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IN THE DISTRICT COURT IN AND FOR SEMINOLE CO! FILED
STATE OF OKLAHOMA IN DISTRICT COURT
JEREMY JOHNSON, AUG 06 2021
Plaintiff,
vs. KIM A. DAYIS, COURT CLERK
L.G. MARTIN, BY, DEPUTY
Defendant and Third-Party Plaintiff,
vs.
BARRY TUCKER, JAMES BRYANT, Cause No. CJ-2018-63
MICHAEL DOWNEY, SHERIFF Cause No. CJ-2021-1
SHANNON SMITH, DEPUTY SHERIFF
CHUCK WEBSTER, and DEPUTY
SHERIFF MATT HALEY,
Third-Party Defendants.
MOTION TO DISQUALIFY JUDGE TRISHA SMITH FOR CAUSE
COMES NOW Defendant and Third-Party Plaintiff Martin and moves the Honorable
Trisha D. Smith to recuse herself pursuant to the Oklahoma Rules for Judicial Conduct and
Oklahoma District Court Rule 15, and further moves Judge Smith to transfer this matter to an
alternative judge and jurisdiction’, on the ground that she has refused to recuse herself when
presented with evidence at the in camera hearing held in this matter on July 28th, 2021, that
Martin reasonably questioned her impartiality due to unfounded conclusions of fact, which even
conflict with themselves and which benefited Defendants and harmed Martin, which she set forth
in her Order of June 17th, 2021, and, in support, alleges as follows:
FACTS
Pursuant to Rule 15, Martin requested an in camera hearing with Judge Smith and
opposing counsel at the hearing held in this matter on July 28th, 2021, in which the undersigned
counsel indicated that seven (7) unfounded conclusions of fact, which conflicted with each other
and benefited Defendants and harmed Martin, and were contrary to undisputed evidence
' Plaintiff requests this Court transfer this matter out of the 22nd and 23rd District Court Judicial Districts due to the
presence of employees from the Seminole County Sheriff's Office being parties to this litigation.
Mot to Recuse
-1-presented by the parties, were set forth in her Order of June 17th, 2021, and were set forth in
Martin's Motion To Clarify Order of June 17, 2021, attached hereto as Exhibit "A," reasonably
questioned her impartiality and justified Judge Smith recusing herself from these proceedings
and transferring this matter to another judge and jurisdiction. During that in camera hearing, the
undersigned counsel also advised Judge Smith that her recusal was justified because continuing
rulings in this matter would constitute reversible error pursuant to Oklahoma law due to Martin's
oral request for her recusal at the in camera hearing, and due to this Motion, which remain
unresolved, and Martin cited relevant Oklahoma decisional law in support.
At the in camera hearing on July 28th, 2021, Judge Smith responded by denying Martin's
oral motion for the her to recuse herself, and she again demonstrated her bias in favor of
Defendants and against Martin by ruling that the undersigned counsel had not complied with
Rule 15 because, according to her erroneous interpretation of the Rule, the undersigned counsel
did not file his motion to disqualify ten days prior to the July 28th, 2021 hearing, which she
termed a "trial," pursuant to Rule 15, to reach this erroneous conclusion. Yet, Martin's Motion
for Partial Summary Judgment against Johnson and Bryant was set for a "hearing" on July 28th,
2021, and not a “trial;" and Rule 15 distinguishes the term "trial," from the term "hearing;" and
the undersigned counsel complied with Rule 15; and the undersigned counsel reminded her at the
hearing that no scheduling order had been entered to set the matter for "trial."
ARGUMENTS AND AUTHORITIES
Martin's oral motion for Judge Smith to recuse herself and to transfer the matter to an
alternative judge and jurisdiction is based upon her Order of June 17th, 2021 in which she
justified bias in favor of Defendants, rather than avoid bias. Oklahoma law supports Martin's
motion for disqualification and states that a violation of the Code of Judicial Conduct may
Mat to Recuse
2-constitute grounds for removing a judicial officer from office by the court on the judiciary, 20
O.S. § 1404(C); and the Code is violated when a judge fails to disqualify herself from any
proceeding in which her impartiality may reasonably be questioned, 5 O.S. App. 4, Rule 2.11.
Judge Smith's unfounded conclusions of fact, which benefited Defendants, show that her
impartiality is reasonably questioned, and show that she is disqualified as a matter of law, and
that she must recuse herself, or she continues to violate the Code.
And this conclusion is confirmed by Oklahoma decisional law, see, e.g., Sadberry v.
Wilson, 1968 OK 62, 4 12, 441 P.2d 381 ("When circumstances and conditions surrounding
litigation are of such nature that they might cast doubt and question as to impartiality of any
judgment the trial judge may pronounce, said judge should certify his disqualification")
(emphasis added).
This conclusion is also confirmed by Rule 2.11's Comment, which states that "a judge is
disqualified whenever the judge's impartiality might reasonably be questioned, regardless of
whether any of the specific provisions of paragraphs (A)(1) through (6) apply," id., Cmt. 1.
Judge Smith's obligation not to hear or decide matters in which her impartiality might reasonably
be questioned applies regardless of whether a motion to disqualify has been filed, id., Cmt. 2.
Therefore, Judge Smith continues to violate the Code and is subject to removal from
office because she has not recused herself due to her impartiality being reasonably questioned.
Her unfounded conclusions of fact set forth in her Order of June 17th, 2021 specifically
violate the Code which requires a judge to uphold and apply the law, and to perform all duties
fairly and impartially, 5 O.S. App. 4, Rule 2.2. More specifically, Rule 2.2 requires a judge to be
impartial and fair to all parties, and that "good-faith errors of fact or law ... do not violate this
Rule," id., Cmt. 1, 3. Therefore, Rule 2.2 is violated when a judge justifies bias by employing
Mot to Recuseunfounded conclusions of fact in favor of a party, instead of reaching conclusions of fact in
good-faith, and such a judge is disqualified as a matter of law and must recuse herself, otherwise
she continues to violate the Code of Judicial Conduct.
In response to the undersigned counsel's oral motion at the in camera hearing on July
28th, 2021 for Judge Smith to recuse herself, she responded that she is not biased, and that
neither her Order of June 17th, 2021, nor Martin's Motion To Clarify that Order evidence bias.
However, her opinion of her impartiality is not relevant because her impartiality has reasonably
been questioned, see, e.g., Sadberry, 1968 OK 62, | 13, supra ("Where there are circumstances
of such a nature as to cause doubts as to a judge's partiality, bias or prejudice, it is his duty to
disqualify, notwithstanding the fact that he personally believes himself to be unprejudiced,
unbiased, and impartial") (emphasis added).
The standard of review for a trial judge's refusal to disqualify herself is a clear abuse of
discretion, see, e.g., Merritt v. Hunter, 1978 OK 18, § 2, 575 P.2d 632, 624; Graham v. Graham,
1967 OK 210, J 8, 434 P.2d 245, 246; Osage Implement Co. v. Bottrell, 1961 OK 196, q 11, 363
P.2d 940, 942.
Therefore, Judge Smith's refusal to recuse herself from these proceedings as a result of
her seven (7) unfounded conclusions of fact, which benefited Defendants and show that her
impartiality may reasonably be questioned is a clear abuse of discretion and is reversible error.
The seven (7) unfounded conclusions of fact which show that Judge Smith justified her
bias in favor of Defendants, rather than avoid bias, are set forth below, as are summaries of the
evidence which demonstrate that her statements are unfounded:
False Statement No. 1: "All parties announced that the issues of contempt were moot
because Mr. Marshall had received all requested information from both Mr. Webster and Mr.
‘Mot to Recuse
4.Bryant."
First, this False Statement is Judge Smith's attempt to justify her announcement at the
April 1, 2021 hearing that the issues of contempt were moot and, therefore, no trail on Martin's
Application for Contempt would be occurring, because the undersigned counsel had received all
requested information from both Mr. Webster and Mr. Bryant.
This False Statement conflicts with False Statement Nos. 2, 3, 5 and 6, which themselves
falsely allege that Webster and Bryant could not obtain the requested evidence from Facebook or
AT&T. Therefore, both statements cannot be true, that Webster and Bryant could not obtain the
requested evidence from Facebook or AT&T, yet they provided all information requested to the
undersigned counsel.
More importantly, as set forth in Martin's Motion to Clarify, no parties announced at the
April 1, 2021 hearing that the issues of contempt were moot, Ex. "A," pp. 1-3. Therefore, False
Statement No. | is merely Judge Smith's conclusory attempt to excuse Webster and Bryant from
Martin's Application for Contempt and from the Order to Show Cause of 2/21/20 without
consequences, and in spite of the facts.
False Statement No. 2: "Both [Mr. Webster and Mr. Bryant] are lay persons with limited
knowledge of "discovery" or how to obtain electronic information." As set forth in the record,
and in Martin's Motion to Clarify, this Statement is fiction, Ex. "A," p. 4. Mr. Webster is
repeatedly referred to throughout the record as a legal advisor to the Defendants to assist them in
acting under color of law, as evidenced in part by his Facebook page. He is an employee and
Deputy of the Seminole County Sheriff's Office, and Mr. Bryant is a former department of
corrections officer. Because Judge Smith was an Assistant District Attorney for Hughes County,
Oklahoma, she worked closely with adjacent-county sheriff's offices, including the Seminole
Mot to RecuseCounty Sheriff's Office, and is aware that law enforcement officers are not "lay persons" as to
their knowledge of the law, discovery procedures, and how to obtain electronic information.
Therefore, False Statement No. 2 is a fiction to support Judge Smith excusing Webster
and Bryant from complying with Martin's subpoenas and the Order to Show Cause, and it is
factually inconsistent with False Statement No. 1.
False statement No. 3: "They [Mr. Webster and Mr. Bryant] each attempted to obtain the
information without success." This Statement is also factually inconsistent with False Statement
No. | and, as set forth in Martin's Motion to Clarify, this False Statement is completely contrary
to the record which shows that Mr. Bryant did, in fact, obtain information from AT&T and
Facebook, and that he did produce that information to the undersigned counsel, yet that
information was demonstrably useless because it was grossly incomplete, Ex. "A," pp. 4-6.
