Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 1 of 20

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1 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION DEONNE MAGGETTE, ET AL., PLAINTIFFS V. CIVIL ACTION NO. 2:07CV181-M-A LEAD CASE BL DEVELOPMENT CORP. d/b/a GRAND CASINO TUNICA; ET AL. DEFENDANTS CONSOLIDATED WITH McKINLEY JACOBS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF FANNIE JACOBS, DECEASED; ET AL., PLAINTIFFS V. CIVIL ACTION NO. 2:07CV182-M-A BL DEVELOPMENT CORP. d/b/a GRAND CASINO TUNICA; ET AL. DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION OF NON-PARTY CHRISTOPHER A. GARCIA TO CORRECT COURT'S SUA SPONTE ORDER OF MAY 17, 2010 WITH RESPECT TO MR. GARCIA AND TO FIND THAT IT LACKS JURISDICTION OVER HIM Introduction and Summary of Relief Sought This Court's sua sponte order of May 17, 2010 found movant and non-party Christopher A. Garcia guilty of very serious misconduct based solely upon the erroneous and incomplete reports of Special Master Craig Ball. Mr. Garcia has not appeared before this Court, was not counsel in this Court and has not otherwise submitted himself to its jurisdiction. Nonetheless, Mr. Garcia was not afforded notice or a de novo hearing as mandated by Fed. R. Civ. P. 53 and by this Court's order appointing Mr. Ball.

2 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 2 of 20 Mr. Garcia respectfully moves this Court to consider the full context and substance of Mr. Garcia's statements in his voluntary interview with Mr. Ball that formed the basis for Mr. Ball's accusations against him. Such a review would make clear that Mr. Garcia provided information that he reasonably believed was accurate, and that he was not guilty of the misconduct attributed to him by Mr. Ball and, on that basis, by the Court's May 17 Order. Because of Mr. Ball's erroneous assertions, the May 17 Order has cost Mr. Garcia, a successful practicing lawyer for 16 years, his job as an income partner at Jackson Lewis LLP. It has caused him to self-report to the Illinois bar disciplinary agency. Unless corrected, it will likely have a career-altering impact on Mr. Garcia, who has never been censured or disciplined. Mr. Garcia respectfully moves the Court to review whether it has jurisdiction over him and to find that it does not. Because of the harm done by the incomplete record presented to the Court by the Special Master and the resulting May 17 Order, in the alternative, Mr. Garcia asks the Court to issue an order, based upon the newly-furnished information in this Memorandum, withdrawing the statements made about him in the May 17 Order and accurately reflecting his conduct. If the Court concludes that it has jurisdiction over Mr. Garcia and wishes additional information, without waiving his jurisdictional objection, Mr. Garcia requests a de novo hearing to correct the Court's serious misapprehensions about his actions. Jurisdiction Mr. Garcia is a lawyer licensed to practice in Illinois. While a partner at Seyfarth Shaw LLP ("Seyfarth") in Chicago, he represented defendants BL Development, Inc. and Caesars Entertainment, Inc. in Illinois state court litigation arising from the Walters Bus Crash. In late March 2010, for reasons unrelated to the Bus Crash Litigation, Mr. Garcia relocated to practice with the law firm of Jackson Lewis LLP. As a result of the Court's May 17 Order, he has been asked to resign from that firm and has tendered his resignation. 2

3 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 3 of 20 The Illinois Litigation in which Mr. Garcia and Seyfarth had been engaged was dismissed as to BL Development and Caesars Entertainment for want of personal jurisdiction in early 2008, by order of the Illinois Court. Thereafter, Mr. Garcia and others at Seyfarth assisted Robert Moore and other Mississippi counsel for the same defendants by providing documents and information from the Illinois Litigation. They provided limited assistance as is customary between prior counsel and successor counsel for the same parties in related litigation. Robert Moore has acknowledged that he and his firm (i) were fully responsible for all decisions made in handling this litigation in this Court, (ii) did not limit their efforts to the information provided by Mr. Garcia and Seyfarth from the Illinois Litigation, and (iii) "made additional inquiry of multiple persons with knowledge of the facts at a local and corporate level." 1 Based on the May 17 Order at 5-6, the Court appears to be under the misapprehension that Mr. Garcia has acted as counsel in this case. He has not. Mr. Garcia has not filed an appearance, appeared in this Court or played a role that would permit the Court to assert jurisdiction over him. 2 At the very outset, the Special Master admitted the absence of jurisdiction over Mr. Garcia and the voluntary nature of Mr. Garcia's interview on March 12, 2010: I do not regard myself as in any position to recommend any actions for good or for ill against you. I don't see the Court as having any kind of personam jurisdiction with regard to your conduct in Judge Alexander's court. 1 Affidavit of Robert L. Moore of August 3, [Dkt ] 2 Indeed, Mr. Garcia expressly told plaintiffs' counsel in the Mississippi Litigation that he had no authority "to make any agreements concerning, or even to discuss, any claims filed against BL Development or any other entity in Mississippi, or any other venue outside of Illinois," and directed all matters relating to the Mississippi Litigation to Mr. Moore. See letter dated January 28, 2008 from Mr. Garcia to plaintiffs' counsel, Exhibit A. 3

