Berroy Objection and Reply to Polgar SJ "Evidence"
MrVidmar
JUDGMENT EVIDENCE AND REPLY TO PLAINTIFF�S RESPONSE IN
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
JIM BERRY, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF
THE EXECUTIVE BOARD OF THE UNITED STATES OF AMERICA CHESS FEDERATION,
files this Objection
to Plaintiff�s Summary Judgment Evidence and Reply to Plaintiff�s
Response in Opposition to his Motion for Summary Judgment, and would
respectfully show unto this Court as follows:
I. OBJECTION TO PLAINTIFF�S SUMMARY JUDGMENT �EVIDENCE�
Once the moving party has made an initial showing that there is no
evidence to support the nonmoving party�s case, the party opposing the
motion must come forward with competent summary judgment evidence of the
existence of a genuine fact issue. Mere conclusory allegations are not 1
competent summary judgment evidence, and thus are insufficient to defeat
a motion for summary judgment. Likewise, unsubstantiated assertions,
improbable inferences, and unsupported 2 speculation are not competent
summary judgment evidence.3
In her Response to Defendant�s Motion for Summary Judgment, Plaintiff
has shamelessly attached stolen, attorney-client privileged documents in
an attempt to create a fact issue that Defendant Berry participated in a
conspiracy to defame and cause harm to Plaintiff. Defendant objects to
the submission of such documents and would show that such documents are
incompetent summary judgment evidence. Accordingly, Defendant requests
that the documents be stricken and not considered by the Court.
A. Plaintiff�s Evidence is Incompetent Because it is Protected by the
Attorney-Client
Privilege
The documents attached as Exhibit A to Plaintiff�s Response are
protected by the attorney- client privilege and cannot be used as
�evidence� by Plaintiff. Plaintiff, by and through her counsel, has
continually been advised that said documents are privileged, should not
be filed, and should either be returned or destroyed. Despite this,
Plaintiff has ignored the Defendants and continued to use and file these
stolen, attorney-client privileged documents, and Defendants have
continuously objected and asserted the attorney-client privilege.
The attorney client privilege is one of the oldest recognized privileges
for confidential communications. The attorney-client privilege prevents
disclosure of confidential communications 4 between an attorney and
client made for the purpose of seeking or rendering legal services. The
5 privilege protects communications from the client to the lawyer as
well as from the lawyer to the client. The privilege is intended to
encourage �full and frank communication between attorneys and 6 their
clients and thereby promote broader public interests in the observance
of law and the administration of justice.� Evidence protected by the
privilege may not be ordered disclosed 7 regardless of its relevance.
The documents attached as Exhibit A to Plaintiff�s Response are clearly
protected by the attorney-client privilege. The documents consist of
confidential emails by and between the USCF board members and their
attorney, Karl Kronenberger, with regard to the legal services being
rendered by Mr. Kronenberger.
1. Defendants Put Polgar On Notice of Stolen, Attorney-Client Emails
At the outset of this case, counsel for the USCF sent a letter to
Plaintiff�s counsel, Jim Killion, specifically informing him that the
emails in his possession were stolen and contain attorney-client
privileged materials. Plaintiff�s California counsel, Whitney Leigh, was
also informed that a significant number of privileged emails had been
stolen, and Defendants requested counsel to notify them if he came into
possession of any communications between the Defendants and their
counsel. Defendants sent multiple letters to Mr. Leigh demanding that he
immediately 9 turn over all stolen emails in his possession and that he
make no use of such stolen emails. Both 10 California and Texas counsel
have disregarded Defendant�s warnings, refused to return the emails, and
instead have continually filed, quoted from, and used the privileged
materials to their benefit throughout this case, both in California and
Texas, despite being on notice that such materials are privileged.11
2. Defendants Have Never Waived Privilege
Despite the claims of Plaintiff�s counsel that the privilege has been
waived by third parties placing the stolen emails on the internet,
Defendants have never waived the attorney client privilege regarding the
stolen attorney emails. Plaintiff�s counsel can point to no authority
for the position 12 that the theft of emails, and some later,
unauthorized disclosure by the wrongdoers, has in some way waived
privilege. To the contrary, each of the recipients of the emails,
including Defendant Berry, provided affidavits verifying that they had
not disclosed the emails to any third parties, and Defendants provided
copies of said affidavits to Plaintiff�s California and Texas counsel.
