Charney is fucked. The judge will sanction the shit out of him for spoilation of evidence for destroying the hard drive.

Also, there is no way he destroyed his hard drive in good faith. You expect me to believe he promptly destroyed hundreds of dollars in equipment, in defiance of a court order, and as an admitted NY attorney, solely because S&C put an offer on the table? Please.

1:05 Especially since he didn't even take the settlement. Poor Alterman performed a miracle by preventing the judge from getting angry.

There is no way Charney really destroyed his hard drive out of nowhere. Just no way. He's lying, and choosing to be sanctioned rather than expose himself to criminal liability for theft.

It's gotta be a zip disk in his apartment, or the docs are stored in his gmail or hotmail, or something.

Also, the docs are likely recoverable from his gmail/hotmail. You can't download docs to your hard drive at home when connecting remotely to your work account.

If it violated Judge Ramos's order, it's not just sanctions, but contempt.

Christ.

I think what Alterman/Charney are arguing is that by offering them the option of destroying the hard drive or returning the information, S&C made it clear that destroying the hard drive would be a satisfactory resolution of S&C's document concerns.

Since it was OK with S&C, Charney destroyed the hard drive.

"Since it was OK with S&C, Charney destroyed the hard drive."

That may be indeed be their argument. But it's the kind of argument only a moron would accept at face value.

And if Alterman plays the "pro se" card with the judge, considering Charney FIRED his lawyer and IS a lawyer, he must have major balls.

I don't at all like how this lawsuit has been "fast-tracked". It seems as if the hearing this morning was an ultimate hearing on the merits. Remember where we are procedurally. S&C's complaint alleges conversion and replevin and seeks a return of the documents. They are seeking a preliminary MANDATORY injunction that Charney return the documents - which is the ultimate relief fro one of their claims. The way it should go is that Charney should have the opportunity to respond to the motion and show that S&C must establish likelihood of success on the merits. But it seems as if Judge Fried has ordered Charney to turn over the documents. Has Charney admitted that he took them?? Did he admit this in a court filing? If not, how can the judge order him to turn them over? Answer: the judge legally cannot - at least not until Charney gets a chance to answer the motion. Unless the Judge has granted a MANDATORY temporary restraining order - which is highly unlikely and very unusual. But judges seem to "order" people to do things all the time, despite not having the legal authority to do so. It doesn't seem right. Let Charney respond to the motion before ordering him to turn over files, hard drives, etc. that he may not have taken or may have taken with authority or permission.

But wait 1:17 - How does S&C get to go from "please destroy the hard drive. that would solve resolve our document concerns." to "we're upset that you destroyed the hard drive."

I agree Charney should have gotten the judge's permission before destroying anything, but I think it's odd that S&C wen't from asking him to destroy it, to protesting his destruction of it.

It seems like they're just looking for any way to attack him.

"How does S&C get to go from "please destroy the hard drive. that would solve resolve our document concerns." to "we're upset that you destroyed the hard drive.""

because it makes no logical sense to go ahead and "fold" -- ie, destroy the hard drive -- without accepting the quo for your quid.

It does, however, make logical sense that Charney would freak and try to destroy any incriminating evidence out there, figuring the existence of the evidence is more of a liability to him than the act of destroying it.

He's not being investigated by the SEC. It's just a civil lawsuit. I guess he weighed spoilation sanctions against damages and penalties as a lawyer.

Moreover, Charney has SEEN settlement offers by S&C be withdrawn!

That allegedly happened to him last spring. So why destroy the blackmail, whoops, i mean the evidence, until you get your payment?

I think it's true that S&C is looking for any possible avenue of attack, but it also seems true that ABC did some dumb things that provided them with avenues of attack.

I just hope that this doesn't overwhelm the original claims ABC made in his complaint; I would like to see them get resolved on the merits.

No wait. Let's be clear. S&C told Charney that they wanted him to destroy the hard drive. They even offered him a settlement on the condition that he destroy the hard drive.

So no he did what they wanted, and they're protesting it?

I agree the judge has a right to be upset that his order was violated, but why is S&C upset? All Charney did was what S&C asked him to do - what they offered him a settlement to do. Shouldn't they be happy?