4 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 4 of 20 Transcript of 3/12/10 interview ["Tr."] at Mr. Ball has strenuously objected to Mr. Garcia citing the transcript of the interview in his defense. For reasons described in the accompanying footnote, Mr. Ball's position is untenable. 4 His proposed restrictions on use of the transcript would prevent the Court from knowing the full context and substance of Mr. Garcia's statements, contrary to the requirements of Rule 53 and applicable law that the evidentiary basis for a special master's conclusions be included in the record. As a matter of basic fairness, Mr. Ball's position is also untenable because he has quoted selected excerpts from the interview in his Second Report to this Court, see Second Report at 5, n.7, yet he objects to Mr. Garcia using the actual transcript to defend himself. Fifth Circuit case law permits litigants to appear and raise objections to the court's jurisdiction, and at the same time file answers and affirmative defenses without waiving the right to have the jurisdictional issue resolved, and without thereby submitting to the court's general jurisdiction. See Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147, 1149 (5th Cir. 1987). While there are, understandably, few cases that discuss a court's jurisdiction over a nonappearing lawyer, most instructive is Computer Leasco, Inc. v. NTP, Inc., 194 Fed. Appx. 328, 3 A full transcript of Mr. Garcia's interview with Mr. Ball is attached as Exhibit B so that Mr. Garcia's answers can be placed in appropriate context. The transcript was made by a court reporter from a voice recording of the interview. 4 Mr. Ball has now argued that the recording cannot be made public or otherwise used, except to refresh recollection. Mr. Ball's position is untenable because he did not tell Mr. Garcia of such restrictions prior to the interview, and told him the contrary. See Tr. at 9, where Mr. Ball states that the purpose of the recording is "mutually protective in that sense so that I won't recount anything you say in any way unfaithfully..." As noted in this Motion, Mr. Ball has not held to his commitment and the actual text of Mr. Garcia's interview (and not mischaracterizations of his answers) is needed to demonstrate the facts to the Court. The Committee Notes to Rule 53 make plain the applicable standard: "The records appropriate to discovery duties [of a special master] may be different from those appropriate to encouraging settlement, investigating possible violations of a complex decree, or making recommendations for trial findings. A basic requirement, however, is that the master must make and file a complete record of the evidence considered in making or recommending findings of fact on the basis of evidence." Fed. R. Civ. P. 53, Comment to Subdivision (b) (2003) (Emphasis added.) 4

5 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 5 of WL , at *10 (6th Cir. 2006), where the Court of Appeals reviewed case law concerning when a lawyer would be viewed as functioning before a court. It concluded that a lawyer is an officer of the court and accountable to it "while preparing her client's case." Id. In contrast, and as in the present case, a lawyer "who never participated in the litigation or took steps to prevent the proper functioning of that court" is not. Id. To like effect is Manez v. Bridgestone Firestone N. Am. Tire, LLC, 533 F.3d 578, 586 (7th Cir. 2008), where the Court of Appeals found jurisdiction to impose sanctions upon a Mexican lawyer who conspired with American lawyers to submit false opinions, as a purported expert on Mexican law, to those lawyers about a corruptly-rigged Mexican court proceeding, "knowing that they would in turn submit them to the district court and this court in connection with" the pending litigation. The Court of Appeals upheld jurisdiction over the Mexican lawyer, but only with respect to his actions that were knowingly aimed at influencing the District Court and Court of Appeals. It held that any misconduct before the Mexican courts was outside its jurisdiction. Id. at 588. In this case, Mr. Garcia did not do anything remotely resembling the conduct of the lawyer in Manez, and he was not responsible for the decisions to provide specific discovery responses to the parties and information to this Court. For these reasons, this Court should find that it does not have jurisdiction over Mr. Garcia and vacate the portion of its May 17 Order that attributes misconduct to him. In the Alternative, this Court's Conclusion Based Solely upon Mr. Ball's Incomplete and Inaccurate Reports that Mr. Garcia Engaged in Misconduct Is Incorrect, Extremely Harmful and Should Be Corrected Under Fed. R. Civ. P. 53(f)(3) and (4), and this Court's Order of December 28, 2009 appointing Mr. Ball, this Court is required to undertake a de novo review of Mr. Ball's factual conclusions on non-procedural matters. 5 See Wixom v. Wyndham Resort Dev. Corp., No. 5 Paragraph 10 of the Court's December 28, 2009 Order states as follows: 5