Therefore, False Statement No. 3 is also a fabrication to support Judge Smith's bias in
favor of Webster and Bryant.
False Statement No. 4: "They [Mr. Webster and Mr. Bryant] each then hired attorneys to
assist them in complying with the subpoenas." This Statement is also completely contrary to the
record, which shows that neither Webster nor Bryant consulted with any attorney prior to hiring
their counsel after they had received service of Martin's Application for Contempt; and neither of
their counsel did anything to obtain any information for Webster or Bryant to respond to Martin's
subpoenas, such as to ask Facebook and AT&T to produce the requested information, or issue
subpoenas on behalf of Webster or Bryant, as the undersigned counsel was required to do at
Martin's expense, due to Webster's and Bryant's counsel doing nothing to respond to Martin's
subpoenas, Ex. "A," p. 6.
Similar to Judge Smith's False Statement No. 2, this False Statement is also a fabrication
Mot to Recuse
-6-to support excusing Webster and Bryant from complying with Martin's subpoenas and the Order
to Show Cause.
False Statement No. 5: "The request for phone records and Facebook account
information were not easily obtained." This Statement is also completely contrary to the record.
Had Webster or Bryant printed the Facebook communications that the undersigned counsel
printed from their publically-available records, and had they printed the requested information
from their private pages, and had they produced complete telephone records which Bryant
requested from AT&T, and received, and produced, then those records would have been “easily
obtained" and Martin would not have been required to subpoena Facebook and AT&T, just as
Martin obtained information from AT&T regarding Plaintiff Johnson using only a subpoena, Ex.
"A," pp. 6, 7. Therefore, this is another fictitious excuse proffered by Judge Smith to benefit
Defendants, and is contrary to False Statement No. 1.
False Statement No. 6: "In fact, none of the parties have been able to obtain records
from Facebook, and it took a court order to obtain the phone records." Again, this Statement is
contrary to the record. Webster and Bryant did produce some irrelevant information from their
Facebook accounts, which only required them to print the requested Facebook communications
to produce them, and Mr. Bryant merely requested AT&T to produce his telephone records,
which would have been satisfactory had he produced complete AT&T records, and had Webster
produced any of his AT&T records, Ex. "A," p.7.
False Statement No. 7: "At the oral request of both Mr. Colclazier and Mr. Irby for
extension of time to respond to the Motion for Partial Summary Judgment, and over objection by
Kirk Marshall, responses to said motions [sic] shall be filed by June 28, 2021." Again, this
Statement is completely contrary to the record because neither Mr. Colclazier nor Mr. Irby
‘Mot to Recuserequested such extension in the presence of the undersigned counsel, Ex. "A," pp. 7-8.
Judge Smith violated Rule 2.9 of the Code of Judicial Conduct which prevents ex parte
communications with a judge when the communications will reasonably provide the party with a
"procedural, substantive, or tactical advantage as a result of the ex parte communication," 5 O.S.
App. 4, Rule 2.9.
Judge Smith responded to Mr. Colclazier's and Mr. Irby's ex parte request for an
extension of time of an additional 15 days in which to respond to the Motion for Partial
Summary Judgment by giving Plaintiff Johnson and Defendant Bryant procedural, substantive,
and tactical advantages without any justification, and contrary to the Oklahoma Rules of Civil
Procedure.
Therefore, it was upon these facts that Judge Smith justified not holding a trial on
Martin's Application for Contempt against Webster and Bryant.
THIS COURT MAY NOT PRESIDE OVER THIS CASE UNTIL MARTIN'S MOTION TO
DISQUALIFY HAS BEEN DECIDED
As the undersigned counsel indicated in the in camera hearing, Martin's motion for
disqualification must be resolved before further proceedings are justified before Judge Smith,
Clark v. Board of Education of Indep. Sch. Dist. No. 89, 2001 OK 56, 47-11, 32 P.3d 851;
Miller Dollarhide, P.C., v. Tal, 2007 OK 58, § 13, 163 P.3d 548 (Pursuant to Clark v. Board of
Education of Indep. Sch. Dist. No. 89, the actions of the trial court in its continued participation
while motions to disqualify are pending results in a deprivation of due process and constitute
reversible error").
WHEREFORE, because Martin has properly brought his motion, and Judge Smith is
disqualified from presiding over these proceedings pursuant to Oklahoma District Court Rule 15
and the Oklahoma Code of Judicial Conduct because her impartiality has reasonably been
‘Mot to Recusequestioned, Martin requests this Court enter an order for disqualification and to transfer this
matter to an alternative judge and jurisdiction.
Mot to Recuse
Respectfully submitted,
aa
Kirk A. Marshall, OBA# 19345
KIRK MARSHALL, PLLC
kirkmarshall@msn.com
304 W. Grand Teton Ct.
Yukon, OK 73099
(405) 706-5641
Attorney for Plaintiff
CERTIFICATE OF SERVICE VIA U.S. MAIL
I, the undersigned, certify that on this 4th day of August 2021 that a true and correct copy
of the above and foregoing Motion to Recuse Judge Trisha Smith for Cause was served by
United States first-class mail, postage prepaid thereon to:
Timothy F. Crow, Esq.
SMILING, SMILING & BURGESS
Bradford Place, Suite 300
9175 South Yale Ave.
Tulsa, OK 74137
Greg D. Givens, Esq.
GIVENS LAW FIRM
136 N.W. 10th Street, Suite 100
Oklahoma City, OK 73103
Mr. M. Bradley Carter, Esq.
P.O. Box 1508
Seminole, OK 74818-1508
Robert L. Irby, Esq.
THE IRBY LAW FIRM, P.L.L.C.
104 N. Broadway
P.O. Box 955
Holdenville, OK 74848
Jerry L. Colclazier, Esq.
COLCLAZIER & ASSOCIATES
404 North Main Street
Seminole, OK 74868
Andy A. Artus, Esq.
COLLINS, ZORN, & WAGNER, P.C.
429 N.E. 50th St., Second Floor
Oklahoma City, OK 73105-1815
SS
Kirk A. Marshall
-9-IN THE DISTRICT COURT IN AND FOR SEMINOLE col
STATE OF OKLAHOMA “i ce
IN DISTRICT COURT
JEREMY JOHNSON,
Plaintiff, JUL 14 2071
vs.
L.G. MARTIN, KIM A. DAYIS, COURT CLERK
Defendant and Third-Party Plaintiff, BY. DEPUTY
vs.
BARRY TUCKER, Cause No. CJ-2018-63
JAMES BRYANT, Cause No. CJ-2021-1
MICHAEL DOWNEY, SHERIFF
SHANNON SMITH, DEPUTY SHERIFF
CHUCK WEBSTER, and DEPUTY
SHERIFF MATT HALEY,
Third-Party Defendants.
MOTION TO CLARIFY ORDER OF JUNE 17,2021
COMES NOW Defendant and Third-Party Plaintiff Martin and clarifies that the Order
entered on June 17, 2021, which pertains to the hearing on June 14th, 2021, is a grossly
inaccurate reflection of the evidence, the law, and the record and, in support, alleges as follows:
1) This Court stated in its Order that "[o]n April 1, 2021, all parties announced that
the issues of contempt were moot because Mr. Marshall had received all requested information
from both Mr. Webster and Mr. Bryant," 6/17/21 Ord. p. 1-2.
The evidence however shows that, at the April Ist hearing, it was this Court, and not "all
parties," who declared that the issues of contempt were moot. Mr. Ibry confirmed this when he
testified at the June 14th hearing that "[oJn April Ist, 2021 Mr, Bryant and I appeared demanding
a trial on the issue, and my memory is that it was declared moot at that time," 6/14/21, Hrg. Tr.
18:19-21 (emphasis added), attached as Exhibit "A."
After the Court declared that the issues of contempt were moot at the April Ist hearing,
counsel for Webster and Bryant indicated that they had no need to present evidence.
‘Mot to Car
1/8
CfAt that hearing, the undersigned counsel also demanded a trial, and certainly agreed that
the contempt citations were "moot" because the undisputed evidence was that Martin had
expended his money to obtain whatever was possible from AT&T and Facebook; and Webster,
Bryant and their attorneys had produced virtually nothing in response to Martin's subpoenas; and
they were obviously not going to produce anything else. So Martin was entitled to attorney's fees
for obtaining whatever was possible from AT&T and Facebook because Webster, Bryant and
their attomeys had not done it and would not do it, see also Ex. "B," 16:20-18:14. Then, the
undersigned counsel reviewed the evidence which is also set forth in Martin's Motion for
Attorney's Fees:
a) neither Webster nor Bryant produced the Facebook communications that Martin
had already obtained prior to the Subpoenas from their publically-available Facebook
conversations;
b) neither Webster nor Bryant produced any evidence of their communications
during the relevant time period regarding the livestock which is the subject of this litigation;
c) Bryant produced incomplete AT&T telephone records thus rendering them
useless;
d) Bryant also produced five Facebook communications and several text messages,
none of which discussed the subject livestock;
e) Webster produced no telephone records, and no Facebook messages, but produced
a few text messages from an unknown year, none of which discussed the subject livestock;
f) Martin obtained Webster's and Bryant's AT&T telephone records using the Court
orders that the undersigned counsel had researched and prepared, and obtained this Court's
signatures for, and filed on September 15th, 2020, and served upon AT&T and Facebook, and
Mot to Car
2/8filed the returns of service, and filed the motions for contempt, and attended the hearings for
Martin's claim of attorney's fees, all without the assistance of Webster, Bryant or their attorneys,
even though all of the documents were in their possession and control.
None of the foregoing was disputed by Webster or Bryant in the hearing on April Ist, and
no one at that hearing alleged that the law which Martin had cited was insufficient to allow
attorney's fees, based upon the undisputed fact that Martin -- and not Webster or Bryant -- had
obtained some of the documents that Webster and Bryant refused to produce. And no one alleged
that some law somewhere required a "prevailing party" to be determined as a Prerequisite to
awarding attorneys fees for a contempt citation based upon the evidence.
