3ABN & Danny Shelton
v.
Gailon Joy & Robert Pickle
The Rule 26(f) Conference Report
Because the two sides could not agree, each filed a separate report with the Court. Compare the two reports
below.
Notice how 3ABN and Danny Shelton want "original-source access to electronically stored information."
In other words, they want access to our hard drives. Why?
Also notice how Danny's attorneys claim below that they haven't demanded a jury trial, even though
the lawsuit they filed demands a jury trial.
The plaintiffs also complain about "reporters' privilege," which might catch the eye of a reporter or two.
Reporters treasure highly the First Amendment right of Freedom of the Press, which includes the right of
a reporter to protect his sources.
One source they want us to identify immediately is the one that told us that 3ABN has been destroying documents.
They want it so badly that they, not we, told the judge about this document-shredding allegation, an allegation
we haven't even published yet.
And based on their report, it looks like they are still pushing for some sort of impoundment
of the evidence in order to keep you, the public, from knowing what is going on. And they are doing that despite
3ABN board chairman Walt Thompson's declaration that 3ABN has nothing to hide and wants full disclosure.
Places where the two reports differ are highlighted in pink.
A section of interest is highlighted in yellow.
|
Plaintiffs' Joint Rule 26(f) Conference Report
|
Defendants' Joint Rule 26(f) Conference Report
|
|---|
|
The counsel identified below participated in the meeting required by Fed.R.Civ.P. 26(f),
on July 2, 2007, and prepared the following report. The pretrial conference in this matter is
scheduled for 3:30 p.m. on July 23, 2007 before United States District Judge F. Dennis Saylor at
the United States Courthouse, 595 Main Street, Worcester, Massachusetts 01608. The parties do
not request that the pretrial be held by telephone.
Having been unable to secure agreement as to the contents and information for a Joint
26(f) Report, the parties are filing separate Rule 26(f) reports. This report is submitted on behalf
of Plaintiffs 3ABN and Danny Shelton.
|
The counsel identified below participated in the meeting required by Fed.R.Civ.P. 26(f),
on July 2, 2007, and prepared the following report. The pretrial conference in this matter is
scheduled for 3:30 p.m. on July 23, 2007 before United States District Judge F. Dennis Saylor at
the United States Courthouse, 595 Main Street, Worcester, Massachusetts 01608. The parties do
not request that the pretrial be held by telephone.
A copy of the following was submitted to the Plaintiffs who requested that the
Defendants submit a separate report because they could not agree to much of what the
Defendants submitted. Items marked removed were taken from a facsimile copy and the better
copy is the statement of the Plaintiffs.
| |
Description of Case
Concise Factual Summary of Plaintiff's Claims;
By their Complaint, Plaintiffs allege that Defendants Gailon Joy and
Robert Pickle, acting individually and in consort, have engaged in an affirmative
campaign of defamation, slander and libel directed against Three Angels
Broadcasting Network, Inc. ("3ABN") and its Founder and President, Mr. Danny
Shelton. Joy and Pickle have published false statements of fact and have made
grievous misrepresentations—directly and by omission and innuendo—regarding
3ABN's operation, administration, and financial management and regarding
Shelton's personal and professional conduct. Joy and Pickle purposefully and
deliberately made these false statements and misrepresentations in order to
destroy Plaintiffs' reputations and goodwill, undermine public confidence in the
ministry and its president, and financially cripple Plaintiffs so Plaintiffs would
acquiesce to Defendants' designs for the company and its administration. Joy and
Pickle made their defamatory statements knowing yet willfully disregarding the
falsity of the statements, or made the statements in brazen, wanton and reckless
disregard for the truth or falsity of their statements.
Joy and Pickle have disseminated their statements to third persons and to
the public at large orally, in print, and on the internet. Moreover, with regard to
their internet offensive, Defendants have usurped and infringed upon Plaintiff
Three Angel's federally registered trademark "3ABN," using it to identify and
advertise their own world wide web site, "Save3ABN.com," in violation of the
Lanham Act.
Joy and Pickle's efforts have been the direct cause of reputation, financial,
and other harm and damages to 3ABN and its President. Defendants' have
brought about a diminishment of Plaintiffs' reputations and goodwill, a lowering
of Plaintiffs in the eyes of the public and 3ABN viewers, donors and supporters, a
reduction in financial contributions to the ministry, and a confusion or likely
confusion of the public and internet community as to the source, sponsorship,
affiliation and origination of the "Save3ABN.com" website.
