ECF 899 - Response in Opposition PDF

Case 3:17-cv-00072-NKM-JCH Document 899 Filed 10/29/20 Page 1 of 19 Pageid#: 15324
UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
ELIZABETH SINES, SETH WISPELWEY,

MARISSA BLAIR, APRIL MUÑIZ, MAR-
CUS MARTIN, NATALIE ROMERO, CHEL-
SEA ALVARADO, JOHN DOE, and
THOMAS BAKER,
Plaintiffs,
v.
JASON KESSLER, RICHARD SPENCER,

CHRISTOPHER CANTWELL, JAMES
ALEX FIELDS, JR., VANGUARD AMER-
ICA, ANDREW ANGLIN, MOONBASE
HOLDINGS, LLC, ROBERT “AZZMADOR”
RAY, NATHAN DAMIGO, ELLIOTT
KLINE a/k/a ELI MOSLEY, IDENTITY Civil Action No. 3:17-cv-00072-NKM
EVROPA, MATTHEW HEIMBACH, MAT-
THEW PARROTT a/k/a DAVID MATTHEW JURY TRIAL DEMANDED
PARROTT, TRADITIONALIST WORKER
PARTY, MICHAEL HILL, MICHAEL
TUBBS, LEAGUE OF THE SOUTH, JEFF
SCHOEP, NATIONAL SOCIALIST MOVE-
MENT, NATIONALIST FRONT, AUGUS-
TUS SOL INVICTUS, FRATERNAL ORDER
OF THE ALT-KNIGHTS, LOYAL WHITE
KNIGHTS OF THE KU KLUX KLAN, and
EAST COAST KNIGHTS OF THE KU
KLUX KLAN a/k/a EAST COAST KNIGHTS
Defendants.
RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS

AGAINST DEFENDANT NATIONAL SOCIALIST MOVEMENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................................................................iii
PRELIMINARY STATEMENT...................................................................................1
BACKGROUND...........................................................................................................2
STATEMENT OF THE CASE.....................................................................................4
LEGAL ARGUMENT................................................................................................. 9
CONCLUSION.......................................................................................................... 11
iv
TABLE OF AUTHORITIES
Cases
Velocity Micro, Inc. v. Edge Interactive Media, Inc.,

No. 3:08cv135, at *12 (E.D. Va. Nov. 3, 2008)…………………………………….8
Schrag v. Dinges,
150 F.R.D. 664 (1993)................................................................................................8
Centauri Shipping Ltd. v. W. Bulk Carriers KS,

528 F. Supp. 2d 197, 201 (S.D.N.Y. 2007)………………………………………….8
Oliveri v. Thompson,
803 F.2d 1265, 1267 (2d Cir. 1986)…………………………………………………8
Bowers v. University of Virginia,

No. 3:06cv00041, at *18 n.16 (W.D. Va. June 6, 2008)…………………………...8
Holloway v. Arkansas,
435 U.S. 475, 484 (1978)……………………………………………………………8
Board of License Commissioners of the Town of Tiverton v. Pastore,

469 U.S. 238, 240, 105 S.Ct. 685, 686, 83 L.Ed.2d 618 (1985)…………………….8
Fusari v. Steinberg,
419 U.S. 379, 391, 95 S.Ct. 533, 540, 42 L.Ed.2d 521 (1975)……………………...8
U.S. v. Shaffer Equipment Co.,

796 F. Supp. 938, 950 (S.D.W. Va. 1992)…………………………………………..8
United States v. De Le Puente

755 F.2d 313, 315 (3rd Cir. 1985)…………………………………………………..8
Malin v. Hospira, Inc.,

762 F.3d 552, 564 (7th Cir. 2014)…………………………………………………………...9
U.S. Equal Emp't Opportunity Comm'n v. GMRI, Inc.,

No. 15-20561-CIV-LENARD/GOODMAN, at *5 (S.D. Fla. Nov. 1, 2017)……………….9
Vodusek v. Bayliner Marine Corp.,