This Court's claim that "Mr. Marshall had received all requested information from both
Mr. Webster and Mr. Bryant” is also not supported by the evidence. If this statement were true,
then the Court Orders filed on September 15th, 2020 would not have been necessary for Martin's
counsel to prepare. In addition, Mr. Irby testified that "Mr. Bryant could have" supplied
information from AT&T and Facebook, Ex. "C," 15:12-13, Mr, Carter similarly testified that the
codes that Mr. Webster provided to purportedly access his AT&T account were completely
useless, Ex. "D," 12:5-12. Therefore, the Court's statement that the undersigned counsel had
received all requested information from both Mr. Webster and Mr. Bryant is contradicted by the
evidence, and the Court confirmed this when it stated that Webster and Bryant "each attempted
to obtain the [telephone records and Facebook posts] without success," Ord. p. 2.
Therefore, this Court's statement in its Order that "[oJn April 1, 2021, all Parties
announced that the issues of contempt were moot because Mr. Marshall had received all
Tequested information from both Mr. Webster and Mr. Bryant," is not supported by any
evidence,
Motto lar 3/82) This Court also falsely announced in its June 17th Order that Webster and Bryant
are "lay persons with limited knowledge of ‘discovery’ or how to obtain electronic information,"
Ord. p. 2. Even if this announcement were true, an excuse of a person being a "lay person” is
completely irrelevant to his refusal to comply with a subpoena, especially when that "lay person"
supposedly hired his attorney to respond to the subpoenas, as this Court also announced contrary
to the evidence.
This Court is aware that neither Webster nor Bryant are “lay persons." This Court knows
that they are both former law enforcement personnel, and this fact has been set forth in numerous
motions, including Martin's Reply to Webster's Response to Martin's Motion for Attorney's Fes
and Costs and Motion to Strike Webster's Response, and Motion for Sanctions, filed on June
20th, 2021 ("Martin's Reply"), in which Mr. Webster is properly identified as a witness for the
Defendants who repeatedly gave them legal advice on behalf of the Seminole County Sheriff's
Office.
Mr. Carter even testified at the June 14th hearing that "Mr. Webster is a former law
enforcement officer and he understands what the penalties are for perjury,” Ex. "E," 10:6-8.
Therefore, this Court's excuse that Mr. Webster and Mr. Bryant are not liable to Martin
for attorney's fees because they are "lay persons with limited knowledge of ‘discovery’ or how to
obtain electronic information," is false.
3) Another false excuse for Mr. Webster and Mr. Bryant to avoid attorney's fees
presented by this Court is that they "each attempted to obtain the information without success,”
Ord. p. 2. Contrary to this excuse, the evidence shows that Mr. Bryant did, in fact, obtain
information from AT&T and Facebook; however, the AT&T phone records that he produced
were so incomplete that they were useless, and his Facebook communications did not include
MottoCor 4/8those that the undersigned counsel had obtained from their publically-available Facebook
accounts before the subpoenas were served and obtained after this Court ordered them to produce
those communications, see 1(c, d, ) supra. Therefore, as to Mr. Bryant the excuse that he
attempted to obtain the information without success is false.
Mr. Webster, on the other hand, never presented any evidence that he attempted to obtain
any information from AT&T or Facebook. Therefore, this Court's excuse that he attempted to
obtain the information without success is also contrary to any evidence.
This Court's excuse implies that Webster's and Bryant's attorneys, who they supposedly
hired to respond to the subpoenas, were unable to subpoena AT&T or Facebook, as the
undersigned counsel successfully accomplished. This excuse also implies that neither Mr.
Webster, nor Mr. Bryant, nor their attorneys knew how to produce the information requested in
the subpoenas from Facebook, which required them to locate the communications that Mr.
Webster and Mr. Bryant had previously typed into Facebook, and push the button on the
computer that says "print."
Therefore, had they "attempted to obtain the information," they would have printed their
publically-available Facebook communications from their accounts, including the information
that Martin obtained prior to issuing their subpoenas, which was attached to Martin's Reply as
Exhibit "M," and would have produced a more extensive version of that evidence which Martin
attached to his Third Amended Petition, see 1(a) supra. Moreover, they would have produced the
private portions of their Facebook accounts regarding the cattle.
Similarly, had Mr. Webster just asked AT&T for his telephone records, as Mr. Bryant
just asked AT&T for his telephone records and received them, Martin would not have had to
create the Court Orders which were filed on September 15th, 2020, and Mr. Webster and Mr.
Motto Clar 5/8Bryant would have obtained the same information that Martin obtained through those Orders.
Therefore, Mr. Webster's and Mr. Bryant's refusal to produce the documents requested
had nothing to do with their unsuccessful "attempts to obtain the information."
4) Mr. Webster and Mr. Bryant did not "hire their attorneys to assist them with
complying with the subpoenas," Ord. p. 2. If they had hired their attorneys to assist them with
complying with the subpoenas, they would have hired their attorneys after they received the
subpoenas to respond to the subpoenas, instead of hiring their attorneys to respond to the
contempt citations after they received the contempt citations. And Mr. Irby confirmed this in the
June 14th hearing when he testified that Mr. Bryant hired him "to respond to this contempt
citation,” Ex. "F," Hr. Tr. 7:13, see also, 6:2-5 (“it wasn't until July 2nd when [] this Court filed
its contempt citation that [Mr. Bryant] actually began responding to the subpoenas duces
tecum").
Had Mr. Webster and Mr. Bryant "hired their attorneys to assist them with complying
with the subpoenas," then their attorneys would have assisted them in producing the same AT&T
records that Martin obtained at his expense through his Court Orders. They could have merely
asked AT&T for the records. And had their attorneys merely pushed the button on Mr. Webster's
and Mr. Bryant's computer that says "print," they would have produced at least those Facebook
communications that Martin obtained at his expense from their publically-available Facebook
accounts.
5) Therefore, this Court's statement is also true that "[t{he request for phone records
and Facebook account information were not easily obtained," Ord. p. 2. Mr. Bryant easily
obtained his phone records because he produced some of them but were so incomplete they were
useless. And the undersigned counsel testified at the June 14th hearing that it was "easy" "to
Mottockr 6/8obtain those documents from AT&T," Ex. "A," 18:2-3, see also, Return of Service of Subpoenas
Duces Tecum Regarding Jeremy Johnson to AT&T, filed 4/20/21, which shows that AT&T
records were obtained with a subpoena.
And we know that the ease with which Mr. Webster, Mr. Bryant, or their attorneys could
have produced the requested Facebook communications would have required them to first find
the communications on their accounts that responded to the subpoenas, and then pushed the
button on the computer that says "print."
Therefore, the ease with which the documents were obtained by Mr. Webster, Mr.
Bryant, and their attorneys is irrelevant to their failure to produce the requested documents, and
is not another excuse for avoiding paying Martin's attorney's fees.
6) This Court also stated in its June 17th Order that "[iJn fact, none of the parties
have been able to obtain records from Facebook," Ord. p. 2. Again, both Webster and Bryant
produced information from their Facebook accounts, probably by pushing the button on the
computer that says "print." But they did not produce any of the information requested in Martin's
subpoenas, or the communications which Martin obtained from their publically-available
Facebook accounts both before and after Martin issued his subpoenas to Webster and Bryant,
See, €.g., Ex."A," attached to Third Amended and Third-Party Petition, filed on 7/6/21.
7) This Court also stated in its June 17th Order that both Mr. Colclazier and Mr. Irby
orally requested an extension of time to respond to Martin's Motion for Partial Summary
Judgment, Ord. p. 2. However, this statement is demonstrably false because no oral request was
made by either Mr. Colclazier or Mr. Irby in the presence of the undersigned counsel, and no
such oral request exists on the record, and this Court either offered the extension completely
unsolicited by Mr. Colclazier and Mr. Irby, or offered it in response to their ex parte
Motto Clar 7/8communications, giving them an additional 15 days from the date of the hearing to respond to
Martin's Motion for Partial Summary Judgment, Ex. "I," 22:17-19.
8) This Court ordered this hearing to begin at 1:30 p.m. on June 14th. However, the
hearing did not begin until 1:50 p.m. when the 5 attorneys, including the undersigned counsel,
who had been waiting 20 minutes for the hearing to begin without any explanation, finally
learned that we had waiting for Mr. Colclazier to arrive. The second 50-minute delay in the June
14th hearing occurred when the Court announced that it was not prepared, and needed to review
the record. The third 20-minute delay in the June 14th hearing occurred when opposing counsel
announced that they also were not prepared, and needed to have a conference. Consequently, the
approximately 25-minute transcript took more than 2 hours to accomplish, and resulted in the
Order which is the subject of this Motion.
Respectfully submitted,
Kirk A. Marshall, OBA# 19345
KIRK MARSHALL, PLLC
304 W. Grand Teton Ct., Yukon, OK 73099
(405) 706-5641
CERTIFICATE OF SERVICE VIA U.S. MAIL
I, the undersigned, certify that on this 12th day of July 2021 that a true and correct copy of the
above and foregoing Motion to Clarify Order of June 17th, 2021 was served by United States
first-class mail, postage prepaid thereon to:
Jerry L. Colclazier, Esq.
404 North Main Street
Seminole, OK 74868
Mr. M. Bradley Carter, Esq. Robert L. Irby, Esq.
P.O. Box 1508 P.O. Box 955
Seminole, OK 74818-1508 Holdenville, OK 74848
a-—
Kirk A. Marshall
Mot to Clar 8/8IN THE DISTRICT COURT OF SEMINOLE COUNTY
STATE OF OKLAHOMA
JEREMY JOHNSON,
Plaintiff,
CASE NO. CJ-2018-63
vs.
LG. MARTIN,
Defendant.
