Lively Case Discussion #675 8/8 - 8/10/2007

[crazybabyborg]

I'd like to have a good translation on that article. It sounds very interesting!

I think, 2 Arubans had attacked 2 tourists in the area of the Royal Plaza.  They were apprehended at a nearby choller house? 

I hope they get all over National News! It will be very interesting to see how well ALE handles the situation in terms of charges, conviction, and sentencing.

[klaasend]

I'd like to have a good translation on that article. It sounds very interesting!

I think, 2 Arubans had attacked 2 tourists in the area of the Royal Plaza.  They were apprehended at a nearby choller house? 

I hope they get all over National News! It will be very interesting to see how well ALE handles the situation in terms of charges, conviction, and sentencing.

CBB - this is nothing unusual.  There's stuff like this almost on a daily basis.  It won't be on any news.  We have no idea what nationality the tourists were even. 

[crazybabyborg]

Oh, You're right.  I hadn't even considered that they weren't American Tourists.

[klaasend]

CBB - why don't you post the page 50 warning on page 45.  You know, the reminder that it will lock on page 50?

[crazybabyborg]

CBB - why don't you post the page 50 warning on page 45.  You know, the reminder that it will lock on page 50?

OTAY, PANKY! 

[crazybabyborg]

I'm not sure there's enough of us left to get there tonight! 

I made a pic ( surprise, surprise ) just for it!

[casa]

So Ramm, do you just read at BFN and post here?  Have you left there and just decided to post here?

[klaasend]

I'm not sure there's enough of us left to get there tonight! 

I made a pic ( surprise, surprise ) just for it!

We should get there, if not post it on 44 anyway 

[klaasend]

Posted by Gigi1959 at BFN:
gigi1959
Jr. Member

Posts: 63


    Re: OPEN DISCUSSION - NATALEE - AUG. 2007
« Reply #92 on: Today at 20:55:48 »   

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I am a 25+ year California & NY lawyer, California Judge, and California Mandatory Continuing Legal Education Provider.  Among the courses I have taught since 1994 is California Civil Procedure.  I can assure you everything in my post is accurate.  We don't necessarily disagree. IMO, you just left out some important  points.  The only way a complaint, cross-complaint or answer can be stricken (i.e. dismissed as you call it) for an abuse of the discovery process is via a motion for terminating sanctions.  Terminating sanctions are considered a harsh remedy.     First, you have to have a proper discovery request directed to the proper party or non-party and worded correctly pursuant to the precise wording contained in the particular discovery statute.  Second, pursuant to a properly brought motion to compel which complies with the statutes' strict requirements for such motions. Third, pursuant to that motion to compel you have to have a judge find that the responding party's objections are wholly without merit and made without substantial justification, grant your motion to compel the discovery sought, and order the responding party to produce the discovery. (Not strike the case as this cannot be done at this stage of the proceedings.)  Third, the responding party then has to fail to comply with the court's order.  Fourth, then you have to bring another motion to compel compliance with a court order. Fifth, then you have to win that motion. and so on and so on and then you have to bring a  motion for terminating sanctions.  Rarely granted and only in extreme circumstances.  In this case, for instance, even if the Kalpoe brothers had possession, custody and control of the official suspect and witness statements provided to the police they are not required to produce those statements to the defense if requested to do so in discovery.  Why? Because they constitute official business records of a government entity which are required to be obtained directly from that entity and therefore are equally available to the defense.
 

[crazybabyborg]

So Ramm, do you just read at BFN and post here?  Have you left there and just decided to post here?

Casa, I haven't seen Ramm post in a little while. I'm not sure he's/she's still here. ( I don't know Ramm's gender, sorry )

[casa]

So Ramm, do you just read at BFN and post here?  Have you left there and just decided to post here?

Casa, I haven't seen Ramm post in a little while. I'm not sure he's/she's still here. ( I don't know Ramm's gender, sorry )

He's still here as being signed on but he may not actually be here!

[klaasend]

Then Debbie asked Gigi her opinion of what would happen in the case (Kalpoe vs. Dr. Phil):

gigi1959
Jr. Member

Posts: 63


    Re: OPEN DISCUSSION - NATALEE - AUG. 2007
« Reply #95 on: Today at 21:54:51 »   

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At this early stage of the proceedings it's hard to say.  Am not impressed at all with the lawyering on either side to date.  As a general matter, these cases are difficult to prove.  The Kalpoes have alleged defamation per se and invasion of privacy--ie portraying Deepak in a false light.  Assuming arguendo that they establish liability for defamation per se, in defamation per se cases general damages are presumed.  But how much would a California jury award them?  In California, unless you have a compelling plaintiff and a compelling case juries aren't motivated to award much in damages.  I just don't see them walking away with the big bucks if they establish liability.  As for the portrayal in a false light cause of action, assuming they establish liability, again you have the damages issue.  I'm very surprised that their lawyers added this cause of action.  Deepak, for instance, admitted that he chatted online with an individual and during that chat he claimed to have "fingered Natalee" which he subsequently claimed was a lie.  In the law,  it's not possible to portray an individual in a false light who has previously portrayed himself in that same false light!  That said, this is California after all so anything is possible. Will try to follow the case and keep you posted.