71 F.3d 148, 156 (4th Cir. 1995)……………………………………………………10
Stevenson v. Union Pac. R.R.,

354 F.3d 739, 746 (8th Cir. 2004)…………………………………………………..10
Residential Funding Corp. v. DeGeorge Financial Corp.,

306 F.3d 99 (2d Cir.2002)…………………………………………………………..10
v
Rules
Fed. R. Civ. P. 34…………………………………………………………………….9
Fed. R. Civ. P. 34(a)………………………………………………………………….9
Fed. R. Civ. P. 37. ..…………………………………………………………………..9, 10
Fed. R. Civ. P. 37(b)(2).……………………………………………………………...9
Fed. R. Civ. P. 37(e)….……………………………………………………………9, 10, 12
Fed. R. Civ. P. 37(e)(2)………………………………………………………………9, 10
Model R. of Prof’l Conduct Rule 3.3............................................................................9
vi
PRELIMINARY STATEMENT
Defendant National Socialist Movement (“NSM”), by and through counsel, respectfully
submits this Response in Opposition to Plaintiffs’ Motion for Sanctions Against Def. Nat’l
Socialist Movement (ECF 894). Defendant NSM has maintained since the beginning of this
litigation that they were not part of any conspiracy to commit racially-motivated violence,
indeed they were not part of any conspiracy at all. The Defendants first respond to the Pls.
Motion for Sanctions, ECF 894, by stating that despite the protestations and overwrought
demands, all of the reasonably relevant documents, electronically stored information, and
custodians to which the Plaintiffs would be entitled have been produced or offered for
production.
To date, Defendant NSM has turned over all possibly discoverable materials within its
control. All of these documents have been readily available to Plaintiff’s counsel since August
26, 2020 as per the third-party discovery vendor (“Vendor”). Exhibit 1. However, in an
attempt to gain favor with this court and the people, Plaintiffs’ assumptions and opinions are
presented as circumstantial facts. Their motion reads as though it is holy scripture. According
to their motion for sanctions Plaintiffs’ claim they “still do not have information necessary to
even begin discovery into responsive documents and relevant accounts and devices held by
relevant NSM custodians.1” and “of the relatively few documents NSM has produced to date,
the vast majority are non-responsive or unreadable.”2
Plaintiffs have had almost three months to sift through their gathered discovery and it is
only after realizing there is no evidence to support their claims of a conspiracy that they bring
this motion for sanctions. It is this very lack of evidence against Defendant NSM that now
motivates the Plaintiffs to bring forth this motion requesting this court to make their case for
them by instructing a jury to make adverse - inferences.
It is not NSM’s responsibility to make the Plaintiffs case for them. Nor is it the fault of the
1
Pls Motion for Sanctions Against Defendant National Socialist Movement, ECF 894 at 1 ¶ 1.
2
Pls Mot. For Sanctions Against Def. National Socialist Movement ECF 894 at 1 ¶ 2.
1
NSM that what ESI has been rendered does not back up the Plaintiffs’ claims of a conspiracy. If
such documents did indeed exist surely the Plaintiffs would be able to make their case with the
2,000,000 plus files currently in their possession from all defendants in this litigation.
Plaintiffs are convinced that Defendants NSM and Schoep are withholding some relevant and
discoverable evidence, refusing to even entertain the possibility that neither defendant was part
of any alleged conspiracy.
It is defense counsel’s position that both Defendant NSM and Defendant Schoep have
complied with the discovery order to the full extent of their ability to do so. Defendant NSM
cannot produce discovery for items or custodians of which it has no control or plainly do not
exist. An examination of the circumstances surrounding this motion and law demonstrates that
Plaintiffs’ motion and the relief sought is both unwarranted and unlawful.
BACKGROUND3
While Defendant NSM concedes that discovery in this matter has not progressed as
smoothly as either side would have anticipated, this is not solely the responsibility of
Defendants NSM and Schoep. Plaintiffs’ motions are wrought with inaccuracies and
exaggerations. Selectively choosing to omit defense counsel’s previous memorandums and
motion responses explaining the background behind previous discovery issues.
In October of 2019, Defendant NSM’s submitted a Mem. In Opposition to Pls. first motion
for Sanctions and motion to compel NSM. (See ECF 575) explaining to the court the
inaccuracies displayed in the Pls. First Motion to Compel NSM, ECF 547. Again in their most
recent motion for sanctions, ECF 894, Plaintiffs’ claim that Schoep fired his attorney and left
the NSM in order to evade discovery (See Pls. Motion for Sanctions Against Def. Nat’l
Socialist Movement, ECF 894 at 4 ¶ 2). The course of events regarding both of these
circumstances is explained extensively in Defendant Schoep’s Brief in Opposition, ECF 694
3
Defendant NSM fully incorporates by the reference prior motions, Mem. In Opposition to Pls. Motion
for Sanctions Against Def. Jeff Schoep, Nat’l Socialist Movement and Nat’l Front. ECF 575 and Brief in
Opposition to Pls. Mot. To Compel ECF 694.
2
5-7, 11. Plaintiffs attempt to paint the picture that instead of cooperating with discovery
requests Schoep chose to leave the NSM and to fire his defense counsel. This simply is
inaccurate. In December 2018, Attorney James Kolenich, who was defense counsel of record
for NSM and Schoep at that time, was given authorization by Defendant Schoep to sign for the
third-party discovery vendor. At that same time Mr. Schoep also disclosed to his former counsel