L.G. MARTIN,
Plaintiff,
BARRY TUCKER, JAMES BRYANT, and
)
)
)
)
vs. ) CASE NO, CJ-2021-1
)
)
MICHAEL DOWNEY, )
)
)
Defendants.
teen
TRANSCRIPT OF MOTION HEARING
ON JUNE 14, 2021
BEFORE THE HONORABLE TRISHA SMITH, ASSOCIATE DISTRICT JUDGE
IN HOLDENVILLE, OKLAHOMA
eRe
REPORTED BY: DONNAG. McCOLLOCH, CSR #1572
Official Court Reporter
Seminole/Hughes County, Oklahoma
Ex “A1 APPEARANCES
2 Counsel for Jeremy Johnson, Plaintiff in CJ-2018-63:
3 MR. JERRY L. COLCLAZIER
Colclazier & Associates
4 404 N. Main Street
Seminole, OK 74868
5
Counsel for L.G. Martin, Defendant in CJ-2018-63 and
6 Plaintiff in CJ-2021-1:
7 MR. KIRK A, MARSHALL
Kirk Marshall, PLLC
8 304 West Grand Teton Ct.
Yukon, OK 73099
9
Counsel for Barry Tucker, Defendant in CJ-2021-1:
10
MR. GREG GIVENS
11 Attorney at Law
136 N.W. 10th, Suite 100
12 Oklahoma City, OK 73103
13 Counsel for James Bryant, Defendant in CJ-2021-1:
14 MR. ROBERT L. IRBY
Attorney at Law
15 P.O. Box 630
Holdenville, OK 74848
16
Counsel for Michael Downey, Defendant in CJ-2021-1:
17
MR. TIMOTHY F. CROW
18 — Smiling, Smiling & Burgess
Bradford Place, Suite 300
19 9175 South Yale Avenue
Tulsa, OK 74137
20
Counsel for Chuck Webster:
21
MR. M. BRADLEY CARTER
22 Attorney at Law
P.O. Box 1508
23 Seminole, OK 74818-1508
24
2518
were ona piece of paper and didn't work makes that
noncompliant, in my opinion, especially with the ease that
in retrospect it was to obtain those documents from AT&T.
So | would just ask that the Court consider the law
3237; that the defense to having a contempt citation against
you is that you were not able to comply because of some
substantial justification or that circumstances otherwise
make the award of expenses unjust.
And, yes, you know everybody here is paying
attorney's fees. My client was sued by Mr. Colclazier's
client. So if we're going to, you know, talk about how much
we're having to pay, that's probably not something we should
spend this Court's time on any further.
Thank you, your Honor.
MR. IRBY: Judge, if | could address one
thing. It's a procedural issue. And | don't want to
necessarily dispute Mr. Marshall's perception of what
happened, but in order to purge a contempt, a contempt
conviction has to be had. Andon April 1st, 2020,
Mr. Bryant and | appeared demanding a trial on the issue,
and my memory is that it was declared moot at that time.
| just want to make that clear for the record that
Mr. Bryant was never convicted, or tried, or given the
opportunity to present a defense to the contempt citation.
ft was withdrawn.16
1 Mr. Martin had made of Mr. Bryant, who is a witness in this
2 case.
3 And on April 1st, unbeknownst to me, Mr. Marshall
4 appeared and announced that Mr. Bryant, the contempt
5 citation issue was moot, there was nothing further he could
6 produce or provide. And so my thought was that would be the
7 end of that argument.
8 And it certainly isn't. He's filed a motion for
9 fees against Mr. Bryant, but, Judge, the record here that
10 has been created shows that Mr. Bryant has done everything
11 he possibly can to provide answers to Mr. Martin's discovery
12 requests. And anything that was not turned over could not
13 be turned over, but everything he has had in his possession
14 he has made every effort to provide that to counsel, even
15 _ before | got involved, and we are continuing to do so in the
16 other lawsuit.
17 We request that the application for fees be denied.
18 THE COURT: Thank you, Mr. Irby.
19 Any response, Mr. Marshall?
20 MR. MARSHALL: Yes, ma'am. I'll be brief,
21 ‘Yes, in fact, what happened at the last hearing, your Honor,
22 was you said have the request for production, the contempt,
23 has it been purged, and my answer was, yes, your Honor, they
24 are not going to produce anything else.
25 So to the extent that | was satisfied, that is not
xx “gt17
how I recall it. And so when Mr. Irby says that Mr. Bryant
could not have done anything more, he could have
contacted -- Mr. Irby could have contacted AT&T, or
Mr. Bryant could have contacted AT&T, and said give me
everything from November 2017 until now as far as my
telephone records. And just like | asked, they gave it to
me.
So what I'm asking for, your Honor, is just from the
time that they didn't respond to our legitimate subpoenas
until the time that | acquired whatever they were going to
give me, along with their telephone records -- which, yes, |
have obtained. | have obtained. | obtained it through the
orders that you provided. It was easy. It was easy.
Facebook, other end of the spectrum. We're not
going to get it under federal law. At least, I'm not going
to pursue it. | was satisfied that it wasn't worth the
time, especially since we had obtained Facebook information
that the Defendants had publically had available that they
didn't produce when | asked them.
And by the way, your Honor, that was listed as an
exhibit in our response to Mr. Webster's objection to the
attorney's fees.
And, you know, Mr. Carter admitted that the codes
that are on Exhibit A didn't work for him either when he
provided them to me. And so, you know, the fact that they18
were on a piece of paper and didn't work makes that
noncompliant, in my opinion, especially with the ease that
in retrospect it was to obtain those documents from AT&T.
So | would just ask that the Court consider the law
3237; that the defense to having a contempt citation against
you is that you were not able to comply because of some
substantial justification or that circumstances otherwise
make the award of expenses unjust.
And, yes, you know everybody here is paying
attorney's fees. My client was sued by Mr. Colclazier's
client. So if we're going to, you know, talk about how much
we're having to pay, that's probably not something we should
spend this Court's time on any further.
Thank you, your Honor.
MR. IRBY: Judge, if | could address one
thing. It's a procedural issue. And! don't want to
necessarily dispute Mr. Marshall's perception of what
happened, but in order to purge a contempt, a contempt
conviction has to be had. And on April 1st, 2020,
Mr. Bryant and | appeared demanding a trial on the issue,
and my memory is that it was declared moot at that time.
'just want to make that clear for the record that
Mr. Bryant was never convicted, or tried, or given the
Opportunity to present a defense to the contempt citation.
It was withdrawn.15
1 filing a notice of compliance on September 1st, 2020,
2 articulating to the Court that there was really no further
3 way that he could cooperate or secure any of the materials
4 that were requested.
5 There were similar arguments with regard to Facebook
6 and AT&T. After so much time, a lot of that information is
7 simply not able to be retrieved. We certainly did agree
8 to -or Mr. Bryant agreed to the orders of the Court that
9 those organizations supply any of the information that they
10 had.
11 | was never notified whether they had supplied any
12 information or not, but that would have been the only thing
13. Mr. Bryant could have done. And after ! got into the case,
14 there really wasn't anything else.
15 Now, Mr. Bryant was subsequently sued at the
16 beginning of this year and has answered to the best of his
17 ability all the discovery requests that have been provided
18 by the Defendant in this case, the Plaintiff in that case,
19 ©-21-1. So Mr. Bryant is continuing to cooperate in
20 ongoing discovery requests that he is asked to provide, and
21. will continue to do so.
22 When we appeared on April 1st, 2021, we had
23 continued to assert we were not in contempt, we weren't in
24 violation of either this Court's orders, if they were
25 ordered to compel, or the request that the Defendant
Ex. "CO"11
12
20
24
25
12
There were several different things. There were
text messages, | think, being requested, Facebook messages.
Facebook is a creature all of its own. It's very difficult
to get anything from Facebook.
With regard to the Verizon -- or AT&T store, excuse
me, Mr. Marshall - excuse me, Mr. Webster went there, was
provided these handwritten codes. He came into my office
and Mr. Webster and my assistant spent the better part of a
day, it seemed like, at least a half a day, trying these
codes that they were given, plugging them in, you go to a
website, they give them to you. We spent as much time as we
could.
| provided those codes to counsel as well. | think
eventually -- and I'm not really sure if you have those yet
or not. The AT&T store, | believe, was sul bpoenaed. We
worked with counsel to obtain that information.
It was just, you know, for whatever reason there
were great lengths that we went to, to try to comply with
this. And whatever Mr. Webster had, what we received,
Mr. Marshall has.
That's all ! can say to the Court. We've made every
effort to comply in good faith. Again, we're not a party to
the action. We're just witnesses, and we're more than happy
to not be obstructive in any way. We want to be
cooperative. We certainly don't want any contempt citations
Feo10
1 me the explanation of why he did not attend the deposition.
2 He stated that he had attempted to call. 1 don't know what
3 number. He is not here -- couldn't be here today, but
4 1--you know, we put that in our response, that he was ill,
5 and he verified that under oath. And that's ~ | took him
6 at his word. Mr. Webster is a former law enforcement
7 officer and he understands what the penalties are for
8 perjury.
9 ' would state to the Court -- and it's very well
10 likely he may have called the district attorney's office
11 over in Seminole -- excuse me, Shawnee, where the
12 depositions were set up, but my understanding was, as
13 Mr. Marshall said, that he attempted to call Mr. Marshall's
14 office. | don't know what that was, but, nevertheless, he
15 was told that he -- they would try to get in touch with
16 Mr. Marshall's office.
17 And Mr. Marshall did travel to the courthouse, |
18 understand, after, or was en route, so | do know that that
19 is true as far as he probably did not get the word or, if he
20 got the word, was already there and could not turn around.
21 | don't know what Mr. Bryant said at his deposition.
22. [haven't read it. Don't know how he would know or any of
23 that. | just know that Mr. Webster told me he was up all
24 night very ill and he finally went to bed about five o'clock
25 inthe morning, or something like that, he got up, he made
ak E, “1. at the time it was requested was substantially justified or
2. if it was circumstances that make the award of expenses
3° unjust.
4 So, in addition, and, finally, your Honor, regarding
5 Mr. Bryant, he, of course, agreed to this Court ordering the
6 telephone information from AT&T to be -- and | mean ordering
7 rather than subpoenaed -- to be served upon AT&T and
8 Facebook, actually.
9 And they could have, of course, done that themselves
10 because, in fact, the question was produce anything that is
11 inyour possession or control, and it would be the
12. telephone -- the person who has the contract with the
13 telephone company who has control of their own bill.
