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Identifying and Combatting Fraud and Other Misconduct in Transactions and Litigation a Case Study and Some Tactical Considerations

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Identifying and Combatting Fraud and Other Misconduct in Transactions and Litigation a Case Study and Some Tactical Considerations Identifying and Combatting Fraud and Other Misconduct in Transactions and Litigation A Case Study and Some Tactical Considerations Michael Farhang, James Fogelman, Robert Klyman and Jay Srinivasan Thursday, March 16th 2017 <Presentation Title/Client Name> “Forgery. Perjury. Willful destruction of evidence. Litigators might sometimes suspect the other side of such shenanigans, but rarely do you get an unequivocal win as a result. On Friday, a team from Gibson, Dunn & Crutcher led by James Fogelman and Jay Srinivasan pulled it off, arguing successfully that a key plaintiffs’ document in a $12 billion fight was fake.” 2 <Presentation Title/Client Name> Judge Suzanne Bruguera’s November 22, 2016 Order and December 2, 2016 Default Judgment Determined three of Plaintiffs’ key documents to be forgeries Found “ample evidence” of perjury by Plaintiffs, in particular Lead Plaintiff, to mislead the Court and cover up misconduct Dismissed Plaintiffs’ Third Amended Complaint with prejudice Enjoined Plaintiffs from continuing to breach the Joint Venture Agreement Granted over $6 million in fees and costs to Gibson Dunn’s client 3 <Presentation Title/Client Name> How did Gibson Dunn and its clients prove forgery, fabrication, manipulation, and spoliation of evidence? 4 <Presentation Title/Client Name> Plan A: Plaintiffs and Their Counsel Swore That “Version 2” Was The “Original” From September 2010 “. the original has remained in “This document, sir, is the document that [Plaintiff’s] possession until recently, was sent to our office, that is correct.” when he turned it over to [Plaintiffs’] counsel for handling and maintaining in accordance with the September 8, 2015 order of this Court.” “. plaintiffs have assembled the original hard copies of the agreements for holding in escrow by a third party . They produced for copying “Since my receipt of the documentation . in by [Defendants] the original hard copies of JVA mid-September 2010, I have carefully maintained Version 2 and the La Cienega PMA.” the original hard copies of Version 2 and [the] September 14, 2010 cover letter for it.” 5 <Presentation Title/Client Name> Additional Perjury by Plaintiffs VIDEOTAPED DEPOSITION TESTIMONY TUESDAY, SEPTEMBER 22, 2015 Q. Now, just to clarify, is it Q. Let me clarify. Do you still have your testimony that the the original of what you say you found document you brought with you in the basement in the last eight to 12 today [“Version 2”] is exactly months [the Cover Letter] ? what you claim to have received A. Yes, I do sir. in September of 2010? Q. And where do you have that document? THE WITNESS: Yes. A. I keep that document in my safe now. 6 <Presentation Title/Client Name> Plan B: Plaintiffs And Their Counsel Threaten To Blame Defendants’ Counsel for “Switching” The Documents From: [Plaintiffs’ Counsel] Sent: Friday, October 16, 2015 1:13 PM To: [Gibson Dunn] Subject: Re: Lincoln Studios: Production of documents – Time Sensitive “Please understand that it is our position that this letter and version 2 was received in 2010. Once again, if you take the only copy of the letter and subsequent testing demonstrates that the age of the paper is after 2010, it will be our position that there has been an alteration.” “. If you take the letter, and it ends up being time dated at any other time in 2010, it will be our position that you have altered or substituted the document. My proposal guarantees that you will not have this exposure.” 7 <Presentation Title/Client Name> Plan C: Destroy All The Electronic Evidence Despite The Court’s Orders And Commitments Made To The Court 8 <Presentation Title/Client Name> Plaintiffs Conspire To Destroy Lead Plaintiff’s Computer Before the Court-Ordered Forensic Inspection 9 <Presentation Title/Client Name> Plaintiffs’ Employees Conspire to Permanently Delete and Wipe Devices Prior To The Court-Ordered Forensic Examination 10 <Presentation Title/Client Name> Devices Destroyed, Manipulated, or Withheld by Plaintiffs PNY USB Drive (Used N.S. Dell Desktop Dell OptiPlex 7010 N.S. 2012 Computer to transfer “NS clean 123 Computer (The A.S. NMS Dell (DELLNEIL2012-PC) PRINT.pdf”) Desktop) Seagate BUP Slim BK Seagate 4 terabyte drive Seagate 4 terabyte 20 Other USB (Replaced Seagate drive (Original Seagate USB (used in backup of Devices Secondary Hard Drive) N.S. Dell Desktop) Secondary Hard Drive) 11 <Presentation Title/Client Name> Lead Plaintiff’s Computer Is Backdated 17 Times in 60 Days 12 <Presentation Title/Client Name> Plaintiffs Admit To Downloading And Using Powerful File Eraser Software And Deleting Incriminating Software And Data Plaintiffs’ employees downloaded Eraser Portable on 12/3/2015 and ran it on 12/4/2015: 13 <Presentation Title/Client Name> Even Plaintiffs’ Computer Forensics Expert Was Disturbed By Plaintiffs’ Misconduct “It’s a horrendous idea.” “I would not advise “I think it was dumb. Bad idea.” somebody to do that.” “All I can say it was a stupid thing for him to have done. I wouldn’t have recommended it . .” 