of the water damage to his iPhone 6. On February 16, 2019, without Defendant Schoep’s
knowledge or approval, Mr. Kolenich asked the Vendor to remove his client’s name (Jeff
Schoep) from the discovery docu-sign agreement. In that same email correspondence, Mr.
Kolenich told the Vendor that he no longer represented Schoep in this litigation. (See Pls’ Mot.
For Rule 37 Sanctions Against Def. Jeff Schoep, Feb. 27, 2019, Ex. 9, ECF No. 432-9) At the
time Mr. Kolenich requested Schoep be removed from the docu-sign agreement, Mr. Kolenich
was Schoep’s attorney of record. Despite any issues prior defense counsel and Defendant
Schoep may have had, Mr. Kolenich still had a professional duty to disclose to his client
(Schoep) that counsel had refused to give authorization to the Vendor. During the March 1,
2019 telephonic hearing Defendant Schoep made it abundantly clear that he was indeed willing
to cooperate and participate in discovery. See Hr’g Tr., March 1, 2019. ECF No. 441.
Defendant Schoep was not aware of any discovery issues until Pls’ First Motion for Sanctions,
ECF 432. Since this time Defendant Schoep has co-operated to the fullest extent humanly
possible with the discovery process.4
Plaintiffs repeatedly make the claim that Defendant NSM by way of defense counsel,
Defendant Schoep and Mr. Colucci have acted in bad faith. While defense counsel admits that
things have not progressed as smoothly or as quickly as desired, counsel maintains that all
parties in question have done everything humanly possible and within their control5 to remedy
all discovery requests and issues.
4
See Def. Schoep’s Brief in Opp. To Pls’ Motion to Compel, ECF 694.
5
“’Control’ is defined as the legal right, authority or ability to obtain documents upon demand.” U.S.
Int’l Trade Comm’n v. ASAT, Inc., 411 F.3d 245, 254 (D.C. Cir. 2005).
3
Counsel for Defendant NSM has repeatedly inquired about any other possibly responsive
custodians or any other social media, email or website accounts, albeit much to no avail.
Exhibit 4. In accordance with the Mem. Op. & Order of June 23, 2020, Defendant NSM and
counsel of record has submitted all devices, accounts and custodians within their control to both
opposing counsel and the Vendor.
Plaintiffs’ counsel is convinced there are other NSM responsive custodians, however,
defense counsel, Defendant Schoep or Mr. Colucci cannot provide that which simply does not
exist. Repeatedly Plaintiffs counsel has inquired about a previous NSM member and possible
custodian, Brian Culpepper. Defense counsel has inquired about Mr. Culpepper on multiple
occasions without success. As Plaintiffs’ already know, Mr. Culpepper has not been a member
of Defendant NSM since early 2018 and defense counsel has been unable to reach him. Even so,
in his deposition on December 10, 2019, Mr. Colucci stated that Mr. Culpepper was no longer a
member of the NSM, but if Plaintiff’s wished to reach out they could. Mr. Colucci even went so
far as to give the Plaintiffs’ the possible last known whereabouts of Mr. Culpepper.6
In compliance with the Mem. Op & Order of June 23, 2020, Mr. Colucci sent all the
social media and email accounts to the vendor, among these email accounts was Mr.
Culpepper’s NSM email, nsmregion4hq@gmail.com. Exhibit 2. The Vendor was able to access
and collect data from this email as well and this information was made available to opposing
counsel. Plaintiffs were in fact made aware of this information before submitting their motion
for sanctions.
STATEMENT OF THE CASE
Despite the strident protestations of Plaintiffs’ counsel, Defendant NSM has not engaged in
any willful conduct that would justify the relief requested. In the last correspondence that
defense counsel had with the Vendor, it had appeared to defense counsel that the parties were
continuing to make satisfactory progress in complying with the Court’s directive. All possible
6
See Tr. Of Dep. Of Burt Colucci, Dec. 10, 2019, ECF No. 674-5, 257 at 11
4
custodians, accounts and devices that were within Defendant NSM, Schoep and Mr. Colucci’s
control were released to the Vendor in accordance with the Mem. Op. & Order of June 23, 2020,
ECF 774. The defense counsel was surprised to learn that Plaintiffs’ counsel felt it necessary to
file the motion that is now before the Court.
Plaintiffs claim that they are unable to even begin discovery, when in fact discovery is now
closed and per Vendor, Plaintiffs have had access to the collected emails and accounts since
August 26, 2020. Plaintiffs were notified by iDS on August 26, 2020. Exhibit 3. However, in
their motion for sanctions, Plaintiffs’ counsel claims that as of the filing of the motion they still
did not have access.7
Despite knowing that the key facts in this case are hotly disputed, the Plaintiffs' Motion
for Sanctions reads as though Plaintiffs have already proven the essential elements of their
case. While Plaintiffs’ motions are impressively thick and filled with attachments, it does not
place the factual content and the subject discovery requests and responses in their full context.
An examination of the circumstances surrounding this motion demonstrates that Plaintiffs’
motion and the relief sought is unwarranted and unnecessary.
In their motion, Plaintiffs assert that Mr. Colucci has “admitted on multiple occasions to
destroying potentially responsive documents.” (See Pls. Motion for Sanctions Against Def.
Nat’l Socialist Movement, ECF 894 at 1 ¶ 2). This is a blatant and complete misrepresentation