Am I supposed to believe Charney destroyed his harddrive and thus, has NOT been following media coverage of his suit on the internets?

Yeah, right.

1:25 I agree. I think Charney was under a lot of stress and did some odd things. I'm glad he has a lawyer now.

I think this hearing was just a sideshow to help Fasman drive up his billings. Fasman has convinced S&C to take this detour contrary to its best interest; S&C should have settled long ago.

I know nobody credits my view; probably because I come from a tier 2 school. If I had a job I guess I would be smarter.

Does anyone else think it's a little amusing that the defense's team could go under the moniker "Zach Braff" - the entertainer who has given us J.D. on Scrubs and the voice of Chicken Little? Maybe it's just me...

"They even offered him a settlement on the condition that he destroy the hard drive."

L2L, you think S&C wanted Charney to destroy all the evidentiary basis for THEIR breach-of-fid-duty suit?

I didn't write the 1:30 post. Someone is using the Loyola 2L moniker.

It looks S&C did try to settle. As long as they offered something fair (500k IMO), Charney should have taken it.

Sorry, but Charney sounds like a moron. He rejected not one, but two settlement offers knowing he faced potential ethical and criminal ramifications by virtue of the documents he swiped? He should have taken any money S&C offered and ran. Or skipped.

I am not gay, but I would sleep with Charney to get a BigLaw job.

1:31 - Of course they only wanted that if they reached a settlement, at which point they would have dismissed their suit.

I'm just trying to point what Charney will argue.

I'm arguing his position too much though, because I really don't get why he destroyed the HD.

"Spoliation is the destruction or significant alteration of evidence,
or the failure to preserve property for another's use as evidence in
pending or reasonably foreseeable litigation."

I bet Fasman approached Charney and pretended to betray S&C. He then advised Charney to reject the settlement, all to pump up his billables.

Can't wait to hear about Lat's "bathroom encounters" with Braff and Fasman.

This story just gets jucier and jucier.

I didn't write the 1:35 post, but it's possible that Fasman offered a bad-faith settlement in the hopes that Charney would reject it - so Fasman and Bloom could bill millions on lengthy litigation.

It's ridiculous how you defense lawyers try to deny this perverse incentive. You protest too much.

The 1:37 post isn't me, but that is another real possibility. Fasman fooled S&C into making a settlement offer Fasman knew would fail (but S&C didn't). He got to bill for drafting it AND he stoked the flames of litigation.

The 1:42 post isn't mine. But it has the right point. I can't believe you guys don't see the simple reality.

The 1:43 post isn't mine either. STOP PRETENDING TO BE ME. I am a pathetic tier 2 student, why do you have to make me feel worse. If you want to treat me this way, at least give me a BigLaw job.

Stop the childish impersonations. I am Loyola 2L

No. I am.

The 1:44 post isn't mine. Since I have so many impersonators, I'm going to start posting as Cardozo 2L.

I am through with this board. All the messages above are fakes.

The 1:48 post isn't mine. I wish I were at Cardozo.

I changed my mind I'm back.

1:48 isn't me. I only wish I were at Cardozo.

Wish I was at Cardozo? They don't place any better than Loyola.

I wonder why Aaron Charney hasn't asked me to represent him. It must be because I didn't get into Harvard.

1:52 isn't me. I wished I hadn't believed that propaganda about Loyola. I might be at Harvard now.

Why is everyone making fun of me? Can't you all just give me some money to move on with my life?

1:54 Knock it off!!!!

I would be better than Fasman. Braff went to a tier 2 school like me. I think I could do a good job as S&C's lawyer.

Cardozo 2L f/k/a Loyola 2L: That's not funny. Can't you guys leave me alone

That's it. STOP TEASING ME. I have fragile enough ego sitting here without a BigLaw job and having been tricked into going to a tier 2 school

I hate myself and want to die.

This is the real Loyola 2L. I don't want to die. I want to cry. I wish you would all take a minute to think how lucky you are not to be in a tier 2 school and without any prospects.

I bet Fasman is impersonating me and billing S&C for his time.

I bet he's having Bloom do it.

So I see we have resorted to an infantile game of making fun of someone instead of actually talking about the claims...