The 13 attorney-client privilege belongs solely to the client, and thus
may be waived only by the client.14 Absent the client�s consent or
waiver, an attorney�s or third party�s publication of confidential
attorney-client communications does not constitute a relinquishment of
the privilege by the client.15 Courts have found that unless there is an
�intentional relinquishment or abandonment of a known right or
privilege,� no waiver occurs and the privilege still exists. Here, there
has been no 16 such relinquishment or abandonment. To the contrary,
Defendants have continuously asserted the privilege, which has been
wholly ignored by the Plaintiff and her counsel.
Accordingly, because there has been no waiver of the attorney-client
privilege, this Court should continue to enforce the privilege
notwithstanding Plaintiff�s argument that the documents are now on the
internet and part of the public domain. Furthermore, because the
privilege has not been waived, to the extent Plaintiff has sought to
introduce evidence subject to the attorney-client privilege between
Defendants and their attorneys, the Court must exclude that evidence.
B. Plaintiff�s Evidence is Incompetent Because it is Fruit of the
Poisonous Tree
Plaintiff�s �evidence� attached to her Response to Defendant Berry�s
motion was illegally and wrongfully obtained and must be excluded. As
demonstrated in other pleadings before this Court, the documents
attached by Plaintiff as Exhibit A to her Response contain
attorney-client privileged communications which were stolen from
Defendant Randy Hough�s email account. Plaintiff claims to have
retrieved the documents off the internet. However, there is evidence
that Plaintiff�s co-conspirator, Gregory Alexander, placed the documents
on the internet after stealing them from Randy Hough�s account at the
direction of the Plaintiff. These are the allegations which gave rise to
the California lawsuit filed by the USCF and Randy Hough against
Plaintiff (which has been recently transferred to this Court), and they
are also the allegations which gave rise to a recent criminal indictment
against Gregory Alexander in California. As a result, Plaintiff�s use of
the stolen, attorney-client communications arises from her own
misconduct, as well as the misconduct of her business associate and
co-conspirator, Alexander.
On July 15, 2009, Alexander was indicted for stealing the very email
communications which are attached as Exhibit A by Plaintiff herein.
Further, in the California action which has been recently transferred to
this Court, the USCF has alleged that Plaintiff was Alexander�s
accomplice, which is supported by Plaintiff�s admission where she
directs Alexander to unlawfully access Hough�s email account. Simply
put, Plaintiff obtained possession of the privileged documents which she
has attached in her summary judgment response as a result of theft, and
thus Plaintiff cannot introduce such stolen evidence to support her claims.
The general rule is that evidence which is obtained illegally or
improperly may not be used against the person from whom it is obtained.
In federal court, unlawfully obtained evidence will 17 be excluded when
the procurement of the evidence violated federal protections.18
Plaintiff has provided no coherent explanation for her possession of the
confidential emails. Plaintiff claims that the emails where published on
the blog, USCF_said.blogspot.com (�Blog�), by someone located in
Belarus. However, the USCF has produced evidence that the Blog was
created using an IP address owned by the University of Washington and
associated with Alexander. Alexander is an employee of the University of
Washington, and, as stated above, has been indicted for his theft of
emails. Simply put, the stolen emails have been forensically linked to
Plaintiff and her business partner, Alexander, who has been indicted.
Accordingly, to the extent that Plaintiff seeks to introduce the stolen
emails as evidence, the Court must exclude the same.
C. Plaintiff�s Evidence is Incompetent Because it is Unauthenticated and
Inadmissible
It has long been settled law that a plaintiff must respond to an
adequate motion for summary judgment with admissible evidence. A
nonmoving party may not oppose a proper motion for 19 summary judgment
with unauthenticated documents. The stolen, attorney-client privileged
emails 20 attached to Plaintiff�s Response are incompetent summary
judgment evidence because they are unauthenticated and inadmissible
under the FEDERAL RULES OF EVIDENCE.21
Plaintiff has merely filed the stolen, attorney-client privileged
communications as an exhibit to her Response without providing an
affidavit authenticating the documents or otherwise putting them in
admissible form. Plaintiff provides no authentication that the documents
are what they purport to be or where she obtained the documents. Thus,
the �evidence,� which is unsworn, unauthenticated, and unaccompanied by
affidavit, is not competent summary judgment evidence, must be stricken,
and is not entitled to consideration by this Court.