6 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 6 of 20 07C02361, 2009 WL , at *3 (N.D. Cal. Sept. 21, 2009) (court reviews all objections to special master's findings of fact and conclusions of law de novo). Plainly, whether a lawyer has engaged in dishonest conduct is not a procedural ruling. In adopting the Special Master's inaccurate factual conclusions in the May 17 Order, without affording Mr. Garcia notice and an opportunity to defend himself, the Court did not follow these requirements. The facts demonstrating that Mr. Garcia did not engage in misconduct are summarized below. Mr. Garcia Did Not Prepare or File False Affidavits. The May 17 Order refers (at 4-5) to a portion of the Special Master's Second Report that stated, in effect, that Mr. Garcia had prepared affidavits for two individuals employed by his former clients, Ms. Myers and Mr. Ewing, that were false in concluding that Hurricane Katrina had destroyed relevant client records. The Court quoted the Special Master's Second Report, which had stated that "their affidavits were not prepared by them or with their input" and "... the greater fault falls of [sic] counsel who selected these witnesses for the roles thrust upon them." Id., at 5. Based on this information the Court wrote: "When counsel are forced to resort to canned affidavits from unknowledgeable employees which parrot a company line which is patently false, this further fosters the impression that a wilful deception of this court has taken place." Id. One would necessarily conclude from the Report, and the Order, that Mr. Garcia knowingly engaged in willful deception by creating and filing false affidavits, and taking advantage of unsophisticated client representatives by having them sign the affidavits. This is The court will decide de novo all objections to findings of fact or conclusions of law made by the Special Master. Any order, report, or recommendation of the Special Master, unless it involves a finding of fact or conclusion of law, will be deemed a ruling on a procedural matter. The xourt [sic] will set aside a ruling on a procedural matter only where it is clearly erroneous or contrary to law. 6

7 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 7 of 20 completely contrary to the facts, which unfortunately were not provided to the Court by the Special Master. Those facts consist of the following: 1. Mr. Garcia believed the information contained in the Myers affidavit was accurate, based on information received from her and other client representatives. See Tr. at Mr. Garcia told Mr. Ball in his interview that he had no recollection of talking to Ewing or preparing the Ewing affidavit. Tr. at Mr. Garcia did not file either affidavit in the Illinois Litigation. Tr Mr. Garcia did not represent any party in this case and, therefore, did not file either affidavit in this Court. Nor did he recommend filing them in this Court. 3. The affidavits were prepared in the Illinois Litigation to obtain more time to search for documents, not to avoid production. They were never filed because an agreement to extend the time to respond to discovery requests made them unnecessary. The affidavits were prepared at an early stage of the Illinois Litigation, in the Spring of 2006, in order to support a request to the Illinois Court permitted by Illinois Supreme Court Rule 191 to obtain additional time to search for responsive documents that plaintiffs had requested. The affidavits confirm their limited purpose by expressly stating in their concluding paragraph: "Defendants respectfully request 45 days to locate documentation, if any, responsive to Plaintiff's [Rule] 201(l) discovery requests" concerning personal jurisdiction. Moreover, the affidavits did not state that there were no responsive documents only that "[a]rchive documents and computer data were lost," and that additional time was needed to attempt "to locate documentation...." 6 6 Copies of the affidavits are attached as Exhibits 9 and 11 to Memorandum in Support of Defendants' Combined Objection to Special Master's First Report and Motion to Adopt Special Master's Second Report Recommendation That Dispositive Sanctions Not be Imposed, of June 2, 2010 ("Defendants' June 2 Opposition"). [Dkt. 368] At his interview, Mr. Garcia did not recall the purpose for which the affidavits were prepared in the Illinois Litigation. Tr The additional information described in this Motion about that purpose has been determined based on 7

