Lively Case Discussion #611 5/1 - 5/2/2007

[oldfart]

P>S>  HI old fart...thought i smelled something...lol

FOM
    who me  

I thought you had run out for a quickie  ... of was that someone else

[LilPuma]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

[Rob]

[
Ha Ha Ha ... *******, of course I heard it..I linked it. LOL... I know he said that...
So many areas of apparent malfeasance...that's how you know it was not a competent investigation... and we're all still here.

Please post the link again.  I failed to save it and got busy and then the pages added up too quickly.

Sorry.

.

Anna- here it is.. please use Explorer. This one opens in it's window and won't work with Firefox or the plug ins for IE.
http://tinyurl.com/33o437

[Anna]

[ANNA - I don't know how much the reporters are being told.  I know the prosecutors office said the search at the Sloot home had concluded and no body was found.  I'm sure the KLPD isn't done testing and who knows, maybe they will go back once they get the results from their tests?

I sure hope you are right, Klaas, and something turns up in their testing but after two years, one wonders.

I also wonder if DNA is considered remains.  And they didn't say no trace was found which is encouraging.  There could have been fingerprints.

But still, I don't like the spin that is being put on this and wish the Dutch had their own non-Aruban spokesperson.

I don't trust anybody affiliated with the prosecution or ALE at all.

They have lied to us too many times.

.

[oldfart]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

That is what Dr. Phil's atty's are saying too.  

[klaasend]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

This was posted by Freebird yesterday:

Kalpoe v. McGraw

The Lawsuit

K2 filed a complaint for damages based on defamation, invasion of privacy, intentional infliction of emotional distress, among other things.   The suit's based on K2's claim that McGraw/Skeeters intentionally altered the "Skeeters tape" for the purpose of painting K2 in a bad light.  

They are asking for $800 MILLION in damages.


The Answer

Phil filed an answer responding to the complaint and asserted various affirmative defenses.   An affirmative defense is a defense that is specified by statute in a particular kind of case & it is a defense which has to be specifically set out in pleadings or it is waived.   Affirmative defenses can have the affect of shifting the burden of proof from the defendant (Phil) to the plaintiff (K2).  For example - "truth" is an affirmative defense to a defamation claim.    By raising the defense of "truth" (ie, alleging that the so-called defamatory statements are in fact true and not false) and providing some minimal thresshold of evidence - the burden of proof then shifts to the plaintiff to prove that the statements are false.   Just one example - phil raised several affirmative defenses.

Discovery

Part of any lawsuit is discovery, which is governed by statute.  It is designed to eliminate surprises and promote settlement of any issues or questions of fact which can be settled prior to trial.    Discovery in most jurisdictions includes: requests for production of documents and tangible things, interrogatories, requests for admission, depositions and deposition on written question.  The most common are requests for production, interrogatories and depositions.   Discovery usually begins fairly soon into a case.

Discovery encompasses not only items which would be admissible under the rules of evidence, but also items which are reasonably calculated to lead to the discovery of admissible evidence.   By way of example - a discovery request might ask for a document or deposition question which would be considered hearsay and inadmissable at trial.    It's still fair game in discovery, however, if it's relevant to the claim or defense - or if it's relative to the amount of damages being requested.   Subject to permitted objections, a party served with requests for production of documents must produce anything over which he has possession or exercises control - e.g., K2 cannot refuse to turn something over just because they do not have possession of it.   If they can compel whoever has possession to give it to them, then they must do that and turn it over.

In this case discovery will be very broad because defamation takes into account reputation.   Because "truth" is an affirmative defense - discovery will also include a huge variety of communications by the plaintiffs to others - essentially anyone they have communicated with at all about any of the issues related to the defamation.


Objections to Discovery

There are only a handful of permitted objections to discovery.  Permitted objections include :

1.  burdensome - the request would create an unreasonable financial or time hardship, basically making compliance impossible.  What is actually considered burdensome is also dependent on the complexity of the suit and the amount of damages being claimed.

2.  irrelevant or beyond the scope - not even reasonably calculated to lead to admissible evidence, or if the judge has defined the scope of discovery then requests have to stay within those parameters

3.   subject to privilege -  a document or communication is subject to a legally recognized privilege.  e.g. lawyer/client, doctor/patient, husband/wife.

4.  vague/confusing - a party can object and ask that a discovery request be clarified with defined terms or be made more specific if it is unclear


Discovery Served on K2

Phil served K2 with requests for production of documents and interrogatories.  In a nutshell - the requests asked for any document or tangible thing which has anything to do with Natalee, K2's reputations (school, work, etc), the lawsuit itself and any agreements they made about attorneys fees, media transcripts, forensic tests conducted in the criminal case, etc.    This would include the entire police file or as much of it as is in K2's possession or subject to their control, any emails or chats they've had about the lawsuit, the criminal case or Natalee, media transcripts, newspaper and other media publications where K2 are mentioned, employment and school records, income/bank records .. and the list goes on.    Phil asked for 56 categories of documents - it's very extensive.

