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Stroud's memo in support of sanctions v. Wells Fargo Bank et. all, filed 9/13/13

Stroud's memo in support of sanctions v. Wells Fargo Bank et. all, filed 9/13/13

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Robert Mark Stroud's memorandum in support of his motion for sanctions against and to strike Wells Fargo Bank's answer in the case Stroud v. Wells Fargo Bank, Scott Zardenetta and Chuck Owens.
Robert Mark Stroud's memorandum in support of his motion for sanctions against and to strike Wells Fargo Bank's answer in the case Stroud v. Wells Fargo Bank, Scott Zardenetta and Chuck Owens.

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Categories:Types, Business/Law
Published by: Island Packet and Beaufort Gazette on Sep 16, 2013
Copyright:Attribution Non-commercial

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02/19/2015

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UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINABEAUFORT DIVISION
ROBERT MARK STROUDPlaintiff,v.WELLS FARGO BANK, N.A., SCOTTZARDENETTA and CHUCK OWENS,Defendants.))))))))))))Civil Action No.: 9:12-cv-03641-SB
PLAINTIFF’S MEMORANDUM INSUPPORT OF HIS MOTION FORSANCTIONS AND TO STRIKE WELLSFARGO’S ANSWER
The plaintiff, Robert Mark Stroud, submits the following memorandum in support of hismotion to strike Wells Fargo’s answer due to Wells Fargo’s manager’s admitted destruction of critical evidence.
FACTS
1.
 
The central evidence in this case is text messages between Wells Fargo DistrictManager Scott Zardenetta, Wells Fargo Mortgage Banker Brain Natale, and Wells Fargoemployee, former Banker and current Manager, Wendy Baxley. Of particular importance is atext message from Zardenetta to Natale referencing drug use and desired group sex amongseveral Wells Fargo employees, including himself, Baxley, and Natale. Natale forwarded thattext message to Wendy Baxley. The plaintiff, along with other Wells Fargo employees, learned of this text message. The plaintiff alleges he was terminated from Wells Fargo as a result of hisreporting this text message and Zardenetta’s criminal behavior as district manager to WellsFargo Human Resources. The defendants specifically deny that any such text message exists or has ever existed. The existence of the text message, however, has been confirmed by numerous
9:12-cv-03641-SB Date Filed 09/13/13 Entry Number 32-1 Page 1 of 14
 
2
witnesses - both current litigants in the state court companion case and by at least oneindependent witness.
See e.g.,
affidavit attached as Exhibit 1.2.
 
In order to prove his case, the plaintiff has gone to great lengths to obtain thenecessary cell phone records and cell phones to confirm these text messages’ existence.3.
 
 No cell phone records from Mr. Natale, Mr. Zardenetta, or Ms. Baxley have been produced by Wells Fargo to-date. Instead, Wells Fargo has fought every effort by the plaintiff toobtain these individuals’ cell phones or cell phone records.
See
letter dated January 8, 2013attached as Exhibit 2 and Motion to Quash attached as Exhibit 3.4.
 
As for Wendy Baxley, the plaintiffs sent her an evidence preservation letter onAugust 22, 2012 requesting that the text message from Brian Natale as well as other cell phonerecords be preserved.
See
letter attached as Exhibit 4. A preservation letter was sent not only toBaxley, but also to Wells Fargo District Manager Scott Zardenetta and Well Fargo CorporateSecurity Officer Chuck Owens.
See
letters attached as Exhibit 5.5.
 
The plaintiffs in a companion state court case issued subpoenas from the SouthCarolina Court of Common Pleas, Beaufort County to Wendy Baxley on November 12, 2012.
See
subpoena attached at Exhibit 6. The state court plaintiffs served a second subpoena onDecember 27, 2012 for the same records.
See
subpoena attached as Exhibit 7. Instead of responding to those subpoenas, Baxley wrote plaintiffs’ counsel stating that she had nodocuments or information.
See
letter from Baxley attached as Exhibit 8.6.
 
The plaintiff served discovery requests on Wells Fargo on January 9, 2013requesting all electronic communications between Zardenetta, Natale, and Baxley. Wells Fargo produced no text messages in response to this request and instead objected to the request asoverly broad and unduly burdensome and, among other things, on grounds that it sought
9:12-cv-03641-SB Date Filed 09/13/13 Entry Number 32-1 Page 2 of 14
 
3
“personal or confidential information pertaining to individuals who are not parties to thislawsuit.”
See
Wells Fargo’s responses to plaintiff’s requests for production attached as Exhibit9.7.
 
The state court plaintiffs also sent a subpoena to Wells Fargo and Brian Nataleseeking production of his cell phone or cell phone records. Wells Fargo, rather than attempt tofacilitate the production of this supposedly exonerating evidence, filed a motion to quash thestate court plaintiffs' subpoena.
See
Exhibit 3. Judge Dukes ordered that the parties agree to thescope of the production from Natale. The parties continue to work on this issue but no textmessages of any kind have been produced by Wells Fargo to date.8.
 
The plaintiff in this case and the plaintiffs in the companion state court case thennoticed Wendy Baxley’s deposition on July 10, 2013 and noted that plaintiffs’ counsel intended to “question the witness regarding any and all documents produced or made available by any party during the course of discovery, as well as those obtained through subpoena recordsrequests.”
See
deposition notice of Baxley attached as Exhibit 10. Baxley brought no documentswith her to her deposition.9.
 
It was not until Wendy Baxley was sworn in during her deposition that sherevealed the following, which is the basis for this motion:a.
 
She owned and used two cell phones in 2012 and 2013.
See
 pp. 24 26 of Wendy Baxley’s Deposition, attached as Exhibit 11. b.
 
Both of those cell phones are still in her possession.
See
Dep. of Baxley, pp.30 – 31, attached as Exhibit 11.
9:12-cv-03641-SB Date Filed 09/13/13 Entry Number 32-1 Page 3 of 14

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