8 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 8 of 20 That statement was correct. As Mr. Ball acknowledged in his Second Report (at 2 and n.3), records were lost due to Katrina. Mississippi counsel for BL Development and Caesars Entertainment, in good faith but apparently without realizing the limited purpose for which the affidavits had been prepared, filed them in unaltered form in this Court. See, e.g., Tr ; Memorandum in Support of Appeal and Objection to Magistrate Judge's Ruling, filed August 3, 2009, and Exhibits F and G thereto [Dkt. 182, 182-7, and 182-8]. That was not Mr. Garcia's decision. 4. Mr. Garcia reasonably believed that the statement in the affidavits concerning the effect of Hurricane Katrina that some documents and computer records had been destroyed was accurate, based on what he was told by many apparently reliable client representatives. He explained this in detail to Mr. Ball in his March 12, 2010 interview. But Mr. Ball did not include Mr. Garcia's explanation in either of his reports to this Court. Here is some of what Mr. Garcia told Mr. Ball on this subject: 8 Q No, I know. I just want to be sure that 9 -- I ask a lot of inartful questions, and I want to 10 be sure if it ever comes back to me, well, Mr. Ball 11 said warehouse, and I actually knew it as the vital 12 data records storage room. I know you are not 13 playing games with me, Mr. Garcia, but it's my job 14 to be precise and not misleading. So we are on the 15 same page. 16 You just had no clue that there were 17 paper records for each of these overnight bus tours 18 for the Walter's Group twice a year stored for a 19 minimum of five years on the Tunica premises? 20 A No. No, I did not. I wish I had. I 21 would have gone there. We would have produced all 22 of them. 23 Q Let me say this to you as well. I 24 interviewed Tundra Myers. You know who she is? I 1 think you have met her, right? the nature of the activity in the Illinois Litigation occurring at the time the affidavits were signed, and from a review of the text of the affidavits themselves. 8

9 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 9 of 20 2 A Yes. 3 Q Tundra Myers told me that when she swore 4 to the fact that the original of the records, of 5 some of these records that were physically 6 destroyed in Gulfport as a consequence of the 7 storm, that she knew that at the time that those 8 were destroyed, that there were counterparts, 9 copies of those records, that they were stored 10 locally in Tunica, and she knew because it was her 11 responsibility to send them periodically over to 12 the vital records storage area, that she had an 13 actual conscious awareness of it. 14 I take it that you weren't aware of 15 it? 16 A That's correct, I was not aware of 17 that. 18 Q Explain to me how your questioning or 19 interviewing of Ms. Myers occurred in such a way 20 that she would have felt that she could not relate 21 to you that the documents that you were claiming 22 were lost actually had faithful copies stored under 23 her custody and where she worked? 24 A As you know, Mr. Ball, I can't testify 1 to what she felt or what she thought. The 2 assumption in your question that somehow she felt 3 in my questioning not free to tell me about these 4 documents is incorrect. I was as clear with Tundra 5 Myers as I could be. I need everything to do with 6 bus trips from Illinois to the Grand Casino Tunica, 7 everything. 8 She said it would be stored on Delphi, 9 but Delphi could not retrieve historical 10 information without a confirmation number. She 11 never mentioned a warehouse. 12 All I can do is ask for everything. And 13 I did do that. So I don't know what her 14 motivations were or what her thought processes 15 were. * * * * * 4 [Q].... You would agree with me 5 that if you knew that there were copies in Tunica, 6 that there is no question you would have recognized 7 the obligation to collect them and produce them? 8 A Absolutely. 9 Q I know that. And I really do know that, 9