14 And | haven't heard anybody say that was from
15. Mr. Bryant or Mr. Webster's side of this that their
16 attorneys did anything except tell their clients, for
17 example, call AT&T and say, hey, legal department can you
18 provide this, or how do | get it.
19 So, yes, because we did take the time and because we
20 did go to the effort of Preparing that order, obtaining the
21 order, because it had to be an order or subpoena and it
22 couldn't be just a request, hey, can you just give this to
23 me because it's my account, that was an additional expense
24 that we're asking them to pay.
25 Now, regarding Mr. Webster -- now, | don't want to
Ex “F*
Preview
IN THE DISTRICT COURT IN AND FOR SEMINOLE CO! FILED STATE OF OKLAHOMA IN DISTRICT COURT JEREMY JOHNSON, AUG 06 2021 Plaintiff, vs. KIM A. DAYIS, COURT CLERK L.G. MARTIN, BY, DEPUTY Defendant and Third-Party Plaintiff, vs. BARRY TUCKER, JAMES BRYANT, Cause No. CJ-2018-63 MICHAEL DOWNEY, SHERIFF Cause No. CJ-2021-1 SHANNON SMITH, DEPUTY SHERIFF CHUCK WEBSTER, and DEPUTY SHERIFF MATT HALEY, Third-Party Defendants. MOTION TO DISQUALIFY JUDGE TRISHA SMITH FOR CAUSE COMES NOW Defendant and Third-Party Plaintiff Martin and moves the Honorable Trisha D. Smith to recuse herself pursuant to the Oklahoma Rules for Judicial Conduct and Oklahoma District Court Rule 15, and further moves Judge Smith to transfer this matter to an alternative judge and jurisdiction’, on the ground that she has refused to recuse herself when presented with evidence at the in camera hearing held in this matter on July 28th, 2021, that Martin reasonably questioned her impartiality due to unfounded conclusions of fact, which even conflict with themselves and which benefited Defendants and harmed Martin, which she set forth in her Order of June 17th, 2021, and, in support, alleges as follows: FACTS Pursuant to Rule 15, Martin requested an in camera hearing with Judge Smith and opposing counsel at the hearing held in this matter on July 28th, 2021, in which the undersigned counsel indicated that seven (7) unfounded conclusions of fact, which conflicted with each other and benefited Defendants and harmed Martin, and were contrary to undisputed evidence ' Plaintiff requests this Court transfer this matter out of the 22nd and 23rd District Court Judicial Districts due to the presence of employees from the Seminole County Sheriff's Office being parties to this litigation. Mot to Recuse -1-presented by the parties, were set forth in her Order of June 17th, 2021, and were set forth in Martin's Motion To Clarify Order of June 17, 2021, attached hereto as Exhibit "A," reasonably questioned her impartiality and justified Judge Smith recusing herself from these proceedings and transferring this matter to another judge and jurisdiction. During that in camera hearing, the undersigned counsel also advised Judge Smith that her recusal was justified because continuing rulings in this matter would constitute reversible error pursuant to Oklahoma law due to Martin's oral request for her recusal at the in camera hearing, and due to this Motion, which remain unresolved, and Martin cited relevant Oklahoma decisional law in support. At the in camera hearing on July 28th, 2021, Judge Smith responded by denying Martin's oral motion for the her to recuse herself, and she again demonstrated her bias in favor of Defendants and against Martin by ruling that the undersigned counsel had not complied with Rule 15 because, according to her erroneous interpretation of the Rule, the undersigned counsel did not file his motion to disqualify ten days prior to the July 28th, 2021 hearing, which she termed a "trial," pursuant to Rule 15, to reach this erroneous conclusion. Yet, Martin's Motion for Partial Summary Judgment against Johnson and Bryant was set for a "hearing" on July 28th, 2021, and not a “trial;" and Rule 15 distinguishes the term "trial," from the term "hearing;" and the undersigned counsel complied with Rule 15; and the undersigned counsel reminded her at the hearing that no scheduling order had been entered to set the matter for "trial." ARGUMENTS AND AUTHORITIES Martin's oral motion for Judge Smith to recuse herself and to transfer the matter to an alternative judge and jurisdiction is based upon her Order of June 17th, 2021 in which she justified bias in favor of Defendants, rather than avoid bias. Oklahoma law supports Martin's motion for disqualification and states that a violation of the Code of Judicial Conduct may Mat to Recuse 2-constitute grounds for removing a judicial officer from office by the court on the judiciary, 20 O.S. § 1404(C); and the Code is violated when a judge fails to disqualify herself from any proceeding in which her impartiality may reasonably be questioned, 5 O.S. App. 4, Rule 2.11. Judge Smith's unfounded conclusions of fact, which benefited Defendants, show that her impartiality is reasonably questioned, and show that she is disqualified as a matter of law, and that she must recuse herself, or she continues to violate the Code. And this conclusion is confirmed by Oklahoma decisional law, see, e.g., Sadberry v. Wilson, 1968 OK 62, 4 12, 441 P.2d 381 ("When circumstances and conditions surrounding litigation are of such nature that they might cast doubt and question as to impartiality of any judgment the trial judge may pronounce, said judge should certify his disqualification") (emphasis added). This conclusion is also confirmed by Rule 2.11's Comment, which states that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply," id., Cmt. 1. Judge Smith's obligation not to hear or decide matters in which her impartiality might reasonably be questioned applies regardless of whether a motion to disqualify has been filed, id., Cmt. 2. Therefore, Judge Smith continues to violate the Code and is subject to removal from office because she has not recused herself due to her impartiality being reasonably questioned. Her unfounded conclusions of fact set forth in her Order of June 17th, 2021 specifically violate the Code which requires a judge to uphold and apply the law, and to perform all duties fairly and impartially, 5 O.S. App. 4, Rule 2.2. More specifically, Rule 2.2 requires a judge to be impartial and fair to all parties, and that "good-faith errors of fact or law ... do not violate this Rule," id., Cmt. 1, 3. Therefore, Rule 2.2 is violated when a judge justifies bias by employing Mot to Recuseunfounded conclusions of fact in favor of a party, instead of reaching conclusions of fact in good-faith, and such a judge is disqualified as a matter of law and must recuse herself, otherwise she continues to violate the Code of Judicial Conduct. In response to the undersigned counsel's oral motion at the in camera hearing on July 28th, 2021 for Judge Smith to recuse herself, she responded that she is not biased, and that neither her Order of June 17th, 2021, nor Martin's Motion To Clarify that Order evidence bias. However, her opinion of her impartiality is not relevant because her impartiality has reasonably been questioned, see, e.g., Sadberry, 1968 OK 62, | 13, supra ("Where there are circumstances of such a nature as to cause doubts as to a judge's partiality, bias or prejudice, it is his duty to disqualify, notwithstanding the fact that he personally believes himself to be unprejudiced, unbiased, and impartial") (emphasis added). The standard of review for a trial judge's refusal to disqualify herself is a clear abuse of discretion, see, e.g., Merritt v. Hunter, 1978 OK 18, § 2, 575 P.2d 632, 624; Graham v. Graham, 1967 OK 210, J 8, 434 P.2d 245, 246; Osage Implement Co. v. Bottrell, 1961 OK 196, q 11, 363 P.2d 940, 942. Therefore, Judge Smith's refusal to recuse herself from these proceedings as a result of her seven (7) unfounded conclusions of fact, which benefited Defendants and show that her impartiality may reasonably be questioned is a clear abuse of discretion and is reversible error. The seven (7) unfounded conclusions of fact which show that Judge Smith justified her bias in favor of Defendants, rather than avoid bias, are set forth below, as are summaries of the evidence which demonstrate that her statements are unfounded: False Statement No. 1: "All parties announced that the issues of contempt were moot because Mr. Marshall had received all requested information from both Mr. Webster and Mr. ‘Mot to Recuse 4.Bryant." First, this False Statement is Judge Smith's attempt to justify her announcement at the April 1, 2021 hearing that the issues of contempt were moot and, therefore, no trail on Martin's Application for Contempt would be occurring, because the undersigned counsel had received all requested information from both Mr. Webster and Mr. Bryant. This False Statement conflicts with False Statement Nos. 2, 3, 5 and 6, which themselves falsely allege that Webster and Bryant could not obtain the requested evidence from Facebook or AT&T. Therefore, both statements cannot be true, that Webster and Bryant could not obtain the requested evidence from Facebook or AT&T, yet they provided all information requested to the undersigned counsel. More importantly, as set forth in Martin's Motion to Clarify, no parties announced at the April 1, 2021 hearing that the issues of contempt were moot, Ex. "A," pp. 1-3. Therefore, False Statement No. | is merely Judge Smith's conclusory attempt to excuse Webster and Bryant from Martin's Application for Contempt and from the Order to Show Cause of 2/21/20 without consequences, and in spite of the facts. False Statement No. 2: "Both [Mr. Webster and Mr. Bryant] are lay persons with limited knowledge of "discovery" or how to obtain electronic information." As set forth in the record, and in Martin's Motion to Clarify, this Statement is fiction, Ex. "A," p. 4. Mr. Webster is repeatedly referred to throughout the record as a legal advisor to the Defendants to assist them in acting under color of law, as evidenced in part by his Facebook page. He is an employee and Deputy of the Seminole County Sheriff's Office, and Mr. Bryant is a former department of corrections officer. Because Judge Smith was an Assistant District Attorney for Hughes County, Oklahoma, she worked closely with adjacent-county sheriff's offices, including the Seminole Mot to RecuseCounty Sheriff's Office, and is aware that law enforcement officers are not "lay persons" as to their knowledge of the law, discovery procedures, and how to obtain electronic information. Therefore, False Statement No. 2 is a fiction to support Judge Smith excusing Webster and Bryant from complying with Martin's subpoenas and the Order to Show Cause, and it is factually inconsistent with False Statement No. 1. False statement No. 3: "They [Mr. Webster and Mr. Bryant] each attempted to obtain the information without success." This Statement is also factually inconsistent with False Statement No. | and, as set forth in Martin's Motion to Clarify, this