There is a date by which a party must comply with discovery requests.   If objections are made - the party still must identify whichever documents he has which are responsive to the requests and state specifically which objection applies.

Initially, K2 turned only one document over in response to the discovery requests - a press release from the NFI re: testing on the Skeeter's tape - a two paragraph blurb.   For all other requests, objections were made.   However, most of  the objections were not legall recognizable objections.  K2 objected based on:

1.  right of privacy- there is no general right of privacy and every lawyer knows that; this will not go over well with the judge.

2.  confidential - K2 claim that they cant turn over anything from the police file because of some Aruban procedure which supposedly prohibits a prosecutor from disclosing certain information in an open investigation.   K2 appear to be claiming that because of this law - they dont have to turn over police files that are in their possession or the possession of their attorneys.  This is bogus also because A.  it's not a legally recognized privilege, B. the Aruba law appears to apply to prosecutors and attorneys - it's not a privilege that K2 can claim for themselves.  If K2 have the docs, then obviously the prosecutor turned them over to K2 and K2 will have to turn them over to Phil, and C. as Phil points out, Aruba law doesnt apply to the suit because K2 brought the suit in California, not Aruba.

3.  burdensome/overbroad- when using this objection, a party has to state exactly how they would be burdened- which they did not do.  Even if a request is burdensome, a party still has to comply up to the point of being burdened.   For a crazy example - if a request asks for 3 million docs - that might be burdensome, but the party stilll has to produce the 1 million docs that arent burdensome.  The party cant just refuse to comply entirely.   Also - considering K2 are asking for $800 MILLION in damages and filed a 53 page complaint with many many counts - a judge will not consider a request burdensome unless it is darn near impossible to comply.

4.  vague - when K2 couldnt come up with another objection, they claimed that a request was too vague to comply.    This is laughable when your read the documents.  One request asked for all documents evidencing "communications" between K2 and someone (forgot who, Joran maybe).   K2 refused to turn any docs over because they claim the term "communications" is vague and undefined.   Everyone knows what a "communication" is, and this one will irritate the judge also.

Phil's Response

Apparently in California, before asking a judge to compel a party to comply with discovery - there has to be an attempt to work it out.   Phil's lawyers wrote a lengthy letter to K2 attorneys and told them exactly what was wrong with their discovery responses.   They gave them an extra week to comply.

K2 then turned over a couple of media reports and information from blogs.   They also submitted a list of documents which are responsive to the requests, but still refused to turn over the actual documents - standing on their objections listed above.    

Phil then filed a Motion to Compel Discovery and set if for hearing May 16.   Phil paintakingly addresses each objection and asks the court to order K2 to comply with the discovery requests.    On May 16 the court will hear argument from Phil and K2 and in all likelihood order K2 to turn over all the documents - there may be some slight limitation, but I doubt that even.   At that point, if K2 still do not turn over the documents then they are in contempt and the court can impose penalties and sanctions - among the penalties, the court could limit evidence K2 can present at trial or the court could actually strike allegations or charges from the complaint.  Worst case, I believe the judge could dismiss the suit altogether.

[oldfart]

repair guy heere gotta run
SeeeeeeeeeYa

[LilPuma]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

That is what Dr. Phil's atty's are saying too.  

But I said it in one sentence, not 3 pages!  Proof that I'm not a lawyer.  

[Rob]

ROCK ON MONKEYS!
i am at the library---no on make me laugh!!!!!!!

Shhhhh

The Mommy Test

I was out walking with my 4 year old daughter. She picked up something off the ground and started to put it in her mouth. I took the item away from her and I asked her not to do that.

"Why?" my daughter asked.

"Because it's been on the ground, you don't know where it's been,
it's dirty and probably has germs" I replied.

At this point, my daughter looked at me with total admiration and asked,
"Mommy, how do you know all this stuff? You are so smart."

I was thinking quickly. "All moms know this stuff. It's on the Mommy
Test. You have to know it, or they don't let you be a Mommy."

We walked along in silence for 2 or 3 minutes, but she was evidently
pondering this new information.

"OH...I get it!" she beamed, "So if you don't pass the test you have to be
the daddy."

"Exactly!," I replied back with a big smile on my face.

sounds like your daughter is a rocket scientist...she's already figured it all out.. what a cute story.

[Anna]

[
Ha Ha Ha ... *******, of course I heard it..I linked it. LOL... I know he said that...
So many areas of apparent malfeasance...that's how you know it was not a competent investigation... and we're all still here.

Please post the link again.  I failed to save it and got busy and then the pages added up too quickly.

Sorry.

.

Anna- here it is.. please use Explorer. This one opens in it's window and won't work with Firefox or the plug ins for IE.
http://tinyurl.com/33o437

Thanks, Rob,
Plays fine.  I think I have every player that exists on my computer now.  

Am listening and hoping it will perk me back up.  I know better than to get my hopes up and did only this morning.

Getting back to reality is painful sometimes but I'm there.

.

[Buckeye]

Anna

Link for TJWard (from oldfart)  http://tinyurl.com/33o437

I believe it was STom that posted about Papi being the godfather (I remember thinking it was scaredtom and I believe Rob corrected me) .