10 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 10 of Mr. Garcia. Okay. I'm facing, I'm facing A I find it -- go ahead. I'm sorry. 12 Q Please. You are the witness here. 13 A Well, I just -- I'm a little incredulous 14 that none of this came out at her deposition nor 15 during my frequent talks with her, or for that 16 matter, Susan Harmon's talks with her. 17 I did know the existence both Ms. Harmon, Tundra Myers, Mark Connor, all told me 19 that the tour and travel office was located in 20 Gulfport. And this is a matter of spectacular 21 public record, Katrina destroyed the city and that 22 those records were destroyed. 23 Gary Benson told me because I asked 24 about archiving and backup systems. Gary Benson 1 told me to my face when he was here and I produced 2 him for his deposition that the reason there were 3 no backups is because the information was not vital 4 in the sense that the casino made very little 5 profit from these bus tours. So this wasn't really 6 vital information. So he didn't -- he thought that 7 was why that they weren't backed up. 8 But you know, the information that I was 9 receiving was consistent. We produced over 10, pages from the one system that Joe Long found in 11 Atlantic City. I would have happily produced 12 another 10,000 had I known they existed. Tr The affiants did not have firsthand knowledge of the destruction of records by the hurricane and necessarily relied on what others had told them. Mr. Garcia also informed Mr. Ball of that fact. Tr. 82. Using an affidavit of this sort to obtain additional time to search for documents was not unreasonable. In any case, Mr. Garcia never filed the affidavits in any court. Mr. Garcia did what most lawyers do. He relied on his client representatives for information about the existence and location of records to respond to discovery requests. Mr. Ball acknowledged in his First Report, at 16, n.16, that the client representatives asked to search for documents "were sometimes the heads of their departments, so they would appear to have been sound choices...." Indeed, in his own investigation Mr. Ball followed the same practice 10

11 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 11 of 20 of relying upon what BL Development employees told him. Mr. Ball acknowledged this in his First Report, when he stated that he elected not to review documents at Tunica located in Warehouse B because he was "assured it held only records from another casino property." First Report at 9, n.10. Likewise, Mr. Moore and his colleagues accepted and relied upon what they were told by client representatives in preparing their discovery responses in this Court. 7 The Special Master concluded that "Mr. Moore was not wrong to rely upon those whom he mistakenly believed to be competent or trustworthy,..." First Report at 24. Mr. Ball fails to explain why the same conclusion should not apply with equal force to Mr. Garcia, who relied on some of the very same witnesses. Moreover, Mr. Garcia told Mr. Ball all of the facts described above concerning what Mr. Garcia had been told by client representatives both at his interview and again in an before Mr. Ball filed his Second Report. Peter Woodford, Seyfarth's General Counsel, attended the telephonic interview on March 12, Long after the interview, on the evening of May 5, 2010, Mr. Ball sent Mr. Woodford an excerpt from a draft of his Second Report to be filed the next day. Despite the short time afforded for comment, Mr. Woodford advised Mr. Ball of the facts quoted above in an of May 6, 2010, Exhibit C. Mr. Ball did not include them despite Mr. Woodford's request. Mr. Garcia did not tell any knowing falsehoods to Mr. Ball. The May 17 Order, at 5, refers to "what appear to be outright lies told to him [Mr. Ball] to this court by Christopher Garcia...." The Order bases this serious misapprehension upon an excerpt from Mr. Ball's Second Report. Mr. Ball reported that Mr. Garcia lied to him by denying that he had received 37 pages of documents from Susan Harmon, a client representative, when Mr. Garcia was involved in the Illinois Litigation. Mr. Ball asked Mr. Garcia if he had 7 Affidavit of Robert L. Moore 3. [Dkt 182-3] 11

12 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 12 of 20 received the documents from Ms. Harmon. Mr. Garcia said that he had not. The Court accepted Mr. Ball's characterization of this statement as a knowing falsehood. The May 17 Order states at 9: "It seems clear that Garcia attempted to conceal the existence of specific communications between himself and Ms. Harmon." 8 The Court also asked, "[O]n what basis might this court presume that Garcia or some other BL employee did not hide and/or destroy important evidence which crossed his desk?" Id. at 6. Mr. Garcia did not attempt to "conceal the existence" of any communications nor did he lie. He made two honest mistakes. It is undisputed that in January 2007 he simply overlooked the documents attached to the Harmon ; and in his March 2010 interview he told Mr. Ball that he had not received the documents. Neither was the product of dishonesty. When he learned of his errors, he corrected them and informed Mr. Ball, prior to the issuance of the Second Report. Mr. Ball referred in his Second Report to the circumstances explaining why Mr. Garcia did not open and read the Harmon attachments on January 16, 2007: "On or about January 16, 2007, Mr. Garcia was dealing with the imminent death from cancer of the man who had been his step-father for many years, and with the process of trying to provide assistance in these difficult circumstances to his mother, who was living in California, while also attending to Mr. Garcia's professional responsibilities as a lawyer in Chicago and traveling for business. In that mix of circumstances he simply overlooked the attachment to the from Ms. Harmon. That was an oversight, but not dishonest in any respect. As he told you [Mr. Ball] when you interviewed him on March 12th, many of the documents that were attached to Ms. Harmon's had been produced by others in the Illinois litigation and were no secret to anyone." Second Report at 6 n.12 (quoting Mr. Woodford's to Mr. Ball). 8 The "specific communications" apparently refers to a single January 16, 2007 e- mail and its attached documents. The was from Ms. Harmon to Mr. Garcia. Although the May 17 Order uses the plural ("communications"), Mr. Ball's report does not suggest any other communication. 12