Despite the filing of the instant action, Pickle and Joy's campaign of
orchestrated disparagement continues. Plaintiffs anticipate the instant case will
require considerable discovery, as Pickle and Joy's defamation and trademark
infringement are ongoing, and that there will be numerous, contentious discovery
disputes. Defendants have already stated their intention to refuse Plaintiffs
original-source access to electronically stored information, they have already
challenged Plaintiffs' right to discoverable information based on an alleged
"reporter's privilege," and they have already raised an allegation that Plaintiffs
have engaged in the destruction of evidence, yet refused to provide Plaintiffs with
supporting information that Plaintiffs would need to investigate the charge.
Additionally, Plaintiffs' concerns about Defendants using the pleadings in
this matter, both as a forum to disparage Plaintiffs and as a source of material
Defendants will mischaracterize, editorialize, sensationalize and publish to
misinform the public, have come to fruition since the lifting of the impoundment
order. In fact, since the Court's denial of Plaintiffs' Motion for Impoundment,
Defendants have directed visitors to the infringing "Save3ABN" website to the
Court's PACER system, clearly evidencing their intent to use this Court's own
document repository and the pleadings and submissions contained therein, as a
platform to continue publishing defamatory and derogatory statements about the
Plaintiffs. Thus, Plaintiffs' also anticipate the case will require substantial
attention to the protection of various discovery materials and case submissions.
|
Description of Case
Concise Factual Summary of Defendant's claims/defenses;
Defendants vehemently deny the Plaintiffs' allegations of defamation and
in defense assert that Plaintiffs are participating in a conspiracy of
misinformation, have issued factually challenged statements, and have failed to
deliver any proof of their own defamatory and factually challenged claims against
their victims and the Defendants, despite repeated requests from the Defendants,
some victims, and others.
The Defendants further assert the record will demonstrate as a matter of
fact, statute, and precedent that the allegations regarding Trademark Infringement,
Copyright Violation, and Trademark dilution are willfully and wantonly frivolous
claims, without merit, and consequently an abuse of process intended to silence
the plaintiffs' critics and not to recover any purported damages. Indeed, the
defamation per se that the plaintiffs have so repeatedly emphasized to this Court is
characterized by its standing as a legal theory worthy of bringing to trial even in
the absence of actual damages.
The Defendants took the notice contained in the Complaint that the
repetition of the asserted trademarks of Three Angels Broadcasting Network, Inc.,
in the referrer tags contained in the web pages of save3ABN.com was asserted as
an infringement and removed those references, which were never visible on the
online display anyway and even were ignored by the search engines that many
years ago relied on them. Thus, under applicable statutory and case law, there is
no infringement, as "save3ABN" is not going to confuse any member of the
public that the web site is a product or part of the business or even a competitor of
Three Angels Broadcasting Network, Inc.
The defamation cause relates to Defendants' ecclesiastical investigation of
allegations and charges relating to the personal and professional conduct of the
self-appointed managing director and purported founder, other employees, past
and present, and the members/directors of Three Angels Broadcasting Network,
Inc. Defendants have conducted hundreds of hours of interviews and collected a
substantial record of documents and statements from dozens of witnesses, victims,
and employees, past and present. Defendants have provided ecclesiastical reports
accurately reflecting the historical record of events during the twenty years of
3ABN history.
The plaintiffs' personal, professional and corporate conduct is chimeral
and duplicitous as they profess adherence to Seventh-day Adventist conservative
theology while Three Angels Broadcasting Network, Inc., allows their self-appointed
leader to conduct himself in such a way as to prove violative of the
clear and rigorously enforced standards required of ministry leadership within the
Seventh-day Adventist Faith just as they are expected of the churches'
membership. They collusively have repeatedly violated the code of conduct
expected of an institution that professes an absolute faith in, and teaches, the
doctrines of the Seventh-day Adventist Church. Plaintiffs have in concert violated
the code of conduct required as a member of Adventist-laymen's Services and
Industries, a Seventh-day Adventist, denominationally-affiliated businessmen's
organization. Defendants intend to prove that the plaintiffs have colluded to
underwrite and allow this self-appointed leader to stoop to a level best described
as institutional and personal corruption unbecoming of a leader of a Seventh-day
Adventist supporting ministry. Such a violation of the rules of their faith that the
Seventh-day Adventist membership abides by is a regular topic of member
discussion and the only difference the defendants brought to the discussion was to
uncover the proof of the truth. In response, the plaintiffs are, in a familiar and oft-repeated
scenario, seeking to silence them by bringing suit.