[Buckeye]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

That is what Dr. Phil's atty's are saying too.  

But I said it in one sentence, not 3 pages!  Proof that I'm not a lawyer.  

There was also talk that the author of Joran's book quoted PVs and other file info so...if an author was permitted access for a book, certainly the defendents should have access....but you know those "funny" Aruban laws.

[vms]

Missing Teen's Family Remain Hopeful

"Some kind of answer as to where Natalee was put."

That's what Ann Reynolds is hoping for; answers as to what happened to her granddaughter Natalee Holloway. (See links below the picture for more stories on Holloway.)

Reynolds explains, “After two years, you expect for them not to find something and then all of a sudden that we have hope that they might have found something."

Dutch police are reviving a case in the search of the teen who vanished during a school trip to the Dutch Caribbean Island. Around 20 Dutch investigators dug up earth outside the home of the police's prime suspect Joran Van Der Sloot.

Reynolds says Natalee's mother, Beth Twitty, while pleased with the latest developments in the case, admits it's not easy watching it all unfold on TV.

She continues, “She said, ‘Mom this has been harder on me than anything that I know of. I kind of had gotten to the point where maybe they might not, but I always had hope.’"

Hope that the mystery of what happened to their loved one finally solved after two years, even though they know they may not find her alive.

Reynolds says, “I don't think that's going to happen. But if we can find anything of hers that she had on that day."

But inside the Reynolds home, you won't have a hard time finding a piece of Natalee with her pictures everywhere.

Her disappearance has admittedly affected each one of them, but they rely on one another to help pull them through in hopes that this two-year nightmare can finally be put to rest.






Video

KTHV Little Rock

Klaas,
If this has already been posted, please delete it...

[Kimmy53]

Anna- regarding the concrete. I can not see anyway around not ripping it up. The dates alone make it suspicious. I realize that construction on Aruba is as slow as a cactus growing festival, and they most likely had it scheduled weeks or months in advance, but the fact remains that it was poured in a relatively short period of time to the disappearance of Natalee...

it has to come up to clear that home completely!

Well, I guess not according to the video VMS just linked.  The search of the Sloot compound is complete and no human remains were found.

They dug up the "garden" apparently but not one word about freshly poured concrete.  Paulus must be laughing his rear off!  He will be saying "Good Luck on that!" some more about finding her.

I am all bummed by this announcement and better take a break before I bring somebody else down.

BBLater when I absorb this latest. . . .

They may have used Sonar to determine she wasn't there.  

That doesn't mean they didn't find something.  We will not know that right away.  They just need a little something to prove she was there.

The thing we need to remember is - the Dutch Investigators obviously had enough evidence to warrant a search of the property in the first place.  IF they had nothing, they would have never searched.  The pressure is on the VDS's -  

These are professionals.  They aren't done by a long shot

[Anna]

Tamikosmom,

I have lost your post at the moment but agree completely with your assessment of the handling of giving Paulus a commendation of good conduct while holding that wiretap information.  I meant to comment on that when you posted and things are moving too fast for me.

OK, so the Sloot supporters contend that is NOT Paulus in the casino video.  That makes it much worse that he may have had contact later.  THey would have been far better off insisting that it was him.  If it wasn't then his contact was in private and later and therefore highly suspect.

How on earth that qualifies for a good conduct report I cannot imagine for his lying alone should have stopped that.

But she just caved and gave it to him so he could become an attorney.

The reason we don't understand their system is that they don't have one.  They are a nation of people and influence and not laws.  We are accustomed to a nation of laws that apply to all.  Theirs are like jello and conform to whatever they want them to.

They are more like a big tribe than a legitimate nation with a government

,

[LilPuma]

Is there a legal monkey or anyone who can offer info/opinion on the Kalpoes claim that they can't produce documents to support or disprove their case because of Aruban laws?   Seems to me they can't claim they didn't say certain things to ALE if they can't produce all the statements to prove it.

This was posted by Freebird yesterday:

Kalpoe v. McGraw

The Lawsuit

If the Kalpoe attorneys can list all those statements, then clearly the Kalpoes' US attorneys have those documents and they are no longer something the Aruban Prosecutor can't release as they've been released.  Somehow though, I've found that what seems to make sense to me doesn't always coincide with what a Judge does.    Hopefully, the Judge will order the Kalpoes to produce.  
Also, I read the statement supposedly by NFI and it does not say what Arlene claims.    Yes, it came as a complete shock.  

[Rob]

Anna

Link for TJWard (from oldfart)  http://tinyurl.com/33o437

I believe it was STom that posted about Papi being the godfather (I remember thinking it was scaredtom and I believe Rob corrected me) .

yep, it was STom. Sorry Buckeye.  

[klaasend]

VMS - thanks for posting, it had not been posted here yet.

[LilPuma]

sounds like your daughter is a rocket scientist...she's already figured it all out.. what a cute story.

Not my daughter, but it's a great story.  

[friend of monkeys]

Klass----ty for the wealth of info re lawsuit....u r amazing