of deposition testimony. On December 10, 2019, Ms. Phillips asked Mr. Colucci about one of
his VK posts, dated May 14, 2019, regarding “access to any and all NSM sensitive material.”8
(See Tr. Of Dep. of Burt Colucci, Dec. 10, 2019, ECF No. 674-5, 95-100). During the
deposition, Ms. Phillips asked Mr. Colucci to explain exactly what “sensitive material” he was
referring to in his post. Mr. Colucci stated he “vaguely” remembered “this post” and proceeded
to guesstimate the “sensitive material” referred to was only personal individual membership
7
“Plaintiffs are also unable to access the social media and email accounts that NSM has now disclosed
and has not yet deleted.” Pls’ Motion for Sanctions Against Def. Nat’l Socialist Movement, ECF 894 at
15.
8
(See Tr. Of Dep. of Burt Colucci, Dec. 10, 2019, ECF No. 674-5, 95-100)
5
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information. Nothing concerning communication or anything potentially responsive to this
litigation.9
Plaintiffs’ counsel also claim that Mr. Colucci purposefully gave the Vendor “incorrect
credentials” for “two email addresses he had used for responsive communications” and then
proceeded to delete those accounts in order to conceal any adverse information. (See Pls.
Motion for Sanctions Against Def. Nat’l Socialist Movement, ECF 894 at 13 ¶ 1.) Once again
deposition testimony is twisted to fit the Plaintiffs’ narrative. According to deposition testimony,
Mr. Colucci states:
“The court order specifically said -- I believe it was either the July 5th or 6th until July
10th -- that IDS had a legal responsibility per the court order to give that information to
the plaintiffs on July 11th. There was no reason for those accounts to exist anymore
because the plaintiff should have had that information, whatever nonresponsive
material would have been in those accounts, in their possession. So I guess apparently
IDS dropped the ball on that” (See Pls. Motion for Sanctions Against Def. Nat’l
Socialist Movement, ECF 894-5 (Ex. E, Aug. 11, 2020 Deposition of B. Colucci at
88-89)).
To Mr. Colucci’s knowledge, the Vendor had accessed the accounts and relinquished all
responsive information to opposing counsel on or before July 10, 2020. According to his own
deposition, Mr. Colucci even stated as far as he was aware, all the responsive ESI data collected
was to be given to Plaintiff’s counsel “on or before July 10, 2020” in accordance with the
court’s order. (See Pls’ Motion for Sanctions Against Def. Nat’l Socialist Movement, ECF
894-5 (Ex. E, Aug. 11, 2020 Deposition of B. Colucci at 88-89), Mem. Op. & Order of June 23,
2020 at 13).
According to the Mem. Op. & Order of June 23, 2020, there would have been no logical
reason for Mr. Colucci to believe all responsive ESI had not been collected and given to the
Plaintiffs. Mr. Colucci did not intentionally delete any potentially responsive data. No where in
either deposition testimony could one logically conclude that Mr. Colucci intentionally
destroyed potentially responsive documents for the specific intent to deprive.10
9
(See Tr. Of Dep. of Burt Colucci, Dec. 10, 2019, ECF No. 674-5, 95-100)
10
Once again, Plaintiffs present personal opinions and assumptions as material fact in an effort
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In addition, Plaintiffs state that Defendant NSM “delayed investigation into other
potentially responsive social media and email accounts” by “providing incorrect credentials,
changing passwords without notice, and failing to resolve two-factor authentication issues.”
That as recently as October 15, 2020, “(as far as Plaintiffs are aware) [Mr. Colucci] failed to
resolve two-factor authentication issues.”11 Both of these statements are blatant
misrepresentation of material fact. There were indeed issues of two factor authentication and
these minimal issues were resolved almost immediately when brought to defense counsel’s
attention. In fact, Plaintiffs’ were made aware that these issues had been resolved with the
Vendor and that data collection had been initiated on August 10, 2020. Exhibit 5. (Email from
iDS with Status Report 08/20/2020). Additionally, all potentially responsive data collected from
social media and email accounts has been available to opposing counsel since August 26, 2020.
Exhibit 6 (Email from iDS to Dietz RE: Discovery) Yet in their motion, Plaintiffs maintain still
they are “unable to access the social media and email accounts that NSM has now disclosed and
has not yet deleted.” (See Pls. Motion for Sanctions Against Def. Nat’l Socialist Movement,
ECF 894 at 19 ¶ 1). Indeed, two days prior to the filing of the Plaintiffs’ motion, the Vendor
emailed another updated Status Report to all parties in this litigation. Exhibit 7 (Email from iDS
and Status Report 10/13/2020) In accordance with the order of this court, all credentials (or
other information) within Defendant NSM and Mr. Colucci’s control for electronically stored
information was produced to the discovery vendor along with devices ordered by the court. All
issues regarding two-factor authentication that Mr. Colucci had control over were remedied
before Plaintiffs’ brought forth their motion. In addition, at the request of the Plaintiffs’, Mr.
Colucci also agreed to have his cellphone and laptop undergo a forensic analysis by the Vendor,
which is still ongoing.
Once again, it is abundantly clear that Plaintiffs blatant “misrepresentations were part” of a
“conscious strategy to mislead the Court” in order to “obtain an advantage in litigation.”
corroborate their version of events.