14 <Presentation Title/Client Name> Plaintiffs Stand Alone On Forged “Version 2” “I thought it was a typo, a misunderstanding, it was fixed.” 15 <Presentation Title/Client Name> Plaintiffs’ Deal Counsel Confirmed That There Is No “Typo” In Section 11.1 Q. Sir, looking at the language “five years from the date hereof,” which is contained in the redline portion 11.1(a)(i), you’re not aware of any typos in that language; correct, sir? A. No. Q. There are no typos contained in section 11.1(a)(i) of Exhibit 3; correct? A. Correct. 16 <Presentation Title/Client Name> Ex-President of Plaintiffs Confirms: No Typo in Section 11.1 Ex-President’s Deposition Testimony Q. And you are not aware of any typo in Section 11.1 A1, correct? A. No, I’m unaware of that. 17 <Presentation Title/Client Name> Non-Binding Term Sheet: Three Years OR Stabilization From: [Defendants] To: [Plaintiffs and Plaintiffs’ Deal Counsel] Sent: Wed 5/26/2010 3:32:12 PM Subject: [Joint Venture] Term Sheet [Lead Plaintiff] 18 <Presentation Title/Client Name> The 5-Year Buy/Sell Provision Was Incorporated Per Plaintiffs’ Request 19 <Presentation Title/Client Name> Versions 1 and 3 of the LLC Agreement 20 <Presentation Title/Client Name> Plaintiffs’ In-House Counsel Confirms: No 3 Year Buy/Sell In “Actual LLC Agreement” From: [Plaintiffs’ In-House Counsel] Sent: Friday, July 19, 2013 12:04 PM To: [Lead Plaintiff] Subject: RE: [FWD: FW: Emailing: [JV] Term Sheet v6 redline.doc, [JV] Term Sheet v6.doc] From: [Lead Plaintiff] Sent: Friday, July 19, 2013 11:47 AM To: [Plaintiffs’ In-House Counsel] Subject: FW: [FWD: FW: Emailing: [JV] Term Sheet v6 redline.doc, [JV] Term Sheet v6.doc] 21 <Presentation Title/Client Name> Changing “five” to “three” Causes A Single Overhanging Letter 22 <Presentation Title/Client Name> Version 1 and 3 LLC Agreements Are Different Than Version 2 LLC Agreement Version 1 and Version 3 LLC Version 2 LLC Agreement Agreements 23 <Presentation Title/Client Name> The CPS Code Found On The Original “Version 2” Confirms It Was Printed July 15, 2013 24 <Presentation Title/Client Name> All Other Versions of the Q1 Version 2 LLC Agreement Were Made On Or After July 15, 2013 Q1 Version 2 K61 Version 2 LLC LLC Agreement Agreement 25 <Presentation Title/Client Name> Versions of the JV Agreement Modified/Emailed Over Time on Plaintiffs’ Devices “Version 2” “Version 3” “Version 1” September January July 2013 2010 2011 26 <Presentation Title/Client Name> Timeline Clearly Indicates “Version 2” Is A Forgery Monday, July 15, 2013, at 3:51 p.m. The file is opened on Lead P’s son’s company computer, a device that was originally withheld from forensic examination. Before 4:00 p.m., the file is Monday, July 15, 2013, at 1:24 p.m. printed on a P’s Xerox WorkCenter machine, in P’s offices, leaving the CPS The file was transferred to a thumb code. The produced “Version 2” contains one page that was not printed with drive from the unknown computer the rest of the document. Monday, July 15, 2013, at 4:18 p.m. Sunday, July 14, 2013, at 9:46 p.m. The print-out of “Version 2” is scanned to Lead P’s son’s email An unknown computer opened and account from the Xerox WorkCenter. modified a file called “P6 LA MF Holding I LLC clean NS 123 Monday, July 15, 2013, at 9:43 p.m. PRINT.pdf.” This unknown “Version 2” pdf that was created earlier that day is “modified,” computer has never been produced. indicating a change to the document. Wednesday Thursday Friday Saturday Sunday Monday Tuesday Wednesday Thursday Friday Saturday July 10 July 11 July 12 July 13 July 14 July 15 July 16 July 17 July 18 July 19 July 20 Friday, July 12, 2013, at 4:52 p.m. P’s In-House Counsel emails two July 15, 2013, 3:51 p.m. Tuesday, July 16, 2013, at Friday, July 19, 2013, at 12:04 p.m. versions of the JV Agreement, 9:44 p.m. Email announces resignation P’s In-House emails Lead P: “This attaching two live emails from 2010 USB drive containing the of then-President of [3-year] concept didn’t make it into and 2011 containing the original and document entitled “P6 LA Plaintiffs, who negotiated the the actual LLC Agreement.” the operative JV Agreement. MF Holdings I LLC NS JV Agreement for Plaintiffs. clean 123 PRINT.pdf” is Friday, July 12, 2013, at 4:57 p.m. plugged into Lead P’s Friday, July 19, 2013, at 4:59 p.m. son’s computer. Plaintiffs Lead P forwards In-House Counsel’s email never produced this P’s In-House Counsel emails containing both “Version 1” and “Version 3” to device.
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