It has been over two years since this mess created by Gregory Diaz began, over nine months since litigation started, and it does not appear to be any closer to resolution.
I went to the federal courts' website from which you can retrieve public records (for a fee of course) and grabbed a few of the recent filings.
As often happens in litigation, it takes a while for the parties and the court to determine which causes of action will be dismissed before trial and which ones will go to trial. After the motion to dismiss by the County was resolved, AtPac's surviving claims were breach of contract, trade secret misappropriation, and copyright infringement.
The discovery process began in August 2010. In American law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for production of documents, requests for admissions and depositions. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.
Since AtPac's claims were established and based on the public federal pleadings, it appears that Nevada County and Gregory Diaz have been stone-walling the discovery of documents by refusing to comply with AtPac's requests.
Due to the County and Diaz blocking the lawful production of evidence, AtPac was forced to file with the court a motion to compel discovery. The court resolved this issue on November 17th in full favor of AtPac.
The order of the federal magistrate is here.
The court ordered that the County and Diaz must produce all of the documents for which AtPac asked including, but not limited to, all handwritten notes taken by all staff members of the Clerk-Recorder's Office, production of a 743-page printout created by county IT staff, and complete unredacted copies of the computer logs known as "Red Hat Logs."
The County and Diaz actually refused to produce the very logs that will show likely who logged on to AtPac's software, when, for how long, and show what they did. I am not shocked.
The federal magistrate also ordered AtPac attorneys (Downey Brand) to file a declaration of attorney fees in connection with the motion to compel.
The declaration of legal fees by Downey Brand ($30,000) was filed on November 19th.
Customarily, a judge will order the prevailing party to submit such a declaration only if the court is looking to sanction the loser (in this case Nevada County and Diaz) by forcing the loser to pay the legal fees of the winner (AtPac). Sanctions are rare and only ordered by a judge in the most egregious circumstances.
If the court orders these legal fees (in connection with the motion to compel) to be paid by the County, the County will be paying its own legal fees along with the legal fees for Gregory Diaz, Aptitude Solutions, and now the plaintiffs - AtPac.
The litigation appears to be going sideways for the County and Diaz.
On November 23rd, the board of supervisors has a closed session on this case. They need to get more involved here, because this litigation, caused by the actions of Diaz, is costing the County good money.
Exit Question: If AtPac's lawsuit is without merit, as Diaz and the County suggest, why are they stone-walling the production of the required evidence and documents and refusing to produce the computer logs?
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