11
See Pls. Motion for Sanctions Against Def. Nat’l Socialist Movement, ECF 894 at 13.
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Velocity Micro, Inc. v. Edge Interactive Media, Inc., Civil Action No. 3:08cv135, at *12 (E.D.
Va. Nov. 3, 2008). Consistently throughout this litigation, Plaintiffs’ motions “rely on
speculation and a misrepresentation” of material fact and deposition testimony. Schrag v.
Dinges, 150 F.R.D. 664 (1993). Not only a misrepresentation of fact, but also the omitting of
discovery facts of which Plaintiffs’ were fully aware. Plaintiffs’ have a duty to "fulfill the
obligations of truth, candor, accuracy, and professional judgment that are expected of [attorneys]
as an officer of the court." Centauri Shipping Ltd. v. W. Bulk Carriers KS, 528 F. Supp. 2d 197,
201 (S.D.N.Y. 2007) (quoting Oliveri v. Thompson, 803 F.2d 1265, 1267 (2d Cir. 1986))
Bowers v. University of Virginia, CIVIL ACTION No. 3:06cv00041, at *18 n.16 (W.D. Va.
June 6, 2008). As such, the representations made to the court are taken as true and equivalent to
being under oath. Holloway v. Arkansas, 435 U.S. 475, 484 (1978) ("[A]ttorneys are officers of
the court, and when they address the judge solemnly upon a matter before the court, their
declarations are virtually made under oath.") (quotations and citations omitted) Bowers v.
University of Virginia, CIVIL ACTION No. 3:06cv00041, at *18 n.16 (W.D. Va. June 6, 2008)
By consciously choosing not to incorporate events which are key to the discovery issues at
hand, Plaintiffs paint a picture that conforms solely to their litigation narrative. This has
seemingly been a consistent tactic used by opposing counsel. Plaintiffs choose to not only
withhold evidence which negates many issues raised in their motion, but also refuse to abide by
their “continuing duty to inform the Court of any development which may conceivably affect
the outcome of litigation. Board of License Commissioners of the Town of Tiverton v.
Pastore,469 U.S. 238, 240, 105 S.Ct. 685, 686, 83 L.Ed.2d 618 (1985), citing Fusari v.
Steinberg,419 U.S. 379, 391, 95 S.Ct. 533, 540, 42 L.Ed.2d 521 (1975) (Burger, C.J.,
concurring)." U.S. v. Shaffer Equipment Co., 796 F. Supp. 938, 950 (S.D.W. Va. 1992). “This
continuing duty exists even when new developments or new facts may be unfavorable to the
interests of the litigant.” United States v. De Le Puente, 755 F.2d 313, 315 (3rd Cir. 1985)12
12
The presenting of false statements of fact, misrepresenting facts, and not taking reasonable remedial
8
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LEGAL ARGUMENT
Plaintiffs bring forth their motion for sanctions of adverse-inference under the legal
authority of Fed. R. Civ. P. 37, more specifically Fed. R. Civ. P. 37(b)(2). Federal Rules of
Civil Procedure 37(b)(2) states in relevant part:
(2) Sanctions Sought in the District Where the Action Is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party's officer,
director, or managing agent-or a witness designated under Rule 30(b)(6) or
31(a)(4)-fails to obey an order to provide or permit discovery, including an
order under Rule 26(f), 35, or 37(a), the court where the action is pending
may issue further just orders.13
Even if this Court were to find that Defendant NSM failed to fully comply with the Mem.
Op. & Order of June 23, 2020, it does not have the authority to instruct the jury “that NSM
chose to intentionally withhold its documents, and that the jury may draw adverse inferences
from that fact, including that NSM chose to withhold such documents because it was aware that
such documents contained evidence that NSM conspired to plan racially motivated violence at
Unite the Right.” ECF 894 at 19 ¶ 2. Because the evidence in question is, or would have been,
electronic information14, sanctions for Defendant NSM’s alleged failure are governed by Rule
37(e)15 of the Federal Rules of Civil Procedure, which Plaintiffs never cite. Tipp v. Adeptus
Health Inc., No. CV-16-02317-PHX-DGC, 2018 WL 447256, at *3 (D. Ariz. Jan. 17, 2018)
(“A party seeking sanctions for spoliation of electronically stored information (“ESI”) must
address the factors set forth in Rule 37(e).”) Under Rule 37(e)(2), the court may instruct the
measures to correct the same violates both the Virginia and ABA Model R. of Prof’l Conduct. Rule 3.3,
Candor Toward The Tribunal, provides in relevant part that: (a) A lawyer shall not knowingly: (1) make
a false statement of material fact or law to a tribunal; . . .(3) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures. “These misrepresentations of the record did not comport with parties'
duty of candor to the courts” Malin v. Hospira, Inc., 762 F.3d 552, 564 (7th Cir. 2014)
13
Fed. R. Civ. P. 37
14
The Advisory Committee uses words like “broad,” “flexible,” and “expansive” to describe the scope
of “electronically stored information” discoverable under Rule 34(a) of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 34, Advisory Committee Notes, 2006 Amendment. This definition is to be
used wherever the term “electronically stored information” appears in the Federal Rules, including Rule
37. Id. There is no question that the data at issue are ESI.
15
“Rule 37(e)(2) governs the email evidence (because it is electronically stored information)” U.S.
Equal Emp't Opportunity Comm'n v. GMRI, Inc., No. 15-20561-CIV-LENARD/GOODMAN, at *5 (S.D.
Fla. Nov. 1, 2017)
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jury to presume that “the lost information was unfavorable to the party” who lost it, “only upon
finding that the party acted with the intent to deprive another party of the information’s use
in the litigation.” Fed. R. Civ. P. 37(e)(2).
Plaintiffs continue to have misplaced reliance on a case decided before Rule 37(e)(2) was
