This was an oral argument to dismiss the $4000/day fine. Both sides presented their arguments and now the judges will write an opinion (30 to 90 days). There were no recording devices, laptops/tablets or cellphones allowed so I got as much as I could by just trying to furiously take notes. It was very fast, both sides had about 20 minutes. I hope I got the gist with few errors. I felt lost a few times when they referred back to things that I hadn’t seen or been aware of prior. I found out later San Diego Reader was there so his article will be more succinct, but he probably will leave off the juicy details. ;)
Francis McNamara for Watchtower was up first and right off the bat one of the judges was exasperated with Watchtowers inconsistency in their position. This is one time I wish I would have read the brief prior (still haven’t had a chance) because this line of communication started with a bang and I wasn’t aware that Watchtower had flip flopped. If anyone has any information on this I’d love to hear it. The judge actually said “it’s a breathtaking process to listen to you flip flop” their first position seems to have come around to bite them and now they’re in a uphill battle.
Another judge asked if they have a bigger issue with the amount of the fine or the principal of the fine and told them to decide what their real issue is. Watchtower contended that the two cases are different (Lopez and Padron), that the sanction is not authorized by law and that they should have had a contempt procedure and gone back to trial court.
Zalkin said a contempt statute only allows for a one time sanction, that a solid basis for the sanction has been provided and the court does have authority to enforce orders / monetary sanctions as part of discovery.
Watchtower keeps contending that it doesn’t have control of CCJW (Christian Congregation of JWs) or custody of the documents because CCJW is a separate corporation. Apparently the service desk is under CCJW. Zalkin explained to the judge that that is just all smoke and mirrors. Watchtower admitted that document production would be “unduly burdensome” and now they are trying to claim they are a completely separate entity with no authority over CCJW. One judge said “why would it be burdensome to Watchtower if you have nothing to do with CCJW, seems like you are playing a game here” . They’ve made inconsistent declarations where it suits them per usual. Watchtower said the burden is that Watchtower and CCJW share a legal department. I could tell none of the judges are buying any of this.
With regard to the redactions Watchtower is claiming that because the congregations are small having elders and victims names revealed would impact privacy issues and freedom of religion. Zalkin said that the trial court heard motion after motion about privacy and there was mention of limiting use but I wasn’t clear on that point, again I’m sure the brief has details. This was towards the end and when the judge said “seems like you just want to come back again and again until the end of time”. They all seemed extremely annoyed so that’s good news.
I was overwhelmed knowing I had to get it all down with just notes so again, I hope I didn’t leave too much out or make errors but the opinion will be out soon and hopefully we are closer to a resolution.