False Statement is completely contrary to the record which shows that Mr. Bryant did, in fact, obtain information from AT&T and Facebook, and that he did produce that information to the undersigned counsel, yet that information was demonstrably useless because it was grossly incomplete, Ex. "A," pp. 4-6. Therefore, False Statement No. 3 is also a fabrication to support Judge Smith's bias in favor of Webster and Bryant. False Statement No. 4: "They [Mr. Webster and Mr. Bryant] each then hired attorneys to assist them in complying with the subpoenas." This Statement is also completely contrary to the record, which shows that neither Webster nor Bryant consulted with any attorney prior to hiring their counsel after they had received service of Martin's Application for Contempt; and neither of their counsel did anything to obtain any information for Webster or Bryant to respond to Martin's subpoenas, such as to ask Facebook and AT&T to produce the requested information, or issue subpoenas on behalf of Webster or Bryant, as the undersigned counsel was required to do at Martin's expense, due to Webster's and Bryant's counsel doing nothing to respond to Martin's subpoenas, Ex. "A," p. 6. Similar to Judge Smith's False Statement No. 2, this False Statement is also a fabrication Mot to Recuse -6-to support excusing Webster and Bryant from complying with Martin's subpoenas and the Order to Show Cause. False Statement No. 5: "The request for phone records and Facebook account information were not easily obtained." This Statement is also completely contrary to the record. Had Webster or Bryant printed the Facebook communications that the undersigned counsel printed from their publically-available records, and had they printed the requested information from their private pages, and had they produced complete telephone records which Bryant requested from AT&T, and received, and produced, then those records would have been “easily obtained" and Martin would not have been required to subpoena Facebook and AT&T, just as Martin obtained information from AT&T regarding Plaintiff Johnson using only a subpoena, Ex. "A," pp. 6, 7. Therefore, this is another fictitious excuse proffered by Judge Smith to benefit Defendants, and is contrary to False Statement No. 1. False Statement No. 6: "In fact, none of the parties have been able to obtain records from Facebook, and it took a court order to obtain the phone records." Again, this Statement is contrary to the record. Webster and Bryant did produce some irrelevant information from their Facebook accounts, which only required them to print the requested Facebook communications to produce them, and Mr. Bryant merely requested AT&T to produce his telephone records, which would have been satisfactory had he produced complete AT&T records, and had Webster produced any of his AT&T records, Ex. "A," p.7. False Statement No. 7: "At the oral request of both Mr. Colclazier and Mr. Irby for extension of time to respond to the Motion for Partial Summary Judgment, and over objection by Kirk Marshall, responses to said motions [sic] shall be filed by June 28, 2021." Again, this Statement is completely contrary to the record because neither Mr. Colclazier nor Mr. Irby ‘Mot to Recuserequested such extension in the presence of the undersigned counsel, Ex. "A," pp. 7-8. Judge Smith violated Rule 2.9 of the Code of Judicial Conduct which prevents ex parte communications with a judge when the communications will reasonably provide the party with a "procedural, substantive, or tactical advantage as a result of the ex parte communication," 5 O.S. App. 4, Rule 2.9. Judge Smith responded to Mr. Colclazier's and Mr. Irby's ex parte request for an extension of time of an additional 15 days in which to respond to the Motion for Partial Summary Judgment by giving Plaintiff Johnson and Defendant Bryant procedural, substantive, and tactical advantages without any justification, and contrary to the Oklahoma Rules of Civil Procedure. Therefore, it was upon these facts that Judge Smith justified not holding a trial on Martin's Application for Contempt against Webster and Bryant. THIS COURT MAY NOT PRESIDE OVER THIS CASE UNTIL MARTIN'S MOTION TO DISQUALIFY HAS BEEN DECIDED As the undersigned counsel indicated in the in camera hearing, Martin's motion for disqualification must be resolved before further proceedings are justified before Judge Smith, Clark v. Board of Education of Indep. Sch. Dist. No. 89, 2001 OK 56, 47-11, 32 P.3d 851; Miller Dollarhide, P.C., v. Tal, 2007 OK 58, § 13, 163 P.3d 548 (Pursuant to Clark v. Board of Education of Indep. Sch. Dist. No. 89, the actions of the trial court in its continued participation while motions to disqualify are pending results in a deprivation of due process and constitute reversible error"). WHEREFORE, because Martin has properly brought his motion, and Judge Smith is disqualified from presiding over these proceedings pursuant to Oklahoma District Court Rule 15 and the Oklahoma Code of Judicial Conduct because her impartiality has reasonably been ‘Mot to Recusequestioned, Martin requests this Court enter an order for disqualification and to transfer this matter to an alternative judge and jurisdiction. Mot to Recuse Respectfully submitted, aa Kirk A. Marshall, OBA# 19345 KIRK MARSHALL, PLLC kirkmarshall@msn.com 304 W. Grand Teton Ct. Yukon, OK 73099 (405) 706-5641 Attorney for Plaintiff CERTIFICATE OF SERVICE VIA U.S. MAIL I, the undersigned, certify that on this 4th day of August 2021 that a true and correct copy of the above and foregoing Motion to Recuse Judge Trisha Smith for Cause was served by United States first-class mail, postage prepaid thereon to: Timothy F. Crow, Esq. SMILING, SMILING & BURGESS Bradford Place, Suite 300 9175 South Yale Ave. Tulsa, OK 74137 Greg D. Givens, Esq. GIVENS LAW FIRM 136 N.W. 10th Street, Suite 100 Oklahoma City, OK 73103 Mr. M. Bradley Carter, Esq. P.O. Box 1508 Seminole, OK 74818-1508 Robert L. Irby, Esq. THE IRBY LAW FIRM, P.L.L.C. 104 N. Broadway P.O. Box 955 Holdenville, OK 74848 Jerry L. Colclazier, Esq. COLCLAZIER & ASSOCIATES 404 North Main Street Seminole, OK 74868 Andy A. Artus, Esq. COLLINS, ZORN, & WAGNER, P.C. 429 N.E. 50th St., Second Floor Oklahoma City, OK 73105-1815 SS Kirk A. Marshall -9-IN THE DISTRICT COURT IN AND FOR SEMINOLE col STATE OF OKLAHOMA “i ce IN DISTRICT COURT JEREMY JOHNSON, Plaintiff, JUL 14 2071 vs. L.G. MARTIN, KIM A. DAYIS, COURT CLERK Defendant and Third-Party Plaintiff, BY. DEPUTY vs. BARRY TUCKER, Cause No. CJ-2018-63 JAMES BRYANT, Cause No. CJ-2021-1 MICHAEL DOWNEY, SHERIFF SHANNON SMITH, DEPUTY SHERIFF CHUCK WEBSTER, and DEPUTY SHERIFF MATT HALEY, Third-Party Defendants. MOTION TO CLARIFY ORDER OF JUNE 17,2021 COMES NOW Defendant and Third-Party Plaintiff Martin and clarifies that the Order entered on June 17, 2021, which pertains to the hearing on June 14th, 2021, is a grossly inaccurate reflection of the evidence, the law, and the record and, in support, alleges as follows: 1) This Court stated in its Order that "[o]n April 1, 2021, all parties announced that the issues of contempt were moot because Mr. Marshall had received all requested information from both Mr. Webster and Mr. Bryant," 6/17/21 Ord. p. 1-2. The evidence however shows that, at the April Ist hearing, it was this Court, and not "all parties," who declared that the issues of contempt were moot. Mr. Ibry confirmed this when he testified at the June 14th hearing that "[oJn April Ist, 2021 Mr, Bryant and I appeared demanding a trial on the issue, and my memory is that it was declared moot at that time," 6/14/21, Hrg. Tr. 18:19-21 (emphasis added), attached as Exhibit "A." After the Court declared that the issues of contempt were moot at the April Ist hearing, counsel for Webster and Bryant indicated that they had no need to present evidence. ‘Mot to Car 1/8 CfAt that hearing, the undersigned counsel also demanded a trial, and certainly agreed that the contempt citations were "moot" because the undisputed evidence was that Martin had expended his money to obtain whatever was possible from AT&T and Facebook; and Webster, Bryant and their attorneys had produced virtually nothing in response to Martin's subpoenas; and they were obviously not going to produce anything else. So Martin was entitled to attorney's fees for obtaining whatever was possible from AT&T and Facebook because Webster, Bryant and their attomeys had not done it and would not do it, see also Ex. "B," 16:20-18:14. Then, the undersigned counsel reviewed the evidence which is also set forth in Martin's Motion for Attorney's Fees: a) neither Webster nor Bryant produced the Facebook communications that Martin had already obtained prior to the Subpoenas from their publically-available Facebook conversations; b) neither Webster nor Bryant produced any evidence of their communications during the relevant time period regarding the livestock which is the subject of this litigation; c) Bryant produced incomplete AT&T telephone records thus rendering them useless; d) Bryant also produced five Facebook communications and several text messages, none of which discussed the subject livestock; e) Webster produced no telephone records, and no Facebook messages, but produced a few text messages from an unknown year, none of which discussed the subject livestock; f) Martin obtained Webster's and Bryant's AT&T telephone records using the Court orders that the undersigned counsel had researched and prepared, and obtained this Court's signatures for, and filed on September 15th, 2020, and served upon AT&T and Facebook, and Mot to Car 2/8filed the returns of service, and filed the motions for contempt, and attended the hearings for Martin's claim of attorney's fees, all without the assistance of Webster, Bryant or their attorneys, even though all of the documents were in their possession and control. None of the foregoing was disputed by Webster or Bryant in the hearing on April Ist, and no one at that hearing alleged that the law which Martin had cited was insufficient to allow attorney's fees, based upon the undisputed fact that Martin -- and not Webster or Bryant -- had obtained some of the documents that Webster and Bryant refused to produce. And no one alleged that some law somewhere required a "prevailing party" to be determined as a Prerequisite to awarding attorneys fees for a contempt citation based upon the evidence. This Court's claim that "Mr. Marshall had received all requested information from both Mr. Webster and Mr. Bryant” is also not supported by the evidence. If this statement were true, then the Court Orders filed on September 15th, 2020 would not have been necessary for Martin's counsel to prepare. In addition, Mr. Irby testified that "Mr. Bryant could have" supplied information from AT&T and Facebook, Ex. "C," 15:12-13, Mr, Carter similarly testified that the codes that Mr. Webster provided