adopted, Plaintiffs emphatically assert that the alleged “documents withheld by
NSM—including communications among NSM members—“would have been relevant to an
issue at trial and otherwise would naturally have been introduced into evidence.”” ECF No. 894
at 18 ¶ 1. (citing Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)).
However, “in order to draw an inference that the [destroyed documents] contained information
adverse to [NSM], we must find that [NSM] intentionally destroyed the documents in bad
faith.” Stevenson v. Union Pac. R.R., 354 F.3d 739, 746 (8th Cir. 2004) As the Advisory
Committee explained, Rule 37(e)(2) “rejects cases . . . that authorize the giving of
adverse-inference instructions on a finding of negligence or gross negligence.” Fed. R Civ. P.
37, Advisory Committee Notes, 2015 Amendment. In addition, “[i]nformation lost through
negligence may have been favorable to either party, including the party that lost it, and inferring
that it was unfavorable to that party may tip the balance at trial in ways the lost information
never would have.” Accordingly, the Rule “rejects cases such as Residential Funding Corp. v.
DeGeorge Financial Corp., 306 F.3d 99 (2d Cir.2002),that authorize the giving of
adverse-inference instructions on a finding of negligence or gross negligence.” As such, adverse
or negative inference is not permissible here.
Plaintiffs ignore Rule 37(e) of the Federal Rules of Civil Procedure, which flatly prohibits
adverse inference sanctions for negligent loss of electronically stored information. Nor have
Plaintiffs demonstrated that they are entitled to some lesser sanction, since the only so-called
prejudice they can identify is based on the absence of evidence that never existed in the first
place. Rule 37(e) measures are available only when “electronically stored information that
should have been preserved in the anticipation or conduct of litigation is lost because a party
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failed to take reasonable steps to preserve it, and it cannot be restored or replaced through
additional discovery.” Mr. Colucci had already given consent for forensic analysis of his
devices, at the request of Plaintiffs. Mr. Colucci and Defendant NSM have already stated on
numerous occasions that there are not other responsive custodians, devices or documents.
CONCLUSION
More than three months after the close of discovery, only after discovering that they are
unable “to prove the manner in which they [NSM] communicated and conspired with other
Defendants” therefore jeopardizing “Plaintiffs’ ability to prove their case against other
Defendants”, Plaintiffs file this motion. The Plaintiffs allege that the lack of gathered evidence
and delayed trial prejudices Plaintiffs’ so much so they seek as a sanction a jury instruction that
alleged missing evidence is against Defendant NSM’s interest. In reality, the “missing
evidence” cannot be characterized as missing since it never existed in the first place. Plaintiffs’
primary prejudice argument is a hindsight fallacy—that Plaintiffs were deprived of the evidence
to support their conspiracy theory because Defendant NSM did not clairvoyantly create it for
them from potentially responsive discovery that never existed.
The claims that alleged discovery misconduct has “prejudiced Plaintiffs by delaying their
day in court” (ECF 894 at 15) is also preposterous when in fact trial was set for October 26,
2020. On August 19, 2020, in an email to this Court Plaintiffs’ write, “we have recently
completed the bulk of fact discovery”, but due to “COVID-19 both in Virginia and across the
country” that “a jury trial itself involving this many parties, litigants, and witnesses - may
ultimately prove untenable and potentially dangerous from a public health perspective”.
Plaintiffs continue on to ask for a conference to discuss these “potential barriers to proceeding
with a jury trial on October 26, 2020” and ultimately requested trial be delayed for public health
safety.16 Exhibit 8 (ECF 841, Email from Bloch to Judge Moon, August 19, 2020) Simply put,
16
“As we continue to monitor the developments regarding COVID-19 both in Virginia and across the
country, we have become increasingly concerned that conducting a comprehensive and constitutionally
adequate jury selection process in approximately two months from now – not to mention a jury trial
11
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the prejudices of a delayed trial are a direct result of Plaintiffs’ own request, not due to the
conduct of defense counsel or Defendant NSM.
Counsel for Defendant NSM certifies pursuant to Rule 37 that the defendant has acted in
good faith to resolve any discovery dispute relevant to the Plaintiffs' Motion for Sanctions
Against Defendant National Socialist Movement, prior to the filing of Plaintiffs’ motion.
Plaintiffs ignore Rule 37(e) of the Federal Rules of Civil Procedure, which flatly prohibits
adverse inference sanctions for negligent loss of electronically stored information. Nor have
Plaintiffs demonstrated that they are entitled to some lesser sanction, since the only so-called
prejudice they can identify is based on the absence of evidence that never existed in the first
place.
For the foregoing reasons as discussed in this motion, Plaintiffs’ motion for a negative or
adverse inference for discovery misconduct should be denied. Accordingly, Defendant NSM
requests (1) to be awarded costs and reasonable attorney fees associated with having to respond
to this motion; and (2) the Court impose sanctions on Plaintiffs for their misuse of the discovery
process and harassment of the defendants.
Dated: October 29, 2020 Respectfully submitted,
Respectfully Submitted,
/s/ W. Edward ReBrook, IV