...thanks for the disappointment

2:05 is not me. I don't think you are Fasman. I bet Fasman reads ATL and bills for it though.

I'm so pissed.

Seriously, I'm thinking about dropping out of law school altogether and, I don;t know, maybe becoming a rach hand.

I'll leave the city and head out west; maybe find work with another misunderstood young man. We can herd cattle, sheep, whatever. I guess I prefer sheep.

I hear it's beautiful on those mountainsides.

Yeah, that be nice. Just me, my buddy, and some sheep -- all finding happiness on some secluded mountainside.

Did anyone learn whether the various Charney attorneys are working pro bono/on a contingency basis/by the hour?? What about this Michael Kennedy, who is paying him?

Thanks wow. I needed some support. A tier 2 guy like me can't hack it alone.

Actually, I prefer cattle.

2:10 Probably Charney's mom and dad, since he appears to have such good relations with them.

2:10 Probably Fasman. It is a small price to pay to keep the billables rolling in.

2:10

Charney is lucky he can pay legal fees. He had a BigLaw job. I will never be in that position. If someone harasses me, I'll just have to take it.

I want a BigLaw job so bad. Now I wish I had actually studied in class instead of spending all day trying to figure out from Vault which law firms should be lucky enough to have me grace their hallowed halls.

S&C did not seem in any way upset that Charney destroyed the hard drive, and I don't think they tricked him into it. They wanted him to do it, and he (apparently) complied. Everyone (the Judge, S&C, Charney's attys) seemed like they would all be very happy just to know that it happened. Fried did make a point of repeating that it seems possible Charney destroyed the hard drive after Judge Ramos' order about preserving documents, but what we are talking about here is really about emails sent from S&C to home, so S&C has all of those emails (as more or less confirmed in court today, they have everything Aaron Charney sent from work to himself), they just want to be sure that the "home" hard drive that contained them no longer exists. (This led to an interesting comment by Fasman that he's already notified Hotmail and RCN not to destroy any emails that might still be out there. Also interesting was that the judge, referencing his granddaughter's relatively superior techie-skills asked for clarification re what it meant to "destroy" a hard drive... erase? incinerate? )

If S&C was so intent on going on a fishing expedition through all of Charney's e-mail, why would they have asked him to destroy the hard drive? I stand by my earlier impresssion of today's hearing. Fasman and Stiller seemed to suggest that S&C was inclined to see this case go away if they can just get their documents back and be assured their clients don't get the impression that confidential information is floating around. That doesn't address those who understandably point out that there may be other fora in which Charney will have a harder time talking his way out of some aspects of the alleged "conversion," but that's why he has Kennedy, and that's why his counsel is carefully preventing him from submitting affidavits before S&C's deadline Tuesday to answer the initial complaint.

I hope to decipher all my notes and have the entire hearing detailed by tonight. That will probably make for much better reading than these initial impressions. In the meantime I'm going to post more pictures.

It's difficult to keep up with MSM and David Lat, since this is not my full-time (or even part-time) gig, so I'll kindly ask for your forbearance.

So with that, I'll go back to lawyering for the afternoon.

I... am Loyola 2L.

Lavi,
Destroy it was acceptable if he accepted the settlement, because they wouldn't need to use the hard drive to prove their lawsuit against him.
But since he didn't settle, they need that hard drive.
I agree though that your argument seems like Charney's best hope and may save him.
Loyola 2L

Ok things were bad enough when there was just 1 Loyola 2L... now we've entered a whole new world of shit with multiple Loyola 2Ls floating around...

my tier 1 brain can't handle it

This Loyola 2L proliferation is starting to feel like Being John Malkovich.

Charney was required by S&C to destroy the HD as a preliminary condition for settlement. (Starting to sound like a chess game, huh?) I have a hunch that once/if Aaron's affidavit is submitted to Judge Fried confirming that the HD was destroyed, settlement-as-resolution might return as a very real possibility.

For your viewing pleasure, ABC v S&C v ABC in Pictures is now up on my blog. Go to main post on today's hearing and scroll down to 4:11 p.m. update. (Keep in mind, I'm not a professional photographer.) I'll post the rest of them this evening.