II. REPLY TO PLAINTIFF�S RESPONSE
In addition to the foregoing objections to Plaintiff�s summary judgment
�evidence,� Defendant would like to briefly reply to Plaintiff�s
Response. Incredibly, Plaintiff attempts to sidestep her admission in
her deposition that Defendant Berry is not liable in his individual
capacity by claiming that she is not an �expert in the law� and cannot
give testimony as to whether Berry committed those acts in his �official
capacity� or �individual capacity.� However, the testimony by Plaintiff
in her deposition is not a �legal conclusion.� Instead, Plaintiff
testified that Defendant Berry did nothing to harm her outside of voting
on USCF motions as a board member. In this regard, Plaintiff testified
as follows:
�Q. Now then, tell me what complaints you have about Mr. Berry in this
lawsuit; why did he get sued?
A. Well, in particular about a couple of votes and, for example, the
first one
being when the US Chess Federation board members, other than the two of
us, my husband and I, has been voting on an issue to request from the
insurance company Chubb to drop our coverage in the Sam Sloan lawsuit. .
. . And he voted yes on that motion, for example.
. . .
Q. What other votes of Mr. Berry do you complain about?
A. Well, obviously, ratifying the illegal lawsuit that the USCF filed
without the
approval of the delegates, both in California and Illinois.
Q. So you are suing him for voting in favor of filing lawsuits in
California and
Illinois?
A. That are illegal.
. . .
Q. So you are suing him for voting in favor of those lawsuits?
A. Among other votes; correct.
. . .
Q. Everything we have talked about so far Mr. Berry has been doing in his
capacity as a board member, correct?
A. Correct.
Q. Not just as an individual, but as a member of the board?
A. Absolutely.
Q. Official capacity?
A. Yes.
Q. But his action in voting was official?
A. Yes. Absolutely.�22
As a former board member herself, Plaintiff is qualified to give
testimony that voting on board motions is within the confines of one�s
duties as a board member and not something done in one�s individual
capacity. Her testimony in that regard is not a legal conclusion by any
stretch of the imagination, and Plaintiff�s feeble attempt to retract or
sidestep her admission by stating, �well, I�m no expert in the law� is
disingenuous to say the least. Thus, Defendant Berry is entitled to
summary judgment with regard to the claims against him individually.
Further, Defendant Berry is entitled to protection under the Federal
Volunteer Protection Act, which Plaintiff fails to address.
III. CONCLUSION
In her Response to Defendant Berry�s Motion for Summary Judgment,
Plaintiff�s only �evidence� of Berry�s liability for the claims she has
brought against him is a series of stolen, attorney-client privileged
emails which Plaintiff holds out as being evidence of Berry�s
involvement in a civil conspiracy. Because these emails are
inadmissible, unauthenticated, attorney-client privileged documents
which were obtained by Plaintiff through illegal and wrongful methods,
such �evidence� must be stricken and not considered by this Court in
ruling on Defendant�s motion. As a result, Plaintiff has produced no
competent evidence of Defendant Berry�s liability, either in his
individual or official capacities, and Defendant is entitled to summary
judgment with regard to all claims against him.
Further, Plaintiff cannot escape her admission that Defendant Berry is
not liable to her in his individual capacity by now attempting to
downplay such admission by claiming that she is no �expert in the law.�
Plaintiff�s admission that her only complaint against Berry is the way
he voted on certain motions as a board member of the USCF does not
involve a �legal conclusion� and is binding upon the Plaintiff. For
these reasons, Defendant Berry requests that this Court grant his Motion
for Summary Judgment previously filed herein.
Respectfully submitted,
/s/ Jeffrey B. Jones
JEFFREY B. JONES
Footnotes
1 #### Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)
(emphasis added).
2 Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
3 See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513
U.S. 871 (1994).
4 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Hunt v.
Blackburn, 128 U.S. 464 (1888).
5 Upjohn, 449 U.S. at 389; United States v. El Paso Co., 682 F.2d 530,
538 (5th Cir. 1982). 6Hodges, Grant & Kaufmann v. United States
Government, 768 F.2d 719, 720-2 1 (5th Cir. 1985).
7 Upjohn, 449 U.S. at 389.
8 Attached hereto as Exhibit �1� is the Declaration of Karl
Kronenberger, previously filed in California action. Attached to Mr.
Kronenberger�s declaration as Exhibits �A� and �B� are letters sent to
Mr. Killion.
9 See Exhibit �C� to Declaration of Karl Kronenberger, attached hereto
as Exhibit �1.�
10See Exhibit �E� to Declaration of Karl Kronenberger, attached hereto
as Exhibit �1.�
11 See Declaration of Karl Kronenberger, attached hereto as Exhibit �1.�
12Id.