Plaintiffs have fraudulently relied upon the Seventh-day Adventist worldwide
congregation for the funds to operate, claiming to proclaim the unique-to-Seventh-day
Adventists Three Angels' Messages, while coming to this court and
representing themselves as operating a non-denominational institution. Plaintiffs
have colluded repeatedly to misinform or delude the various Seventh-day
Adventist congregations in such a way as to fraudulently continue to collect
donations, trusts, wills, tithes, bequests, and gifts both outright and in trust, and
have willfully attempted to cover up conduct that was clearly violative of the
rights of their victims. The actual record demonstrates a willfully deceptive effort
to deceive victims and contributors to the clear benefit of Plaintiff Danny Lee
Shelton and demonstrates that the very limited membership of 3ABN willfully
and repeatedly ignored clear warnings of corruption and misuse of financial
assets entrusted to 3ABN and its affiliates. The actual record demonstrates a
willfully deceptive effort to deceive cast-aside victims of corruption and to
deprive them of due process, to willfully set about to defame or undermine the
character and personalities of its cast-aside victims, and to deprive them of their
livelihood after the fact, all contrary to the standards expected of a Seventh-day
Adventist supporting ministry and violative of the trust of more than 100,000
contributors to 3ABN. The actual record will demonstrate that the membership of
3ABN failed to show due diligence and to investigate the various warnings,
wantonly electing to rely upon the factually challenged representations and
statements of its self-appointed leader and purported founder, Danny Lee Shelton,
to their ultimate detriment.
Defendants reassert their constitutional right pursuant to the US
Constitution and the First Amendment thereto to continue to investigate and to
report on the conduct of the Plaintiffs. Further, by their written statements the
Plaintiffs and Plaintiffs' counsel clearly intended the filing of this action to result
in the silence of the press and as such would be a misuse of process pursuant to
the Defendants' right to freedom of the press, freedom of religion, and freedom of
speech inherent in the US Constitution. Defendants further assert that the
Plaintiffs' proposed STIPULATED PROTECTIVE ORDER GOVERNING
CONFIDENTIALITY is a contempt of the Honorable Court and a veiled effort to
impound discovery grossly violating the clear order of the court as the Plaintiffs
continue their efforts to sidestep local rule 7(a) in an effort to avoid full disclosure
to the contributing public.
| |
Statement of Jurisdiction (including statutory citations);
Original subject matter jurisdiction under 15 U.S.C. § 1121 (action arising under
the Federal Trademark Act).
Original subject matter jurisdiction under 28 U.S.C. § 1388 (action arising under
an Act of Congress related to copyright and trademark).
Diversity jurisdiction under 28 U.S.C. § 1332 (action where the matter in
controversy is between citizens of different states and the amount in controversy
exceeds $75,000 (exclusive of costs and interest)).
|
Statement of Jurisdiction (including statutory citations);
Original subject matter jurisdiction under 15 U.S.C. § 1121 (action arising under
the Federal Trademark Act).
Original subject matter jurisdiction under 28 U.S.C. § 1388 (action arising under
an Act of Congress related to copyright and trademark).
Diversity jurisdiction under 28 U.S.C. § 1332 (action where the matter in
controversy is between citizens of different states and the amount in controversy
exceeds $75,000 (exclusive of costs and interest)).
| |
Summary of Factual Stipulations or Agreements;
The parties have not successfully stipulated to any facts nor executed any
agreements related to discovery, trial, or case management.
|
Summary of Factual Stipulations or Agreements;
The parties have not successfully stipulated to any facts nor executed any
agreements related to discovery, trial or case management other than jointly
authored statements contained in this report.
| |
Statement of whether jury trial has been timely demanded by any party.
To date, neither Party has demanded a trial by jury.
|
Statement of whether jury trial has been timely demanded by any party.
Jury request has been made by plaintiffs and
defendants [inserted by Mr. Joy].
| |
Pleadings
Statement of whether all process has been served, all pleadings filed
and any plan for any party to amend pleadings or add additional parties to the action;
Defendants have been served with the Summons and Complaint. The
Summons and Complaint have been filed. Defendants have both
answered the Complaint. All motions pleadings to date have been filed.