W. Edward ReBrook, IV (VSB 84719)
The ReBrook Law Office
6013 Clerkenwell Court
Burke, VA 22015
Mobile: 571.215.9006
Email: Edward@ReBrookLaw.com
Counsel for Defendant National Socialist Movement
itself involving this many parties, litigants, and witnesses – may ultimately prove untenable and
potentially dangerous from a public health perspective.” See ECF 841
12
15340
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2020, I filed the foregoing with the Clerk of Court
through the CM/ECF system, which will send a notice of electronic filing to:
Robert T. Cahill (VSB 38562) Fax: (540) 983-7711

COOLEY LLP brottenborn@woodsrogers.com
11951 Freedom Drive, 14th Floor Karen L. Dunn (pro hac vice)
Reston, VA 20190-5656 Jessica E. Phillips (pro hac vice)
Telephone: (703) 456-8000 William A. Isaacson (pro hac vice)
Fax: (703) 456-8100 PAUL, WEISS, RIFKIND, WHARTON &
rcahill@cooley.com GARRISON LLP
2001 K Street, NW
Washington, DC 70006-1047
Roberta A. Kaplan (pro hac vice)
Telephone: (202) 223-7300
Julie E. Fink (pro hac vice)
Fax: (202) 223-7420
Gabrielle E. Tenzer (pro hac vice)
kdunn@paulweiss.com
Michael L. Bloch (pro hac vice)
jphillips@paulweiss.com
Yotam Barkai (pro hac vice)
wisaacson@paulweiss.com
Emily C. Cole (pro hac vice)
Alexandra K. Conlon (pro hac vice)
David E. Mills (pro hac vice)
Jonathan R. Kay (pro hac vice)
Joshua M. Siegel (VSB 73416)
Benjamin D. White (pro hac vice)
Alexandra Eber (pro hac vice)
KAPLAN HECKER & FINK LLP
Caitlin B. Munley (pro hac vice)
350 Fifth Avenue, Suite 7110
Samantha A. Strauss (pro hac vice)
New York, NY 10118
COOLEY LLP
Telephone: (212) 763-0883
1299 Pennsylvania Avenue, NW, Suite 700
rkaplan@kaplanhecker.com
Washington, DC 70004
jfink@kaplanhecker.com
Telephone: (202) 842-7800
gtenzer@kaplanhecker.com
Fax: (202) 842-7899
mbloch@kaplanhecker.com
dmills@cooley.com
ybarkai@kaplanhecker.com
jsiegel@cooley.com
ecole@kaplanhecker.com
aeber@cooley.com
aconlon@kaplanhecker.com
cmunley@cooley.com
jkay@kaplanhecker.com
sastrauss@cooley.com
bwhite@kaplanhecker.com
Alan Levine (pro hac vice)
Katherine M. Cheng (pro hac vice)
Philip Bowman (pro hac vice)
BOIES SCHILLER FLEXNER LLP
Amanda L. Liverzani (pro hac vice)
1401 New York Avenue, NW
Daniel P. Roy III (pro hac vice)
Washington, DC 70005
COOLEY LLP
Telephone: (202) 237-2727
55 Hudson Yards
Fax: (202) 237-6131
New York, NY 10001
kcheng@bsfllp.com
Telephone: (212) 479-6260
J. Benjamin Rottenborn (VSB 84796)
Fax: (212) 479-6275
WOODS ROGERS PLC
alevine@cooley.com
10 South Jefferson St., Suite 1400
pbowman@cooley.com
Roanoke, VA 24011
aliverzani@cooley.com
Telephone: (540) 983-7600
droy@cooley.com
Counsel for Plaintiffs
13
15341
Elmer Woodard Bryan Jones