13 See Exhibit �D� to Declaration of Karl Kronenberger, attached hereto
as Exhibit �1.�
14See Hunt, 128 U.S. at 470.
15 In re von Bulow, 828 F.2d 94, 100 (2d. Cir. 1987).
16Morgan v. Thomas, 448 F.2d 1356 (5th Cir. 1971) (citing Brookhart v.
Janis, 384 U.S. 1, 4 (1966), and Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).
17See Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973) (citing
Nardone v. United States, 308 U.S. 338 (1939)).
18 See Feldman v. Allstate Ins. Co., 322 F.3d 660 (9th Cir. 2003).
19Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 191 (5th Cir. 1991)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 n. 19, 160 (1970)).
20Duplantis, 948 F.2d at 191.
21 FED. R. CIV. P. 901.
22See Oral Deposition of Susan Polgar, attached as Exhibit A to
Defendant Berry�s Brief in Support of Motion for Summary Judgment, pp.
136-40;145-46 (Appendix, pp. 5-8).
DECLARATION OF KARL S. KRONENBERGER
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
I, Karl S. Kronenberger, declare as follows:
1. I am an attorney admitted to practice in the State of California and
the United States District Court for the Northern District of
California. I am a partner at the law firm of KRONENBERGER BURGOYNE,
LLP, counsel of record for Plaintiff United States of America Chess
Federation, Inc. ("USCF") and Randall D. Hough ("Hough") in the action
filed against Defendant Susan Polgar ("Polgar"), which was recently
transferred to this Court from the Northern District of California.
Unless otherwise stated, I have personal knowledge of the matters stated
herein.
2. At the outset of this case, I sent a letter to Mr. Jim Killion,
Polgar's Texas counsel, specifically informing him that the emails in
his possession, which have now been attached as summary judgment
"evidence" in Polgar's latest summary judgment response, were stolen and
contain attorney-client privileged materials. A true and correct copy of
this letter dated August 25, 2008 is attached hereto as Exhibit A. I
also sent a follow-up letter to Mr. Killion on October 8, 2008,
attaching recipient affidavits, a true and correct copy of which is
attached hereto as Exhibit B.
3. Mr. Killion refused to return the emails and has continually quoted
from such privileged materials throughout this case, despite him being
on notice that such materials are privileged.
4. When Polgar obtained California counsel, I informed Polgar's
California counsel, Whitney Leigh, that a significant number of
privileged emails had been stolen, and I requested that if Whitney Leigh
comes into possession of any communications between the USCF and its
counsel to notify me. Specifically, on November 7, 2008, I sent an email
to Whitney Leigh informing him of the stolen, privileged emails.
Attached to the email were the affidavits of all of the recipients of
the emails, stating that they did not disclose the emails to any third
parties. A true and correct copy of the November 7, 2008 email is
attached hereto as Exhibit C. Also, attached hereto as Exhibit D are
true and correct copies of the affidavits executed by each of the
recipients.'
5. Further, I sent multiple letters to Whitney Leigh demanding that he
immediately turn over all stolen emails in his possession and that he
make no use of such stolen emails. Letters were sent to Whitney Leigh on
April 28, 2009 and May 5, 2009. True and correct copies of the letters
dated April 28, 2009 and May 5, 2009 are attached hereto as Exhibit E.
Although they have been informed, Polgar and her counsel have
disregarded the USCF' s warnings and have continued to use the
attorney-client privileged materials to their benefit. Despite the
claims of Polgar's counsel, the USCF has never waived the
attorney-client privilege regarding the stolen emails in question.
I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct and that this
Declaration was executed on October 30, 2009, in San Francisco, California.
11 T
KARL S. KRONENBERGER
[Rapidshare links to exhibits will be posted later today]
MrVidmar
http://rapidshare.com/files/301855563/Exhibit_1A.pdf
http://rapidshare.com/files/301855564/Exhibit_1B.pdf
http://rapidshare.com/files/301855565/Exhibit_1C.pdf
http://rapidshare.com/files/301855566/Exhibit_1D.pdf
http://rapidshare.com/files/301855567/Exhibit_1E.pdf
Exhibit 1D is of particular interest. Mr. Leigh has never adequately
explained the circumstances of how he came to possess certain stolen
emails. Note that this related to the scheme outlined in Kronenberger's
submission to Judge Patel which is now on its way to Judge Cummings.
Recall also that Judge Cummings has examined, in camera, materials
pertaining to an ongoing criminal investigation and will bring that
knowledge to his review of papers before his court.