Defendant Joy has indicated he intends to move to amend the pleadings to
include affirmative defenses and a counterclaim, but refuses to disclose
the nature or basis of the proposed claim or defenses. Defendant Joy also
intends to move to amend the pleadings to add additional parties as
appropriate. Neither Defendant Pickle nor Plaintiffs currently plan to
move for amendment of the pleadings or for the addition of parties, but
reserve their right to timely do so in the course of the litigation,
|
Pleadings
Statement of whether all process has been served, all pleadings filed
and any plan for any party to amend pleadings or add additional parties to the action;
Defendants have been served with the Summons and Complaint. The
Summons and Complaint have been filed. Defendants have both answered
the Complaint. All motions pleadings to date have been filed. Defendant
Joy has indicated he intends to move to amend the pleadings to include
affirmative defenses and a counterclaim. Defendant Joy does intend to
amend the pleadings and add additional parties as appropriate. The other
parties have reserved the right to add parties.
| |
Proposed date by which all hearings on motions to amend and/or add
parties to the action shall be heard:
Plaintiffs' Proposed Date: August 15,2007
Defendants' Proposed Date: August 15, 2008
|
Proposed date by which all hearings on motions to amend and/or add
parties to the action shall be heard:
August 15, 2008 [date disputed by Plaintiffs]
|
| |
(c) |
Discovery Limitations
|
The parties recommend that the Court limit the use and numbers of
discovery procedures as follows:
| |
(A) |
All parties propose 25 for each party interrogatories;
|
| |
(B) |
All parties propose No Limit document requests;
|
| |
(C) |
Plaintiffs propose 20 for each party[;]
Defendants propose No Limit factual depositions;
|
| |
(D) |
All parties propose No Limit requests for admissions;
|
| |
(E) |
N/A Rule 35 medical examinations;
|
| |
(F) |
Plaintiff proposes 2 expert depositions for each party;
Defendant proposes 6 expert depositions for each party.
Plaintiff proposes a Stipulated Protective Order (proposed Order attached hereto)
to govern discovery other.
|
|
| |
(c) |
Discovery Limitations
|
The Defendants recommend that the Court limit the use and numbers of
discovery procedures as follows:
| |
(A) |
25 (for each party) interrogatories;
|
| |
(B) |
No Limit document requests;
|
| |
(C) |
No Limit factual depositions;
|
| |
(D) |
No Limit requests for admissions;
|
| |
(E) |
N/A Rule 35 medical examinations;
|
| |
(F) |
6 expert depositions for each party other;
|
|
| |
(d) |
Discovery Schedule Deadlines |
The parties recommend that the Court establish the following discovery deadlines:
July 15, 2008 deadline for completion of non-expert discovery, including service and response to
interrogatories, document requests, requests for admission and scheduling of factual depositions;
N/A deadline for completion of all Rule 35 medical examinations;
|
| |
(d) |
Discovery Schedule Deadlines
|
The parties recommend that the Court establish the following discovery deadlines:
July 15, 2008 deadline for completion of non-expert discovery, including service and response to
interrogatories, document requests, requests for admission and scheduling of factual depositions;
deadline for completion of all Rule 35 medical examinations; N/A
|
| |
(e) |
Experts
The parties anticipate that they will require expert witnesses at time of trial.
|
The plaintiff anticipates calling at
least two experts in the field(s) of:
Journalism – to testify as to the standards of care related to due diligence
and fact corroboration in investigative reporting.
Computer forensics – to testify as to the storage, maintenance,
transmission, receipt, and deletion of electronic information via electronic
mail, website publication, internet chat room postings, and weblog
activity.
Rebuttal experts as warranted.
|
| |
(e) |
Experts
The parties anticipate that they will require expert witnesses at time of trial.
|
[removed at request of counsel for Plaintiffs]
| |
The defendant anticipates calling _____
experts in the field(s) of:
The Court is directed to Defendants' expert witness discussion contained
in Defendants' Rule 26(f) Report.
|
The defendant anticipates calling at least six
experts in the field(s) of:
First Amendment Expert; Trademark and Copyright Expert;
Defamation, slander and libel; Forensic accounting; theology,
denominational and ASI standards; Broadcast license and
acquisition experts;
| |
The parties pursuant to Local Rules, recommend the disclosure and
discovery option as follows:
Plaintiff has no recommendation.
The Court is directed to Defendants' recommendation contained in Defendants' Rule 26(f) Report.
|
The parties pursuant to Local Rules, recommend the disclosure and
discovery option as follows:
[Plaintiffs suggested each party submit a recommendation]
Defendants suggest that copies of all relevant documents be made and sent
to parties or their counsel of record. Electronic documents will be
archived and if electronic copies are made and sent they will be exact
copies of the electronic documents in media such as CD or DVD which
are generally readable.
