavit that Appellants wanted to file in
the district court to explain the relevancy of the excluded exhibits, but which the
district court denied them leave to file. In other words, it is something outside the
district court record that did not form the basis for the issues now on appeal.

Appellants quote email correspondence with the undersigned in which the
undersigned cautioned them against referring in their public court filings (and
incessant internet chatter) to discovery materials produced under the protective
order. (Brief p. 3). Appellants pretend that this correspondence shows that
Appellees wanted these documents to be filed under seal. In fact, all it shows is
that Appellees wanted Appellants to stop referring publicly to information that was
subject to the protective order.

RESPONSE TO “ADDITIONAL RESPONSE TO PLAINTIFFS’
FACTS AND OTHER RELEVANT FACTS.”

Appellants include a number of additional assertions in their brief beginning
at p. 5, which will be briefly answered.

A. Appellants’ Contention that “Plaintiff’s Counsel Knew SE 1-33 Was
Filed Below.”

First, Appellants assert that the undersigned “knew SE 1-33 was filed
below” and is therefore guilty of “intentionally trying to exclude filed material
from the record on appeal.” (p. 5). This is an exceptionally silly contention on its
face because the record on appeal is determined by Fed. R. App. P. 10, not by
counsel for the parties. Appellants’ contention appears to amount to this: The
undersigned should have figured out on his own that SE 1-33 were the same pages
that were filed in the sealed exhibit designated as Doc. 93, even though Appellants
were apparently unaware of that fact and characterized these pages as documents
that the district court had excluded from the district court record.

Appellants do not explain why it should have been obvious that SE 1-33 was
already in the district court record. Their moving brief did not mention that fact,
and in fact stated that the records were part of exhibits that had been rejected for
filing. Further, Appellants did not designate Doc. 93 either in their appendix or
their addendum, nor did they appeal the decision that Doc. 93 related to. Clearly it
was not obvious to Appellants either that SE 1-33 was already in the record as part
of Doc. 93, or they would have simply designated Doc. 93 for inclusion in the
appendix rather than bringing a motion to file documents that they believed were
not presently in the record.

B. Appellants’ Contention that “Plaintiffs’ Counsel Knew What the
December 4, 2009, Order Stated.”

Appellants go to the unnecessary trouble of quoting from a brief
authored by the undersigned to prove that he knew what the Court’s December 4,
2009 order said. (Brief at p. 6). The Court may be assured that the undersigned
does in fact read orders issued in this case. This concession does not mean,
however, that this Court’s order denying Appellants leave to enlarge the record is
in fact an order to enlarge the record.

C. Appellants’ Assertion That They “Manifested Due Diligence.”

Appellants then offer an utterly impenetrable explanation (supported by an
equally cognitively challenging affidavit) for their failure to “comply with the
court’s order,” which to them means their failure to file the documents that they
were expressly forbidden from filing until the present motion. (Brief p. 6). Recall
that in the topsy-turvy world of the Appellants, this Court’s December 4 order
denying them leave to file documents under seal in the first appeal means that they
should file the documents in the second appeal. Whether Appellants lacked
diligence is beside the point: they filed documents that they were ordered not to
file.

D. Appellants’ Assertion That “Plaintiff’s Counsel was Given Notice.”

Appellants next quote themselves in an exchange of email correspondence
[NOTE: the ones - I, Cindy- quoted at the beginning of this topic, from the Pickle affidavit.]
with the undersigned in which they purported to cite authorities indicating that “the
admissibility of excluded evidence cannot be reviewed if that evidence is not
included in the record on appeal.” (Brief p. 7). They apparently think that
providing notice to the undersigned of their incorrect legal position supports their
claim for sanctions.

But, as they have been told before, Appellants misconstrue the cases they
cite. For example, in Chicago & Eastern Illinois R.R. Co. v. Southern Ry. Co., 261
F.2d 394, 402 (7th Cir. 1958), a party challenged the district court’s exclusion of an
exhibit from evidence during a trial. The court of appeals said that because the
proferring party had not included the exhibit in the appellate record, the decision as
to its admissibility could not be reviewed. In other words, at some point the
evidence was before the district court, but the appellant had not taken steps to
preserve it and present it to the appellate court. The other case cited by the
Appellants, Texas & Pacific Ry. Co. v. Buckles, 232 F.2d 257, 261 (5th Cir. 1956),
is substantially similar – the appellate court could not review the admissibility of a
trial exhibit because it was not presented on appeal. There was no suggestion in
either case that the exhibit was never part of the district court record.

Here, by contrast, the Appellants are trying to submit to this Court evidence
that was never in the district court record, i.e., evidence that the district court itself
did not see and did not rely upon in making the rulings challenged on appeal. To
review evidence that the district court never saw would make this Court one of
original jurisdiction, rather than a reviewing court. It is axiomatic that the record
on appeal is what the district court had before it when it made the rulings
challenged on appeal. Fed. R. App. P. 10(a); see also Commonwealth v. United
States Veterans Admin., 541 F.2d 119, 123 n. 5 (1st Cir. 1976) (striking portions of
appendix that were not part of district court record.). Appellants have been
educated about this concept any number of times, including by this Court in the
December 4 order, but persist in trying to file these documents.