13 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 13 of 20 With respect to the interview itself, Mr. Garcia told Mr. Ball that he had not received the documents that accompanied the January 2010 Harmon because he believed that to be true based on the limited, but reasonable, investigation he made prior to the interview. He looked through the discovery materials from the Illinois Litigation and he spoke with the associate who was responsible for handling discovery materials. The documents were not included in the discovery materials and the associate did not believe they had been provided to Seyfarth. Mr. Ball converted Mr. Garcia's honest mistakes into conscious and intentional lies. The Court appears to have accepted Mr. Ball's unwarranted characterization. Mr. Ball's erroneous conclusions are based on the claim that "Mr. Garcia knew the purpose of my interview was to investigate the failure to produce the materials transmitted to him by Ms. Harmon,..." Second Report at 6 (emphasis added). That is not correct. Mr. Garcia was not told that investigating whether he received the Harmon documents was the purpose of the interview, nor was it. At the start of the interview, Mr. Ball described his purpose as "fairly wide ranging," Tr. 2, and later stated "this isn't about me trying to fix responsibility on Chris Garcia." Tr. 28. In 149 pages of interview transcript only a handful of questions and answers focused on the Harmon documents. Mr. Ball also overstated, and thereby distorted, Mr. Garcia's level of confidence that he had not received the documents. Mr. Ball stated that "Mr. Garcia was adamant on this point." Second Report at 5. Mr. Ball added: "Whatever justification Mr. Garcia advances for his failure to produce in 2007, there is no justification for his failure to locate and disclose these material [sic] when I interviewed him in March 2010." Second Report at 6. The Court relied on this conclusion when it referred in the May 17 Order to "what appear to be outright lies told to him [Mr. Ball] to this court by Christopher Garcia..." In support, the Court quoted the following from Mr. Ball's Second Report: 13

14 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 14 of 20 "When I asked Mr. Garcia if he'd checked thoroughly to be certain that no one at his firm had received the unproduced documents, he confidently asserted that he had not received them and that neither the associate working with him nor anyone else at his firm had received the material. Mr. Garcia's statements to me were false." May 17 Order at 5 (quoting Second Report at 5) (emphasis in original). In view of Mr. Ball's mischaracterizations, it is understandable that the Court would conclude that Mr. Garcia had lied. Mr. Ball emphasized the words "thoroughly" and "certain," and said Mr. Garcia was "adamant" thereby suggesting that Mr. Garcia so stated. Again, that is not correct. Again, Mr. Ball did not correct his error, despite Mr. Garcia's request that he do so prior to the release of his Second Report. 9 Mr. Garcia did not state that he had "checked thoroughly." Those were Mr. Ball's words, not Mr. Garcia's. Mr. Garcia did not accept or agree with them. Moreover, Mr. Garcia made no statement about reviewing the records, which is where the Harmon and attached documents were subsequently found. Here is what was said on the subject in the interview, Tr : 24 Q All right. So you didn't get it [the subject documents], and 1 apart from your getting it, I want to be sure, have 2 you checked thoroughly to be certain in your own 3 mind that your firm, no one on your behalf, got 4 this material from the Harrah's organization at any 5 time prior to my appointment? 6 A We have got -- I'm looking at about 50 7 file folders here. I have gone through the 8 discovery that I was responsible for [in] this case. 9 And the associate working on it always sent 10 everything through me. So I'm confident we did not 9 The quoted language had appeared in the draft section of the Second Report that Mr. Ball furnished to Mr. Woodford on May 5, the day before Mr. Ball finalized that report. Mr. Woodford promptly sent Mr. Ball an on May 6, in which he corrected the statement and accurately described Mr. Garcia's actual statements on the subject in his March 12 interview. That is attached as Exhibit C. Nonetheless, Mr. Ball persisted in filing his Second Report with a totally misleading description of what Mr. Garcia had told him. 14