to purportedly access his AT&T account were completely useless, Ex. "D," 12:5-12. Therefore, the Court's statement that the undersigned counsel had received all requested information from both Mr. Webster and Mr. Bryant is contradicted by the evidence, and the Court confirmed this when it stated that Webster and Bryant "each attempted to obtain the [telephone records and Facebook posts] without success," Ord. p. 2. Therefore, this Court's statement in its Order that "[oJn April 1, 2021, all Parties announced that the issues of contempt were moot because Mr. Marshall had received all Tequested information from both Mr. Webster and Mr. Bryant," is not supported by any evidence, Motto lar 3/82) This Court also falsely announced in its June 17th Order that Webster and Bryant are "lay persons with limited knowledge of ‘discovery’ or how to obtain electronic information," Ord. p. 2. Even if this announcement were true, an excuse of a person being a "lay person” is completely irrelevant to his refusal to comply with a subpoena, especially when that "lay person" supposedly hired his attorney to respond to the subpoenas, as this Court also announced contrary to the evidence. This Court is aware that neither Webster nor Bryant are “lay persons." This Court knows that they are both former law enforcement personnel, and this fact has been set forth in numerous motions, including Martin's Reply to Webster's Response to Martin's Motion for Attorney's Fes and Costs and Motion to Strike Webster's Response, and Motion for Sanctions, filed on June 20th, 2021 ("Martin's Reply"), in which Mr. Webster is properly identified as a witness for the Defendants who repeatedly gave them legal advice on behalf of the Seminole County Sheriff's Office. Mr. Carter even testified at the June 14th hearing that "Mr. Webster is a former law enforcement officer and he understands what the penalties are for perjury,” Ex. "E," 10:6-8. Therefore, this Court's excuse that Mr. Webster and Mr. Bryant are not liable to Martin for attorney's fees because they are "lay persons with limited knowledge of ‘discovery’ or how to obtain electronic information," is false. 3) Another false excuse for Mr. Webster and Mr. Bryant to avoid attorney's fees presented by this Court is that they "each attempted to obtain the information without success,” Ord. p. 2. Contrary to this excuse, the evidence shows that Mr. Bryant did, in fact, obtain information from AT&T and Facebook; however, the AT&T phone records that he produced were so incomplete that they were useless, and his Facebook communications did not include MottoCor 4/8those that the undersigned counsel had obtained from their publically-available Facebook accounts before the subpoenas were served and obtained after this Court ordered them to produce those communications, see 1(c, d, ) supra. Therefore, as to Mr. Bryant the excuse that he attempted to obtain the information without success is false. Mr. Webster, on the other hand, never presented any evidence that he attempted to obtain any information from AT&T or Facebook. Therefore, this Court's excuse that he attempted to obtain the information without success is also contrary to any evidence. This Court's excuse implies that Webster's and Bryant's attorneys, who they supposedly hired to respond to the subpoenas, were unable to subpoena AT&T or Facebook, as the undersigned counsel successfully accomplished. This excuse also implies that neither Mr. Webster, nor Mr. Bryant, nor their attorneys knew how to produce the information requested in the subpoenas from Facebook, which required them to locate the communications that Mr. Webster and Mr. Bryant had previously typed into Facebook, and push the button on the computer that says "print." Therefore, had they "attempted to obtain the information," they would have printed their publically-available Facebook communications from their accounts, including the information that Martin obtained prior to issuing their subpoenas, which was attached to Martin's Reply as Exhibit "M," and would have produced a more extensive version of that evidence which Martin attached to his Third Amended Petition, see 1(a) supra. Moreover, they would have produced the private portions of their Facebook accounts regarding the cattle. Similarly, had Mr. Webster just asked AT&T for his telephone records, as Mr. Bryant just asked AT&T for his telephone records and received them, Martin would not have had to create the Court Orders which were filed on September 15th, 2020, and Mr. Webster and Mr. Motto Clar 5/8Bryant would have obtained the same information that Martin obtained through those Orders. Therefore, Mr. Webster's and Mr. Bryant's refusal to produce the documents requested had nothing to do with their unsuccessful "attempts to obtain the information." 4) Mr. Webster and Mr. Bryant did not "hire their attorneys to assist them with complying with the subpoenas," Ord. p. 2. If they had hired their attorneys to assist them with complying with the subpoenas, they would have hired their attorneys after they received the subpoenas to respond to the subpoenas, instead of hiring their attorneys to respond to the contempt citations after they received the contempt citations. And Mr. Irby confirmed this in the June 14th hearing when he testified that Mr. Bryant hired him "to respond to this contempt citation,” Ex. "F," Hr. Tr. 7:13, see also, 6:2-5 (“it wasn't until July 2nd when [] this Court filed its contempt citation that [Mr. Bryant] actually began responding to the subpoenas duces tecum"). Had Mr. Webster and Mr. Bryant "hired their attorneys to assist them with complying with the subpoenas," then their attorneys would have assisted them in producing the same AT&T records that Martin obtained at his expense through his Court Orders. They could have merely asked AT&T for the records. And had their attorneys merely pushed the button on Mr. Webster's and Mr. Bryant's computer that says "print," they would have produced at least those Facebook communications that Martin obtained at his expense from their publically-available Facebook accounts. 5) Therefore, this Court's statement is also true that "[t{he request for phone records and Facebook account information were not easily obtained," Ord. p. 2. Mr. Bryant easily obtained his phone records because he produced some of them but were so incomplete they were useless. And the undersigned counsel testified at the June 14th hearing that it was "easy" "to Mottockr 6/8obtain those documents from AT&T," Ex. "A," 18:2-3, see also, Return of Service of Subpoenas Duces Tecum Regarding Jeremy Johnson to AT&T, filed 4/20/21, which shows that AT&T records were obtained with a subpoena. And we know that the ease with which Mr. Webster, Mr. Bryant, or their attorneys could have produced the requested Facebook communications would have required them to first find the communications on their accounts that responded to the subpoenas, and then pushed the button on the computer that says "print." Therefore, the ease with which the documents were obtained by Mr. Webster, Mr. Bryant, and their attorneys is irrelevant to their failure to produce the requested documents, and is not another excuse for avoiding paying Martin's attorney's fees. 6) This Court also stated in its June 17th Order that "[iJn fact, none of the parties have been able to obtain records from Facebook," Ord. p. 2. Again, both Webster and Bryant produced information from their Facebook accounts, probably by pushing the button on the computer that says "print." But they did not produce any of the information requested in Martin's subpoenas, or the communications which Martin obtained from their publically-available Facebook accounts both before and after Martin issued his subpoenas to Webster and Bryant, See, €.g., Ex."A," attached to Third Amended and Third-Party Petition, filed on 7/6/21. 7) This Court also stated in its June 17th Order that both Mr. Colclazier and Mr. Irby orally requested an extension of time to respond to Martin's Motion for Partial Summary Judgment, Ord. p. 2. However, this statement is demonstrably false because no oral request was made by either Mr. Colclazier or Mr. Irby in the presence of the undersigned counsel, and no such oral request exists on the record, and this Court either offered the extension completely unsolicited by Mr. Colclazier and Mr. Irby, or offered it in response to their ex parte Motto Clar 7/8communications, giving them an additional 15 days from the date of the hearing to respond to Martin's Motion for Partial Summary Judgment, Ex. "I," 22:17-19. 8) This Court ordered this hearing to begin at 1:30 p.m. on June 14th. However, the hearing did not begin until 1:50 p.m. when the 5 attorneys, including the undersigned counsel, who had been waiting 20 minutes for the hearing to begin without any explanation, finally learned that we had waiting for Mr. Colclazier to arrive. The second 50-minute delay in the June 14th hearing occurred when the Court announced that it was not prepared, and needed to review the record. The third 20-minute delay in the June 14th hearing occurred when opposing counsel announced that they also were not prepared, and needed to have a conference. Consequently, the approximately 25-minute transcript took more than 2 hours to accomplish, and resulted in the Order which is the subject of this Motion. Respectfully submitted, Kirk A. Marshall, OBA# 19345 KIRK MARSHALL, PLLC 304 W. Grand Teton Ct., Yukon, OK 73099 (405) 706-5641 CERTIFICATE OF SERVICE VIA U.S. MAIL I, the undersigned, certify that on this 12th day of July 2021 that a true and correct copy of the above and foregoing Motion to Clarify Order of June 17th, 2021 was served by United States first-class mail, postage prepaid thereon to: Jerry L. Colclazier, Esq. 404 North Main Street Seminole, OK 74868 Mr. M. Bradley Carter, Esq. Robert L. Irby, Esq. P.O. Box 1508 P.O. Box 955 Seminole, OK 74818-1508 Holdenville, OK 74848 a-— Kirk A. Marshall Mot to Clar 8/8IN THE DISTRICT COURT OF SEMINOLE COUNTY STATE OF OKLAHOMA JEREMY JOHNSON, Plaintiff, CASE NO. CJ-2018-63 vs. LG. MARTIN, Defendant. L.G. MARTIN, Plaintiff, BARRY TUCKER, JAMES BRYANT, and ) ) ) ) vs. ) CASE NO, CJ-2021-1 ) ) MICHAEL DOWNEY, ) ) ) Defendants. teen TRANSCRIPT OF MOTION HEARING ON JUNE 14, 2021 BEFORE THE HONORABLE TRISHA SMITH, ASSOCIATE DISTRICT JUDGE IN HOLDENVILLE, OKLAHOMA eRe REPORTED BY: DONNAG. McCOLLOCH, CSR #1572 Official Court Reporter Seminole/Hughes County, Oklahoma Ex “A1 APPEARANCES 2 Counsel for Jeremy Johnson, Plaintiff in CJ-2018-63: 3 MR. JERRY L. COLCLAZIER Colclazier & Associates 4 404 N. Main Street Seminole, OK 74868 5 Counsel for L.G. Martin, Defendant in CJ-2018-63 and 6 Plaintiff in CJ-2021-1: 7 MR. KIRK A, MARSHALL Kirk Marshall, PLLC 8 304 West Grand Teton Ct. Yukon, OK 73099 9 Counsel for Barry Tucker, Defendant in CJ-2021-1: 10 MR. GREG GIVENS 11 Attorney at