E. Appellants’ Assertions of “Plaintiffs’ Ongoing Campaign of
Harassment and Concealment.”

Finally, Appellants complain that they have been subjected to a “campaign
of harassment and concealment.” (Brief p. 7). They were not. The evidence of
supposed harassment is the original cease and desist letter issued several years ago,
before suit began, in which former counsel for the Appellees demanded that
Appellants stop defaming them. Appellants say they found this letter
“intimidating.” Clearly it was not intimidating enough. Appellants have not been
subjected to harassment beyond the inconvenience inherent in litigation.
Appellants’ evidence of a supposed “campaign to conceal” is the Appellees’
designation of its business records as confidential and subject to the protective
order issued in the case, and some of the correspondence issued to the Appellants
to caution them against publicizing, in their various internet forums, the contents of
records that had been designated confidential when it appeared that they were
violating the protective order.

The protective order in force in this case included procedures for challenging
the other party’s designation of confidential records, but Appellants did not avail
themselves of those procedures. When the case ended, Appellees moved for the
return of all documents designated as confidential under the protective order, and
the district court granted the motion. (Electronic Clerk’s Notes of 10/30/2008).
Thus, Appellants’ contention that Appellees’ designation of discovery materials as
confidential is improper amounts to a collateral attack – advanced for the first time
after the case was dismissed and while it was on appeal – on the district court’s
order that these materials be returned to Appellees. The issue has already been
litigated and decided against Appellants. They are not free to re-cast the
Appellees’ efforts to preserve the confidentiality of their business records as a
“campaign of concealment.”

ARGUMENT
Appellants argue that their motion to file under seal is not vexatious because
this Court’s December 4 order, in their view, constitutes “established precedent”
that the records are already part of the record on appeal. (Brief p. 10). Obviously
that is not true, or there would be no need to enlarge the record on appeal to
include these documents. The argument is childish. The prior ruling was that
these documents could not be added to the record on appeal. Appellants’ efforts to
construe that ruling to mean the opposite is clearly vexatious.

Appellants persist in arguing that this Court must review the excluded
exhibits in order to determine whether they were properly excluded. Again,
Appellants authorities for that proposition deal with evidence excluded from
admission during a trial, not evidence that was never filed with the district court at
all. Per Fed. R. App. 10(a), this Court will review the district court’s rulings using
the same evidence that the district court had available to it: Namely, the description
of the evidence in the Appellants’ motion to file the documents under seal. That
description was sufficient for the district court to conclude that the evidence was
irrelevant. This Court will review that decision on an abuse of discretion basis,
using the same evidence available to the district court. In other words, this Court’s
review will not include the excluded documents themselves, because the district
court did not rely on the excluded documents themselves for the ruling under
review.

This is at least the fourth time that Appellees have fought to prevent
Appellants from indiscriminately filing with the Court raw discovery material
consisting of their business and tax records. Appellees successfully opposed the
admission of these records at least twice in the district court. (See Doc. 158 and
174). The district court ordered Appellants not to file these documents. (See
Electronic Order by Judge Saylor dated 4/15/2009 and Doc. 193). When
Appellants made a motion in the prior appeal of this matter to enlarge the record to
include these documents, Appellees’ for a third time successfully opposed the
motion. (See Appellees’ Response to Appellants’ Motion to Enlarge the Record
and to File Under Seal, Doc. ID 5396410 (filed in Case No. 08-2457 on
11/27/2009)). This Court denied Appellees’ motion, thus keeping the documents
out of the record. (Order of Court Entered 12/4/2009 (Case No. 08-2457, Entry ID
No. 5398481).

The context of this motion -- easily forgotten amidst the impenetrable
ranting of these Appellants -- is that Appellants have appealed the voluntary
dismissal of a lawsuit against them in which they had made no affirmative claims
of any kind. Failing to appreciate the distinction between an appellate court and a
district court, Appellants filed, simultaneously with their principal brief, a motion
to expand the appellate record to include evidence they obtained under a protective
order which supposedly shows that the original claims against them lacked
substantive merit, but which in fact shows no such thing and in any case was never
presented to the district court and formed no basis for the district court’s orders
here under review. Now, Appellants seek sanctions against Appellees for opposing
their motion to expand the appellate record and seeking sanctions because the
motion is vexatious.

The timing of this extraneous litigation is not accidental: It occurs during the
30-day period for preparation of Appellees’ principal brief. Although they admit
knowing in advance that they wanted to file the documents under seal and that
Appellees disputed their right to do so (see Pickle Aff. [12/30/2010] ¶ 1; Pickle
Aff. [12/16/2010] ¶ 2), Appellants did not move for leave to do so until the date
their principal brief was due. When Appellees predictably opposed the motion,
Appellants filed the current 21-page motion and four-page affidavit, along with a
10-page reply brief, just four days later. Thus, they evidently planned this skirmish
in order to divert Appellees’ focus from the primary brief.

CONCLUSION

Appellants’ motion for sanctions is even more vexatious and unreasonable
than the underlying motion to admit documents, which have thrice been excluded
from the record. Appellants’ abuse of the litigation process will not stop until this
Court requires them to bear the financial burden of their frivolous litigation
conduct. If ever there was a case for sanctions under 1st Cir. Loc. R. 38.0 for
vexatiously increasing litigation costs, this is it.

[Cynthia]

I am having some difficulties with downloading and uploading pdf files at the moment which explains my copy and paste posts above. That means none of the above referred to documents are in our Pacer section yet... I'll let all know when they are and post a link.

Thanks for your patience.