15 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 15 of get this. Clearly, Mr. Garcia did not say that he had "check[ed] thoroughly." He made no statement about the thoroughness of his preparation for the voluntary interview, or about whether he had reviewed records that were not printed out and already in the paper files. Nor had he reviewed such s prior to the interview. He accurately described what he had done. His reference to "looking at about 50 file folders here" confirmed that he was literally looking at the file folders containing paper records that were in front of him at that moment. He did not say that he had read all such records, and in fact he had not. He said he was confident he had not received the Harmon documents based on his review of discovery materials, which was plainly not a comprehensive review of all possible sources. It is important to note that Mr. Ball had not spoken to Mr. Garcia prior to the interview. Mr. Ball had not sent him any documents to review (relying, instead on Mr. Moore to do so). Mr. Ball had not asked Mr. Garcia or Seyfarth to review records or other documents to determine if the Harmon documents had been received, even though Mr. Ball knew Ms. Harmon said that she had sent them, and even though, when he saw the documents in Harrah's Las Vegas office, he wondered "wow, how did this not get produced." Tr. 17. Under these circumstances Mr. Garcia was not obligated to examine voluminous records (he estimates the number at well in excess of 10,000) to determine if a single had been overlooked in the nearly four years Seyfarth had been involved in the Illinois Litigation. Mr. Ball acknowledged in the interview that Mr. Garcia was participating voluntarily and that Mr. Ball had no jurisdiction over him. Tr The documents in question were clearly within the scope of discovery requests and Mr. Garcia knew of no reason they would not have been produced if received. Tr

16 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 16 of 20 In context, the statement that Mr. Ball emphasized to suggest that Mr. Garcia was lying was Mr. Ball's own characterization which Mr. Garcia declined to adopt. Mr. Ball asked the question without any prior request for a comprehensive document review to a volunteer, Mr. Garcia, who had no reason to undertake a more extensive review than he did. In that context the limited and specific response Mr. Garcia gave to Mr. Ball's question was the truth as Mr. Garcia reasonably understood it at the time. The May 17 Order fails to reflect that, after the interview concluded, Mr. Woodford voluntarily corrected the error on Mr. Garcia's behalf by to Mr. Ball on May 5. Exhibit D. Mr. Woodford sent the correction on May 5, 2010, prior to receiving the draft of Mr. Ball's Second Report. He did so after Seyfarth and Mr. Garcia again voluntarily and without any duty to do so responded to Mr. Ball's request at the end of the interview to assemble and produce the voluminous s between Seyfarth personnel and their clients with respect to discovery in the Illinois Litigation. As a result, an was discovered showing that Ms. Harmon had forwarded the 37 pages of documents to Mr. Garcia in January Mr. Garcia still does not recall receiving it. The Substance of the Harmon Documents Was Known and Litigated in Illinois. The May 17 Order also fails to reflect (again, because Mr. Ball did not report it to the Court) that: (i) many of the documents that Ms. Harmon had sent Mr. Garcia had been produced in the Illinois Litigation by other parties, and thus were not suppressed, Tr. 18; (ii) in the Illinois Litigation, Mr. Garcia and his clients did not dispute the types of facts contained in those documents, Tr , and, therefore, they had absolutely no motive to suppress them or to lie about them, Tr ; and (iii) the Illinois Court, in ruling for Mr. Garcia's clients on the 16

17 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 17 of 20 question of personal jurisdiction, assumed the facts reflected in the documents to be true. Mr. Garcia had informed Mr. Ball of these facts in his interview. 10 After reviewing Mr. Ball's Second Report, Mr. Woodford wrote Mr. Ball on Mr. Garcia's behalf on May 11, 2010 to remind him of these additional facts and to provide Mr. Ball with a copy of the Illinois Court's written order finding no personal jurisdiction in Illinois over BL Development and Caesars Entertainment. A copy of that letter is attached as Exhibit E. In support of several of these conclusions, Mr. Woodford's May 11 letter quoted at length from Judge Duncan-Brice's Order of December 7, Her order shows that the information that the Special Master claimed was not produced in the Illinois Litigation (some of which Mr. Ball incorrectly characterized as a "smoking gun") 11 was, in fact, provided to the parties and to the Illinois Court or assumed by it, was considered by the Judge in Illinois, and was found not to support personal jurisdiction in Illinois. Mr. Ball's melodramatic reference to finding the so-called "smoking gun" the payment of commissions to Walters is another example of Mr. Ball's disregard of the facts because the casino's payment of commissions was undisputed and expressly found to have no significance in the Illinois Litigation. 12 In that litigation, the defendants (via Mr. Garcia) conceded that commissions were paid to Walters. The fact that commissions were paid was clearly known by the Illinois Court and expressly considered by it in concluding that there was no personal ] 11 These facts are also fully developed in Defendants' June 2 Opposition at [Dkt. Second Report at 8, n It is not surprising that Mr. Ball claims to have found a smoking gun. He believes that "each case has its smoking gun" and that finding one is "heroic." See Ball, Neutral Examiners, ("If you've been an examiner for a while, you know the heroic feeling of finding the smoking gun. Perhaps you've watched a lawyer's eyes widen as you detail the embarrassing stuff you've found on the other side's system."). See also Ball, 4 on Forensics, ("Each case has its smoking gun."). 17