5661 US Hwy 29 106 W. South St., Suite 211
Blairs, VA 24527 Charlottesville, VA 22902
isuecrooks@comcast.net bryan@bjoneslegal.com
James E. Kolenich
Kolenich Law Office Counsel for Defendants Michael Hill,
9435 Waterstone Blvd. #140 Michael Tubbs, and League of the South
Cincinnati, OH 45249
jek318@gmail.com Justin Saunders Gravatt
David L. Campbell
Counsel for Defendants Jason Kessler, Duane, Hauck, Davis & Gravatt, P.C.
Nathan Damigo, Identity Europa, Inc. 100 West Franklin Street, Suite 100
(Identity Evropa), Matthew Parrott, and Richmond, VA 23220
Traditionalist Worker Party jgravatt@dhdglaw.com
dcampbell@dhdglaw.com
Counsel for Defendant James A. Fields, Jr.
14
15342
I further hereby certify that on October 29, 2020, I also served the following non-ECF
participants, via electronic mail, as follows:
Christopher Cantwell eli.f.mosley@gmail.com

christopher.cantwell@gmail.com deplorabletruth@gmail.com
eli.r.kline@gmail.com
Vanguard America
c/o Dillon Hopper Matthew Heimbach
dillon_hopper@protonmail.com matthew.w.heimbach@gmail.com
Robert Azzmador Ray Richard Spencer

azzmador@gmail.com richardbspencer@icloud.com
Elliott Kline a/k/a Eli Mosley richardbspencer@gmail.com
/s/ W. Edward ReBrook, IV

W. Edward ReBrook, IV (VSB 84719)
The ReBrook Law Office
Counsel for Defendant National Socialist Movement
15

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Case 3:17-cv-00072-NKM-JCH Document 899 Filed 10/29/20 Page 1 of 19 Pageid#: 15324

UNITED STATES DISTRICT COURT

ELIZABETH SINES, SETH WISPELWEY,

JASON KESSLER, RICHARD SPENCER,

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS

STATEMENT OF THE CASE.....................................................................................4

Velocity Micro, Inc. v. Edge Interactive Media, Inc.,

Centauri Shipping Ltd. v. W. Bulk Carriers KS,

Bowers v. University of Virginia,

Board of License Commissioners of the Town of Tiverton v. Pastore,

U.S. v. Shaffer Equipment Co.,

United States v. De Le Puente

Malin v. Hospira, Inc.,

U.S. Equal Emp't Opportunity Comm'n v. GMRI, Inc.,

Vodusek v. Bayliner Marine Corp.,

Stevenson v. Union Pac. R.R.,

Residential Funding Corp. v. DeGeorge Financial Corp.,

Fed. R. Civ. P. 34…………………………………………………………………….9

Fed. R. Civ. P. 34(a)………………………………………………………………….9

Fed. R. Civ. P. 37. ..…………………………………………………………………..9, 10

Fed. R. Civ. P. 37(b)(2).……………………………………………………………...9

Fed. R. Civ. P. 37(e)….……………………………………………………………9, 10, 12

Fed. R. Civ. P. 37(e)(2)………………………………………………………………9, 10

Model R. of Prof’l Conduct Rule 3.3............................................................................9

Defendant National Socialist Movement (“NSM”), by and through counsel, respectfully

the vast majority are non-responsive or unreadable.”2

them by instructing a jury to make adverse - inferences.

of any alleged conspiracy.

exaggerations. Selectively choosing to omit defense counsel’s previous memorandums and

motion responses explaining the background behind previous discovery issues.

circumstances is explained extensively in Defendant Schoep’s Brief in Opposition, ECF 694

possible with the discovery process.4

all discovery requests and issues.

opposing counsel and the Vendor.

STATEMENT OF THE CASE

file the motion that is now before the Court.

did not have access.7

An examination of the circumstances surrounding this motion demonstrates that Plaintiffs’

motion and the relief sought is unwarranted and unnecessary.

information. Nothing concerning communication or anything potentially responsive to this

Mr. Colucci states:

destroyed potentially responsive documents for the specific intent to deprive.10

resolve two-factor authentication issues.”11 Both of these statements are blatant

which is still ongoing.

“conscious strategy to mislead the Court” in order to “obtain an advantage in litigation.”

corroborate their version of events.

speculation and a misrepresentation” of material fact and deposition testimony. Schrag v.

the outcome of litigation. Board of License Commissioners of the Town of Tiverton v.

Civil Procedure 37(b)(2) states in relevant part:

(2) Sanctions Sought in the District Where the Action Is Pending.

in the litigation.” Fed. R. Civ. P. 37(e)(2).

adopted, Plaintiffs emphatically assert that the alleged “documents withheld by

NSM—including communications among NSM members—“would have been relevant to an

adverse-inference instructions on a finding of negligence or gross negligence.” Fed. R Civ. P.

adverse-inference instructions on a finding of negligence or gross negligence.” As such, adverse

or negative inference is not permissible here.

them from potentially responsive discovery that never existed.

conduct of defense counsel or Defendant NSM.