The parties agreed not to destroy relevant documents during the pendency
of the litigation.
| |
The parties recommend that the Court establish the following
deadlines for disclosure of experts and experts' opinions consistent
with Rule 26(a)(2):
Deadlines for all parties' identification of expert witnesses
(initial and rebuttal). (Fed.R.Civ.P. 26(a)(2)(A).)
All parties recommend December 15, 2008
Deadlines for completion of disclosure or discovery of the substance of expert witness opinions.
All parties recommend February 15, 2009
Deadlines for completion of experts witness depositions, if any.
All parties recommend February 15, 2009
|
The parties recommend that the Court establish the following
deadlines for disclosure of experts and experts' opinions consistent
with Rule 26(a)(2):
Deadlines for all parties' identification of expert witnesses
(initial and rebuttal). (Fed.R.Civ.P. 26(a)(2)(A).)
December 15, 2008
Deadlines for completion of disclosure or discovery of the substance of expert witness opinions.
February 15, 2009
Deadlines for completion of experts witness depositions, if any.
February 15, 2009
| |
|
| |
The parties recommend that motions be filed and served on or before the following date:
Plaintiffs recommend August 15, 2008[;]
Defendants recommend October 15, 2008 non-dispositive motions;
Plaintiffs recommend August 15, 2008[;]
Defendants recommend October 15, 2008 dispositive motions;
|
The parties recommend that motions be filed and served on or before the following date:
October 15, 2008 non-dispositive motions;
October 15, 2008 dispositive motions;
| |
All parties agree that the case will be ready for trial on or after
March 15, 2009.
All parties recommend he final pretrial conference should be held on or before
March 1, 2009.
|
The parties agree that the case will be ready for trial on or after
March 15, 2009.
The final pretrial conference should be held on or before March 1, 2009.
|
| |
(h) |
Insurance Carriers lndemnitors:
|
List all insurance carriers/indemnitors, including limits of coverage of each
defendant or statement that the defendant is self-insured.
The Court is directed to Defendants' statement of insurance coverage contained in
Defendants' Rule 26(f) Report.
|
| |
(h) |
Insurance Carriers lndemnitors:
|
List all insurance carriers/indemnitors, including limits of coverage of each
defendant or statement that the defendant is self-insured.
Defendant Joy is un-insured;
Defendant Pickle may be insured for some allegations;
| |
The parties have agreed to discuss settlement before August 31, 2007,
by the plaintiffs making a written demand for settlement and each defendant
making a written response/offer to plaintiffs' demand.
The Plaintiffs believe that a settlement conference is appropriate and
should be scheduled by the Court before
March 1, 2009
The parties have discussed whether alternative dispute resolution
(ADR) will be helpful to the resolution of this case and recommend
the following to the Court:
During the 26(f) Conference, Defendant Joy stated that, because he
believes his efforts to resolve the matter out of court prior to the filing of the
instant suit were unsuccessful, he refuses to settle the instant matter. If Defendant
Joy's position remains unchanged, ADR would likely prove a fruitless exercise
and a waste of party and judicial resources. Nonetheless, Plaintiffs are willing to
engage in ADR should such be ordered by the Court.
|
The parties will discuss settlement before August 31, 2007, by the
plaintiff making a written demand for settlement and each defendant
making a written response/offer to plaintiff's demand.
The parties believe that a settlement conference is appropriate and
should be scheduled by the Court before May 15, 2009.
The parties have discussed whether alternative dispute resolution
(ADR) will be helpful to the resolution of this case and recommend
the following to the Court:
The parties have not discussed alternative dispute resolution, within the
context of this case, to the point that they could offer the Court a joint
recommendation.
The defendants actively sought to resolve all matters through alternative
dispute resolution, namely the Seventh-Day Adventist formal hearing
procedure, but ultimately the plaintiffs refused to participate as the nature
and format of the hearings became clear.
|
| |
(j) |
Trial by Magistrate Judge
|
The parties have agreed they will not consent to jurisdiction by the
Magistrate Judge pursuant to Title 28, United States Code, Section 636(c).
(If the parties agree, the consent should be filed with the Rule 26(f) Report.)
|
| |
(j) |
Trial by Magistrate Judge
|
The parties have not agreed to consent to jurisdiction by the Magistrate
Judge pursuant to Title 28, United States Code, Section 636(c). (If the
parties agree, the consent should be filed with the Rule 26(f) Report.)
|
|