18 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 18 of 20 jurisdiction. The Illinois Court's written decision of December 7, 2007 recounted in detail the declarations filed in the Illinois Litigation that had described the casino's practice over the years of paying "cash bonuses and incentives" to Walters and the "potential profit to Walter if 'good' customers were brought to the casino." 12/7/07 Order at 5-6. The Illinois Court expressly held that the fact that commissions were paid did not afford a basis to find jurisdiction in Illinois: Plaintiffs emphasize that Walters was paid a commission under the contract based on the amount of gambling by passengers. As noted by the District court in Zaccaria [v. Baby Grand Corp.], compensation based solely on the payment of a commission does not indicate control U.S. Dist. LEXIS 20203, at *2. Therefore, a commission paid by the Grand Casino to Walters does not amount to an indication of control.... Alternatively, plaintiffs argue Walters and Caesars and BL were joint venturers. A joint venture requires five specific elements. United Nuclear Corp. v. Energy Conversion Devices, Inc. 441 N.E. 2d 1163, 1177 (1st Dist. 1982). "[I]f any of those elements is not present, a joint venture will not be established. Id As noted above, Walters was paid commission. Under Hallmark [Insur. Administrators, Inc. v. Colonial Penn Life Insur. Co.], supra, which plaintiffs have not addressed, "a commission arrangement [is]... not a sharing of losses and profits." 697 F. Supp. at 326. In the absence of a sharing of profits and losses," plaintiffs' joint venture argument fails. 12/7/07 Order at 16, attached to May 11, 2010 letter from Mr. Woodford to Mr. Ball, Exhibit E. During his interview, Mr. Garcia urged Mr. Ball to review the papers in the Illinois Litigation because Mr. Ball seemed to have an erroneous understanding of the legal principles relevant to the Illinois Court's jurisdictional rulings, and thus might not realize the lack of relevance of the non-produced documents to that ruling. Mr. Ball admitted that he had not researched the applicable Illinois law. Tr Mr. Garcia explained why, in view of Illinois law, there would have been no motive to withhold the documents. ("I wanted to turn everything over so we could get right to the ruling....") Tr Mr. Woodford's letter of May 11, 2010 pointed out these facts, and asked Mr. Ball to advise the Court of them. Again, Mr. Ball did not do so. Mr. Garcia's Request for De Novo Review of Mr. Ball's Conclusions. 18

19 Case 2:07-cv MPM-SAA Document 399 Filed 06/22/10 Page 19 of 20 The foregoing demonstrates why the Court has no jurisdiction. In the alternative, it shows why Mr. Garcia is not guilty of the misconduct attributed to him by Mr. Ball and accepted in the May 17 Order. If the Court finds the materials provided in this Memorandum sufficient to correct the Court's understandable misapprehensions, and to resolve Mr. Garcia's alternative request for correction of the May 17 Order, no further proceedings involving Mr. Garcia would seem to be required. In the alternative, however, if the Court concludes that it wishes to hear from Mr. Garcia in person, he will appear voluntarily, without waiving his jurisdictional objection, and requests a hearing de novo to resolve the claims of misconduct. Dated: June 22, Michael L. Shakman Diane F. Klotnia Applications pending for admission Pro Hac Vice Miller Shakman & Beem LLP 180 N. LaSalle Street, Suite 3600 Chicago, Illinois Respectfully submitted, Christopher A. Garcia By: /s/ C. York Craig Jr. Attorney for Christopher A. Garcia 117 Oakhurst Trail Ridgeland MS (601) Mississippi Bar No I, C. York Craig Jr., an attorney for Christopher A. Garcia, hereby certify that I have this day electronically filed the foregoing Motion using the ECF system which sent notification of such filing to all counsel of record. June 22, 2010 By: /s/c. York Craig Jr. 19

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