[crazybabyborg]

Posted by Gigi1959 at BFN:
gigi1959
Jr. Member

Posts: 63


    Re: OPEN DISCUSSION - NATALEE - AUG. 2007
« Reply #92 on: Today at 20:55:48 »   

--------------------------------------------------------------------------------
I am a 25+ year California & NY lawyer, California Judge, and California Mandatory Continuing Legal Education Provider.  Among the courses I have taught since 1994 is California Civil Procedure.  I can assure you everything in my post is accurate.  We don't necessarily disagree. IMO, you just left out some important  points.  The only way a complaint, cross-complaint or answer can be stricken (i.e. dismissed as you call it) for an abuse of the discovery process is via a motion for terminating sanctions.  Terminating sanctions are considered a harsh remedy.     First, you have to have a proper discovery request directed to the proper party or non-party and worded correctly pursuant to the precise wording contained in the particular discovery statute.  Second, pursuant to a properly brought motion to compel which complies with the statutes' strict requirements for such motions. Third, pursuant to that motion to compel you have to have a judge find that the responding party's objections are wholly without merit and made without substantial justification, grant your motion to compel the discovery sought, and order the responding party to produce the discovery. (Not strike the case as this cannot be done at this stage of the proceedings.)  Third, the responding party then has to fail to comply with the court's order.  Fourth, then you have to bring another motion to compel compliance with a court order. Fifth, then you have to win that motion. and so on and so on and then you have to bring a  motion for terminating sanctions.  Rarely granted and only in extreme circumstances.  In this case, for instance, even if the Kalpoe brothers had possession, custody and control of the official suspect and witness statements provided to the police they are not required to produce those statements to the defense if requested to do so in discovery.  Why? Because they constitute official business records of a government entity which are required to be obtained directly from that entity and therefore are equally available to the defense.
 

I don't get it. The "defense" would have equal access if the "entity" ( ALE ) just released them as well to the appropriate defense atty. What am I missing?

[klaasend]

CBB - I think what Gigi is saying is that the Defense (Dr. Phil) team should be able to get those witness/suspect statements directly from ALE.

[crazybabyborg]

CBB - I think what Gigi is saying is that the Defense (Dr. Phil) team should be able to get those witness/suspect statements directly from ALE.

THAT would be GREAT! If Dr. Phil's legal team would approve it, he could do a month of shows on those statements alone!

Considering the suit though, I'm not sure how eager they'd be to air them.

[klaasend]

gigi1959
Jr. Member

Posts: 64


    Re: OPEN DISCUSSION - NATALEE - AUG. 2007
« Reply #97 on: Today at 22:38:34 »
 


My post was from a purely legal perspective, i.e. "equally available ..." is directly from the statute and has a particular meaning established by the case law interpreting the statute. Does Deepak have constructive possession, custody and control of all of the documents that are in the possession of his lawyer?  In California the answer is yes.  Are there documents  in his attorney's file that don't include, for instance, official documents or documents obtained through his attorney's work product, that are discoverable?  Probably.  If met with a proper discovery request would he be required to produce those documents in discovery? Yes.  Re the official statements contained in his attorney's file, is Deepak required to produce them to the defendants? No. Did Deepak's lawyers do a good job in articulating any meritorious legal reasons compliance was not required? No.  Does that mean the Judge is going to ignore the law and require the statements to be produced by Deepak per this motion to compel? Perhaps but unlikely. Why?  Because under the law official documents are considered to be equally available to both parties. If it is true that the defendants followed the correct discovery procedures to obtain the official statements from the Aruban police and the Aruban police refused to produce them in discovery, then the proper procedure for the defendant to follow in California is to bring a motion to compel against the Aruban police.  And yes you are correct that inadmissiblity at trial is not a proper basis to refuse a discovery request--with certain and limited exceptions.  Legal perspectives aside, you know and I know that the defendants already have the official statements, I even have the official statements!
 So really, what are the defendants trying to accomplish here?

[crazybabyborg]

I didn't think anyone had all of the official statements.

I don't think all of the statements exist anymore, but were altered or disposed of by ALE.

[Sue]

So If teh dutch actually get it together and get the prosecuter to
bring charges against all the boys WHAT happens to there case??

[klaasend]

I didn't think anyone had all of the official statements.

I don't think all of the statements exist anymore, but were altered or disposed of by ALE.

I agree, I think gigi is referring to the statements that have already been posted and translated on the internet.  There are 100's more that have not been.

[2NJSons_Mom]

I didn't think anyone had all of the official statements.

I don't think all of the statements exist anymore, but were altered or disposed of by ALE.

We never really knew all of the statements, but knew of them....maybe I'm wrong.