Law 136 N.W. 10th, Suite 100 12 Oklahoma City, OK 73103 13 Counsel for James Bryant, Defendant in CJ-2021-1: 14 MR. ROBERT L. IRBY Attorney at Law 15 P.O. Box 630 Holdenville, OK 74848 16 Counsel for Michael Downey, Defendant in CJ-2021-1: 17 MR. TIMOTHY F. CROW 18 — Smiling, Smiling & Burgess Bradford Place, Suite 300 19 9175 South Yale Avenue Tulsa, OK 74137 20 Counsel for Chuck Webster: 21 MR. M. BRADLEY CARTER 22 Attorney at Law P.O. Box 1508 23 Seminole, OK 74818-1508 24 2518 were ona piece of paper and didn't work makes that noncompliant, in my opinion, especially with the ease that in retrospect it was to obtain those documents from AT&T. So | would just ask that the Court consider the law 3237; that the defense to having a contempt citation against you is that you were not able to comply because of some substantial justification or that circumstances otherwise make the award of expenses unjust. And, yes, you know everybody here is paying attorney's fees. My client was sued by Mr. Colclazier's client. So if we're going to, you know, talk about how much we're having to pay, that's probably not something we should spend this Court's time on any further. Thank you, your Honor. MR. IRBY: Judge, if | could address one thing. It's a procedural issue. And | don't want to necessarily dispute Mr. Marshall's perception of what happened, but in order to purge a contempt, a contempt conviction has to be had. Andon April 1st, 2020, Mr. Bryant and | appeared demanding a trial on the issue, and my memory is that it was declared moot at that time. | just want to make that clear for the record that Mr. Bryant was never convicted, or tried, or given the opportunity to present a defense to the contempt citation. ft was withdrawn.16 1 Mr. Martin had made of Mr. Bryant, who is a witness in this 2 case. 3 And on April 1st, unbeknownst to me, Mr. Marshall 4 appeared and announced that Mr. Bryant, the contempt 5 citation issue was moot, there was nothing further he could 6 produce or provide. And so my thought was that would be the 7 end of that argument. 8 And it certainly isn't. He's filed a motion for 9 fees against Mr. Bryant, but, Judge, the record here that 10 has been created shows that Mr. Bryant has done everything 11 he possibly can to provide answers to Mr. Martin's discovery 12 requests. And anything that was not turned over could not 13 be turned over, but everything he has had in his possession 14 he has made every effort to provide that to counsel, even 15 _ before | got involved, and we are continuing to do so in the 16 other lawsuit. 17 We request that the application for fees be denied. 18 THE COURT: Thank you, Mr. Irby. 19 Any response, Mr. Marshall? 20 MR. MARSHALL: Yes, ma'am. I'll be brief, 21 ‘Yes, in fact, what happened at the last hearing, your Honor, 22 was you said have the request for production, the contempt, 23 has it been purged, and my answer was, yes, your Honor, they 24 are not going to produce anything else. 25 So to the extent that | was satisfied, that is not xx “gt17 how I recall it. And so when Mr. Irby says that Mr. Bryant could not have done anything more, he could have contacted -- Mr. Irby could have contacted AT&T, or Mr. Bryant could have contacted AT&T, and said give me everything from November 2017 until now as far as my telephone records. And just like | asked, they gave it to me. So what I'm asking for, your Honor, is just from the time that they didn't respond to our legitimate subpoenas until the time that | acquired whatever they were going to give me, along with their telephone records -- which, yes, | have obtained. | have obtained. | obtained it through the orders that you provided. It was easy. It was easy. Facebook, other end of the spectrum. We're not going to get it under federal law. At least, I'm not going to pursue it. | was satisfied that it wasn't worth the time, especially since we had obtained Facebook information that the Defendants had publically had available that they didn't produce when | asked them. And by the way, your Honor, that was listed as an exhibit in our response to Mr. Webster's objection to the attorney's fees. And, you know, Mr. Carter admitted that the codes that are on Exhibit A didn't work for him either when he provided them to me. And so, you know, the fact that they18 were on a piece of paper and didn't work makes that noncompliant, in my opinion, especially with the ease that in retrospect it was to obtain those documents from AT&T. So | would just ask that the Court consider the law 3237; that the defense to having a contempt citation against you is that you were not able to comply because of some substantial justification or that circumstances otherwise make the award of expenses unjust. And, yes, you know everybody here is paying attorney's fees. My client was sued by Mr. Colclazier's client. So if we're going to, you know, talk about how much we're having to pay, that's probably not something we should spend this Court's time on any further. Thank you, your Honor. MR. IRBY: Judge, if | could address one thing. It's a procedural issue. And! don't want to necessarily dispute Mr. Marshall's perception of what happened, but in order to purge a contempt, a contempt conviction has to be had. And on April 1st, 2020, Mr. Bryant and | appeared demanding a trial on the issue, and my memory is that it was declared moot at that time. 'just want to make that clear for the record that Mr. Bryant was never convicted, or tried, or given the Opportunity to present a defense to the contempt citation. It was withdrawn.15 1 filing a notice of compliance on September 1st, 2020, 2 articulating to the Court that there was really no further 3 way that he could cooperate or secure any of the materials 4 that were requested. 5 There were similar arguments with regard to Facebook 6 and AT&T. After so much time, a lot of that information is 7 simply not able to be retrieved. We certainly did agree 8 to -or Mr. Bryant agreed to the orders of the Court that 9 those organizations supply any of the information that they 10 had. 11 | was never notified whether they had supplied any 12 information or not, but that would have been the only thing 13. Mr. Bryant could have done. And after ! got into the case, 14 there really wasn't anything else. 15 Now, Mr. Bryant was subsequently sued at the 16 beginning of this year and has answered to the best of his 17 ability all the discovery requests that have been provided 18 by the Defendant in this case, the Plaintiff in that case, 19 ©-21-1. So Mr. Bryant is continuing to cooperate in 20 ongoing discovery requests that he is asked to provide, and 21. will continue to do so. 22 When we appeared on April 1st, 2021, we had 23 continued to assert we were not in contempt, we weren't in 24 violation of either this Court's orders, if they were 25 ordered to compel, or the request that the Defendant Ex. "CO"11 12 20 24 25 12 There were several different things. There were text messages, | think, being requested, Facebook messages. Facebook is a creature all of its own. It's very difficult to get anything from Facebook. With regard to the Verizon -- or AT&T store, excuse me, Mr. Marshall - excuse me, Mr. Webster went there, was provided these handwritten codes. He came into my office and Mr. Webster and my assistant spent the better part of a day, it seemed like, at least a half a day, trying these codes that they were given, plugging them in, you go to a website, they give them to you. We spent as much time as we could. | provided those codes to counsel as well. | think eventually -- and I'm not really sure if you have those yet or not. The AT&T store, | believe, was sul bpoenaed. We worked with counsel to obtain that information. It was just, you know, for whatever reason there were great lengths that we went to, to try to comply with this. And whatever Mr. Webster had, what we received, Mr. Marshall has. That's all ! can say to the Court. We've made every effort to comply in good faith. Again, we're not a party to the action. We're just witnesses, and we're more than happy to not be obstructive in any way. We want to be cooperative. We certainly don't want any contempt citations Feo10 1 me the explanation of why he did not attend the deposition. 2 He stated that he had attempted to call. 1 don't know what 3 number. He is not here -- couldn't be here today, but 4 1--you know, we put that in our response, that he was ill, 5 and he verified that under oath. And that's ~ | took him 6 at his word. Mr. Webster is a former law enforcement 7 officer and he understands what the penalties are for 8 perjury. 9 ' would state to the Court -- and it's very well 10 likely he may have called the district attorney's office 11 over in Seminole -- excuse me, Shawnee, where the 12 depositions were set up, but my understanding was, as 13 Mr. Marshall said, that he attempted to call Mr. Marshall's 14 office. | don't know what that was, but, nevertheless, he 15 was told that he -- they would try to get in touch with 16 Mr. Marshall's office. 17 And Mr. Marshall did travel to the courthouse, | 18 understand, after, or was en route, so | do know that that 19 is true as far as he probably did not get the word or, if he 20 got the word, was already there and could not turn around. 21 | don't know what Mr. Bryant said at his deposition. 22. [haven't read it. Don't know how he would know or any of 23 that. | just know that Mr. Webster told me he was up all 24 night very ill and he finally went to bed about five o'clock 25 inthe morning, or something like that, he got up, he made ak E, “1. at the time it was requested was substantially justified or 2. if it was circumstances that make the award of expenses 3° unjust. 4 So, in addition, and, finally, your Honor, regarding 5 Mr. Bryant, he, of course, agreed to this Court ordering the 6 telephone information from AT&T to be -- and | mean ordering 7 rather than subpoenaed -- to be served upon AT&T and 8 Facebook, actually. 9 And they could have, of course, done that themselves 10 because, in fact, the question was produce anything that is 11 inyour possession or control, and it would be the 12. telephone -- the person who has the contract with the 13 telephone company who has control of their own bill. 14 And | haven't heard anybody say that was from 15. Mr. Bryant or Mr. Webster's side of this that their 16 attorneys did anything except tell their clients, for 17 example, call AT&T and say, hey, legal department can you 18 provide this, or how do | get it. 19 So, yes, because we did take the time and because we 20 did go to the effort of Preparing that order, obtaining the 21 order, because it had to be an order or subpoena and it 22 couldn't be just a request, hey, can you just give this to 23 me because it's my account, that was an additional expense 24 that we're asking them to pay. 25 Now, regarding Mr. Webster -- now, | don't want to Ex “F*